Newcor Bay City

National Labor Relations Board - Administrative Judge Opinions

Jul 21, 2010

07-CA-047590 (N.L.R.B. Jul. 21, 2010)

JD–38–10
Bay City, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEWCOR BAY CITY DIVISION OF
NEWCOR, INC.
and Case 7–CA–47590
INTERNATIONAL UNION, UNITED
AUTOMOBILE, AEROSPACE AND
AGRICULTURAL IMPLEMENT WORKERS
OF AMERICA (UAW), AFL–CIO, AND ITS
LOCAL 496
Scott R. Preston, Esq., for the General
Counsel.
Gary W. Klotz, Esq., and Craig M.
Stanley, Esq. (Butzel Long, PC),
Detroit, Michigan, for the Respondent.
Carlos F. Bermudez, Esq., UAW
International Union, Detroit, Michigan,
for the Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
EARL E. SHAMWELL JR., Administrative Law Judge. This is a supplemental
proceeding to determine the amount of backpay and other benefits owed certain discriminatees
under the terms of the National Labor Relations Board’s (the Board) November 8, 2005 order
which was enforced by the United States Court of Appeals for the Sixth Circuit on February 15,
2007.
The hearing in this matter was held on February 23–25, 2010, in Saginaw, Michigan.
The parties filed briefs which have been carefully considered. Based on the entire record,
including my observation of the demeanor of the witnesses, I make the following.
Findings of Fact
I. Background to the Supplemental Proceedings
A. The Litigation Backdrop
The underlying decision of Administrative Law Judge Paul Bogas, as affirmed by the Board
This instant matter began with Judge Bogas’ decision dated April 26, 2005, in which he
concluded, inter alia, as a matter of law that the Respondent violated Section 8(a)(5) and (1) of
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the Act by unilaterally implementing the terms set forth in its final contract proposal effective
June 11, 2004, without bargaining in good faith to a valid impasse.
The judge recommended that this violation in pertinent part be remedied by the
Respondent’s taking the following affirmative action.
(a) Restore, honor, and continue the terms and conditions of the contract with the
Union that was set to expire on June 10, 2004, until the parties sign a new agreement or
good-faith bargaining lead to a valid impasse, or the Union agrees to changes.
(b) Make whole employees and former employees for any and all loss of wages
and other benefits incurred as a result of the Respondent’s unlawful alteration or
discontinuance of contractual benefits, with interest, as provided for in the remedy
section of this decision.
(c) Make contributions, including any additional amounts due, to any funds
established by the collective-bargaining agreement with the Union that was in existence
on June 10, 2004, and which the Respondent would have paid but for the unlawful
unilateral changes as provided for in the remedy section of this decision.
On November 8, 2005, the Board affirmed Judge Bogas’ decision but amended his
remedy as follows:
AMENDED REMEDY
Having found that the Respondent violated Section 8(a)(5) and (1) of the Act, we
shall order it to cease and desist, and to immediately put into effect all terms and
conditions of employment provided by the contract that expired at midnight on June 10,
2004, and to maintain those terms in effect until the parties have bargained to
agreement or a valid impasse, or the Union has agreed to changes. We shall order the
Respondent to make whole the unit employees and former unit employees for any loss
of wages or other benefits they suffered as a result of the Respondent’s implementation
of its final proposal on June 11, 2004, as set forth in Ogle Protection Service, 183 NLRB
682 (1970), enfd. 444 F.2d (6th Cir. 1971), with interest as set forth in New Horizons for
the Retarded, 283 NLRB 1173 (1987). We shall order the Respondent to reimburse unit
employees for any expenses resulting from the Respondent’s unlawful changes to their
health and dental benefits, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), affd. 661 F.2d 940 (9th Cir. 1981, with interest as set forth in New Horizons for
the Retarded, supra. We shall further order that the Respondent make all contributions
to any fund established by the collective-bargaining agreement with the Union which was
in existence on June 10, 2004, and which contributions the Respondent would have paid
but for the unlawful unilateral changes, including any additional amounts due to the
funds in accordance with Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 6 (1979.1
On February 15, 2007, the United States Court of Appeals for the Sixth Circuit
determined that the Board’s conclusions were supported by substantial evidence and granted

1 345 NLRB 1229 (2005). In a footnote, the three-member panel stated that “We have
modified the judge’s remedy to include appropriate remedial provisions for any [emphasis
supplied] loss of wages and benefits suffered by employees." Fn. 2 at 1229.
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enforcement of its order, noting the Board’s affirmation of the Judge Bogas’ ruling, findings, and
conclusions and adopting (in the main) the recommended Order.2
B. The General Counsel’s Compliance Specification
On September 27, 2007, the Regional Director for Region 7 issued the first of several
compliance specifications in this case and set the matter down for hearing. On November 1,
2007, March 10, May 22, and December 1, 2008, the Regional Director issued his second, third,
and fourth amended compliance specifications along with corresponding hearing dates. The
Respondent filed timely its answers to these compliance specifications, agreeing in part and
denying in part the specifications in question, and also asserting certain affirmative defenses.
On November 17, 2009, the Regional Director issued his fifth amended compliance
specification in this cause and again rescheduled the matter for hearing. The Respondent on
December 30, 2009, timely filed its answer to this specification and an amended answer, again
admitting parts but also denying parts of the specification, and also asserting certain affirmative
defenses.
The instant litigation concerns the fifth amended specification.3
C. The General Counsel’s Backpay Specification as Applied to
Identified Discriminatees
As noted, on November 17, 2009, the Regional Director for Region 7 of the National
Labor Relations Board (the Board) issued a compliance specification, entitled Fifth Amended
Compliance Specification (and notice of hearing), which alleges the Respondent’s liability for
backpay and other benefits owed to certain named discriminatees under the terms of the
Board’s Order as enforced by the Sixth Circuit.
On December 30, 2009, the Respondent filed its answer to the aforementioned
compliance specification admitting to certain aspects thereof, denying in others, and asserting
certain affirmative defenses. On February 20, 2010, the Respondent filed an amended answer
to this specification, again admitting to certain aspects of the specification, denying others, and
asserting certain affirmative defenses.
The compliance specification (the specification) identified the following persons as
discriminatees entitled to an award for loss of pay and other benefits as a result of the
Respondent’s unlawful action.
1. James R. Aumend 10. Scott B. Dennis 19. Terrance Hartley
2. Robert Jackson 11. Joseph Kanicki 20. Gary Letzgus
3. Robert Maida 12. John C. Martin 21. Thomas Martindale
4. Craig M. Page 13. Kenneth Reinhardt 22. Rodney Ruse
5. Jeffrey Ryan 14. George Sawade 23. Terry L. Schmidt

2 NLRB v. Newcor Bay City Division of Newcor, Inc., No. 06-11285 (2007).
3 The fifth amended specification was also amended in part at the hearing over no objection
by the Respondent. In this regard, see GC Exh. 2, the amended specification for Thomas R.
Schmidt; GC Exh. 3, the amended specification for Richard Pomaville; GC Exh. 4, the amended
specification for Robert W. Bean; GC Exh. 5, the amended specification for James F. Moore;
and GC Exh. 6, the amended Table I.
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6. Joseph Schwartz 15. Thomas Seidel 24. Dale Sigmund
7. Todd Stodolak 16. Rodney Thompson 25. John A. Van Hurk
8. Robert W. Bean 17. James E. Gasta 26. Thomas West
9. Richard Pomaville 18. Ronald Rinz 27. James F. Moore
28. Thomas R. Schmidt
While the Respondent disputes the amounts, if any, owed to some of the persons identified as
discriminatees, it does not deny that these persons were all employed by it at some time during
the period covered by the Board’s Decision and Order. For purposes of resolving the
controversy regarding the Respondent’s liability, I will consider all of the persons listed above as
the finite class of persons entitled (or not) to awards for loss of pay and for other benefits
because of the Respondent’s violation of the Act. I will henceforth deal with each discriminatee
separately to make my determinations.
II. The Backpay Specification Applied by Discriminatee
As a preliminary matter regarding the specification’s component allegations, the
Respondent admitted in its answer that the gross backpay due unit and former unit employees
was the amount of earnings each would have obtained but for the unilateral changes the
Company implemented. The Respondent also admitted that it made payments in August 2007
to certain of the discriminatees for paid personal holidays and paid vacation owed in partial
satisfaction of its obligation under the Board’s Order.4 The Respondent further admitted that the
backpay period as set out in the specification for discriminatees who continued their
employment with Newcor Bay City after June 10, 2009, is June 11, 2004, to March 1, 2007.
Furthermore, the Respondent admits that an appropriate measure of backpay for the employees
who continued their employment with Newcor Bay City after June 10, 2004, is the hours for
which they were paid, including overtime hours during the backpay period, multiplied by the
wage difference between what they actually were paid per hour and the wages set forth in the
collective-bargaining agreement (CBA) that expired at midnight June 10, 2004—also called the
“wage differential.”
The Respondent admits that the following discriminatees comprise the class of
employees who continued their employment with Newcor Bay City after June 10, 2004, and are
entitled to appropriate individual backpay awards based on the aforestated measure of backpay
for the time each continued working for the Company.
James R. Aumend Scott B. Dennis Terrance Hartley
Robert Jackson Joseph Kanicki Gary Letzgus
Robert Maida John C. Martin Thomas Martindale
Craig M. Page Kenneth Reinhardt Rodney Ruse
Jeffrey Ryan George Sawade Terry L. Schmidt
Joseph Schwartz Thomas Seidel Dale Sigmund
Todd Stodolak 5 Rodney Thompson John A. Van Hurk6

