Royal Norton Manufacturing Co.

National Labor Relations Board - Board Decisions

Mar 31, 1971

189 N.L.R.B. 489 (N.L.R.B. 1971)

ROYAL NORTON MFG. CO. 489
Royal Norton Manufacturing Company and Local
Union No. 428, A/W International Union , United
Automobile , Aerospace, and Agricultural Imple-
ment Workers of America (UAW). Case
25-CA-3595
March 31, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
On August 4, 1970, Trial Examiner Eugene E.
Dixon issued his Decision in the above-entitled
proceeding, finding that Respondent has engaged in
and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter,
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief, and the General
Counsel filed a brief in support of the Trial Examin-
er's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated it s
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, I and recommendations of the
Trial Examiner, except as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
Respondent, Royal Norton Manufacturing Compa-
ny, its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order, with the following modifica-
tions:
1. Delete paragraph 2(a) of the Trial Examiner's
Recommended Order and insert the following:
" (a) Offer to all employees who were deprived of
work by the removal of Respondent's Elkhart plant
immediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially
equivalent positions (with necessary traveling and
moving, expenses for them and their families and their
household effects to Shipshewana) without prejudice
189 NLRB No. 71
to their seniority or other rights and privileges in the
manner provided in the Remedy section of the Trial
Examiner's Decision."
2. Delete the fifth full paragraph of the notice and
insert the following:
WE WILL offer to all employees who were
deprived of employment as a result of the removal
of our Elkhart, Indiana, plant immediate and full
reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other
rights and privileges previously enjoyed. Such
reinstatement will be offered at any plant we may
open in the Elkhart area. If no such plant is
opened, we will offer such reinstatement to our
Shipshewana, Indiana, plant, together with the
necessary traveling and moving expenses.
I We do not agree with footnote 15 of the Trial Examiner 's Decision
that supervisors are entitled to reinstatement Supervisors are not
employees within the meaning of Section 2 (3) of the Act Cf Better Monkey
Grip Company, 115 NLRB 1170, N LR B. v Talladega Cotton Factory, 213
F2d208(CA 5)
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE E. DIXON, Trial Examiner: This proceeding,
brought under Section 10(b) of the National Labor
Relations Act, as amended (61 Stat. 136), herein called the
Act, was heard at South Bend, Indiana, April 21, 22, and
23, 1970, pursuant to due notice.
The complaint was issued on February 26, 1970, by the
Regional Director for Region 25 on behalf of the General
Counsel of the National Labor Relations Board (herein
called the General Counsel or the Board) and was based on
charges duly filed and served on December 10, 1969. The
complaint alleged that Respondent had violated and was
violating Section 8(a)(1), (3), and (5) of the Act. In its duly
filed answer Respondent denied the commission of any
unfair labor practices.
Upon the entire record in the case and from my
observation of Milan R. Burger, Respondent's president
and the only witness who testified, I make the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
At all times material herein Respondent has been a
corporation duly organized under and existing by virtue of
the laws of the State of Illinois. Until approximately
October 31, 1969, Respondent maintained a plant and
place of business in Elkhart, Indiana, herein called the
Elkhart plant, where it engaged in the manufacture, sale,
and distribution of mobile home lighting fixtures and
related products. Since approximately September 2, 1969,
Respondent has maintained a plant and place of business in
Shipshewana, Indiana, herein called the Shipshewana
plant, where it has engaged in the manufacture, sale, and
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
distribution of mobile home lighting fixtures and related
products.
During the 12 months preceding issuance of the
complaint which is a representative period Respondent
manufactured, sold, and shipped from its Elkhart plant
and its Shipshewana plant finished products valued in
excess of $50,000 to points outside the State of Indiana.
During the same period of time Respondent in the course
and conduct of its business operations, purchased,
transferred, and delivered to its Elkhart plant and its
Shipshewana plant goods and materials valued in excess of
$50,000 which were transported to said facilities directly
from States other than the State of Indiana.
