U S Marine Corp. And Bayhner Marine Corp.

National Labor Relations Board - Board Decisions

Apr 17, 1989

293 N.L.R.B. 669 (N.L.R.B. 1989)

US MARINE CORP
U S Marine Corporation and Bayliner Marine Cor-
poration and International Union , Allied Indus-
trial Workers of America , AFL-CIO, and its af-
filiated Local, Local Union 879, Allied Industri-
al Workers of America Cases 30-CA-8206,
30-CA-8404, and 30-CA-8537
April 17, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On August 22, 1986, Administrative Law Judge
George F Mclnerny issued the attached decision
Respondent U S Marine Corporation filed excep-
tions and a supporting brief, the General Counsel
filed exceptions with a supporting brief and an an-
swering brief, and the Charging Party filed excep-
tions, a supporting brief, and an answering brief
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, i and
conclusions only to the extent consistent with this
Decision and Order
We affirm the judge's findings that the Respond-
ents constitute a single employer and that, as the
successor to the Chrysler Corporation in its Hart-
ford, Wisconsin outboard motor plant, they violat-
ed Section 8(a)(5) and (1) of the Act by refusing to
recognize the Union, by refusing to provide infor
mation to the Union, by bargaining in bad faith
with the Union, by unilaterally implementing
changes in terms and conditions of employment, by
bargaining individually with employees, and by es-
tablishing and bargaining with the "Safety and
Progress Committee," an employer-dominated
labor organization For the reasons set forth below,
however, we reverse the judge and find that the
Respondents' failure to rehire 34 former Chrysler
employees violated Section 8(a)(3) and (1) of the
Act We also have decided to modify the judge's
recommended remedy in certain respects as ex-
plained below
As set forth more fully in the judge's decision,
the Respondents purchased the facility at issue
from Chrysler in late 1983 and began operations on
January 23, 1984 James Hoag, who was an officer
' Respondent U S Marine Corporation has excepted to some of the
judge s credibility findings The Board s established policy is not to over
rule an administrative law judge s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are in
correct 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
669
of both Respondents, was put in charge of running
the new operation In a December 8, 1983 letter,
Hoag told Chrysler's employees that Respondent
Bayliner Corporation had purchased Chrysler's op-
eration, that Bayliner was organizing an affiliated
company called U S Marine, and that all Chrysler
employees were encouraged to apply for work
with US Marine At a December 13, 1983 meet
ing, Hoag advised three officials of the Union that
Bayliner did not intend to recognize the Union,
and that Bayliner would not abide by the existing
collective-bargaining agreement between Chrysler
and the Union Hoag also stated at this meeting
that he was not interested in having a union repre-
sent the employees, and that he was too busy to
deal with the Union at that time In addition, in
late December 1983, Bayliner Chairman Edson told
Chrysler Counsel Richie that the Respondents did
not have any intention of recognizing the Union or
negotiating with it and that the Respondents in
tended to hire less than 50 percent of its work
force from among former Chrysler employees
When Chrysler ceased operations at the facility
on January 13, 1984, it employed 262 production
and maintenance employees represented by the
Union All these employees were terminated at that
time, and were notified that if they wished to be
considered for employment by U S Marine, they
should file applications with the Wisconsin Job
Service Hoag asked the Job Service to send all
former Chrysler employees who filed applications
to U S Marine for interviews without the prelimi-
nary screening required of other applicants Hoag
interviewed and screened applicants, and made all
the hiring decisions When the plant reopened on
January 23, 1984, Hoag had hired 219 employees,
all of whom were former Chrysler employees As
of January 30, the last day on which any former
Chrysler employees were hired, U S Marine em-
ployed 223 former Chrysler employees out of a
total employee complement of 261 In the period
from January 23 to August 31, 1984, U S Marine's
work force ranged from 219 to 323 production and
maintenance employees, stabilizing between April
and August at 312 to 323 employees During the
January through August period, the number of
former Chrysler employees varied from 223 to 218
Of 258 former Chrysler employees who applied for
employment with U S Marine, 34 were not hired
Throughout the litigation in this case, which in-
cludes a Federal district court injunction requiring
the Respondents to bargain with the Union ob-
tained by the General Counsel pursuant to Section
100) of the Act, the Respondents have contended
that they were not required to bargain with the
Union in January 1984 because they had not yet
293 NLRB No 81
670 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
hired a "full complement" of employees, and had
projected that they would reach that complement
in June 1984 and that the former Chrysler employ
ees would not then be in the majority As the basis
for this contention, the Respondents have relied on
Hoag's estimate that U S Marine's full complement
would be 460 employees, which it would reach in
June, and that, therefore, the 223 former Chrysler
employees would be less than one-half the work
force
For reasons fully supported by the record, the
judge found that this 460 figure was false and mis
leading, and had been developed by Hoag shortly
after January 31 to furnish a mathematical basis for
a defense to the Union's bargaining claim Instead,
the judge determined that the original manpower
projection of 396 employees for June, which had
been developed by U S Marine's accounting de-
partment on January 20, was a valid estimate of the
Company's full-complement figure In fact, as men-
tioned above, U S Marine's work force never num
bered more than the 323 figure attained on August
31 Those 323 employees included 218 former
Chrysler employees Having found that Hoag false-
ly manipulated projected work force figures pre
