Titan Tire Corp.

National Labor Relations Board - Board Decisions

Apr 30, 2001

333 N.L.R.B. 1156 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1156
Titan Tire Corporation and United Steelworkers of
America, AFL-CIO, CLC and its Local 164L.
Case 18–CA–14863
April 30, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND WALSH
On February 11, 1999, Administrative Law Judge
Jerry M. Hermele issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel and the Charging Party filed answering
briefs, and the Respondent filed a reply brief. In addi-
tion, the General Counsel and the Charging Party filed
cross-exceptions and supporting briefs, the Respondent
filed an answering brief, and the General Counsel filed a
reply 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 exceptions1 and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order as modified and set
forth in full below.2
Respondent Titan Tire Corporation (Respondent or Ti-
tan), which owns and operates several tire factories in
locations around the country, purchased a tire manufac-
turing plant in Des Moines, Iowa, from Pirelli Armstrong
Corporation in the summer of 1994. At the time of the
purchase, approximately 650 plant employees were rep-
resented by the Charging Party, United Steelworkers of
America, AFL–CIO, CLC and its Local 164L (Charging
Party or Union). The Respondent and the Union negoti-
ated a new collective-bargaining agreement in 1995,
which expired on April 30, 1998.
The disputed issues in this case arise out of the parties’
bargaining for a successor agreement and an ensuing
strike. Although we agree with the judge’s resolution of
these issues, we find that two of them warrant further
discussion.3

1 The judge found that the Respondent violated the Act by discon-
tinuing four types of group insurance benefits for 24 employees who
were on approved leaves of absence at the initiation of the strike. The
Respondent’s exceptions to the finding of this violation are limited to
the following arguments: the Union waived the right of employees on
leave to continued insurance benefits; the judge should not have permit-
ted the General Counsel to amend the complaint at the hearing to in-
clude all four types, rather than just one type, of group insurance bene-
fits provided to employees by the Respondent; and the Board’s policy
regarding the continuation of insurance benefits for employees on leave
is unsound. We find no merit to these exceptions.
2 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
1. The conversion of the strike from an economic strike
to an unfair labor practice strike
Titan and the Union participated in 35 to 45 bargaining
sessions held over several weeks in the spring of 1998 in
order to reach a successor agreement.4 The parties were
unable to reach a new agreement prior to the expiration
of their contract. On May 1, the Union began a strike.
On May 14, Maurice Taylor Jr., president of Titan In-
ternational, Respondent’s parent corporation, and chair-
man of Respondent Titan, held a press conference during
which he discussed the impact of the strike on the opera-
tion of the plant. Among other things, Taylor stated that5

If there was no settlement, Titan would quickly
move equipment out of the Des Moines facility to
the Brownsville, Texas facility and it would be ir-
reversible.6
The number of employees in Des Moines would
be reduced from 650 to 300, and the Des Moines
plant would be turned into a warehouse.

The judge found, and we agree, that Taylor’s state-
ments about relocating equipment and jobs from Des
Moines to Brownsville were threats in violation of Sec-
tion 8(a)(1).7 The judge also found, and we agree as we
explain below, that the employees’ strike was converted
3 In basic agreement with the cross-exceptions filed by the General
Counsel and the Charging Party, we shall modify the judge’s recom-
mended Order in accordance with Board precedent to fully remedy the
unfair labor practices that the judge found the Respondent committed.
4 All dates hereafter refer to 1998 unless otherwise specified.
5 The text of Taylor’s statement is set out in detail in the judge’s de-
cision.
6 In 1996, the Respondent had announced the construction of a new
tire manufacturing facility in Brownsville.
7 As the judge recognized, under Board precedent an employer is not
required to bargain over “nonpermanent, stopgap, or temporary meas-
ures,” such as temporary subcontracting, necessary to continue opera-
tions during a strike. Land Air Delivery, 286 NLRB 1131, 1132 fn. 7
(1987), enfd. 862 F.2d 354 (D.C. Cir. 1988), cert. denied 493 U.S. 810
(1989). Here, however, Taylor announced that if the strike continued,
the decision to relocate equipment and bargaining unit jobs from Des
Moines to Brownsville would be “irreversible, and thus anything but
temporary.” Further, there is not the slightest indication in Taylor’s
statements that he intended to bargain with the Union about the perma-
nent relocation decision. Indeed, the judge found that the Respondent
thereafter proceeded to permanently relocate equipment and bargaining
unit jobs from Des Moines to Brownsville without bargaining with the
Union in violation of Sec. 8(a)(5) and (1) of the Act. In sum, just as it
was unlawful for the Respondent unilaterally to relocate equipment and
bargaining unit jobs on a permanent basis, so, too, was it unlawful for
the Respondent to threaten to do so. See King Radio Corp., 172 NLRB
1051, 1075 (1968) (“Employer threat to do that which he cannot under
the Act lawfully do to employees constitutes independent violation of
Sec. 8(a)(1).”), enfd. in pertinent part 416 F.2d 569 (10th Cir. 1969),
cert. denied 397 U.S. 1007 (1970).
333 NLRB No. 140
TITAN TIRE CORP. 1157
from an economic strike to an unfair labor practice strike
when Taylor made the unlawful threats at the May 14
press conference.
A strike that begins as a dispute over economic issues
may be converted to an unfair labor practice strike if the
General Counsel establishes that “the unlawful conduct
was a factor (not necessarily the sole or predominate one)
that caused a prolongation of the work stoppage.” C-Line
Express, 292 NLRB 638 (1989), enf. denied on other
grounds 873 F.2d 1150 (8th Cir. 1989). The Board will
consider both objective and subjective evidence in assess-
ing whether the General Counsel has met his burden:

Applying objective criteria, the Board and reviewing court may properly consider the
probable impact of the type of unfair labor practice in question on reasonable strikers in
the relevant context. Applying subjective criteria, the Board and court may give sub-
stantial weight to the strikers’ own characterization of their motive for continuing to
strike after the unfair labor practice. [Id., quoting Soule Glass Co. v. NLRB, 652 F.2d
1055, 1080 (1st Cir. 1980).]

