National Family Opinion, Inc.

National Labor Relations Board - Board Decisions

Nov 20, 1979

246 N.L.R.B. 521 (N.L.R.B. 1979)

NATIONAL FAMILY OPINION. INC.
National Family Opinion, Inc. and Toledo Printing
Pressmen and Assistants' Union No. 55, Interna-
tional Printing and Graphic Communications
Union, AFL-CIO. Case 8-CA- 10869
November 20, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDAI.E
On July 12, 1978, Administrative Law Judge Mi-
chael O. Miller issued the attached Decision in this
proceeding. Thereafter, Respondent and the General
Counsel filed exceptions and supporting briefs and
Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
We find, in agreement with the Administrative Law
Judge, that Respondent violated Section 8(a)(1) of the
Act by threatening to close its printing department if
union activity persisted, by interrogating employees
in connection with the antiunion campaign, and by
changing terms and conditions of employment in re-
taliation for its employees' union activity. In addition,
and also in agreement with the Administrative Law
Judge, we find Respondent violated Section 8(a)(3)
and (1) by closing its printing department and dis-
charging printing department employees for discrimi-
natory reasons, and Section 8(a)(5) and (1) by closing
unilaterally the printing department without bargain-
ing over the decision to close.2 Finally, we agree with
the Administrative Law Judge's conclusion that, in
the circumstances of this case, Respondent should not
be required to reestablish its printing department. In
this connection we note that the Board's usual rem-
edy for violations similar to those found against this
Respondent, involving as they do discriminatorily
motivated conduct, is to order a respondent to restore
the status quo ante by reestablishing the closed opera-
i Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products. Inc. 91 NLRB 544
(1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
2 We also adopt the Administrative Law Judge's finding Respondent did
engage in good-faith bargaining with the Union over the effects of its deci-
sion to close the printing department.
tion. unless the respondent can show that such a rem-
edy would be unduly burdensome.' Here, as found by
the Administrative Law Judge, reestablishment of the
printing department would require either transfer of
the entire telephone department and/or the leasing or
construction of additional space plus the acquisition
of equipment for that department. Given these cir-
cumstances, and in light of the record as a whole, we
are persuaded that reestablishment is not warranted
here.
Although the Administrative Law Judge declined
to order reestablishment of the printing department
as an appropriate remedy for the violation found, he
did order backpay from February 28. 1977, the date
Respondent unlawfully terminated the printing de-
partment employees, until either Respondent com-
mences to bargain in good faith over the decision to
close or the employees are offered reinstatement,
whichever occurs first.4 In so doing, the Administra-
tive Law Judge noted that the remedy recommended
by him here is identical to the remedy the Board used
in Brockway Motor Trucks, Division of Mack Trucks,
Inc., 230 NLRB 1002 (1977). For the reasons set forth
hereinafter, we agree with the Administrative Law
Judge that Respondent's backpay obligation should
date from the date of closing. However, we do not
agree that Respondent's backpay liability terminates
when it commences to bargain in good faith and we
shall modify that portion of the Administrative Law
Judge's recommended remedy accordingly.
At the outset, we note that providing backpay from
the date of closing is consistent with well-settled
Board precedent. For example, in what is perhaps the
leading case involving the appropriate remedy for
failing to bargain over an economicallyv motivated de-
cision to close, Winn-Dixie Stores, Inc., 147 NLRB
788 (1964), the Board required that the respondent
provide backpay from the date of its unlawful refusal
to bargain, the date it closed its cheese-processing op-
eration, until one of four conditions was satisfied: (1)
respondent and the union reached an agreement over
the closing; (2) they bargained to a bona fide im-
passe: (3) the union failed to commence negotiations
within 5 days after receipt of respondent's notice of
its desire to bargain: or (4) the subsequent failure of
the union to bargain in good faith.
And the Board has provided a Winn-Dixie-type
See R & H Masonrv Supply, Inc.. 238 NL.RB 1044. fn. 3 (1978). and cases
cited therein.
4 Since a respondent's backpay liability for the 8(aX3) violations ceases as
of the date that respondent would have closed for lawful reasons as dis-
cussed. ino,a. the Administrative I.aw Judge here also found Respondent in
an5 event would likely have closed for valid economic reasons within a year
of the actual closure). the 8(aX5) backpay remedy for this Respondent's
refusal to bargain over the decision to close subsumed the remedy for the
8(aH3} si,llatioTl See, e.g. Bankers Cluh. Inc, 218 Nl.RB 22 1975)
246 NLRB No. 84
521
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remedy in numerous subsequent cases.5 Indeed, if we
failed to provide for backpay liability from the date
of closing, we would run the risk of encouraging em-
ployers who are considering partial termination of
their operations to proceed without bargaining with
unions, since there would be limited or no backpay
liability to deter such unlawful unilateral conduct.
And our failure to provide an adequate remedy
would also discourage reliance by the remaining em-
ployees on their bargaining representative in dealing
with the employer concerning future threats to em-
ployment. In short, an inadequate remedy in cases of
this sort would serve only to subvert the collective-
bargaining process which we are statutorily obligated
to encourage.
As indicated previously, we do not agree with that
portion of the Administrative Law Judge's recom-
mended remedy and Order which permits Respon-
dent to terminate its backpay liability by commenc-
ing to bargain in good faith. In this connection, we
note that the basic assumption underlying a full back-
pay remedy for an employer's failure to bargain over
a decision to close is that, had the employer bar-
gained with the union over the decision, a workable
solution-however remote that possibility-might
have been advanced which would have obviated the
need to close. By disregarding its statutory obligation
to bargain, however, this Respondent foreclosed, until
now, meaningful discussion of the closing and pre-
cluded the possibility that an alternative to termina-
tion of the printing department might have been
agreed upon.6 While we recognize that it is not certain
ISee Mobil Oil Corporation, 219 NLRB 511 (1975): P. B. Mutrie Motor
Transporation, Inc., 226 NLRB 1325 (1976): Production Molded Plastics, Inc.,
237 NLRB 437 (1978):; First NVational Maintenance Corp., 242 NLRB 462
(1979).
In a number of other cases involving the same issue, the Board, while not
strictly applying the Winn-Dixie remedy, nevertheless requires the respon-
dent to provide backpay from the date of the closing. See Arnold Graphic,
Industries. Inc., 206 NLRB 327 (1973); Metro Transportation Sersices Com-
pany. 218 NLRB 534 (1975); Brockway Motor Trucks, supra.
The remedy for an employer's failure to bargain over the decision to close,
however, should be contrasted with the more limited remedy provided for an
employer's failure to bargain solely with respect to the effects of a closure
decision. For an effects-bargaining violation, the usual remedy is to order
backpay from the date of the Board's decision until one of the four condi-
tions stated in Winn-Dixie is met. See, e.g., Royal Plating and Polishing Co..