pared by U S Marine's accounting department in
order to justify refusing to bargain with the Union,
the judge concluded that the former Chrysler em-
ployees constituted a majority of U S Marine's
work force when the plant reopened on January
23, 1984, through the period covered by the hear-
ing, i e , to August 1984 Accordingly, the judge
concluded that U S Marine was a successor to
Chrysler within the meaning of NLRB v Burns Se-
curity Services, 406 U S 272 (1972), and that the
Respondents violated Section 8(a)(5) and (1) by re-
fusing, since January 25, 1984, to recognize the
Union We affirm those conclusions
Despite finding that Hoag fabricated the full em-
ployee complement estimates in order to avoid bar-
gaining, the judge refused to find that the failure to
rehire 34 former Chrysler employees was part of
this unlawful scheme Contrary to the judge, we
find that the Respondents unlawfully failed to hire
the 34 employees in order to keep the number of
former Chrysler employees below 50 percent of the
460 figure that purportedly represented the full
complement of employees to be attained in June,
and on which the Respondents based their refusal
to recognize the Union
The judge reasoned that once he had found that
the manpower projections computed by Hoag were
false and designed to deceive the Board and the
court on a theory that full employment at the 460
level would not be attained until June, it would be
inherently contradictory for him also to find that
Hoag viewed the 460 figure as a "real , valid goal"
and that continued hiring of former Chrysler em-
ployees would endanger a "real, valid non-union
majority " Thus, the judge found that the General
Counsel had failed to establish a prima facie case
that the failure to rehire the additional former
Chrysler employees violated Section 8(a)(3) and
(1)
On the contrary, we find that the General Coun-
sel has established a strong prima facie case that
the failure to rehire the 34 employees was discn
minatorily motivated, and that the Respondents
have not proved that the 34 would not have been
hired even without the Respondents' desire to
avoid bargaining with the Union The flaw in the
judge's reasoning is his premise that Hoag would
have to view the 460 figure as a valid one in order
to need to restrict the hiring of former Chrysler
employees to under one-half of that figure This
premise ignores the fundamental fact that the Re-
spondents' central concern was to avoid a bargain-
ing obligation by means of reliance on a false full-
complement projection Once Hoag decided that
460 would be the false projection, it became imper-
ative that he hire fewer than 231 former Chrysler
employees, or the 460 figure would become mean-
ingless as a defense to the Union's recognitional
claim Thus, the sham inflation of the full comple-
ment projection and the decision to stop rehiring
former Chrysler employees once their number had
reached 223 are complementary aspects of the
same scheme sought to be carried out by US
Marine
A new owner, like the Respondents, is not obli-
gated to hire any of the predecessor's employees,
but may not refuse to hire the predecessor's em-
ployees solely because they were represented by a
union or to avoid having to recognize the union 2
The Board has held that the following factors are
among those that establish that a new owner has
violated Section 8(a)(3) in refusing to hire employ-
ees of the predecessor substantial evidence of
union animus, lack of a convincing rationale for re-
fusal to hire the predecessor's employees, inconsist-
ent hiring practices or overt acts or conduct evi-
dencing a discriminatory motive, and evidence sup-
porting a reasonable inference that the new owner
conducted its staffing in a manner precluding the
predecessor's employees from being hired as a ma-
jority of the new owner's overall work force to
avoid the Board's successorship doctrine 3 We find
that all those factors are present here
2 Burns supra Howard Johnson s v Detroit Local Joint Executive Board
417 U S 249 (1974)
9 Houston Distribution Service 227 NLRB 960 (1977) Lemay Caring
Centers 280 NLRB 60 (1986) enfd mem 815 F 2d 711 (8th Cir 1987)
US MARINE CORP
The record clearly establishes the Respondents'
animus and discriminatory intent, which appeared
even before the Respondents assumed the Chrysler
operations and continued through the bargaining
that followed as a result of the district court's in
junction The statements of the Respondents' offi
cials, Hoag and Edson, mentioned above, that the
Respondents intended to hire less than one half the
former Chrysler employee complement were made
in conjunction with these officials' statements that
the Respondents would not recognize the Union,
and before the Respondents had considered the
qualifications of any of the former Chrysler em
ployees Further, the Respondents' animus is dem-
onstrated by the numerous 8(a)(5) violations that
we have found, and U S Marine's falsification of
the employment projections in order to evade its
bargaining obligation
In addition, the Respondents have advanced no
legitimate reasons for the refusal to hire the 34
former Chrysler employees The record shows that
all the employees who were not hired were good
employees, had exemplary work records, and were
versatile and skilled in various jobs in the plant 4
Accordingly, the judge found that the skills, abili-
ties, and versatility and other work-related charac-
teristics of the 34 employees were comparable to
those 223 former Chrysler employees who were
hired by U S Marine Moreover, U S Marine has
failed to prove its assertion that the employees who
were not hired displayed employment histories,
health, seniority, or allergenic characteristics that
were substantially different from those of the em-
ployees who were hired In this regard, the judge
found that "[t]here is no substantive evidence of
why one person was hired and one was not hired "
Although U S Marine hired some 100 additional
employees after January 30, 1984, it never contact-
ed any of the other 34 former Chrysler employees
who were comparable in qualifications to those
former Chrysler employees who were hired before
January 30
The judge's conclusion that, because Hoag knew
that the 460 figure was false and invalid, he would