“Certain types of unfair labor practices by their nature
will have a reasonable tendency to prolong the strike and
therefore afford a sufficient and independent basis for
finding conversion.” Id. For example, the Board has
“invariably concluded that the unlawful withdrawal of
recognition prolongs a strike” because it puts an end to
the collective-bargaining process. Id. at fn. 4. Similarly,
the Board has held that the unlawful discharge of strikers
is “a blow to the very heart of the collective-bargaining
process” and “leads inexorably to the prolongation of a
dispute.” Vulcan-Hart Corp., 262 NLRB 167, 168
(1982), enf. denied on other grounds 718 F.2d 269 (8th
Cir. 1983).
Like the unlawful discharge of strikers, we find that
Taylor’s unlawful threats, which the judge aptly termed a
“bombshell,” inherently tainted the collective-bargaining
process and necessarily prolonged the strike. In total
disregard of the Respondent’s statutory obligations, Tay-
lor threatened that if employees continued in their pro-
tected concerted activity of striking, the Respondent uni-
laterally would relocate unit work to a nonunion facility,
resulting in the elimination of the jobs of approximately
one-half of the union-represented employees. Such bla-
tant threats to bypass the Union and decimate the bar-
gaining unit inevitably would tend to burden the negotia-
tion process and delay the settlement of the strike. Ac-
cordingly, we find that Taylor’s threats afford a suffi-
cient basis for finding that the strike converted to an un-
fair labor practice strike on May 14. As discussed below,
our conversion finding is confirmed by both subjective
and objective record evidence.
Subjective evidence of strike conversion. Taylor’s
May 14 threats to move equipment and cut jobs in Des
Moines if the strike continued and the subsequent mov-
ing and diversion of machinery from the plant were
widely publicized in the Des Moines press, complete
with pictures of flatbed trucks parked at the Des Moines
plant being loaded with tire manufacturing equipment on
its way to other Titan facilities. Union Vice President
John Peno testified that newspaper articles covering Tay-
lor’s press conference, the equipment movement, and the
strike were posted at the union hall, distributed at union
meetings and on the picket line, and widely discussed
among unit members. Peno also testified that Taylor’s
May 14 press conference “infuriated” the unit members
and put additional pressure on the bargaining committee
to “rectify the wrong.”
Following the June 98 filing of unfair labor practice
charges alleging that Titan violated the Act by “threaten-
ing to transfer bargaining unit work to a non-union plant
if bargaining unit employees did not end their strike,” the
Union held a meeting at which it informed the strikers
about the filing of charges and that the Respondent had
just proposed its “last, best and final” offer. On June 19,
the Union made a concessionary counterproposal. On
June 20, the Union held two membership meetings to
discuss bargaining strategy with unit members. At the
June 20 meetings, because of the Respondent’s final of-
fer and its June 17 letter informing the strikers that they
would be permanently replaced if they did not return to
work, Peno had to “calm the membership down.” Peno
told the strikers that the Union had filed unfair labor
practice charges. Then, Peno testified, “I read [the]
charges in their entirety and I asked the membership in
view of these charges and these illegal acts . . . do you
want to continue the strike.” The striking employees
voted unanimously to continue the strike. They did not
vote on whether to accept the Respondent’s final offer.
Clearly, the record shows that the employees voted to
continue the strike because of the Respondent’s unfair
labor practices. Given the record as a whole, i.e., the
widespread publicity about the Respondent’s actions and
the employees’ angry reaction, we find that the objec-
tives of the strike were “expanded to include a protest
over [the] unfair labor practices.” NLRB v. Top Mfg.
Co., 594 F.2d 223, 225 (9th Cir. 1979).
Objective evidence of strike conversion. The parties
bargained over five main issues during the course of their
negotiations. One of those issues was job security at the
Des Moines plant. In 1996, the Respondent had an-
nounced the construction of a new tire manufacturing
facility in Brownsville, Texas. When the Respondent

8 The judge inadvertently erred in stating that the Union’s charge
was filed on June 8.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1158
made the announcement, the Union sought and received
assurances that the Brownsville facility would have no
adverse impact on the number of jobs at the Des Moines
plant. The Union continued to seek and receive those
assurances from the Respondent up through the start of
bargaining in 1998.
Then, in response to the strike, Taylor reversed course
at his press conference and announced that the equipment
in the Des Moines plant would be sent to Brownsville
and the Des Moines jobs would be cut in half if the strike
continued. Within just a few weeks of Taylor’s press
conference, in early June, the Respondent began to re-
move manufacturing equipment from the Des Moines
plant and ship it elsewhere. In addition, the Respondent
began to divert manufacturing equipment originally des-
tined for Des Moines to other plants.9
As an objective matter, we have no doubt, given that job
security was a major issue at the bargaining table and of
heightened concern for employees, that the Respondent’s
unlawful threats to move equipment from and reduce the
number of jobs in Des Moines undercut the Union’s nego-
tiating position and prolonged the strike. Further, as a
very real result of the Respondent’s unlawful implementa-
tion of those threats, the Union’s role in bargaining shifted
from the protection of job security to the restoration of
lost jobs. By adding to the list of bargaining issues one
that was not present at the initiation of the strike, i. e., res-
toration of transferred equipment and lost jobs, the Re-
spondent further undermined the Union’s bargaining posi-
tion and delayed the resolution of the strike.
Based on the above, we conclude, in agreement with
the judge, that what began as an economic strike on May
1 was converted to an unfair labor practice strike by the
Respondent’s unlawful conduct on May 14.10

9 The judge found, and we agree, that by unilaterally transferring and
diverting equipment from Brownsville on a permanent basis, the Re-
spondent violated Sec. 8(a)(5) and (1) of the Act.
10 In its exceptions brief, the Respondent relies on California Acrylic
Industries, 150 F.3d 1095 (9th Cir. 1998), and F. L. Thorpe v. NLRB,
71 F.3d 282 (8th Cir. 1995), cases in which the courts declined to en-
force Board findings that strikes commenced as or converted to unfair
labor practice strikes. We find these cases distinguishable. In Califor-
nia Acrylics, the court rejected what it characterized as a mechanical
rule that a strike is an unfair labor practice strike if the union has the
foresight to mention the unfair labor practice before the strike vote.
The court found overwhelming evidence, both subjective and objective,
that the strike was motivated solely by economic concerns. In F. L.
Thorpe, the court found that the strikers’ subjective motivations for
continuing what began as an economic strike did not change at any time
subsequent to the strike’s inception. According to the court, the Board
inferred that the unfair labor practices the respondent committed would
prolong the strike, despite the overwhelming subjective evidence to the
contrary offered by the strikers themselves.
In other words, both courts held that there was little, or no, evidence
supporting the Board’s conclusions regarding the nature of the strikes.
By contrast, as discussed above, in the instant case, the record contains
substantial evidence, both subjective and objective, supporting our
finding that the strike converted to an unfair labor practice strike.
2. The Respondent’s unilateral implementation of its
final offer in the absence of a lawful impasse
On June 10, Titan notified the Union that it was sub-
mitting its “last, best and final offer.” On June 22, the
Respondent unilaterally implemented its June 10 contract
offer. The Respondent contended that the parties were at
a bargaining impasse and, therefore, the implementation
action did not violate the Act. The judge concluded that
the unremedied unfair labor practices the Respondent
committed prevented the parties from reaching an
agreement. For the reasons that follow, we agree with
the judge that there was not a lawful, good-faith impasse
because the Respondent’s unfair labor practices contrib-
uted to the lack of an agreement.
The law is clear that “a lawful impasse cannot be
reached in the presence of unremedied unfair labor prac-
tices.” White Oak Coal Co., 295 NLRB 567, 568 (1989).
And, in the absence of a lawful, good-faith impasse, an
employer may not unilaterally implement its final offer.
Id. Indeed, an employer that has committed unfair labor
practices cannot “parlay an impasse resulting from its
own misconduct into a license to make unilateral
changes.” Wayne’s Dairy, 223 NLRB 260, 265 (1976).
However, not all unremedied unfair labor practices
committed during negotiations will give rise to the con-
clusion that impasse was declared improperly, thus pre-
cluding unilateral changes. Alwin Mfg. Co., 326 NLRB
646, 688 (1998), enfd. 192 F.3d 133 (D.C. Cir. 1999).
Only “serious unremedied unfair labor practices that ef-
fect [sic] the negotiations” will taint the asserted im-
passe. Id., quoting Noel Corp., 315 NLRB 905, 911
(1994). Thus, the central question is whether Titan’s
unlawful conduct detrimentally affected the negotiations
over a new collective bargaining agreement and contrib-
uted to the deadlock.
In Alwin, 192 F.3d at 139, the court identified

at least two ways in which an unremedied ULP can
contribute to the parties’ inability to reach an agree-
ment. First, a ULP can increase friction at the bargain-
ing table. Second, by changing the status quo, a unilat-
eral change may move the baseline for negotiations and
alter the parties’ expectations about what they can
achieve, making it harder for the parties to come to an
agreement.

