Sawyer of Napa

National Labor Relations Board - Board Decisions

Aug 27, 1996

321 N.L.R.B. 1120 (N.L.R.B. 1996)

1120
321 NLRB No. 151
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 363 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
There are no exceptions to the judge’s findings that the Respond-
ent violated Sec. 8(a)(1) by telling the employees that they may not
receive severance pay because the Union filed charges against the
Respondent.
We shall modify the judge’s recommended Order in accordance
with our decision in Indian Hills Care Center, 321 NLRB 144
(1996).
2 Transmarine Corp., 170 NLRB 389 (1968).
Sawyer of Napa, Inc. and Pacific Northwest District
Council of International Ladies’ Garment
Workers Union, AFL–CIO. Cases 20–CA–
23669 and 20–CA–23739
August 27, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On July 7, 1994, Administrative Law Judge Gerald
A. Wacknov issued the attached decision. The Charg-
ing Party and the General Counsel filed exceptions,
supporting briefs, and answering briefs. The Respond-
ent filed cross-exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions as modified and to adopt the recommended
Order as modified and set forth in full below.
AMENDED CONCLUSIONS OF LAW
Add the following as Conclusion of Law 4 and re-
number subsequent paragraphs.
‘‘4. By refusing to bargain with the Union with re-
spect to the effects on its tannery employees of its de-
cision to close its Napa tannery, the Respondent has
violated Section 8(a)(5) and (1) of the Act.’’
AMENDED REMEDY
We agree with the judge that the Respondent’s un-
timely withdrawal of recognition precluded meaningful
effects bargaining prior to the closure of the tannery.
We also agree with his recommendation that the
Transmarine2 remedy should be imposed, and that it
should be imposed prospectively from the date of the
Board’s Order. The judge, however, finds that the Re-
spondent did bargain to impasse over the effects of the
tannery closure while the settlement agreement was in
effect. The judge finds that as a result of this bargain-
ing the Respondent has already complied with that por-
tion of the Transmarine remedy requiring it to bargain
with the Union and that there is no reason to order the
Respondent to bargain again over the effects of the
tannery closure. Accordingly, the judge limits the rem-
edy to a requirement that the Respondent pay addi-
tional backpay to those laid-off or terminated employ-
ees who received less than 2 weeks’ backpay. We do
not agree with his conclusion that the remedy should
be so limited.
As the judge notes in his decision, on withdrawal of
a settlement agreement because of alleged noncompli-
ance, the parties revert to the same position as if there
had been no settlement agreement and a complaint is
issued on the underlying unfair labor practices. If a
violation is found, the respondent is subject in the first
instance to the customary remedies imposed by the
Board. In the instant matter, that means imposition of
the full Transmarine remedy.
In any event, the bargaining which occurred pursu-
ant to the settlement agreement did not comply with
the requirements of Transmarine. The Transmarine
remedy includes a backpay requirement designed not
only to make employees whole for losses suffered as
a result of the violation, but also to create in some
practicable manner a situation in which the parties’
bargaining is not entirely devoid of consequences for
the respondent. It provides that if there are delays in
the bargaining process, backpay increases until one of
the stated conditions is met, thereby insuring that the
consequences to the respondent are progressively
greater and that there is a corresponding enhancement
of the union’s bargaining strength.
The Respondent, throughout the bargaining, incor-
rectly took the position that the Transmarine remedy
is limited to 2 weeks’ backpay. It took this view de-
spite the Union’s repeated counseling that the Re-
spondent’s backpay liability was continuing to in-
crease. While the Respondent, after the settlement
agreement, did bargain concerning the effects of the
shutdown, it refused to acknowledge or accept its full
responsibilities under the Transmarine remedy. Ac-
cordingly, the Respondent did not suffer the full con-
sequence of the Transmarine remedy and the Union
was not accorded the full bargaining strength that the
Transmarine backpay provisions were designed to gen-
erate.
We are not, as asserted by our dissenting colleague,
finding that the Respondent was required to adopt any
particular position during effects bargaining. The Re-
spondent was free to take any position it wished with
respect to such bargaining. However, having volun-
tarily entered into a settlement agreement requiring
that the bargaining was to be conducted under the
terms of the Transmarine remedy, the Respondent was
not free to modify those terms by erroneously claiming
1121SAWYER OF NAPA, INC.
3 The Respondent asserts that the Union did not comply with its
obligation to bargain in good faith. There is insufficient evidence to
support that assertion. Further, as the wrongdoer, the Respondent
must first meet its obligations under Transmarine before it can claim
that the Union has failed to bargain in good faith. Because the Re-
spondent has continuously refused to acknowledge the full backpay
requirement, it has, as set forth above, failed to fully satisfy its obli-
gation to bargain. Therefore, it has no standing to assert that the
Union has failed to bargain in good faith.
We find no merit in the General Counsel’s and the Charging Par-
ty’s exceptions to the judge’s deduction of severance pay from the
backpay owed as a result of the Respondent’s 8(a)(5) violation.
W. R. Grace & Co., 247 NLRB 698, 699 fn. 5 (1980).
Contrary to her colleagues, Member Browning would not allow
the severance pay received by the employees to be deducted from
the backpay owed as a result of the Transmarine remedy. For the
reasons set forth in her further concurrence in Dallas Times Herald,
315 NLRB 700, 703–705 (1994), Member Browning would overrule
W. R. Grace, 247 NLRB 698, 699 fn. 5 (1980), to the extent that
it holds that such a deduction is proper.
4 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
that the Transmarine remedy was limited to 2 weeks’
backpay. When it did so, it failed to honor the settle-
ment agreement and deprived the Union of the full
bargaining strength it was entitled to under its provi-
sions. In these circumstances there was no legally cog-
nizable impasse.