Respondent at all times material herein has been an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
it. THE LABOR ORGANIZATION
Local Union No. 428, a/w International Union, United
Automobile, Aerospace, and Agricultural Implement
Workers of America (UAW) is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
From 1964 to September 6, 1969, the Union, as certified
bargaining agent of all Respondent's production and
maintenance employees,' represented them under succes-
sive collective-bargaining agreements at Respondent's
Elkhart, Indiana, facility-the only one to that date being
operated by Respondent. The contract in effect during
the latter half of 1969 besides containing valid
union-security and dues-checkoff clauses, also contained a
60-day reopening clause.
In 1967 Milan R. Burger, Respondent's president, general
manager , and sole stockholder, acquired control of
Respondent. The credited evidence2 reveals that from the
time of Burger's takeover he made it clear to various of his
executive and administrative people that he did not want to
operate with a union and that he was going to endeavor to
eliminate the Union as bargaining agent of the employees.
Thus, in his first conversation with Burger in 1967 the latter
told Thomas Hoffman, then treasurer and purchasing agent
of Respondent, that he was desirous of getting the Union
voted out so he could run his own business. Two or three
months later Burger told Hoffman to find out what
employees would be favorably disposed towards getting the
Union voted out. During the contract negotiations of 1968
Burger instructed Hoffman and Kenneth Lytel, a consult-
ant on production, to tape record the Union's private
1 The appropriate unit as found by the Board included all production
and maintenance employees of the Respondent employed at its Elkhart,
Indiana, plant, exclusive of office clerical employees, guards, professional
employees, and supervisors as defined in the Act
2 Burger was the first and only witness to testify He was called under
Rule 43(b) of the Federal Rules of Civil Procedure by the General Counsel
who cross-examined Burger for 2-1/2 days At the end of that time an
arrangement was entered into by the parties whereby they agreed to
stipulate what facts certain named witnesses (if called by the General
Counsel) would testify to After the stipulation was set forth in the record
and agreed to no further witnesses were called and both sides rested The
facts which I recite and rely on herein are taken from stipulated exhibits.
admissions by Burger in his testimony, or from the above stipulation To the
caucuses which they did, unbeknown to the Union. During
the same contract negotiations Burger also told Hoffman
that he was willing to pay employee Mildred Hull
(ex-president of the Union) $500 to talk to the other
employees in an effort to discourage their membership in
the Union.3 On other occasions in the fall of 1968 and the
spring of 1969 Burger told Hoffman that he was going to
approach employees Mane Allen (chairman of the union
bargaining committee) and Helen Fulmer in an attempt to
get them to aid him in getting the Union out of the plant.
During the same period of time Burger frequently told
Hoffman that he wanted to move the plant in order to be
rid of his union problems.4
At the time Burger took over control of the Company,
Respondent was occupying leased premises at Elkhart,
Indiana, at a rental of $600 a month. The lease agreement
was for a period of 5 years terminating September 14, 1969,
and contained an option to purchase at a price not less
than $45,000 nor more than $50,000. On June 26, 1969,
after obtaining an appraisal of the property showing its
current value to be somewhere between $62,000 and
$70,000, Burger through his attorney wrote the lessors
indicating his intention to exercise the option. On July 3
the lessors replied to Burger claiming that because
Respondent had not complied with the terms of the lease
in certain respects the lease was being terminated and
immediate vacation of the premises demanded. On August
8 Burger sent a copy of the lease agreement to his attorney
and in his covering letter requested "prompt and definite
action" regarding negotiation for the purchase of the
property. Repeated offers by Burger's attorney to the
lessors to exercise the option were unanswered and on
August 15, Burger's attorney wrote him withdrawing from
the case and recommending that he drop the matter.
Sometime in October the lessors filed a court action to
recover possession of the property. Respondent filed a
cross-complaint for damages at which point the matter
rested at the time of the hearing herein. Sometime during
the summer of 1969 Burger told Hoffman that the lessors
were "running a bluff" and could not take the building
away from him.