Applying the Alwin standard here, we find that, while the
record is inconclusive on the “friction” issue, the evidence
clearly shows that the Respondent’s conduct moved the

TITAN TIRE CORP. 1159
baseline on issues over which the parties were bargaining
and altered the parties’ expectations about what they could
achieve.

As detailed in the previous section of this decision, the
record shows that:

The Union’s concern about job security at the Des
Moines plant was a prominent issue at the bar-
gaining table, as it had been since the Respondent
announced the construction of the Brownsville
plant in 1996.
Taylor’s May 14 threats to move equipment from,
and reduce bargaining unit jobs at, the Des Moines
plant substantially undercut the Union’s position at
the negotiating table on an issue that was of high pri-
ority to the bargaining unit.
The Respondent implemented its threats by mov-
ing equipment from, and reducing the number of
jobs at, the Des Moines plant.
After Taylor’s press conference and the moving of
equipment from the plant, the Union was forced to
bargain about restoring rather than protecting unit
jobs.
Taylor’s May 14 press conference “infuriated” the
unit members and put additional pressure on the
bargaining committee to “rectify the wrong.”

In addition, the Respondent unlawfully refused to provide
information the Union requested regarding the moving of
equipment from, and reduction of jobs at, Des Moines. It is
manifest that such information would be necessary in order
for the Union to represent employee interests in job security
at the bargaining table.
The Respondent’s threats directly related to job secu-
rity and the subsequent implementation of those threats
directly impacted job security. The Respondent’s refusal
to furnish information regarding the moving of equip-
ment and reduction of jobs denied essential information
about the same significant bargaining issue.11 The effect
of the Respondent’s unlawful conduct was the sudden
addition to the negotiations of a critical issue—the resto-
ration of transferred equipment and lost jobs—about
which the Union was forced to bargain in the dark with-
out necessary information. We find that the consequence
of the Respondent’s unlawful conduct was to make it
harder for the parties to come to an agreement. Having
found that the Respondent’s unremedied unfair labor
practices contributed to the parties’ inability to reach
agreement, we conclude that the parties did not reach a
good-faith impasse and that the Respondent violated Sec-
tion 8(a)(5) and (1) by unilaterally implementing its final
offer on June 22.

11 Standing alone, the refusal to furnish information about a subject
so central to the parties’ bargaining could preclude the finding of a
lawful impasse. United States Testing Co., 324 NLRB 854, 860 (1997),
enfd. 160 F.2d 14 (D.C. Cir. 1998).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below, and orders that the
Respondent, Titan Tire Corporation, Des Moines, Iowa,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening to discontinue group insurance bene-
fits for employees on approved leaves of absence at the
time a strike begins; threatening to move equipment and
bargaining unit jobs from the Des Moines, Iowa facility;
threatening to employ permanent replacements for em-
ployees engaged in an unfair labor practice strike; and
threatening to implement unilateral changes to employ-
ees’ terms and conditions of employment without first
having reached a valid, good-faith impasse through col-
lective bargaining.
(b) Refusing to bargain collectively with United
Steelworkers of America, AFL–CIO, CLC and its Local
164L, as the exclusive representative of its employees in
the appropriate unit set forth below, about decisions en-
tailing mandatory subjects of bargaining, including deci-
sions to move equipment or bargaining unit jobs from the
Des Moines, Iowa facility. The appropriate unit is:

All full-time and regular part-time incentive and
hourly-rated production and maintenance employees,
including shipping, receiving and warehouse employ-
ees, janitors, storekeepers, powerhouse employees,
finished tire inspectors, laboratory development em-
ployees only as defined by the National Labor Rela-
tions Board in NLRB Case 18–RC–7720, scheduling
employees only as defined by the National Labor Re-
lations Board in NLRB Case 18–RC–7791, but shall
exclude executives, superintendents, foremen, super-
visors, office and clerical workers, employees en-
gaged in engineering, salaried, scheduling, laboratory
and development work, including quality control
technicians and plant protection employees, and any
other non-certified office and clerical employees, en-
gineers and professional employees, research and de-
velopment employees, guards watchmen and supervi-
sors as defined in the National Labor Relations Act.

(c) Refusing to provide the Union with information re-
garding the moving of equipment and/or jobs from Des
Moines, Iowa, to Brownsville, Texas.
(d) Refusing to provide the Union with a list of re-
placement workers.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1160
(e) Unilaterally changing employees’ terms and condi-
tions of employment without first having reached a valid,
good-faith impasse in bargaining collectively with the
unit employees’ exclusive bargaining representative.
(f) Unilaterally changing group insurance benefits
without providing notice to the Union and an opportunity
to bargain about such changes.
(g) Discontinuing group insurance benefits for em-
ployees on approved leaves of absence at the time a
strike begins in retaliation for the employees engaging in
activity protected by Section 7 of the Act.
(h) In any like or related manner interfering with, re-
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request of the Union, reinstate its policy, in effect
before May 1, 1998, regarding maintenance and/or pay-
ment of employees’ health, dental, life and long-term dis-
ability insurance policies, for employees who were on
approved leaves of absence as of May 1, 1998; notify
those 24 employees in writing that it has done so; and
make all affected employees whole for any losses they
suffered as a result of the Respondent’s illegal May 1,
1998 action, pursuant to Kraft Plumbing & Heating, 252
NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir.
1981), with interest computed in the manner prescribed in
New Horizons for the Retarded, 283 NLRB 1173 (1987).
(b) On request of the Union, restore and resume produc-
tion operations at its Des Moines, Iowa facility in a manner
consistent with the level and manner of operation that ex-
isted before it commenced removing equipment in early
June 1998; offer reinstatement to those bargaining unit em-
ployees who lost their jobs due to the removal of equipment
that began in early June 1998; and make them whole for any
loss of earnings and other benefits suffered as a result of the
Respondent’s unlawful conduct, with backpay and interest
thereon to be computed in the manner prescribed by the
Board in F. W. Woolworth Co., 90 NLRB 289 (1950), and
New Horizons for the Retarded, supra.12
(c) Provide the Union with the information it requested
on June 19, 1998, regarding the transfer of equipment
and/or jobs from Des Moines, Iowa, to Brownsville,
Texas; and the information it requested on June 21, 1998,
regarding a list of replacement workers.
(d) On request of the Union, revoke its implementation
of its last, best, and final offer on June 22, 1998; restore
all terms and conditions of employment as they existed
on June 22, 1998; notify each bargaining unit member in
writing that the foregoing has been done; and make
whole any employees adversely affected by the unlawful
June 22, 1998 implementation, pursuant to Ogle Protec-
tion Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502
(6th Cir. 1971), with interest computed in the manner
prescribed in New Horizons for the Retarded, supra.