Therefore, we find that the bargaining required by
Transmarine has not occurred under the required con-
ditions and that the full Transmarine remedy is re-
quired.3 Accordingly, we shall order the Respondent to
bargain with the Union, on request, about the effects
on its tannery employees of the Napa, California tan-
nery shutdown, and to pay these employees amounts at
the rate of their normal wages when last in the Re-
spondent’s employ from 5 days after the date of this
Decision until the occurrence of the earliest of the fol-
lowing conditions: (1) the date the Respondent bar-
gains to agreement with the Union on those subjects
pertaining to the effects of the closing on the employ-
ees at its Napa tannery; (2) a bona fide impasse in bar-
gaining; (3) the failure of the Union to request bargain-
ing within 5 days of this Decision, or to commence ne-
gotiations within 5 days of the Respondent’s notice of
its desire to bargain with the Union; or (4) the subse-
quent failure of the Union to bargain in good faith; but
in no event shall the sum paid to any of these employ-
ees exceed the amount the employee would have
earned as wages, from the dates on which the Re-
spondent terminated its Napa tannery (November 30
and December 7 and 14, 1990), to the time he secured
equivalent employment elsewhere or the date when the
Respondent offered to bargain, whichever occurred
sooner; provided however, that in no event shall this
sum, including severance pay, be less than these em-
ployees would have earned for a 2-week period at the
rate of their normal wages, when last in the Respond-
ent’s employ, with interest computed in the manner
prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Sawyer of Napa, Inc., Napa, California,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition from the Union at a
time when there are pending unremedied unfair labor
practices.
(b) Refusing to bargain with Pacific Northwest Dis-
trict Council of International Ladies’ Garment Workers
Union, AFL–CIO, with respect to the effects on its
tannery employees of its decision to close its Napa tan-
nery.
(c) Telling employees that they may not receive sev-
erance pay because of charges filed by the Union.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Pay the employees of the former Napa tannery
their normal wages for the times set forth in this Deci-
sion.
(b) On request, bargain collectively with Pacific
Northwest District Council of International Ladies’
Garment Workers Union, AFL–CIO, with respect to
the effects on its tannery employees of its decision to
close its Napa tannery, and reduce to writing any
agreement reached as a result of such bargaining.
(c) Preserve and, within 14 days of a request, make
available to the Board or its agents, for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(d) Mail to its former tannery employees copies of
the attached notice marked ‘‘Appendix.’’4 Copies of
the notice, on forms provided by the Regional Director
for Region 20, after being duly signed by Respond-
ent’s representative, shall be mailed by the Respondent
within 14 days after receipt thereof.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
MEMBER COHEN, dissenting in part.
1122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 See Sec. 8(d) of the Act.
2 H. K. Porter, 397 U.S. 99 (1970).
3 W. R. Grace, 247 NLRB 698.
I agree with the judge with respect to his well-con-
sidered resolution of the Transmarine Corp., 170
NLRB 389 (1968), issue. My colleagues have reversed
his decision in this regard. I therefore dissent.
Under Transmarine, backpay begins to run 5 days
after the entry of the Board Order. The backpay can
terminate at various points, including the reaching of
an impasse in the ‘‘effects’’ bargaining. The minimum
award is a 2-week backpay.
In the instant case, the Respondent refused to bar-
gain in October 1990 concerning the effects of the de-
cision to close the tanning facility. That refusal was
unlawful. However, the Respondent thereafter did bar-
gain on that subject, beginning in May 1991. The Gen-
eral Counsel and the Union concede that such bargain-
ing reached an impasse. Further, it is clear that the im-
passe was a legally cognizable one. There is no com-
plaint allegation that the bargaining was in bad faith.
Nor does the evidence establish such bad faith. My
colleagues suggest that the Respondent ‘‘incorrectly’’
took the position, in bargaining, that severance pay
should be limited to 2 weeks. However, there is no
‘‘correct’’ or ‘‘incorrect’’ position in bargaining under
the Act. The Board cannot dictate to a party the ‘‘cor-
rect’’ position to be taken in bargaining.1 Indeed, the
Board cannot do so even as a remedy for an ante-
cedent refusal to bargain.2 In short, my colleagues
have confused remedial issues with bargaining issues.
As a remedy for a refusal to bargain on ‘‘effects,’’ the
Board imposes a minimum award of 2 weeks’ back-
pay. However, as noted above, in the bargaining itself,
a party is free to take whatever position it wants.
My colleagues assert that the Respondent failed to
adhere to an informal settlement agreement that it
signed in May 1991. However, assuming arguendo that
this is so, it is not contended, nor could it be, that
breach of an informal settlement agreement is itself an
unfair labor practice. In addition, as discussed supra,
the settlement agreement did not require the Respond-
ent to take any particular position in bargaining. More
particularly, the Respondent was not required to offer
2 weeks’ pay (or any other amount) as a proposal in
bargaining. For example, under the Act, an employer
could offer 1 week of pay. If there is no impasse as
of the time of a Board Transmarine decision, a back-
pay remedy would begin to run, and a minimum of 2
weeks’ pay would be awarded. However, in the instant
case, the Respondent bargained to impasse prior to the
Board’s Order.
In sum, the Respondent has already bargaining to a
legally cognizable impasse. There is therefore no need
to require the Respondent to bargain further in this re-
spect. In addition, in view of the prior bargaining to
impasse, the backpay (which begins after the entry of
a Board Order) has essentially been tolled before it be-
gins. Thus, backpay is zero and, under Transmarine,
the 2-week minimum is applicable. Finally, since sev-
erance pay is a setoff from Transmarine monetary
remedies,3 the remedy in this case is backpay only for
those employees who received less than 2 weeks’ sev-
erance pay.
The aforementioned analysis was applied by the
judge. He was correct, and I would affirm his decision.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT withdraw recognition from the Union
at a time when we have failed to comply with a Deci-
sion of the National Labor Relations Board which re-
quires that we remedy past violations of the National
Labor Relations Act.
WE WILL NOT refuse to bargain with the Union with
respect to the effects on our tannery employees of our
decision to close our Napa tannery.
WE WILL NOT tell employees that they may not re-
ceive severance pay upon the closure of the tannery
because the Union has filed charges with the National
Labor Relations Board.
WE WILL NOT in any or like or related manner inter-
fere with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain collectively with Pa-
cific Northwest District Council of International La-
dies’ Garment Workers Union, AFL–CIO, with respect
to the effects of our decision to close our Napa Tan-
nery on the employees who were employed there and
to reduce to writing any agreement reached as a result
of such bargaining.