4 The discriminatees in questions were Robert Jackson, Gary Letzgus, Craig Page, Rodney
Ruse, Rodney Thompson, and John Van Hurk.
5 The Respondent initially in its answer denied discriminatee Stodolak’s entitlement to a
backpay award. At the hearing, Stodolak’s claim was mutually agreed to by the parties.
6 Each of these employees will be discussed separately later in this decision. It should be
noted that for these discriminatees the General Counsel’s computations are included in Table A
of the Fifth Amended Compliance Specification. (GC Exh. 1(pp)). I have reviewed the
Continued
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In addition, the Respondent has admitted to the validity and accuracy of the specification
as applied to amounts owed but not specifically to the individual employees. This will be
discussed later herein.
III. The Uncontested Backpay Awards
In its answer to the specification, the Respondent admitted that certain discriminatees
were entitled to the backpay amounts stipulated by the specification calculations appertaining to
the individual discriminatee. Consistent with its admissions, the Respondent did not contest the
backpay specification and the associated amounts at the hearing. Accordingly, I find and
conclude that the backpay awards for the following named discriminatees are based on a fair,
rational and reasonable scheme that fairly meets the Board’s make-whole remedy for these
persons.7
James R. Aumend: Aumend worked for the Respondent from June 11, 2004, though
August 11, 2006, when he retired. Based on the specification as applied to his situation,
Aumend is entitled to backpay, vacation pay, holiday pay, and personal paid holiday (pph) pay
in the total amount of $8153.45.8
Robert Jackson: Jackson’s backpay period covers the period June 11, 2004, through
February 28, 2007, when the Respondent reinstated the correct (pre-June 11 contract) wage
rate. Based on the specification as applied to his situation, Jackson is entitled to backpay,
vacation pay, holiday pay, and pph pay and reimbursement for out-of-pocket medical expenses
in the total amount of $8281.25.9
Robert Maida: Maida worked for the Respondent during the period covering June 11
through 28, 2004, when he was laid off. Maida is entitled by application of the specification to
his situation to backpay, vacation pay, holiday pay; and reimbursement for out-of-pocket dental
expenses ordinarily covered by insurance; and COBRA (medical insurance) payments in the
total amount of $3074.45.
Craig M. Page: Page’s backpay period covers June 11, 2004, through February 28,
2007, when the Respondent reinstated the correct wage for him. Based on the specification as
applied to him, he is entitled to backpay, vacation pay, holiday pay, pph pay, bridge (retirement)
money, and reimbursement for out-of-pocket medical expense in the total amount of
$16,214.57.10
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computations and they appear to be accurate and correct. However, if any mathematical errors
are discovered later, I would recommend that any such errors be self-correcting without further
order from me.
7 None of the following named discriminatees appeared at the hearing. Notably, these
persons were of the class of employees who continued working at the Respondent after June
10, 2004.
8 By way of reminder, the amount determined is supported by Table A, p. 1 of the
specification. This table applies to all of the uncontested awardees.
9 Jackson was paid an unstated amount for pph in August 2007 by the Respondent by way
of a partial satisfaction of the Company’s obligation under the Board’s Order. Similarly, the
Respondent also claimed to have paid him for his vacation in its answer.
10 According to the specification, Page was paid an unstated amount for pph in August 2007
in partial satisfaction of the Respondent’s obligation under the Board’s Order. The Respondent
Continued
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Jeffrey Ryan: Ryan’s backpay period covers June 11, 2004, August 4, 2006, when he
resigned. Based on the specification as applied to him, Ryan is owed backpay, vacation pay,
holiday pay, pph pay, and reimbursement for out-of-pocket medical expenses covered by
insurance in effect prior to June 11, 2004, in the total amount of $11, 641.11.
Joseph Schwartz: Schwartz’ backpay period covers June 11 through 28, 2004, when he
was laid off. Based on the specification as applied to him, Schwartz is entitled to backpay,
vacation pay, holiday pay, and pph pay in the total amount of $1363.68.
Scott B. Dennis: Dennis’ backpay period covers June 11, 2004, through January 31,
2005, when he was laid off. Based on these specifications as applied to him, Dennis is entitled
to backpay, vacation pay, holiday pay, pph pay, and reimbursement for out-of-pocket medical
expenses that would have been covered by medical insurance in effect prior to June 11, 2004,
in the total amount of $7725.51.
Joseph Kanicki: Kanicki’s backpay period covers June 11 through 28, 2004, when he
was laid off. Based on the specification as applied to him, Kanicki is entitled to backpay,
vacation pay, and holiday pay in the total amount of $2427.96.
John C. Martin: Martin’s backpay period covers June 11 though 28, 2004, when he was
laid off. Based on the specification as applied to him, Martin is entitled to backpay, vacation
pay, holiday, pph pay, and reimbursement for out-of-pocket medical expenses that would have
been covered by medical insurance in effect prior to June 11, 2004, in the total amount of
$1211.96.
Kenneth Reinhardt: Reinhardt’s backpay period covers June 11 through 28, 2004, when
he was laid off. Based on the specification as applied to him, Reinhardt is entitled to backpay
and holiday pay in the total amount of $258.88.
George Sawade: Sawade’s backpay period covers the period June 11, 2004, through
the first week of February 2005,11 when he retired. Based on the stipulation as applied to him,
Sawade is entitled to backpay, holiday pay, and pph pay in the total amount of $3794.11.
Thomas Seidel: Seidel’s backpay period covers the period June 11 through 28, 2004,
when he was laid off. Based on the specification as applied to him, Seidel is entitled to
backpay, vacation pay, holiday pay, and pph pay in the total amount of $3988.71.
Rodney Thompson: Thompson’s backpay period covers the third and fifth quarters of
calendar 2006.12 Based on the specification as applied to him, Thompson is entitled to backpay
and vacation pay in the total amount of $2977.49.
_________________________
in its answer avers that it paid him similarly for vacation. It should be noted that the Respondent
disputes Page’s entitlement to the bridge money component of this amount, which is reckoned
to be about $3000.
11 The specification does not state a specific retirement date in February 2005 for Sawade.
12 The specification does not state a more definite time frame for Thompson. I assume that
third quarter 2006 means the time frame covering July through September. I have to assume
that the inclusion of a “fifth” quarter is a clerical mistake and probably means the fourth quarter
of 2006—October through December. In any case, the Respondent registered no objection to
the specification’s wording in par. 24(a) of the specification, choosing to “admit” its correctness
Continued
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Terrance Hartley: Hartley’s backpay period covers the period June 11 through 28, 2004,
when he retired. Based on the specification as applied to him, Hartley is entitled to backpay,
vacation pay, and holiday pay in the total amount of $4157.52.
Gary Letzgus: Letzgus’ backpay period covers June 11, 2004, through February 28,
2007, when the Respondent reinstated the correct wage rate. Based on the specification as
applied to him, Letzgus is entitled to backpay, vacation pay, holiday pay, pph pay, and
reimbursement for out-of-pocket medical expenses that would have been covered by medical
insurance in effect prior to June 11, 2004, in the total amount of $27,576.08.13
Thomas Martindale: Martindale’s backpay period covers the period June 11, 2004,
through June 30, 2005, when he retired. Based on the specification as applied to him,
Martindale is entitled to backpay, vacation pay, holiday pay, pph pay, and reimbursement for
out-of-pocket medical expenses that would have been covered by medical insurance in effect
prior to June 11, 2004, in the total amount of $5089.65.
Rodney Ruse: Ruse’s backpay period covers the period June 11, 2004, through
February 28, 2007, when the Respondent reinstated the correct wage rate. Based on the
specification as applied to him, Ruse is entitled to backpay, vacation pay, holiday pay, pph, and
reimbursement for out-of-pocket medical expenses that would have been covered by the
medical insurance in effect prior to June 11, 2004, in the total amount of $13,470.72.14
Terry L. Schmidt: Schmidt’s backpay period covers only 1 day, June 11, 2004, when he
was laid off. Based on the specification, Schmidt is entitled to backpay and 238 hours of
vacation pay in the total amount of $4592.76.
Dale Sigmund: Sigmund’s backpay period covers the period June 11 through
September 1, 2004, when he was laid off. Based on the specification as applied to him,
Sigmund is entitled to backpay, vacation pay, holiday pay, pph pay, and reimbursement for out-
of-pocket expenses in the total amount of $5592.67.
John A. Van Hurk: Van Hurk’s backpay period covers the period June 11, 2004, through
February 28, 2007, when the Respondent reinstated the correct wage rate, vacation pay,
holiday pay, pph pay, and reimbursement for out-of pocket expenses in the total amount of
$14,133.73.15
Todd Stodolak: As noted earlier in its answer, the Respondent initially denied the
specification allegations (in par. 23(a)–(d)) regarding Stodolak’s backpay entitlements.
_________________________
in principle at least. Moreover, based on the pleadings, the Respondent admits that it paid
(amount not stated) Thompson for pph in August 2007 pursuant to the Board’s Order.
13 According to the specification, Letzgus was paid an unstated amount for pph in partial
satisfaction of the Board’s Order in August 2007. The Respondent in its answer avers that it
also paid similarly a payment for Letzgus’ vacation pay entitlement.
14 According to the specification, Ruse was paid an unstated amount for pph in partial
satisfaction of the Respondent’s obligation under the Board’s Order in August 2007. The
Respondent avers that it paid him similarly for his vacation pay entitlement.
15 According to the specification, Van Hurk was paid an unstated amount for his pph
entitlement in partial satisfaction of the Board’s Order in August 2007. The Respondent avers
that it also similarly paid him for his vacation entitlement.
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However, the Respondent in its amended answer admitted that the specification as applied to
Stodolak was accurate and no longer disputed by the Company. The Respondent through
counsel confirmed this position at the hearing. Accordingly, the backpay period for Stodolak is
the period covering June 11, 2004, through August 9, 2006, when he resigned. Based on the
specification as applied to him, Stodolak is entitled to backpay, vacation pay, holiday pay, pph
pay, and reimbursement for out-of-pocket medical expenses which would have been covered by
medical insurance in effect prior to June 11, 2004, in the total amount of $4808.56.
Thomas West: The specification (in pars. 26(a)–(j)) stated that West is owed for the
backpay period applicable to him—June 11, 2004, through February 2008 when the Newcor
Bay City plant closed—a total of $112,596.42 that included backpay, vacation pay, holiday pay,
pph pay, a pension increase (enhancements) for March 1, 2008, through September 30, 2009,
out-of-pocket medical expenses that would have been covered by medical insurance in effect
prior to June 11, 2004, and bridge money.16
The Respondent in its answer admitted certain aspects of the specification, denied
others, and neither admitted nor denied other aspects claiming a lack of information to form a
conclusion one way or the other.
At the hearing, the parties reached a stipulation and agreement regarding a partial
settlement of West’s backpay entitlement as follows:
MR. PRESTON: First off, I’d like to, pursuant to an agreement between all
parties, I’d like to amend paragraph 26(j) to amend Thomas West’s total net back pay at
$96,000, not including interest, which is still due, and not including the bridge money.
And that $96,000, once again, is subject to interest, so our total backpay for Mr. West
that we actually are alleging will be $99,375 when you include the bridge money, which
we will be litigating here today.
JUDGE SHAMWELL: And this has been broached to Mr. Klotz or Mr. Stanley –
MR. PRESTON: Actually, we agreed upon that. If you look at their amended
answer, it actually already admits to the $96,000, not including interest or bridge
money.17
The specification states that when the Respondent unlawfully imposed its last offer, the
provisions of Article 10, Section 10.2(A) (Vacation Pay) of the collective-bargaining agreement
were eliminated. As a result, certain employees then on layoff status are due accrued vacation
pay.18 They are listed as follows with the associated vacation pay entitlement:

16 The specification states that West was voluntarily retired on June 10, 2004, as a service
and test employee prior to the Respondent’s unlawful implementation of the June 10, 2006 offer
and was an employee comparable to the above-mentioned employee Gary Letzgus until
December 31, 2007, and above-mentioned employees Craig Page and John Van Hurk from
January 1, 2008, until the plant closed in February 2008.
17 Tr. 18–19. The Respondent through counsel agreed to the $96,000 figure at Tr. 20. The
remaining $3375 in claimed entitlement for West will be discussed later in this decision in the
context of the contested awardees.
18 The specification stated that the contract in part provides that if an employee is prevented
from taking vacation due to layoff, he/she will be paid for all remaining hours. In a footnote, the
specification states that the amount due each listed employee is based on the number of hours
of vacation accrued based on seniority multiplied by their previous June 10, 2004 hourly rate,
less any amounts the Respondent paid them.
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John Dahn, Jr. $5787.60
Scott Dewyse 991.20
Randall Rezler 3113.64
Douglas Dewyse 2699.62
Robert Liss 1520.76
Michael Ziolkowski 2178.00
The Respondent in its answer admits that these aforestated amounts are due and payable to
these employees exclusive of interest.
Miscellaneous Uncontested Entitlements
The specification states essentially that because of the Respondent’s unlawful
implementation of its final offer on June 11, 2004, the Company deleted the CBA’s requirement
(in Art. 4 Sec 4.3, subsec. J (the Sub Fund)) of contributing to and maintaining a balance of
$20,000 in the Sub Fund and maintaining that balance during each subsequent year.
The Respondent admits that since June 11, 2004, it has failed to reimburse the Sub
Fund so as to maintain a balance of $20,000 to a maximum of $60,000 for contributions not
made through February 29, 2008.19
IV. The Contested Awardees
The specification states that certain employees retired from the Respondent effective
June 10, 2004, in order to preserve certain benefits that would not have been available to them
had they chosen to retire on or after June 11, 2004, the date of the Respondent’s unlawful
implementation of its last offer. The specification goes on to state had the Respondent not
unlawfully implemented its June 10, 2004 final offer, the employees in question would have
continued to work in their respective job classifications based on their seniority relative to
comparable employees who continued to work.
According to the specification, the backpay period for each of these employees began
on June 11, 2004, and ended when the employment of a comparable employee ended. The
employees in this class of claimed awardees, along with the employee deemed comparable in
parentheses, are as follows:
1. Thomas Schmidt (Gary Letzgus)
2. Richard Pomaville (Craig M. Page)
3. Robert Bean (George Sawade)
4. James F. Moore (James R. Aumend)
5. Ronald Rinz (Rodney Thompson)
6. James Gasta (Rodney Ruse)20

19 It its amended answer, the Respondent admitted the validity and accuracy of the
specification, and at the hearing the Respondent’s counsel stipulated and agreed with the
General Counsel that this aspect of the specification was valid and accurate. The parties’
stipulated agreement regarding the Sub Fund contributions is $54,000. (See Tr. 22.)
20 The specification states that Gasta, employed in the Newcor Bay City electrical
department, had the most seniority there and he would have continued to work there.
Accordingly, an appropriate comparable employee for purposes of determining Gasta’s gross
Continued
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This specification further states that under the CBA (contract) that expired on June 10,
2004, employees who retired after May 31, 1995, were entitled to a pension benefit supplement
of $375 per month for up to 4 years of until the retiree reached age 65.
Employees Thomas West and Craig Page retired effective January 1 and February 1,
2009, respectively. The specification states essentially that both employees were denied their
respective pension supplement, known as “bridge money,” retroactive to their retirement dates
because of the Respondent’s unlawful action in that the terms of the contract in effect prior to
June 11, 2004, remained in effect until the Union and the Company reached agreement on a
successor CBA or valid impasse. The Respondent contests the six retirees’ and West’s and
Page’s entitlement to the bridge money benefit.
V. The General Counsel’s Witnesses
A. Robert Bean
Robert Bean testified, stating that he began working for Newcor Bay City on September
15, 1969; he retired from the Company on June 10, 2004, his last day of work. He explained
the circumstances leading to his decision to retire.
By way of background, Bean first noted that during his last full year (2003) of
employment, he ran for the elected position of union committeeman and won. Accordingly,
he participated in all of the 2004 bargaining sessions, except the last one that took place on
June 10, 2004.
Turning to the negotiations with the Company, Bean stated that based on the way the
negotiations were going, he came to the conclusion that he was going to lose the bridge money
if he did not retire before the expiration of the current contract.
Bean noted that the company negotiators stated on several occasions during
negotiations that the bridge money retirement supplement was or had to be eliminated, that this
was a nonnegotiable issue, and actually, according to Bean, the Company never really
negotiated this matter during the sessions he attended. Bean said (in so many words) that the
Company actually was of a mind to slash everything with a “dollar sign” attached to it in the
current contract, lending further credence to the elimination of the bridge money, his biggest
concern.21
Bean further noted that the Company, as he viewed its negotiations stance, was
definitely not going to extend the current contract and in point of fact there was little or no
negotiating even going on to arrive at a new contract. According to Bean, in an attempt to get
the talks moving the Union would make a proffered change in the contract at each session but
the Company’s stance on the last day of negotiations—its last, best proposal—was the same as
the first day. On balance, according to Bean, nothing had changed, essentially there were no
credible negotiations, as the Company simply said it was not going to extend the contract. Bean
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backpay is Rodney Ruse whose employment ended August 2007 and whose hourly rate was
$19.22 as governed by the collective-bargaining in effect prior to June 11, 2004.
21 Bean stated that after the first meeting, the Company proposed to not only eliminate the
bridge money, but also wanted wage cuts and an increase in the employees’ contribution to
medical insurance. (Tr. 263.)
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testified that if the Company did not extend the current contract, he stood to lose $18,000 in
bridge money benefits.
Bean volunteered that at the time he was not sure to a certainty that the Company was
going to implement its final offer but was 90 percent convinced that it would, because the
Company was adamant about not extending the current contract and was insistent about the
“package” it wanted included in the new contract. Furthermore, Bean stated that it was also his
belief to a 99-9/10 percent certainty that the Union would not accede to the Company’s proposal
especially with regard to the bridge money, so the only option was to have it imposed on the
Union. Bean noted that he did not think that it was unlawful for Newcor to implement its final
offer.
Bean said that based on these events and circumstances and after consulting with his
wife on the evening of June 9, 2004, he decided to retire to save his bridge money.
Accordingly, he called Ron Conklin (of Newcor’s human relations) at 7 a.m. on June 10 to
schedule a meeting at 9 a.m. on June 10, on which date he signed the appropriate paperwork.22
Bean recalled that he specifically spoke to fellow employees Richard Pomaville, James
Moore, and James Gasta about the state of the negotiations—actually that the Company was
not negotiating—and advised them that if they wanted to save their bridge money, they would
have to retire.23
Turning to June 10, 2004, Bean testified he called the Company at around 7 a.m. and
later met in the conference room with the company human resource official, Diane Badour, and
the union representative, Dave Manze, to fill out the necessary paperwork. Bean could not
recall whether Elmer Kostal was present at the time, but that John Van Hurk took his (Bean’s)
place at the negotiations table.
While Bean testified that he could not recall saying anything in particular about his
retirement at the meeting he, nonetheless, at the hearing stated that he did not want to retire on
June 10 because he was at the time only 55 years old, at which age he stood to lose 48 percent
of his pension. Moreover, according to Bean, he enjoyed his job and wanted to continue
working and would have gladly returned to work if Newcor had not implemented its last final
offer on June 10 and had continued to bargain.24
Bean stated that it was rumored that a retired person could return to work after retiring,
but he could not identify or recall from whom he heard these rumors; he believed that persons
who had already filled out their retirement paperwork may have been the source.25 Bean