have no reason to keep the number of former
Chrysler employees under 230, simply does not
stand up The end sought to be achieved by the
false "full complement" figure would be frustrated
if the former Chrysler employees constituted more
than one-half that figure Hoag was solely responsi-
ble both for creating the false employment-projec
tion figure and for hiring It is no coincidence that
about the same time that Hoag conceived the 460
figure, he stopped hiring former Chrysler employ-
4 In addition these employees had been employed by Chrysler for pe
nods ranging from 10 to 31 years
671
ees Only one Chrysler employee was hired after
the Union requested recognition on January 25
The judge's reasoning mistakenly assumes that
Hoag would proffer the 460 figure as a defense to
recognition, and then not take this figure into ac
count in making his hiring decisions
In sum, we find that Hoag's fabrication of the
460 employment-projection figure made it impera
tive that U S Marine hire no more than 230 Chrys-
ler employees, and that the failure to hire the 34
employees at issue here was a necessary and inte-
gral part of the Respondents' attempt to avoid an
obligation to recognize and bargain with the
Union Accordingly, we find that the Respondents
violated Section 8(a)(3) and (1) by refusing to hire
the additional Chrysler employees 5
As mentioned above, the judge found that the
Respondents unlawfully failed to recognize the
Union on January 25, 1984, subsequently bargained
in bad faith with the Union, and unlawfully made a
number of unilateral changes in wages, hours, and
terms and conditions of employment To remedy
these violations, the judge ordered the Respondents
to bargain in good faith with the Union, to cease
and desist from making unilateral changes, and to
bargain with the Union over all the changes that
the Respondents have made since it began oper-
ations on January 23, 1984 The judge, however,
left to the compliance stage the question of further
unilateral changes in wages, hours, and working
conditions
The General Counsel and the Charging Party
except to the judge's failure to direct the Respond-
ents to rescind all adverse unilateral changes and to
restore the status quo ante with respect to wages,
hours, and other terms and conditions of employ
ment We find merit to this exception, and shall
order the Respondents to rescind all detrimental
unilateral changes occurring on and after January
23, 1984,6 and to reinstitute the terms and condi-
tions of employment that were in effect when
Chrysler closed its operations at the facility on Jan-
uary 13, 1984' Under Burns, supra, a successor
employer is ordinarily free to set initial employ-
ment terms, without preliminary bargaining with
the incumbent union When, however, "it is per-
fectly clear that the new employer plans to retain
all of the employees in the unit," the successor
must consult the union before altering the terms
s Hubacher Cadillac 267 NLRB 1062 (1983) enfd 760 F 2d 275 (9th
Cir 1985) State Distributing Co 282 NLRB 1048 (1987)
B Including all adverse unilateral changes contained in the Respond
ents January 21 1985 implementation of their final bargaining offer
Nothing in our Order is to be construed as requiring rescission of any
wage increase or other benefits that previously have been granted the
unit employees
1 American Press 280 NLRB 937 (1986) State Distributing Co supra
672 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and conditions of employment 8 We have found
that the Respondents unlawfully discriminated
against 34 of the predecessor's former employees
by refusing to hire them Accordingly, we con-
clude that absent their unlawful purpose, the Re-
spondents would have retained substantially all the
predecessor's employees, and therefore the Re-
spondents were not entitled to set initial terms of
employment without first consulting with the
Union 9
Requiring the Respondents to restore the prede-
cessor's terms and conditions of employment does
not violate any principles of due process because
this is strictly a remedial matter that does not have
to be specifically alleged 10 The Love's Barbeque
remedy that we order here does not require a spe-
cific complaint allegation that the Respondents
made unlawful unilateral changes when they began
their operations Nor must this remedy rest on a
separate finding that the Respondents committed a
separate unfair labor practice by unilaterally chang
ing employment terms The illegality of such
changes is subsumed in the broader 8(a)(5) and (3)
allegations and violations involved in this case As
noted above, an employer-like the Respondents-
that unlawfully discriminates in its hiring in order
to evade its obligations as a successor does not
have the Burns right to set initial terms of employ
ment without first consulting with the Union The
Respondents forfeited any right they may have had
as a successor to impose initial terms when they
embarked on their deliberate scheme to avoid bar
gaining with the Union by their discriminatory
hiring practices
Here, we are simply restoring as nearly as possi-
ble the situation that would have prevailed but for
the Respondents' unfair labor practices We rely
"on the well-established principle that , in cases in-
volving discriminatory conduct, the restoration of
the status quo ante is a necessary remedy as it is
the Board's policy that the wrongdoer, rather than
the innocent victim, should bear the hardships of
the unlawful action" (citations omitted), Mash kin
Freight Lines, 272 NLRB 427, 428 (1984) Failing
to return to the status quo ante in this case would
encourage the kind of subterfuge and falsification
8 Burns supra at 294-295
9 Potters Drug Enterprises 233 NLRB 15 (1977) enfd mem 99 LRRM
3327 (9th Cir 1978) Loves Barbeque Restaurant 245 NLRB 78 (1979)
enfd in relevant part sub nom Kaltman Y NLRB 640 F 2d 1094 (9th
Cir 1981) Although the Kaltman court agreed that an employer who de
hberately avoids successorship through discriminatory hiring violates
Sec 8(a)(5) through its unilateral setting of initial terms the court dis
agreed with the theory of the Boards monetary remedy 640 F 2d at
1102-1103 The Board has explained the basis for the Loves Barbeque
remedy in State Distributing Co supra and an order containing that