WE WILL pay the employees who were employed at
the Napa tannery their normal wages for a period re-
quired by a Decision and Order of the National Labor
Relations Board.
SAWYER OF NAPA, INC.
Leticia Pena, Esq., for the General Counsel.
Nancy E. Watson, Esq. (Teal, Montgomery, Bozman & Ross),
of Santa Rosa, California, for the Respondent.
Sanford N. Nathan, Esq. (Leonard, Carder, Nathan, Zucker-
man, Ross, Chin & Remar), of San Francisco, California,
for the Union.
1123SAWYER OF NAPA, INC.
1 In addition, the Board found that in October 1988 the Respond-
ent unlawfully discharged one employee because of his protected
concerted activity in refusing to work overtime; this was the subject
of a separate charge filed by the individual employee, and apparently
was unrelated to the union activity.
2 It appears that the strike was in protest of the lack of progress
in bargaining, and was unrelated to the phone call from Dranow in
which he advised the Union of the closure of the tannery.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursu-
ant to notice, a hearing in this matter was held before me
in Napa, California, on January 24, 25, and 26, 1994. The
charge in Case 20–CA–23669 was filed on October 19,
1990, by Pacific Northwest District Council of the Inter-
national Ladies’ Garment Workers Union, AFL–CIO (the
Union). The charge in Case 20–CA–23739 was filed by the
Union on November 28, 1990. On December 29, 1992, the
Acting Regional Director for Region 20 of the National
Labor Relations Board (the Board) issued an order withdraw-
ing approval of settlement agreement; order consolidating
cases and consolidated complaint and notice of hearing. The
complaint alleges violations by Sawyer of Napa, Inc. (the
Respondent) of Section 8(a)(1) and (5) of the National Labor
Relations Act (the Act).
The parties were afforded a full opportunity to be heard,
to call, to examine and cross-examine witnesses, and to intro-
duce relevant evidence. Since the close of the hearing, briefs
have been received from counsel for the General Counsel,
counsel for the Respondent, and counsel for the Union. On
the entire record, and based on my observation of the wit-
nesses and consideration of the briefs submitted, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a California corporation with an office
and place of business located in Napa, California, where, at
times material here, it was engaged in the tanning, process-
ing, manufacturing, and nonretail sale of sheepskins and re-
lated apparel. In the course and conduct of its business oper-
ations, the Respondent annually sold and shipped from its
Napa, California facility goods valued in excess of $50,000
directly to points outside the State of California. It is admit-
ted, and I find, that at all times material here the Respondent
has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I find that the Union is, and at all times
material has been, a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
The principal issue in this proceeding is whether the Re-
spondent violated Section 8(a)(5) of the Act by withdrawing
recognition from the Union prior to the time it had complied
with the remedial provisions of a Board decision and there-
upon precluded the Union from bargaining about the effects
of the Respondent’s closure of its tannery operations; and, if
so, what the appropriate remedy under the circumstances
should be.
B. The Facts
On July 28, 1989, the Union was certified as the exclusive
collective-bargaining representative of the employees in the
following unit:
All full-time and regular part-time production and
maintenance employees including drivers, tannery em-
ployees, coat factory employees, lead persons, shipping
and receiving employees, and quality control employees
employed by Respondent at its 68 Coombs Street,
Napa, California, facility; excluding clerical employees,
assistant foremen, guards and supervisors as defined in
the Act.
On September 28, 1990, the Board issued its decision in
Sawyer of Napa, 300 NLRB 131 (1990), finding that in No-
vember 1988, during the Union’s organizational campaign,
the Respondent unlawfully discharged two employees be-
cause of their union activity.1
Collective-bargaining negotiations apparently commenced
shortly after the Union was certified in July 1989, and con-
tinued until October 9, 1990, a period of some 16 months.
The parties were unsuccessful in negotiating a collective-bar-
gaining agreement. On about October 9, 1990, just 12 days
after the issuance of the aforementioned Board decision, the
Respondent received a petition from a majority of its em-
ployees advising that they no longer wished to be rep-
resented by the Union; thereupon the Respondent withdrew
recognition from the Union. This occurred at a time when
the Respondent had failed to comply with the remedial provi-
sions of the decision, which required an offer of reinstate-
ment and the payment of backpay to the employees who had
been unlawfully discharged.
Katie Quan is the manager of the Union and had been en-
gaged in contract negotiations with the Respondent from the
outset of bargaining. Quan testified that she received a phone
call from Milton Dranow, the Respondent’s CEO, in June
1990. Dranow advised Quan that he might close the tannery,
and that the Union would be getting notification by the end
of the week. On June 6, 1990, the Union engaged in an eco-
nomic strike against the Company.2 It lasted for only 2–1/2
days, until June 8, 1990. Also on June 6, 1990, the Respond-
ent sent Quan a lengthy letter signed by Billy R. Potter,
president of the Respondent’s tannery operations, as follows:
As you and I have discussed on several occasions,
both at and away from the bargaining table in the past
few months, there exists a worldwide slowdown in the
demand for shearling skins such as those which are pro-
duced here at the Napa facility. Specifically, we have
provided you with documentation showing you the
slowdown in incoming orders.
As we have also discussed, it was our hope that this
slowdown would be seasonal in nature. However, now
1124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 As a result of contract negotiations, the parties had tentatively
agreed to certain bumping rights between the tannery employees and
the employees in Respondent’s other operations or divisions, all of
whom are included in the same unit.
that we are into what is usually our busiest time of the
year and the slowdown in orders has continued, we
must now begin to face the probability that this will be
a prolonged downturn. Moreover, as I have also dis-
cussed with you and [business representative] David
Bacon repeatedly at our negotiations, the high degree of
regulatory control exercised by the various administra-
tive agencies having jurisdiction over tannery oper-
ations has directly resulted in the closure of almost all
tanneries in this state. In fact, I have given you the
names of several of these tanneries and discussed with
you the specifics which underlay their closures. Indeed,
to our knowledge, Sawyer is the only plant in Califor-
nia which is still permitted to chrome tan raw skins.
