TNT Logistics North America, Inc.

National Labor Relations Board - Board Decisions

May 4, 2006

346 N.L.R.B. 1301 (N.L.R.B. 2006)

TNT LOGISTICS NORTH AMERICA
346 NLRB No. 109
1301
TNT Logistics North America, Inc. and International
Union, United Automobile, Aerospace & Agri-
cultural Implement Workers of America
(UAW), AFL–CIO. Case 30–CA-16801–1
May 4, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On August 9, 2005, Administrative Law Judge Martin
J. Linsky issued the attached decision. The Respondent
filed exceptions and a supporting brief; the General
Counsel and the Charging Party filed answering briefs;
and the Respondent filed a reply brief to each of the an-
swering briefs.
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,2 and conclusions and
to adopt the recommended Order as modified3 and set
forth in full below.
Based on the facts set out below, we agree with the
judge that the Respondent violated Section 8(a)(5) and
(1) of the Act by failing and refusing to bargain in good
faith with the Union concerning the effects on employees
of its closing of its Janesville, Wisconsin facility.4 We

1 The Respondent has excepted to the judge’s granting of the Gen-
eral Counsel’s Motion in Limine to strike seven of the Respondent’s
eight affirmative defenses. We find no merit in the Respondent’s ex-
ception because we agree with the judge’s finding that the affirmative
defenses he struck were not relevant to the allegations in the complaint.
The Respondent also argues that the motion, filed 2 weeks before the
hearing and granted in a conference call 2 days prior to the beginning
of the trial, was untimely. We find no merit in this argument as the
timing of the motion complied with Sec.102.24 of the Board’s Rules
and Regulations and did not delay the hearing.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In addition, some of the Respondent’s exceptions imply that the
judge’s rulings, findings, and conclusions demonstrate bias and preju-
dice. On careful examination of the judge’s decision and the entire
record, we are satisfied that the Respondent’s contentions are without
merit.
3 We have modified the recommended Order to accord with our de-
cision in Ferguson Electric Co., 335 NLRB 142 (2001).
4 In adopting this conclusion, we find it unnecessary to rely on the
judge’s findings that the International Union, UAW, AFL–CIO was the
only entity that had authority to enter into a binding collective-
bargaining agreement or closing agreement, or that Roger Anclam and
George Graf were the International representatives vested with such
authority. Furthermore, we do not rely on the judge’s reference to the
further agree with the judge, for the reasons stated in his
decision, that a remedial order consistent with Transma-
rine Navigation Corp., 170 NLRB 389 (1968), is appro-
priate.
A. The Facts5
The Respondent performed logistic services for the
General Motors plant in Janesville, Wisconsin. On De-
cember 8, 2003, the Respondent learned that General
Motors rejected its bid to continue performing this work
and awarded the work to a competitor, Logistics Ser-
vices, Inc. (LSI). On January 28, 2004,6 the Respondent
announced in a letter to the Union that it would close the
facility and permanently lay off all employees in ap-
proximately 60 days (March 31). The letter stated,
among other things, that medical, dental, and life insur-
ance coverage would continue at no added cost for 31
days. On February 2, the Union, by International Repre-
sentative Roger Anclam, requested that the Respondent
bargain over the effects of the Respondent’s closing its
facility. On March 19, the parties met for approximately
45 minutes in their single face-to-face bargaining session
without reaching agreement or bargaining to impasse. At
that meeting, the Union presented its proposal for a clos-
ing agreement, which contained seven articles, four of
which requested adherence to specific contractual obliga-
tions.7 The Respondent, by its chief spokesman, John
Webb, responded by claiming that, based on media re-
ports, its employees would not experience any employ-
ment loss and that it had essentially no obligation to bar-
gain for a closing agreement because LSI was a succes-
sor to the Respondent. Webb stated that if the Union did
not agree with Respondent’s successorship position, the
Respondent would file an unfair labor practice charge
against the Union with the Board, a copy of which

unfair labor practice charge that the Respondent brought against the
Union as evidence of the Respondent’s bad faith. The judge also dis-
cussed three grievances that the Union filed against the Respondent; the
Respondent excepted, asserting that the judge implicitly found the
Respondent’s denials of the grievances to be evidence of bad faith. In
adopting the judge, we find it unnecessary to rely on or address the
judge’s discussion of the grievances. Finally, we disavow the judge’s
unnecessary “How generous” remark concerning the Respondent’s
agreement to allow employees to access their money in the Respon-
dent’s 401(k) plan.
5 The facts set out here are those found by the judge, augmented by
uncontroverted testimony in the record.
6 All subsequent dates are in 2004.
7 The Union’s proposal requested, with reference to the parties’ col-
lective-bargaining agreement: employer-paid benefits for 6 months for
permanently laid-off employees, compensation for current and accrued
vacation pay, compensation for the Good Friday holiday, and compli-
ance with certain seniority provisions. The proposal also requested the
following noncontractual benefits: access to 401(k) accounts, payment
of a severance package, and provision of recommendation letters.
DECISIONS OF THEN NATIONAL LABOR RELATIONS BOARD1302
charge was presented to the Union.8 At the end of the
meeting, Webb took the Union’s proposal for a closing
agreement, saying that the Respondent would cost it out
and get back to the Union.
On March 22, the Respondent responded in writing to
the Union’s proposal. It rejected all of the Union’s pro-
posals for a closing agreement as “not applicable as no
employment loss has occurred,” except for the article that
would permit employees to access their money in the
Respondent’s 401(k) plan.
During the following week, Webb exchanged several
phone calls with various International and Local union
officials9 in which he insisted that LSI was a successor to
the Respondent and the Union therefore should be en-
forcing the contract with LSI, rather than seeking to bar-
gain with the Respondent for a closing agreement.10 On
March 24, Webb told Unit Chair Rich Johnson that the
Respondent was not obligated to cover the benefits pro-
posed in the articles and that the successor was obligated
to provide the insurance benefits and vacation pay. When
Johnson said that there were other things in the proposal
“that needed to be looked at also,” Webb told him to “put
something on the table.” On March 29, when Johnson
told Webb that the local committee would drop three
articles and reduce its request for insurance coverage,
Webb replied that the Respondent had no obligation to
provide insurance coverage. When Anclam called Webb
later that day to follow up on Johnson’s discussion of
proposed modifications, Webb again argued that LSI was
a successor and that the Respondent would pursue its
unfair labor practice charge if the Union did not accede
to this position. Webb added that if the Union had any
proposals it should put them in writing. Anclam then
faxed Webb an offer to move on the severance proposal
and to discuss reducing the Respondent’s obligations
“through offsets that may take place with other employ-
ers.” Anclam directed Webb to get in touch with Local
Vice President Benash for further discussion as he would

