Triumph-Adler Royal, Inc.

National Labor Relations Board - Board Decisions

May 22, 1990

298 N.L.R.B. 609 (N.L.R.B. 1990)

TRIUMPH-ADLER-ROYAL 609
Roytype Division, Triumph-Adler-Royal, Inc. and
International Union , United Automobile, Aero-
space and Agricultural Implement Workers of
America (UAW), Local 376, AFL-CIO. Cases
39-CA-2138-1 and 39-CA-2138-3
May 22, 1990
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFr AND DEVANEY
On June 30, 1987, the National Labor Relations
Board issued a decision in this proceeding finding
that the Respondent violated Section 8(a)(5) and
(1) of the Act by, inter alia , implementing its deci-
sion to subcontract and relocate bargaining unit
work without first bargaining to a bona fide im-
passe with the Union . The Board remanded the
proceeding to the judge for the limited purpose of
determining the appropriate remedies.'
On March 31 , 1989, Administrative Law Judge
Russell M . King Jr. issued the attached supplemen-
tal decision . The General Counsel and the Re-
spondent filed exceptions and supporting briefs,2
the Charging Party filed cross-exceptions , and the
General Counsel and the Respondent filed answer-
ing briefs.
The National Labor Relation Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the supplemental deci-
sion and the record in bight of the exceptions,
cross-exceptions , and briefs and has decided to
affirm the judge's rulings, findings, 3 and conclu-
sions, as modified herein.4
We agree with the judge , based on the record
before him, that an order requiring the Respondent
to reestablish its operations in Newington, Con-
necticut, would be unduly burdensome under the
circumstances of this case . As the judge found, for
several years prior to the relocation , the Respond-
ent had sustained substantial financial losses, and
1284 NLRB 810 (1987) Member Devaney was not a member of the
Board at the time of the issuance of the Board's original decision in this
proceeding.
2 The General Counsel and the Charging Party have filed motions to
strike certain attachments to the Respondents' briefs that allege the oc-
currence of additional facts since the close of the hearing, and the Re-
spondent has filed a statement in opposition to the motions. In view of
our affirmance of the judge's finding that reestablishment of the Respond-
ent's operations is not appropriate, we find it unnecessary to rule on the
motions
s The expiration date of the bargaining agreement applicable at the
time of the relocation was March 23, 1985, and not March 23, 1986, as
the judge stated.
4 The Respondent has requested oral argument The request is denied
as the record, exceptions, cross-exceptions, and briefs adequately present
the issues and the positions of the parties.