However, in this regard, we recently spent $150,000 to
buy equipment and otherwise upgrade our wastewater
treatment in order to attempt to meet new regulations
and, as far as we know, this is just the tip of the ice-
berg regarding future expenditures on this and other en-
vironmental concerns, too numerous to list here.
Also, as you are aware, the local media have recently
widely publicized their opinion that our use of
perchlorethylene in the tanning process results in a po-
tential cancer hazard to the Napa community at large.
As might be imagined, although our use of this process
is perfectly lawful, the widespread publicity has
irretrievably injured our image and reputation in this
community and exposed us to a greatly increased likeli-
hood of costly litigation filed by residents who believe,
however inaccurately, that their health problems or
worse have been proximately cause by our operations.
For each and all of these reasons, we wish to notify
you that Sawyer’s Board of Directors is seriously con-
templating the closure of the Napa tanning facility. Be-
cause we value your opinion and want your input re-
garding this contemplated decision, we would like to
schedule a meeting to discuss this matter with you as
soon as possible . . . please be advised that the Board
of Directors intends to make a decision regarding this
matter sometime during the week of June 11, 1990,
thus we must receive the Union’s input on this issue by
no later than the close of business, Friday, June 8,
1990, in order to present it to the Board in a timely
manner.
The parties met on June 7, 1990, to discuss what was set
forth in the letter. They met again on June 8, 1990; this was
a scheduled negotiating meeting, and contract items were
also discussed. They met again on June 13, 1990. During
each of the meetings, the parties discussed and bargained
over the decision to close the tannery, and at each meeting
the Respondent asked the Union to consider an agreement to
indemnify the company for environmental lawsuits in the
event it remained open. The Union refused to do this, and
proposed that if a contract were agreed upon, the Union
would attempt to assist the Company with lobbying efforts
to effect environmental legislation, and, in this regard, would
offer the Company the use of the Union’s health and safety
consultants. The Company said that a decision on closing the
tannery would be made later that week.
Another negotiating session was held on June 25, 1990.
Contract items were discussed.
On June 29, the Respondent sent a letter to the tannery
employees advising them that pursuant to the Worker Adjust-
ment and Retraining Notification Act (WARN Act) they
were being advised of plans to initiate a plant closing and
mass layoff that was expected to be permanent. The letter
states:
Pursuant to the Worker Adjustment and Retraining
Notification Act, this is to inform you that Sawyer of
Napa, Inc . . . plans to initiate a plant closing and mass
layoff. This planned action is expected to be permanent.
This action is due to a lack of sufficient orders from
our customers for tannery skins coupled with restrictive
and pressing Federal, State and Local environmental
regulations both current and proposed. After careful de-
liberation, the Board of Directors have decided that the
continuation of tannery production is unfeasible in our
Napa, California location. We regret that business con-
ditions make this decision necessary.
Sawyer anticipates that a mass layoff of most tan-
nery employees will occur within a 14 day period com-
mencing September 14, 1990. It is expected that you
will be separated September 14, 1990. Bumping rights
do exist.3
A similar letter was sent at the same time to the Union, with
the heading ‘‘Notification under the Worker Adjustment and
Retraining Notification Act.’’ This letter contained the names
and job titles of some 129 tannery employees who would be
dismissed. Further, it advised that the Footwear/Accessories
and Garment Divisions of the Respondent’s operations would
not be affected; apparently, the Respondent employed about
30 unit employees in these divisions.
Another negotiating meeting was held on July 3, 1990.
The Union asked a number of questions about the decision
to close, and inquired whether the decision was final and
whether there were any alternatives. Potter said that he didn’t
see any alternatives to closing the tannery unless the environ-
mental laws could be changed. Bumping rights into the coat
factory were discussed. Quan asked whether the company in-
tended to pay severance pay, and Bill Potter said that they
intended to negotiate about severance pay. There was some
discussion about severance pay and the continuation of medi-
cal coverage for the employees following the closure. Tan-
nery President Potter stated that it looked like the coat fac-
tory would remain open as there were current orders. He also
stated that if the Respondent could get sufficient tannery or-
ders there might be enough business to justify an extension
of the closure date, and that the closure date of September
14, 1990, was not set in concrete and might be extended.
However, according to Potter, the tannery would definitely
not be operating in 1991.
On July 5, 1990, the Respondent sent a WARN letter to
the Union regarding the 11 coat factory and accessory de-
partment employees who might get bumped by the tannery
employees ‘‘in keeping with the seniority provisions of the
contract of which we have tentatively agreed upon in regards
to bumping rights.’’
1125SAWYER OF NAPA, INC.
4 Apparently, this included tannery employees who were on layoff
at the time.
As noted above, there had been many bargaining sessions
over the Respondent’s decision to close the tannery oper-
ations, and, as the Respondent was a large and long-estab-
lished employer within the Napa community, there was much
media attention. The Respondent maintained, both to the
media and the Union, that the decision to close the tannery
was due to economic and environmental concerns, while the
Union remained unconvinced and expressed its views to the
media and, during ongoing negotiations, to the Respondent,
that the decision to close the tannery was union related.
It appeared to the Respondent that the Union was acting
in a fashion detrimental to the interests of the employees by
advising them that the announced tannery closure was a bar-
gaining ploy and that they need not be unduly concerned
about it. On July 13, 1990, the Respondent issued another
letter to its employees in an attempt to answer their concerns.
The letter states that the Respondent’s decision ‘‘should not
be misunderstood; it is final and not a negotiating ploy. We
will continue to negotiate with the Union on other issues in
good faith. . . . It is in your best interest to recognize this
decision as final so that you may be protected by making the
adjustment necessary for your future livelihood.’’
Additional meetings were held on July 18, August 1, and
August 8, 1990. At each of these meetings, the Respondent
answered the Union’s questions about the closing, and con-
tract negotiations were conducted. While the Respondent was
willing to discuss any matters regarding the effects of the
closure upon the employees, it did not take the initiative in
this regard, and the Union did not elect to engage in effects
bargaining during this period.