22 Bean identified documents contained in R. Exh. 19 as his retirement paperwork. Bean
stated that prior to June 9, he had done nothing to further the retirement process until he called
Conklin at 7 a.m. on June 10. When he arrived at the conference room, the paperwork was
completed. It should be noted that Bean was born on August 14, 1948, and on June 10, 2004,
was 55 years old, the earliest retirement date according to the pension plan.
23 Bean believed he told these persons about his concerns and gave them his advice on the
bridge money issue about June 1, 2004.
24 Bean said that after his June 10, 2004 retirement, he spoke to the Union’s bargaining
committee members (to include Kostal, Manze, Van Hurk, and Scott Dennis) at union meetings
and found out about the Company’s implementation of the offer and the imposition of a new
contract.
25 Bean at Tr. 249 is recorded as saying, "I had heard rumors from the other people that had
Continued
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candidly stated that no one from the Company made any such representations. Bean said that
it was also his belief (assumption) that he had about a month to return to work, but then
discovered from other retirees that he only had until July 1 to rescind his retirement.
Bean acknowledged observing by the timeclock a notice posted on the Union’s bulletin
board which stated the following:
To UAW Local 496 Member
According to Newcor Inc and Newcor Bay City negotiators, the insurance bridge money
is not a negotiable issue. Anyone wishing retire with this benefit must do so before the
end of this contract on June 10, 2004 midnight.
Respectfully
The Bargaining Committee26
Bean stated that he saw this for the first time some time between June 1 and 10, but he had no
part in its composition or posting. Bean noted that the notice was posted for only an hour or two
at the most when it was removed by persons unknown to him. Bean stated that while he
believed the contents of the notice to be true, or at least consistent with his thinking, the notice
itself had nothing to do with his decision to retire effective June 10.
B. Richard Pomaville
Richard Pomaville testified stating that he started working for the Respondent on
May 22, 1967, as a test shop employee and later on the assembly floor in the weld head
building and service departments; his employment ended on June10, 2009, when he retired.
Pomaville explained the circumstances surrounding his decision to retire from the
Company after 37 years of service.
Pomaville stated that he kept himself informed about the progress of the Union’s
negotiations with the Company by speaking off and on with Robert Bean, Dave Manze, Elmer
Kostal, Gary Letzgus, and John Van Hurk, all of whom were either union committeemen or
pension committeemen involved with the ongoing negotiations. According to Pomaville, he
basically checked with everyone involved in the contract bargaining efforts on the Union’s side.
Pomaville said that (in these conversations) he learned that the Company was not being
flexible in the negotiations and after a time he concluded that he needed to protect his bridge
_________________________
already filled out their paperwork that that they had been told that they couldn’t come back.”
This statement is the subject of the General Counsel’s motion to correct transcript, which was
opposed by the Respondent. The General Counsel asserts that the transcript is inaccurate,
especially in light of Bean’s testimony on cross-examination that he believed from unidentified
sources that he could return to work after retiring. The Respondent asserts that the transcript
record should stand and that Bean simply contradicted himself which affects his credibility. The
Respondent notes that the General Counsel did not on redirect attempt to correct this
statement.
I will not grant the motion but consider Bean’s testimony in its entirety for purposes of
determining his credibility.
26 This notice is contained in R. Exh. 20.
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money retirement benefit, about $18,000, by retiring. Pomaville testified that he believed that
the bridge money would be lost on June 10 at midnight. Pomaville stated that he did not know
whether Newcor’s implementation of its proposal was illegal, but the bridge money was his “big
thing” because he needed this money to survive, as it was part of his pension. Pomaville
volunteered that he definitely was not ready to retire as he was only 59 years old at the time, but
the possible loss of the bridge money, nonetheless, governed his decision to retire.
Pomaville testified that he understood that about 10–14 employees were going to retire,
so he scheduled his retirement for June 9, and signed the paperwork on that date in the
company conference room.27
Pomaville acknowledged that while he signed the final retirement on June 9, he had
begun the process as early as June 7 by executing certain forms such as the Federal pension
tax withholding forms (R. Exh. 28) and the credit union direct deposit form (R. Exh. 29).
Pomaville said that while the ultimate decision to retire was his, he was persuaded to
retire because of the union bargaining committee’s advice that it would be in his interest to retire
to protect the bridge money. Pomaville recalled that Elmer Kostal actually read language from
the retirement plan at the retirement signing on June 9, and told him he could “unretire.”
However, Pomaville acknowledged that he had made his decision to retire before June, being
told of this because of the status of the contract negotiations.
On cross-examination, Pomaville was queried by the Respondent’s counsel about his
interim earnings since he retired.
Pomaville stated that on or about August 1, 2004, he formed a partnership—Carmine
LLC—with himself and his wife as the principals, whose business is building and repairing weld
heads. Pomaville testified that he formed this partnership essentially to perform this type of
work for Newcor/Wright K, the entity that purchased the assets of Newcor Bay City;
Newcor/Wright K is his sole customer.28
Pomaville identified certain Federal tax returns filed on behalf of Carmine LLC for tax
years 2004 (R. Exh. 31), 2005 (R. Exh. 32), 2006 (R. Exh. 33), and 2007 (R. Exh. 34).
Pomaville stated that these returns were prepared by his retained accountant and he could not
explain the methodology the accountant employed at arriving at the calculations for these
returns. Pomaville stated that the returns were prepared and filed with the Federal tax
authorities and he has not been subjected to any audit or review by the tax authorities.
Pomaville acknowledged that the underlying records to support the filings came from his records
and he placed certain values on his machinery based on his experience in the trade.
After his retirement, Pomaville stated that he attended a union meeting about June 15,
2004, and Elmer Kostal again informed him about his right to return to work and generally

27 Pomaville identified certain documents contained in R. Exh. 30 as his retirement
paperwork.
28 Pomaville explained that on June 10, 2004, when he retired from Newcor Bay City, there
were five or six weld heads in need of repair. About a couple of weeks later, a Newcor official
who headed the parts department, Jerry Verlicher, contacted him about doing this repair work
and suggested that Pomaville start up a business to do this weld head work, which he had been
doing while employed at Newcor. Pomaville said that he has been performing this type of work
for Newcor/Wright K since about August 2004.
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discussed the Union’s plans for the negotiations; that is, for example, whether the Union was
going to settle.
C. James Gasta
James Gasta testified that he worked for the Respondent for about 35 years beginning
on September 2, 1975, and ending on June 10, 2004, when he retired. Gasta said that he
started out in the service and test department of Newcor Bay City and later to the electrical
department building control panels for aquatic machinery for the last 5 or so years with the
Company.
Gasta recalled the Union’s contract negotiations with management around the time he
decided to retire and speaking specifically with the Union’s committeemen on the bargaining
team, Robert Bean and Jeff Ryan, who told him that in order to protect his bridge money he
should consider retiring. Gasta stated that the committeemen told him that the Company was
not going to budge in negotiations over the (elimination of) the bridge money. Accordingly,
Gasta came to the belief that he would lose his bridge money entitlement when the current
contract expired at midnight June 10.
Gasta volunteered that at the time he thought that it would be unlawful for the Company
to implement its final offer, but was not sure of this. Gasta could not recall the exact date he
decided to retire but it was sometime after Bean told him that he was going to lose the bridge
money if he stayed with the Company.
In any case, Gasta stated that he contacted Kostal to begin the retirement process,
including preparation of the necessary calculations and paperwork. Gasta recalled he was told
by someone whose name he could not recall to come in at a scheduled time to sign the
documents on June 9, 2004. Gasta acknowledged, however, that he had actually began his
retirement process as early as June 3, 2004, when he executed Federal withholding forms (R.
Exh. 21) and the credit union direct deposit forms (R. Exh. 22) so that he would not have to do
everything on the scheduled day for signing the retirement paperwork.29 Gasta stated he met
with Kostal on June 9 in the company conference room and signed the retirement paperwork.30
Shown the Respondent’s Exhibit 20, the notice to the Union’s membership informing
them that the bridge money was not a negotiable issue and suggesting that anyone desiring to
retire with the benefit had until June 10, 2004 midnight to do so, Gasta recalled seeing the
notice either before or after he reached his decision to retire, but that he relied on two union
committeemen—Bean and Ryan—in reaching his decision and not the notice. Gasta stated that
he did not know who posted it.
Gasta noted that his effective retirement date would be June 10, his last day of work.
Gasta stated he worked on June 10 because the contract did not expire until midnight. Gasta
testified that he did not want to retire on June 10 because he liked and enjoyed his job and
simply was not ready for retirement; he would have stayed but for the Company’s
implementation of its proposal.

29 Gasta also said that he was told that the credit union might have taken 2–3 weeks to
process his direct deposit request and he wanted to receive his check by July 1. So he decided
to get this form executed before June 9.
30 Gasta identified his retirement paperwork documents that were contained in R. Exhs. 21
and 22. Gasta was born on December 29, 1945, and was 59 years old on June 9, 2004.
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D. James Moore
James Moore testified that he started working for the Respondent on February 16, 1970,
as a janitor, then moving up to truckdriver, and finally going to the assembly department as a
machine builder. Moore stated his last day of work was June 10, 2004, when he retired.
Moore related the circumstances leading to his decision to retire from the Company after
about 34 years of service. According to Moore, the union committee people told the employees
what the Company was proposing during the negotiations at the time. Moore recalled that the
Company’s proposals entailed substantial reductions of wages and insurance and the
elimination of the bridge money. According to Moore, these were not only the rumors circulating
around the plant, but also the view of union committeemen like Jeff Ryan to whom Moore said
he spoke about these matters. Moore also said that the committee people told the employees
what the Company was offering, but based on the way the Company was negotiating, it was
going to implement its offer, which included elimination of the bridge money.31
Moore testified that in this context he became fearful that the Company was going to
take the bridge benefit, so he decided to retire along with others who had similar fears.
Moore testified that on June 9, 2004, he began the retirement process because the
Union advised that the current contract expired on June 10. Moore recalled that Kostal and
Dave Manze for the Union and, for the Company, Ron Conklin and Diana Badour were present
when he completed his paperwork.32
According to Moore, he told Conklin that in fact he (Moore) was not ready to retire, that
he was healthy and felt good, and that he liked his job and wanted to keep working at least until
he reached 65.
Moore also stated that he believed he could return to work at anytime before July 1,
2004, based on what he had heard from one of the committeemen—he could not specifically
identify the person—before he retired on June 9. However, Moore was sure that no one from
management made this representation.
E. Thomas R. Schmidt
Thomas R. Schmidt testified that he started working for the Respondent on February 3,
1965, starting in the transformer department and then to the assembly department where he
had worked as an assembler for about 30 years until his retirement on June 10, 2004, his last
day of work.
Schmidt explained his decision to retire. According to Schmidt, he did not want to retire
in June 2004; he had worked for Newcor for about 38 years at that time and liked (loved) his job

31 Moore recalled that based on what was rumored, he understood the Company simply
would not negotiate with the Union any more and proposed to take the bridge money away.
Moore also said that he saw a notice (R. Exh. 20) around June 8, 2004, posted at the plant
indicating that the bridge money was not a negotiable issue and discussed it with someone on
the bargaining committee at the time.
32 Moore identified R. Exh. 26 as his retirement paperwork. Moore was born on July 1,
1943, and was 61 years old on June 9, 2004.
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completely. However, around that time he decided to retire because the contract he understood
the Company to be proposing would eliminate the bridge money, and he did not know whether
the Company was going to extend the current contract due to expire on June 10. According to
Schmidt, he was unsure of what the Company was going to do with the contract but did not
think it would implement a contract,33 he did not want to take the chance of losing the bridge
money. Accordingly, Schmidt stated that is why he decided to retire. Schmidt acknowledged
that he did not know for certain that the Company would implement its offer and did not know
whether such an implementation would have been unlawful.34
Schmidt testified that he completed the retirement paperwork35 in the Company’s
conference room in the presence of Kostal, Manze, and Ron Conklin on June 9, 2004, but
Schmidt noted that he had decided to retire on June 5, and had actually commenced the
process around June 8, when he filled out his Federal withholding forms (R. Exh. 24) because
certain information had to be compiled before June 10.
Schmidt noted that he consulted with Bean and Kostal about his retirement plans, and
Kostal, he recalled, told him it was up to him (Schmidt) if he wanted to retire or not. Schmidt
testified that he chose June 10 as his last day of work because the current contract expired that
day. Schmidt stated that if the Company had extended the current contract, he would have
continued to work at Newcor Bay City.
F. Ronald Rinz
Ronald Rinz testified that he worked for Newcor Bay City beginning in September 1973
and ended his employment on June 10, 2004, when he retired from his last position in the
inspections department.
Rinz explained why he retired in June 2004. According to Rinz, the hot topic of
conversation around the plant was the Company’s proposed contract, which included the
elimination of bridge money. Rinz testified that this information was spread by word of mouth
among the employees, including the members of the (Union’s) negotiating committee. Rinz
stated that he came to believe the Company was going to implement the final offer because he
heard that the negotiations were going very poorly for the Union. Rinz said before the expiration
of the contract, he also saw a notice on the bulletin board (or laying on a table) indicating that
the bridge money was not negotiable.36 Rinz also stated that he did not know whether the
Company’s proposal to implement its proposal was unlawful.

33 Schmidt used the term “implement” but in my view, given the context of his testimony that
followed, I believe he meant “extend” the old contract. (Tr. 280.)
34 Schmidt recalled speaking with Robert Bean who told him the Company was not going to
budge on the bridge money position. Schmidt also said that he spoke to other employees who
said they, too, were planning to retire. (Tr. 284.)
35 Schmidt identified his retirement paperwork as contained in R. Exh. 25. Schmidt was
born on October 4, 1944, and was 59 years of age on June 9, 2004.
36 Rinz identified GC Exh. 16 as a copy of the notice. Rinz stated that on or about February
20, 2010, he provided a copy of this to the General Counsel. It reads as follows:
June 8, 2004
According to Newcor Bay City and Newcor Inc.'s negotiators the insurance Bridge
money for Retires [sic] is a non-negotiable issue. Anyone wishing to retire with this benefit,
may wish to do so before contract end.
Your Union Committee.
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Rinz recalled that at about the time he decided to retire, the Union informed employees
that a number of employees were going to retire and suggested that anyone of a mind to retire
should submit his name so that the process and paperwork could be started and avoid the rush
of applicants at the last minute. Rinz said he was instructed to call the Company’s human
resources department and schedule an appointment to fill out the paperwork. Having been
scheduled for June 9, Rinz said he reported to the company conference room where Ron
Conklin and Diane Badour for the Company and Dave Manze and, perhaps, Kostal of the Union
were gathered, and he completed his paperwork.37
Rinz testified that if the Respondent had not implemented its final offer on June 11, but
continued to bargain, he would not have retired but kept on working (under the old contract).
Rinz stated that he was too young to retire and, worse, by retiring in June 2004, it cost him 38
percent of his possible retirement benefits. According to Rinz, he had no desire to retire on
June 10, 2004, but did so to protect his bridge money benefits which would end with the
expiration of the current contract.38
Rinz also volunteered that he believed that he could still come back to work because he
thought that his retirement was not effective until he received his first check on July 1, 2004;
therefore, between June 10 and 30, he believed he could rescind his retirement.
After his retirement, Rinz stated that on June 15, he attended the first of many union
meetings—the Union meets the third Tuesday of each month—and was told that the
negotiations after June 10 were not going well, nothing good for the Union was happening.
G. Thomas West
Thomas West testified that he worked for Newcor Bay City from October 1979 until
June 11, 2004, when he was laid off.39 West stated that he applied for his retirement benefits in
December 2008 and has been receiving pension benefits since January 2009.40
On cross-examination, West testified that he never returned to his position in the service
and test department after June 11, 2004, his last day of work. According to West, he had heard
from the Union that maybe the Company was no longer in business, but he was not himself sure
of this.