Inc.. 160 NLRB 990 (1966): Transmarine Navigation Corporation, 170 NLRB
389 (1968); Interstate Tool Co.. Inc., 177 NLRB 686 (1969). The assumption
underlying the more limited remedy is that, inasmuch as the employer's
operation would have closed regardless of good-faith bargaining over the
subject of closure, ordering a make-whole remedy would be punitive, rather
than compensatory.
s Nor does the fact that this Respondent might well have closed fr eco-
nomic reasons within a year of the actual closing require a different result
here. Indeed, the Administrative Law Judge's conclusion in this regard was
premised on the absence of union activity and on the absence of a duty to
bargain over the decision to close. Moreover, the Administrative Law Judge
also found that "none of the evidence prior to the February I. 1977. an-
nouncement of the decision to terminate printing operations establishes a
definite determination to close that department." Hence, as pointed out
above, it is possible that, had Respondent met its statutory obligation to
bargain, the ultimate decision might have been different.
that good-faith bargaining over the decision to close
would have resulted in a decision different from the
one unilaterally implemented by Respondent, the un-
certainty must be taxed against the wrongdoer rather
than against the innocent employees.7
AMENI)iI) RMEDI)Y
Accordingly, in order to recreate as nearly as possi-
ble the situation that existed at the time Respondent
should have bargained, and to make whole all em-
ployees of the printing department for any loss of pay
suffered as a result of the discrimination against them,
we shall order Respondent to pay employees who
were employed on the date of the closure their nor-
mal wage rate from February 28, 1977, until the ear-
liest of the following conditions as met: (I) mutual
agreement is reached with the Union relating to sub-
jects about which Respondent is required to bargain;
(2) good-faith bargaining results in a bona fide im-
passe; (3) the failure of the Union to commence nego-
tiations within 5 days of the receipt of Respondent's
notice of its desire to bargain with the Union; or (4)
the subsequent failure to the Union to bargain in
good faith. Of course, if Respondent decides to re-
sume its printing operation and offers to reinstate the
above employees to their same or substantially equiv-
alent positions, its liability will cease as of that date.
Backpay shall be based on the earnings which these
employees normally would have received during the
applicable period, less any net interim earnings, and
shall be computed in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), with in-
terest thereon computed in the manner set forth in
Florida Steel Corporation, 231 NLRB 615 (1977),8
In passing, we note that this remedy is fully consis-
tent with the remedy provided by the Board in Winn-
Dixie Stores, Inc., supra, and similar cases discussed
previously herein. In this connection, we have reex-
amined our decision in Brockfway Motors, supra, re-
lied on by the Administrative Law Judge in support
of his recommendation that Respondent's backpay li-
ability should end when it commences bargaining in
good faith. On reflection, we are persuaded that the
remedy provided in Brockwayi is not adequate to rem-
7 See, generally, Leeds & Northrup Companyv , N. L. R.B. 391 F.2d 874, 880
(3d Cir. 1968),. wherein the court recognized that the Board is effectuating
the policies and purposes of the Act by resolving any doubt against the party
found to have violated that Act. As the court pointed out: "Retroactive
enforcement must always contain in it some element of hardship on the
employer but a failure to grant backpay imposes at least an equal hardship
on the employees."
Moreover, the Board has long recognized, with court approval, that it is
warranted in using a backpay remedy to restore, as nearly as possible, the
status quo ante, and to prevent a respondent Irom gaining an advantage front
his unfair labor practices and to protect employees from economic loss dur-
ing the inevitable delays inherent in the administrative process. See NL.R.B
v. J. H. Rutler-Rer Manufacturing Co., Inc., 396 U.S. 258 (1%9).
See, generally. Isis Plumbing & Heating Co. 138 NLRB 716 (1962).
522
NATIONAL FAMILY OPINION, IN(C.
edy fully an employer's failure to bargain over a deci-
sion to close or over the effects thereof. Accordingly.
when a respondent disregards its bargaining obliga-
tion, we shall require that it at least bargain to a bona
fide impasse in order to cut off backpay liability,9 as-
suming bargaining is timely requested by the union
and that the union bargains in good faith itself. To
the extent Brockway Motors supports a remedy incon-
sistent with the above, it is hereby overruled.'0
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, National
Family Opinion, Inc., Northwood, Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so modi-
fied:
I. Substitute the following for paragraph 2(b):
"(b) Pay the terminated employees their normal
wages in the manner and for the period set forth in
the section of the Board's Decision and Order entitled
'Amended Remedy.'"
2. Substitute the attached notice for that of the
Administrative Law Judge.
I Such liabilit) commencing from the date of the violation re., the date
the employer unilaterally closed the operation.
"O Chairman Fanning notes that the remedy proposed here is essentially
the same as his position in BrockwaY, supra
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILt. NOT discharge or otherwise discrimi-
nate against any of our employees because they
select Toledo Printing Pressmen and Assistants'
Union No. 55, International Printing and
Graphic Communications Union, AFL-CIO. or
any other labor organization, as their collective-
bargaining representative or engage in any ac-
tivities on behalf of any union.
WE WILL NOT terminate any of our operations
in retaliation for activities of our employees in
support of the above-named Union, or any other
labor organization.
WE Wll.. NOT threaten our employees with
plant or departmental closure or loss of employ-
ment for engaging in activities in support of the
above-named Union, or any other labor organi-
zation.
WE WI.l. NOIt interrogate our employees con-
cerning what would induce them to vote against
the above-named Union, or any other labor or-
ganization.
WE W.L. NOT eliminate overtime. eliminate
shifts, or change breaktime practices and rules in
retaliation for activities of our employees in sup-
port of the above-named Union, or any other
labor organization.
WE. WIll. NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of rights protected under the National labor
Relations Act.
WE WIi.i., in the event that we resume our
printing department operations, offer each of the
former printing department employees their for-
mer jobs or, if those jobs no longer exist, substan-
tially equivalent positions.
WE Wll. bargain, upon request, with Toledo
Printing and Assistants' Union No. 55, Interna-
tional Printing and Graphic Communications
Union, AFL-CIO, as exclusive representative of
our employees in the appropriate bargaining
unit, including bargaining about our decision to
close the printing department. The appropriate
unit is:
All printing department employees including
printers, trainees and printing clerks, exclud-
ing all office clerical employees and profes-
sional employees, guards and supervisors as
defined in the Act, and all other employees.
WE WI.L. make whole those persons dis-
charged when we closed the printing department
on February 28, 1977, for any loss of pay or
other benefits resulting from their discriminatory
discharge, from the date of discharge until one of
the four conditions enumerated in the Board's
Decision and Order is met, with interest thereon.
or, in the event we reopen the printing depart-
ment, until we reinstate them.
WE WILI. pay the above employees who are
represented by Toledo Printing Pressmen and
Assistants' Union No. 55, International Printing
and Graphic Communications Union, AFL-
CIO, their normal wages for the period required
by the Board's Decision and Order.
NATIONAI. FAMILY OPINION, IN(.
DECISION
STATEMENT OF TIlE CASE
Ml(HAI. O. MIt.1 ER, Administrative Law Judge: This
case was heard on February 13 and 14. 1978, in Toledo.
Ohio. upon a charge filed by Toledo Printing Pressmen and
Assistants' Union No. 55, International Printing and
523
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Graphic Communications Union, AFL-CIO, herein the
Union, on March 14, 1977, as amended on August 17, 1977,
and a complaint issued by the Acting Regional Director for
Region 8 of the National Labor Relations Board on August
18, 1977. The complaint alleged that National Family
Opinion, Inc., herein NFO or Respondent, violated Section
8(a)(l), (3), and (5) of the National Labor Relations Act, as
amended, herein called the Act, by threats of plant closings
and other reprisals if the Union were selected as collective-
bargaining representative, by interrogating its employees
concerning their union activities, and by discriminatorily
and unilaterally terminating and subcontracting its printing
department operations, without prior notification to or bar-
gaining with the Union over the decision to close that de-
partment or the effects thereof. Respondent's timely filed
answer denied the substantive allegations of the complaint.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to argue orally. Briefs were filed by the Gen-
eral Counsel and Respondent.