Early in the month of July 1969, Burger told Hoffman
that he had just received three or four grievances
from employees (apparently pursuant to the collective-
bargaining agreement) and that these grievances to-
gether with the filing of unfair labor practice charges
against Respondent were the straw that "broke the camel's
back" and that he was going to use his lease problem as his
reason for moving the plant from Elkhart.5 Later in the
extent that Burger's testimony disagrees or contradicts the stipulated
testimony I do not credit Burger His testimony on the whole was
inconsistent , evasive, equivocal, and less than candid to such an extent that
at one point when the General Counsel asked me to compel Burger to
answer a question which he refused to answer I observed in effect that if
Burger thought he was doing his cause any good by the manner in which he
was testifying he was mistaken
3 Burger also made a similar statement to Lytel
4 On two or three occasions between April and June 1968 Burger made
similar statements to Lytel.
5 Apparently it was these grievances and unfair labor practice charges
that gave rise to his threat to employees at or about this time to take away
their bonus for such action on their part as admitted in his testimony
ROYAL NORTON MFG. CO.
month of July Burger told Hoffman that he had seen some
land in Shipshewana6 that he might consider putting a
building on.
In various conversations with his then sales manager,
Roger Bird, Burger told Bird that if he could move his plant
to Shipshewana he could hire Amish people and that it was
against the Amish religion to have a union and that that
would be a method by which he could get rid of the Union.
In another conversation with Hoffman, Burger said that it
was against the Amish religion to have a union and that he
would hire as many Amish people as he could in
Shipshewana.
About August 1, 1969, when Burger returned from a trip
out of the State he handed Hoffman a copy of a reported
decision of the National Labor Relations Board involving
the moving of a plant from Anderson, Indiana, to Upland,
Indiana, some 32 miles away,7 and instructed Hoffman to
read it saying that he was going to do what was outlined in
that case in order to move the plant and that the first thing
he was going to do was to tell the employees that he was
going to move the plant.
A few days later when Burger returned from Ft. Wayne
(where at Hoffman's suggestion he had gone on or about
August 10 to retain the attorney who had represented the
Employer in the Pierce Governor case), he told Hoffman
"that he had made a mistake in not notifying the Union
first and that he had already said too much."
Burger not only talked about his purpose to get rid of the
Union but he took action in this regard. Thus, sometime in
May 1969 he called employee Mane Allen into his office,
asked her how he could get rid of the Union, and stated that
he "would make it worth Mrs. Allen's while to get rid of the
union for him." In addition Hoffman, an officer of
Respondent, made illegal comments to Allen when, on
various occasions in the summer of 1969, he told Allen that
it was Burger's position that he would risk losing half of his
business in order to move the Company and get rid of the
Union.
On June 4 the Union wrote Burger demanding the names,
seniority dates, classifications, and hourly rates of the
employees in the unit-apparently in connection with
pending, contract negotiations. On June 6 Burger replied
supplying the information requested as to the first three
items but refusing to supply the hourly rates. This action
apparently gave rise to the filing of unfair labor practice
charges against Respondent which were subsequently
withdrawn.
According to Burger's testimony about 2 or 3 weeks
before he and his attorney met on August 21 with the union
negotiating committee, as will be shown, he had decided to
move his plant from Elkhart. His testimony also revealed
that the Pierce Governor case "was a consideration" in his
making the decision to move. According to his further
testimony, he began taking steps to close down and to move
to Shipshewana about August 10, the date that he went to
Ft. Wayne and retained the attorney who represented the
employer in the Pierce Governor case. In accordance with
this decision to move the plant, Burger had been
6 Shipshewana is about 23 miles from Elkhart
r The Pierce Governor Company, Inc, 164 NLRB 97
" At the August 21 meeting Union Representative Irving L Vincent had
491
negotiating for the purchase of some land in Shipshewana
through the Shipshewana State Bank . On August 22 he
signed a purchase contract for the Shipshewana land.
In the meantime on August 20 Attorney Strutz served a
notice of retainer by Respondent on the Union and also by
letter referred to a negotiation meeting to be held the
following day (apparently confirming a concurrent tele-
phone conversation) for the purpose of discussing the
proposed closing of the plant in Elkhart and its effect on the
employees covered in the contract.
The negotiation meeting was held on August 21 as
scheduled . At the meeting the following agenda was
distributed to each union representative by Respondent:
1. ECONOMIC REASON FOR RE-LOCATION
OF PLANT.