37 Rinz identified R. Exh. 27 as a copy of his retirement paperwork. Rinz was born on
October 2, 1947, and was 57 years old on June 9, 2004.
38 Rinz testified that he worked his full 8-hour shift on June 10 in the hope that something
would happen with the current contract, some good news, to include perhaps a change in the
Company’s position.
Rinz went on to say that if the contract had been extended, he would have continued to
work but would have kept his retirement paperwork in at least until July 1 to make sure he (his
bridge money) was protected. Rinz explained that he wanted to cover “both sides of the fence,”
meaning he wanted to guarantee receipt of his retirement supplement—the bridge money—but
also allow himself to return to work without losing the bridge money. Rinz candidly stated he
wanted to have the matter entirely covered; he was protecting his self-interest.
39 West identified GC Exh. 13, a copy of his layoff notice issued by the Respondent on June
11, 2004. The notice indicates that West’s layoff was effective June 14, 2004.
40 The General Counsel’s direct examination of West was essentially limited to this
information.
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West acknowledged that at union meetings he heard from the Union that letters had
been received indicating that the plant was closed, but that some (hourly) people were still
working there. West noted that he never received any letters to the effect that the plant was
closed and the Union did not show him any such letters. However, West admitted that around
February or March 2008, the Union did inform him at a meeting that the Company considered
the plant closed, but it (the Union) was investigating the matter. West also acknowledged that
the Union did not say that any of Local 496 members were still working at the plant at the time
but, nonetheless, reported to the members that “things” were observed being moved around,
indicating some activity in particular in the laboratory plant, plant #2.
West noted that at this meeting, the Union did not say precisely who was still working at
Newcor Bay City. According to West, he personally did not know of any hourly workers who
continued to work at the plant after February 2008.
West noted further that the Union did not tell him that the Company had terminated the
hourly employees in February/March 2008; only that the plant was closed.
West acknowledged that around February 2008 after the plant closure, he received a
vacation paycheck from the Respondent in the amount of $4500 representing earned and
accrued vacation benefits.41 West stated he believed (assumed) that this check emanated from
a prior NLRB proceeding but never asked anyone in the Union what the money was for.
West stated that after February/March 2008, at a union meeting he asked the leadership
what was going on and was told that the Union was not 100 percent convinced that the
Company had indeed closed and was still investigating the matter. West said this seemed
plausible to him because he believed the NLRB case which involved the old contract was still
going on, that negotiations were still continuing.
West testified that after February 2008, he never made any effort to contact Newcor,
believing he was still on layoff and thought he would be contacted by the Company about his
status or any changes thereto.
West volunteered that he really did not know if the plant was actually closed and
believed that the claimed closure could be a subterfuge or a name change on the Company’s
part. West said that when he was employed at Newcor, the Company’s practice was to send
letters to individual employees regarding their status, either laid off temporarily or permanently,
recalled, or terminated. West stated that he had not received any letters from the Company
regarding his employment status or any changes thereto. West (reluctantly) agreed that he
would expect the Union to have informed him (and other members) of his and others’
termination. West noted that the Union never used the term “termination” in the context of
discussions at union meetings about the plant’s closing.
West also conceded that he never has taken the time or made any effort to see if the
plant was still in operation since February 2008, stating that he had no reason to make the 4-1/2
mile trip.

41 West identified R. Exh. 35, a check stub for the vacation benefits issued for the pay period
ending February 17, 2008.
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West also admitted that he was told at some point by the Union that all the union people
were all “out” but he, nevertheless, assumed because of an ongoing NLRB case, he was still
employed by Newcor. West admitted that he never queried Newcor about his employment
status because he did not believe it was his responsibility to determine whether he was
terminated (fired).
H. Craig M. Page
Craig Page testified that he began working for the Respondent on January 31, 1977, as
a laborer, ultimately advancing to machine assembly. Page stated his last day of work was
January 31, 2008, when he was laid off due to lack of work.42
Page testified further that he applied for his retirement benefits in December 2008.
According to Page, Kostal did not turn in the paperwork until the end of January 2009 and he
started receiving his pension benefits on February 15, 2009. Page noted that he did not apply
sooner because he had to turn 55 years of age in order to receive his benefits. Page stated that
he has not received the supplemental or bridge pension benefits. Page testified that he never
received any notice from the Company that he had been discharged or otherwise terminated.
However, he was aware that shortly after he was laid off in January 2008, the plant closed in
February of that year.
According to Page, he learned of the plant’s closure at union meetings and that the
Union told the membership that the union jobs were no longer in existence at the plant.
Page acknowledged that after the plant closed, he received a paycheck from the
Company for vacation, personal holidays, and earned vacation benefits. Page stated that since
employees received a vacation check every year, he thought nothing of the checks. Page
acknowledged that vacation checks were usually issued in June of the contract year. Page
went on to say that actually he did not know why he received the vacation check for over $5000
in February as opposed to June, but, nonetheless, cashed it.43
Page acknowledged having filed an unfair labor practice charge against Newcor on July
23, 2008, and an amended charge on August 13, 2008, in which he alleged, inter alia, that the
Respondent violated the Act by discriminatorily terminating all of the union employees, including
himself, on February 8, 2008.44 Page acknowledged that Region 7 dismissed the original and
amended charges on September 18 and November 18, 2008, respectively.45 Page testified that

42 Page identified his first layoff notice dated January 29, 2008, that was signed by his
supervisor Ken DeRoche. (GC Exh. 14.) Page identified a second layoff notice DeRoche gave
to him on January 31, 2008, changing his layoff date from January 31 to February 1, 2008.
According to Page, DeRoche made a mistake in issuing the first notice and corrected the matter
by issuing the second notice.
43 Page identified R. Exh. 40, an earnings statement showing that he received monetary
credit for earned vacation, personal holiday pay, and vacation in the total amount of $5650.68.
The net amount he received was $3769.31. Page stated that the check did not include any
accompanying letter. Page stated that he did not receive any other payment from Newcor.
Page also stated that he thought the Union had settled “something” but he did not think it was
his responsibility to find out what it was. (Tr. 439.)
44 See R. Exhs. 36 and 37, copies of both charges Page filed with the Board on the dates
stated above.
45 See R. Exhs. 38 and 39.
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he did not file these charges right away—that is, in February 2008—because he did not
understand exactly what his job status was. However, at about the time he filed the charges, he
had been told by Union Official John Van Hurk that he (and the other bargaining unit members)
had been discharged and there was no chance of his (their) going back to Newcor. According
to Page, Van Hurk did not say the employees had been discharged for cause. Page noted that
Van Hurk made this statement to him at a union meeting just before he filed his original charge.
I. Elmer Kostal
Elmer Kostal testified that he presently serves as the Union’s executive president, which
he assumed in 2004; Kostal stated prior to 2004 he served as the Union’s president for about 28
years. Kostal noted that while the executive president position does not carry superseniority, he
still acts as the chief officer of Local 496. Kostal also stated that he was the Union’s chief
negotiator during the 2004 contract negotiations and served on the pension committee along
with John Manze at the time.46
Kostal noted that he was employed by Newcor from 1966 through 2003, when he retired.
During his tenure, Kostal stated that he negotiated eight collective-bargaining agreements with
Newcor Bay City which covered about 200 bargaining unit employees prior to June 11, 2004; by
July 2004, he noted there were perhaps only about a dozen or less hourly employees working at
Newcor Bay City.
Turning to the negotiations around June 2004, Kostal recalled that the Company had
proposed to eliminate certain employee benefits, including health insurance and the
supplemental pension benefit called bridge money.47 As to the bridge money, Kostal said that
from the outset the Company’s position never changed—it was to be eliminated in any new
collective agreement.
Kostal testified that he (and Manze) was responsible for preparing all of the paperwork
for the employees who decided to retire in June 2004; he was responsible for ensuring that the
employees’ service credits were properly accounted for. Kostal recalled that at the time the
company pension representatives were Ron Conklin, a human relations and production
manager, and Diane Badour of the Company’s finance office and its liaison for pension matters;
along with himself and Manze, these persons comprised the pension committee.
Kostal recalled dealing with each of the six retirees and was present when each signed
their paperwork prior to June 11, 2004. Kostal noted that he spent about an hour with each man
and read aloud to each his pension benefits. Kostal stated that he told each one that they could
revoke (rescind) their retirement under certain circumstances.
On this point, Kostal noted that all retirees had to make application for retirement using a
standard form that had been in place for about 10 years.48 Kostal testified that he informed the

46 Kostal noted that Manze was replaced by another union committeeman, Scott Dennis, for
calendar 2008–2009.
47 Briefly, Kostal explained that under the collective agreement in force in 2004, active
employees with a minimum of 5 years of service and eligible for an early retirement—any
retirement from age 55–62—and normal—63 and older—retirement are entitled to bridge money
in the amount of $375 per month between age 55 and 62; $50 per month between 62 and 65;
and $750 per month between 63 and 65.
48 Kostal identified GC Exh. 9 as a blank copy of this form, entitled “Employee Application
Continued
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six retirees at the time that based on the following language contained on page 7 of the
application form, they could change their mind about their retirement decision.
You will be permitted to change your form of payment or waive the Qualified Joint and
Survivor Option at any time before your benefit payments begin. All changes or waivers
must be completed on forms provided by the Employer.
Kostal testified that in his opinion, this paragraph gives the applicant the right to change
his mind about his retirement decision, that it refers to all nonforfeitable pension benefits and the
“changes” include the option of refusing or declining his pension prior to the annuity start date.
Kostal further explained that the annuity start date is the first day of the month following the date
the applicant signs the application and on which date the applicant gets his first annuity check.49
Kostal insisted he read the application form’s contents, including the paragraph on page 7, to
the six retirees individually at the time they submitted and signed the application form.
Turning to the instant compliance specification, Kostal testified that he provided the
monthly pension figures for the six retirees as if they had continued work for the Company until
their respective end of employment dates, that is, the retirement dates based on data provided
by the Board agent who devised the specification. In short, according to Kostal, he utilized the
pension benefits agreed to by the Company and the Union when the six originally retired, then
added the amount of time the Board agent had determined, and then recalculated their benefits
as of that later date.50
Kostal testified that under the old pension plan, anyone who retired under age 63 stood
to lose 6 percent of his pension benefits for each year under that age; essentially, according to
Kostal, the retiree under age 63 loses 1/2 percent per month.
Turning to the issue of the Newcor plant closure,51 Kostal admitted that he (the Union)
was informed of the Bay City plant’s February 8, 2008 closure by the Respondent by letter
dated February 11, 2008; the Union in this letter was also informed that the Respondent had
sold its assets to a company called Wright K Technology, Inc., and that the employment of all
hourly employees were “terminated” as of February 8, 2008.52
_________________________
for Retirement Newcor, Inc. UAW Local 496 Pension Plan.”
49 Kostal noted further that his opinion was supported by various provisions of the then
current collective-bargaining agreement and the Newcor, Inc./UAW Local 496 pension plan.
(GC Exh. 7.) According to Kostal, Art. 7.3 of the agreement allows an employee to return to
work if his former job has not been posted; Art. 3.8 of the pension plan permits a retired
employee to return to work, but his benefits are suspended as a rehired employee. The annuity
start date is defined in Art. 6.1 of the pension plan. It should be noted that Kostal did not testify
that he told the six retirees that these provisions of the agreement and the pension plan were
operative in their respective cases, especially in terms of their being able to rescind their
decisions to retire.
50 The Board agent, Richard Czubaj, who testified at the hearing, devised the instant
specification which, as noted earlier, is not contested by the Respondent.
51 It is noteworthy that while Kostal was initially examined about the plant’s closure by the
General Counsel, most of his testimony on this matter was elicited by Respondent’s counsel on
cross-examination.
52 Kostal identified a copy of the letter which is contained in R. Exh. 3. Notably, the
quotation marks around the word terminated appeared in this letter. This letter also informed
the Union that all eligible employees would be paid any vacation and paid personal holiday pay
Continued
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Kostal acknowledged that he had not personally observed any business activity at the
Bay City plant, and that to his knowledge none of the Local 496 bargaining unit employees have
worked at the plant since February 8, 2008. Kostal also acknowledged that since the plant’s
closure he has been involved in effects bargaining with the Respondent. However, according to
Kostal, the Union took the position that the bargaining unit employees were not terminated or
discharged, but merely laid off for lack of work.
Kostal testified that, in his view, the only proof to him that the plant had closed and
ceased doing business came from Newcor’s letters, so the Union considered the employees not
to be discharged for cause within the meaning of the collective-bargaining agreement which
requires in Article 4, Section 4.6(2) that an employee’s seniority is lost only by dint of discharge.
Kostal also testified that his layoff position was also buttressed by the Company’s failure to send
termination notices to the affected employees, something that it had always done in the past
when an employee was discharged. According to Kostal, a discharge could in fact be or result
in a return to work in the case of a discharged worker being returned to work after a successful
grievance. Kostal stated that in his view, this was equivalent to an initial termination.
Kostal acknowledged and identified several documents that the Union prepared and
submitted to the Board challenging the Respondent’s actions associated with the business
closure and the Board’s response thereto. For instance, Kostal identified an August 6, 2008
charge he filed on the Union’s behalf regarding the sale of the Respondent’s assets (R. Exh. 4);
and the Board’s response to his appeal of Region 7’s refusal on November 10, 2008, to issue a
complaint (R. Exh. 5). Kostal agreed that the Board found no merit to his charge, and
specifically determined that Newcor terminated all of its employees incidental to the sale of its
assets to Wright K.
However, Kostal stated the Union, in spite of these findings, persisted in its position that
the unit of employees was not discharged, but laid off because of lack of work and that the plant
was not closed.
Kostal noted that the Union believed the contract required that the Union be notified prior
to the actual firing or termination of an employee or employees in this case.53
Kostal, referring to the February 11 letter from the Respondent, stated that this was not
the first time the entire work force was (as he put it) laid off. Kostal recalled that in December
2002, the Company laid off the entire bargaining unit for the Christmas break while there was
plenty of work, and then recalled the entire work force after New Year. Kostal believed that the
February 2008 notice was equivalent to that.
All in all, Kostal testified that the Union’s position is and has always been that the
bargaining unit employees were laid off and not terminated as of February 8 and, being in layoff,
all such employees were “active” employees who still maintained their respective seniority rights
at the time they applied for retirement benefits to include the bridge money. According to
_________________________
to which they were entitled; that the Company would provide 2 months of health insurance due
to their termination, and the Company was amenable to “effects” bargaining over the closure.
53 Kostal referred to Art. 7, dealing with Discharges and Voluntary Termination, and in
particular Sec. 7.2 which requires in the case of layoff and discharges that the Company notify
the Union (shop committee) of all notices of discharge when they occur.
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Kostal, West and Page were thereby entitled to the bridge money benefits when they applied for
retirement.
VI. The Respondent’s Witness: Robert Conklin
Conklin testified that he currently works for Newcor, Inc. as a senior quality engineer at
RGI Deco Engineering (RGI) an affiliate located in Clifford, Michigan. However, from December
1995 through around December 2007, Conklin said he worked for Newcor Bay City, starting first
as a quality manager until 2002 and then from 2002 until his transfer to RGI as a human
relations manager. Conklin noted that his human relations duties and responsibilities included
the administration of the Company’s health benefit plans, workers compensation, safety, and
union matters, including grievances and retirements. Conklin stated that his duties included
administering the UAW pension plan at Bay City and that he was a member of the pension
committee during this time.
Conklin testified that the Newcor Bay City plant closed and ceased doing business in
that name on February 8, 2008, because of declining business; its assets were sold to Wright K.
By way of background, Conklin explained the nature of the Newcor Bay City business
and its operations prior to the sale of the Company. Conklin said that Newcor Bay City’s
primary business was designing and building welding and assembly equipment. Newcor Bay
City also carried on a parts business, essentially the parts used to service the equipment it built
and sold. The plant facilities included three buildings designated plants #1, #2, and #3. Plant
#1 was used basically as an office facility for the accounting, engineering, and manufacturing
departments although some equipment for other facilities are stored there; plant #2 was used as
a research and development facility and was sometime referred to as the laboratory or lab
building; and plant #3 was the primary production facility that included the machine shop,
machine assembly, parts assembly, and shipping departments.
Conklin also described the business of RGI as a high volume manufacturer of
component automobile parts, such as transmissions and axle shafts, for Ford Motor Company,
its primary customer, and Detroit Diesel Co. Conklin described RGI as a high production
machine shop, unlike Bay City which was a designer and builder of equipment. Conklin noted
that parent, Newcor, Inc., also has another high volume parts business—MTG in Corrina,
Michigan—which is similar to the RGI operation.
Conklin said that when Newcor Bay City closed, everything except the fixtures were sold
to Wright K Technologies, including all machinery, equipment, parts and material, along with the
intellectual property such as drawings, patents, and the Company’s name. After the sale,
according to Conklin, Newcor Bay City had no ongoing business relationship with Wright K
except that Newcor, Inc. leased plant #2, the R and D lab, to Wright K and that lease
arrangement currently exists. Conklin testified that plants #1 and #3 are empty except for the
fixtures and have not been in business since February 2008. Conklin recalled that at the time of
the closure of Bay City, there was only one hourly employee working at the plant, John Van
Hurk.
Turning to his human relations duties in 2004, Conklin testified that he was familiar with
the pension plan (and its retirement provisions) between Local 496 and Newcor Bay City, and at
the time he, as the human relations manager, participated in the contract negotiations as a
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member of the company bargaining team.54 Conklin acknowledged that the pension plan bridge
money was part of the negotiations and the Company proposed elimination of this benefit for the
new contract. But, in fact, the Company never took the position that the bridge money issue
was not negotiable and presented other proposals.55
Conklin stated that he was familiar with the six retirees and was involved, along with
Diane Badour of the accounting department, in determining their credited service hours through
their proposed retirement dates; the information was provided to the Union (Kostal) to calculate
the individual employee’s retirement benefits.56 The Union would use these calculations to
prepare the employee’s retirement documents. After the documents were prepared, according
to Conklin, Badour would review them for accuracy and completeness; tax withholding forms
would be completed and submitted by the retiree and direct deposit would be arranged for those
desiring this.
Finally, according to Conklin, there would be a meeting with the individual employee who
would review and verify the correctness of the information for himself and, where applicable, his
spouse. Once signed off by the employee, the pension committee would meet to review and
approve the retiree’s application, and this was the final step.
According to Conklin, all retiree applicants have to indicate a proposed retirement date
on the application form.57 In the case of the six retirees, Conklin noted all were to retire on June
10, 2004. In any event, Conklin testified that once an employee retires, he has no employment
relationship with the Company and according to the contract, all seniority ends.58
Regarding bridge money benefits—the special supplemental monthly benefit (under Art.
3, Sec. 3.2(b))—Conklin noted that unless eligible, the retiree would only receive his normal
pension benefits. He also noted that at the time of retirement, the retiree would receive any
wages due, any unused vacation, and personal paid holiday pay (pph).59 Conklin also noted
that in the case of terminated employees, wages and the vacation and pph benefits are paid at
the time of separation from employment (as was the case with West and Page).
Conklin stated that with respect to the six retirees, once their respective retirement dates
passed they could not have rescinded their retirement and there is no such thing as a
conditional retirement under the pension plan. Conklin specifically testified that the retiree
cannot “unretire” before receiving his first retirement check. Directly countering the testimony of
Kostal, Conklin stated that the retirement application form on page 7 dealing with “changes” and

