National Metalcrafters, Inc. And National Lock Corp. And Keystone Consolidated Industries, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1985

276 N.L.R.B. 90 (N.L.R.B. 1985)

90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Metalcrafters , Inc and National Lock
Corp and Keystone Consolidated Industries,
Inc and International Union , United Automo-
bile, Aerospace and Agricultural Implement
Workers of America (UAW), and its Local 449
Case 33-CA-6157
27 August 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 28 September 1984 Administrative Law
Judge Elbert D Gadsden issued the attached deci
sion The Respondents and the Charging Party
filed exceptions supporting briefs and answering
briefs and the General Counsel filed a brief in sup
port of the judge's decision i
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 , fmdings,2 and
i On 26 December 1984 the Respondents filed a brief in response to
the exceptions to the judge s decision contained in the General Counsel s
brief in support of the judge s decision alleging that the General Coun
set s brief in actuality contains not less than fifty two exceptions to
the judge s decision Thereafter both the Charging Party and the Gener
at Counsel filed motions to strike this brief alleging that the Board s
Rules and Regulations do not authorize any response to a brief in supp-
port of a judge s decision In its response to these motions the Respond
ents contend that this brief was filed in an abundance of caution to ad
dress the alleged distortions and misrepresentations in the General Coun
set s brief We find in agreement with the Charging Party and the Gen
eral Counsel that the Respondents filing of their brief in response to the
exceptions to the judges decision contained in the General Counsels
brief in support of the judge s decision was contrary to the Board s Rules
and Regulations and we strike this brief We further deny the Respond
ens belated request first raised in its response to the General Counsel s
motion for special leave to file a brief in response to the General Coun
set s brief
2 The Respondents and the Charging Party have excepted to some of
the judge s credibility findings The Board s established pohcy is rot to
overrule an administrative law judge s credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd
188 F 2d 362 (3d Cir 1951) We have carefully examined the record and
find no basis for reversing the findings
The judge incorrectly described the appropriate bargaining unit The
correct description as set forth in the parties collective bargaining agree
ment is as follows
All hourly paid production and maintenance employees of the Com
pany in its present divisions located at Rockford Illinois excluding
office and clerical employees employees in the Payroll and Auditing
Department employees in the General Plant Superintendent s De
partment employees in the Employment and Personnel Department
the Safety Director employees in he Hospital and Medical Depart
ment watchmen clerical employees in the Shipping and Receiving
Department printing pressmen timekeepers order clerks material
record clerks shop messengers mail clerks draftsmen Engineering
Department employees chemists metallurgists laboratory techni
clans part time office janitors foremen assistant foremen and all
other supervisors within the meaning of that term as used in the
Labor Management Relations Act of 1947 as amended
conclusions only to the extent consistent with this
Decision and Order i
On 24 March 1983 the General Counsel issued a
complaint alleging, inter alia, that the Respondents
violated Section 8(a)(1), (3), and (5) of the Act by
refusing to bargain with the Union over its deci
lions to relocate the lock department of the cabinet
hardware division, the secondary department of the
fastener division and the cabinet hardware division
from their Rockford, Illinois facility to other facili
ties After the issuance of the Board s decision in
Milwaukee Spring Division 268 NLRB 601 (1984)
(Milwaukee Spring II) the General Counsel on 26
March 1984 filed a motion with the judge to with
draw all complaint allegations except those pertain
ing to the Respondents' refusal to bargain over the
decision to relocate the lock department unit work
The judge granted the General Counsels motion 3
The facts underlying the decision to relocate the
lock department unit work are not in dispute The
Respondent National Lock4 operates a facility iii
Rockford, Illinois, containing a cabinet hardware
division, which included a cabinet lock department
The Union has represented the employees at the
Rockford facility since 1947, and the most recent
collective bargaining agreement between the par
ties was effective from 14 April 1980 to 13 April
1983 5
3 Contrary to the Charging Party s assertion it is clear from the
judges decision that the judge granted the General Counsels motion
Accordingly we deny the Charging Party s request to remand this pro
ceeding to the judge for a ruling on the motion Further we find that the
judge did not abuse his discretion in granting the motion The Charging
Party does not contend that the complaint allegations which the General
Counsel sought to withdraw were controlled by the Milwaukee Spring II
decision Rather the Charging Party merely contends that Milwaukee
Spring II was wrongly decided and asks that we reverse that decision
Under these circumstances we find that the Charging Party has present
ed no valid reason the General Counsel s motion should not have been
granted and we adhere to our decision in Milwaukee Spring II In light of
this finding we find it unnecessary to pass on the Charging Party s
motion to strike inaccurate statement contained in the Respondents brief
4 National Lock and National Metalerafters Inc are separate corpora
tions wholly owned by Keystone Consolidated Industries
a The agreement contained the following provisions
Article I Section 1 1 (b)
(b) In the event the Company contemplates relocation of any of its
operation conducted at its present divisions in Rockford Illinois the
Company agrees to discuss such relocations in advance and to nego
tiate with the Union concerning the effect of such relocation on em
ployees
Article XI Section 11 I
Section 111 Reserved Rights The management of the business and
the direction of the working forces including but not limited to the
right to direct plan and control operations and to establish and
change work schedules the right to hire promote demote transfer
suspend discipline or discharge employees for cause or to relieve
employees because of lack of work or for other legitimate reasons
or the right to introduce new and improved methods or facilities or
to change existing production methods or facilities to make shop
rules and regulations not inconsistent with this Contract is vested
exclusively in the Company subject to the provisions of this Agree
ment provided that nothing herein shall be used for purposes of ds
cnmination against employees because of legitimate Union activity
276 NLRB No 14
NATIONAL METALCRAFTERS
By letter dated 12 November 1979 National
Lock notified Union International Representative
Sam Casazza that it was contemplating moving the
lock department out of Rockford and that it was
willing to discuss the matter with the Union The
credited evidence established that during various
conversations in 1979, 1980, and 1981 Union Presi
dent Stanley Meyer asked National Lock General
Manager Dale Glttings and Industrial Relations
Manager Ron Moore the status of the lock depart
ment move They responded that National Lock
could not afford to move given the state of the
economy and that they did not think the move
would occur
In May 1981 National Lock located a site in
Mauldin , South Carolina for the lock department
work, and Moore informed Casazza that a reloca
tion of the lock department to Mauldin was possi
ble if financing could be arranged In December
1981 Moore told Meyer that the lock department
move `was in the works Ground had been broken
Contracts let to build the building "
The Union requested bargaining on several occa
sions, and National Lock refused 6 On 23 March
1982 Moore told Meyer in reference to the reloca
tion decision and the Union's request to bargain
over it, "[N]othmg could be done, it was irreversi
ble, it was dead, forget it" The Union filed a
grievance on 20 April 1982 over National Lock's
refusal to bargain over the relocation, National
Lock denied the grievance, and the parties did not
pursue the grievance to arbitration
The judge found that National Lock s relocation
decision was a mandatory subject of bargaining and
that the Union did not waive, by either contract
language or past conduct, its right to bargain over
the decision
Contrary to the judge, we find that the Union in
its collective bargaining agreement with National
Lock waived whatever rights it may have had to
bargain over the relocation decision 7 We base this
6 It is undisputed however that National Lock did bargain with the
Union over the effects of the lock department relocation and the coin
plaint does not allege a violation with respect to effects bargaining
r Based on the evidence gathered at the hearing which was held prior
to the issuance of Milwaukee Spring Il we are unable to ascertain wheth
er the relocation decision was a mandatory subject of bargaining As the
record contains conflicting evidence regarding National Locks reasons
underlying this particular relocation decision we are unable to analyze
the decision under Otis Elevator Co 269 NLRB 891 (1984) However in
light of our finding of contratual waiver of statutory rights, a further
finding regarding the mandatory or nonmandatory status of the reloca
tion decision is unnecessary and would not in any way affect the out
come of this case
We reject and specifically disavow the judge s interpretation and anal
ysts of Board and court decisions, especially our decision in Milwaukee
Spring ll Otis Elevator and Connecticut Power Co 271 NLRB 766 (1984)
Member Dennis finds it unnecessary to rely on the judge s discussion of
these cases.