remedy was enforced in Shortway Suburban Lines 286 NLRB 323 fn 36
(1987) enfd mem per curtain 862 F 2d 309 (3d Cir 1988)
10 See e g NC Coastal Motor Lines 219 NLRB 1009 (1975)
in which the Respondents engaged As the Board
stated in a prior case involving a successor that un-
lawfully refused to hire a number of the predeces
sor's employees in order to avoid bargaining, "A
remedy that allowed to stand the reduced terms
and conditions of employment that the Respondent
imposed unilaterally would quite possibly
leave victims uncompensated and it would confer
Burns rights on an employer that has not conduct
ed itself like a lawful Burns successor because it has
unlawfully blocked the process by which the obli-
gations and rights of such a successor are in
curred " State Distributing, supra at 1049 See also
Shortway Suburban Lines, supra, American Press,
supra, American Stevedoring Co, 280 NLRB 756
(1986) In view of this precedent and the com-
plaint's 8(a)(3) and (5) allegations, we do not agree
with our colleague that the Respondents reason-
ably could believe that the General Counsel was
not challenging their right to set initial terms and
conditions of employment Contrary to our col-
league 's suggestion, this case did not simply in-
volve "a mere successorship allegation " The Re-
spondents had ample notice of the General Court
sel's intertwined 8(a)(3) and (5) allegations, and
therefore were on notice that the Board might
apply an appropriate remedy in its power should
the Board find the violations alleged 11
Further, our dissenting colleague has failed to
show how the Respondents have been prejudiced
by the General Counsel's failure to allege specifi
cally that the Respondents were not entitled to es-
tablish initial terms and conditions of employment
There is nothing indicating that the Respondents
would have litigated the case differently, or would
have presented any different evidence had such a
specific allegation been made On the contrary, it is
clear that the Respondents' defense to the com
plaint allegations would have been the same, based
as it was on the Respondents' false production and
manpower projections, and their discriminatory
staffing scheme 12
Contrary to our dissenting colleague's sugges-
tion, what the Respondents may have stated con
cerning employment terms during their preemploy-
ment interviews with some of the predecessor's
employees is immaterial in the circumstances here,
11 See NLRB v Marin Operating Inc 822 F 2d 890 (9th Cir 1987)
enfg 279 NLRB 481 (1986)
12 In this regard we view as a distinction without a difference our dis
tenting colleagues suggestion that this case is distinguishable from prior
cases in which a Loves Barbeque remedy has been given because here the
refusal to hire did not involve the entire unit of the predecessors employ
ees That the Respondents discriminated against only a portion of the unit
does not absolve the Respondents from the consequences of that discnmi
nation i e the forfeiture of the right to set initial terms which is enjoyed
by those successor employers who lawfully choose to hire fewer than all
the predecessors employees
US MARINE CORP
in which the Respondents were not entitled to set
initial terms because of their discriminatory hiring
practices Thus, our dissenting colleague's reliance
on Starco Farmers Market, 237 NLRB 373 (1978),
is inapposite because the issue in Starco was when
the successor employer was entitled to set initial
employment terms, while the issue here is whether
the Respondents were entitled to set those terms
In addition, for the reasons set forth in M F A
Milling Co, 170 NLRB 1079 (1968), enfd sub nom
Laborers Local 676, 463 F 2d 953 (D C Cir 1972),
we will order the Respondents to reimburse the
employee-members of the Union's negotiating com
mittee for any wages lost while attending past ne-
gotiating sessions, with interest 13
ORDER 14
The National Labor Relations Board orders that
the Respondents, U S Marine Corporation and
Bayliner Marine Corporation, Hartford, Wisconsin,
their officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Refusing to recognize and bargain in good
faith with International Union, Allied Industrial
Workers of America, AFL-CIO, and its affiliated
Local, Local Union 879, Allied Industrial Workers
of America, as the exclusive collective bargaining
representative of their employees in the following
appropriate unit
All full time production and maintenance em-
ployees at the Hartford, Wisconsin plant,
except executives, office and clerical workers,
salesmen , shop superintendents, supervisors,
engineers, nurses, first-aid attendants, guards,
temporary summer/seasonal employees, any
employee in training for the foregoing, and all
other employees having the right to hire and
discharge
(b) Refusing to give information to the Union
that is reasonably related to the Union's function as
collective-bargaining representative and in further-
ance of the Union's obligation to process griev-
ances for employees
(c) Unilaterally changing wages, hours, and
other conditions of employment without bargaining
about these changes with the Union and bargaining
with individual employees concerning such
changes
13 See also K Mart Corp 242 NLRB 855 (1979) Preterm Inc 240
NLRB 654 (1979)
14 The Judges recommended Order includes a visitatonal clause au
thonzing the Board for compliance purposes to obtain discovery from
the Respondents under the Federal Rules of Civil Procedure under the
supervision of the United States court of appeals enforcing the Order
We find no need for such a remedial provision here See Cherokee Marine
Terminal 287 NLRB 1080 (1988)
673
(d) Engaging in collective bargaining, soliciting
and discussing employee grievances with, and
meeting with the safety and progress committee,
and paying employees for serving on that commit
tee
(e) Refusing to hire unit members of their prede-
cessor, or otherwise discriminating against employ-
ees to avoid having to recognize and bargain with
the Union
(f) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise 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) Recognize and, on request, bargain collec-
tively with the Union as the exclusive representa-
tive of the Respondents' employees in the above