the relocation itself cost the Respondent in excess
of $4 million. Although the General Counsel and
the Charging Party contend that the cost of a
return of the work to Connecticut would not reach
that magnitude, we find that an order to return to
Connecticut would impose an undue burden even if
the expenses were somewhat reduced, especially in
view of the necessity of major capital expenditures,
the long passage of time since the initial relocation,
and the prospect of facing a renewal of the envi-
ronmental concerns and problems that had previ-
ously affected its operation at Newington.5
Further, we find that _a remedy, including back-
pay, that is tailored to the present rather than past
circumstances better effectuates the purposes and
policies of the Act than does the Winn-Dixie
remedy ordered, by the judge, which requires the
Respondent to bargain over the previous decision
to relocate its operations and to bargain over the
reestablishment of operations in Connecticut, with
associated backpay obligations.6 Instead, as we re-
cently ordered under similar circumstances in
Reece Corp., 294' NLRB 448 (1989), we shall order
the Respondent to offer Newington bargaining unit
employees reinstatement to their former positions
at the facilities to which the Respondent unlawful-
ly transferred unit work, dismissing, if necessary,
any persons hired at those facilities. In addition, we
shall order the Respondent to offer to pay employ-
ees travel and moving expenses. If there is insuffi-
cient work for all employees to be offered rein-
statement, the' Respondent shall place the names of
those for whom work is not available on a prefer-
ential hiring list, in the order of their seniority, and
shall offer them jobs in the future before hiring
other persons. Employees offered reinstatement
shall be allowed ' a reasonable period of time for ac-
cepting such offers.7
5 The Respondent had been found in violation of Connecticut's State
Department of Environmental Protection (SDEP) standards after it had
moved from West Hartford to Newington, and had an ongoing dispute
with the Town of Newington over odors emitted from the plant, which
included a pending lawsuit against it at the time it decided to relocate the
Newington plant. See those portions of the judge's original decision, at
284 NLRB 813, 815, as well as fn. 7 of his supplemental decision. The
Respondent contends that, if it returned to Newington, it would likely be
faced with further legal battles in connection with its environmental
problems, as well as substantial rises in costs to meet Connecticut's rigor-
ous environmental standards. Testimony was offered in support of this
contention. Although the Charging Party characterizes such testimony as
speculation, the Respondent's past problems with the SDEP and Newmg-
ton lend substance to the Respondent's concerns in these regards
6 See Winn-Dixie Stores, 147 NLRB 788 (1964).
7 The Respondent contends that it is now unpractical or inappropriate
to offer reinstatement to employees formerly employed at its Connecticut
facility because this relief was not sought until after the hearing on
remand from the Board and because of changes in its operations and or-
ganizational structure, including the purported sale of the Respondent's
assets to Olivetti Supplies, Inc. We shall leave consideration of these con-
tentions to the compliance stage of this proceeding We note, however,
Continued
298 NLRB No. 73
610 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
We also shall order the Respondent to make
whole the Newington employees by paying them
what they would have normally earned from the
date of their termination to the date of the offer of
reinstatement or, for the employees who decide not
to relocate, until the date they secure substantially
equivalent employment with other employers.8
Backpay shall be based on the earnings that em-
ployees normally would have received during the
applicable period less any net interim earnings, and
shall be computed in the manner set forth in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest
computed in the manner set forth in New Horizons
for the Retarded.9 Finally, because we have not or-
dered the Respondent to restore the status quo ante
and bargain about its decision, we believe it is un-
necessary to provide an affirmative order requiring
the Respondent to furnish information it unlawfully
withheld.
ORDER
The National Labor Relations Board orders that
the Respondent, Roytype Division, Triumph-
Adler-Royal, Inc., Newington, Connecticut, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively and in good
faith with International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America (UAW), Local 376, AFL-CIO as the ex-
clusive representative of its employees in the ap-
propriate unit set forth below, concerning the deci-
sion to subcontract bargaining unit work from its
Newington, Connecticut facility and to relocate
bargaining unit work permanently to other facili-
ties. The appropriate unit is:
All full-time and regular part-time production
and maintenance employees, warehousemen,
factory clerks, shipping and receiving clerks
and quality control technicians employed [for-
merly] by Respondent at its Newington facili-
ty, excluding managerial employees, office
clerical employees and guards, professional
employees and supervisors as defined by the
National Labor Relations Act.
that under Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973), a pur-
chaser having notice of pending unfair labor practice proceedings nor-
mally has a duty to remedy the predecessor's unfair labor practices.
9 As the record establishes that the Respondent sold its wide film and
fabric operations in May 1986, backpay for employees formerly employed
in that portion of the Respondent 's operations shall terminate as of the
date of that sale. See Eltec Corp., 286 NLRB 890 (1987). In determin ing
the backpay amount due, the Respondent may offset any severance pay-
ment employees may have received.
9 283 NLRB 1173 (1987).
(b) Refusing to furnish the Union with informa-
tion necessary for and relevant to its function as
bargaining representative.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer the Newington employees immediate
and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equiva-
lent positions at its other facilities where the bar-
gaining unit work has been relocated, with neces-
sary traveling and moving expenses for them and
their families and their household effects, without
prejudice to their seniority or any other rights or
privileges previously enjoyed, dismissing, if neces-
sary, any persons hired at those facilities. If there
are not a sufficient number of jobs for all the em-
ployees to be offered reinstatement, the Respond-
ent shall place the names of those for whom jobs
are not available on a preferential list in the order
of their seniority, and thereafter offer them rein-
statement before other persons are hired. Employ-
ees offered reinstatement shall be allowed a reason-
able period of time for accepting such offers.
(b) Make the Newington employees whole for
any loss of earnings and other benefits suffered in
the manner set forth in the remedy section of this
supplemental decision.