A. Notice of eviction and owners ' refusal to
acknowledge tenant's right to negotiate purchase.
B. Futile attempt to negotiate settlement of owners'
adamant position.
C. Company lawyer's opinion litigation would be
expensive and fruitless.
D. Community of Shipshewana to open plant there.
E. Availability of land at nominal cost ; availability
of modern efficient building at modest cost ; mortgage
funds available from local bank at reasonable costs.
2. EFFECT OF CLOSING OF PLANT ON BAR-
GAININT [sic] UNIT EMPLOYEES.
A. Adequate notice of plant closing to permit
employees to find suitable employment.
B. Separation pay.
C. Letters of recommendation to prospective
employers.
3. EMPLOYMENT OPPORTUNITIES AT NEW
PLANT IN NEW LOCATION. All interested employ-
ees are invited to make application at new plant
location for employment in new plant.
A. Every consideration will be given to each
application for employment.
B. Any employee hired at the new location (plant)
will have seniority retroactive to date of employment
with the company.
4. RECOGNITION. The Company will recognize the
UAW at the new plant if the majority of employees at
the new plant indicate they desire to have such
representation and the NLRB certifies this desire.
At the August 21 meeting between the Company and the
Union agreement was reached on the pending grievances,
on certain substantive matters pertaining to wages , hours,
and working conditions, and on the withdrawal by the
Union of the pending unfair labor practice charges.
Regarding the proposed plant removal apparently nothing
was agreed on other than that Respondent "agreed to give
advance notice to the Union of any contemplated changes
affecting the employees."
As for the proposed moving of the plant another meeting
took place on that matter on September 11 . 11 In the
meantime, on September 2 the employees were notified by
Respondent that it would be necessary to close the Elkhart
requested further discussion of the move but was not available for another
meeting until September I I
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant sooner than anticipated and that the week of
September 2 would be the last week of operation at Elkhart.
On September 5 Burger signed an order for the
construction of a building on the Shipshewana land that he
had purchased the day after the August 21 meeting with the
Union. On September 6 Respondent began hiring people
for the Shipshewana operation for which Respondent had
rented temporary quarters. Roger Bird and Office Manager
Vivyenne Reed who conducted the hiring interviews were
instructed by Burger to determine whether the applicant
had any "union background" or had been sent by the
Union and to explain to them that no union employees
would be hired and that the Shipshewana operation was
going to be nonunion. On September 8 the Union wrote
Burger demanding recognition as the bargaining agent at
the new plant and the application of the current Elkhart
collective-bargaining agreement to the new plant.
At the September 11 meeting between the Company and
the Union the Union's request of September 8 for
recognition and application of the current contract at
Shipshewana was discussed. The Company's position was
that it was not legally required to accede to the Union's
demands in this respect and that the question of
representation was dependent upon the preference of the
employees at Shepshewana. As for the employment rights
of the Elkhart employees at Shipshewana, the Company
indicated that it "would be willing to review all employee
applications when presented at Shipshewana." When the
Union asked what the wage rates at Shipshewana were
going to be, Burger in effect stated that he did not know but
that the information could be gotten from Respondent's
Van Tubbs who was in charge at Shipshewana. Respon-
dent's counsel added that the information could be put
together in about 6 weeks.9
On the following day, September 12, all the Elkhart
employees were laid off At the time all were union
members as a result of the union-security clause in the
collective-bargaining agreement. Notwithstanding the
layoff, production continued in the Elkhart plant to about
the last week of October This work was performed by
people hired for and working in the Shipshewana plant and
by management or nonunion people. On numerous
occasions the crew from Shipshewana would be transferred
to the Elkhart plant and worked long into the night to
complete orders that had to be produced.
In order to conceal the fact that production continued in
Elkhart after the September 12 layoff and that the newly
hired Shipshewana employees were involved in it Burger
had Hoffman block off the production area in the Elkhart
plant from view of the front office so that people coming in
could not see what was being done in the plant. One
employee among other, Betty Painter, on occasions when
she went from Shipshewana to perform packing and
production work in the Elkhart plant was instructed to wear
ordinary dress and to change into work clothes after getting
to the Elkhart plant and that if she was approached by
anyone and asked what she was doing to say that she was
an office worker. As additional subterfuges in this
connection Respondent caused the names of Shipshewana
workers at Elkhart to be blocked out in their timecards,
misspelled , or substituted with false or fictitious names. In
addition the Shipshewana employees were requested to use
carpools on traveling to work at Elkhart in order to have as
few cars as possible parked at the Elkhart plant thus
tending to conceal the number of workers involved.