unit, with respect to rates of pay, wages, hours,
and other terms and conditions of employment and,
if an agreement is reached, embody it in a signed
document
(b) Furnish the Union with any and all informa-
tion requested by it and reasonably related to its
function as collective-bargaining representative
(c) On request of the Union, rescind any depar-
tures from terms and conditions of employment
that existed immediately before the Respondents'
takeover from Chrysler Corporation of the Hart-
ford, Wisconsin operations, retroactively restoring
preexisting terms and conditions of employment,
including wage rates and benefit plans, and make
the employees whole by remitting all wages and
benefits that would have been paid absent such uni-
lateral changes from January 23, 1984, until they
negotiate in good faith with the Union to agree-
ment or to impasse The remission of wages shall
be computed as in Ogle Protection Service, 182
NLRB 682 (1970), enfd 444 F 2d 502 (6th Cir
1971), plus interest as prescribed in New Horizons
for the Retarded 15 The Respondents shall remit all
payments they owe to the employee benefit funds
and reimburse their employees in the manner set
forth in Kraft Plumbing & Heating, 252 NLRB 891
fn 2 (1980), enfd 661 F 2d 940 (9th Cir 1981), for
any expenses resulting from the Respondents' fail-
ure to make these payments Any amounts that the
Respondents must pay into the benefit funds shall
be determined in the manner set forth in
Merryweather Optical Co, 240 NLRB 1213 (1979)
15 283 NLRB 1173 (1987) Interest on and after January 1 1987 shall
be computed at the short term Federal rate for the underpayment of
taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on
amounts accrued prior to January 1 1987 (the effective date of the 1986
amendment to 26 U S C § 6621) shall be computed in accordance with
Florida Steel Corp 231 NLRB 651 (1977)
674 DECISIONS OF THE NATIONAL I ABOR RELATIONS BOARD
(d) Reimburse employee -members of the Union's
negotiating committee for any wages they lost
while attending past negotiating sessions , with in-
terest to be computed in accordance with New Ho-
rizons for the Retarded, supra
(e) Offer to unit employees of the predecessor,
who would have been employed but for the illegal
discrimination against them , including those listed
below , immediate and full employment , without
prejudice to their seniority and other rights and
privileges previously enjoyed, discharging if neces
sary any employees hired in their place
Gerald A Riege
Brian F Kuehl
Edward Becker
Velora Shilts
Charles Deis
Ervin C
Margelowsky
Janet A McFadden
Dons Koepke
Alvah P Ostrander
Roy C Maher
Victoria S Krueger
Jean D Whitish
Merlin V Nelson
L 0 Schroeder
Judith A Wagner
Duane A Whitish
Harvey W Grulke
Michael S Beckwith
Frank Schaeffer
Geraldine A Prusik
Eleanor C Heimermann
Russell F Thompson
Barbara A
Hopfensperger
Richard Wingelman
Barbara Constantineau
Diane G Thom
Delons M Bunker
Mary A Bilgreen
Timothy Noble
Otto Quandt
Carol M Schumacher
Rochelle M Schmidt
Warren K Moritz
James Schwickert
(f) Make the above-named employees whole for
any loss of earnings and benefits they may have
suffered by reason of the Respondents' unlawful re-
fusal to employ them Backpay shall be computed
as in F W Woolworth Co, 90 NLRB 289 (1950),
plus interest as prescribed in New Horizons for the
Retarded, supra
(g) 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
(h) Post at their Hartford, Wisconsin plant copies
of the attached notice marked "Appendix 1116
Copies of the notice, on forms provided by the Re-
gional Director for Region 30, after being signed
by the Respondents' authorized representative,
shall be posted by the Respondents immediately
upon receipt and maintained for 60 consecutive
16 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
days in conspicuous places including all places
where notices to employees are customarily posted
Reasonable steps shall be taken by the Respondents
to ensure that the notices are not altered, defaced,
or covered by any other material
(i) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondents have taken to comply
MEMBER CRACRAFT, dissenting in part
Contrary to my colleagues, I would not require
the Respondents to reinstate the terms and condi
tions of employment that were in effect when the
predecessor ceased doing business My disagree
ment with my colleagues is based solely on due-
process grounds The amended consolidated com-
plaint did not allege that the Respondents violated
the Act in setting their initial terms and conditions
of employment and this issue was not fully litigat-
ed I am unwilling to remedy unilateral changes
that were not alleged nor litigated as unlawful
I do not disagree with my colleagues that the
Lobe's Barbequei remedy is often an appropriate
remedy in cases involving refusals to hire in
successorship situations See, e g, State Distributing
Co, 282 NLRB 1048 (1987), Shortway Suburban
Lines, 286 NLRB 323 (1987), American Press, 280
NLRB 937 (1986), enfd in relevant part 833 F 2d
621 (6th Cir 1987), relied on by my colleagues I
differ with my colleagues only in that I would not
apply that remedy in cases such as this one in
which the Respondents were not put on notice that
the setting of initial terms and conditions of em-
ployment is alleged to be unlawful 2
i Loves Barbeque Restaurant 245 NLRB 78 (1979) enf denied in rele
vant part sub nom Kailman v NLRB 640 F 2d 1094 (9th Cir 1981)
2 In all the refusal to hire cases relied on by my colleagues except one
the respondent was put on notice that its altering of employment terms
was alleged to be unlawful It is unclear in American Stevedoring Co 280
NLRB 756 (1986) whether there was a separate 8(a)(5) allegation involv
mg the setting of initial terms and conditions of employment or whether
the respondent was otherwise put on notice that such unilateral changes
were in issue To the extent that that case can be read to allow a remedy
for the failure to bargain over initial employment terms absent a specific
complaint allegat on or other evidence that the respondent was put on
notice that its failure to do so is being challenged I believe it was
wrongly decided and would not rely on it See the dicussion of the ap
plicable law infra