91
finding on the plain language of the parties' con-
tract and the relevant bargaining history
Article I section 11(b), states that [1]n the
event the Company contemplates the relocation of
any of its operations conducted at its present divi
sions in Rockford, Illinois the Company agrees to
discuss such relocation in advance and to negotiate
with the Union concerning the effect of such relo
cation on employees " (Emphasis added) The
judge found that the parties intended no distinction
between the terms `discuss" and negotiate" in
view of the fact that neither term was defined in
the contract and that the terms are sometimes
used synonymously in labor law' The Respond-
ents except, contending that there is a distinction
between "discuss" and negotiate," and that by
agreeing only to discuss' a relocation decision,
National Lock and the Union were explicitly
agreeing that National Lock did not have an obli
gation to bargain with the Union over such a deci-
sion
We find merit in this exception The clause on its
face draws a distinction between National Lock's
bargaining obligation as to decision bargaining
versus effects bargaining regarding contemplated
relocations of work To conclude that the parties
intended nothing by this distinction ignores the
plain meaning of the terms in question Further, the
parties' bargaining history and other contractual
provisions evidence that the parties did in fact
intend for this clause to mean what it said, I e, Na
tional Lock had an obligation to discuss with the
Union a contemplated relocation but not to bargain
over that decision
Article I, section 1 1(b), appeared for the first
time in the parties' 1968-1971 contract It is undis
puted that the clause was designed solely to ac
commodate the Union's desire to have the first op-
portunity to organize new employees at any new
facilities created by National Lock 8 The Union's
only stated concern was to obtain early notification
of a relocation there is no evidence that the Union
intended this clause to provide it a role in the deci
sion making process To the contrary, the record
supports the Respondents contention that the
Union did not intend to retain any right" to bar
gain over relocation decisions
The Union admitted, and the judge found, that
the contractual subcontracting clause, containing
8 Prior to the 1968 contract negotiations National Lock had relocated
some unit work from the Rockford facility to a new facility in Savanna
Ilhnots, without the Union s knowledge Another union organized the Sa
vanna employees before the Union had a chance to contact the employ
ees and the Union wanted to prevent such an occurrence in the future
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
similar language9 to article I section 1 1(b), waived
the Union's right to bargain over subcontracting
decisions 10
Under these circumstances we will give effect to
the plain meaning of the language in the parties
contract, which we find conferred on National
Local the right unilaterally to relocate unit work
from one facility to another, subject only to prior
discussion with the Union i i Accordingly, we find
that National Lock did not violate Section 8(a)(5)
and (1) of the Act by refusing to bargain with the
Union over its decision to relocate the lock depart
ment from Rockford, Illinois, to Mauldin, South
Carolina, and we dismiss the complaint 12
ORDER
The complaint is dismissed
° The subcontracting clause provided in pertinent part that [i]n all
cases (of subcontracting) except where time and circumstances prevent
Management will hold advance discussions with the Local Union Presi
dent and the appropriate Chief Steward prior to letting a contract for the
performance of maintenance or construction work or any other type of
work to be performed on plait premises (Emphasis added)
10 Further Member Hunter relies on the management rights clause in
the contract which gave National Lock the exclusive right to introduce
new and improved methods or facilities or to change existing production
methods or facilities (Emphasis added )
i i See Consolidated Foods Corp 183 NLRB 832 833 (1970)
12 In light of our finding that the Union by contract language waived
its right to bargain over the relocation decision we find it unnecessary to
pass on the remaining contentions raised in the Respondents exceptions
David M Somers Esq of Peoria Illinois for the General
Counsel
Ray J Scoonhoven Esq Douglas A Darach Esq Carl
Johnson Esq Philip Carter Esq Ellen E McLaughlin
Esq (Seyfarth Shaw Fairweather & Geraldson) of Chi
cago Illinois for the Respondent
Ann C Hodges Esq (Katz Friedman Schur & Eagle) of
Chicago Illinois for the Charging Party
DECISION
STATEMENT OF THE CASE
ELBERT D GADSDEN Administrative Law Judge A
charge of unfai- labor practices was filed on September
7, 1982 by International Union United Automobile
Aerospace and Agricultural Implement Workers of
America (UAW) and its Local 449 (the Union or Charg
ing Party) against National Metalcrafters Inc and Na
tional Lock Corp and Keystone Consolidated Industries
Inc (Respondent) On behalf of the General Counsel the
Regional Director for Region 33 issued a complaint
against Respondent on March 24 1983
In substance the complaint alleges that on certain
dates in 1982 Respondent coerced and restrained its em
ployees by telling them it would relocate a secondary de
partment from its Rockford Illinois facility unless the
Union agreed to certain wage and benefit changes during
the term of the contract in violation of Section 8(a)(1) of
the Act that Respondent has failed and refused to bar
gain with the Union in good faith on wages hours and
other terms and conditions of employment and also on
the Union s request to bargain about Respondents deci
sion to relocate unit work from its secondary department
of the Rockford facility about refusing and failing to
accept and process and bargain in good faith on a gnev
ance about the proposed relocation of unit work without
the agreement of the Union about failing and refusing to
continue in full force and effect the terms of the collec
tive bargaining agreement between the parties which
agreement Respondent repudiated in midterm and relo
cated its Lock Cabinet Hardware Department at Maul
din South Carolina and further relocated other work to
Spartanburg South Carolina and Goshen, Indiana, and
paid wages and benefits to employees at the relocated
work facilities below those established under the current
collective bargaining agreement in violation of Section
8(a)(1) and (5) of the Act and that Respondent has fur
ther violated Section 8(a)(5) of the Act by permanently
laying off unit employees at its Rockford facility as a
result of its relocation of unit work in order to evade
payment of the rates of pay and benefits to unit employ
ees established by the current collective bargaining
agreement in violation of Section 8(a)(3) and (5) of the
Act
On April 1 1983 Respondent filed an answer denying
that it has engaged in any unfair legal practices as set
forth in the complaint
A hearing in the above matter was held before me in
Rockford Illinois on June 13 14 15 16 20 and 21 and
August 8 and 9 1983 Briefs have been received from the
General Counsel the Charging Party and Respondent
respectively which have been carefully considered
On the entire record in this case and from my observa
tion of the witnesses I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent National Metalcrafters Inc (National Me
talcrafters) is and has been at all times material herein a
Nevada corporation with offices and places of business in
Rockford Illinois where it is engaged in the business of
manufacturing cabinet hardware fasteners , and plastics
for automotive and tool applications
During the past 12 months a representative period
National Metalc-afters sold and shipped from its Rock
ford Illinois facilities finished products valued in excess
of $50 000 directly to points located outside the State of
Illinois Also during the past 12 months a representative
period National Metalcrafters in the course and conduct
of its business operations purchased and caused to be
transferred and delivered to its Rockford Illinois facile
ties goods and materials valued in excess of $50 000,
which were transported to its facilities from States other
than the State of Illinois
Prior to corporate reorganization in April 1982 Na
tional Metalcrafters was known as National Lock Fasten
er Division of Keystone Consolidated Industries Inc
Respondent National Lock Corporation (National Lock)
is and has been at all times material herein a Nevada
NATIONAL METALCRAFTERS
corporation with offices and places of business at Rock
ford Illinois and Mauldin South Carolina, where it is
engaged in the busmess'of manufacturing and assembling
lock components and mechanisms
During the past 12 months a representative period
National Lock sold and shipped from its Mauldin South
Carolina facility finished products valued in excess of
$50 000 directly to points located outside the State of
South Carolina Also during the past 12 months Re
spondent National Lock purchased and caused to be
transferred and delivered to its Mauldin South Carolina
facility goods and materials valued in excess of $50 000
which were transported to it directly from States other
than the State of South Carolina
Prior to corporate reorganization in April 1982 Na
Donal Lock was known as National Local Hardware a
vision of Keystone Consolidated Industries Inc (Key
stone) Respondent Keystone is and has been at all times
material herein a Delaware corporation with offices and
places of business located at Bartonville Illinois and
Dallas Texas where it is engaged in the business of
manufacturing steel wire and wire products
During the past 12 months a representative period
Keystone sold and shipped from its Bartonville Illinois
facility finished products valued in excess of $50 000 di
rectly to points located outside the State of Illinois Also
during the past 12 months Keystone in the course and
conduct of its business operations purchased and caused
to be transferred and delivered to its Bartonville Illinois
facility goods and materials valued at $50,000 which
were transported to it directly from States other than the
State of Illinois
The complaint alleges the answer admits and I find
that Respondent National Metalcrafters is and has been
at all times material herein engaged in commerce within
the meaning of Section 2(6) and (7) of the Act
The complaint alleges the answer admits and I find
that Respondent Keystone is and has been at all times
material herein an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
All Respondents denied they had any prior identifica
tion as an organization prior to April 1982 as set forth in
paragraphs 1(d) and (h) of the complaint and Respond
ent National Lock and Keystone denied they are em
ployers of the employees in the unit described in para
graph 5 of the complaint
II THE LABOR ORGANIZATION INVOLVED
The complaint alleges the answer admits and I find
that International Union United Automobile Aerospace
and Agricultural Implement Workers of America
(UAW) and its Local 449 are and have been at all times
material herein labor organizations within the meaning
of Section 2(5) of the Act ,
III THE ALLEGED UNFAIR LABOR PRACTICES
A Background Facts
Respondent National Metalcrafters and Respondent
National Lock are wholly owned divisions of Respond
ent Keystone Consolidated Industries Inc (KCI) the
parent corporation with headquarters in Dallas Texas
93
National Metalcrafters is engaged in the business of cabs
net hardware supplying cold headed pants fasteners
and plastic pants National Lock produces cold headed
pants cabinet locks furniture hardware fasteners and
wire rope
Respondent Keystone operates five wholly owned sub
sidianes or divisions two of which are National Lock
Corp and National Metalcrafters housed in two facilities
in Rockford Illinois The Rockford facilities are known
as the 7th Street and Kishwaukee facilities There is
also a facility at Goshen Indiana and a facility in Maul
din South Carolina Prior to the filing of the complaint
herein Vie Rockford facilities contained a cabinet hard
ware operation a cabinet lock operation a plastics oper
anon and other hardware division operations The plas
tics operation remains in Rockford Illinois but the cabs
net hardware operation is now located in Spartanburg
South Carolina the cabinet lock operation in Mauldin
South Carolina and the secondary portion of the fasten
er division operation in Goshen Indiana
On and before March 1 1982 Respondent carried on
the business operations of two of its divisions at two fa
cilities in Rockford Illinois Its cabinet hardware divi
sion consisting of continuous hinge metal stamping lock
cabinet hardware and plastics departments was housed
in a 7th Street facility where about 600 employees
worked Its fastener division was housed in a facility on
Kishwaukee Avenue where about 300 unit employees
worked Thus approximately 99 employees worked at
Respondents Rockford operations
Respondent National Metalcrafters admitted these per
sons occupied the positions following their respective
names and are supervisors within the meaning of Section
2(11) of the Act David E Sutton president Ronald E
Moore manager of industrial relations and William J
Peterson labor relations manager
Respondent National Metalcrafters contends it is with