54 Conklin stated he attended all of the negotiating sessions up to June 9 and 10, 2004.
55 Shown a copy of R. Exh. 20, the notice allegedly posted by the UAW bargaining
committee indicating that the bridge money elimination was not negotiable, Conklin refuted its
contents as untrue.
56 Conklin identified copies of document screen shots for the six retirees that were
generated by the Respondent (Badour) showing the individual credited hours of service for each
man through their proposed retirement dates, universally June 10, 2004. See R. Exh. 18.
57 Conklin indicated that the retirement application form contains a line for the
commencement of the applicant’s retirement and, once shown a blank form (GC Exh. 9),
identified the line on p. 6 of the form.
58 See Art. 4, Sec. 4.6(A) which states “Seniority shall be broken for the following reasons:
(1) Voluntary quit or retires.” (GC Exh. 7.)
59 Conklin stated that generally all vacation pay was provided in June of the contract year in
question. (Tr. 471.)
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“waivers” means that the retiree can either opt for a lifetime benefit (annuity) or the qualified
(joint) survivor benefit either in 50 percent, 75 percent, or 100 percent benefit amounts before
benefit payments began. Conklin noted that the changes and waivers part of the application in
no way confers on the retiree a right to rescind his retirement; it relates solely to the form of the
retiree’s payment.
Conklin, in direct contradiction and opposition to Kostal’s interpretation of the collective
agreement and pension plan, also testified that other provisions thereof do not confer any
rescission rights to the retiree.
As to the collective agreement, Conklin said that Section 7.2 (Art. 7) did not apply to the
retirement situation. Rather, it deals with layoffs, discharges, and voluntary quits and the
Company’s responsibility to notify the Union of such actions.
As to the pension agreement, Conklin stated that Article 1 speaks to definition of terms
employed in the agreement. Conklin notes that Section 1.4 defines the annuity start date as the
first date one is entitled to receive his benefit payment. Section 1.39 defines “retirement” as a
participant’s termination of employment with the Company. Section 1.41 defines termination of
employment whether voluntary or involuntary for any reason, including but not limited to quit or
discharge. Conklin stated that “for any reason” covers retirement either normal or early.
Conklin also spoke to the power and authority of the pension committee established and
governed by Article 9 which deals with the administration of the pension plan, stating that no
single member of the committee can interpret the plan and make binding decisions on the entire
committee; there must be a majority (at least three of the four members) voting for a measure.
Conklin noted that during his time on the committee it has never permitted anyone to revoke or
rescind his retirement and no employee has ever made such a request.
Conklin was firm in his view that the plan simply does not allow for rescission of
retirement and if any of the six retirees had asked about this or sought it, the committee would
not have processed his application. Conklin stated that basically an employee elects to retire
unconditionally or not.60
Turning to the six retirees, Conklin recalled participating in the individual meetings with
them on June 9 or 10. Conklin stated that per the usual procedure, he and they reviewed the
paperwork and went over the matter for their understanding; each retiree signed off and the
committee approved each man for retirement. Conklin stated that no one from the Union told
any of the men that he could rescind his retirement up to July 1, 2004.
Conklin volunteered that he fully understood the retirees’ issue or dilemma regarding
retiring to protect their bridge money benefit and that anyone who retires “early” suffers a
penalty of 6 percent per year for each year under the normal retirement age of 63.
Conklin then turned to the retirements of West and Page.

60 It is noteworthy that Art. 9 of the pension plan in my view rather comprehensively deals
with the administration of the plan by and through the pension committee whose actions and
decisions are governed by specific provisions establishing procedures and limitations on its
authority. Most notable for purposes of the instant case, the pension committee may not take
any action deemed discriminatorily beneficial to one participant or a group of participants. (See
Sec. 9.5.)
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Conklin acknowledged that both men retired under the reinstated 2001–2004 collective
agreement with the Union. According to Conklin, under that contract both Page and West were
not active employees at the time of their retirement because they had been terminated as of
February 8, 2008, when the Newcor Bay City plant closed and the Union was notified of such
fact by the Company’s February 11, 2008 letter. Accordingly, since the two were not active
employees at the time of their respective retirement applications, they both were not entitled to
the supplemental—bridge money—pension benefit.
Conklin also acknowledged that irrespective of the Company’s position regarding West
and Page’s ineligibility for the bridge money, three other former employees who retired similarly
to West and Page had been determined to be eligible for this supplemental benefit. However,
Conklin testified that these authorized payments were made by mistake. He explained.
Conklin identified the three retired employees mistakenly authorized to receive bridge
benefits as Rodney Ruse, Dale Sigmund, and Terry Schmidt. According to Conklin, Ruse,
Sigmund, and Schmidt were all terminated on February 8, 2008, like West and Page, and began
receiving their retirement benefits to include the bridge money on April 1, 2008, in the case of
Ruse and Sigmund, and on September 1, 2008, in Schmidt’s case.61
Conklin noted that like West and Page, Ruse, Schmidt, and Sigmund were terminated
on February 8, 2008, when the plant closed and the three applied for their retirement after that
date when they were clearly not active employees as required by the contract to receive bridge
monies. Conklin stated that he was not involved in the processing of the three men’s retirement
applications. However, when West and Page applied for retirement, Scott Wright, the human
relations director, contacted him questioning their eligibility. According to Conklin, both he and
Wright discussed the matter and determined that West and Page were not eligible for the bridge
supplement, but further that Ruse, Schmidt, and Sigmund had been mistakenly extended these
benefits because they, too, were not active employees at the time of their retirement. Conklin
conceded that in spite of the mistake, the three continue to receive those benefits and the
Company has not taken any steps to correct the situation, largely because of the continuing
litigation surrounding this matter. Conklin went on to say that, nonetheless, the Company did
not want to repeat the mistake and give West and Page benefits to which they were not
entitled.62
Regarding West’s and Page’s termination, Conklin testified that the Company viewed its
notification by letter to the Union on February 11, 2008, informing it that the entire complement
of hourly workers was terminated, as sufficient notice to all employees under the contract.63
Conklin also stated that the Company took the view that the plant’s closure and sale of assets
constituted significant cause for the termination of the hourly workers.

61 See R. Exh. 49, Ruse’s authorization to the plan trustee; R. Exh. 50, Schmidt’s
authorization to plan trustee; and Sigmund’s R. Exh. 51. See also R. Exh. 48, a document
prepared by Conklin for the hearing listing the termination and retirement dates of nine
employees, including Ruse, Sigmund, and Schmidt as well as West and Page and the amount
of their monthly retirement benefits.
62 Conklin identified R. Exh. 52 as a copy of the letter Scott Wright sent to Local 496 (Kostal)
on February 5, 2009, stating its reason for not extending the bridge money benefit to West and
Page. Conklin stated that he was aware that the letter was sent to the Union.
63 Conklin again referred to Sec. 7.2 of the contract which required the Company to notify
the Union of all discharges.
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Conklin went on to say that the Company believed that it was unnecessary to notify the
employees individually because the Union, as the employees’ representative, was responsible
for notifying its members of their termination.
Conklin also stated that both Page and West received their vacation pay in February
2008, when ordinarily they would receive this in June of the contract year. Conklin implied that
they should have realized that they had been terminated in February 2008. Furthermore,
Conklin noted that the Union and Company began “effects” bargaining over the payouts
associated with the termination in April 2008; it should have been clear to all that the payouts to
employees in February were due to the plant closure and the termination of the hourly
employees.
Conklin also emphatically denied that West and Page were laid off and therefore did not
fall within the coverage of Section 4.6(A)(5) which states that an employee loses his seniority by
being, inter alia, continuously laid off for 3 years.64 Conklin stated that West’s and Page’s
seniority was broken under Section 4.6(A)(2) because they were discharged (terminated) on
February 8, 2008, and on this score were not active employees entitled to the bridge benefit
when they applied for retirement money months later.
Conklin testified that in his view West and Page actually were deferred retirees because
their retirement application occurred after their termination date,65 and would not be eligible for
the bridge money.
VII. The Positions of the Parties
A. The General Counsel’s Position
The General Counsel asserts that this matter presents essentially two issues:
1. Whether the Respondent constructively forced the six retirees, Bean, Gasta, Moore,
Pomaville, Rinz, and Schmidt, into retirement effective June 10, 2004, because of its
established and known intention to implement its last offer (later determined to be an unlawful
act) at the time of the expiration of the parties’ agreement, and should make the six retirees
whole for their losses of benefits; and
2. Whether employees West and Page are entitled to their supplemental pension
benefits—the bridge money—because of the Respondent’s failure and refusal to comply with
the Board’s Order to retain these contractual terms and conditions of employment.