12 The parties are free to introduce at the compliance stage of these
proceedings any evidence relevant to the appropriateness of the restora-
tion and reinstatement portions of this Order, provided that such evidence
was not available at the time of hearing on the unfair labor practices al-
leged and found herein. Lear Siegler, Inc., 295 NLRB 857, 862 (1989).
(e) On request, bargain in good faith with the Union as
the exclusive representative of the employees in the unit set
forth above concerning wages, hours, and other terms and
conditions of employment, including the moving of equip-
ment and jobs from the Des Moines, Iowa facility, until the
parties reach an agreement or a valid good-faith impasse.
(f) On an unconditional application to return to work by
any striking employee who was not permanently replaced
prior to May 14, 1998, offer that employee immediate and
full reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges,
discharging, if necessary, any replacement hired on or
after May 14, 1998; and make such employees whole for
any loss of earnings and other benefits they may have suf-
fered as a result of Respondent’s refusal, if any, to rein-
state them within 5 days of their unconditional offer to
return to work, with backpay and interest thereon to be
computed in the manner prescribed by the Board in F. W.
Woolworth Co., supra, and New Horizons for the Re-
tarded, supra.13 Such employees for whom employment is
not immediately available shall be placed on a preferential
hiring list for employment as positions become available
and before other persons are hired for such work. Priority
for placement on such list is to be determined by seniority
or some other nondiscriminatory test.
(g) 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 payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
13 The Board has found that the 5-day period is a reasonable accom-
modation between the interests of the employees in returning to work
as quickly as possible and the employer’s need to effectuate that return
in an orderly manner. Drug Package Co., 228 NLRB 108, 113 (1977),
modified on other grounds 507 F.2d 1340 (8th Cir. 1978). Accord-
ingly, if the Respondent here ignores or rejects, or has already rejected,
any unconditional offer to return to work, unduly delays its response to
such an offer, or attaches unlawful conditions to its offer of reinstate-
ment, the 5-day period serves no useful purpose and backpay will
commence as of the unconditional offer to return to work. Newport
News Shipbuilding, 236 NLRB 1637, 1638 (1978), enfd. 602 F.2d 73
(4th Cir. 1979).

TITAN TIRE CORP. 1161
(h) Within 14 days after service by the Region, post at
its facilities in Des Moines, Iowa, copies of the attached
notice marked “Appendix.”14 Copies of the notice, on
forms provided by the Regional Director for Region 18,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since May 1, 1998.
(i) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsi-
ble official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT threaten to discontinue group insur-
ance benefits for employees on approved leaves of ab-
sence at the time a strike begins; threaten to move
equipment and bargaining unit jobs from the Des
Moines, Iowa facility; threaten to employ permanent
replacements for employees engaged in an unfair labor
practice strike; and threaten to implement unilateral
changes to employees’ terms and conditions of employ-
ment without first having reached a valid, good-faith
impasse through collective bargaining.

14 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
WE WILL NOT refuse to bargain collectively with
United Steelworkers of America, AFL–CIO, CLC and its
Local 164L, as the exclusive representative of our em-
ployees in the appropriate unit set forth below, about
decisions entailing mandatory subjects of bargaining,
including decisions to move equipment or bargaining
unit jobs from the Des Moines, Iowa facility. The ap-
propriate unit is:

All full-time and regular part-time incentive and
hourly-rated production and maintenance employees,
including shipping, receiving and warehouse employ-
ees, janitors, storekeepers, powerhouse employees, fin-
ished tire inspectors, laboratory development employ-
ees, scheduling employees, but shall exclude execu-
tives, superintendents, foremen, supervisors, office and
clerical workers, employees engaged in engineering,
salaried, scheduling, laboratory and development work,
including quality control technicians and plant protec-
tion employees, and any other non-certified office and
clerical employees, engineers and professional employ-
ees, research and development employees, guards
watchmen and supervisors as defined in the National
Labor Relations Act.

WE WILL NOT refuse to provide the Union with in-
formation regarding the moving of equipment and/or
jobs from Des Moines, Iowa, to Brownsville, Texas.
WE WILL NOT refuse to provide the Union with a list
of replacement workers.
WE WILL NOT unilaterally change our employees’
terms and conditions of employment without first having
reached a valid, good-faith impasse in bargaining collec-
tively with their exclusive bargaining representative.
WE WILL NOT unilaterally change group insurance
benefits without providing notice to the Union and an
opportunity to bargain about such changes.
WE WILL NOT discontinue group insurance benefits
for employees on approved leaves of absence at the time
a strike begins in retaliation for the employees engaging
in activity protected by Section 7 of the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request of the Union, reinstate the pol-
icy, in effect before May 1, 1998, regarding maintenance
and/or payment of employees’ health, dental, life and
long-term disability insurance policies, for employees
who were on approved leaves of absence as of May 1,
1998; WE WILL notify those 24 employees in writing

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1162
that we have done so; and WE WILL make all affected
employees whole for any losses they suffered as a result
of our illegal May 1, 1998 action, with interest.
WE WILL, on request of the Union, restore and re-
sume production operations at our Des Moines, Iowa
facility in a manner consistent with the level and manner
of operation that existed before we commenced removing
equipment in early June 1998; WE WILL offer rein-
statement to those bargaining unit employees who lost
their jobs due to the removal of equipment that began in
early June 1998; and WE WILL make them whole for
any loss of earnings and other benefits, less any net in-
terim earnings, plus interest.
WE WILL provide the Union with the information it
requested on June 19, 1998, regarding the transfer of
equipment and/or jobs from Des Moines, Iowa, to
Brownsville, Texas; and the information it requested on
June 21, 1998, regarding a list of replacement workers.
WE WILL, on request of the Union, revoke the im-
plementation of our last, best, and final offer on June 22,
1998; WE WILL restore all terms and conditions of em-
ployment as they existed on June 22, 1998; WE WILL
notify each bargaining unit member in writing that the
foregoing has been done; and WE WILL make whole
any employees adversely affected by the unlawful June
22, 1998 implementation, with interest.
WE WILL, on request, bargain in good faith with the
Union as the exclusive representative of our employees
in the unit set forth above concerning wages, hours, and
other terms and conditions of employment, including the
moving of equipment and jobs from the Des Moines,
Iowa facility, until we reach an agreement or a valid
good-faith impasse.
WE WILL, on an unconditional application to return to
work by any striking employee who was not permanently
replaced prior to May 14, 1998, offer that employee im-
mediate and full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights and privi-
leges, discharging, if necessary, any temporary replace-
ment hired on or after May 14, 1998; and WE WILL make
such employees whole for any loss of earnings and other
benefits they may have suffered as a result of our refusal,
if any, to reinstate them within 5 days of their. uncondi-
tional offer to return to work, with interest.