out knowledge as to whether any of the above named su
pervisors acted as its agents on any occasion and there
fore denies that they ever acted on its behalf
1 Appropriate unit
Respondent National Metalcrafters admitted that the
maintenance and production employees at its Rockford
Illinois plant constitute a geographically defined and geo
graphically limited unit appropriate for purposes of col
lective bargaining within the meaning of Section 9(b) of
the Act
The uncontroverted evidence of record shows that the
Unions herein (Local 449 and the International Union)
have been recognized by Respondent and the parties
have had successive collective bargaining agreements
covering Respondents Rockford operations since 1947
The most recent agreement covers the period April 14
1980 through April 13 1983 (G C Exhs 1(c) and (g))
At the time the latter agreement became effective there
were 950 employees in Respondents employ at the
Rockford operation
The uncontroverted evidence shows that these persons
occupied the positions following their respective names
and are officers or agents of the Union Merlyn Meyer
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
former president of Local 449 Stan Meyer president of
Local 449 Sam Casazza International union represents
tive William Sides retired financial secretary of the
Union Willard Allen former union representative and
Donald Smith chief steward and trustee of the Union '
employer of the employees described in the appropriate
unit as herein found Radio Union v Broadcast Service
380 U S 255 256 (1965) Malcolm Boring Co 259 NLRB
597 601-602 (1981) and Bacchus Wine Cooperative 251
NLRB 1552 (1980)
2 The poorly prepared record herein
In hiss October 12 1983 letter to me counsel for Re
spondent characterized the transcribed record herein as
garbled and the exhibits as mismanaged During a
telephone conference with me and the counsel for all
parties in March 1984 we unanimously agreed that the
record herein was poorly transcribed and the exhibits
poorly assembled Nevertheless while the errors in the
transcribed record are too numerous to attempt to cor
rect I am satisfied that counsel for the respective parties
as well as myself did the best we could to properly and
fairly interpret the record in its current state
B Respondent-A Single Employer
Respondent denies that it is a single integrated employ
er However the evidence of record shows that subse
quent to internal corporate reorganization in June 1982
the National Lock group was eliminated at Rockford
and after March 1 1983 National Metalcrafters operated
the Rockford facility as well as operations located else
where The record herein shows that officers of the Key
stone family corporation are as follows Charles W
Holzworth senior vice president David Bowers vice
president and David Sutton vice president
Charles Holzworth is also president and chief execu
tive officer of National Lock as well as chairman of the
board and chief executive officer of National Metal
crafters Bowers is vice president of National Lock and
Sutton is president of National Metalcrafters Sutton and
Bowers report directly to Holzworth and Walter
Tucker Jr serves on the board of directors of Keystone
National Lock and National Metalcrafters
The record evidence shows that the board of directors
of Keystone controls the business operations of National
Metalcrafters and National Lock by having made the de
cision to relocate the lock operation from Rockford to
Mauldin South Carolina and having authorized National
Lock to seek $3 5 million revenue bonds financing for
the Mauldin plant The Keystone board of directors also
approved and funded the relocation operations from
Rockford to Spartanburg South Carolina and Goshen
Indiana respectively It also executed leases on behalf of
the relocations and obtained pension fund contribution
deferment over a period of 15 years Keystone National
Metalcrafters and National Lock are held out to custom
ers stockholders employees and the general public as
one and the same employer
Based on the foregoing uncontroverted and credited
evidence I conclude and find that National Metal
crafters, Inc National Lock Corp and Keystone Con
solidated Industries Inc are and have been at all times
material herein a single integrated and one and the same
The facts set forth above are not disputed and are not to conflict m
the record
The Complaint Amended Subsequent to Trial
After the parties submitted their posthearing briefs to
me and before I could issue my decision herein the
Board issued its decision in Milwaukee Spring Division
268 NLRB 601 on January 23 1984 overruling its initial
decision in the same case at 265 NLRB 206 (1982)
Having relied on the Board s initial decision in Milwau
kee Spring in preparing the brief in the instant case the
General Counsel filed a motion on March 22 1984 to
withdraw part of the complaint herein including pare
graphs 6 and 10 in their entirety and paragraphs 8 and
11 except those portions relating to the relocation of the
Lock Department from Rockford Illinois to Mauldin,
South Carolina These paragraphs were eliminated by
the Board s Supplemental Decision in Milwaukee Spring
II 268 NLRB 601 (1984) The motion was granted and
all parties subsequently requested and were granted leave
to file supplemental briefs on April 4 1984 with respect
to the impact of Milwaukee Spring II on the present pro
ceedmg
On April 6 1984 2 days after the parties submitted
their first supplemental briefs to me the Board issued its
decision in Otis Elevator 269 NLRB 891 (1984) On May
1 1984 counsel for Respondent requested and all parties
were granted leave until May 22 1984 to submit second
supplemental briefs with respect to any impact Otis Ele
vator supra may have on the issues in the instant pro
ceeding
Consequently the residual issues raised by the amended
complaint and the evidence presented for determination
are
(1) Was Respondents decision to relocate unit lock
work from Rockford Illinois to Mauldin South Caroli
na, for labor costs consideration a mandatory subject of
bargaining and if so (2) did Respondent refuse the
Union s March 1982 request to bargain about its reloca
tion decision in violation of Section 8(a)(1) and (5) of
the Act
C Respondents Midterm Relocation of the Lock
Department
The uncontroverted and credited testimony of David
Bowers formerly president of National Lock Hardware
establishes that production inefficiencies were inherent in
the 7th Street Rockford facility because the construction
design of the building was inappropriate for efficient op-
eration More specifically Bowers testified casting oper
ations and parts thereof commenced on the first floor
had to be transported by elevator to several other floors
for other operations and then to the third floor for con
sohdation Locks had to be transported to the sixth floor
for plating and back to the third floor for assembly and
packaging and then to the second floor for shipping
Elevators were often tied up The several floors of the
building were highly expensive to heat and all of these
NATIONAL METALCRAFTERS 95
factors contributed to high operation cots not expen
enced by Respondents competitors who generally oper
ated in single story single purpose plants designed to
manufacture the same or similar product Because of
these operation costs Respondents ability to compete in
the industry progressively deteriorated and sales stalled
through the 1970s
By 1979-1980 Respondent was substantially less coin
petitive and it considered relocating the lock operations
to another facility The parties negotiated the last and
current contract with the Union in 1980 but Respondent
did not obtain any labor costs relief and the record does
not show that these noncontractual operation costs were
discussed in negotiations or brought to the attention of
the Union prior to the trial herein Respondent then un
dertook a plart site survey and ultimately decided to
build a plant in Mauldin South Carolina
In a letter dated November 12 1979 (G C Exh 8)
Respondent notified the Union (representative Sam Ca
sazza) as follows
As I mentioned to you several months ago the
company is contemplating moving the lock portion
of our business out of Rockford Illnois We wish to
emphasis [sic] that no final decision has been made
and that the matter is still under consideration
Should you wish to discuss this matter please call
me at your convenience
The record does not show that the Union made a
formal reply to the above letter However Stanley
Meyer president of the Local undeniably testified that
on many occasions thereafter the Union asked Industrial
Relations Manager Giddings and his successor Ron
Moore, what the status was of the Lock Department
Respondent (Giddings and Moore respectively) would
simply say with the high interest rates tight money and
the financial condition of the Company Respondent
probably could never afford to move the Lock Depart
ment and Respondent could provide the Union with
various alternative purposes for using the Mauldin South
Carolina property other than for the future home of the
Lock Department On November 21 1981 Ron Moore
told the Union he could understand the concern of em
ployees in the Lock Department about the possibility of
losing their jobs but he hoped that would not happen
and he did not think it would happen
In December 1981 Respondent told the Union Re
spondent was officially relocating the Lock Department
to Mauldin South Carolina
On December 8 1981 Manager Ron Moore contacted
Meyer met with Union Representative Casazza and ex
plained to the Union Respondents financial situation
Moore also met with the Union s bargaining committee
on December 11 1981 and explained Respondents fi
nancial situation to them The Union demanded access to
Respondents books The parties met again on December
16 and reviewed company charts and graphs After the
December 16 meeting Union President Meyer wrote Re
spondent a letter (R Exh 5 ) in which he said, in part
No amount of concessions could offset the continuing
erosion of our economy by foreign imports [B]ung
our wages in line with our competition would not help
On December 18 1981 Bruce DeCastro a member of
the UAW International research department telephoned
Don Moore and requested financial data
In December 1981 Industrial Relations Manager Ron
Moore requested the Union to engage in concessions bar
gaming with respect to reduction in wages and fringe
benefits such as vacation pay paid holidays paid ab
sence days (PAD) bereavement pay rest periods pay
shift bonus group insurance pension and supplemental
unemployment benefits (SUB) Overtime bonus pay un
employment compensation social security and work
men s compensation were all considered legally required
contractual labor costs by Respondent Such concessions
were sought by Respondent in an effort to reduce the
competitive gap with its competition in the industry
which it believed could possibly be achieved by reducing
contractual labor costs If the concessions were not
agreed upon Moore told the Union that Respondents al
ternatives would involve partial relocation subcontract
ing termination sale bankruptcy any combination of
the latter or continuing to do business at a loss The evi
dence does not show that Respondent told the Union its
desire for concessions was related to noncontractual
labor costs such as high utility and inefficient building
operational costs Moore also told the Union the Lock
Department was being relocated that the ground had
been broken that a contract to lease the building had
been executed and that the decision was final irreversi
ble and nothing could be done about it
On December 23 1981 Ron Moore telephoned De
Castro and arranged for the latter to visit the plant the
second week in January 1982 DeCastro did not arrive in
Rockford until February 4 1982 and no meetings were
held between December 16 1981 and February 4 1982
DeCastro remained at the Rockford plant during Febru
ary 4 and 5 1982 and said he would send Respondent a
letter in about a week Two weeks later Ron Moorci and
Kim Davis met with the Union and Casazza told them
DeCastro s report would not be ready until February 24
1982 but that DeCastro told him (Moore) the Fastener
Division was losing money On March 4 the Local au
thonzed the bargaining committee to begin concessions
negotiations
Union President Meyer test)f ed that on March 12
1982 he gave Respondent a list of 10 items to negotiate
and one, item was the relocation of the Lock Depart
ment On March 22 Meyer said he raised the same 10
items with Respondent but the latter did not respond On
March 23 he inquired about the Lock Department and
Manager Ron Moore stated nothing could be done it
was a dead issue the decision was irreversible but the
parties could discuss the effects of the decision on em
ployees When Meyers made the same inquiry on March
30 and 31 Respondent (Ron Moore) told the Union it
had its chance 2 1/2 years ago Union Subregional Di
rector Sam Casazza testified that the Union requested
Respondent to bargain about the relocation decision on
several occasions between March and August 1982 Nei
ther witness nor other union representative produced any
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence that a written request to bargain had been made
by the Union. Nor did the Union file a grievance or a
charge during the period November 12, 1979, and March
1982.