On August 28, 1990, during a negotiating meeting, the Re-
spondent advised the Union that it was extending the date for
the closing of the tannery because only 10 or 12 employees
had found other jobs. Also, the Union was provided a letter
from the Bay Area Quality Management District, dated Au-
gust 21, 1990, stating that in the event the Respondent’s dry-
cleaning operations were not eliminated prior to January 1,
1991, the Respondent would be liable for a penalty of up to
$25,000 per day. The parties discussed the manner in which
the tannery production operations would be phased out. Also,
they continued contract negotiations and came close to a ten-
tative agreement on a health and welfare contract provision.
On September 7, 1990, the Respondent issued a second or
revised WARN notice stating that its employees ‘‘would be
separated from the company within a 14 day period com-
mencing November 30, 1990 . . . as we have fortunately
been able to continue operations past this original [Septem-
ber 14, 1990] time and we wanted to inform you as soon as
possible.’’
The next negotiating meeting had been previously sched-
uled for September 25, 1990, but was canceled due to the
unavailability of Tannery President Potter. By letter dated
September 27, 1990, the Union requested that the Respond-
ent bargain about its ‘‘purported decision’’ to close the tan-
nery. The letter further states:
Included in this request to bargain is a commitment that
the company also commence bargaining immediately
over the effects of this decision to close. For example,
we expect the company to bargain over all issues per-
taining to the effects of a closure, including but not
limited to, severance, medical coverage, transfer rights,
etc.
The Respondent replied by letter dated October 5, 1990, stat-
ing that the decision to close was final and had previously
been bargained about, and that no further bargaining on that
point would be productive; further, the Respondent advised
that it was treating the Union’s letter as a request to bargain
over the effects of the decision to close the tannery.
Another bargaining session had previously been scheduled
for October 10, 1990; however, because the Respondent
withdrew recognition on October 9, 1990, the Respondent
canceled this meeting. By telegram dated October 10, 1990,
the Union protested the withdrawal of recognition and the
cancellation of the bargaining meeting, stating that the Re-
spondent was obligated to bargain ‘‘over the impending tan-
nery closure and its effects, severance pay, extension of med-
ical benefits for affected workers and an agreement covering
any remaining workers in the coat factory, accessories de-
partment or any other workers covered by certification 20–
RC–16332.’’ In addition, the Union included a demand for
immediate reinstatement and the payment of backpay to
those employees unlawfully discharged as found by the
Board in its then recent September 28, 1990 decision, which
had issued only 2 weeks earlier.
The Respondent refused to rescind its withdrawal of rec-
ognition of the Union, and the Union filed the instant charge
on October 19, 1990, alleging that the Respondent had un-
lawfully withdrawn recognition and was refusing to bargain
as required by the Act.
On November 30, 1990, 25 tannery employees were termi-
nated; and between December 7 and 15, 1990, some 43 addi-
tional tannery employees were terminated, at which point
tannery production operations ceased.4 As of December 15,
1990, only about 15 unit employees were actually at work,
some of them being tannery employees who were retained,
apparently, for maintenance rather than production purposes;
also, 27 employees were on layoff status.
On the date of their terminations, the employees were
given severance pay, calculated by the Respondent as fol-
lows: Those employees with 1 year or less of service re-
ceived 1 weeks’ pay; those employees with 2 years of serv-
ice received 2 week’s pay; those employees with between 3
and 5 years of service received 3 week’s pay plus $100 per
year thereafter; those employees with over 5 years of service
received 5 week’s pay plus $100 per year thereafter. The
minimum amount any employee received was $247 and the
maximum was $3096.
As stated above, the last bargaining session had been held
on August 28, 1990. Some 9 months later, in May 1991, the
Respondent complied with the remedial provisions of the
Board decision, and also entered into a settlement agreement
in the instant matter. The settlement agreement provided for
recognition of and bargaining with the Union. It contained a
nonadmission clause, and provided for the posting of a no-
tice. In addition, it appears that the notice was mailed to each
of the Respondent’s former tannery employees. Also, it in-
cluded the following language under the paragraph in the set-
tlement form entitled ‘‘BACKPAY’’:
1126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The Union did not bring any such cases to the attention of the
Respondent. Further, it should be noted that prior to August 28,
1990, there was some limited effects bargaining over the tannery
The Charged Party will make whole the employees
named below by payment to each of them the amount
opposite each name.
Severance pay for laid off tannery employees to be
computed in accordance with the formula set forth in
the Board’s decision in Transmarine Corp., 170 NLRB
389 (1968), with interest computed in the manner pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
The notice language states, inter alia, that:
WE WILL, upon request, recognize and bargain col-
lectively with the Union concerning the effects of the
closure of the tannery and with respect to the wages,
hours and other terms and conditions of employment of
our remaining employees in the following appropriate
collective bargaining unit:
[Unit language omitted]
WE WILL pay our employees who have been laid off
from the tannery in accordance with the formula set
forth in the Board’s decision in Transmarine Corp., 170
NLRB 389 (1968), with interest computed in the man-
ner prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
On May 20, 1991, the Union sent the following telegram
to the Respondent:
Pursuant to NLRB Settlement, Cases 20–CA–23699 and
20–CA–23739, we request recognition and resumption
of bargaining over effects of tannery closure and wages
and working conditions for remaining employees of
Sawyer of Napa.
Andy Kilass, labor relations consultant, who had rep-
resented the Respondent during the first set of negotiations
until August 28, 1990, was rehired by the Respondent to
continue negotiations with the Union. Kilass had not nego-
tiated the settlement agreement, and had maintained no rela-
tionship with the parties during the hiatus. He was told by
Tannery President Potter that he was to negotiate with the
Union regarding the effects of the tannery closure upon the
employees, and, in addition, that he was to continue negotiat-
ing a collective-bargaining agreement with the Union cover-
ing the coat factory and accessory employees. Regarding the
‘‘effects’’ bargaining, Kilass was told by Potter that as a re-
sult of the settlement agreement the Respondent was obli-
gated to pay 2 week’s severance pay to those employees who
had only received 1 week’s severance pay and, further, that
the Respondent would be required to pay any additional
amounts of severance pay that could be mutually agreed
upon with the Union as a result of bargaining. Kilass was
not conversant with the Board’s Transmarine decision, and
he did not regard reaching an impasse in effects bargaining
as a priority.