8 On March 23, the Respondent filed the charge that Webb showed
the Union at this meeting, and the Regional Director dismissed it on
June 30.
9 Specifically, Unit Chair Rich Johnson, Local 95 First Vice Presi-
dent James Benash, UAW Regional Director Dennis Williams, Interna-
tional Representative Anclam, and UAW Attorney George Graf.
10 The judge found that LSI was a successor to the Respondent under
NLRB v. Burns Security Services, 406 U.S. 272 (1972), but not a “per-
fectly clear” successor bound by the terms of any existing collective-
bargaining agreement. Spruce Up Corp., 209 NLRB 194 (1974), enfd.
529 F.2d 516 (4th Cir. 1975) (successor is not bound by the terms of an
existing collective-bargaining agreement, unless it has made it “per-
fectly clear” that it plans to retain all the predecessor’s employees). No
party filed exceptions to these findings. The obligations of the succes-
sor do not relieve the predecessor of its own obligation to bargain about
the effects of its own decisions.
be out of town. The following day, March 30, Benash
informed Webb by fax that he was awaiting Webb’s
written response. Webb did not respond.
On March 31, the Respondent closed its Janesville fa-
cility. Webb faxed a letter to UAW Regional Director
Williams notifying him that the Respondent would pro-
vide the 31 days’ “benefit continuation” (as it had com-
mitted to in its January 28 letter), but added that it was
not obligated to pay for the benefits and would seek to
recover costs pending the resolution of its unfair labor
practice charge against the Union. Webb apparently also
told employee and former Unit Chair John Schulte11 that
the Respondent would pay the accrued and current vaca-
tion pay. The Respondent did not communicate its clos-
ing terms to the Union’s negotiators, or present these
terms as bargaining proposals to the Union’s negotiating
committee.
On April 1, when it began operations, LSI retained 290
of the Respondent’s employees. Approximately 70 re-
mained on permanent layoff.12 Webb conceded that he
learned of these numbers on April 1. Also on April 1,
Union Attorney George Graf called Webb to schedule
discussion of a closing agreement. Webb replied, “TNT
owes nobody anything because there is successorship
with LSI.” When asked to schedule a discussion, Webb
replied, “I’ll check my schedule and I’ll get back to you
on Monday.” He did not. He conceded on cross-
examination that after April 1 he made no attempt to con-
tact the Union.
B. The Judge’s Decision and the Respondent’s
Exceptions
In finding that the Respondent violated Section 8(a)(5)
and (1) by failing and refusing to bargain in good faith
with the Union,13 the judge relied on the Respondent’s
claim at the March 19 meeting that it “had essentially no
obligation” to bargain for a closing agreement. The judge
also relied on the following: the Respondent met only
once with the Union for less than an hour regarding a
closing agreement; the Respondent rejected all the Un-
ion’s proposals for a closing agreement as “not applica-
ble” except the one that would allow employees to access
their money in the Respondent’s 401(k) plan; the Re-
spondent filed an unfair labor practice charge against the