Meyer further testified that during a meeting on April
6, 1982, Manager Moore told them it had been 4 months
and the parties had not made any progress on conces-
sions; that banks were ready to foreclose and the Fasten-
er plant might close in 2 weeks ; and that they had to
reach an agreement by the next day (April 7) or Re-
spondent would start implementing alternatives. Moore
also told them it would now take $4 -per-hour reduction
in wages and fringe benefits.
The parties thereafter engaged in approximately 20
concessions bargaining sessions about contract labor
costs between March 22 and August 1982 . At the time
the bargaining commenced , approximately 240 of the 900
unit employees at Rockford were on layoff status. Man-
agers Ron Moore and David Bowers both 'testified that
the Lock Department operation would have remained in
Rockford if the Union had agreed to the requested $3.85
per hour concessions costs. During Several concessions
bargaining sessions in March 1982 , the Union proposed
changes in the grievance procedure and also proposals to
prohibit work relocations in progress and in the future,
according to testimony of Respondent 's attorney Phil
Carter. The-Respondent rejected the proposals. Carter
further testified that , during the March 17 meeting, the
Union proposed the Company agree to keep all unit
work in Rockford, including the Lock Department but
Respondent rejected the proposal.
Local President Meyer testified that after he learned the
Lock operation had been relocated , Grievance No. 6012
was filed in late April 1982 , and it was processed to Step
D in July 1982 , when the parties agreed to allow the dis-
placed employees to exercise their bumping rights under
the contract.
The union witnesses contend , however , that in several
negotiations sessions from December 1981 to August 1982
it requested "verbally and in writing " to negotiate with
Respondent on its decision to relocate the Lock Depart-
ment . Whenever it made such requests , union witnesses
testified Respondent Manager Ron Moore told them the
decision was irreversible , that nothing could be done,
that the Company was profitable but the way things
were going, it would become unprofitable.
The board of directors of Keystone approved the
Lock Department' relocation in May 1981 and Manager
Ron Moore telephoned the Union and informed it of the
board 's action . There was a great deal of publicity in the
newspaper about the move on May 15, 1981, and other
dates which Union Steward Smith and Local 'President
Meyer testified they had read . President Meyer ' denied
the Union was notified on May 14 , 1982, about the Lock
Department having been relocated , as Respondent con-
tends. On June '7, 1982, Respondent withdrew its May
1982 concessions proposal , and Manager Moore told
Meyer it was too late to do anything , the fight was all
over , the Company would start relocating. On or about
July, 20 , 1982, Ron Moore announced that about 10 em-
ployees would lose their jobs initially as a -result of the
Lock Department 's relocation. On August 31, the second
shift reported to work and were told to go home on a
temporary 1-week layoff, and eventually 100-170 em-,
ployees lost their employment.
Chief steward and trustee of the Union , Donald Smith,
testified that the Union did not file a grievance- when it
learned the relocation decision was final in December.
1981 because the Union felt it would be able to keep the
Lock-Department in Rockford by making concessions in
bargaining. As the record shows, however, no agreement
was reached between the parties when the 20 sessions on
concessions bargaining ended on August 25, 1982.
On April 20, 1982, the Union filed a grievance alleging
Respondent failed and refused to bargain on its reloca-
tion of the Lock Department , in violation of article I,
section 1 .1, paragraph (b) of the contract. The grievance
was processed to Step C June 17, and to Step D Septem-
ber 8 (see G.C. 9(e)). In late April 1982, Respondent
commenced transporting equipment from Rockford to'
the Mauldin facility.
In a letter dated October 26, 1982, the Union request-
ed Respondent to process the grievance to arbitration
but Respondent did not respond to the Union's request.
The grievance was not processed . to arbitration and the
grievance was pending arbitration at the time, of the trial
herein.
Dispute Not Deferred to Arbitration
Although the collective-bargaining agreement between
the parties provides for grievance arbitration, the record
shows Respondent did not respond to the Union 's Octo-
ber 26, 1982 request for arbitration, and since that time,
neither party has requested deferral to arbitration. Under
these circumstances, I find that the parties for all inten-
tions and purposes have abandoned the grievance-arbitra-
tion procedure and deferral for arbitration now would be
inappropriate. Cutten Supermarket, 220 NLRB 507, 509
fn. 19 (1975); Hendrickson Bros., JD-479-83, fn. 49.
Analysis and Conclusions
Three subordinate questions raised by the pleadings,
the credited evidence , and the findings are:
1. Whether Respondent's unilateral midterm decision
to relocate the Lock Department unit work from Rock-
ford, Illinois to Mauldin , South Carolina , is a mandatory
subject of bargaining. '
2. Whether the' Union , by language in the contract,
waived its right to bargain on Respondent 's decision to
relocate bargaining unit work of its Lock Department
from Rockford , Illinois, to Mauldin , South Carolina.
3. Does the bargaining history of the parties and the
Union's conduct in not protesting and requesting bar-
gaining on prior ' relocations of unit work by the Re-
spondent constitute a waiver by the Union to bargain on
Respondent's decision to relocate unit work.