The first postsettlement negotiating session was held on
June 4, 1991. At this session, according to the credited testi-
mony of Kilass, bargaining over the effects of the tannery
closure commenced. Although no specific proposals were
made by either party, the Respondent answered the Union’s
questions regarding severance pay and related matters for the
tannery employees. However, most of the bargaining related
not to effects bargaining on behalf of the tannery employees,
but rather to the continuation of contract negotiations for the
coat factory employees. Additional bargaining sessions were
held on June 28, August 16, September 20, October 3 and
11, and November 6 and 26, 1991. At each of these meetings
parties bargained about the effects of the tannery closure
upon the employees, as well as for a collective-bargaining
agreement covering the remaining employees. At the Septem-
ber 20 meeting, the Union was advised that the coat factory,
which then apparently employed about 35 employees, would
be closed sometime in December 1991, and that the Re-
spondent was sending WARN letters to the coat factory em-
ployees. Thereafter, effects bargaining was conducted on be-
half of both the tannery employees and the coat factory em-
ployees.
While the Respondent willingly discussed any matters
brought up by the Union pertaining to effects bargaining
over the tannery closure, the Respondent apparently did not
attach any immediacy to such bargaining. Neither did the
Union. Thus, the Union’s position, as stated to the Respond-
ent with some frequency, was that the backpay clock under
Transmarine was continuing to run, and the longer the par-
ties bargained the more the Respondent’s backpay liability
would be. At the October 3, 1991 meeting, Kilass asked the
Union what incentive it had to bargain in good faith over the
effects of the tannery closure in view of the Union’s belief
that backpay continued to run. He accused the Union of not
wanting to reach an agreement and of engaging in bad-faith
bargaining as it had not to that date made a specific proposal
on severance pay. One of the union representatives stated
that it wasn’t the Union’s problem if the parties couldn’t
reach agreement, as the Respondent’s liability for backpay
was still running. However, after a caucus, the Union came
back to the table and made its first proposal regarding sever-
ance for the tannery employees: this was a ‘‘package’’ pro-
posal and required agreement upon the contract for the coat
factory employees. Kilass rejected the Union’s severance pay
proposal, and continued to insist that the Respondent’s sever-
ance proposal was that it was willing to pay another week’s
severance pay to those employees who had received less than
that.
Thereafter, the Union made various proposals, demanding
more money for severance pay. Kilass rejected the Union’s
proposals, and remained adamant that the only amount the
Respondent would pay was 1 additional week’s pay for those
tannery employees who had not received a minimum of 2
week’s pay, and that only in ‘‘hardship’’ cases would the
Respondent possibly be willing to pay severance pay to those
employees who had quit prior to the closure of the tannery.
The parties understood the term ‘‘hardship’’ to refer to em-
ployees who, in anticipation of the tannery closure, had quit
and had obtained temporary employment with another em-
ployer in the hope of a permanent job, but were laid off by
that employer shortly thereafter; if the Union was aware of
any such cases, it was advised that it could bring them to
the attention of the Respondent.5 In addition, Kilass said that
1127SAWYER OF NAPA, INC.
closure, and the Respondent had made the same proposal to the
Union at that early date.
6 United Supermarkets, 287 NLRB 119, 120 (1987); Olson Bodies,
Inc., 206 NLRB 779 (1973); Pittsburgh Trucking Co., 249 NLRB
833 (1989); and Taylor Hospital, 279 NLRB 28 (1986).
the severance pay for the coat factory employees would be
consistent with the amount the tannery employees had re-
ceived. Kilass disputed the Union’s contention that the back-
pay ‘‘clock was still running,’’ and advised the Union that
his communications with a Board agent in the Regional Of-
fice caused him to believe what he had stated all along, that
Transmarine only required the additional payment of 1
week’s severance pay for tannery employees who had re-
ceived less than that amount.
According to Kilass, the parties agreed that an impasse in
effects bargaining was reached at the November 6, 1991
meeting, as at that point all of the various proposals of the
Union had been rejected and the Respondent had not devi-
ated from its initial proposal regarding severance pay.
The coat factory ceased operations, and there was no fur-
ther bargaining. On July 31, 1991, the Union sought to re-
institute the charges underlying the settlement agreement.
While the Regional Office did not conclude that the Re-
spondent had failed to comply with those terms of the settle-
ment agreement requiring the Respondent to bargain in good
faith about the effects of the tannery closure upon the em-
ployees and about a collective-bargaining agreement for the
coat factory employees, the Region did ultimately conclude,
apparently on about October 26, 1992, that the Transmarine
remedy in the settlement agreement was not satisfied by the
Respondent’s mere offer to pay an additional week of sever-
ance pay to those employees who had received less than that.
Thereupon, on December 10, 1992, Kilass wrote the follow-
ing letter to the Region:
After a lengthy review and discussion with Mr.
Dranow at Sawyer, we have concluded that we must
disagree with the Region’s position. It is clear to the
Employer that the application of the Region’s interpre-
tation of Transmarine under the circumstances of this
case goes far beyond remedial, and is clearly punitive.
Under these circumstances, we must request that the
settlement agreement in this matter be set aside and the
complaint be reissued.
As noted above, the then Acting Regional Director with-
drew approval of the settlement agreement and issued the in-
stant complaint on December 29, 1992. Included in the com-
plaint are several instances of 8(a)(1) conduct which had also
been remedied by language in the settlement agreement.
Thus, the notice posted by the Respondent and mailed to the
employees contained the following language:
WE WILL NOT tell our employees that we cannot make
a decision about severance pay, or that we cannot pay
severance, because the Union has filed charges with the
National Labor Relations Board.
The record evidence regarding these allegations of the com-
plaint is set forth below.
Subsequent to the Respondent’s withdrawal of recognition
on October 9, 1990, the Respondent advised the employees
to speak with Personnel Manager Sandra Hood in the event
they wanted to discuss any matters regarding the closure of
the tannery.