64 However, the section provides that employee with more than 3 years’ seniority will retain
their seniority time for time up to 5 years.
65 Conklin stated that when an employee has become vested in the retirement plan—
working for the Company for at least 5 years—but for whatever reasons terminates his
employment voluntary or nonvoluntary before his earlier retirement date (55 years of age), he
can upon reaching that age apply for his retirement benefits and is said to be a deferred retiree.
According to Conklin, deferred retirees are not considered active employees because they were
not employed or in a layoff status with unexpired seniority at the time they applied for retirement
benefits. By not being active, such a deferred retiree would not be eligible for the bridge money.
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The General Counsel submits that the Board’s Order explicitly required the Respondent
to reinstate all prior terms and conditions of employment prior to June 11, 2004, and to maintain
in effect those terms until the parties bargained to an agreement or reached a valid impasse.
The General Counsel further submits that the objective in compliance proceedings is to restore
the status quo ante to the extent possible to where the parties stood with respect to one and the
other prior to the conduct determined to be unlawful, and that any uncertainties attendant to this
effort should not be resolved in favor of the wrongdoer, here Newcor Bay City. The General
Counsel contends that on this record, the six retirees were clearly constructively discharged
(retired) by and through the unlawful conduct of the Respondent.
The General Counsel concedes that the case of the six retirees presents a rather novel
situation in that here each retiree (employee) was forced to make a decision about his continued
employment regarding benefits they had already earned but could lose, whereas in the normal
situation for purposes of a constructive discharge employees have to make an employment
decision with regard to future possible terms and conditions of employment to determine if they
are tolerable. The General Counsel asserts that, nonetheless, the six retirees faced a classic
Hobson’s choice—retirement before implementation and save their earned benefits or continue
working under the Respondent’s last offer and lose those benefits with an undisputed value of
as much as $18,000.
The General Counsel submits that employees in the position of the six retirees should
not have to wait until after the Respondent commits an unlawful labor practice in order to protect
their already earned benefits.
The General Counsel notes that in the instant case the Respondent waited until 7 p.m.
on June 10, after regular business hours, to implement its last final offer when, in fact, the
decision to implement was made much earlier.
The General Counsel essentially contends that in this case the six retirees should not be
held to an automatic or per se rule that would require them to have applied for their already
earned retirement benefits after the Respondent’s formal announcement of its intent to
implement its final offer—later determined to be unlawful—in order to receive the benefit of the
Board’s make-whole remedy. The General Counsel submits that such a rule could result in a
win-win situation for the Respondent and a major detriment to the retirees.
On this score, the General Counsel contends that if the implementation was deemed
legal the employees would have lost their vested benefits; but if deemed illegal, employees who
retired to protect their rights would have no remedy even though against their personal desires
and their economic interest they retired early. In short, the General Counsel contends that in
the pursuit of a proper make-whole remedy, the Respondent should not be advantaged by its
unlawful conduct, and to a certainty, nor should the retirees here suffer a detriment because
they sought to protect benefits earned under the contract the Board (and the court) ordered
reinstated.
The General Counsel argues that West and Page are entitled to the bridge money
supplement retirement benefit because the Board’s Order required reinstatement of the 2001–
2004 contract in all of its terms and conditions and to maintain those terms until the parties
bargained to an agreement, or came to a valid impasse, or the Union agreed to changes.
Noting that the contract’s terms indisputably included the bridge money benefit, the
General Counsel contends that the Respondent erroneously believes that the Company’s
closure of the Bay City plant and selling of its assets relieves it of its obligations under the
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contract. Moreover, according to the General Counsel, the Company erroneously contends that
West and Page were discharged upon closure of the plant and, pursuant to the contract at that
time, lost their seniority and eligibility for the bridge money.
The General Counsel counters, arguing that the closure of the plant did not render the
contract nugatory, and West and Page’s layoff status did not change, inasmuch as they were
not individually notified of their discharges by the Respondent. The General Counsel submits
that West and Page’s retirement while in layoff status differed in no relevant way from other
employees who retired after a period of layoff but still received the bridge money benefit.
The General Counsel points out that here, three employees who retired after the plant’s
closure are receiving the bridge money. Recognizing the Respondent’s claim that this was a
mistake, the General Counsel, nonetheless, asserts that Scott Wright, human resources
manager, processed the retirements of the three mistaken retirees. He notes that Wright held a
higher position than Conklin in the Company’s human relations hierarchy. The General Counsel
submits that Wright was the only person who could have adequately explained why the three
received bridge money and why West and Page were denied the same treatment. The General
Counsel further notes that Wright was available for testimony at the trial, but departed the
proceedings without being called by the Respondent. The General Counsel suggests that an
adverse inference could be drawn that Wright’s’ testimony would have been unfavorable to the
Company.
The General Counsel also submits that neither Wright nor Conklin possessed the
authority to deny West and Page the bridge money because the pension plan under Section 9.2
provides that the pension committee shall interpret and determine all questions arising under
the plan. He notes that neither Conklin nor Wright broached the matter to the pension
committee which under the extant provisions would more properly make a determination as to
whether West and Page were entitled to the supplemental benefit. The General Counsel
submits that under the plan, there is no justification for denying West and Page their bridge
money.
B. The Respondent’s Position
The Respondent essentially frames the issue involving the six retirees as follows: Are
the six retirees who voluntarily retired before the commission of the unfair labor practices
entitled to receive the supplemental retirements—bridge money—under the 2001–2004
collective-bargaining agreement as set forth in the compliance specification?
As to employees West and Page, the Respondent frames essentially the issue as
follows: Are West and Page who submitted their retirement applications over 10 months after
they were terminated by the Company entitled to receive bridge money as set forth in the
compliance specification?
The Respondent contends that the answer to both questions is that neither the six
retirees nor West and Page are entitled to an award of payments as set out in the specification.
Regarding the six retirees, the Respondent first notes that Region 7 initially determined
that the six employees voluntarily retired before the commission of any unfair labor practice by
Newcor Bay City and were not constructively discharged (retired) so as to be entitled to
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backpay.66 The Respondent noted that the Region’s decision was a reversal of its earlier
decision that the six retirees were entitled to backpay.
However, the Respondent notes that the Union appealed the Region’s decision to the
Board which on April 24, 2009, issued an order remanding the matter to the Region to address
the issue at a hearing as part of the pending compliance proceedings and develop a factual
record on the relationship, if any, between the Respondent’s unfair labor practice and the June
retirees’ decisions to submit their applications for retirement on June 9 and 10, 2004.67
The Respondent contends that although the Board’s Order did not explicitly find that the
six retirees were entitled to inclusion in the class of employees’ entitled to the make-whole
remedy, the Region, nonetheless, included them in the Fifth Amended Compliance specification
without first developing a factual record. The Respondent asserts the Region improperly
assumed their inclusion in that class in opposition to the Board’s direction to develop a factual
record that would permit a determination of whether the six should be included in that class.
The Respondent argues that to include the six in the class before the development of a factual
record was inappropriate and violative of the Board’s remand order.
The Respondent also asserts that the ruling by only two Board members (Chairman
Liebman and Member Schaumber) is unlawful under 29 U.S.C. §153(b).
Moving on to the issue of whether the six retirees are entitled to make-whole relief, the
Respondent asserts that when an employer unlawfully declares impasse and implements a final
offer, the remedy addresses the time period after the commission of the unfair labor practice
because the make-whole remedy relates to the “results” of the unlawful conduct. The
Respondent submits that the Board’s Order in the instant proceeding conforms to traditional
remedy, that is, to make the Newcor employees whole for any losses they suffered as a result of
the Company’s unlawful action.
The Respondent notes that even the General Counsel concedes that the six retirees
voluntarily retired in anticipation of the Company’s possible future action adversely affecting
their retirement benefits, and not as a “result” of the Respondent’s unfair labor practices.
In short, the Respondent argues that the Company’s unlawful implementation did not
and could not logically have caused the six to retire because the unlawful act had not occurred.
The Respondent notes further that the Company’s proposal to eliminate the bridge
money was not in and of itself an illegal act. On the contrary, the Respondent asserts that its
proposal in this regard constituted a lawful collective-bargaining demand provable by the
Union’s failure to file a charge on this point as well as the Board’s decision not to include this
allegation in the complaint heard at the trial.

66 See R. Exh. 1, Region 7’s Reply to the Charging Union’s Request for Review of General
Counsel’s Denial of Its Appeal of Compliance Determination in which the Region, inter alia,
discussed at length the concept of constructive discharge and related theories presented in
varying cases that dealt with the issue and determined that in the case of the six retirees, it
could not prevail in a compliance proceeding because they voluntarily retired before the
Respondent’s commission of any unfair labor practices on the theory of constructive retirement.
67 See GC Exh. 1(mm).
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The Respondent avers that it had nothing to do with the decision of the six to retire and,
in fact, they retired in part based on the advice of the Union and in part based on their own
personal perceptions about what was transpiring in the ongoing collective-bargaining process.
The Respondent concedes that each man basically retired because of their perceived
uncertainty about what might happen in the collective-bargaining process and all were unwilling
to risk losing their bridge money benefits. However, the Respondent contends that the vagaries
of the collective bargaining going on at the time bear no causal relationship to the later
committed unfair labor practice findings.
The Respondent also contends that each retiree, except Bean, decided to retire up to
about 2 weeks before the commission of the unlawful acts by the Company. All in all, the
Respondent contends that each retiree made a rational and volitional decision to protect his
bridge money benefit before the contract expired. Each man essentially decided that retirement
served his interest more than any possible economic benefits associated with continued
employment with Newcor Bay City. In any case, the Respondent argues each retiree’s decision
was not in any way caused by or was the result of the Respondent’s conduct later determined to
be unlawful.
The Respondent also contends that the six retirees were not constructively discharged
or retired by dint of the Company’s proposing the elimination of the bridge money, a lawful
proposal, before 7 p.m. on June 10. The Respondent submits that even the General Counsel
could not find relevant Board authority to support a constructive retirement theory as applied to
the six. For instance, the Respondent notes that the six retirees never provided any formal
documentation to the Company that their retirements were conditional based on their concerns
about a future event, to wit, the elimination of their bridge money benefit. The Respondent
further points out that the underlying complaint did not include any reference to constructive
discharge or retirement. The Respondent argues that under the circumstances, then extant, the
six retirees were not faced with anything comparable to a Hobson’s choice of either resigning
(retiring), giving up their Section 7 rights, or otherwise working under conditions deemed so
difficult and unpleasant that they were forced to take the action they did. The Respondent
asserts that the proposed elimination of the bridge money posed nothing severe enough to be
deemed so difficult and unpleasant so as to force the six into retiring.
The Respondent submits that when the retirees elected to retire effective June 10, 2004,
they had no contractual right to rescind their retirements up to July 1, 2004. The Respondent
contends that, to the extent the General Counsels’ theory of permissible inclusion of the six in
the class of employees to be awarded payment under the compliance specification because of
this “right,” this is neither factually nor legally proper.
The Respondent contends that the Board’s April 29, 2009 order does not encompass
this theory, limiting the determination to be made to the development of factual record on the
relationship, if any, to the Respondent’s unlawful conduct and the six retirees’ decisions to apply
for retirement on June 9 and 10, 2004. What the retirees might have done after those dates, the
Respondent avers, exceeds the scope of the Board’s directive. Moreover, the Respondent
submits that the credible evidence regarding the retirees’ rights under the contract and pension
plan undercuts the very notion that they could have rescinded their retirements. In short, they
did not have any right to “unretire” (or conditionally retire) before July 1, 2004, and their
employment unequivocally terminated along with any seniority rights based on a proper
interpretation of the contract and pension plan; any assertion by the General Counsel to the
contrary is without merit.
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Turning to the matter of West and Page, the Respondent first contends that they are
also ineligible for the bridge money benefit because the collective-bargaining agreement ended
with the closing of the plant and terminated the bargaining unit employees’ employment on
February 8, 2008. Accordingly, the ending of the collective-bargaining agreement therefore
ended the contractual bridge money benefit for any of the bargaining unit employees like West
and Page.
Admitting that it (nor the General Counsel) could find direct Board authority for the
proposition that a collective-bargaining agreement does not survive the closing of a plant and
the termination of employees, the Respondent submits that, nonetheless, the case of Eazor
Express (271 NLRB 495 (1984)) provides a proper analogy for application to the facts here.
In Eazor Express, the Respondent notes that there was a lawful closure of the plant and
a lawful layoff of all the employees about 10 days before the parties’ contract expired. The
Board held that the Company violated Section 8(a)(5) by not providing requested information
pertaining to pre-expiration matters but not post-contract expiration matters.68
The Respondent alternatively asserts that West and Page were ineligible for bridge
money because under the contact they were not “actively employed” when they retired after the
plant closed and their employment was terminated on February 8, 2008.
The Respondent contends that Page admitted that he knew his employment had ended
when the plant closed on February 8. Moreover, the Respondent notes that Page filed an unfair
labor charge against Newcor and was informed by the Board that the employees were
terminated when the plant closed and the Company assets were sold for legitimate business
reasons. In this regard, the Respondent asserts that the closing of the plant constituted “cause”
for a termination69 and that the parties’ agreement specifically provided for termination of
employment for cause.
The Respondent asserts that the General Counsel’s and the Union’s claim that the
Company lacked “cause” to discharge the bargaining unit employees because they had done
nothing wrong (regarding their personal misconduct or in violation of work rules) is wrong and
misguided, because the plant’s work rules, as applied to the employees, do not even address
the closing of the plant. The Respondent asserts, however, that the management-rights
provisions of the contract between the Union and the Company encompass the right to close
the plant for economic reasons—in short, the “cause” here for the termination of the bargaining
unit employees.
Related to this point, the Respondent argues that any claim that the Respondent
continues to do business at the Bay City facility is completely without merit. The facts are plain
and indisputable—the Company sold its assets and closed the facility. Furthermore, the
Respondent asserts that Kostal’s testimony on this count was completely disingenuous and
intellectually dishonest and should be rejected, especially when he claimed that the Union

68 The Respondent also cited Rice Growers Assn. of California, 312 NLRB 837 (1993), as
being in accord with Eazor Express. In Rice Growers, an information request case, the plant
had been closed for about 2 months and the employees laid off, but the contract had not
expired. The requested information covered subcontracting and the Board ruled that since
there was no unit work to be subcontracted—there were no workers then employed—the
request was deemed irrelevant.
69 The Respondent cites Michigan legal and labor arbitration authorities for this proposition.
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viewed the employees as having been laid off for lack of work, but not terminated because the
employees were not individually notified of their “discharge.”
The Respondent asserts that the contract requires West and Page to be actively
employed at their retirement to be eligible for the bridge money benefit; and their active status
ended (contractually) when they were terminated on February 8, 2008. When West and Page
applied for retirement in December 2008, they did not meet the requirement for the bridge
money benefit. Accordingly, they should not be awarded the bridge money as set out in the
specification.
The Respondent acknowledges that the three former employees similarly situated to
West and Page indeed received the bridge money, but by a mistake. The Respondent argues a
mistaken payment to them should not convert West and Page from ineligible to eligible for the
bridge benefit. Citing Foster Transformer Co., 212 NLRB 936 (1974), the Respondent contends
that it should not be bound to continue in effect and practice an erroneous and inequitable plan,
procedure, or act based on a mistaken course.70
The Respondent contends that it had to decide between two unattractive options:
(1) discontinuing and recouping the erroneous payments to the three similarly situated
employees and while not initiating erroneous payments to West and Page; (2) not initiating
erroneous payments to West and Page to prevent a repetition of the erroneous payments, but
not correcting the previous errors at the present time to defer the correction of Ruse, Schmidt,
and Sigmund’s erroneous payments. The Respondent asserts it took the latter course as a
rational and reasonable business choice that should not be used to give West and Page a
benefit to which they are not entitled.
The Respondent conceded that the pension committee not only did not meet about the
bridge money determinations for West and Page, but also did not meet for the mistaken bridge
money recipients Ruse, Jerry Schmidt, and Sigmund.71
Applicable Legal Principles
A. The Law Applicable to Backpay Compliance Proceedings
With respect to compliance proceedings, the Board has established well-settled
principles governing the resolution of backpay disputes through its own and Court proceedings.
Generally, where an unfair labor practice has been found, some backpay is
presumptively owed by the offending employer in a backpay proceeding. La Favorita, Inc., 313
NLRB 902 (1994), enfd. 48 F.3d 1231 (10th Cir. 1005).