11 The judge found that Webb spoke to Johnson; the record indicates
that Webb spoke with Schulte who then spoke to Johnson, and that
Johnson ultimately conveyed this information to Benash.
12 Thirty additional employees did not survive their probationary pe-
riods with LSI.
13 In the proceeding below, the Respondent did not argue the posi-
tion that it initially took with the Union that it had essentially no obli-
gation to bargain for a closing agreement; rather, it asserted that it had
fulfilled its duty to bargain in good faith.
TNT LOGISTICS NORTH AMERICA 1303
Union; and, on and after April 1, when the Respondent
was in the best position to negotiate a closing agreement
because it then knew how many of its employees had
been hired by LSI, the Respondent nevertheless failed
and refused to meet with Union Attorney George Graf to
negotiate a closing agreement although requested by Graf
to do so. Because the judge found that the International
Union, UAW, AFL–CIO was the only entity that had
authority to enter into a binding collective-bargaining
agreement or closing agreement, and that Roger Anclam
and George Graf were the International representatives
vested with such authority, he rejected the Respondent’s
contention that dialogue between Webb and various un-
ion officials without negotiating authority amounted to
good-faith effects bargaining. The judge imposed a re-
medial order consistent with that required in Transma-
rine Navigation Corp., 170 NLRB 389 (1968).
In support of its argument that it fulfilled its duty to
bargain in good faith, the Respondent primarily relies on
telephone calls and faxes that Webb exchanged with
various union officials from March 22 through April 1
and disputes the judge’s finding that only Anclam and
Graf of the International Union had negotiating authority.
The Respondent also argues that it was unable to cost out
the Union’s proposal because it did not know how many
of its former employees would be hired by LSI. Finally,
the Respondent excepts to the judge’s Transmarine rem-
edy.
C. Analysis
Section 8(a)(5) of the Act requires bargaining “in a
meaningful manner and at a meaningful time” over the
effects of a decision to close a facility. First National
Maintenance Corp. v. NLRB, 452 U.S. 666, 681–682
(1981). A party who enters into negotiations with a pre-
determined resolve not to budge from an initial position
demonstrates “an attitude inconsistent with good-faith
bargaining.” General Electric Co., 150 NLRB 192, 196
(1964), enfd. 418 F.2d 736 (2d Cir. 1969), cert. denied
397 U.S. 965 (1970), discussed in American Meat Pack-
ing Corp., 301 NLRB 835 (1991). Nevertheless, the
Board considers the context of the employer’s total con-
duct in deciding “whether the employer is engaging in
hard but lawful bargaining to achieve a contract that it
considers desirable or is unlawfully endeavoring to frus-
trate the possibility of arriving at any agreement.” Public
Service Co. of Oklahoma (PSO), 334 NLRB 487 (2001),
enfd. 318 F.3d 1173 (10th Cir. 2003) (quoting Atlanta
Hilton & Tower, 271 NLRB 1600, 1603 (1984)). In Ste-
vens International, 337 NLRB 143, 149–150 (2001), the
Board found that the respondent did not engage in good-
faith effects bargaining. Although the respondent met
with the union and invited it to propose terms for a plant
closing agreement, the Board found bad-faith bargaining
because the respondent summarily rejected the union’s
proposal without offering a counterproposal and failed to
negotiate further, despite the union’s offer to modify its
proposal.14 Furthermore, the existence of a successorship
situation does not relieve an employer of its obligation to
engage in effects bargaining. See, e.g., Sierra Interna-
tional Trucks, Inc., 319 NLRB 948, 948–949 (1995) (af-
ter selling its business, employer unlawfully refused to
engage in effects bargaining, even though all but two
former employees continued to work for the successor
without a break in employment).
We find that the Respondent’s conduct here is incon-
sistent with the duty to bargain in good faith as applied in
the above precedent. The Respondent had only one brief
negotiating session with the Union and failed to respond
to the Union’s later requests for more bargaining. The
Respondent never discussed with the Union’s negotiating
committee what might be acceptable closing terms nor
did it make a counterproposal to the Union’s proposal.15
While an adamant insistence on a bargaining position is
not itself a refusal to bargain in good faith, the Respon-
dent’s position that it had essentially no obligation to
bargain is not the same as lawful hard bargaining, in
which a party insists on a position “to achieve a contract
it considers desirable.”16 Webb’s consistent message to
the Union was that the Respondent had no obligation to
negotiate a closing agreement because the successor,
LSI, was obligated to provide benefits for affected em-
ployees.
The Respondent never moved from that position, even
after April 1 when LSI took over operations and the Re-
spondent learned that LSI had not offered jobs to ap-
proximately 70 bargaining unit employees, contrary to
the Respondent’s prior claim that there would be no em-
ployment loss. Moreover, prior to April 1, the Respon-
dent justified its failure to bargain, in part, on its inability
to cost out the Union’s proposal without knowing how
many employees would be out of work. After April 1,
that justification no longer existed. As the judge ob-
served, even after the Respondent learned that 70 of its
employees had not been retained, it nevertheless failed to
respond to the Union’s bargaining request.

14 See also Dallas & Mavis Specialized Carrier Co., 346 NLRB 253,
257 (2006) (finding no good-faith bargaining where the respondent
listened and responded to the union’s proposal regarding the effects of
ceasing operations but then summarily rejected all but one of the un-
ion’s proposals without providing an explanation or counterproposal,
and did not respond when the union requested further bargaining).
15 Ibid.
16 Atlanta Hilton, 271 NLRB at 1603 (internal quotations and cita-
tion omitted).
DECISIONS OF THEN NATIONAL LABOR RELATIONS BOARD1304
Despite its initial position that it had no obligation to
bargain, the Respondent points to the fact that Webb and
various union officials exchanged phone calls and faxes
as evidence of good-faith bargaining. Webb’s communi-
cations to the Union after March 22 primarily involved
Webb’s insistence that the Union seek benefits from the
successor rather than pursue effects bargaining with the
Respondent. We cannot agree that its continued insis-
tence that the Union not pursue effects bargaining evi-
dences good-faith bargaining by the Respondent.17
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, TNT Logistics North America, Inc., Janes-
ville, Wisconsin, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing or refusing to bargain collectively and in
good faith with the International Union, United Automo-
bile, Aerospace and Agricultural Workers of America
(UAW), AFL–CIO concerning the effects resulting from
the closure of its Janesville, Wisconsin facility on March
31, 2004, on its employees in the following appropriate
unit:
All full-time warehouse, and maintenance employees,
and local truck drivers, employed by the Employer
within a fifty (50) mile radius, that serves Janesville
GM Assembly Plant excluding clerical employees, pro-
fessional employees, managerial employees, guards
and supervisors as defined in the Act.
(b) In any like or related manner interfering with, re-
straining, 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) Bargain in good faith with the Union concerning
the effects on employees which it represents resulting
from the closing of its Janesville, Wisconsin facility on
March 31, 2004.
(b) Make all employees represented by the Union who
were terminated on March 31, 2004, as a result of the