Employee Roberto Espinosa Pena testified that he had
three different discussions with Personnel Manager Hood in
her office in November 1990. Hood spoke in English, and
a secretary translated the portion of Hood’s comments that
Pena was unable to understand. On one occasion Pena asked
Hood if the employees were going to receive severance pay,
and Hood replied that she didn’t know whether the employ-
ees would receive any severance pay since the Company
‘‘was spending too much money on attorneys, defending
itself from the Union who was making too many charges.’’
On the second occasion, Pena again asked her about sever-
ance pay, and she said that she was meeting with manage-
ment, namely, Dranow and Potter, about the matter, and that
she ‘‘didn’t know anything, that the Union had their hands
tied.’’
On the third occasion, Hood again said that she didn’t
know about severance pay because her meetings with man-
agement were continuing and ‘‘they were still having many
problems because the Union was putting too many charges
against the company.’’
In mid-November, 1990, at a safety meeting, in the pres-
ence of 10 or 12 employees, Pena asked Supervisor Rudy
Hernandez whether the tannery employees would be receiv-
ing severance pay. Hernandez said, according to Pena, ‘‘that
he thought that we would not be receiving anything because
the Union had their hands tied and he didn’t know anyway.’’
Former Personnel Manager Hood testified that although
she did not recall any conversations with Pena about sever-
ance pay, she would not have made the statements he attrib-
uted to her as she was at that time involved with manage-
ment in deciding upon the amount of severance pay the em-
ployees would be receiving; therefore she would not have
stated to any employee that the Union had the Company’s
hands tied or that she didn’t know if the employees would
be receiving any severance pay.
Former Supervisor Hernandez denied that he made any
such statement to any employees, and testified that in the
event employees asked questions about such matters he
would have referred them to Personnel Manager Hood.
C. Analysis and Conclusions
It is well established that an employer may not withdraw
recognition from a union during the pendency of serious
unremedied unfair labor practices.6 Whether or not the prior
unremedied unfair labor practices are sufficiently serious to
preclude the withdrawal of recognition is a matter for deter-
mination in each instance. Here, the Board found that in No-
vember 1988, the Respondent unlawfully discharged two em-
ployees because of their activity on behalf of the Union. In
October 1990, 2 years later, the Respondent withdrew rec-
ognition at a time when the two unlawfully discharged em-
ployees had not been offered reinstatement or paid backpay,
and when the Respondent had not advised its employees, by
the posting of an appropriate notice, that it would remedy
such violations and would not engage in similar future viola-
tions; and indeed, the Board’s decision in this matter had
issued just 12 days earlier. Under such circumstances, I con-
clude that the Respondent was not privileged to withdraw
1128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Master Slack Corp., 271 NLRB 79 (1984); Johns-Manville Sales
Corp., 282 NLRB 182 (1986); Purolator Products, 289 NLRB 986,
992–993 (1989); Airport Aviation Services, 292 NLRB 823, 824
(1989); Holiday Inn of Victorville, 284 NLRB 916, 933 (1987); Stor-
er Communications, 297 NLRB 296, 299 (1989).
8 I do not find that the cancellation of this meeting was a con-
scious effort on the part of the Respondent to evade its bargaining
obligation; rather, Potter was simply unavailable.
9 See also Santa Cruz Convalescent Hospital, 300 NLRB 1040
(1990); Interstate Tool Co., 177 NLRB 686 (1969).
10 In this regard, it appears that the General Counsel and the Union
would treat the withdrawal of recognition as if the Respondent had
deliberately concealed the tannery closure from the Union in order
to preclude effects bargaining. See Walter Pape, Inc., 205 NLRB
719 (1973); Avila Group, 218 NLRB 633 (1975).
11 As noted previously, there was some discussion between the
parties prior to the withdrawal of recognition regarding severance
pay for employees who quit work after the announcement of the tan-
nery closure. The Respondent’s position has always been that it
might be amenable to paying severance pay in ‘‘hardship’’ cases, but
not generally to all employees who quit prior to the closure.
recognition as the unremedied unfair labor practices were se-
rious and continuing, and it may not be concluded that such
prior unlawful conduct could have had no influence on the
employees’ desire to forgo union representation. The cases
cited by the Respondent are readily distinguishable.7 Accord-
ingly, I conclude that by withdrawing recognition on October
9, 1990, the Respondent has violated Section 8(a)(5) of the
Act as alleged.
The Respondent takes the position that even assuming
arguendo that its withdrawal of recognition was untimely, it
nevertheless did not preclude the Union from engaging in
timely effects bargaining with regard to the closure of the
tannery. Thus, the Respondent gave the Union every oppor-
tunity to bargain over the effects of the tannery closure, but
the Union elected to bargain over other matters; it was not
the Respondent’s fault that the Union did not treat the im-
pending closure with sufficient seriousness, but rather contin-
ued to disbelieve that the tannery closure was imminent.
The last presettlement negotiating session was held on Au-
gust 28, 1990. On that date it was announced that the tannery
closure would be extended from September 15, 1990, as
originally announced, to November 30, 1990. Clearly the
Union had time to engage in effects bargaining subsequent
to August 28, 1990, but the cancellation of the September
25, 1990 bargaining session8 and the Respondent’s unlawful
withdrawal of recognition on October 9, 1990, precluded
such bargaining. Accordingly, I find without merit the Re-
spondent’s contention that the Union was given a sufficient
opportunity to engage in effects bargaining prior to October
9, 1990, but did not avail itself of the opportunity to do so.
The Union believed that it had an additional 3 months after
August 28, 1990, when the November 30, 1990 closing date
was announced, to engage in such bargaining. However, by
its withdrawal of recognition the Respondent severely short-
ened the Union’s opportunity in this regard by nearly 2
months.
On the withdrawal of a settlement agreement because of
alleged noncompliance, the parties revert to the same posi-
tions as if there had been no settlement agreement, and a
complaint is issued on the underlying unfair labor practices.