Notwithstanding Respondent's efforts to conceal the fact
that work was continuing in Elkhart after the September
layoff, several of the laid-off employees sought reinstate-
ment at Elkhart on September 22. They were not hired even
though the work necessitated the assignment of Shipshewa-
na employees. Burger's testimony that skills were involved
that the laid-off employees did not have is not credited.
After the September 12 layoff and the start of the
operations in Shipshewana, Burger continued his illegal
antiunion conduct. Thus on September 17 he called at her
home former employee Kathleen Laughman who had been
among those terminated on September 12 and asked if she
wanted to work in Shipshewana. He conditioned the offer,
however, on her giving up the Union. Burger further stated
to her that it was the Union's fault that he was moving to
Shipshewana. On several occasions Burger also told the
employees at Shipshewana that the reason he had moved
from Elkhart was because of his trouble with the Union.
On one occasion Burger called the Shipshewana employ-
ees together and took a hand poll to see whether or not they
wanted a union When asked how many wanted a union no
one raised his hand. On another occasion Burger stopped
his truckdriver, Edward D. Brown, on the road somewhere
between Shipshewana and Elkhart. In the conversation that
ensued Brown asked Burger about some money that Burger
had promised Brown. Burger countered with a query
whether Brown's loyalty was with the Company or with the
Union and added that if it was with the Union Brown could
pick up his severence check with the other terminated union
employees.
The foregoing evidence clearly establishes that, regard-
less what economic justification Respondent may have had
as a result of its lease difficulties for terminating its
operations in Elkhart and relocating elsewhere, the decision
to make the move to Shipshewana was motivated almost
entirely by Respondent's desire and purpose to eliminate
the Union as bargaining agent of its employees and thus
avoid its bargaining obligations under the Act. Not only do
I find that the actual move violated Section 8(a)(5) of the
Act, but I further find that at no time here did Respondent
bargain in good faith with the Union (as required by the
Act) about making the move and its effect on the
employees. Notwithstanding the two meetings Respondent
had with the Union about the matter pursuant to the
elaborate agenda supplied by Respondent touching on all
the legal niceties the occasion demanded, the plain fact is
that prior to these meetings Respondent had already made
its decision to move and thus entered the discussions about
the matter with a closed mind negating the possibility of
good-faith bargaining on it. Its purpose was simply to go
through the motions of bargaining ostensibly to satisfy the
requirements of the Act.
In addition Respondent also violated its duty to bargain
9 At this time people were being hired in and working at Shipshewana
at a rate of 1 65 an hour
ROYAL NORTON MFG. CO. 493
by its failure and refusal to inform the Union what
information it clearly was able to supply about the wage
scale at Shipshewana. Not only did Respondent's move and
its surrounding circumstances constitute a refusal to
bargain as required by Section 8(a)(5) and 8(d) of the Act,
its actions in this respect I find also were discriminatory
within the meaning of Section 8(a)(3) of the Act. In
addition to these violations I also find that Respondent
independently interferred with, restrained, and coerced its
employees in violation of Section 8(a)(1) of the Act by the
following conduct: 10 (1) Burger's threat to the employees to
take away their bonus in retaliation for their filing
grievances of unfair labor practice charges against Respon-
dent; (2) Burger's offer of employment to Kathleen
Laughman conditioned on her giving up her union
membership; (3) Burger's statement to his truckdnver,
Edward Brown, that if his loyalty was to the Union rather
than Respondent he could pick up his severence paycheck
along, with the terminated union employees; and (4)
Burger's polling of the Shipshewana employees regarding
their union desires.