17 Chairman Battista notes that the Respondent may have had a
genuine good-faith belief in the legal correctness of its position and that
it was privileged to advance and seek to preserve that position. Merely
maintaining and asserting a bona fide, legal position does not violate
Sec. 8(a)(5). Nevertheless, the Respondent acted at its own peril when,
in reliance on that legal position, it failed to engage in meaningful
effects bargaining with the Union.
closing of the Janesville facility whole in the manner set
forth in the remedy section of the decision.
(c) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of the records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Within 14 days after service by the Region mail
copies, at the Respondent’s expense, of the attached no-
tice marked “Appendix”18 to the last known address of
each employee employed in the unit represented by the
Union; and similarly mail a copy of the notice to the Un-
ion at its business address. Copies of the notice, on
forms provided by the Regional Director for Region 30,
shall be mailed after being signed by the Respondent’s
authorized representative.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Anita C. O’Neil, Esq., for the General Counsel.
James M. Walters and Jenna S. Barresi, Esqs. (Fisher & Phil-
lips, LLP), of Atlanta, Georgia, for the Respondent.
George F. Graf, Esq. (Gillick, Wicht, Gillick, and Graf), of
Milwaukee, Wisconsin, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. On April 15,
2004, the International Union, United Automobile, Aerospace,
& Agricultural Implement Workers of America (UAW), AFL–
CIO (the Union), filed a charge in Case 30–CA–16801–1,
against TNT Logistics North America, Inc. (the Respondent).
On September 29, 2004, the National Labor Relations Board
(the Board), by the Acting Regional Director for Region 30,
issued a complaint alleging that Respondent since March 22,
2004, has failed and refused to bargain collectively with the
collective-bargaining representative of its employees about the
effects of its closing its facility in Janesville, Wisconsin, in
violation of Section 8(a)(1) and (5) of the National Labor Rela-
tions Act (the Act).
Respondent filed an answer in which it denied that it violated
the Act in any way.

18 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.”
TNT LOGISTICS NORTH AMERICA 1305
A hearing was held before me in Milwaukee, Wisconsin, on
April 20 and 21, 2005.1
On the entire record in this case, to include posthearing
briefs submitted by counsel for the General Counsel, counsel
for the Respondent, and counsel for the Charging Party and
giving due regard to the testimony of the witnesses and their
demeanor, I make the following
I. FINDINGS OF FACT
At all material times, Respondent, a corporation, with an of-
fice and place of business in Janesville, Wisconsin, has been a
provider of logistic services for manufacturing organizations.
Respondent admits, and I find, that at all material times, Re-
spondent has been engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that at all material times the
Union has been a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Overview
The following employees of Respondent (the unit) constitute
a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
:
All full-time warehouse, and maintenance employees, and lo-
cal truck drivers, employed by the Employer within a fifty
(50) mile radius, that serves Janesville GM Assembly Plant
excluding clerical employees, professional employees, mana-
gerial employees, guards and supervisor as defined in the Act.
Since June 30, 1997, and at all material times, the Union has
been the designated exclusive collective-bargaining representa-
tive of the unit. From June 30, 1997, to September 4, 2000, the
Union was recognized as a representative by Customized
Transportation, Inc. (CTI). This recognition was embodied in
successive collective-bargaining agreements, the most recent of
which is effective November 16, 2000, until November 16,
2004.
On or about September 4, 2000, Respondent purchased CTI,
recognized the Union as the designated exclusive collective-
bargaining representative of the unit, and assumed the collec-
tive-bargaining agreement between CTI and the Union de-
scribed above.
Respondent admits that at all times since June 30, 1997,
based on Section 9(a) of the Act, the Union has been the exclu-
sive bargaining representative of the unit.
On December 8, 2003, Respondent learned that its bid to
continue performing work for General Motors was rejected and
that this work was awarded to a competitor, Logistics Services,
Inc. (LSI).