Upon the entire record,' including my careful observa-
tion of witnesses and their demeanor, I make the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS AND THE UNION'S LABOR
ORGANIZATION STATUS
Respondent is an Ohio corporation located in North-
wood, Ohio, where it is engaged in product and market
opinion testing and research. Jurisdiction is not in issue.
The complaint alleged, Respondent admitted, and I find
and conclude that it is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
The complaint alleged, Respondent admitted, and I find
and conclude that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
11. THE UNFAIR LABOR PRACTICES
A. Background
Respondent began its operations in 1946 and, until ap-
proximately 1971, conducted its opinion and market re-
search testing primarily through mail panels, i.e., consum-
ers to whom products for testing and questionnaires would
be sent, who would then complete and return the question-
naires by mail. In 1971, because of problems caused by a
I The General Counsel sought to introduce the affidavit of deceased em-
ployee Paul Ward, taken by the Board dunng the investigative stage of this
proceeding. Respondent's objections to that document as hearsay were sus-
tained and it was placed in the rejected exhibit file. That ruling is adhered to.
The affidavit, offered as G.C. Exh. I 1, was neither authenticated nor identi-
fied. See Rule 901, Federal Rules of Evidence. See also Bricklayers and Ma-
sons Union No. 24, Bricklayers, Masons and Plasterers International Union of
America, AFL CIO (Booth and Flinn Company), 129 NLRB 867 (1960).
Moreover, the affidavit failed to come within either the specific or residual
exceptions to the hearsay rule. See Rules 802, 803, and 804, Federal Rules of
Evidence. Specifically, I find that the statement was not more probative of
the facts for which it was offered than other evidence which the General
Counsel offered or could have offered on the same points. Neither was it
attended by any particular circumstantial guarantees of trustworthiness akin
to those of the other exceptions to the hearsay rule.
strike of postal workers, Respondent began to perform
some of its survey work through telephone interviewing.
Since 1971, the portion of Respondent's business attributed
to telephone interviewing has grown steadily, as has its
business generally.
From approximately 1970 until the events described
herein, Respondent maintained its own printing depart-
ment, which evolved from a single employee operating a
duplicating press as part of the mailroom into an eight-
employee unit with a number of presses, cameras, and re-
lated equipment. Through 1976, Respondent was largely
self-sufficient in terms of its printing work although some
work continued to be subcontracted, particularly larger
runs and excess volume related to peaks in Respondent's
business activity.
In July 1975, Respondent's president, Jack Trumbull.
The plant sits on a 16-acre tract similarly owned by that
partnership. In planning for that new building, allowances
were made for anticipated growth in each department by 50
to 100 percent. Space was provided for both printing and
telephone survey departments. Respondent's former quar-
ters, which had also been leased from a related enterprise,
were sold to Printers Three, a printing concern which had
done some of Respondent's subcontracted printing.
Respondent's employees were not represented by any la-
bor organizations. In 1973, the Union conducted a cam-
paign to represent the printing department. Respondent op-
posed those organizational efforts with its own campaign
and the Union lost the representation election.
B. 1976 Organizational Activities and NFO's Response
On October 7, 1976,2 all of Respondent's printing depart-
ment employees attended a union meeting and signed au-
thorizations for representation. On October Ii, employees
Don Lindhorst, Ray Stentz, and Paul Ward met with the
printing department supervisor, Steve Vass,' and told him
what they had done. This was Respondent's initial knowl-
edge of the union activities. Vass and the employees wrote
out a list of the reasons why the employees wanted union
representation. Included were:
Job security-too many people that have been with
N.F.O. for a long period have been fired and seem to
have no recourse ....
Wages ....
Overtime-employees are indirectly forced to work
overtime. If an employee refuses to work overtime it is
frowned [upon] by the Co. Some employees have been
told it is part of their job to work overtime and if they
couldn't. the Co. could find someone that would. Some
jobs are brought to Printing at a time that the only way
it can be done is on overtime, weekends are scheduled
for work like a normal work period . . . More people
are needed for the workload.
2 All dates hereinafter are 1976 unless otherwise specified.
] Vass' status as a supervisor and agent within the purview of Sec. 2(11) of
the Act was admitted.
524
NATIONAL FAMIL Y OPINION. IN(C.
Generally the employees do not eel secure in their
jobs. There has been too many people fired in the last
year or forced to quit, there are too many job threats
around the Co.
Vass told the employees that he was going to call Re-
spondent's president, Jack Trumbull, and proceeded to do
so. According to Vass, Trumball was upset, stated that he
would resist the Union, that he did not need an internal
print shop, that the printing could go elsewhere, that he
could not afford union wages, and that the employees were
hurting themselves. Vass further recalled Trumbull telling
him that he (Trumball) knew some things that Vass did not
know, and that, while he (Trumball) had lost a lot of sleep
over the prior union campaign, he was not going to do so
again. Vass was instructed to spend as much time as he
needed finding out what the employees wanted. He was
advised that he was a representative of management, that
he should conduct himself accordingly, avoiding threats
and promises, and that he should be straightforward and
honest, and should maintain a low profile.'
Vass returned to Lindhorst. Stentz. and Ward and spent
the next couple of hours talking with them.' He told them
that, "Trumball had told him that under no conditions
would he allow a union in his company, that he would close
the doors first and that all [the employees] were doing was
doing ourselves out of a job going with the Union ... that
they would start by sending out all the printing."6
Shortly thereafter, Vass met with Trumbull and other
members of the management team and went over the list of
the employees' reasons for unionization. He received
instructions to eliminate all overtime, eliminate the second
shift and consolidate it with the first, require all employees
to take breaks in small groups according to a prescribed
schedule rather than as a group when work permitted as
they had been doing, and require that all employees be out
of the department and that the department be locked by a
certain time at the end of the workday. This was immedi-
ately implemented by a memorandum dated October 14.
All overtime ceased notwithstanding that Lindhorst had
been working as much as 25 hours of overtime per week
and the other employees had been working at least 10
hours. The amount of printing work subcontracted was im-
mediately and substantially increased. According to Vass
Respondent had previously only subcontracted that portion
of the work which they could not do in their own shop.
Now, work which Respondent's employees had regularly
performed was subcontracted.
Trumbull testified that he did not become upset over Vass' information.
that he told Vass that he knew things which Vass did not know. that he
intended not to lose any sleep over these developments, and that he then
returned to the television movie he had been watching. He denied the other
statements attributed to him. I have chosen to credit Vass to the extent that
his testimony is inconsistent with that of Trumbull. Vass impressed me as a
candid witness endeavoring to tell the truth notwithstanding that as a super-
visor still employed by Respondent he was in a difficult position. Noting
further that Trumbull immediately called another member of the top man-
agement staff, Mark Hanna, after speaking to Vass, to discuss the union
activity I find his claimed lack of concern implausible.
I The list of reasons for seeking representation may have been prepared in
this meeting rather than earlier. Vass so testified.
The foregoing conversation is as testified to by Lindhorst. It was essen-
tially admitted by Vass who further testified that he had tried to quote Trum-
bull. Employee Nancy Fecso related a similar conversation with Vass, which
Vass did not deny.