IV. THE REMEDY
Having found that Respondent violated the Act by
failing and refusing to bargain with the duly designated
collective-bargaining agent of its employees as required by
Section 8(a)(5) of the Act, by discriminating against its
employees because of their union membership, in violation
of Section 8(a)(3) of the Act, and by additionally and
independently interfering with, restraining, and coercing its
employees in violation of Section 8(a)(1) of the Act, I shall
recommend the usual cease-and-desist order.
As for what affirmatively Respondent shall be required to
do in order to restore the employees as nearly as possible to
their status with Respondent prior to the commission of the
unfair labor practices against them, the General Counsel
asks that the remedy be based on the Tnal Examiner's
Recommended Decision and Order In Garwin Corporation
et al., 153 NLRB 664.11 In that case, as here, the employer
during the term of a collective-bargaining agreement with
the union representing its employees terminated its
operations in New York City and relocated them in Miami,
Florida, in order to avoid continued recognition of and
bargaining with the union, thereby depriving its employees
of the exercise of rights guaranteed them in the Act and
thus violating Section 8(a)(1), (3), and (5) thereof. The Trial
Examiner, besides the usual cease-and-desist order,
recommended that the employer offer "all employees
discriminated against" as a result of the employer's move to
Miami reinstatement to their former or substantially
equivalent positions at a plant in New York City if the
employer resumed operations there, or at its Miami plant,l2
dismissing if necessary all employees at the Miami plant,
with provision for application of seniority or other
'0 Although these violations of Sec 8(a)(1) were not specifically pleaded
in the complaint, in the circumstances of the case I consider them as fully
litigated
i i 7 he General Counsel inadvertently refers to the case as Garvin Shoe
and, as will appear, is asking not for the Trial Examiner's Recommended
Order but his order as modified by the Board
12 1 he Trial Examiner concluded that it would not be practicable to
nondiscriminatory hiring in the event of curtailed opera-
tions or the application of a preferential hiring for future
available work. The Trial Examiner also recommended that
in the absence of reopened operations in the New York area
the employer offer to pay employees travel and moving
expenses to Miami for themselves their families and
household effects. In addition the Trial Examiner also
recommended that the employer be required to make all
employees, thus discriminated against , whole by payment
to them of the money they would normally have earned
from the date of their termination to the date of a valid
offer of reinstatement at any plant the employer might open
in the New York area, or if no such plant was opened to
date each secured substantially equivalent employment,
less net earnings during such period to be computed in the
manner set forth in F. W. Woolworth Company, 90 NLRB
289, and Isis Plumbing & Heating Co., 138 NLRB 716.
As for remedying the refusal-to-bargain violation the
Trial Examiner, analyzing the difficulties involved in
attempting to restore the status quo ante by the application
of the usual Board orders in the case of a "runaway
shop," 13 pointed out that, because the chances are meager
that a "runaway" employer will return to the original area
of operations or that any substantial number of the original
employees will accept employment in a distant new plant,
the "net result is that a `runaway' employer accomplishes
and retains the fruits of his primary illegal objective: an
unorganized plant." Nevertheless the Trial Examiner felt
"constrained" to limit the recommended order to the usual
8(a)(5) remedies pending the establishment of a new
approach by the Board. Accordingly, he recommended that
the employer be ordered to bargain with the union if the
employer relocated in the New York area. If the employer
did not relocate in the New York area he was to bargain
with the union in Miami only upon proof that a majority of
the Miami employees, including any who relocated from
New York, were union members.
In its decision the Board, accepting the Trial Examiner's
challenge to design a more effective remedy, modified this
portion of the Trial Examiner's recommended remedy and
ordered that the employer bargain with the union for a
period of 1 year either at New York if the company
relocated there or at Miami, regardless if it represented a
majority there or not after which an election to determine
the employees' desires in this respect could be held.