70 The Respondent also cites other authorities in support of the proposition that it should not
be bound by its erroneous interpretation of the eligibility requirements for plan benefits to
include Eagle Transport Corp., 338 NLRB 489 (2002), incorrect granting of wage increases to
some employees because of computer error; Daycon Products Co., 2010 NLRB Lexis 10,
restoration of agreed-upon wages to conform these to those previously negotiated by the
parties; and Uniflex Holdings, 2007 NLRB Lexis 1, inadvertently making erroneous payments to
a union pension fund for 13 months and correcting the error.
71 See R. Br. at p. 42, fn. 15.
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The objective in compliance proceedings is to restore, to the extent feasible, the status
quo ante by restoring the circumstances that would have existed had there been no unfair labor
practices Hubert Distributors, Inc., 344 NLRB 339 (2005); Alaska Pulp Corp., 326 NLRB 522,
523 (1998), citing Phelps-Dodge Corp. v. NLRB, 313 U.S. 177, 194 (1941).
The General Counsel’s burden is to demonstrate the gross amount of backpay due, that
is, what amount the employee would have received but for the employer’s illegal conduct. The
General Counsel, in demonstrating gross amounts owed, need not show an exact amount, an
approximate amount is sufficient. Laborers Local 158 (Worthy Bros.), 301 NLRB 35 (1991).
Thus, it is well established that any formula which approximates what the discriminatee would
have earned absent the discrimination is acceptable if it is not unreasonable or arbitrary under
the circumstances. Am-Del-Co., Inc., 234 NLRB 1040 (1978); Frank Mascali Construction, 289
NLRB 1155 (1988).
Once the gross backpay amounts are established, the burden shifts to the employer to
establish facts that would negate or mitigate its liability. NLRB v. Maestro Plastics, 354 F.2d
170 (2d Cir. 1965), cert. denied 384 U.S. 972 (1996). In short, the burden is on the employer to
show through a preponderance of credible evidence (Browning Industries, 221 NLRB 949, 951
(1975)) that no backpay is owed or that what is alleged to be owed should be diminished
because the discriminatee was unavailable for work or neglected to make reasonable efforts to
find interim work. Inland Empire Meat Co., 255 NLRB 1306, 1308 (1981), enfd. mem. 692 F.2d
764 (9th Cir. 1982). It should be noted, however, that a backpay claimant is not held to the
highest standard of diligence in seeking interim employment, but is only required to have made
reasonable exertions. Thus, an employer does not satisfy its burden showing that no mitigation
took place because the claimant was unsuccessful in obtaining interim employment, by showing
an absence of a job application by the claimant during a particular quarter or quarters of a
backpay period or by showing the claimant failed to follow certain practices in his job search;
e.g., reading and responding to job advertisements in newspapers. S. E. Nichols of Ohio, 258
NLRB 1, 11 (1984).
Regarding the issue of mitigation or a discriminatee’s duties to reduce his damages as a
result of an unlawful discharge, Board law is instructive as well as well settled.
A discriminatee is obliged to mitigate his backpay claim by searching for and/or obtaining
interim employment. Therefore while required to search for work, the discriminatee need not be
successful but must make an honest, good-faith effort to find work. Lloyd’s Ornamental & Steel
Fabricators, 211 NLRB 217 (1974).
The burden is on the employer to show that the discriminatee did not make reasonable
efforts to find work. Thalbo Corp., 323 NLRB 630 (1997); and it does not meet its burden by
merely presenting evidence of lack of success in obtaining interim employment or low interim
earnings. Westin Hotel, 267 NLRB 244 (1983).
Thus, the employer must affirmatively establish by a preponderance that the employee
failed to make reasonable efforts to find interim employment. December 12, Inc., 282 NLRB
475 (1986); Big Three Industrial Gas, 263 NLRB 1189 (1982).
In order to show good-faith effort and avoid a finding that he incurred willful loss of
earnings, the employee need not spend all of every day searching for employment or even
search in each and every quarter of the backpay period. Cornwell Co., 171 NLRB 342, 343
(1968). Laidlaw Corp., 207 NLRB 591, 601 (1973), enfd. 507 F.2d 1381 (7th Cir. 1974), cert.
denied 422 U.S. 1042 (1972). Therefore, the entire backpay period must be looked at to
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determine whether throughout the period there was, in light of all the circumstances, a
reasonable continuing search such as to foreclose a finding of willful loss. Cornwell Co., above.
at 343. As a practical matter, the employee must only make reasonable efforts to mitigate the
loss of income and is not required to undertake the highest standard of diligence. NLRB v.
Arduini Mfg. Co., 395 F.2d 420 (1st Cir. 1968); NLRB v. Miami Coca Cola Bottling Co., 360 F.2d
569 (5th Cir. 1966).
As the Board stated in Lundy Packing Co., 286 NLRB 141, 142 (1987):
It is well settled that the reasonableness of a discriminatee’s efforts to find a job and
thereby mitigate loss of income resulting from an unlawful discharge need not comport
with the highest standard of diligence; i.e., he or she need not exhaust all possible job
leads. Rather, it is sufficient that the discriminatee make a good-faith effort. In
determining the reasonableness of this effort, the discriminatee’s skills, experience,
qualifications, age, and labor conditions in the area are factors to be considered. The
existence of job opportunities by no means compels an inference that the discriminatees
would have been hired if they had applied. The respondent’s obligation to satisfy its
affirmative defense is to show a “clearly unjustifiable refusal to take desirable new
employment.” Uncertainty in such evidence is resolved against the respondent, as the
wrongdoer. [Footnotes omitted.]
In seeking objectively to reconstruct backpay amounts as accurately as possible, the
General Counsel may properly adopt elements from the suggested formulas of the parties.
Performance Friction Corp., 335 NLRB 117 (2001), citing Hill Transportation Co., 102 NLRB
1015, 1020 (1953).
Arriving at a proper backpay determination is often not an exact science or a precise
exercise. In Alaska Pulp Corp., supra, the Board stated that:
Determining what would have happened absent a respondent’s unfair labor practices . . .
is often problematic and inexact. Several equally valid theories may be available, each
one yielding a somewhat different result. Accordingly, the General Counsel is allowed a
wide discretion in picking a formula.
It is practically axiomatic in Board law that in the case of unlawful unilateral changes in
wages, hours, or other terms or conditions of employment, the Board will order that the status
quo ante be restored and that employees be made whole for any benefits the employer
unilaterally discontinued. Beacon Journal Publisher’s Co. v. NLRB, 401 F.2d 366 (6th Cir.
1968); Dorsey Trailers, Inc., 327 NLRB 835 (1999).
On the other hand, if the change involved the granting of a benefit, the Board will order
rescission of the beneficial change only if the union seeks such rescission. Fresno Bee, 339
NLRB 1214 fn. 6 (2003); KX TV, 139 NLRB 93 (1962); Innovative Communications Corp., 333
NLRB 665, 668–669 (2001).
Accordingly, in situations where the changes contain both a detriment and a benefit to
the affected employees, a status quo ante restoration order is conditioned upon the affirmative
desires of the employees as expressed through their bargaining representative. Children’s
Hospital of San Francisco, 312 NLRB 920, 931 (1993).
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Finally, any uncertainties or ambiguities must be resolved against the wrongdoer whose
conduct made such doubts possible. Teamsters Local 469 (Costal Tank Lines), 323 NLRB 210
(1997).
B. The Constructive Discharge (Retirement) Principle72
As a general proposition, a constructive discharge occurs upon a showing that the
employer established and implemented burdensome and unpleasant working conditions
causing the employees to resign, and these burdens and unpleasantness were imposed on the
employees because of their protected activities. Crystal Princeton Refinery Co., 222 NLRB
1068, 1069 (1976).
Accordingly, constructive discharges have been determined where an employer
restricted an employee’s movements and access, issued warnings, rescinded approvals of
leave, and reassigned her in retaliation for her union activities, causing her to quit;73 where an
employer threatened to kill an employee, locked him in a garbage truck for 2–3 hours, shot at
and hit him with a pellet gun in the context of his having testified at a fellow employee’s
grievance arbitration hearing, causing the employee to quit;74 where an employer’s transfer of
an employee to a more arduous assignment, reducing her hours, and harassing her because
she testified on behalf of the union in a representation hearing and had worn an apron with a
“Vote Yes” slogan in support of a union, causing her to quit.75
Constructive discharges have not been found where either there was no protected
activity or where the conditions and actions of the employer did not rise to the level of
unpleasantness or arduousness that would constitute a constructive discharge. The case of
Central Casket Co. (225 NLRB 362 (1976)) illustrates this point.
In Central Casket Co., an employer caught an employee soliciting fellow employees for
the union in violation of a company no-solicitation rule. Subsequently, the employer informed
the employee that such behavior could lead to his discharge and warned the employee that he
would be watching him due to his improper work habits and failure to keep proper worksheets.
After that day, the employee never returned to work, and after a week the employer sent the
employee a letter formally discharging him. The judge found the facts sufficient to conclude that
the employee was prompted to quit due to his fear of harassment and possible reprisals.
Finally, the judge determined that the employee was constructively discharged in order to upset
the union’s organizational campaign.
However, the Board disagreed with the judge’s findings. With respect to the judge’s
finding that the employee quit due to fear of reprisals and harassment, the Board found no
evidence that any employee had ever been subjected to harassment or reprisals for union

72 In addition to my own research covering this principle in this section, I have borrowed
freely from Region 7’s Reply To Charging Union’s Request For Review Of General Counsel’s
Denial Of Its Appeal Of Compliance Determination (R. Exh. 1), which in my view represents a
well researched exposition and analysis of the theory of constructive discharge as applied to the
retirees here.
73 Five Cap, Inc., 332 NLRB 943 (2000).
74 Pioneer Recycling Corp., 323 NLRB 352 (1997). See, also, La Favorita, Inc., 306 NLRB
203 (1992), employee constructively discharged because the employer issued warnings and
reduced his hours in retaliation for his testimony favorable to the union at Board proceedings.
75 Marshall Durbin Poultry Co., 39 F.3d 1312 (5th Cir. 1994).
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activity. The Board also found unconvincing the argument that the employee quit because of
the unlawful restriction on soliciting for the union because the employee had given the employer
an unrelated reason for not returning to work (illness). The Board reasoned that even if,
arguendo, it could accept the argument that the employee quit out of fear of harassment or
reprisals, “it does not follow that an employee’s quitting over a threatened restriction on union
activity is as a matter of law a constructive discharge.” The Board noted that a threat is not the
equivalent of the actual imposition of unlawful conditions of employment; “it [the threat] does not
in any meaningful sense render the conditions of employment so intolerable as to compel an
employee to leave his job.” Because the Board found that the employer may or may not have
acted on his threat to discharge the employee, the Board found the judge’s determination that
the employee was constructively discharged premature. Id. at 364.
The rationale of Central Casket was more recently upheld in Easter Seals Connecticut,
Inc., 345 NLRB 836 (2005). In Easter Seals Connecticut, Inc., an employee was given verbal
and written warnings for discussing the employer’s hiring decision with another employee. A
few days later, the employee resigned, telling her supervisor that it was due to “the ‘aggravation’
she had felt over the past 3 days.” The Board, agreeing with the judge, found that the
employee’s decision to resign was not a “Hobson’s Choice” situation because the employee,
when explaining to the employer her decision to resign, had not “indicate[d] that her decision
was based on her concern that, in order to keep her job, she would be required to forgo her right
to engage in protected activity.” Although the Board found that the employer had violated the
Act when it gave her the written warning, the Board found that the employee’s reason for
quitting was due to hurt feelings over her perception that she was being treated unfairly, not
over a “Hobson’s Choice” dilemma. As the Board stated, it would be “inappropriate to hold an
employer accountable for having constructively discharged an employee under a ‘Hobson’s
Choice’ analysis where the employee’s own testimony establishes that her decision to resign
was not, in fact, based on any ‘Hobson’s Choice,’ ‘either/or’ dilemma but rather on some other
fact altogether.” The Board also upheld the judge’s reliance on Central Casket’s holding that a
threat to restrict protected activity does not create conditions of employment “so intolerable as to
compel an employee to leave his job.” Id. at 842 (quoting Central Casket, supra at 363.)
In the instant case, while not perfectly on all fours with these authorities, the
Respondent’s conduct in the 2004 negotiations—to include its proposal to eliminate the bridge
benefit—was in my view more analogous to a “threat” (or possibility) of imposing a change in
the employees’ terms and conditions of employment, as opposed to an actual implementation of
such a change.
Notably, based on my research, constructive discharge has not been applied by the
Board where the employee quit or resigned (retired) from his employment prior to the
implementation of an unlawful change in his terms and conditions of employment. As noted by
the General Counsel (in R. Exh. 1), it seems that in all relevant cases involving constructive
discharge in the context of alleged violations of Section 8(a)(5) stemming from the unlawful
imposition of unilateral changes and 8(a)(3) discriminatory discharges resulting from those
changes (1) deal with resignations occurring after the unlawful changes were made;
(2) constructive discharges were alleged in the underlying complaint as 8(a)(3) violations
resulting from the 8(a)(5) violations; and (3) the unilateral changes were of such a nature to
present the employees with a Hobson’s Choice of resigning or giving up Section 7 rights.76

76 In Schwickert’s of Rochester, Inc., 343 NLRB 1044 (2004), where an employee resigned
after the employer’s unlawful implementation of unilaterally imposed changes, the Board found
a constructive discharge. But see, Essex International, 222 NLRB 121 (1976), where 15
Continued
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Discussion and Conclusions
It bears repeating that the essential objective in compliance proceedings, as I read the
Board authorities, is to restore to the extent feasible the parties to where they were situationally
and circumstantially as if there had been no unfair labor practices. Towards that end, we
operate between the polarities of two operative principles—the employee is not entitled to more
than he may be said to have lost, that is he cannot be unjustly enriched, and the employer
cannot or should not receive an advantage from its unlawful conduct. It is within this basic
framework that in some reasonable and rational way, the Board determines whether and how
an affected employee is to be restored to the status quo ante before the unlawful conduct, in
short to be made whole.
As has been stated, the result may not be perfect. In my view, it is like putting Humpty
Dumpty together again—even the most successful effort will leave the cracks showing. As to
the specification itself, there is no dispute from the Respondent in regards to its rationale and
general validity. Indeed, Richard Czubaj, the Board agent who devised the specification,
credibly testified about the methodology and general approach he employed in devising the
specification. And in my view, the resulting specification which went through several revisions
more than adequately sets out a rational and reasonable attempt to make the affected
employees whole. I would so find and hold that the specification is valid.
Of course, the Respondent does object, but not to the specification itself but only to
those persons who should be excluded in its view from inclusion; the six June retirees and West
and Page, consonant and consistent with the Board’s Order. So that is the primary issue
presented to me.
In summary, the Board’s Order determined that the Respondent violated the Act by
prematurely declaring an impasse in the bargaining between the parties and implementing its
last best offer. The first part of the Board’s Ordered remedy requires that the Respondent
restore in all respects the terms of the 2001–2004 contract that expired at midnight on June 10,
2004, and to maintain those terms until the parties have bargained to agreement or a valid
impasse or the Union agreed to the changes (of the last final offer).
The clear and logical import of the Board’s mandate at its core is to place (restore) the
parties, the Respondent and the Union, to where they were in terms of their respective
contractual duties and responsibilities prior to June 10, 2004; the Board’s Order also logically
restored the terms and conditions of the unit employees’ employment under that contract prior
to midnight June 10, 2004. Thus, the Board’s Order per force converted the six June retirees as
well as West and Page from retirees to employees,77 and for purposes of the six retirees,
employees contemplating whether to retire because of their perceptions of the ongoing
negotiations and the effect thereof on their earned retiree benefits—the bridge money.
_________________________
employees resigned en masse rather than strike in the context of the union’s dissatisfaction with
the employer’s last best offer, but without informing the employer that their decision was
conditional upon settlement of the contract dispute. The Board determined that these
individuals were not entitled to reinstatement.
77 This is an important but overlooked point because for purposes of the refusal-to-bargain
provisions of the Act, the Board has concluded that retirees are not considered to be employees
within the meaning of the collective-bargaining obligations of the Act. (See Chemical Workers v.
Pittsburgh Plate Glass, 404 U.S. 157 (1971).)
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With the foregoing analysis in mind, I would agree with the Respondent and Board Agent
Czubaj that as of June 9 or 10, the six retirees were not constructively discharged/retired but, for
simplicity, retired. I have reviewed the cases that raise this issue and in my view the
constructive retirement theory of inclusion posed by the General Counsel is simply not
applicable here with respect to the six retirees.
As noted, the theory essentially requires the Employer to have engaged in such
egregious conduct as to make the employee’s continued employment intolerable to the point of
a forced resignation; and the employee must have engaged in some protected activity.
In my view, the Respondent correctly argues that its conduct during the negotiations can
hardly be said to be intolerable or unpleasant as contemplated by the constructive discharge
theory. Moreover, in my view it cannot be gainsaid that the six retirees were engaging in any
Section 7 type activities as they contemplated retirement during the bargaining period.
Basically, each man was measuring the extent of his self-interest; that is, whether to risk losing
the bridge money benefit or retire and preserve it.
I would note that the Respondent’s conduct at the bargaining session—or the retirees’
perception thereof—clearly influenced their decision-making. However, be that as it may, the
Respondent’s conduct in my view (and apparently the Board’s) was not unlawful at the time the
retirees made their respective decisions. Accordingly, contrary to the General Counsel, the six
retirees in my view were not faced with the Hobson’s choice of staying with the Company and
enduring its imposition of onerous and intolerable working conditions (arguably elimination of
the bridge benefit) or retiring to preserve the already earned bridge benefit.
On balance, then, I would reject the applicability of the theory of constructive discharge
(retirement) in this case. I would note also in passing that based on my reading of the
applicable case authorities, the constructive discharge theory seems more apposite to the issue
of whether there is a substantive violation of the Act, rather than to the compliance proceeding
stage that relates to a post-violation remedy. As I see the compliance stage, at its core it
invokes the Board’s equity as opposed to its legal or substantive legal authority. Notably, to be
clear, I do not rest my rejection of the constructive retirement theory on this basis. Rather, as
noted, the case authority simply does not support its application in my view to the facts of the
instant matter.
However, my findings regarding constructive retirement do not resolve the issue of
whether the six retirees should be included in the compliance specification.
The Respondent, as noted, principally contends that they should not be included
because they voluntarily retired before the commission of the unfair practices. Accordingly, their
retirements cannot be the result of the unfair labor practices as expressed by the Board in its
amended order.78