N C Coastal Motor Lines 219 NLRB 1009 (1975) enfd 542 F 2d 637
(4th Cir 1976) cited by the majority does not involve a refusal to hire
an d does not even involve a successorship allegation Therefore that case
does not directly support the majority s proposition that requiring a suc
cessor to adhere to the predecessor s terms and conditions of employment
is strictly a remedial matter that does not have to be specifically a]
leged Far from being strictly a remedial matter my colleagues deci
sion constitutes an attempt under the guise of remedy to find the Re
spondents guilty of an unalleged and unlitigated unfair labor practice and
to impose a potentially huge financial liability See generally Spruce Up
Corp 209 NLRB 194 (1974) enfd on other grounds 529 F 2d 516 (4th
Cir 1975)
US MARINE CORP
In NLRB v Blake Construction Co , 663 F 2d
272, 279 (D C Cir 1981), the court described the
"applicable law" as "clearcut " The court said
"The Board may not make findings or order reme
dies on violations not charged in the General
Counsel's complaint or litigated in the subsequent
hearing " Here, not only is there no unilateral
change allegation regarding the Respondents' set-
ting their initial terms of employment, but the
8(a)(5) allegations that were alleged in the amended
consolidated complaint would reasonably have led
the Respondents to believe that their right as a suc-
cessor to set initial terms and conditions of employ-
ment was not being challenged as unlawful 3 Fur-
thermore, the General Counsel's opening statement
did not put the Respondents on notice that their
setting of initial terms of employment was alleged
to be unlawful,4 and my colleagues do not point to
any other portions of the transcript of the hearing
that would establish such notice
Rather, my colleagues' position is that an unlaw-
ful unilateral change allegation "is subsumed in the
broader 8(a)(5) and 8(a)(3) allegations and viola-
tions involved in this case " I disagree With regard
to the general refusal-to-bargain allegation, it must
be remembered that the Burns5 successor who
cannot set its own terms is the exception, not the
general rule Thus, in my view, notice about a uni-
lateral change allegation cannot be implied from a
mere successorship allegation Nor are the 8(a)(3)
allegations a substitute for such notice 6 An 8(a)(5)
unilateral change violation does not inevitably
follow every time an alleged successor commits
any refusal to hire violation This is particularly
3 The complaint does not allege an 8(a )(5) unilateral change violation
in January 1984 when the Respondents allegedly became a successor It
does however allege that certain specific unilateral changes in Novem
ber and December 1984 and January 1985 were unlawful The complaint
further alleges that the Respondents violated Sec 8(a)(5) by a general re
fusal to bargain since January 1984 a refusal to provide information since
that time surface bargaining since May 1984 creation of the safety and
progress committee in January 1984 and direct dealing since November
1984 From these specific complaint allegations it is reasonable for the
Respondents to conclude that the General Counsel was not contesting
their right to set their initial terms and conditions of employment in Janu
ary 1984
4 On the contrary the General Counsels opening statement alludes to
the Respondents use of their hiring interviews to establish new terms and
conditions of employment before they brought the employees back on
board The General Counsel did not however state that this was alleged
to be unlawful Indeed on the basis of the facts as stated by the General
Counsel it would appear that the setting of initial terms by Respondents
was entirely lawful See the summary of the case law in Starco Farmers
Market 237 NLRB 373 (1978) (in which the new employer s offer of dif
ferent terms and conditions of employment is prior to or simultaneous
with the offer of employment to the predecessors employees the Board
finds no duty to bargain over initial employment terms)
5 NLRB v Burns Security Services 406 U S 272 294-295 (1972)
9 NLRB v Mann Operating 822 F 2d 890 (9th Cir 1987) enfg 279
NLRB 481 (1986) cited by the majority is a successorship case that did
not involve any refusal to hire allegations Therefore it does not directly
support the majority s claim that the 8 (a)(3) and (5) allegations of the
complaint provided the Respondents with sufficient notice
675
true in a case such as this one in which the refusal
to hire did not involve the entire unit 7 Under the
"applicable law," Blake Construction, supra, the Re-
spondents remain entitled to notice of precisely
what violations they allegedly committed
The court's conclusion in Blake Construction is
equally applicable here "Elemental procedural due
process prevents [the] granting of reme-
dies that go beyond the scope of the complaint and
are directed toward violations of the Act not no-
ticed or actually tried before the ALJ or the
Board "8
Accordingly, absent a complaint allegation or
other evidence that the Respondents were put on
notice that the January 1984 setting of initial terms
and conditions of employment was alleged to be
unlawful, I would not require the Respondents to
reinstate the predecessor's terms and conditions of
employment as a remedy for the violations found
in this case 9
r I note that all the cases relied on by my colleagues involve instances
in which the refusal to hire violations extended to all or virtually all the
available unit positions Here there is no such link between the refusal
to hire violations and the Respondents status as successor In this case
quite apart from the 34 refusal to hire violations they committed the Re
spondents became a successor as a result of their hiring more than 200
employees of the predecessor Whether the Respondents unlawfully set
initial employment terms depends on what was said in the employment
interviews with those employees a matter not pursued in the complaint
or litigated at the hearing If the Respondents had been put on notice that
the General Counsel was challenging their right as successor to set initial
terms the Respondents could have defended by introducing evidence
showing that in the interviews that resulted in the hiring of more than