Respondent argues in its posthearing brief that Re-
spondent's relocation of its Lock Department was not a
mandatory subject of bargaining because the Union
waived its right to bargain under the management-rights
clause , the subcontracting provisions , and article I, sec-
tion 1.1(b) of the current collective-bargaining agree-
ment . In my examination of the contract, I did not find
NATIONAL METALCRAFTERS 97
that it contained a management clause specifically retain
ing management rights other than those set forth in arts
cle I section 1 1(b) and the provision on subcontracting
As to whether the unilateral relocation of bargaining
unit work of the Lock Department by Respondent is a
mandatory subject of bargaining Sections 8(a)(5) and
8(d) of the Act provide that employer and representa
tives of employees are mutually obligated to meet at rea
sonable times and confer in good faith with respect to
wages hours and other terms and conditions of employ
ment or the negotiation of an agreement or any question
arising thereunder Provided That where there is in
effect a collective bargaining contract covering employ
ees in an industry affecting commerce the duty to bar
gain collectively shall also mean that the employer must
obtain the union s consent before implementing any
change affecting wages hours and other terms and con
ditions of employment Oak Cliff Golman Baking Co
207 NLRB 1063 (1973) enfd 505 F 2d 1302 (5th Cir
1974) cert denied 423 U S 826 (1975) However if the
employment conditions sought to be changed by the em
ployer are not contained in the contract the employer
remains obligated to bargain in good faith over the sub
sect before instituting the proposed change Milwaukee
Spring Division 268 NLRB 601 (1984)
Thus in applying the above cited law to the facts in
the instant case it is noted that the only place reloca
tion of unit work appears in the contract between Re
spondent and the Union is in article I section 1 1(b)
There Respondent agreed to discuss any contemplated
relocation of unit work with the Union in advance and
to negotiate with the Union concerning the effect of
such relocation on employees The language of section
1 1(b) does not clearly provide that Respondent reserved
the discretionary right to relocate bargaining unit work
Without having defined discuss in the contract Re
spondent now implies in its argument that discuss does
not include negotiating or bargaining If discuss does
not mean negotiate or bargain or if discuss is sufficient
language to constitute a clear and unmistakable waiver
by the Union of the right to bargain on the relocation of
unit work then the decision to relocate unit work is not
a term or terms contained in the contract necessitating
Respondent to obtain the consent of the Union to modify
it
If on the other hand discuss means to negotiate or
bargain and its use in the contract is not sufficient Ian
guage to constitute a clear and unmistakable waiver of
the right to bargain as I have found infra then the relo
cation of unit work by Respondent is a specific term
contained in the contract for which Respondent is obh
gated to obtain consent of the Union to modify it Oak
Cliff Golman Baking Co 207 NLRB 1063 (1973) enfd
505 F 2d 1302 (5th Cir 1974) However this distinction
is immaterial in the instant case since Respondent did not
obtain the Union s consent to relocate the Lock Depart
ment
Moreover when Respondent herein first advised the
Union of its plan to relocate the Lock Department the
Union elected not to protest and request bargaining on
the decision because Respondent assured the Union there
would be no layoff of employees Respondent , neverthe
leas was at least still obligated to bargain in good faith
to impasse on its ultimate decision if discuss were not
in fact a specific term contained in the contract as I
found it was Since Respondents decision affected
wages hours and other terms and conditions of employ
ment in that it resulted in the massive layoff of 170 of
Rockford unit employees it was a mandatory subject of
bqg thing on which Respondent was obligated to bar
gain to impasse NLRB v Katz 369 U S 736 (1962) Wel
ironic Co 173 NLRB 235 (1968)
In the instant case Respondent argues that its decision
to relocate the Lock Department like a decision to close
an operation is not a mandatory subject of bargaining
because the words terms and conditions of employ
ment under Section 8 (d) of the Act do not include an
employers decision to relocate unit work midterm of the
contract In support of its position Respondent cites
First National Maintenance Corp 452 US 666 (1981)
where the Court established the test for determining
whether a particular managerial decision is a term or
condition of employment Respondent herein concedes it
relocated its Lock Department for labor costs consider
ations
In First National Maintenance the Supreme Court held
that an employer is not obligated to bargain over its eco
nomically motivated decision to close a part of its oper
ation even though such decision may have a substantial
impact on continued availability of employment and the
Board followed the same principle in Chippewa Motor
Freight 261 NLRB 455 (1982) and US Contractors 257
NLRB 1180 (1981) However it is particularly noted
that the Supreme Court expressly confined its decision to
limited circumstances analogous to those in First Nation
al Maintenance Corp supra at 687 There the employer
was providing housekeeping cleaning maintenance and
related services to commercial customers at different lo
cations When the weekly fee for services at one custom
er location was substantially reduced by the customer
rendering performance of the service nonprofitable for
the employer the employer upon notice to the customer
terminated the service and the employment of employees
assigned to that customer location The Court held that
the employer was not legally bound to bargain with em
ployees about its decision to discontinue service to the
customer Although the employers decision had a direct
impact on employment, having inexorably eliminated
some 35 jobs the Court said citing its decision it Fibre
board Corp v NLRB 379 U S 203 (1964) the employ
er s decision was nevertheless a decision involving a
change in the scope or direction of the enterprise akin
to a decision whether to be in business at all The Court
further noted that the dispute between the employer and
the customer was about a fee for services to be paid by
the customers over which the union had no control or
authority
It is also noted that the employer in First National
Maintenance discontinued housekeeping-cleaning services
to one of its customers because it was nonprofitable
Here unlike there Respondent relocated-transferred
unit lock work from its Rockford Illinois faciltiy to its
own nonunion Mauldin South Carolina facility-because
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it was less profitable Moreover id at 686 fn 22 the
Court specifically said
In this opinion we of course intimate no view as
to other types of management decisions such as
plant relocations sales other kinds of subcontract
ing automation etc which are to be considered on
their particular facts [Emphasis added ]
See e g Ladies Garment Workers v NLRB 463 F 2d
907 (1972) (plant relocation predominantly due to labor
cost) Weltronic Co v NLRB 419 F 2d 1120 (6th Cir
1969) cert denied 398 U S 938 (1970)
Respondent further argues that pursuant to the Board s
recent decision in Otis Elevator Co 269 NLRB 891
(1984) Respondent was not obligated to bargain with the
Union on its decision to relocate the Lock Department
because Lhat decision was not a mandatory subject of
bargaining but a managerial decision changing the
nature and direction of the business Under such circum
stances Respondent contends the Union s right to bar
gain is limited exclusively to effects bargaining on which
Respondent offered to bargain with the Union
On the contrary counsel for the General Counsel and
counsel for the Union argue that Otis Elevator Co supra,
is distinguishable from the facts in the instant case be
cause there unlike here the employers decision in
volved a closure of the facility and a transfer of its oper
ations to another of its existing operating facilities for
consolidation and other business reasons
A review of Otis Elevator reveals that Otis closed its
Parsippany facility transferred its research and develop
ment operations in Parsippany and Mahwah New Jersey
to East Hartford and relocated there approximately 30
Parsippany employees Otis then constructed a $3 million
research center with which research and development
operations were consolidated to reduce overlapping and
duplication as well as substantial labor costs In conclud
ing that Otis decision to transfer and consolidate certain
bargaining unit work wa., not a mandatory subject of
bargaining the Board relied upon the Supreme Court s
decision in First National Maintenance Corp where the
Court held the employers change was a fundamental
change in the nature and direction of the business and
therefore not a mandatory subject of bargaining
Thus the Board further held that (269 NLRB at 892)
the critical factor to a determination whether the deci
sion is subject to mandatory bargaining is the essence of
the decision itself i e whether it turns upon a change in
the nature of direction of the business or turns upon
labor costs not its effect on employees nor a union s abil
ity to offer alternatives As the Court said in First Na
tional Maintenance supra needs for predictability flexi
bility speed secrecy, and to operate profitably, and
these factors are exempt from mandatory bargaining
under Section 8(d) of the Act all of which affect the
nature scope or direction of the business Such deci
sions the Board said include inter aha decisions to sell
a business or a part thereof to dispose of its assets, to re
structure or to consolidate operations to subcontract to
invest in labor saving machinery to change the methods of
finance or of sales advertising product design and all other
decisions akin to the foregoing Otis Elevator Co supra at
893 fn 5 (emphasis added )
I agree with counsel for the General Counsel and
counsel for the Union that Otis Elevator is factually dis
tmguishable from the instant case in the following re
spects In Otis the employer actually closed its research
and development facilities in New Jersey and transferred
both operations to another of its expanded facilities in
Connecticut However in the instant case Respondent
did not close its Rockford facility but merely transferred
the lock operations to a new facility Respondent did not
transfer the lock operation to another of its operating fa
cilities because it did not have an existing facility in
Mauldin South Carolina until it built the facility after it
made its decision to relocate the department In Otis Ele
vator the transferred facilties (operations) were console
dated with an already existing and operating facility of
Otis in Connecticut
Additionally the New Jersey operations in Otis were
transferred to Connecticut to improve research and de
velopment and facilitate marketing of the Company s
product to reduce overlapping and duplication to
reduce substantial labor costs and because its technology
was dated its product not competitive and the primary
purpose of the decision did not turn on contractual labor
costs although that might have been one of the factors
taken into consideration The product of Respondent in
the instant case was becoming noncompetitive but it was
not shown that it had lost all of its competitive charac
ter Respondents technology was not shown to have
been dated or that any change had been made in its
method of finance sales advertising or product design
Nor was Respondents decision to sell all or a part of its
business to dispose of its assets to restructure or consoh
date its operations from one geographical location to an
other to avoid overlapping duplication or to invest in
labor saving machinery
After relocating the Lock Department Respondent