1 Respondent’s motion to correct transcript, as modified by the Gen-
eral Counsel’s response to the motion to correct transcript, is granted.
The audiotapes of the hearing should be secured so that, in the unlikely
event this becomes an issue before the Board or courts, they will be
available.
On January 28, 2004, Respondent announced that it was
closing its facility in Janesville, Wisconsin, due to the loss of its
only customer, General Motors, and sent the following letter to
the Union.
January 28, 2004
Mr. Mike Sheridan
President
UAW Local 95
1795 Lafayette Street
P.O. Box 1386
Janesville, WI 53547
Dear Mike:
This will serve to inform you that TNT Logistics North
America Inc. is closing its General Motors, Janesville,
Wisconsin facility because of a loss of business. As a re-
sult, TNT will initiate a permanent layoff. As part of this
permanent layoff, the employment of all bargaining unit
employees will be terminated effective sixty days begin-
ning the day after receipt of this correspondence. Insofar
as this represents a total loss of business, there are no
“bumping rights” in connections with this permanent lay-
off.
Bargaining unit employees will be eligible to receive
their usual pay and benefits under ERISA Benefit Plans
prior to date of layoff. If bargaining unit members are en-
rolled in the TNT’s medical, dental, and life insurance
plans, coverage under these plans will continue at no addi-
tional cost for 31 days beginning the first day of the month
following the employees’ termination date. Bargaining
unit employees will be eligible to elect an extension of
group medical, dental, or HMO coverage under applicable
law, provided this election is made within 60 days of ter-
mination date. If continuation is elected the bargaining
unit employees will be responsible for the cost of the cov-
erage.
I regret that this notice of permanent layoff must be
given. If you have any questions, please feel free to con-
tact me.
Sincerely,
John D. Webb
On February 2, 2004, the Union, by International Represen-
tative Roger Anclam, requested that Respondent bargain collec-
tively with the Union as the exclusive bargaining representative
of the unit over the effects of Respondent closing its facility in
Janesville, Wisconsin.
On Friday, March 19, 2004, Respondent and the Union met
to bargain over the effects of Respondent’s facility closing
without reaching an agreement or bargaining to a good-faith
impasse.
It is alleged that Respondent violated Section 8(a)(1) and (5)
of the Act by failing and refusing to bargain collectively with
the Union about the effects of its closing of its plant.
What is effects bargaining? In this case Respondent lost its
only customer, General Motors. General Motors decided to
switch its business from Respondent to a competitor, LSI.
DECISIONS OF THEN NATIONAL LABOR RELATIONS BOARD1306
It is conceded by all the parties to this litigation that Respon-
dent was legally entitled, having lost the work to a competitor,
to close its Janesville, Wisconsin facility. The only duty Re-
spondent had under the circumstances of this case was to bar-
gain in good faith with the representative of its employees
about the effects of its closing of the Janesville, Wisconsin
facility. See First National Maintenance Corp. v. NLRB, 452
U.S. 666 (1981).
Effects bargaining or bargaining for a “closing agreement,”
as it was sometimes referred to in this litigation, is the duty to
bargain about the effects of the closing of the business on its
represented employees, e.g., vacation pay, holiday pay, access
to 401(k)s, severance pay, letters of recommendation for em-
ployees losing their jobs, continuation of health or life insur-
ance, etc.
The General Counsel and the Union argue that Respondent
failed in its duty to bargain in good faith over the effects of its
closing of the Janesville, Wisconsin facility. Respondent ar-
gues that it did bargain in good faith.
I find that Respondent violated the Act as alleged in the
complaint.
B. Motion in Limine
In its answer to the complaint Respondent pleaded eight af-
firmative defenses. The General Counsel filed a Motion in
Limine seeking to strike seven of the eight affirmative de-
fenses.
I granted the General Counsel’s Motion in Limine during a
telephone conference call with the lawyers for the General
Counsel, Respondent, and the Charging Party on April 18,
2005, 2 days prior to the beginning of the trial. I gave Respon-
dent’s counsel an opportunity to state on the record why he felt
the Motion in Limine should have been denied and why he
needed the evidence he thought he could produce in support of
those affirmative defenses. Respondent did so at the end of his
case on April 21, 2005.
Suffice it to say I granted the motion, because the affirmative
defenses I struck were not, in my judgment, relevant to the
allegations in the complaint.
As noted above, General Motors decided on December 8,
2003, to have the work done by Respondent transferred to LSI.
The Union was under no obligation to make concessions in
its collective-bargaining agreement with Respondent, which ran
from November 16, 2000, to November 16, 2004, so that Re-
spondent could submit a more favorable bid to General Motors
in hopes of keeping the work that General Motors decided to
transfer to LSI.
C. Discussion
The only time the parties met face to face to engage in ef-
fects bargaining was on Friday, March 19, 2004. The meeting
lasted approximately 45 minutes. There were approximately
360 employees in the bargaining unit.
At that meeting, the Union presented their proposal for a
closing agreement. It contained seven articles and was as fol-
lows:
Due to the permanent layoff and plant closing announced and
scheduled by TNT, Inc. of its Janesville, Wisconsin operation,
UAW Local 95, Unit #13 is proposing the following as a clos-
ing agreement.
ARTICLE I
The Company will provide benefits to all eligible Bargaining
Unit employees as outlined in the Collective Bargaining
Agreement in Article XVIII, Section 4D.
ARTICLE II
The Company will compensate all eligible bargaining unit
employees for current vacation entitlement balances and ac-
crued entitlement balances, under Article XXI, to be paid on
the pay checks of March 25, 2004.
The Company will provide a list indicating all such hours for
all employees.
ARTICLE III
The Company will allow bargaining unit employees who are
401K participants under Article XIX the ability to access their
accounts for the purpose of directing, redirecting, removing or
transferring funds at the participant’s discretion.
ARTICLE IV
The Company will pay severance pay to all bargaining unit
employees based on a formula of 40 hours pay for each year
of service and partial years paid at 1/12 (3.33 hours) of 40
hours for each full month.
ARTICLE V
The Company will provide letters of recommendation for the
purpose of seeking employment to all bargaining unit em-
ployees who request a letter.
ARTICLE VI
Per Article XX Section 3 of the Collective Bargaining
Agreement, the Company will compensate all eligible bar-
gaining unit employees for the Good Friday Holiday for 10
hours pay at the appropriate rate.
ARTICLE VII
The Company will comply with Article X Section 3 E and all
other provisions of the Collective Bargaining Agreement.
At the meeting on March 19, 2004, Respondent, by its chief
spokesman, John Webb, claimed that Respondent had essen-
tially no obligation whatsoever vis-a-vis a closing agreement
because LSI was a successor to Respondent and the people
represented by the Union were not entitled to anything from
Respondent. Webb presented a typed record of news accounts
from the newspaper and radio that suggested that Respondent’s
employees would be hired by LSI. Webb also threatened to file
an unfair labor practice charge with the Labor Board alleging
that the Union had violated the Act. Webb produced a copy of
a Labor Board charge and presented it to the Union at this
meeting.
TNT LOGISTICS NORTH AMERICA 1307
The alleged unfair labor practice the Union allegedly com-
mitted was as follows:
Since on or about September 22, 2003, the above-
named labor organization, by and through its officers,
agents and representatives of UAW Region 4, [7435 South
Howell Avenue, Oak Creek, Wisconsin 55154; attention:
Mr. Roger Anclam, International Representative], and its
Local Union No. 95 [1795 Lafayette Street, Janesville,
Wisconsin 53547-1386, attention: Mr. Mike Sheridan,
President], has failed and refused to bargain in good faith
with representatives of TNT Logistics North America, Inc.
(TNT), by engaging in the following actions:
(a) Refusing TNT’s good-faith request for necessary
contract modifications;
(b) Engaging in bargaining with Logistics Services,
Inc. (LSI) and its subsidiary Logistics Insight, Inc. (L11)
[2929 Venture Drive, Janesville, Wisconsin 53546; atten-
tion: Mr. Don Bergquist, Operations Manager] a presump-
tive successor to TNT, over the terms and conditions of
employment for present and former TNT employees not
yet hired by LSI/LII, all to the economic and bargaining
detriment of TNT.
At the end of the meeting on March 19, 2004, which lasted
less than an hour, Webb took the Union’s seven article proposal
for a closing agreement, said Respondent would cost it out, and
get back to the Union.
On Monday, March 22, 2004, 3 days later, Respondent re-
sponded in writing to the Union’s proposal as follows:
ARTICLE I
TNT rejects this proposal as “not applicable” as no employ-
ment loss has occurred as contemplated by federal or state
law, the collective bargaining agreement, or any side letters of
agreement or understanding thereto that would result in a trig-
gering of the language referenced by the Union in its pro-
posal.
ARTICLE II
TNT rejects this proposal as “not applicable” as no employ-
ment loss has occurred as contemplated by federal or state
law, the collective bargaining agreement, or any side letters of
agreement or understanding thereto that would result in a trig-
gering of the language referenced by the Union in its pro-
posal.
ARTICLE III
TNT will allow bargaining unit members who are participants
in TNT’s 401(k) to access their accounts for purposes of fa-
cilitating bargaining unit members’ participation in any corre-
sponding 401(k) offered by the successor employer of the
bargaining unit members.
ARTICLE IV
TNT rejects this proposal as “not applicable” as no employ-
ment loss has occurred as contemplated by federal or state
law, the collective bargaining agreement, or any letters of
agreement or understanding thereto that would result in the
necessity of consideration of such a proposal.
ARTICLE V
TNT rejects this proposal as “not applicable” as no employ-
ment loss has occurred as contemplated by federal or state
law, the collective bargaining agreement, or any letters of
agreement or understanding thereto that would result in the
necessity of consideration of such a proposal.
ARTICLE VI
TNT rejects this proposal as “not applicable” as no employ-
ment loss has occurred as contemplated by federal or state
law, the collective bargaining agreement, or any side letters of
agreement or understanding thereto that would result in a trig-
gering of the language referenced by the Union in its pro-
posal.
ARTICLE VII
TNT rejects this proposal as “not applicable” as no employ-
ment loss has occurred as contemplated by federal or state
law, the collective bargaining agreement, or any side letters of
agreement or understanding thereto that would result in the
triggering of the language referenced by the Union.
As can be seen Respondent rejected out of hand as “not ap-
plicable” all of the Union’s proposals for a closing agreement
except article III which would permit employees to access their
very own money in Respondent’s 401(k) plan. How generous.
The very next day Tuesday, March 23, 2004, Respondent
filed a charge in Case 30–CB–4907 against the Union with
Region 3 in Milwaukee, Wisconsin.
The charge was the same as the charge Respondent threat-
ened to file against the Union at their one and only face to face
effects bargaining meeting just 4 days earlier.
It was not until April 1, 2004, that Respondent and the Union
knew how many of Respondent’s employees would be hired by
LSI. Not all employees of Respondent were hired by LSI, but a
majority of 290 out of approximately 360 were hired. Of the
290 hired 30 failed to successfully complete their probationary
period with LSI and were terminated.
The Region dismissed Respondent’s charge against the Un-
ion on June 30, 2004, pointing out, inter alia that LSI was a
successor to Respondent because a majority of LSI’s employ-
ees are former employees of Respondent and LSI is performing
essentially the same work with the same equipment. And, for
the same customer of course, General Motors. However, a
Burns2 successor, while obligated to bargain with the Union, is
not bound by the terms of any existing collective-bargaining
agreement and is free to unilaterally set new terms and condi-
tions of employment unless, as found in Spruce Up Corp.,3 that
by its conduct the successor has made it “perfectly clear” that it