A couple of days later, Iindhorst heard a conversation
between Vass and Ward wherein Ward indicated that the
Company's actions may have been unlawful. Vass left the
department and, upon his return, told Ward that Trumbull
had told him that he (Trumbull] felt he could not get more
than a slap on the wrist for anything he would do as far as
subcontracting out the printing work.'
The Union filed a petition for a representation election,
(ase 8 RC 10650. and an election was conducted on De-
cember 16. Between mid-October and the election, the em-
ployer conducted no campaign to defeat the organizational
effort. A single meeting, possibly at the request of some of
the employees, was conducted by Mark Hanna about a
week prior to the election. In the course of that meeting,
Hanna was asked whether it was true that Respondent
owned Printers Three and whether there was any truth to
the rumor that Respondent was going to close down the
print shop. Hanna replied that Respondent did not own
Printers Three and said they did not have any plans to go
out of the printing business "at the present time."
About 2 days before the election, Vass asked Paul Ward
"what it would take for him personally not to vote fbr the
Union."
The Union won the representation election and, on De-
cember 23, was certified as the exclusive collective-bargain-
ing representative of Respondent's printing department em-
ployees.
The remainder of Respondent's employees were not rep-
resented by any labor organizations.
C. Bargaining Notice of Departmenttal Closure and the
Closing of the Printing Department
On December 30, Respondent's counsel, Donald M.
Mewhort, Jr., wrote Raymond N. Larson. the Union's rep-
resentative, informing him of Respondent's practice of im-
plementing wage adjustment's on the first of each calendar
year and stating that in view of its obligation to bargain
with the Union the status quo would be maintained and no
wage adjustments would be made for unit employees pend-
ing discussions with the Union. Mewhort requested Larson
to submit his contract proposal and contact him to com-
mencing amend the proposal which he had earlier fur-
nished. Mewhort told him that it really did not matter,
"that within the next 30 to 60 days that they were going [to]
cease their printing department operations and send their
work out to be done." Mewhort told him that the decision
was based upon Respondent's desire to utilize the space
occupied by the printing department for a telephone facility
and referred to a large customer. Procter & Gamble (P &
G), which wanted them to do this work. He stated further
that this was a recent development and, if it had not oc-
curred, they would be there talking with the Union about a
short term contract. However, Mewhort stated, instead of a
'Vass' admission is corroborated by both Lindhorst and Fecso. Trumbull
did not specifically deny making such a statement to Vass: rather, he testified
that when Vass reported that the employees were talking about filing unfair
labor practice charges, he told Va:s that Respondent was receiving advice of
counsel and they should get on with their work.
The unit, admitted to be appropriate, was:
All printing department employees including printers, trainees and
pnnting clerks. excluding all office clencal employees and professional
employees, guards and supervisors as defined in the Act, and all other
employees.
525
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
short term contract, Respondent was "prepared to discuss
and bargain over the effects of closing the print shop . . .
including vacation pay, severance pay, letters of recommen-
dation and things of that nature." As Larson recalled it, he
told Mewhort that he felt the department was being shut
down because of the employees' concerted activities and
would have to consult with counsel before he could bargain
further. He asked Mewhort for a letter setting forth Re-
spondent's position.
By letter of February 7, 1977, Mewhort reiterated and
expanded upon Respondent's announcement. He stated
that the decision to terminate the printing department:
was based upon the fact that the Company is a market
and opinion research oganization, and not a printing
company. During the last calendar year, its telephon-
ing business more than doubled, and in late January it
was advised by one of its major clients that the latter
intended to place its telephoning business with the
Company rather than perform it "in house" as it had
in the past.
Repeated were assertions that closing the printing depart-
ment was the correct business choice to acquire needed
space for the telephoning facilities and that this decision
had been under consideration for many months, with only
the exact timing of the implementation of that decision
being uncertain. Also repeated was Respondent's offer to
bargain on the effects of the decision upon the employees.
The Union was told that steps were being taken to absorb
the employees into other positions within the Company or
to place them with other employers in the printing industry.
Finally, the letter refers to the Union's stated intention to
file unfair labor practice charges, the Company's belief that
it did not violate the law, and again invites the Union to
engage in "effects" bargaining.
Following further telephone conversations, the parties
met again on February 17, 1977. At this meeting, the Union
was officially notified by letter that operations in the print-
ing department would cease within 30 days. The letter fur-
ther stated what efforts Respondent had taken to place the
employees in other jobs. At least one employee was re-
tained within NFO. Mewhort told the Union that the em-
ployees would receive their accrued vacation and holiday
pay and any accrued profit sharing monies at the time of
their termination. They would receive their accrued pension
benefits upon reaching retirement age. Mewhort referred to
the severance pay provisions of the Union's proposed con-
tract and stated that they did not seem unreasonable for the
purposes of "effects" bargaining. He added that Respon-
dent would consider a "sweetener" to avoid the Union's
threatened unfair labor practice charges and offered sever-
ance of 2 weeks' pay plus I week's pay for each year of
service and continuation of the hospitalization insurance
for 30 days following termination. This offer was contingent
upon full release of job rights by each employee and a re-
lease of bargaining rights by the Union. He further offered
a commitment to bargain with the Union in the event that
NFO ever resumed its printing operation.
In the course of further negotiations by telephone, Mew-
hort communicated an improved offer to Larson: 8 weeks'
severance pay and a 2-month continuation of hospitaliza-
tion for each employee regardless of length a service, recog-
nition in the event that the printing department was re-
sumed, and efforts to find other employment for the
displaced employees. As before, the offer was contingent
upon full and complete releases. Mewhort told Larson that
he and Trumbull had discussed the severance pay issue.
come up with a comparison of what their offer would cost
compared with the cost of litigation, and he had advised
Trumbull that it would be better for all concerned to pay
this off rather than to be involved in lengthy litigation.
Larson took Respondent's offer back to the unit employ-
ees, who rejected it. When Larson informed Mewhort of the
decision, Mewhort told him that the employees would re-
gret their rejection of the offer, and that he felt that even if
Respondent was later found to be in violation, "any awards
that may be given to employees would be minimal to the
Company." He pointed out that all of the employees had
secured other employment at the same or better pay and
had little to gain by pursuing the litigation.
Respondent's printing department was closed on Febru-
ary 28, 1977, and the work formerly performed in that de-
partment was subcontracted to various printing firms in the
Toledo, Ohio, area. Respondent's costs for subcontracted
printing, which had averaged approximately $53,000 annu-
ally from 1970 to 1976, and had ranged from a high of
about $89,000 in 1970 to a low of $23,000 in 1974, increased
to approximately $434,000 in 1977. Respondent does not
dispute that subcontracted printing costs it 20 to 50 percent
more than the printing of those same materials would have
cost in its own printing department.
After an appraisal made around March 1977, Respon-
dent sold most of printing department presses and other
machinery. All of the major pieces of equipment were sold
and removed. Respondent realized approximately $50,000
from the sale.
The space previously occupied by the printing depart-
ment was then converted into an additional telephoning
facility at an overall cost of $218,000.9 Within this area
were 50 telephone stations, supervisors' offices and monitor-
ing stations, and conference rooms. At the same time, the
original telephoning area was enlarged from 24 to 40 calling
booths.