TITAN TIRE CORPORATION

Florence I. Brammer, Esq., for the General Counsel.
Charles R. Armstrong, Esq., Akron, Ohio, for the Union.
Gene R. LaSuer, Esq. (Davis, Brown, Koehn, Shors & Roberts, P.C.), Des Moines, Iowa, for
the Respondent.
DECISION
I. STATEMENT OF THE CASE
JERRY M. HERMELE, Administrative Law Judge. The United Steelworkers of America,
AFL–CIO, CLC and its Local 164L (the Union), went on strike against Titan Tire Corpora-
tion’s Des Moines, Iowa plant on May 1, 1998. In a September 15, 1998 complaint, the Gen-
eral Counsel alleges that, as the strike went on, the Respondent committed various unfair labor
practices, thus violating Section 8(a)(1), (3) and (5) of the National Labor Relations Act. These
alleged violations included discontinuing on-leave employees’ insurance benefits, transferring
equipment and jobs out of the Des Moines plant to other Titan facilities, and implementing a
final offer without reaching a valid bargaining impasse. In September 28 and October 13, 1998
answers, however, the Respondent denied the unfair labor practice allegations and maintained
that the continuing strike is purely over economic matters. It also maintained that the move-
ment of equipment out of Des Moines was not something that needed to be bargained over.
A two-day trial was held in Des Moines, on October 13 and 14, 1998, during which the
General Counsel called three witnesses and the Respondent called two witnesses. Both parties
relied heavily on written evidence, primarily concerning their 1998 contract negotiations.
Finally, the Union filed a brief on November 16, 1998, as did the General Counsel and the
Respondent on November 17, 1998.
II. FINDINGS OF FACT
Titan Tire Corporation (Titan) manufactures tires for specialized vehicles, other than pas-
senger cars and trucks. Its parent, Titan International, manufactures wheels and is headquar-
tered in Quincy, Illinois. Titan derives annual gross revenues over $500,000, and receives over
$50,000 annually in interstate goods at its Des Moines plant (G.C. Ex. 1(e); Tr. 51). In 1994, it
purchased existing plants in Des Moines and Clinton, Tennessee to complement the company’s
wheel-manufacturing function. At the time, the Des Moines plant was owned by the Pirelli
Armstrong Corporation (Pirelli). On July 16, 1994, one day after the Union called a strike,
Titan purchased the Des Moines plant. Thereafter, the Union made an unconditional offer to
return to work, Titan recognized the Union, and negotiations commenced, resulting in a new
contract which ran until April 30, 1998 (G.C. Ex. 11; Tr. 52, 83–84, 319).1
After acquiring the Des Moines plant, Titan began to phase out the production there of
smaller size tires, for vehicles such as lawn tractors, garden tractors, and golf carts. Instead,
Titan focused on the market for vehicles using larger tires, such as agricultural tractors, and
road constructing, logging and mining vehicles (Tr. 51, 259, 320–22). In turn, the work for
smaller tires became centered in the nonunion Tennessee plant (Tr. 52-53, 263). To that end,
various pieces of manufacturing equipment were transferred from Des Moines to Clinton,
Tennessee from July 1995 to June 1996 (R. Ex. 16; Tr. 275–76). The Union never requested to
bargain with Titan over these transfers (Tr. 277).
In late 1996, Titan announced its intention to build a new plant in Brownsville, Texas to
provide additional manufacturing capacity for small and large tires (Tr. 47–48, 160, 326).
According to Titan’s President, Maurice Taylor, Jr., and Vice President William Campbell, it
was not intended that Brownsville compete with, or siphon work away from, the Des Moines
plant (Tr. 302, 325). Rather, Brownsville was being built because of its proximity to available
rubber in Texas and offshore areas, and because of the nearby Mexican and South American
tire markets (Tr. 324). Indeed, Taylor told Local 164L’s President John Peno in 1997 that jobs
would not be lost in Des Moines because of Brownsville (Tr. 327). The Brownsville plant is
scheduled to be operational in early 1999 (Tr. 47).
There are 670 bargaining unit employees at the Des Moines plant (Tr. 83). In the first few
months of 1998, Titan hired 72 new workers at Des Moines (Tr. 163). Also, there was over-
time aplenty for the employees (Tr. 164). Bargaining for a new contract began on March 16,
1998, and encompassed 35 to 45- sessions. The main negotiators were Union President Peno
and Titan’s lawyer, Gene LaSuer (Tr. 116, 191). The parties never refused to meet with each
other before the April 30 contract deadline (Tr. 188). The Union’s main issues were the
following: pension benefits; retiree medical benefits; elimination of the two-tier wage system;

1 The contract was between Titan and the United Rubberworkers,
which later merged with the United Steelworkers on July 1, 1995
(Tr. 85).

TITAN TIRE CORP. 1163
job security; and reduction of overtime (Tr. 183-84). In late March and April 1998, Titan and
the Union exchanged written proposals (G.C. Exs. 24–25; R. Exs. 3–7). But no agreement was
reached as of 11:45 p.m. on April 30. Thus, notwithstanding Titan’s request that the Union stay
on the job past the April 30 contract expiration, the Union commenced a strike on May 1, 1998
(Tr. 85, 193–96).
Titan employees were covered by health, dental, life, and long-term disability insurance
policies2 (G.C. Exs. 19-23). When the employees began their strike, they lost their coverage
under these policies (Tr. 70). Several employees at the Des Moines plant were on approved
leave at the start of the strike (G.C. Ex. 12). Before the strike, these employees’ coverages
remained in effect, provided they paid their share of the policy’s premiums (G.C. Ex. 8). On
May 1, however, without prior notice to the Union, Titan sent 24 of the employees on leave a
letter, stating that “due to striking conditions you are no longer covered under the Titan Tire
Corporation Health Plan as of May 1, 1998.” But Titan explained that these employees could
continue the health and dental insurance on their own (G.C. Ex. 7).
The collective-bargaining agreement which expired on April 30 was silent as to any em-
ployee’s coverage for insurance purposes after April 30 (G.C. Ex. 11, pp. 47–49). The four
insurance plans were likewise silent. The issue of whether such coverage should continue
beyond the expiration of the contract was not discussed during the negotiation of the contract in
1994–95, or during the spring of 1998. By contrast, the Union’s old contract with Pirelli
provided for a 90-day grace period for insurance coverage following that contract’s expiration
(Tr. 240–42).
Within two weeks after the strike began, Pirelli and General Tire began to take the tire
molds they owned out of Titan’s Des Moines plant (Tr. 260–62). This resulted in a loss of
business and jobs (Tr. 303–04). Taylor informed Peno that the loss of the molds meant the
possible loss of work at the plant (Tr. 329). According to Peno, though, Taylor said that the
plant was operating with supervisors and that production at Des Moines “wasn’t suffering” a
few weeks into the strike (Tr. 336).
On May 14, 1998, Taylor held a press conference in Des Moines in which he stated:

We . . . have to make some decisions real fast. So what we attempt, to not end up with a settle-
ment, then we will start moving equipment out of the Des Moines facility to the Brownsville lo-
cation and it will be irreversible. We hope between now and then that this does not happen. . .

Once you start to move equipment, the riggers will come to move. It’ll move fast, it’s not gonna
be a truckload, it’s gonna be a lot of truckloads . . .

No, what’s gonna happen is you’ve got 650 now. Let’s just say that you, that you never get
anybody back. Then there’s, what’s gonna happen you’ve gotta have a workforce of 300. For
these who do come back and those who you hire . . .

That’s it. That’s it. I won’t go any higher. I’ll guarantee it. Someone out there might say it
will, but, you know, they got a different crystal ball than I got. . .

You’d just make [the plant] smaller. You’d just cut it right down and turn most of it into ware-
house.