continued to manufacture the same product and it is not
shown that there was any actual change in the nature or
direction of the business In fact Respondents decision
merely changed the physical location of the lock oper
ation from its Rockford Illinois facility to a new facility
in Mauldin South Carolina The evidence clearly shows
however that Respondent decided to relocate its lock
operation primarily to reduce contractual labor costs to
avoid dealing with the Union and to facilitate its pro
duction by reducing noncontractual operating costs by
housing its operation in a single floor facility The eve
dence does not show that such a facility was not attain
able within a 25 mile radius of Rockford
As Board Member Dennis analyzed in her concurring
opinion in Otis Elevator supra 269 NLRB at 895-896
the persuasive concurring opinion of Supreme Justice
Stewart in Fibreboard Corp v NLRB 452 US 666
(1981) the Court divided management decisions into
three categories Category III describes management de
cisions which have a direct impact on employment
but have as their focus only the economic profitability
of the employers operation, a concern wholly apart
from the employment relationship The Court included
NATIONAL METALCRAFTERS
in category III the employers partial closing decision in
First National Maintenance Corp supra because the em
ployer there was exercising a management right akin to
deciding whether to be in business at all and not neces
sanly about conditions of employment though the effect
may necessarily result in termination of employment
Board Member Dennis noted that category III deci
sions may be either mandatory or nonmandatory subjects
of bargaining depending upon a balancing evaluation of
the competing interests of managment and labor as to
whether the subject matter in dispute is amenable to the
bargaining process and the burden that process would
place upon management That is keeping in mind the
employers need for unencumbered decision making and
continued availability of employment mandatory bar
gaining should be imposed only if the benefit for labor
management relations and the collective bargaining process
outweighs the burden placed upon management Otis Ele
vator supra 269 NLRB at 897
Thus in determining whether Respondents decision to
relocate the Lock Department from Rockford Illinois to
Mauldin South Carolina the interest of Respondent and
the Union will be evaluated within the framework of the
test outlined by the Court in Fibreboard Corp and First
National Maintenance Corp and the Board in Otis Eleva
tor
It is well established by the credited evidence herein
that the primary reason for Respondents relocation deci
Sion was to avoid contractual labor costs and avoid the
Union In this regard Respondents managers Ron
Moore and David Bowers told unit employees the reason
for Respondents relocation of the Lock Department was
to elude the high contractual labor costs at Respondent s
Rockford facility A document signed by Manager
David Sutton stated Respondents reason for relocating
the Lock Department was to avoid the Union If nonla
bor costs were a factor of consideration as Respondent
now contends it does not appear from the evidence that
it was a signficant cost concern at that time This is espe
cially so since it is reasonable to infer from the circum
stances that Respondent probably could minimize those
costs by otauung a single purpose single floor building
in the Rockford area The credited evidence shows such
costs were not mentioned to the Union before the hear
ing
Since contractual labor costs was the primary reason
for Respondents relocation decision such costs are a
subject over which the Union has some control The
Union as the bargaining representative of the unit em
ployees is in a position to lend some assistance or offer
concessions that reasonably could have made a differ
ence in Respondents decision to relocate the Lock De
partment This being so it reasonably appears that the
decision to remain in Rockford or to relocate the depart
ment in Mauldin displacing approximately 100-170 em
ployees was a decision amenable to resolution through
the bargaining process I am therefore persuaded by
these circumstances that the benefit for labor manage
ment relations and the collective bargaining process out
weighs any burden which would be or would have
been placed upon the conduct of Respondents business
by requiring it to bargain on its decision First National
99
Maintenance Corp supra My conclusion in this regard is
supported by the evidence as follows
1 Respondent did not make a $3 million commitment
to build the Mauldin facility until November or Decem
ber 1981 If Repsondent made such a commitment before
December 1981 it did so without having obtained the
Union s consent and without affording the Union an op
portunity to bargain on the decision
2 The evidence of record does not show that there
were any changes in Respondents lock operation after it
was relocated in Mauldin There Respondent continued
the same manufacturing and production operation
3 The record evidence does not demonstrate that any
special circumstances necessitated speed in implementing
the relocation from Rockford to Mauldin just before Re
spondent made its capital investment-causing the issu
ance of revenue bonds and undertaking construction of
the Mauldin facility in December 1981
4 The record evidence fails to establish that any im
mediate need for flexibility or confidentiality existed on
Respondents behalf in or before December 1981 when
Respondent officially announced its decision to the
Union First National Maintenance Corp supra
It is therefore clear that the facts in the instant case in
volving the relocation of bargaining unit work are distin
guishable from the circumstances to which the Court
limited its decision in First National Maintenance which
is not controlling here Likewise it is clear that the facts
in the instant case are distinguishable from the employ
er s circumstances in Otis Elevator Respondent in the in
stant case relocated unit work to avoid contractual labor
costs and circumvent dealing with the Union about such
costs
Based on the foregoing evidence legal authorities and
reasons I conclude and find that Respondents decision
to relocate its Lock Department from Rockford Illinois
to Mauldin South Carolina is a mandatory subject of
bargaining
Union Did Not Waive Its Right to Bargain by
Language Agreed upon in the Contract
Article I section 1 1(a) of the current collective bar
gaining agreement describes the appropriate unit as
found herein and section 1 1(b) provides as follows
In the event the Company contemplates relocation
of any of its operations conducted at its present di
visions in Rockford Illinois the Company agrees to
discuss such relocation in advance and to negotiate
with the Union concerning the effect of such relo
cation on employees
In reviewing the language of section 1 1(b) it is noted
that Respondent agreed to discuss relocation of unit
work with the Union in advance and to negotiate the
effects of such relocation on unit employees The deter
minative key words of what Respondent agreed to do
are discuss and negotiate neither of which term the
parties defined in the contract However Respondent
now contends there is a distinction in the meaning of the
word discuss as opposed to the word negotiate ar
going that discuss does not mean bargain while nego-
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bate does and that under such definitions Respondent
did not agree to bargain with the Union about decisions
to relocate unit work Respondent does not cite any legal
authority in support of such distinction and I am un
aware of any In fact the terms ( discuss and negoti
ate ) are sometimes used synonymously in labor law See
Kay Fries Inc 265 NLRB 1077 (1982) where the
unions president agreed to discuss alternatives with
management of the unilaterally instituted and enforced
proof requirement to receive benefits under the compa
ny s funeral leave policy The Board held such agree
ment to discuss alternatives constituted a timely protest
and request to bargain
Since Respondent in the instant case agreed to discuss
its decisions to relocate unit work it may be reasonably
inferred that Respondent must have agreed to discuss
such decisions with the Union in hopes of hearing the
Unions assessment of the move as well as any alterna
tives it had to offer in lieu of relocation To construe the
word discuss otherwise would suggest Respondent and
the Union agreed to discuss relocations solely for the
purpose of discussion without any view towards achiev
ing a reasonable and alternative solution or adjustment to
a situation Such an agreement would amount to an
agreement to engage in an exercise of futility and I am
not persuaded that either party intended such a result
Subcontracting
Under the subject Subcontracting the collective
bargaining agreement between the parties provides in
pertinent part as follows
In considering whether work shall be performed by
an outside contractor it is and will be the policy of
the Company to consider the impact on employ
ment security of its employees It is the policy of
the Company to contract for work to be performed
only where the course is required by sound business
considerations such as production deadlines lack of
proper equipment or personnel with required skill
or costs
In all cases except where time and circumstances
prevent Management will hold advance discussions
with the Local Union President and the appropriate
Chief Steward prior to letting a contract for the
performance of maintenance or construction work
or any other type of work to be performed on plant
premises
It is clear from the above language and the concurring
credited testimony of union witnesses that the Union
agreed to Respondents right to subcontract unit work
under the obviously limited circumstances herein de
scribed Union witnesses undisputedly testified that such
circumstances were rare although Respondent was
slowly increasing subcontracting activities Respondent
argues that the General Counsel has advised that sub
contracting and relocation are the same in that both
eliminate jobs and displace employees Wlule this may be
correct in effect I am persuaded by the contract Ian
guage here , and the subcontracting history of Respond
ent under such limited circumstances that there is a dif
ference in result of substantial degree If Respondent s
right to subcontract were not so limited perhaps the
Union would not have reached such an agreement with
Respondent to subcontract unit work especially if the
practice by Respondent were frequent and voluminous I
view this difference which I deem too great to analogize
relocation and subcontracting as being synonymous and
draw an inference that the parties intended management
to have the same discretionary right to relocate as it has
to subcontract unit work The language under article I
section 1 1(b) of the contract does not convey such a
clear and unmistakable waiver in my judgment
I therefore find that the Union did not clearly and un
mistakably waive its right to bargain on Respondents de
cision to relocate bargaining unit work under either or
in conjunction with the language of section 1 1(b) nor
the subcontracting and management rights provision of
the collective bargaining agreement Metropolitan Edison
Co v NLRB 460 U S 693 (1983) Keller Crescent Co
217 NLRB 685 (1975) Timken Roller Bearing Co Y
NLRB 325 F 2d 746 751 (6th Cir 1963)
Waiver by Inaction
Respondent further argues that the word discuss
was not intended to mean bargain and that the Union
understood it was not so intended as evidenced by its
failure to request or demand bargaining on Respondent s
prior midterm unilateral decisions relocating unit work
from its Rockford facilities to Savannah Illinois Waver
ly Tennessee and Sikeston Missouri However it is
noted that while the Union admits knowledge of Re
spondent s prior midterm decisions relocating bargaining
unit work and its failure to request bargaining on them