D. Respondent's Alleged Economic Motivation
Respondent contends that, as a result of the growth of
the telephone surveying portion of its business, it foresaw
the need to expand the space allocated to that work not
long after it moved into the new quarters and decided to
use the space occupied by the printing department by July,
before the advent of the Union. It was their claimed inten-
tion to close that department within 12 to 18 months from
that date, which action was accelerated by changes in its
business relationship with P & G in January 1977. The
General Counsel, of course, disputes these assertions.
Compilations of company records (the accuracy of which
is unchallenged) established that in 1975, Respondent re-
ceived gross revenues of approximately $340,000 from its
telephone survey business out of a total gross income ex-
9
This was broken down into $42,270 for space renovation, $6.710 for
heating and air-conditioning, $148,364 to purchase the phone system, and
$20.510 for fixtures.
526
NATIONAL FAMILY OPINION, INC
ceeding $5 million. In 1976. the gross earnings from tele-
phone survey rose to more than $800,000 while overall sales
approached $6.3 million. In 1977, the telephone survey
business yielded approximately $1.4 million out of a total
gross of $8.5 million. During this same period. the portion
of the gross volume attributable to work performed for P &
G grew from 17 and 18 percent to 25 percent and, in tele-
phone interviewing. P & G's contribution grew from 7 per-
cent in 1975, to 14 percent in 1976 and to 32 percent in
1977. From 1975 to 1976. the monthly average of hours
worked on telephone survey increased from approximately
2,800 to 4,900. In 1977, the monthly average further in-
creased to almost 9,100 hours per month. Even befbre the
printing department was replaced by telephone survey
equipment, from December 1976 through March 1977, Re-
spondent was performing from 7,000 to almost 10.000 hours
a month of telephone surveying. The employee complement
in the telephone survey department rose from 52 (41 part
time, II full time) in June 1976 to 59 (45 part time) by
December 1976. It continued to rise, reaching a total of 83
in March 1977, of whom 66 were part-time employees.
The minutes of the annual meeting of the NFO board of
directors. March 2, 1976, reflect a discussion in regard to
expansion of the telephone survey department:
A discussion led by Mr. Jack Trumbull and Mr. Mark
Hanna suggested that the continued expansion of the
Telephone Interviewing Department indicated provi-
sion for additional space within the next twelve to
eighteen months. They do not feel that it is advisable
to have that function at a different location from the
rest of the business. Several avenues of examination
are being pursued to provide the space for this rapidly
expanding area of the business.
This, according to Samuel Billig, vice president for finance,
was only one of a number of such discussions. He further
testified that it was decided that the telephone survey de-
partment had to be kept within the building to assure su-
pervision and control. Earlier experiences with departments
located at different locations, prior to moving into the new
building, had been unsatisfactory. They rejected the idea of
enlarging the building, although it had been designed for
expansion, because to do so, Trumbull testified, would de-
stroy the employee dining area and patio which their em-
ployees had come to enjoy. According to both Billig and
Trumbull, each department was examined to see whether it
lent itself to being subcontracted. Only in printing could
they find the ready and able suppliers; suppliers whom they
had been using for a number of years to regularly do a
portion of their printing. The subcontracting of other de-
partments also would have required the displacement of
larger numbers of employees than in the printing depart-
ment and, in some cases, might have presented a problem in
maintaining the confidentiality of the surveys.
As a result of the considerations. Trumbull authorized
Billig and Hanna to talk to their largest printing supplier.
John Stout of Printers Three. Stout and Billig met in April
or May, at which time, according to Stout. Billig told him
that they were contemplating closing out their printing
shop and wanted to determine what his capabilities would
be to take over all or part of NFO's printing work and
whether he would he able to meet their deadlines. Stout met
again with both Billig and Hanna around June or July and
further pursued the question of how much volume Printers
Three could handle. At that time, Stout was told that NFO
was thinking about closing out printing and expanding in
another area; he was not told the direction of Respondent's
anticipated expansion. Hlowever, he was told that the build-
ing NFO management had considered to be big and sud-
denly become too small. Stout met twice more with NFO
management. once in late summer or early fall. to further
discuss his ability to meet their deadlines as well as his
prices, and again in late 1976. In this latter meeting, they
discussed what equipment Stout might be interested in pur-
chasing and whether he might be interested in employing
any of Respondent's printing department employees if a
closedown occurred. Stout indicated that he could use some
equipment and one or two employees. Stout suggested that
Respondent have the equipment appraised and. after an
appraisal was made in March 1977, bought three pieces. He
also hired one of the former employees. In 1977, Printers
Three performed about one-third of NFO's printing.
Through December. according to Respondent's wit-
nesses, their intention had been to close the printing depart-
ment in 12 to 18 months. However, in January 1977. Hanna
negotiated with P & G for acquisition of telephone recall
work which P & G had previously done in-house. NFO
agreed to equip themselves for this work and P & G agreed
to provide training for their operators. On Hanna's return
from meeting with members of the marketing research de-
partment at P & G's offices, the decision to move up the
expansion of the telephone facilities was made.
The General Counsel submitted evidence which, it con-
tended, tended to disprove that Respondent had predeter-
mined the elimination of the printing department. Thus, in
May, Respondent engaged a management consultant to de-
velop and institute a wage and salary administration pro-
gram covering all of its employees, including those within
the printing department. Announcements in regard thereto
were made in October and November and the results were
implemented, for all employees, at the end of the year. An
article in the February edition of Respondent's house or-
gan, the Grapevine, refers proudly to NFO's printing de-
partment as being almost totally self-sufficient and to the
volume, speed, and economy of that department. Reference
was also made to new equipment already acquired for that
department and to Supervisor Vass' hopes to acquire a two-
color press. That new-two color press was acquired in July,
at a cost of nearly $18,000; it replaced a single-color press
which had been acquired around 1972 and which had
caused problems as long as it had been in this shop. The
replaced press was sold in July for nearly $11,000. Respon-
dent also acquired two pieces of equipment for the camera
room, in September and October at a total cost of $500.
Further. Respondent continued to purchase materials, pri-
marily paper. for the printing department throughout 1976
and made a major purchase. $18,349. in October.'0 Respon-
dent pointed out, in regard to its paper purchases, that it
had a high requirement for paper. whether its printing was
done in or out of its own shop, and that it enjoyed a volume
10 Similar large purchases had been made in Januar' and Apnl 1975 and
in June 1976.
527
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purchase discount when buying in this manner which
smaller printshops could not get.
With respect to Respondent's contention that the confi-
dentiality of its surveys precluded the subcontracting of
other departments, the General Counsel introduced evi-
dence regarding Respondent's concern for the confidential-
ity of the printshop work. All employees are impressed with
the need to respect the confidential nature of the work and
are required to sign a security pledge. The employee hand-
book and other directives instruct them to avoid discussing
their work outside the shop or otherwise disclose the names
involved or the results of the surveys.
Specifically, the handbook stated in regard to the print-
ing department:
NFO provides its own printing facilities, including
photo plate making and commercial bindery equip-
ment, primarily to maintain strict control of the confi-
dential nature of our work, but also to be able to be
assured of production and delivery as needed. We
print as many as 2 million impressions a month, and
this would take up much of the production time of an
outside printer. We are totally self-sufficient except for
limitations on extra large size printed sheets or compli-
cated color work. Our presses are also used for internal
work forms, letterheads, promotional material, etc.