200 employees of the predecessor it clearly announce [d] its intent to
alter terms and conditions prior to offering employment to incumbent
employees Starco Farmers Market supra see fn 4 supra
a 663 F 2d at 283
In all other respects I agree with my colleagues decision except
that in adopting the judge s finding that the Respondents bargained in
bad faith I would not rely on the Respondents insistence on having ne
gotiations away from the plant and outside work hours their position
that any contract negotiated might be temporary based on the outcome
of court proceedings and their rejection of mediation
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has 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 representa-
tives of their own choice
676 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT refuse to recognize and bargain in
good faith with International Union, Allied Indus-
trial Workers of Amenca, AFL-CIO, and its affili-
ated Local, Local Union 879, Allied Industrial
Workers of Amenca, as the exclusive collective
bargaining representative of our employees in the
following appropriate unit
All full time production and maintenance em-
ployees of the Hartford, Wisconsin plant,
except executives, office and clerical workers,
salesmen, shop superintendents, supervisors,
engineers, nurses, first-aid attendants, guards,
temporary summer/seasonal employees, any
employee in training for the foregoing and all
other employees having the right to hire and
discharge
WE WILL NOT refuse to give information to the
Union that is reasonably related to the Union's
function as collective-bargaining representative and
in furtherance of the Union 's obligation to process
grievances for employees
WE WILL NOT unilaterally change wages , hours,
and other conditions of employment without bar-
gaining about these changes with the Union and
WE WILL NOT bargain with individual employees
concerning such changes
WE WILL NOT engage in collective bargaining,
soliciting and discussing employee grievances with,
and meeting with the safety and progress commit
tee, and WE WILL NOT pay employees for serving
on that committee
WE WILL NOT refuse to hire unit members of our
predecessor , or otherwise discriminate against em-
ployees , to avoid having to recognize and bargain
with the Union
WE WILL NOT in any other manner interfere
with, restrain , or coerce employees in the exercise
of the rights guaranteed them by Section 7 of the
Act
WE WILL recognize and, on request , bargain col-
lectively with the Union as the exclusive represent-
ative of the unit employees with respect to rates of
pay, wages , hours, and other terms and conditions
of employment and, if an agreement is reached,
embody it in a signed document
WE WILL furnish the Union with any and all in-
formation requested by it and reasonably related to
its function as collective-bargaining representative
WE WILL, on request of the Union, rescind any
from Chrysler Corporation of the Hartford, Wis-
consin operations, and WE WILL retroactively re-
store preexisting terms and conditions of employ
ment, including wage rates and benefit plans, and
WE WILL make employees whole by remitting all
wages and benefits that would have been paid
absent such unilateral changes from January 23,
1984, until we negotiate in good faith with the
Union to agreement or to impasse Provided, how-
ever, that nothing herein shall be construed as re-
quiring rescission of any wage increase or other
benefits that previously have been granted to unit
employees
WE WILL reimburse employee-members of the
Union's negotiating committee for any wages they
lost while attending past negotiating sessions, with
interest
WE WILL offer to unit employees of the prede
cessor, who would have been employed but for our
unlawful discrimination against them, including
those listed below, immediate and full employment,
without prejudice to their seniority and other
rights and privileges previously enjoyed, discharg-
ing if necessary any employees hired in their place
Gerald A Riege
Brian F Kuehl
Edward Becker
Velora Shilts
Charles Deis
Ervin C
Margelowsky
Janet A McFadden
Doris Koepke
Alvah P Ostrander
Roy C Maher
Victoria S Krueger
Jean D Whitish
Merlin V Nelson
L 0 Schroeder
Judith A Wagner
Duane A Whitish
Harvey W Grulke
Michael S Beckwith
Frank Schaeffer
Geraldine A Prusik
Eleanor C Heimermann
Russell F Thompson
Barbara A
Hopfensperger
Richard Wingelman
Barbara Constantineau
Diane G Thom
Deloris M Bunker
Mary A Bilgreen
Timothy Noble
Otto Quandt
Carol M Schumacher
Rochelle M Schmidt
Warren K Moritz
James Schwickert
WE WILL make the above named employees
whole for any loss of earnings and benefits they
may have suffered by reason of our unlawful refus-
al to employ them, with interest
U S MARINE CORPORATION AND
BAYLINER MARINE CORPORATION
departures from terms and conditions of employ- Paul Bosanac Esq and Katherine Colgan Esq, for the
ment that existed immediately before our takeover General Counsel
US MARINE CORP
Fred G Grass Esq and Carolyn Gnaedinger Esq
(Quarles & Brady) of Milwaukee Wisconsin, for the
Respondent U S Marine Corporation
Warren Ogden Esq (Williams Lanza Kastner & Gibbs),
of Bellevue, Washington, for the Respondent Bayliner
Marine Corporation
Kenneth R Loebel Esq (Habush Habush & Davis), of
Milwaukee, Wisconsin, for the Charging Unions
Peter Stone Esq (Whyte & Hirschboeck), of Milwaukee,
Wisconsin, appearing specially to represent Chrysler
Corporation
DECISION
STATEMENT OF THE CASE
GEORGE F MCINERNY , Administrative Law Judge
This proceeding is based on charges filed on 2 February
1984 in Case 30-CA-8206 by International Union , Allied
Industrial Workers of America, AFL-CIO, and its affili
ated Local Local Union 879 , Allied Industrial Workers
of America (the International and Local 879 and collec
tively as the Union) This charge was amended by the
Union on 27 February 1984, and on 28 February 1984
the Regional Director for Region 30 of the National
Labor Relations Board (the Board) issued a complaint al
leging that U S Marine Corporation , a wholly owned
subsidiary of Bayliner Marine Corporation (U S Marine,
and Baylmer , or collectively as Respondents) had violat
ed Section 8(a)(1) and (5) of the National Labor Rela
tions Act (the Act)
On 2 March 1984, an answer was filed on behalf of