it nevertheless maintains that it did not request bargain
mg because it was always assured by Respondent that no
jobs would be lost by the relocations The evidence of
record supports the Union s position in this regard be
cause employees of such relocated unit work were not
laid off but were always absorbed m the Rockford work
force as Respondent had assured the Union and the unit
employees
Under the above described circumstances I am not
persuaded that the Union s acquiescence or its failure to
request bargaining on the prior relocation decisions con
stituted the kind of clear and unmistakable waiver of the
right to bargain conceived by the Board s cases As the
Board stated in McDonnell Douglas Corp 224 NLRB
881 887 ( 1976) that the law is settled that the right to
be consulted concerning unilateral changes in terms of
employment is a right given by statute and not one ob
tamed by contract and that in order to establish a waiver
of a statutory right there must be a showing of a clear
relinquishment of the right Milwaukee Spring Div 265
NLRB 206 (1982) NLRB v C & C Plywood Corp, 385
U S 421 423 428 430-431 (1967) Timken Roller Bear
ing Co v NLRB 325 F 2d 746 751 (6th Cir 1963)
Pepsi Cola Distributing Co of Knoxville 241 NLRB 869,
870 (1979) enfd 646 F 2d 1173 (6th Cir 1981)
This position is especially correct with respect to Re
spondent s decision to relocate the Lock Department in
Mauldin South Carolina which resulted in a substantial
NATIONAL METALCRAFTERS
loss of jobs and unemployment of unit employees The
record indicates that attorneys for both parties reviewed
the language of section 1 1(b) of the contract before its
execution If by the word discuss Respondent did not
mean bargain and the Union meant waiver of the right
to bargain I am confident that legal counsel for both
parties were capable of utilizing appropriate and ade
quate language to accomplish their respective objectives
Not having utilized such language the conclusion is in
evitable that such a result was not intended and that
discuss means and includes bargaining as it is often
construed by Board cases Kay Fries Inc supra
Finally since Respondent is under a duty to bargain
with the Union as the exclusive collective bargaining
representative of its unit employees Respondents agree
ment to discuss its relocation decisions and negotiate
on the effects of such decisions on unit employees does
not in the context of Board law constitute language suf
ficient to exonerate Respondent from the obligation to
bargain on mandatory subjects of bargaining Cone
spondingly I also find that such language (discuss) is in
sufficient to constitute a clear and unmistakable waiver
by the Union of the right to bargain on such mandatory
decisions as the unilateral midterm relocation of unit
work in the instant case Metropolitan Edison Co v
NLRB supra Park Ohio Industries 257 NLRB 413
(1981) enfd 702 F 2d 624 (6th Cir 1983) Pepsi Cola Co
supra
Additionally, although the Union failed to request bar
gaining on the aforedescnbed Goshen Waverly and
Spartanburg relocations of unit work from Rockford the
Union demonstrated that it elected not to request bar
gaining on relocations because Respondent assured it the
relocations would not involve a loss of jobs or a layoff
of employees Under such circumstances the exercise of
such an option by the Union for the assurance of job se
curity can hardly be characterized as a waiver by mac
tion on the part of the Union
Bargaining History Does not Indicate Union
Intended to Waive Right to Bargain on Relocation
Decisions
Respondent argues that when the bargaining history of
the parties is considered in conjunction with the Ian
guage of section 1 1(b) of the contract it becomes clear
er that the Union waived its right to bargain on Re
spondent s midterm decisions to relocate unit work In
this regard Respondent through its chief negotiator and
attorney Phillip Carter testified that during the 1969-
1971 contract negotiations he verbally advised former
Union Representative Willard Allen in the presence of
other representatives that Respondent would not agree
to anything which would restrict its right to relocate
Rockford operations to other locations midterm of the
contract However union officials Sides Helton Childs
and Stone denied that Respondent so advised the Union
Sides Childs and Stone also denied that Respondent
(Carter) advised the Union that Respondent would have
to continue to relocate Rockford operations for competi
tive reasons if labor costs concessions were not obtained
in the 1968-1971 contract negotiations Helto Childs
and Sides denied that Allen told Carter during the same
101
negotiation sessions that the Union was not questioning
denying or challenging Respondents right to relocate
Rockford operations Attorney Carter further testified
that based upon Willard Allen s comments during the
1968-1971 negotiations session the Union waived its
right to object to unilateral midterm relocations by Re
spondent Childs Helton Stone and Sides said Respond
ent s right to relocate midterm was not discussed during
the negotiation sessions They also denied that a special
meaning was attributed to the word discuss as Attor
-iey Carter had implied 2
In testifying about the bargaining history of the parties
from 1955 through August 1982 Respondents chief ne
gotiator Carter s recorded account of the sessions de
scribed numerous proposals or efforts by the Union to
expand its jurisdictional recognition beyond 25 miles
from Rockford Illinois The Respondent on each occa
sion rejected the Union s proposals During bargaining
sessions for the more recent contracts Respondent still
rejected the Union s proposals to expand jurisdictional
recognition However the credited testimony of union
witnesses demonstrated that the language agreeing to
discuss relocations with the Union in advance was
adopted by the parties to accommodate the Union s
desire to have the first opportunity to organize employ
ees at the new locations since Respondent rejected the
Union s several proposals to expand jurisdictional recog
nition of the Union to plants located beyond the 25 mile
radius from Rockford Illinois 3
Consequently based on the foregoing credited evi
dence I do not find from the bargaining history of the
parties contract language nor the Union s inaction on
prior relocations when considered separately or jointly
that the words discuss and negotiate were intended
to connote a distinction other than their often under
stood meaning to negotiate or bargain If the parties in
tended these words to mean more the language and the
bargaining history of section 1 1(b) failed to connote
such a meaning
2 I credit the testimony of Childs Stone Helton and Sides and dis
credit attorney and chief negotiator Carter s testimony in this regard not
only because I was persuaded by the demeanor of the former witnesses
that their versions were accurate and Carter s was not but also because
Carters version was not corroborated Additionally I discredit Carters
version because I was persuaded by his well-established legal experience
as an attorney and negotiator for Respondent for several years that if a
special meaning was verbally attributed to the words discuss Carter in
all probability would have seen to it that such special meaning would
have been adequately set forth in the language of art I This conclusion
is especially persuasive since the distinction urged by Respondent is at
variance with the term discuss as it is often used in labor law and
noting that Carter was both negotiator attorney and witness for Re
spondent.
' While I credit Carters account of bargaining sessions proposals by
the Union to expand its recogmtional jurisdiction I discredit the purpose
he attributed to the proposals and credit the explanations for the propos
als by union witnesses I credit union witnesses in this regard not only
because I was persuaded by their demeanor but also because their expla
nations are supported by the evidence of the expected interest of the
Union to preserve and expand its representative function This is especial
ly true in view of the number and extent of unit work relocations by Re
spondent in recent years
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union Did Not Waive Right to Bargain on
Decision by Failing to Timely Protest and Request
Bargaining
Respondent argues that the Union also waived its right
to bargain on Respondents decision to relocate the Lock
Department by failing to timely protest and request bar
gaining on the decision and that the Union s charge that
Respondent failed and refused to bargain on the decision
at any time before March 7 1982 (6 months preceding
the filing of the charge) is nevertheless barred by Sec
tion 10(b) of the Act
The record herein shows that Respondent first notified
the Union of its contemplated decision to relocate the
Lock Department in its letter of November 12 1979
Nonetheless from that time until December 1981 when
Respondent advised the Union that its decision to relo
cate the Lock Department was definite the Union had
never requested Respondent to bargain on its contem
plated decision The record fails to show that Respond
ent s contemplated relocation decision was a subject of
discussion during the 1979-1980 negotiations for the cur
rent contract
Subsequent to Respondents November 12 1979 notice
to the Union of its plan to relocate the Lock Depart
ment undisputed and credited testimony shows that
union representatives (Meyer Casazza and others) pen
odically inquired about the definite status of the reloca
tion plan and they were always told by managerial offi
cials that Respondent probably would not be able to
afford to move the Lock Department that no definite
decision had been made or that interest rates and taxes
were too high and they did not think the move would
occur or that employees would have to worry about
losing their jobs
Union representatives acknowledged they read the
May 15 article in the local newspaper and newsletter as
well as the July newsletter to employees announcing Re
spondent s board of directors approval of the relocation
plan Still without requesting bargaining union repre
sentatives continued their periodic inquiries about the
definite status of Respondents relocation plans Howev
er the credited record shows management representa
tives of Respondent were no more definite in their re
sponses to the Union until December 1981 At that time
Respondent (Ron Moore) unequivocally announced to
the Union that the Lock Department was being relo
cated to Mauldin South Carolina and that the decision
was final and irreversible
Neither the current nor the prior collective bargaining
agreement between the parties herein contained reopener
clauses and the evidence shows that the Union did not
request bargaining on Respondents contemplated deci
sion at any time between November 12 1979 and No
vember 1981 Respondents witnesses (Phillip Carter and
Ron Moore) contend the Union did not timely request
bargaining on its December 1981 relocation decision be
cause it did not request bargaining until March 12 1982
Union witnesses (Casazza and others) testified the Union
made several requests between December 1981 and
March 1982 to bargain on Respondents decision Both
parties concede the Union requested to bargain on
March 12 1982 4
However whether or not the Union timely requested
bargaining may be immaterial when Respondents relo
cation decision is analogized with a midterm proposal by
an employer or union to modify terms of a contract
which contained no reopener clause
As counsel for the Union points out in her postheanng
brief both the courts and the Board have construed Sec
tion 8(d) of the Act as having been designed to stabilize
during the life of the contract conditions of employment
agreed upon by the parties Allied Chemical & Alkali
Workers Local I v Pittsburgh Plate Glass 404 U S 157
185-186 (1971) Steel Workers v Pittsburgh Plate Glass
365 U S 574 578 (1960) Moreover neither party to the
contract could modify the terms of the contract without