Finally, as the General Counsel points out, Respondent
has maintained some control over the printing. Steve Vass,
formerly the departmental supervisor, is now the printing
coordinator, overseeing the subcontracting of the printing
work and sometimes going to the subcontractor's shop to
explain the job and how it should be handled.
E. Conclusions
1. Violations of Section 8(a)(1) and evidence of union
animus
It is undenied that when Vass returned to the employees
on October I 1, after reporting their union activities to Re-
spondent's president, Jack Trumbull, he told them that
Trumbull would not tolerate a union in the Company,
would close the doors first, and would subcontract the
printing. He further told them that they were doing them-
selves out of their jobs by going to the Union. By such
statements of its supervisor and agent, Respondent unques-
tionably interfered with, restrained, and coerced its employ-
ees in the exercise of their Section 7 rights, and thereby
violated Section 8(aXl1) of the Act. I also find that Respon-
dent interfered with those employee rights when, in Decem-
ber, Vass interrogated an employee in regard to what it
might take to persuade him to vote against the Union.
Although not specifically alleged in the complaint, the
evidence clearly establishes that, immediately upon the ad-
vent of the Union, Respondent eliminated all overtime and
the second shift and rearranged the break periods. These
actions were not responsive to the complaints of the em-
ployees which led them to the Union (the employees did
not object to some overtime, only the amount and the man-
ner of assignment) and the timing of these actions indicate
that they were in retribution for the union activity and were
calculated to show the employees the risks of selecting the
Union as representative. Accordingly, as these matters were
fully litigated and intimately related to the subject matter of
the complaint, I find that, by this conduct, Respondent has
violated Section 8(a)(l) of the Act. See Crown Zellerbach
Corporation, 225 NLRB 911 (1976).
Further, I find, Respondent harbored strong animus
against the Union and the exercise of statutory rights by its
employees. That animus existed as early as the prior union
campaign and continued into the current campaign. It was
evidenced particularly by Trumbull's statements to Vass,
when Vass reported the union activities, and by the viola-
tions of Section 8(a)(1) set forth above.
2. Section 8(a)(3)
The critical question for determination is Respondent's
motivation for the elimination of the printing department.
Careful examination of all of the evidence leads me to the
conclusion that, while Respondent intended to close its
printing department at some time in the future, the decision
to close that department on February 28, 1977, was moti-
vated by antiunion considerations. In reaching this conclu-
sion, I deem particularly significant Respondent's threats to
take precisely the actions taken and the animus revealed
thereby and by the retaliatory elimination of overtime and
the second shift and the alteration of the employees' break
practices. Similarly revealing is the timing of Respondent's
actions, taken immediately upon the outset of negotiations,
particularly when that abrupt closure is contrasted with
Hanna's assurance, shortly before the election, that Re-
spondent had no intentions of going out of the printing
business "at the present time." I note also the importance
Respondent attached to maintaining its own printing de-
partment and the acquisition of new equipment and sup-
plies, evidencing an intention to continue that operation for
some significant period.
While Respondent's evidence, particularly the unrefuted
testimony of John Stout, indicates an intention to expand
the telephone interviewing department and take steps af-
fecting the size, scope, or continued existence of the print-
ing department, it fails to rebut the descriminatory motiva-
tion proven by the General Counsel. Thus, none of the
evidence prior to the February 1, 1977, announcement of
the decision to terminate printing operations establishes a
definite determination to close that department. The March
2 corporate minutes refer only to a need for additional
space for telephone interviewing within 12 to 18 months; no
reference to a cessation of printing operations is contained
therein. At best, such a move was but one of a number of
alternatives. The conversations with Stout, while more di-
rectly related to subcontracting of the printing department,
were similarly vague as to both the quantity of the work to
be contracted out and time necessary for such contracting.
In this regard, I note that Respondent did not ever, secure
an appraisal of its printing equipment until March 1977,
after it closed the department, and adduced no evidence to
verify Vice President Billig's testimony that it had earlier
secured estimates for the conversion of the printing depart-
ment to a telephone interviewing area."
1l The failure to adduce such readily available evidence warrants an infer-
ence that had such evidence been produced, it would not have supported
Respondent's contentions. See Martin Luther King. Sr. Nursing Center. 231
NLRB 15 (1977).
528
NATIONAL FAMILY OPINION. INC.
Moreover, the evidence fails to corroborate Respondent's
contention that a major change in its relationship with P &
G took place in late January 1977 warranting the immedi-
ate decision to cease printing operations and convert that
space for telephone interviewing. Respondent's letter to P &
G, self-serving as it is, is dated subsequent to the February
I announcement and evidence no firm agreement. It states
that NFO "welcome[s] the opportunity to discuss training.
modification and expansion of facilities to suit your needs,"
indicates that such is possible, and points out its growth in
the telephone interviewing business. Specifically, in regard
to the expansion of the telephone interviewing department,
the letter merely recites:
We are also looking at other space within our building
as potential telephone expansion. Befire we finalize our
expansion direction, we would welcome an opportunit to
discuss with you how we might isolate space within our
operation to allow your supervisors to work on the floor
among our telephone interviewer. Emphasis supplied.]
Without conceding the antiunion motivation which I
have found herein, Respondent contends that a determina-
tion that its conduct violated Section 8(a)(3) and (I) of the
Act is governed by the Supreme Court's decision in Textile
Workers Union of America v. Darlington ManuJacturing
Company et al., 380 U.S. 263 (1965). It further contends
that, under Darlington, such a finding requires both that it
be shown that the closing was "motivated, at least in part,
by a purpose to chill unionism in the remaining facilities of
the ... employer" and that "the Employer could reasonably
have foreseen such an effect." See Bruce Duncan Co.. Inc.,
233 NLRB 1243 (1977). Finally, in this regard, Respondent
contends that the evidence fails to support this "two-
pronged chilling" test. However, as the General Counsel
has asserted. Darlington is inapplicable to the instant situ-
ation. As the Board stated in Harper Truck Service, Inc..
196 NLRB 262, fn. 2 (1972):
Unlike Darlington, the instant case involves the closing
of part of a Respondent's operation and the contract-
ing out of such work to independent contractors. Be-
cause this was done for antiunion reasons we find a
violation of Section 8(a)(3). In Darlington, the Supreme
Court analogized such a situation to a "runaway shop"
(380 U.S. at 272, fn. 16), and the Board thus does not
apply the "chilling" requirement to cases of antiunion
subcontracting.
See also Great Chinese American Sewing Company; Esprit
De Corp, 227 NLRB 1670 (1977) and Grav-Grimes Tool
Company, Inc., 221 NLRB 736 (1975).
Accordingly, as Respondent terminated its printing de-
partment operations, at least in part because of its anti-
union motivation, and subcontracted the work previously
performed in that department, I find that it violated Section
8(a)(3) and (1) of the Act.
3. The alleged refusals to bargain
(a) Bargaining over the decision to close the printing
department
In agreement with the General Counsel, and contrary to
the contentions of Respondent, I find that Respondent was
obligated to notify and bargain with the Union over the
decision to close the printing department. As a partial clos-
ing and/or subcontracting case, this issue is governed by
the venerable line of cases commencing with Fibreboard Pa-
per Products Corporation v. N.L.R.B., 379 U.S. 203 (1964),
and Ozark Trailers, Inc., and/or Hutco Equipment Companv
and/lor Mohilefreeze Compans', Inc., 161 NLRB 561 (1966).