Thereupon, in the event a violation of the Act is found, the
respondent is subject, in the first instance, to the customary
remedies imposed by the Board for the type of violation re-
quiring remedial relief. In the instant matter, as it has been
found that the Respondent’s untimely withdrawal of recogni-
tion precluded meaningful effects bargaining prior to the clo-
sure of the tannery, it appears that a Transmarine remedy is
appropriate because it is specifically designed to remedy
such violations of the Act. I so find.9
Both the General Counsel and the Union take the position
that it would be an exercise in futility to impose a new, pro-
spective, Transmarine remedy which would require the par-
ties to bargain to impasse and which would begin running
from the date of the Board’s decision in this matter, as the
parties have already admittedly bargained to impasse over
the effects of the tannery closure during the course of the
postsettlement bargaining. Thus, the General Counsel and the
Union take the position that the Transmarine remedy must
be tailored to fit the instant situation by simply requiring the
Respondent to pay a specified number of weeks of backpay;
in other words, the settlement agreement, even though nul-
lified by the issuance of the complaint, must be enforced as
if it were a viable Board decision.
Further, notwithstanding that the customary Transmarine
backpay remedy is prospective and begins 5 days after the
issuance of a Board decision, the General Counsel and the
Union maintain that the backpay period should be retroactive
to December 15, 1990, the date of the closure of the tan-
nery,10 and should run until September 20, 1991 (the General
Counsel’s position), or until October 3, 1991 (the Union’s
position), when the Respondent came to the bargaining table
with a severance pay proposal. Thus, the Respondent should
be required to pay between 40 and 44 weeks of backpay to
each tannery employee. In addition, the Union argues that
backpay should also be paid to those employees who volun-
tarily left the Respondent’s employ prior to the tannery clo-
sure after receiving the WARN notice, as these employees
may have benefited from the Union’s bargaining efforts.11
While an extraordinary remedy of the general type sug-
gested by the General Counsel and the Union might be ap-
propriate in an instance where a respondent enters into a set-
tlement agreement for the purpose of circumventing the poli-
cies of the Act and to gain time in which to further violate
the Act, that is not what occurred in the instant case. The
Respondent kept the Union apprised of all matters regarding
the closure and did, in fact bargain at length about the deci-
sion to close the tannery. Further, it was always willing to
bargain about the effects of the tannery closure prior to the
withdrawal of recognition, but the Union did not elect to do
so, believing that such bargaining was premature. Nor did the
Respondent engage in bad-faith bargaining during the post-
settlement negotiations: While it took a different position on
the interpretation of Transmarine, it was at all times willing
to engage in good-faith bargaining regarding any severance
pay the parties could agree upon in addition to the minimum
of 2 week’s backpay which it acknowledged was its obliga-
tion under Transmarine. Indeed, the Union made no propos-
als regarding severance pay until some 6 months after such
bargaining commenced, and clearly had no incentive to bar-
gain to impasse.
The General Counsel and the Union maintain that the
backpay period should end on the date the Respondent made
its first severance proposal and that this occurred in Septem-
1129SAWYER OF NAPA, INC.
12 Centre Engineering, Inc., 253 NLRB 419, 420–421 (1980);
Adco Electric, 307 NLRB 1113, 1118–1119 (1992).
13 As the remedy here affects only the tannery employees, and all
employees have either previously received copies of the settlement
agreement notice or have worked during the notice posting period,
it appears that copies of the notice here need only be mailed to the
tannery employees.
ber or October 1991. I disagree. Clearly, on June 4, 1991,
at the very outset of postsettlement bargaining, it was under-
stood that the Respondent proposed to pay an additional
week’s backpay to those employees who received less than
2 week’s backpay; this, in my opinion, constitutes the Re-
spondent’s initial severance pay proposal.
Under all the foregoing circumstances, there appears to be
no reason to impose an extraordinary remedy upon this Re-
spondent. Thus, I shall recommend that the customary
Transmarine remedy be imposed, prospectively, from the
date of the Board’s decision in the instant proceeding. Fur-
ther, as the Respondent, I find, has bargained to impasse in
good faith over the effects of the tannery closure and over
all other matters, there is no reason to require the parties to
rebargain the effects of the tannery closure on the employees.
Accordingly, I conclude that the appropriate remedy in this
case is as set forth in the remedy section of this decision,
infra.
In addition to finding that the Respondent has violated
Section 8(a)(5) of the Act by withdrawing recognition during
the pendency of unremedied unfair labor practices, I also
find that it has violated Section 8(a)(1) of the Act by the re-
marks of Personnel Manager Hood and Supervisor Hernan-
dez to employee Roberto Pena and other employees. Thus,
I credit Pena and find that he and other employees were told,
in effect, that the employees may not be receiving severance
pay because the Union had tied the Company’s hands in this
regard by filing charges and thereby causing the Respondent
to incur expenditures which may reduce or eliminate the Re-
spondent’s payment of severance pay.12
CONCLUSIONS OF LAW
1. Respondent Sawyer of Napa, Inc. is an employer within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By withdrawing recognition from the Union at a time
when there were pending unremedied unfair labor practices,
the Respondent has violated Section 8(a)(5) of the Act.
4. By telling employees that they may not be receiving
severance pay because the Union filed charges against the
Company, the Respondent has violated Section 8(a)(1) of the
Act.
5. The above-unfair labor practices is an unfair labor prac-
tice affecting commerce within the meaning of Section 2(6)
of the Act.
THE REMEDY
Having found that the Respondent has violated Section
8(a)(1) and (5) of the Act, I recommend that it be required
to cease and desist therefrom. Further, I shall recommend
that the Respondent be required to pay severance pay to its
tannery employees who were terminated or laid off as a re-
sult of the closure of the tannery in accordance with the for-
mula set forth in the Board’s decision in Transmarine Corp.,
170 NLRB 389 (1968), with interest computed in the manner
prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
As the parties have bargained to impasse over the effects
of the tannery closure, it appears that no further bargaining
is warranted; nor is there a need for bargaining language in
the notice. Because the Transmarine remedy provides for a
minimum of 2 week’s backpay, I recommend that the Re-
spondent be required to pay additional backpay to those laid
off or terminated tannery employees who received less than
2 week’s backpay.
As the Respondent’s business is no longer in operation
there is no recommendation for a notice posting.
It is further recommended that the Respondent mail to
each of its former tannery employees13 an appropriate notice
attached as ‘‘Appendix.’’
[Recommended Order omitted from publication.]