Brownsville doesn’t have a damn thing to do with what’s going on here except that if we’re not
going to, if we gonna have a problem here, then it just makes your decision real simple. And
it’s not just the situation with the, um, what do you want to say, with the, just the workers, well
you’ve got a bunch of state problems too with the taxes. So instead of saying hey it’s no ques-
tion, this will always be our highest labor cost plant. We already recognize that.

(G.C. Exs. 2–3). In this connection, Titan decided that three tiring curing presses, which were
originally destined for delivery to Des Moines, would be installed elsewhere (Tr. 34, 37, 40, 76-
77). Further, Titan decided in June 1998 that other tire building equipment currently installed
in Des Moines would be shipped to Brownsville (G.C. Ex. 6; Tr. 41–46, 57–66). And so it was
(Tr. 81). Equipment would also be moved to Tennessee and to a Natchez, Mississippi plant
which Titan had just acquired (Tr. 52–53, 77–78). According to Titan Tire President Gary
Carlson, however, these latter equipment transfers were “not on a permanent basis” (Tr. 78).
According to Peno, he received no notice of the diversion or transfer of equipment from Des
Moines, at any time since 1995 (Tr. 158, 234, 337). But Vice President Campbell testified that
union members, including John Carroll, who was on the negotiating committee, helped to
disassemble the equipment bound for transfer out of Des Moines. Campbell added that no
union member ever complained about these transfers (Tr. 295–96, 307, 309–10).

2 Apparently, there were no employees receiving disability insurance
benefits during the strike (Tr. 115–16).
On June 18, 1998, Carlson wrote Peno:

Despite the misinformed rhetoric given to the media by some of your membership, you know
the equipment we moved was not idle equipment. It was being used to manufacture tires until
April 30, 1998. . .many jobs were lost because we have decided to place equipment that had
been purchased for Des Moines in other manufacturing facilities. Movement of the equipment
and the loss of jobs are the result of your committee’s decision to continue the strike.

(G.C. Ex. 4). Then, on June 25, Carlson answered Peno’s June 19 letter inquiring about the
“movement of jobs to Brownsville” (G.C. Ex. 47) as follows:

The “loss” of jobs in Des Moines is made up of three components. First, as a result of decisions
by Titan Tire management, equipment originally destined for installation in Des Moines will
now be installed at another location or locations. Second, there will be a loss of jobs with Titan
Tire’s decision to consolidate certain product lines in different locations. Third, there is a loss of
jobs due to a loss of business as a result of the strike.

(G.C. Ex. 5).
Bargaining continued between Titan and the Union through May and June 1998, with the
exchange of various written proposals (G.C. Exs. 26–35; R. Exs. 8, 13). On June 9, 1998, Peno
wrote Carlson a letter “demanding that Titan bargain. . . over the decision to transfer bargaining
unit work from the Des Moines facility. . . .” (G.C. Ex. 36). LaSuer responded by letter on
June 10, stating that “[u]nder the expired contract and the tentative agreement between the
parties, Titan has the right to establish where it will produce its products” (G.C. Ex. 37). Also
on June 10, LaSuer wrote that, [s]ince the parties have been unable to reach agreement, Titan
Tire now submits to the union its last, best and final offer” (G.C. Ex. 38). In response to both
of LaSuer’s letters, Peno wrote two letters of his own. First, regarding the movement of jobs
from Des Moines, Peno stated that there was no “enforceable tentative agreement between the
parties presently in effect” (G.C. Ex. 40). And regarding Titan’s final offer, Peno stated that
“the union has made substantial movement towards narrowing the gap between the parties’
positions.” Thus, Peno concluded that “the parties are not at impasse” (G.C. Ex. 41). Yet Peno
testified that Titan’s June 1, 1998 offer (G.C. Ex. 33) “represented some regression” (Tr. 131–
33).
On June 8, 1998, the Union filed unfair labor practice charges again Titan, alleging that Ti-
tan threatened to transfer 300 jobs from Des Moines if the employees did not end their strike
(G.C. Ex. 1(a)). Peno held a special meeting with his membership on June 20 to discuss these
charges and to inquire if the employees wished to continue the strike. They voted yes (Tr. 154–
56).
The Union never responded to Titan’s June 10 “last, best and final” offer (Tr. 225). On
June 18, Carlson wrote Peno that “if employees do not return to work, Titan Tire has the right
to permanently replace the workers” (G.C. Ex. 45). Also on June 18, Peno wrote Carlson that
because the employees were now engaged in an unfair labor practice strike, Titan could not
permanently replace these workers. Peno added that the Union “is willing to make substantial
additional movement from its current bargaining positions.” (G.C. Ex. 46). So, Peno submitted
a new written proposal on June 19 (G.C. Ex. 47). But he also asked for detailed information
regarding the equipment and jobs being moved out of Des Moines (G.C. Ex. 47). Titan never
provided any (Tr. 151–52). Then on June 21, the Union asked for “an up-to-date seniority list
(including probationary employees), which includes names, addresses, clock numbers, tele-
phone numbers, hire dates, birth dates and other information customarily provided to the
union.” (G.C. Ex. 48). Titan never provided this data (Tr. 153). As of June 22, Peno testified
that the parties were “very, very close” on certain issues (Tr. 158). But Peno conceded that all
the major issues were unresolved on June 22 (Tr. 157). So, on that day, Titan unilaterally
implemented its June 10, 1998 offer (G.C. Ex. 49). And the parties did not meet thereafter
(G.C. Ex. 9). According to Titan, it has operated ever since with replacement workers.3 On
3 See page 6 of the Respondent’s brief.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1164
August 7, 1998, Carlson opined that the transfer of equipment from Des Moines to Brownsville
cost Des Moines “between 30 and 50 unit jobs,” that 100 to 150 more jobs “could” be lost at
Des Moines, and that “there will be between 50 and 100 new jobs in Brownsville that, had there
been a satisfactory agreement and sufficient labor, would have been in Des Moines.” (G.C. Ex.
10). Also in August 1998, more equipment was transferred from Des Moines to Brownsville
(R. Ex. 16).
III. ANALYSIS
The General Counsel’s allegations against Titan cover the following four subjects: (a) the
unilateral discontinuance of insurance benefits for the Des Moines employees who were on
leave as of the start of the strike on May 1, 1998; (b) the transfer of manufacturing equipment
and/or jobs out of the Des Moines plant during the strike; (c) Titan’s hiring of replacement
workers and June 1998 failure to provide the Union with a list of those workers; and (d) Titan’s
unilateral June 22, 1998 implementation of its last, best and final offer when there was no
genuine, good-faith bargaining impasse with the Union. Moreover, the General Counsel
alleges that certain of these unfair labor practices converted the May 1, 1998 economic strike
against Titan into an unfair labor practice strike as of May 14, 1998.
A. The Discontinuance of Insurance Benefits for
Employees on Leave
Titan was justified in discontinuing the insurance coverages for striking employees. Doing
so regarding the 24 employees on leave at the start of the strike—who never joined the strike—
is another story. It is clear that, under these circumstances, Titan must “come forward with
proof of a legitimate and substantial business justification for its cessation of benefits.” In that
regard, Titan may show that the expired collective-bargaining agreement explicitly waived the
on-leave employees’ right to continue to receive these insurance benefits. Alternatively, Titan
may rely on a reasonable interpretation of some other portion of the collective-bargaining
agreement. Texaco, Inc., 285 NLRB 241, 246 (1987).
Here, Titan relies solely on two facts: the Union’s expired 1994 agreement with Pirelli pro-
vided for a 90-day extension of benefits; and the instant 1995–98 contract with Titan was silent
on the subject. In sum, Titan contends that the Union implicitly waived its right to continue
insurance benefits for these 24 employees after the expiration of the contract by failing to insist
in 1995 upon such a provision in the contract and by failing to discuss it in the spring of 1998
before the expiration of the contract. But Titan cites absolutely no legal support for its position.
Rather, the law is clear that such a waiver must be explicit. Therefore, the 24 on-leave employ-
ees’ insurance benefits “are a term and condition that survive the expiration of the collective-
bargaining agreement and are a mandatory subject of bargaining that an employer cannot alter
without providing the union an opportunity to bargain.” Jim Walter Resources, 289 NLRB
1441 (1988). Accordingly, because it is concluded that Titan’s unilateral and surprise termina-
tion violated Section 8(a)(1), (3) and (5) of the Act, it will be required to reinstate those insur-
ance policies and make all affected employees whole.
B. The Movement of Equipment From Des Moines
Titan transferred equipment from its union plant in Des Moines to its nonunion plant in
Tennessee from 1995 to 1996 without any loss of jobs in Des Moines. And the Union never
complained. Later in 1996, Titan informed the Union that it was building a new plant in
Brownsville, Texas and, again, that there would be no job loss in Des Moines. Likewise, the
Union never complained. But after the Union began its strike on May 1, 1998 at Des Moines,
Perelli and General Tire removed their own equipment therefrom, resulting in a loss of business
there. Also, Titan rerouted three 100-inch presses originally scheduled for delivery in Des
Moines, to Brownsville. Further, still more equipment was transferred, on a temporary basis,
from Des Moines to Titan’s two other plants in Tennessee and Mississippi. And from May
through August 1998, Titan-owned equipment was, according to President Taylor, permanently
transferred from Des Moines to Brownsville.
As all the parties recognize, Titan’s equipment transfers from Des Moines must be evalu-
ated pursuant to the standards set forth in Dubuque Packing Co., 303 NLRB 386, 391 (1991),
enfd. sub nom. Food & Commercial Workers Local 150-A v. NLRB, 1 F.3d 24 (D.C. Cir. 1993).
In that case, the Board recognized that an employer’s decision to relocate bargaining unit work
may be a mandatory subject of collective bargaining:

Initially, the burden is on the General Counsel to establish that the employer’s decision involved
a relocation of unit work unaccompanied by a basic change in the nature of the employer’s op-
eration. If the General Counsel successfully carries his burden in this regard, he will have estab-
lished prima facie that the employer’s relocation decision is a mandatory subject of bargaining.
At this juncture, the employer may produce evidence rebutting the prima facie case by establish-
ing that the work performed at the new location varies significantly from the work performed at
the former plant, establishing that the work performed at the former plant is to be discontinued
entirely and not moved to the new location, or establishing that the employer’s decision involves
a change in the scope and direction of the enterprise. Alternatively, the employer may proffer a
defense to show by a preponderance of the evidence: (1) that labor costs (direct and/or indirect)
were not a factor in the decision or (2) that even if labor costs were a factor in the decision, the
union could not have offered labor cost concessions that could have changed the employer’s de-
cision to relocate.

Applying these guidelines to the facts of this case, it is concluded that the General Counsel has
met his initial burden of showing that Titan relocated the same unit work from Des Moines to
Brownsville on a permanent basis. First, President Taylor clearly stated on May 14 that the
transfer “will be irreversible” and that the Des Moines workforce would shrink from 650 to
300. Although there was no permanent loss of jobs at Des Moines at the time of the General
Counsel’s September 1998 complaint, by virtue of the fact that Brownsville was still being
built, that plant is scheduled to open in early 1999. Second, the evidence indeed shows the
transfer and diversion of significant amounts of equipment from Des Moines to Brownsville
from May to August 1998. While Titan Vice President Campbell opined that equipment
headed to Brownsville was either obsolete or excess and, accordingly, that there was no job loss
at Des Moines (Tr. 296–99), that view was contradicted. Specifically, plant President Carlson
wrote on June 18 and June 25, 1998 that “the equipment we moved was not idle equipment”
(G.C. Ex. 4), and that there was in fact a loss of jobs at Des Moines (G.C. Ex. 5). Therefore, the
General Counsel has proven that, without bargaining over the subject, Titan relocated “unit
work unaccompanied by a basic change in the nature of the employer’s operation.” However,
based on Carlson’s unrebutted testimony, Titan’s unilateral equipment transfers to Tennessee
and Mississippi did not violate the Act because these were temporary measures taken to con-
tinue operation during the pendency of the strike. See Land Air Delivery, 286 NLRB 1131
(1987).
Turning to Titan’s asserted, opaquely asserted, and unasserted defenses, it first contends
that the work transferred from Des Moines involved only small-to-medium size tires, which
were no longer being manufactured in Des Moines. But the evidence before May 1, 1998 only
establishes that production of these smaller tires was decreasing in Des Moines, not that it had
stopped or would stop altogether. Second, Titan unpersuasively argues that the decision to
relocate work in Brownsville was made before the May 1 strike. Although Titan began trans-
ferring equipment to Brownsville on the eve of contract negotiations with the Union in Febru-
ary 1998, there is simply no evidence that it decided to relocate any jobs, much less 300 jobs, to
Brownville that early. Indeed, management informed the Union in 1996 that Brownsville
would have no adverse impact on Des Moines. Third, Titan argues that Taylor’s May 14, 1998
comments about a loss of Des Moines jobs were prompted by the decisions of Pirelli and
General Tire to take their tire molds out of Des Moines. While these tire molds were indeed
removed, no doubt resulting in the loss of some business in Des Moines, the Presiding Judge
does not believe that Titan has sufficiently proven that the loss of over 300 jobs in Des Moines
was caused solely by the decisions of Pirelli and General Tire. Indeed, Taylor said nothing
about Pirelli and General Tire in his May 14 statement. Fourth, Titan contends that the Union
waived its right to bargain over the transfer issue because certain union members knew about
the movement of equipment before the strike began. But there is no substantial evidence that
any union member knew about the resulting loss of jobs before May 1, 1998. Also, Union
President Peno credibly denied knowing of any such plans by Titan. Moreover, knowledge
about various equipment shipments, scattered among union members, does not constitute a
valid waiver by the Union of its right to bargain over such a key issue as the loss of almost one-
half of the Des Moines workforce. See Intermountain Rural Electric Assn., 305 NLRB 783,
786 (1991), enfd. 984 F.2d 1562 (10th Cir. 1993). Fifth, the General Counsel and the Union
address Titan’s anticipated defense of the “management rights” clause of the expired collective-