In Fibreboard, the Supreme Court held that the phrase
"terms and conditions of employment" over which an em-
ployer was obligated to bargain included an employer's
economically motivated decision to subcontract unit work
resulting in the loss of employment b unit employees. The
distinction Respondent seeks to draw between the Fibre-
hoard facts and the instant case, on the basis that in Fibre-
board the subcontractor's employees came on to the em-
ployer's premises to perform their work whereas NFO sent
its work out is a distinction without a difference. Similarly,
if this case is considered a partial closing. the teachings of
Ozark, still adhered to by the Board, require that Respon-
dent bargain over the decision to close. See Brockway Mo-
tor Trucks, Division of? Mack Trucks, Inc., 230 NLRB 1002
(1977) and Royal Typewriter Company, a Division of Litton
Business Svystems, Inc., a Subsidiar o Litton Industries,
Inc., and Litton Industries, Inc., 209 NLRB 1006 11974). As
the Board stated in Brockwaiy Motor Trucks.
The Act requires an employer to bargain with its em-
ployees' representative about matters that affect wages,
hours, and terms and conditions of employment. Uni-
lateral changes in employment conditions may not be
effectuated without bargaining regardless of whether a
collective-bargaining agreement is currently in effect.
This obligation remains notwithstanding an employer's
contention that such a requirement significantly re-
stricts its ability to manage the business. The underly-
ing rationale for requiring bargaining over such mat-
ters is that the union on behalf of and as
representative of the employees-should be accorded
an opportunity to engage in a full and frank discussion
regarding such decisions. In this way parties are pre-
sented with an opportunity to explore possible alterna-
tives to accommodate their respective interests and
thereby to resolve whatever issue confronts them in a
mutually acceptable way.
The instant case is further distinguishable from both
N.L.R.B. v. Adams Dairy, Inc., 350 F.2d 108 (8th Cir., 1965)
and Summit Tooling Company and Ace Tool Engineering
Co., Inc., and Summit Tooling Company Division of Ace Tool
Engineering Co., Inc., 195 NLRB 479 (1972), relied upon by
Respondent. In the former, the court specifically pointed
out that after its decision to subcontract, the work per-
formed by the subcontractors was not for the benefit of
Adams Dairy, but was for their own account. In Summit,
the Board pointed out that there was a major change in the
nature of the business, with the remaining portion of the
enterprise no longer engaged in the work which had been
done in the closed portion Herein, NFO is still having the
printing work performed, for its own benefit. In this regard,
the instant situation is identical to that presented in P. B.
Mutrie Motor Transportation, 226 NLRB 1325 (1976),
wherein an employer closed one of several terminals, but
continued to perform the same work from its other termi-
529
I)E(CISIONS OF NATIONAL ILABOR RELATIONS BOARDI
nals. An obligation to bargain over the decision to close the
terminal was found.
Further, I find the instant situation distinguishable from
that presented in General Motors Corporation. GMC Truck
& Coach Division, 191 NLRB 951, 952 (1971). wherein,
upon a sale of an independent dealership, the Board held
that there was no obligation to bargain over a decision in-
volving a "significant investment or withdrawal of capital
[as toJ affect the scope and . . . direction of an enterprise."
The scope and direction of NFO remained unchanged after
the subcontracting of its printing department. The invest-
ment of capital, most of which was necessitated by expan-
sion of the telephone surveying department and would have
been spent regardless of what was done with the printshop.
can hardly be deemed "significant" as that term was used in
General Molor.
As Respondent was obligated to bargain with the UJnion
over the decision to terminate and subcontract its printing
operations, the next question is whether it has satisfied that
obligation. Respondent. pointing out that it notified the
Union on FebruarN 1. 1977, of its intention to close within
30 to 60 days and that the Union did not thereafter seek to
bargain over the decision prior to the actual termination of
printing operations on February 28, contends that the
Union waived whatever rights it had to bargain over the
decision. In support thereof. Respondent cited The Empo-
rium. a Subdivision ofthe Emporiuml-('apwell Conpan Divt-
sion of Carter lawlev Hale Stores., In., 221 NLRB 1211
(1975), wherein the union received a 3-week notification of
an intended cessation and subcontracting of certain opera-
tions with resultant terminations. The union never ques-
tioned the basis for the decision, but merely contended the
employer could not take the intended action. It was there-
fore held to have waived its right to bargain over the deci-
sion. See also Associatlion of Motion Picture and Televwvion
Producers, Inc., 204 NLRB 807 (1973) (20 days notice), and
Coppus Engineering Corporation. 195 NLRB 595 (1972) (3-
month notice). In none of those cases, however, were the
decisions involved discriminatorily motivated, and the lack
of discriminatory motivation was a factor expressly relied
upon in The Emporium in finding that the union had a
meaningful opportunity to bargain. Compare P. B. Mutrie,
supra. where no advance notice was given before the termi-
nal was closed, and Royval Typewriter, supra, where there
was but 8 days' notice. In both of these cases the Board
found that the collective-bargaining representatives were
afforded no meaningful opportunity to bargain.
As I have found Respondent's decision to terminate
printing operations to have been discriminatorily moti-
vated, I must conclude that the instant situation is distin-
guishable from, and not governed by, the rationale in The
Emporium. Further, the Union herein was given no warning
prior to February 1, 1977. that a closing was contemplated
although Respondent contended that this had been under
consideration for some time, and the Union was told of a
completed decision rather than a decision yet to be final-
ized. As such, it was faced with afait accompli which, par-
ticularly in light of the discriminatory motivation, "vested
the situation with a sense of futility which discouraged fur-
ther discussion." P. B. Mutrie, supra at 1329.
Accordingly, I conclude that Respondent failed and re-
fused to afford the Union with notice of its intended termi-
nation of the printing department and an opportunity to
bargain thereon and has thereby refused to bargain in good
faith with the Union. in violation of Section 8(a)(5) of the
Act.
(b) Efia(vs hargaining
The General Counsel contends that Respondent's bar-
gaining over the effects of its decision upon the unit em-
ployees was tainted by its offer of additional severance pay
and extended hospitalization upon the condition that the
employees and the Union waive further employment and
bargaining rights. This ofler. made to avoid the tiling and
litigation of unfair labor practice charges, was improved
upon by the Employer in subsequent discussions and in-
cluded a commitment to bargain with the Union in the
event that NFO ever resumed its printing department.'-
There is sometimes a fine line to be drawn between offers of
settlement and unlawful conditions imposed upon bargain-
ing. The former must be encouraged, as voluntary compli-
ance is a prerequisite to the continued efficacy of the Na-
tional Labor Relations Act; the latter must be condemned.
In the instant case, I believe that Respondent's offer of in-
creased severance benefits in return for waivers of employ-
ment and bargaining rights falls short of unlawfully condi-
tioning bargaining. In so concluding, I note that
Respondent did not refuse to bargain over the effects of the
closure unless the Union agreed to its terms and, in fact, did
not preclude the payment of some severance benefits with-
out such an agreement. The Union rejected Respondent's
offer, but did not test its willingness to agree to other sever-
ance benefits without such waivers by making any counter-
proposals. Finally, I note that, while I have largely rejected
them, Respondent did have colorable defenses to the threat-
ened unfair labor practice charges. Accordingly, I find that
Respondent has not refused to bargain with the Union over
the effects of its decision to terminate its printing depart-
ment and shall recommend the dismissal of that allegation.