A three judge panel of the Court of Appeals for the
District of Columbia reversed the Board on this aspect of its
decision with one judge dissenting. On the assumption that
because of the distance involved, as well as other
considerations, very few of the New York employees would
be likely to make the move to Florida and that as a result
the union would not have a majority status there, the court
rejected the Board's reasoning that to deprive the employer
of the fruits of his wrongdoing it was necessary to require
his bargaining with the union at Miami even though such
order the employer to return its operations to the New York area
13 1 e, in moves of considerable distances requiring the employer to
bargain with the union if it reopens in the original area of operations or if
not to bargain "only upon proof" that the union represents a majority of
all unit employees in the relocated plant Sidele Fashions, Inc, 133 NLRB
547, 555-556, Industrial Fabricating, 119 NLRB 173-176
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requirement might impinge on the rights of the Miami
employees by imposing upon them an unwanted bargaining
agent . In the court's view the Board's attempt to
"discipline" the employer at the expense of the Florida
employees was arbitrary and, in effect, punitive rather than
remedial.
Here, as in Garwin, I find that to order Respondent to
move its operations back to Elkhart would not be in the
best interest of anyone.14 The case for an order to bargain
with the Union at Shipshewana is, incidentally, stronger
here than in Garwin in view of the differences in the
distances involved. Indeed, the Board has as a matter of
course ordered bargaining by "runaway" employers at their
new locations when the moves have not involved great
distances without any showing that the unions in question
actually represented a majority at the new locations. See
California Footwear, 114 NLRB 765; Cooper Thermometer,
160 NLRB 1902; Rapid Bindery, Inc., 127 NLRB 212.
Accordingly, I agree with the General Counsel that the
appropriate remedy here should be the same as was
imposed by the Board in Garwin. 15 Since this case does not
come within the jurisdiction of the District of Columbia
Court of Appeals its reversal of the Board on the bargaining
issue is no impediment to following the Garwin remedy
here. And the fact that the Board has not met with
unanimous approval of this approach by the courts may
serve to expedite a final determination of it by the Supreme
Court.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent, set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case, I
recommend that Respondent Royal Norton Manufacturing
Company its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively , upon request, with
Local Union No. 428 , a/w International Union, United
Automobile , Aerospace , and Agricultural Implement
Workers of America , (UAW), as the exclusive representa-
tive of all production and maintenance employees exclusive
of all clerical employees , guards, professional employees
and supervisors , as defined in the Act.
(b) Discouraging membership in the aforesaid labor
organization or in any other labor organization by
14 Among the considerations I have weighed in this respect is the small
size of Respondent 's operation and the fact it built and is occupying its
own plant at Shipshewana and is not in rented premises
15 The General Counsel asks for reinstatement of all employees
terminated on September 12, 1969 , and all employees (unit as well as
nonumt including supervisory employees) who quit or were separated
after August l"-the date that the General Counsel claims Respondent
announced its proposed move to Shipshewana, on the grounds apparently
terminating the employment of and refusing to reinstate
any of their employees or by discriminating in any other
manner in regard to their hire and tenure of employment or
any other term or condition of employment.
(c) Interfering with, restraining, or coercing employees by
threatening them with economic reprisals for exercising
rights guaranteed them in the Act or by illegally polling
employees or interrogating them about their union support
or sympathies.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to
self-organization, to form, join, or assist the above-named
Union or any other labor organization, to bargain
collectively through representatives of their own choosing,
or to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or
to refrain from any and all such activities.
2. Take the following affirmative action, which it is
found, will effectuate the policies of the Act:
(a) Offer to all employees who were deprived of work by
the removal of Respondent's Elkhart plant immediate and
full reinstatement to their former or substantially equiva-
lent positions (with necessary traveling and moving
expenses for them and their families and their household
effects to Shipshewana), without prejudice to their seniority
or other rights and privileges in the same manner as covered
in the discussion set forth in the section of the Decision
entitled "The Remedy."
(b) Make whole such employees for any loss of earnings
they may have suffered as a result of the discrimination
against them, as covered in the discussion in the section of
this Decision entitled "The Remedy."
(c) Notify the employees herein found to have been
discriminated against if presently serving in the Armed
Forces of the United States of their right to reinstatement
as provided herein in accordance with the Selective Service
Act and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(d) Preserve and upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Recommended Order.
(e) Bargain collectively, upon request, with the aforesaid
Local Union, as the exclusive representative of all
production and maintenance employees, excluding office
clerical employees, guards, and supervisors, with respect to
rates of pay, wages, hours of employment, and other
working conditions and, if any understanding is reached,
embody such understanding in a signed agreement.