2 NLRB v. Burns Security Services, 406 U.S. 272 (1972).
3 209 NLRB 194 (1974), enfd. 529 F.2d 516 (4th Cir. 1975).
DECISIONS OF THEN NATIONAL LABOR RELATIONS BOARD1308
plans to retain all the predecessor’s employees as a majority of
its own work force, which LSI did not do. And this is true even
if, as in this case, there is a clause in the collective-bargaining
agreement between Respondent and the Union binding succes-
sors as there was in this case.
Under Section 8(d) of the Act neither party to a collective-
bargaining agreement—such as Respondent and the Union with
respect to the November 16, 2000, to November 16, 2004 col-
lective-bargaining agreement—is required to “discuss or agree
to any modification of terms and conditions contained in a con-
tract for a fixed period” if the modification is to become effec-
tive before the contract expires or before the matter can be re-
opened under the provisions of the contract.
George Graf, Esq., is an attorney who has represented the
Union for years. He was present at the one and only face to
face effects bargaining session on March 19, 2004.
On April 1, 2004, Graf spoke with Respondent’s chief nego-
tiator, John Webb, seeking to get together with Webb to ham-
mer out a closing agreement. Webb never got back to Graf to
have such an effects bargaining session or sessions.
Interestingly enough it was not until April 1, 2004, and
thereafter that the parties would be in the best position to ham-
mer out a closing agreement, because it was only on April 1,
2004, and thereafter that the parties knew how many of Re-
spondent’s employees would be hired by LSI and would, there-
fore, be eligible for health insurance from LSI after 3 months
with LSI. And how many employees not hired by LSI would
need letters of recommendation because they would be out of
work. As it turned out LSI hired 290 of Respondent’s employ-
ees. Seventy were not hired and 30 former employees of Re-
spondent hired by LSI did not survive their probationary period
with LSI.
The following are the facts: that Respondent met once and
only once with the Union for less than an hour regarding a clos-
ing agreement; that Respondent threatened to file unfair labor
practice charges against the Union at that single meeting; that
Respondent promised to report back to the Union after costing
out the Union’s proposals for a closing agreement; that Re-
spondent, just days later, summarily rejected all the Union’s
proposals for a closing agreement except the one that would
allow employees to access their very own money in Respon-
dent’s 401(k) plan; that Respondent just 4 days after meeting
with the Union filed unfair labor practice charges against the
Union which were dismissed; that on and after April 1, 2004,
when Respondent was in the best position to negotiate a closing
agreement because it now knew how many of its employees
had been hired by LSI Respondent nevertheless failed and re-
fused to meet with Union Attorney George Graf to negotiate a
closing agreement although requested by Graf to do so. In light
of these facts it is obvious that Respondent violated Section
8(a)(1) and (5) of the Act by failing and refusing to engage in
good faith effects bargaining.
D. Union Officials’ Authority to Negotiate a
Closing Agreement
The Charging Party in this case, i.e., International Union,
UAW, AFL–CIO, was the only entity that had authority to
enter into a binding collective-bargaining agreement or closing
agreement. The International representative with such author-
ity was Roger Anclam, the principal spokesman for the Union
at the March 19, 2004 effects bargaining session. On and after
April 1, 2004, Attorney George Graf had such authority.
UAW Local 95 is an amalgamated local union with 6000
members broken down into 14 units. Unit 13 was the TNT
bargaining unit with approximately 360 unit employees. Local
95 First Vice President Jim Benash was assigned to unit 13 and
Richard Johnson, prior to March 31, 2004, was the chairman of
the unit 13 committee. Benash and Johnson were without au-
thority to enter into a closing agreement. Again, it had to be a
representative of the International. In this case that would be
Roger Anclam or Attorney George Graf on behalf of the Inter-
national. Dialogue between Webb for Respondent and others
from the Union without authority to negotiate a closing agree-
ment does not amount to good-faith effects bargaining. In a
conversation on or about March 31, 2004, between Respon-
dent’s John Webb and unit 13’s Richard Johnson Webb agreed
to pay Respondent’s employees their accrued vacation pay.
E. Three Grievances
Three separate grievances were filed by the Union during the
period between December 8, 2003, when General Motors in-
formed Respondent that it would no longer be doing the se-
quencing work at its Janesville facility and April 1, 2004, when
LSI took over.
Grievance 2416 filed on February 13, 2004, requested that
permanently laid off employees receive health insurance cover-
age pursuant to article XVIII, section 4(d) which called for 6
months of paid benefits for permanently laid-off employees.
By letter dated February 17, 2004, John Webb offered to meet
on this grievance. The grievance was never resolved and the
permanently laid-off employees received the amount of paid
insurance Respondent said it would provide in its letter to the
Union of January 18, 2004, advising the Union of the closing of
the facility, i.e., “31 days beginning the first day of the month
following the employees’ termination date.” This letter is set
out in full in section III,A of this decision. The content of Re-
spondent’s letter was not good-faith effects bargaining but the
announcement of a fait accompli.
Grievance 2474 filed on March 25, 2004, requested that Re-
spondent comply fully with the provisions of article 18 (Insur-
ance), article 20 (Holidays), and article 21 (Vacations). Griev-
ance was denied by Respondent which took the position it
would only comply with the contract between it and the Union
up to March 31, 2004, when its operations would be turned
over to LSI.
Grievance 2477 filed on March 29, 2004, requested that Re-
spondent continue to provide health insurance for employees
hired by LSI for 90 days after their employment with Respon-
dent terminated and for 6 months for those employees not hired
by LSI. Respondent denied the grievance consistent with its
position at the bargaining session on March 19, 2004, i.e., Re-
spondent’s employees should be looking to LSI as a successor
for insurance coverage and not Respondent. These employees
hired by LSI would not receive insurance coverage from LSI
until they had worked for LSI for 3 months. In its letter dated
January 18, 2004, Respondent advised the Union that all em-
TNT LOGISTICS NORTH AMERICA 1309
ployees would get 31 days of insurance coverage after termina-
tion as spelled out above when discussing grievance 2416 and
in section III,A, above.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(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 failing and refusing to bargain in good faith with the
Union concerning the effects on employees of its closing of its
Janesville, Wisconsin facility, Respondent engaged in an unfair
labor practice within the meaning of Section 8(a)(1) and (5) of
the Act.
4. This unfair labor practice affects commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Since Respondent violated Section 8(a)(1) and (5) of the Act
by failing and refusing to engage in good-faith effects bargain-
ing the remedy should include a cease-and-desist order along
with the remedy spelled out for situations such as this in the
Board’s landmark decision in Transmarine Navigation Corp.,
170 NLRB 389 (1968). See also Sierra International Trucks,
Inc., 319 NLRB 948 (1995).
The Board in Transmarine required that an employer who
has unlawfully refused to engage in effects bargaining provide
unit employees with a minimum of 2 weeks’ backpay.4 The
goal of the limited backpay requirement is both to make em-
ployees whole for losses suffered as a result of the 8(a)(5) vio-
lation, and to recreate in a practicable manner a situation in
which the parties’ bargaining position is not entirely devoid of
economic consequences for the employer. The Respondent has
a duty to bargain over such matters as severance pay, payment
of accrued benefits, continuation of health benefits for employ-
ees not reemployed by the new employer, etc. Its failure to do
so requires that employees be made whole for losses incurred
by such failure.
The Respondent argues that a Transmarine backpay award is
inappropriate in a situation when, as here, most of its employ-
ees secured employment with the new employer, and so have
purportedly suffered less losses. In the Raskin Packing Co.,
246 NLRB 78 (1979), case, the Board in determining that a
Transmarine backpay award would be inappropriate relied in
part on the fact that a successor employer offered employment
to all former employees of a closed plant. The Board seemed to
rely more heavily, however, on the fact that the former em-
ployer had closed the plant in an emergency situation, such that