the consent of the other and the duty to bargain does
not require either party to the agreement to discuss (bar
gain) or agree to midterm modification of its terms
NLRB v Scam Instrument Corp 394 F 2d 884-887 (7th,
Cir 1968) cited with approval in Allied Chemical &
Alkali Workers supra at 159 183-188
More recently the Board has held in Connecticut
Power Co 271 NLRB 766 767 (1984) that neither party
to a collective bargaining agreement which does not con
tam a reopener clause is obligated to bargain on any pro
posed change in the terms of the agreement The Board
further stated
Section 8(d) does not state that parties may not pro
pose midterm modifications Nor does it state that a
contract cannot be changed after the parties sign it
Rather it states that no party to a collective bargain
ing agreement may be compelled either to discuss
contract changes or to agree to them The section
does not qualify the right to refuse to discuss or
agree to contract changes and it makes no distmc
tion between the parties Thus nothing in this section
suggests a party making a midterm proposal should be
treated differently than a party receiving such a pro-
posal As the recipient of a midterm proposal clearly
has no duty to discuss or agree to it we find the
party proposing a midterm modification does not
incur a bargaining obligation by tendering its pro
posal [Emphasis added ]
In overruling Equitable Life Insurance Co 133 NLRB
1675 (1961) the Board further stated (271 NLRB at 767)
* In resolving this obvious conflict in testimony I credit union wit
nesses that the Union requested bargaining in December 1981 because the
parties then agreed to engage in concessions bargaining the Union then
requested to examine Respondent s books Respondent agreed to allow
the Unions auditor to examme its books in January 1982 the Unions
auditor visited Respondent and examined its books in February 1982 the
parties engaged in the first bargaining meeting on March 12 1982 and in
20 such sessions thereafter until August 1982 If the Union had not re
quested to bargain on the relocation decision in December the record is
silent as to why the parties were engaged in concessions bargaining
Even if the Union had not in fact requested bargaining as I have found it
did the parties nevertheless engaged in concessions and it may be reason
ably inferred from such fact that the Union engaged in such bargaining
with some hopes of preventing the relocation of the Lock Department by
Respondent
NATIONAL METALCRAFTERS
Thus in the absence of reopener language we find
Section 8(d) protects every party to a collective
bargaining agreement from involuntarily incurring
any additional bargaining obligations for the dura
tion of the agreement
Apparently the above Board precedent survived the
exception of a midterm unilateral management decision
(relocating unit work) involving a fundamental change in
the nature and direction of the business established or
clarified by First National Maintenance and followed by
the Board in Milwaukee Spring II and Otis Elevator
supra
In view of the foregoing evidence and legal authority
I conclude and find that the Union herein was not obli
gated to bargain on Respondents December 1981 mid
term relocation decision at any time during the life of the
recent contracts with Respondent the last of which was
effective April 14 1980 through April 1983 Since the
Union was not under a duty to bargain midterm on Re
spondent s unilateral relocation decision it cannot be
found to have failed to timely request bargaining on such
decision a matter on which it had no required duty to
bargain Connecticut Power Co supra
Additionally even if Respondents obligation herein
were not a mandatory subject of bargaining as I have
found, Respondent would nevertheless have been bound
to bargain with the Union to impasse because its reloca
tion of unit work has a direct effect upon wages hours
and working conditions of the unit employees Thus it is
clear that whether or not Respondent was under a duty
to obtain the consent of the Union before implementing
its relocation decision (a mandatory subject of bargain
ing), or whether it was only under a duty to bargain to
impasse with the Union under neither circumstance
could it compel or obligate the Union to bargain mid
term to modify a term of the contract Connecticut Power
Co supra Since this was the state of the law prior to
First National Maintenance and Milwaukee Spring II it is
not shown in the record whether or not it was for this
reason the Union did not request bargaining sooner on
Respondents relocation plans and decision It is possible
the Union was relying upon the state of the law as it ex
isted at the time and did not request bargaining on Re
spondent s decision because it was not obligated to do so
Respondent also argues that in any event it has nev
ertheless bargained to impasse with the Union The evi
dence however does not support Respondents argument
Instead the evidence shows the parties first met on
March 12 1982 and seriously commenced bargaining on
March 22 1982 Although there were about 19 subse
quent bargaining sessions which ended in August 1982
the parties did not meet in bargaining sessions every day
Nevertheless in April 1982 a month later Respondent
gave the Union an ultimatum to reach a decision or it
would resort to its previously stated alternatives which
included relocation
It is significant to note that at this particular time Re
spondent had long since commenced construction on the
South Carolina facility in December In other words Re
spondent started changing its position financially in De
cember 1981 before it officially informed the Union in
103
December 1981 that its decision was final and irreversi
ble This was 3 months before concessions bargaining
commenced The Umon was therefore presented a fait
accompli in December and again in April 1982 when
Respondent gave the Union its ultimatum Under these
circumstances I am not persuaded that the parties bar
gained to impasse
In view of all of the above findings Respondents re
mainmg arguments regarding the timeliness of the
Union s request and limitations under Section 10(b) of
the Act are inapplicable to the facts as found herein
In view of the foregoing accredited evidence findings
cited legal authority and reasons I conclude and find
that Repsondent s midterm unilateral decision relocating
the Lock Department from Rockford Illinois to Maul
din South Carolina without first obtaining the Umon s
consent to do so and without affording the Union a
meaningful opportunity to bargain on its decision to im
passe constituted a violation of Section 8(a)(1) and (5) of
the Act
Inasmuch as Respondent refused and failed to bargain
with the Union on its several requests commencing in
December 1981 and continuing into April 1982 its refus
al and failure to bargain with the Union about its deci
sion was continuous and therefore not barred by Section
10(b) of the Act Baytown Sun 255 NLRB 154 158-161
(1981) Los Angeles Yuma Freight Lines 172 NLRB 328
331 (1968)
Recommended Remedy
Since Respondents unlawful conduct resulted in the
layoff or termination of approximately 100 to 170 unit
employees such conduct interfered with and restrained
employees in the exercise of their Section 7 rights Trion
gle Appliance 265 NLRB 1473 1476 fn 4 (1982) Re
spondent s unlawful conduct also resulted in a midterm
repudiation of the current (1980-1983) collective bargain
mg agreement between the parties US Utilities Corp
254 NLRB 480 (1981) The Board has long held that
under such circumstances the wrongdoer rather than
the innocent victim here the Union should bear the
hardship of the unlawful action and that the wrongdoer
has the burden of showing that reestablishment of its
prior operations would result in undue hardship Monon
gahela Steel Co 265 NLRB 262 (1982) Weather Tamer
Inc 253 NLRB 293 (1980)
In the instant case Respondent did not present any
evidence to demonstrate that reestablishment of the Lock
Department from Mauldin South Carolina to Rockford
Illinois would result in undue economic hardship or
threaten Respondents continued existence While I can
assume that resumption of the Lock Department at
Rockford would entail considerable expense there is no
evidence in the record to indicate that such resumption
would be unduly burdensome upon the corporate con
glomerate Respondent
REMEDY
Having found that Respondent has engaged in unfair
labor practices warranting a remedial order, I shall rec
ommend that it cease and desist from engaging in such
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct and that it take certain affirmative action de
signed to effectuate the policies of the Act
Having found that Respondent failed and refused to
bargain with the Union the duly designated collective
bargaining representative of its unit employees by unilat
erally deciding and actually relocating unit work mid
term of the contract in violation of Section 8(a)(1) and
(5) of the Act the recommended Order will provide that
Respondent cease and desist from engaging in such un
lawful conduct and that it take certain affirmative action
to effectuate the policies of the Act
Because of the character of the unfair labor practices
herein found the recommended Order will provide that
Respondent cease and desist from or in any like or relat
ed manner interfering with restraining or coercing em
ployees in the exercise of their rights guaranteed by Sec
tion 7 of the Act NLRB v Entwistle Mfg Co 120 F 2d
532 536 (4th Cir 1941)
On the basis of the above findings of fact and on the
entire record in this case I make the following
CONCLUSIONS OF LAW
1 The Respondent National Metalcrafters Inc and
National Lock Corp and Keystone Consolidated Indus
tries is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
2 The Union International Union United Automo
bile Aerospace and Agricultural Implement Workers of
America (UAW) and its Local 449 is and has been at all
times material herein a labor organization within the
meaning of Section 2(5) of the Act
3 The appropriate collective bargaining unit is The
maintenance and production employees at its Rockford
Illinois plant constitute a geographically defined and geo
graphically limited unit appropriate for purposes of col
lective bargaining within the meaning of Section 9(b) of
the Act
4 At all times material herein the Union has been the
designated and exclusive representative of employees de
scribed above for the purpose of collective bargaining
with respect to rates of pay wages hours and other
terms and conditions of employment
5 At all times material herein collective Respondent
National Metalcrafters Inc and National Lock Corp
and Keystone Consolidated Industries and International
Union United Automobile Aerospace and Agricultural
Implement Workers of America (UAW) and its Local
449 have been parties to a collective bargaining agree
ment effective by its terms from April 14 1980 until
April 13 1983 encompassing the above -described unit of
employees
6 By unilaterally deciding and actually relocating bar
gaming unit work of its unit employees during the term
of the contract without first obtaining the Unions con
sent or complying with the notice provisions of Section
8(d) of the Act and without affording the Union a mean
mgful opportunity to bargain on the decision Respond
ent has failed and refused to bargain with the Union in
good faith in violation of Section 8(a)(1) and (5) of the
Act
7 By forcing or causing the layoff of the employment
of approximately 100-170 employees Respondent has
violated Section 8(a)(1) and (5) of the Act
8 By failing and refusing to recognize and bargain col
lectively with the Union as the exclusive collective bar
gaming representative of unit employees with respect to
wages hours and other terms and conditions of employ
ment including failure to offer to recall employees Re
spondent has violated Section 8(a)(1) and (5) of the Act
9 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
[Recommended Order omitted from publication ]