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Mail copies of the attached notice marked
"Appendix" 1 ° to all the Respondent's employees
who were employed at the Newington facility in
the appropriate unit who were terminated or laid
off as a result of the subcontracting and relocation
of bargaining unit work.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
30 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
TRIUMPH-ADLER-ROYAL 611
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL make the Newington, Connecticut em-
ployees whole, with interest, for any loss of earn-
ings and other benefits suffered,
ROYTYPE DIVISION, TRIUMPH-
ADLER-ROYAL, INC.
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively in
good faith with International Union, United Auto-
mobile, Aerospace and Agricultural Implement
Workers of America (UAW), Local 376, APL-
CIO as the exclusive representative of our employ-
ees in the appropriate unit set forth below, con-
cerning the decision to subcontract bargaining unit
work and to relocate work permanently to other
facilities. The appropriate unit is:
All full-time and regular part-time production
and maintenance employees, warehousemen,
factory clerks, shipping and receiving clerks
and quality control technicians employed [for-
merly] by us at our Newington facility, ex-
cluding managerial employees, office clerical
employees and guards, professional employees
and supervisors as defined by the National
Labor Relations Act.
WE WILL NOT refuse to furnish the Union, with
information necessary for and relevant to its func-
tion as bargaining representative.
WE WILL NOT in any ]like or related manner
interfere with, restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer the Newington, Connecticut em-
ployees immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions at the other plants
where the bargaining unit work has been relocated,
with necessary traveling and moving expenses for
them and their families and their household effects,
without prejudice to their seniority or any other
rights' or privileges previously enjoyed, dismissing,
if necessary, any persons hired at the other plants.
If there are not a sufficient number of jobs for all
the employees to be offered reinstatement, we shall
place the names of those for whom jobs are not
available on a preferential list in the order of their
seniority, and thereafter offer them reinstatement
before other persons are hired. Employees offered
reinstatement shall be allowed a reasonable period
of time for accepting such offers.
Michael A. Marcionese, Esq. and Rita C. Lislco, Esq., for
the General Counsel.
Brian Clemow, Esq. and Richard Mills, Esq. (Shipman &
Goodwin), of Hartford, Connecticut, for the Respond-
ent Employer.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
RUSSELL M. KING JR., Administrative Law Judge.
These consolidated cases were first heard by me in Hart-
fort, Connecticut, in January 1985, On August 20, 1985, I
issued my initial decision in the case in which I found
that the Respondent' had engaged in certain unfair labor
practices in violation of Section 8(a)(5) and (3) of the
National Labor Relations Act (the Act). The General
Counsel and the Charging Union filed exceptions to the
Board, and a motion to reopen the record to reconsider
my recommended remedy. On June 30, 1987, the Board
issued its Decision and Order wherein it found that the
Respondent had violated Section 8(a)(5) and (1)by refus-
ing to bargain to a bona fide impasse before implement-
ing its subcontracting and plant relocation proposals.2
Citing the "unusual circumstances presented by the histo-
ry of this proceeding," the Board granted the motion of
the General Counsel and the Charging Union to reopen
the record "for the limited purpose of determining the
appropriate remedies in light of the relevant facts." In re-
manding the case, the Board further recited that "It is
contemplated that the parties will include in their presen-
tations facts relating to the hardship involved in transfer-
ring back to the Newington, Connecticut plant any of
the unit work 'unilaterally subcontracted or relocated."
In my original recommended remedy, I had incorrectly
assumed, from the evidence then presented, that by the
time of the issuance of my initial Decision, the Newing-
ton, Connecticut plant would be closed down. Pursuant
to the Board's remand , the record was reopened and ad-
ditional evidence and testimony was presented in Hart-
fort, Connecticut on November 3, 4, and 5, 11987. There-
' The corporate name of the Respondent is again changed in accord-
ance with a reorganization that occurred in 1986. Roytype is currently
one of four divisions of Triumph-Adler-Royal, Inc., a Delaware corpora-
tion. Triumph-Adler-Royal, Inc. is a wholly owned subsidiary of Tn-
umph-Adler AG, a German corporation. Triumph-Adler AG is owned
by Ing. C. Olivetti S.P.A. (ICO), an Italian corporation.
2 The Board adopted my finding that the Respondent had failed to bar-
gain in good faith in violation of Sec. 8(aX5) and (1) of the Act by refus-
ing to furnish certain financial information to the Union prior to the Re-
spondent's plant closure. However, the Board failed to find that the Re-
spondent violated Sec . 8(aX3) and (1) of the Act, and also faded to find
that the Respondent had engaged generally in a course of bad -faith bar-
gaining. The Board determined that my findings "went beyond the issues
litigated" regarding the 8(a)(3) violation, and "beyond the issues framed
by the pleadings" relative to the general bad-faith bargaining.