4 The Board in Transmarine ordered an employer who had refused to
bargain over the effects on unit employees of a plant closure decision to
pay the employees at their normal rate of pay beginning 5 days after the
Board’s decision until (1) an effects bargaining agreement was reached;
(2) a bona fide bargaining impasse was reached; (3) the union failed to
timely request or commence bargaining; or (4) the union failed to bar-
gain in good faith—whichever event occurred first. Further, “in no
event shall this sum be less than these employees would have earned
for a 2-week period at the rate of their normal wages when last in the
Respondent’s employ.”
the union was never in a position to bargain over effects, there
having been no possible way to bargain over effects before the
closing. That is not the case here, the Union having requested
effects bargaining on February 2, 2004, 2 months before the
plant closed.
In Live Oak Skilled Care & Manor, 300 NLRB 1040 (1990),
also a successorship case, the Board declined to address
whether the 2 weeks’ backpay remedy should be applied re-
gardless of loss to employees, finding that it was not clear that
employees had not suffered any loss. The Board found a
Transmarine remedy appropriate, however, where the union
might have been able to secure additional benefits for employ-
ees. Also in Richmond Convalescent Hospital, 313 NLRB
1247 (1994), the backpay remedy was awarded where the union
requested effects bargaining “at a time when the Union might
have secured additional benefits for employees had the Re-
spondents bargained in a timely manner over effects.” In both
of these cases, the Board’s reference to a time when the union
“might have” been able to secure additional benefits clearly
refers to the bargaining strength only available to a union when
bargaining is timely. Likewise, the reference in Raskin to the
union’s not being “in a position of strength at a time when any
bargaining about effects could have taken place” explicitly
refers to the previous sentences in that decision, in which the
Board found that effects bargaining was not possible at any
time previous to the plant closing, making timely bargaining
impossible:
Respondent’s failure to bargain about effects here did not oc-
cur at a time the plant was still open. Respondent closed the
plant in an almost emergency situation, and there was no way
to bargain about effects before the closing. Thus, the predi-
cate for the back pay awards in all the cases cited disappears,
for the union was never in a position of strength at a time
when any bargaining about effects could have taken place.
Similarly, it does not seem necessary in this case to deter-
mine the extent of “actual” loss to employees. The Respon-
dent’s failure to bargain over the effects of the loss of the busi-
ness to LSI resulted in the Union’s inability to bargain for addi-
tional benefits, such as severance pay, and the employees’ con-
comitant loss of these potential additional benefits. The
Transmarine backpay remedy would therefore be appropriate in
this situation, serving to restore the Union’s bargaining position
to one with economic consequences should the Respondent
continue in its refusal to bargain.
Accordingly, the Respondent must bargain in good faith
concerning the effects of the closing of its business. Backpay is
awarded in accord with Transmarine, to unit employees com-
mencing 5 days after the date of the Board’s Decision and Or-
der in this case. Backpay is to be computed using the F. W.
Woolworth5 calendar quarterly formula, adding interest as re-
quired in New Horizons for the Retarded.6