78 As noted, the Board, in its remand order of April 24, 2009, directed the Regional Director
“to address at a hearing, as part or the pending compliance proceeding, and to develop a
factual record in the relationship, if any, (emphasis supplied) between the Respondent’s unfair
labor practices and the June retirees’ decision to submit their applications for retirement on June
9 and 10, 2009.” GC Exh. 1(mm). I will consider the Board’s amended order and the remand
order as a singular directive to essentially determine whether there is a sufficient connection
between the retirees’ decision to retire and the unfair labor practice findings.
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Consistent with the Board’s Order, I have considered the voluntariness issue, an integral
matter in my view, from the perspective of the retirees’ individual situations prior to midnight on
June 10, that is, what their individual mindsets were at that time. As I have set out in this
decision, each of the retirees addressed the retirement issue in his testimony.
First, I found each of the retirees eminently credible in their explication of what motivated
their respective decisions to retire. Each man directly answered all questions posed by either
party and to me they were forthright, sincere, and candid in their answers. Second, if there was
a single thread that ran through each man’s testimony, it was each man’s desire to continue
working for the Respondent; to a man, each did not really want to retire at the time. Third, the
retirees as a group and individually all said that they enjoyed their jobs, or were “too young” to
retire, were healthy and able to work, and only considered retirement because of what they
perceived as the Respondent’s obduracy with respect to its plan to eliminate the bridge money
which they individually candidly admitted was their primary concern for retirement purposes.
It is undisputed that under the contract the earliest an employee could retire was age 55
but at that age one was penalized and forfeited as much as 48 percent of the optimum
retirement benefits receivable at age 63. Bean was 55 years old on June 10 and one who
enjoyed his job and, as he said, would have gladly returned to work if the Respondent had not
implemented the last offer on June 10.
Pomaville, 59 years old on June 10, said he not only did not want to retire but continued
after his retirement to perform the same or similar work for Wright K.79
Gasta, also 59 years old on June 10 and subject to the 6-percent retirement penalty—
about 26 percent in his case—testified that he, too, enjoyed his job and was not ready for
retirement and would not have done so were it not for the Company’s last and final proposal
eliminating the bridge money.
Moore, while 61 years of age, nonetheless, had no retirement plans until June 2004,
because he was in his mind healthy, felt good, and enjoyed his job and believed he could return
to work before July 1, 2004.
Schmidt, a long time employee but only 59 years old in June 2004, said that he loved his
job but only considered retirement to protect his bridge money benefit.
Rinz was only 57 years old in June 2004, but he, too, decided to retire because he heard
that the Company was going to eliminate the bridge benefit at the expiration of the current
contract, a “hot topic” around the plant at the time along with the rumor the Union was doing
poorly in the negotiations. Rinz said that he would not have retired but would have kept working
if the contract had been extended, the practical effect of the Board’s Order, I should add. Rinz
believed he was too young to retire and lamented that at the time his retirement cost him 38
percent of his retirement benefits. However, he believed he had to protect his already earned
retirement benefits—the bridge money—which would be eliminated on June 10. Rinz, too,
believed that he could return to work before he received his first check on July 1 and at that time
if the contract were extended, he could rescind his retirement.

79 I would find and conclude that for purposes of the compliance specification, Pomaville
clearly made more than reasonable efforts to mitigate any losses attributable to the
Respondent’s unlawful conduct.
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I think that few people would disagree with the notion that an employee’s decision to
retire from gainful employment should indeed be the product of his own thoughts and personal
considerations, and be generally free of extraneous outside influences. Many people retire for
many different reasons, all of which may result in a voluntary decision to end their employment.
In all candor, a possible change in one’s eligibility for pension benefits could in my mind under
ordinary circumstances influence one to retire and yet preserve the voluntary nature of the
decision. Then, too, one can elect to retire, influenced in part or entirely on a mistaken notion or
interpretation of the rules governing the specific retirement plan, and yet the voluntariness of the
personal decision can be objectively maintained.
Along these lines, the Respondent contends that the six retirees retired voluntarily
because they did not want to take a chance on losing their bridge money benefits as proposed
by the Respondent in the course of the negotiations. The Respondent also contends that to the
extent the retirees relied on the Union’s erroneous interpretation of the pension plan as well as
the retirement application form, that was also a function of the decision-making process they
employed and was voluntarily undertaken by them in deciding to retire. In short, the
Respondent contends that the six June retirees each and all assessed the benefits and costs of
the retirement decision and decided to retire to protect their respective financial interests without
the active influence of the Company.
At the hearing, I focused on the testimony of each retiree with a view toward gaining an
understanding of his state of mind regarding retirement during June 2004 as the old contract
was about to expire, and prospects clearly dimming for either an extension or a new agreement
that could preserve their already earned retirement benefits. It seems abundantly clear to me
that neither of the six was of a mind to retire in June 2004 absent the general perception that the
Union was not faring well and that bargaining cuts in benefits were in the immediate offing. As
the contract expiration date approached and an extension unlikely, each retiree individually
decided to commence the application process. As June 10 neared, each retiree, nevertheless,
clung to the hope that the contract would be extended, and some believed—mistakenly in my
mind—that the retirement decision could be rescinded.80
Additionally, it is clear to me from their respective testimonies that the retirees were
individually simply not ready to retire from the jobs they said they enjoyed and were healthy
enough to perform. In this regard, I took the opportunity to make a careful observation of the
retirees who attended each day of the hearing. Although about 6 years has passed since June
2004, each of the retirees seemed fit and capable of working their same jobs today. Surely
when they were 6 years younger, they were more capable of working their jobs and, notably,
each man worked a full shift on June10, 2004.
I would find and conclude based on this record that the six June retirees did not
voluntarily retire on June 9 and 10 as the case may be, but each retiree’s decision was unduly
influenced by the Respondent’s obdurate proposal to eliminate their pension benefits, more
particularly, the bridge benefits. Thus, I would further find and conclude that the Respondent’s
unlawful implementation of its last proposal, which included the elimination of the bridge money,
had a direct relationship to each retiree’s decision to retire. Accordingly, I would recommend

80 Parenthetically, while I would agree with the Respondent that the pension plan contained
no such rescission rights or anything approaching a “conditional” retirement, nonetheless, this
mistaken or misplaced belief again in my view militates against the voluntariness of the decision
reached by the retirees who entertained such thoughts.
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that each of the six June retirees be included in the class of employees entitled to a backpay
award as set out in the specification.
Turning to West and Page, in contrast to the six retirees I would recommend that they
not be awarded the bridge money retirement benefits as incorporated in the specification.
At the hearing there was much discussion about the Newcor pension plan and the
process by which pension benefits were determined and authorized for all applicants for
retirement. Distilling the testimony from Kostal and Conklin, by virtue of their respective roles
and experience with the plan’s operation, both men provided credible testimony for purposes of
understanding the retirement process and its application to the situation presented by West and
Page, and perhaps others similarly situated.
In summary, an applicant for retirement fills out and submits an application form
indicating his desire to retire. Once this is done, the application is considered by the pension
committee, consisting of four members—two representing the employer, Newcor, and two
members appointed by the Union.
The pension committee is charged with administering the plan and toward that end
establishes rules for the administration of the plan and the transaction of its business. More
importantly and to the point, the pension committee:
[S]hall interpret the plan and shall determine all questions arising in the administration,
interpretation, and application of the plan, and all such determinations by the Pension
Committee shall be conclusive and binding on all persons. Notwithstanding the above,
in the event that the claim of any person to any payment benefit under this Plan shall be
denied, the Pension Committee shall as soon as it is practical (i) notify the claimant in
writing of the denial in a manner calculated to be understood by the claimant, and setting
forth a reasonable procedure whereby the claimant may request a full review of such
denial, and (ii) afford a full and fair review of the decision denying the claim, if the
claimant requests such a review. [Art. 9, Sec. 9.2.]
Additionally, the pension plan sets out certain procedures under which it shall operate.
In this regard, Section 9.3 of the plan provides as follows:
9.3 Procedures of the Pension Committee. Every decision and action of the
Pension Committee shall be valid if concurred in by a majority of the members then in
office. To constitute a quorum for the transaction of business there shall be required to
be present at least two members of the Pension Committee including at least one Union
Member and one Employer Member. At all meetings of the Pension Committee, the
Union Members and the Employer Members present shall have equal voting strength.
The votes of any absent member(s) shall be divided equally between the members
present and appointed by the same party, or if only one member appointed by a party is
in attendance, then he shall have voting strength equal to the total number of members
appointed by such party. The Pension Committee shall elect a Secretary, who may or
may not be a Participant of the Plan or a member of the Pension Committee and any
other officers deemed necessary, and adopt rules governing its procedures not
inconsistent herewith. The Pension Committee shall keep a permanent record of its
meetings and actions. In the event of a voting deadlock, an Impartial Chairman shall be
selected by mutual agreement of the Employer Members and the Union Members of the
Pension Committee. The Impartial Chairman shall vote only for the purpose of breaking
a deadlock. In the event of a deadlock and the inability of the Employer Members and
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the Union Members of the Pension Committee to agree upon an Impartial Chairman, the
decision as to an arbitrator shall be made promptly in accordance with the rules of the
American Arbitration Association or Federal Mediation and Conciliation Services. The
fees and expenses of the Impartial Chairman and/or arbitrator shall be paid from the
Trust Fund.
Section 9.5 of the pension plan, it should be noted, places certain limitations on the
authority of the pension committee, most notably in terms of administering the plan in a
nondiscriminatory way. This section provides (in pertinent part) as follows:
9.5 Limitations on Authority of Pension Committee. The Pension Committee
shall not take action or direct the Trustee to take any action with respect to any of the
benefits provided hereunder or otherwise in pursuance of the powers conferred herein
upon the Pension Committee which would be discriminatory in favor of Participants or
Employees who are officers, shareholders, or highly-compensated employees or which
would result in benefiting one Participant, or group of Participants, at the expense of
another, or in the application of different rules to substantially similar sets of facts.
As noted earlier, the Board’s Order restored the parties’ 2001–2004 contract (and
pension plan) from which the foregoing terms were extracted. Accordingly, contrary to the
Respondent and in agreement with the General Counsel and the Union, this contract was not
rendered nugatory by the closure of the Bay City plant and the termination of the unit
employees.
As the Board’s Order clearly states, the 2001–2004 agreement remained in effect until
certain stated events took place—the partial agreement, valid impasse, etc. A closure of the
plant and termination of the employees is not mentioned. In fact, at the time of the hearing the
parties were engaged in “effects” bargaining over the consequences of the closure of the plant.
So it is clear that the contract remained in force and effect to date, irrespective of the
Respondent’s view to the contrary, as argued in its brief.
Along these lines, the General Counsel raises in my view a valid point, that is, based on
the contract and pension plan, the Respondent was not free to make a unilateral decision to
either grant or deny a pension applicant’s request for benefits. To that extent, I should note that
the Respondent’s claim of mistaken retirement authorizations to the three unit employees
similarly situated to West and Page is likewise valid. In my view, the mistake should not be
repeated in these compliance proceedings, especially where the restored contract specifically
deals with problems of this sort.
The Respondent concedes that the pension plan committee did not meet to consider the
applications of the three mistaken retirees, nor of course did it meet to consider the applications
of West and Page. In my view, this poses a possible violation of the pension plan procedures.
However, this possible violation or noncompliance with the plan procedures by the Respondent
is not remediable by resort to the instant compliance specification.
As I have noted, employees as a matter of principle are entitled to be made whole but
not unjustly enriched as a result of the commission of an unfair labor practice. Here, as I view
the matter, Page and West, for purposes of their claim to bridge money benefits, are solely
entitled to the benefits of the restored contract and the pension plan, including rights conveyed
to them where their claim to benefits is denied, as set out hereinbefore.
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It would be my finding and conclusion that an award to West and Page of the bridge
money benefit by me, pursuant to the specification, would result in their receiving more than that
which they are entitled by way of the make-whole remedy. Accordingly, I would find that the
specification to the extent it calls for awarding either West or Page bridge money benefits is
invalid, and I would strike those amounts in question from the award amount called for by the
specification with respect to West and Page.
I would note in passing that West and Page are not without a remedy since under the
contract and pension plan, they have certain “appeal” rights which at least on this record have
not been pursued by either man.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended81
ORDER
The Respondent, Newcor Bay City Division of Newcor, Inc., Bay City, Michigan, its
officers, agents, successors and assigns, shall make the following persons whole by paying
each the following amounts.82
James R. Aumend $8,135.45
Robert Jackson $8,281.25
Robert Maida $3,074.45
Craig M. Page $13,214.57
Jeffrey Ryan $11,641.11
Joseph Schwartz $1,363.68
Todd Stodolak $4,808.56
Robert W. Bean $27,555.33
Richard Pomaville $43,458.36
Scott B. Dennis $7,725.51
Joseph Kanicki $2,427.96
John C. Martin $1,211.96
Kenneth Reinhardt $258.80
George Sawade $3,794.11
Thomas Seidel $3,988.71
Rodney Thompson $24,997.49
James E. Gasta $31,348.22
Ronald Rinz $14,209.66
Terrance Hartley $4,157.52
Gary Letzgus $27,576.08
Thomas Martindale $5,089.65

81 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
82 I have found the specification herein to be an eminently rational, fair, and reasonable
approximation of the backpay owed to the named persons. However, there may be
mathematical errors on my or the compliance officer’s part. I would recommend as part of this
Order that any purely mathematical error contained herein be self-correcting without further
order or action by me.
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Rodney Ruse $13,470.72
Terry L. Schmidt $4,592.76
Dale Sigmund $5,592.67
John A. Van Hurk $4,133.73
Thomas West $96,000.00
James F. Moore $20,360.84
Thomas R. Schmidt $77,772.67
John Dahn $5,787.60
Scott Dewyse $991.20
Randall Rezler $3,113.64
Douglas Dewyse $2,699.62
Robert Liss $1,520.76
Michael Ziolkowski $2,178.00
The Respondent also owes $54,000 for Sub Fund contributions.
All amounts are exclusive of applicable interest.
So Ordered.
Dated, Washington, D. C. July 21, 2010
____________________
Earl E. Shamwell Jr.
Administrative Law Judge