612 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
after, the parties again filed briefs on the matter of an ex-
panded remedy, which I had initially recommended to
be only backpay from the date each employee was termi-
nated, to run through March 23, 1986, the expiration
date of the collective-bargaining agreement then in
effect.
1. BRIEF HISTORY
The Union was certified by the Board as the collec-
tive-bargaining agent for the Respondent's production
and maintenance employees on August 26, 1982. On
March 24, 1983, the Respondent and the Union entered
into a collective-bargaining agreement which provided
for negotiations prior to the transferring or subcontract-
ing out of any work customarily performed by members
of the unit. The Respondent had been losing money for
several years (approximately $6 million in 1982, $5 mil-
lion in 1983, with a projected loss of almost $2 million in
1984). In November 1983 the Respondent held a meeting
to inform the Union of its financial problems, indicating
that it contemplated a reorganization plan. This plan, ac-
cording to the Respondent, could include a wage freeze
and the subcontracting or relocating of production work
in order to reduce manufacturing costs. Thereafter, the
Union requested extensive information from the Re-
spondent regarding its manufacturing costs, some of
which was provided, but much of which was not forth-
coming from the Respondent. The withholding of this
requested information was the basis of the complaint in
this case . On April 9, 1984, the Respondent announced
its intention to subcontract some of the unit work to a
firm in Mexico, and to relocate the plant in a southeast-
ern state (ultimately Georgia) to perform the balance and
majority of the Respondent's manufacturing and distribu-
tion processes. During the summer of 1984, some work
was in fact contracted out to a Texas company, and in
November 1984, the first layoffs or terminations oc-
curred. However, the last production employee was not
terminated until July 1986, and the actual plant building
in Newington was not vacated until March 1987. During
the removal process, the Respondent leased two facilities
or buildings in Fort Valley, Georgia, one to be used as a
manufacturing facility and the other to be used as a dis-
tribution facility. These facilities are currently being used
for said purposes by the Respondent, and the balance of
the original production work remains contracted out to a
company in Del Rio, Texas, with actual production in
Mexico.
The General Counsel and the Union argue that a
proper remedy would be to relocate the Respondent's
entire production, warehousing, and distribution oper-
ations back to Newington, Connecticut, and offer former
employees full reinstatement, together with appropriate
backpay. The Respondent argues that such a remedy
would be unduly burdensome and urges that my initial
recommended remedy should remain the same. The fmd-
ings and recommendations are based on the record as a
whole, including the testimony and evidence adduced at
the hearing after the Board's remand.3
3 The Charging Union was not represented by counsel at either of the
hearings in this case However, on the issue of an expanded remedy, a
II. DISCUSSION OF EXPANDED AND ALTERNATIVE
REMEDIES
In the past, the Board has fashioned numerous differ-
ent remedies in cases involving unilateral subcontracting,
the elimination of product lines, and partial or total plant
shutdowns resulting in the layoff or termination of em-
ployees. In the leading case of Winn-Dixie Stores, 147
NLRB 788 (1964), the respondent unilaterally eliminated
its cheese packaging operation because of "economic dis-
ability" not involving any "pressing economic necessity"
or an "emergency situation." While fmding "no mitigat-
ing circumstances" which might have excused the re-
spondent's actions, the Board refused a status quo ante
remedy, stating as follows:
The nature of the violation would justify us in di-
recting the Respondent to restore the status quo
ante by reestablishing the discontinued operation.
However, we believe that our remedy should also
be tempered by practical considerations. Reviewing
the nature of the Respondent's general business op-
erations, the likelihood that the affected employees
are suitable for employment elsewhere in the Re-
spondent's organization,, and the possibility that the
discontinued operation may now be outmoded, we
are of the opinion that such reestablishment is not
essential in this case to the moulding of a meaning-
ful remedy suited to the practical needs of the situa-
tion before us. [Footnote omitted.]