II. Fit(1 () 1tlH UNFIAIR ABO(R PRA('CTICE( S UPON
( '( )MM1R( IF
The activities of the Respondent set forth in section 11,
above, occurring in connection with its operations de-
scribed in section 1, above, have a close. intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of com-
merce.
THI RFMEI)Y
Having found that Respondent has engaged in certain
unfair labor practices within the meaning of Section 8(a)(1),
(3), and (5) of the Act, I shall recommend that it be ordered
to cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
u Such an offer is distinguishable from a refusal to meet unless pending
unfair labor practice charges are withdrawn, as was the case in both Star
MaUuauj(uring Conapuni, Division of Slur Forge. Inc.. 220 NI.RB 582 (1975).
and General Motors Acceptance (orporation, 196 NLRB 137 (1972), cited by
the General Counsel.
530
NATIONAL. FAMIILY OPINION. IN('.
Although I have found that Respondent terminated its
printing department operations without bargaining over the
decision and in order to avoid having to deal with the
Union, the evidence herein. particularly the testimony of
John Stout. has convinced me that, even in the absence of
the Union. Respondent intended to close that department
within about a year of the date upon which it did take such
action. Moreover, reestablishment of the printing depart-
ment would require the transfer of the telephone depart-
ment from the building and/or the leasing or construction
of additional space plus the acquisition of equipment for
that department. Under these circumstances, reestablish-
ment of that department would he unduly burdensome and
I shall not recommend that Respondent be required to take
such remedial action. See Chinese American Sewing (om-
pani, 227 NlRB 1670 (1977).
Following the example of the Board in Brockwaiv foo,r
Trucks .supra. I shall, however, recommend that Respon-
dent be required to bargain with the Union. upon request.
with respect to the decision to close its printing department
and, if it agrees to reopen its printing department. offer all
those in the appropriate unit reinstatement to their lformer
jobs or. if those jobs no longer exist. to substantiall? equiv-
alent positions, and embody any understanding reached in
a signed agreement. In order to both restore some measure
of economic strength to the nion so that meaningful bar-
gaining may take place, and in order to make the employ-
ees whole, I shall also recommend that Respondent he re-
quired to pay the employees backpaN from the date of their
termination until Respondent commences to bargain in
good-faith with the Union or until the employees are of-
fered reinstatement, whichever occurs first, less net earnings
during such period, with interest, in the manner set forth in
F. 'oo/lworth (ompaun, 90 NLRB 289 (1950). and Flor-
ida Seel (orporation, 231 NI.RB 651 (1977).'
As the unfair labor practices committed b Respondent
go to the very heart of the Act. I shall further recommend
that it be required to cease and desist from infringing in any
other manner upon the rights guaranteed employees by
Section 7 of the Act. It will be further recommended that
Respondent be required to mail copies of the attached no-
tice to the terminated employees of the printing department
as well as posting that notice at its plant and offices.
CONCLUSIONS OF LAW
1. By threatening employees with plant closure and loss
of their employment if they select the Union as their collec-
tive-bargaining representative, by interrogating employees
concerning what would be required to convince them to
vote against the Union, and by eliminating all overtime and
the second shift and changing the rules regarding employee
breaktime because of their union activity. Respondent has
violated Section 8(a)(1) of the Act.
2. By closing its printing department, terminating the
employees of that department, and subcontracting the work
of that department because the employees selected the
Union as their collective-bargaining representative. Re-
spondent has violated Section 8(a)(3) and (I) of the Act.
3. By unilaterally closing its printing department. sub-
See. generally. Irsr Plumnbin & eating (o. 138 NItRB 716 (1962)
contracting the work thereof, and terminating its printing
department employees without bargaining with the Union
about the decision to close that department, Respondent
has refused to bargain in good faith with the Union and has
engaged in unfair labor practices in violation of Secion
8(a)(5) and (I) of the Act.
4. The above-described unfair labor practices affect com-
merce within the meaning of Section 2(6) and 7) of the Act.
5. The Respondent has not committed anv unfair labor
practices not specificallN found herein.
Upon the basis of the entire record, the findings of fact.
and the conclusions of la w. and pursuant to Section 0(c) of
the Ac,. I hereby issue the following recommended:
ORI)R
The Respondent. National Family Opinion. Inc., Nor-
wood, Ohio, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Threatening employees with plant closure or loss of
employment if the, select the U nion as their ctollecti c-bhar-
gaininig representative.
b(h) Interrogating employees concerning h;hat sould be
required to convince them to vote against the Uinion.
(c) Illiminating overtime and the second shift or chang-
ing breaklime rules because of the emploees' union mem-
bership. activities. and desires.
(dl iscouraging membership in Toledo Printing Press-
men and Assistants' Uiion No. 5, International Printing
and Graphic (Communications Union. A l. (10. or any
other labor organization. b closing the printing depart-
ment or in any other mnanner discriminating against em-
ploecs in regard to hire or tenure of emploment or any
term or condition of emplomenl.
(e) ailing and refusing to bargain collectively with To-
ledo Printing Pressmen and Assistants' Union No. 55, In-
ternational Printing and Giraphic Communications Union,
AFl ('1O. concerning the decision to close the printing de-
partment.
(f) In anN other manner interfering with, restraining, or
coercing its employees in the exercise of their rights as guar-
anteed by Section 7 of the Act, except to the extent that
such right is affected by the proviso to Section 8(a)(3) of the
Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Upon request, bargain with Toledo Printing Press-
man and Assistants' Union No. 55, International Printing
and Graphic Communications Union, AFL CIO. as the ex-
clusie bargaining representative of its employees in the ap-
propriate collective-bargaining unit, including bargaining
concerning their decision to terminate the operations of its
printing department. The appropriate collective-bargaining
unit is:
14 In the eent n exceptions are filed as provided h Sec 10246 of the
Rules and Regulations of the National ahor Relations Board, the findings.
conclusions. and recommended Order herein shall. a prosided in Sec 102.48
of the Rules and Regulations. he adopted b the Board and become its
findings, conclusions. and Order, and all objections thereto shall he waived
for all purposes.
531
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All printing department employees including printers,
trainees and printing clerks, excluding all office clerical
employees and professional employees, guards and su-
pervisors as defined in the Act, and all other employ-
ees.
(b) Make whole the printing department employees in
the manner set forth in the section of this Decision entitled
"The Remedy."
(c) In the event that Respondent agrees to reopen its
printing department. offer the former printing department
employees their former jobs or, if those jobs no longer exist,
substantially equivalent positions.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records. timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(e) Post at its Northwood, Ohio, plant and forthwith
mail to all affected employees, copies of the attached notice
marked "Appendix."'5 Copies of said notice, on forms pro-
vided by the Regional Director for Region 8, after being
duly signed by Respondent's authorized representative,
shall be posted immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material. A copy
of said notice, duly signed in the same manner, shall be
immediately mailed to the last known address of each em-
ployee formerly employed in the printing department.
(f) Notify the Regional Director for Region 8, in writing,
within 20 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
The complaint, insofar as it alleges violations of the Act
not specifically fbund herein, is dismissed.
15 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enlbrcing an Order of the Na-
tional Labor Relations Board."
532