5 90 NLRB 289 (1950).
6 283 NLRB 1173 (1987).
DECISIONS OF THEN NATIONAL LABOR RELATIONS BOARD1310
The recommended Order provides for the mailing of the at-
tached notice to employees which serve to advise the unit em-
ployees of their rights and the outcome of this matter.
[Recommended Order omitted from publication.]
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
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and pro-
tection
Choose not to engage in any of these protected activities
WE WILL NOT fail or refuse to bargain collectively and in
good faith with the International Union, United Automobile,
Aerospace and Agricultural Workers of America (UAW),
AFL–CIO concerning the effects resulting from the closure of
our Janesville, Wisconsin, facility on March 31, 2004 on our
employees in the following appropriate unit:
All full-time warehouse, and maintenance employees, and lo-
cal truck drivers, employed by the Employer within a fifty
(50) mile radius, that serves Janesville GM Assembly Plant
excluding clerical employees, professional employees, mana-
gerial employees, guards and supervisors as defined in the
Act.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed them by Federal law.
WE WILL, on request, bargain with the Union concerning the
effects on our employees in the above unit resulting from the
closure of our Janesville, Wisconsin facility.
WE WILL pay employees in the above unit who were termi-
nated on March 31, 2004 certain wages, with interest, as pro-
vided in the decision of the National Labor Relations Board.
TNT LOGISTICS NORTH AMERICA, INC.