In Winn-Dixie, the Board ordered the respondent to bar-
gain with the union concerning resumption of the discon-
tinued operation, and if no agreement was reached, to
bargain with the union concerning effects or discontinu-
ance of the operation on employees in the unit.4 The
Board further ordered the respondent to pay backpay to
the employees until the occurrence of any of the follow-
ing conditions: (1) Reaching mutual agreement with the
Union relating to the subjects which the respondent is
required to bargain about; (2) bargaining to a bona fide
impasse; (3) the failure of the union to commence negoti-
ations within 5 days of the receipt of the respondent's
notice of its desire to bargain with the union; or (4) the
failure of the union to bargain thereafter in good faith. In
Avila Group, Inc., 218 NLRB 633 (1975), the'respondent
made a unilateral decision to close down a warehouse
and subcontract certain unit work for "sound economic
reasons." Although the Board found there to be bad-faith
bargaining, it did not require reopening of the warehouse
in its remedy. In National Family Opinion, Inc., 246
brief was submitted on behalf of the Union by Susan Price-Livingston,
Esq., and Daniel E. Livingston, Esq., Kestell, Pogue & Gould, of Hart-
ford, Connecticut. Additional briefs were also submitted by the General
Counsel and counsel for the Respondent. All three briefs concerning the
issues on remand were well written , extensive, and informative, and
counsel are to be complimented on their briefs, all of which have been
considered completely in rendering this Supplemental Decision The wit-
nesses who testified at the reopened hearing in November 1987 are
hereby credited, there appearing to be no significant conflicts between
their individual testimony All new testimony and evidence, regardless of
whether or not mentioned or alluded to, has been reviewed and weighed
in light of the entire record
4 There is no issue in this case regarding "effects" bargaining
TRIUMPH-ADLER-ROYAL 613
NLRB 521 (1979), another "economically motivated"
case citing Winn-Dixie Stores, supra, the respondent uni-
laterally closed down its printing department and dis-
charged that department's employees. The Board found
violations of Section 8(a)(3) and (5) of the Act, but re-
fused to grant a status quo ante remedy, in favor of a
Winn-Dixie type remedy, because the respondent was
able to show that a status quo ante remedy would be
unduly burdensome. The Board, however, commented as
follows:
. .. the basic assumption underlying a full backpay
remedy for an employer's failure to bargain over a
decision to close is that, had the employer bar-
gained with the union over the decision, a workable
solution--however remote that possibility-might
have been advanced which would have obviated
the need to close. By disregarding its statutory obli-
gation to bargain, however, this Respondent fore-
closed , until now , meaningful discussion of the clos-
ing and precluded the possibility that an alternative
to termination of the printing department might
have been agreed upon. 'While we recognize that it
is not certain that good-faith bargaining over the
decision to close would have resulted in a decision
different from the one unilaterally implemented by
Respondent, the uncertainty must be taxed against
the wrongdoer rather than against the innocent em-
ployees. [Footnotes omitted.]
In Weather Tamer, Inc., 253 NLRB 1090 (1980), the
respondent closed down a garment plant which the
Board found was merely an arm of its corporate owner.
The Board found that the shutdown and the resulting
layoffs were discriminatory in violation of Section 8(a)(3)
and (1) of the Act, and not for lawful economic reasons.
A status quo ante remedy was ordered in this case, the
Board finding that the respondent failed to show that its
"continued viability would be endangered as a result of
such a remedy. In another similar case, Glenwood Man-
agement Corp., 287 NLRB 1151 (1988), the respondent
discharged five employees and closed their department.
After concluding that the discharges were discriminato-
ry, the Board ordered a status quo ante remedy after
fording that the respondent had not established that such
a remedy would endanger its continued viability or be
unduly burdensome. However, in Arrow Automotive In-
dustries, 284 NLRB 487 (1987), no discriminatory con-
duct was found in the economically motivated decision
by the respondent to close its plant. The Board refused
to order a status quo ante remedy, citing economic moti-
vation as the sole reason for the respondent's unilateral
action, and a Winn-Dixie type remedy was ordered,
citing National Family Opinion, Inc., supra.