(f) Send to each of the employees referred to in paragraph
2(a) above, by registered or certified mail, a letter offering
him reinstatement and setting forth Respondent's election
that all such separations were the direct result of the announced move
While all employees (unit or nonumt including supervisory) whose
terminations were the result of Respondent's discriminatory and illegal
move are entitled to reinstatement, there is no probative evidence to show
that Respondent announced its move as early as August I So far as I can
determine, the move was not made known until August 20 or 21 And I
find no evidence to establish that anyone who left before September 12 did
so because of the anticipated move
ROYAL NORTON MFG. CO. 495
as to when it will effect such reinstatement, and include in
such letter a copy of the attached notice marked
"Appendix." 16
(g) Post at its plant in Shipshewana, Indiana, copies of the
attached notice marked "Appendix." 17 Copies of said
notice, to be provided by the Regional Director for Region
25, shall, after being duly signed by Respondent, be posted
by Respondent immediately upon receipt thereof and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(h) Notify the Regional Director for Region 25 in writing,
within 20 days from the receipt of this Decision, what steps
Respondent has taken to comply herewith.18
16 In the event no exceptions are filed as provided by Sec. 102 46 of the
rules and Regulations of the National Labor Relations Board, the findings,
conclusions , recommendations , and Recommended Order herein shall, as
provided in Sec. 102 48 of the Rules and Regulations, be adopted by the
Board and become its findings, conclusions, and order, and all objections
thereto shall be deemed waived for all purposes In the event that the
Board's Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the National
Labor Relations Board" shall be changed to read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board'
17 If Respondent elects to resume its operations in the Elkhart area such
notice shall be posted at such new location.
18 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 25, in writing, within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
excluding office clerical employees, guards, and
supervisors as defined in the Act.
WE WILL NOT interfere with, restrain, or coerce our
employees by threatening them with economic reprisals
for exercising rights guaranteed them in the Act or by
illegally polling or interrogating them about their union
support or sympathies.
WE WILL NOT discourage membership of our
employees in the above-named Union or any other
labor organization by illegally discontinuing operations
or by discriminating in any other manner in regard to
their hire and tenure of employment or any term or
condition of employment.
WE WILL offer all employees who were deprived of
employment as a result of the removal of our Elkhart,
Indiana, plant immediate and full reinstatement to their
former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges
previously enjoyed. Such reinstatement will be offered
at any plant we may open in the Elkhart area. If no such
plant is open we will offer such reinstatement to our
Shipshewana, Indiana, plant, together with the neces-
sary traveling and moving expenses to Shipshewana.
WE WILL make all said employees whole for any loss
of pay suffered as a result of the discrimination against
them.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
right to self-organization, to form labor organizations,
to join or assist the above-named Union or any other
labor organization, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid and protection, or to
refrain from any or all such activities.
ROYAL NORTON
MANUFACTURING COMPANY
(Employer)
After a formal hearing before the National Labor Relations
Board, it was determined that Royal Norton Manufactur-
ing Company unlawfully moved its Elkhart operations to
Shipshewana, Indiana, where it resumed operations in
order to defeat the rights of its employees to bargain and
deal with a union of their choice (Local Union No. 428, a/w
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (UAW). In
order to remedy this conduct we have been required to take
the following steps:
WE WILL bargain collectively, upon request, with
Local Union No. 428, a/w International Union, United
Automobile, Aerospace and Agricultural Implement
Workers of America (UAW) as the bargaining repre-
sentative in the appropriate unit described below, with
respect to rates of pay, wages, hours of employment,
and other conditions of work and, if an understanding
is reached, embody it in a signed agreement. The
appropriate bargaining unit is:
All production and maintenance employees,
Dated By
(Representative) (Title)
Note: If any of our former Elkhart employees are currently
serving in the Armed Forces of the United States, we will
notify them of their right to reinstatement or transfer upon
application as provided herein after discharge from the
Armed Forces in accordance with the Selective Service Act
and the Universal Military Training and Service Act as
amended.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 614
ISTA Center, 150 West Market Street, Indianapolis,
Indiana 46204, Telephone 317-633-8921.