TITAN TIRE CORP. 1165
bargaining agreement. However, Titan failed to advance this defense in its brief. And it did so
for a good reason: that clause did not contain a “clear and unmistakable” waiver of the Union’s
right to bargain over the relocation issue. See Dubuque, supra at 397. Moreover, any such
clause expired with the collective-bargainging agreement on April 30, 1998. Furniture Rentors
of America, 311 NLRB 749, 751 (1993), enfd. in relevant part, 36 F.3d 1240 (3d Cir. 1994).
Sixth and finally, Titan produced absolutely no evidence at trial regarding the relative cost of
labor in Des Moines and Brownsville; a key defense recognized by the Board in Dubuque. In
short, Titan has failed to rebut the General Counsel’s showing.
To summarize this issue, Titan violated Section 8(a)(1) on May 14 when Maurice Taylor
threatened to relocate over 300 jobs from Des Moines to Brownsville. These threats were
obviously significant because they envisioned the loss of over half the Des Moines workforce
after the Union commenced a lawful economic strike against Titan. Because Taylor’s threat
was well-publicized (G.C. Ex. 18), the Union filed unfair labor practice charges in early June
1998, and the employees voted to continue their strike on June 20 upon discussing the charges.
Thus, Taylor’s May 14 bombshell, and subsequent implementation thereof, prolonged the strike
and converted what was an economic strike against Titan into an unfair labor practice strike.
C-Line Express, 292 NLRB 638 (1989).
It is unclear why the General Counsel did not allege a violation of Section 8(a)(3) as a re-
sult of Titan’s permanent relocation of unit jobs to Brownsville. But it is clear that Titan
violated Section 8(a)(1) and (5) refusing to bargain over the relocation of work from Des
Moines to Brownsville. Likewise, Titan violated Section 8(a)(1) and (5) by not providing the
Union with information about this subject during contract negotiations. Accordingly, Titan will
be required to provide the Union with the requested information, and to bargain with the Union
over this issue. Further, Titan will be required to restore operations at the Des Moines facility
to the status quo ante as of May 14, 1998. See Lear Siegler, Inc., 295 NLRB 857, 861 (1989).
C. The Hiring of Replacement Workers
While the record is unclear how many replacement workers have been hired, when they
were hired, and whether they were hired on a temporary or permanent basis, it is clear that
Titan threatened to hire permanent replacements on June 18, 1998. This threat violated Section
8(a)(1) because, as explained supra, the Des Moines employees were already engaged in an
unfair labor practice strike. Bozzuto’s, Inc., 277 NLRB 977 (1985). As for the Union’s request
for information about those replacement workers, Titan never provided it. But, in its role as the
representative of the Des Moines employees, the Union was entitled to such information.
Burkart Foam, 283 NLRB 351, 356 (1987), enfd. 848 F.2d 825 (7th Cir. 1988). The Respon-
dent’s only defense is that it did not have to provide information about “temporary” replace-
ments. But this contention is again without any cited legal support. Moreover, as this strike
drags on, it looks more and more like any replacements at Des Moines are permanent. Further,
the Respondent fails to explain why the Union had less need for information about “temporary”
workers. Therefore, it is concluded that Titan’s threat to hire permanent replacements violated
Section 8(a)(1), and its refusal to provide information to the Union about those workers vio-
lated Section 8(a)(1) and (5). Accordingly, Titan will be required to provide this information to
the Union, and to offer all employees who were not permanently replaced reinstatement to their
former jobs, upon an unconditional offer to return to work. Lucky 7 Limousine, 312 NLRB 770
(1993).
D. Titan’s Unilateral Implementation of its June 1998 Offer
The Respondent makes an impressive argument that Titan and the Union were at impasse
over all of the five key economic issues—pension benefits, retiree medical benefits, elimination
of the two-tier wage system, job security, and reduction of overtime—despite extensive bar-
gaining through June 22, 1998. But the Respondent ignores the legal principle that “[a] finding
of impasse presupposes that the parties prior to the impasse have acted in good faith. Gener-
ally, a lawful impasse cannot be reached in the presence of unremedied unfair labor practices.”
White Oak Coal Co., 295 NLRB 567, 568 (1989). Here, Titan committed various unfair labor
practices, starting on the first day of the strike, May 1, by terminating the insurance benefits of
on-leave employees. Its violations of the Act reached a crescendo when equipment, and over
half the jobs, were transferred out of the Des Moines plant. In the Presiding Judge’s view, the
gravity of these transfers are such that they are inexorably intertwined with each of the unre-
solved economic issues between Titan and the Union. Dynatron/Bondo Corp., 326 NLRB 1170
(1998); Noel Corp., 315 NLRB 905, 911 (1994), enfd. in relevant part 82 F.3d 1113 (D.C. Cir.
1996). Therefore, because it is concluded that Titan’s unremedied unfair labor practices
prevented the parties from reaching an agreement, Titan did not bargain to a good faith im-
passe. Accordingly, because its unilateral implementation of its final offer on June 22, 1998,
and prior threat to do so, violated Section 8(a)(1) and (5) of the Act, Titan will be required to
rescind the June 22 provisions and bargain in good faith with the Union.
CONCLUSIONS OF LAW
1. The Respondent, Titan Tire Corporation, is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, the United Steelworkers of America, AFL–CIO, CLC and its Local 164L, is
a labor organization within the meaning of Section 2(5) of the Act.
3. Pursuant to paragraphs 5(a), 6(a), 6(b), 11(a)(1), 11(b), 11(c), 16, 17, and 18 of the Gen-
eral Counsel’s complaint, the Respondent violated Section 8(a)(1), (3) and (5) of the Act by
threatening, on May 1, 1998, to discontinue insurance benefits for those employees on leave at
the time the strike commenced, by thereafter unilaterally failing to pay its contributions for
premiums for those insurance coverages and/or discontinuing those insurance coverages, and
by failing to bargain with the Union over these mandatory subjects.
4. Pursuant to paragraphs 5(b), 11(a)(2), 11(a)(3), 11(b), 11(c), 13(b), 13(c), 13(d), 16, and
18 of the complaint, the Respondent violated Section 8(a)(1) and (5) of the Act on May 14,
1998 by threatening to move equipment and unit jobs permanently out of Des Moines to
Brownsville, Texas, by thereafter doing so unilaterally, and by failing to furnish information to,
or to bargain with, the Union over these mandatory subjects.
5. Pursuant to paragraph 15 of the complaint, the Respondent’s violations of the Act, set
forth in paragraph 4, above, prolonged and converted the strike, which began on May 1, 1998
as an economic strike, into an unfair labor practice strike on May 14, 1998.
6. Pursuant to paragraphs 5(c) and 16 of the complaint, on June 17, 1998, when the em-
ployees were engaged then in an unfair labor practice strike, the Respondent violated Section
8(a)(1) of the Act by threatening the employees that it would hire permanent replacement
workers.
7. Pursuant to paragraphs 13(a), 13(c), 13(d), and 18 of the complaint, the Respondent vio-
lated Section 8(a)(1) and (5) of the Act by failing to furnish the Union, after a June 21, 1998
request, with a list of replacement workers.
8. Pursuant to paragraphs 5(d), 12, 14, 16, and 18 of the complaint, the Respondent violated
Sections 8(a)(1) and (5) of the Act by threatening to implement unilaterally its last, best and
final offer and by later doing so on June 22, 1998, without bargaining to a good faith impasse.
9. The Respondent’s unfair labor practices, described in paragraphs 3, 4, 6, 7, and 8, above,
affect commerce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]