In Gulf States Mfrs., 261 NLRB 852 (1982), unilateral
layoffs only were involved, with no plant closure. In
fording a violation of Section 8(a)(5) only, the Board
granted a partial Winn-Dixie type remedy, ordering back-
pay from the date of the layoffs to the date that the Re-
spondent's obligation to bargain was met. In Orange
Data, Inc., 274 NLRB 1018 (1985), the respondent unilat-
erally transferred work from its Missouri facility to its
California facility, resulting in the discharge of employ-
ees. Without any discussion of economics , the Board
found that the actions of the respondent were discrimina-
tory in violation of Section 8(a)(3) and ( 1) of the Act,
and also found a violation of Section 8(a)(5) and (1) of
the Act. The Board again ordered a Winn-Dixie type
remedy, and additionally ordered the respondent to rein-
state the employees "wherever located ," with backpay
and moving expenses . If reinstatement was declined,
backpay was to continue until any declining employee
obtained substantially equivalent employment . In Grif-
fith-Hope Co., 275 NLRB 487 (1985), the respondent uni-
laterally subcontracted unit work for economic reasons,
resulting in layoffs. Contrary to the administrative law
judge, the Board did not find that the actions of the re-
spondent were discriminatory in violation of Section
8(a)(3) and (1), relying on the fact that the judge had
found no antiunion animus on the part of the respond-
ents In its remedy, the Board ordered the respondent to
terminate its subcontracts and to reinstate the subcon-
tracted work at its plant , with offers of reinstatement to
the employees who were laid off with appropriate back-
pay. In Great Chinese American Sewing Co ., 227 NLRB
1670 (1977), the respondent unilaterally closed one of its
facilities , resulting in employee layoffs . Although the
Board found that there had been no radical change in the
employer's economic circumstances, and that the re-
spondent's actions were discriminatory in violation of
Section 8(a)(3) and (1 ) of the Act, the Board nonetheless
concluded that the reopening of the facility would cause
undue economic hardship . Thus, the Board did not order
a status quo ante remedy , finding that the policies of the
Act would be sufficiently fulfilled by the issuance of a
full make-whole order covering the employees of the ter-
minated facility.6
The Board has found that the Respondent violated
Section 8 (a)(5) and (1) by refusing to bargain to a bona
fide impasse before implementing its subcontracting and
plant relocation proposals . In this finding , the Board fur-
ther concluded that the Respondent failed to supply nec-
essary and relevant information needed by the Union to
bargain, constituting a failure to bargain in good faith in
violation of Section 8(a)(5) of the Act. I thus approach
the subject of an expanded recommended remedy with
these violations only in mind, without considering any
conduct on the part of the Respondent to be discrimina-
tory, or tantamount to a violation of Section 8(a)(3) and
(1) of the Act.
In April 1984, the Respondent announced its intention
to subcontract some of its work to a firm in Mexico, and
to relocate the plant in a southeastern state. During the
summer of 1984 , some work was in fact contracted out
to a Texas company, and in November 1984 , the first
layoffs or terminations occurred. The last production
employee was terminated in July 1986, and the Newing-
5 In my original decision, I in fact found antiunion animus on the part
of the Respondent . Since the Board determined that my findings regard-
mg discrimination violative of Sec 8(a)(3) and (1 ), and my findings rela`
tive to a general course of bad-faith bargaining, went beyond the issues
litigated and framed by the pleadings in this case, in my renewed consid-
erations herein, I shall not consider the existence of any such antiunion
animus in this case
5 See also Purolator Armored, Inc., 268 NLRB 1268 (1984).
614 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ton plant was finally and completely vacated in March
1987. Since then, the Respondent has been in full pro-
duction in Fort Valley, Georgia, and certain production
work remains contracted out to a Texas company, with
actual production in Mexico. For several years prior to
its move, the Respondent had sustained substantial finan-
cial losses in Newington, due to a multitude of reasons.?
The evidence reflects that it cost the Respondent in
excess of $4 million to remove its production and distri-
bution activities to Georgia, and to subcontract a certain
amount of its production work to Texas." After consid-
ering all of the testimony and evidence in this case, in-
cluding the testimony and evidence of record which was
produced and given on remand, I find that to require the
Respondent to relocate back to Newington any one or
all of its manufacturing operations, or its distribution op-
eration, would be unduly burdensome on the Respond-
ent, as that term has been traditionally used and defined
by the Board.
EXPANDED REMEDY
Considering the foregoing, and since the Respondent's
plant removal and subcontracting were economically
motivated, and its conduct and actions have not been
found to be discriminatory, I do not find that, in the cir-
cumstances of this case, the Respondent should be re-
quired to reopen its closed operations. I further find that
such an order here is unnecessary to effectuate the poli-
cies of the Act, Thus, instead of requiring the Respond-
ent to reopen a financially unprofitable operation, requir-
9 Included in these problems were environmental difficulties, due to
the Respondent's manufacturing process.
8 The Respondent's moving and subcontracting costs were to be pre-
pared by John F. Tarantino, the director of corporate audit of Triumph-
Adler-Royal, Inc., subsequent to the remand hearing. Tarantino testified
extensively at the remand - hearing. This was accomplished, and the fig-
ures were then reduced to a written summary and delivered to counsel
for the General Counsel , who in turn verified the summarized figures
with those contained in the Respondent 's audited general ledger. The
verification process, including its dates and times, were made known to a
representative from the Union, who had the option to be present. At the
end of the verification process, the summary itself was to be marked as
R. Exh. Q(R), and without objection from counsel for the General Coun-
sel, the exhibit was to be submitted and admitted into evidence after the
remand hearing was adjourned . During the hearing, the Union objected
to this procedure, which objection was overruled. Thereafter, the exhibit
was prepared, verified and forwarded for admittance into evidence, the
record having been held open for that purpose. The Union continued to
object to the above procedure, and to the admittance into evidence of the
exhibit The Union further moved to reopen the record a third time to
present its own evidence regarding the figures and calculations in the ex-
hibit. I have reconsidered the entire posthearmg procedure established
during the remand hearing, the Union's objections to the procedure and
to the exhibit, and I have also considered the Union's motion to reopen
the record The Union's objections to the exhibit are again and hereby
denied, and R. Exh. Q(R) is hereby admitted into evidence, and the
record is hereby closed Additionally, the Union's motion to reopen the
record to submit further evidence or argument regarding the exhibit is
also hereby denied.
ing the expenditure of substantial sums of money, I con-
clude that the Respondent's unfair labor practices will be
sufficiently remedied by an expanded and full make-
whole order covering the employees of the closed facili-
ty. I shall recommend a Winn-Dixie type of remedy,
modified and tailored to conform to the circumstances of
this case .9 In order to recreate as nearly as possible the
situation that existed at the time the Respondent should
have bargained, and to make whole all employees in the
unit for any loss of pay suffered as a result of the Re-
spondent's subcontracting and plant closure, I shall rec-
ommend that the Respondent be ordered to pay said em-
ployees, as of the date of their respective terminations,
their normal wage rates, until the earliest of the follow-
ing conditions are met : (1) mutual agreement is reached
with the Union relating to the Respondent's decision to
subcontract certain work and to close the Newington,
Connecticut facility; ,(2) good-faith bargaining results in a
bona fide impasse; (3) the failure of the Union to request
and commence negotiations within 10 days of the receipt
of the Respondent's notice of its desire to bargain with
the Union; or (4) the subsequent failure of the Union to
bargain in good faith. Implicit in the above is the Re-
spondent's actual good-faith bargaining with the Union,
and to these ends, the Respondent will be so ordered to
commence said bargaining immediately upon the Union's
affirmative response to the Respondent's notice of its
desire to bargain. If the Respondent decides to resume
one or more of its operations in Newington, and offers to
reinstate the appropriate employees to their same or sub-
stantially equivalent positions, its liability as to these em-
ployees will cease as of that date. Backpay shall be based
on the earnings which the employees normally would
have received during the applicable period, less any net
interim earnings, and shall be computed in the manner
set forth in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest thereon to be computed in the manner pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).10 I shall further recommend that the Re-
spondent be ordered to mail a copy of an appropriate
notice to the last known address of all former unit em-
ployees who were terminated as a result of the Respond-
ent's subcontracting or plant closure. Upon completion
of such mailing, I shall recommend that the Company be
ordered to submit to the Regional Director a list of the
names and addresses of the employees to whom the no-
tices were mailed.
[Recommended Order omitted from publication.]
0 The General Counsel has requested a "visitatorial" provision in the
remedial order. Upon due consideration, that request is hereby denied.
10 Regarding interest on backpay due prior to the Board's holding in
New Horizons, said interest shall be computed as directed by the Board's
holdings then in effect.