Respondent U S Marine , in which it was alleged that
U S Marine is a Wisconsin corporation , the stock of
which is owned by the same individuals who own the
stock of Bayliner , and otherwise denying the commission
of any unfair labor practices
On 2 July 1984 , Local 879 filed the charge in Case 30-
CA-8404 and on 1 October , it filed the charge in Case
30-CA-8537 A complaint in Case 30-CA-8537 issued
on 10 December 1984 naming the Respondent as U S
Marine Corporation an affiliate of Bayliner Marine Cor
poratfon " The answer here denied the commission of
any unfair labor practices On 19 June 1985 another com
plaint issued , this time in Case 30-CA-8404, again
naming U S Marine as an affiliate of Bayliner and on
19 June all three cases 30-CA-8206 , 30-CA-8404 and
30-CA-8537 were ordered to be consolidated by the
Acting Regional Director for Region 30 An answer was
filed in Case 30-CA-8404, again denying the commission
of any unfair labor practices
Finally on 21 August 1985 the Acting Regional Di
rector issued an amended consolidated complaint com
bining all the allegations in the prior complaints , and this
time alleging that U S Marine and Bayliner are Single
and/or joint Employers To this, U S Marine and Bay
liner , each represented by different counsel , filed sepa
rate answers , denying that they are single employers or
joint employers, and denying the commission of any
unfair labor practices
Pursuant to notice contained in the amended consoli
dated complaint a hearing was held before me in Mil
Waukee, Wisconsin , on 16 September , 14-18 October, 21
677
October, and 18-19 November 1985, at which all parties
were represented by counsel and had the opportunity to
present testimony and documentary evidence, to examine
and cross examine witnesses , and to argue orally Fol
lowing the close of the hearing, all parties submitted
briefs, which have been carefully considered 1
Based on the entire record, including my observations
of the witnesses, and their demeanor, I make the follow
ing
FINDINGS OF FACT
I JURISDICTION
A Bayllner
In its answer to the complaint, Bayliner denied that it
is a Delaware corporation, that it had an office and place
of business in Hartford, Wisconsin, and that it is engaged
in the manufacture and sale of powerboats The General
Counsel introduced a certified copy of a certificate of in
corporation of Bayliner Marine Corporation showing
that the company was incorporated as a Delaware cor
poration on 20 November 1972 In the absence of con
flicting evidence, I find that Bayliner is a Delaware cor
poration The evidence shows that there is no question
that Bayliner is engaged in the manufacture and sale of
powerboats The denial of the portion of the complaint
which alleged this fact apparently was an oversight on
the part of Bayliner s counsel The question of whether
Bayliner has or had a place of business in Hartford will
be discussed, below in section III, A
The answer admits and I find that Bayliner is an em
ployer engaged in commerce within the meaning of Sec
tion 2(2), (6), and (7) of the Act
i Under date of 22 May 1986 the Charging Unions filed a motion for
leave to reopen and supplement the record The General Counsel sup
ports this motion and the Respondents oppose The reasons advanced by
counsel for the Charging Unions as to why I should reopen the instant
hearing arose during a hearing before the Honorable Terence T Evans
United States District Judge for the Eastern District of Wisconsin The
judge held a hearing in connection with a petition by the Board to ad
judge Respondents in contempt of the court s 10 May 1984 injunction
and Order to bargain collectively with the Unions The evidence sought
to be introduced here includes minutes of several Safety and Progress
Committee meetings and some exchanges of correspondence between the
Union and Respondents early in 1986 These documents allegedly shed
additional light on the Respondents motions as well as show additional
violations of Sec 8(a)(1) and (5) of the Act
The General Counsel agrees with the substance of this motion but fails
to move to amend the complaint
I have reviewed the motion the support of it by the General Counsel
and the opposition by counsel for U S Marine The minutes of the Safety
and Progress Committee are like other minutes of that committee I have
hitherto refused to admit into evidence cumulative and unnecessary to
this decision Further the allegations of additional labor practices are re
petitive and redundant merely constituting continuations of conduct al
ready alleged in the original complaint as violations of Sec 8 (a)(1) and
(5) In any event the remedy which I could fashion for these alleged ad
ditional violations is identical with that that I will recommend here Ft
nally my reading of Judge Evans decisions in the original case and in
this contempt action indicates no inconsistency but rather mutual support
and agreement That court s remedies are somewhat different than those I
am empowered to recommend but I think they will supplement each
other without conflict or duplication
The motion is accordingly denied
678 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
B US Marine
The answer filed by U S Marine admits , and I find,
that U S Marine is an employer engaged in commerce
within the meaning of Section 2 (2) (6), and (7) of the
Act
II THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges , the answers admit , and I find
that the International Union, Allied Industrial Workers
of America, and its Local 879, are labor organizations
within the meaning of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A The Sale of the Plant
The plant involved here is located in Hartford, Wis
consin, and consists of a number of buildings, some inter
connected and some freestanding , built between 1912 and
1972, and containing altogether about 655,000 square
feet The plant was purchased by the Chrysler Corpora
tion in 1965, and was used for the manufacture of out
board motors and two cycle industrial motors By the
early eighties Chrysler s biggest customer for outboard
motors was the Seattle based Bayliner Marine Corpora
tion 2 In 1981 , Bayliner inquired of Chrysler about the
possibility of purchasing the outboard manufacturing fa
cility, but apparently that was not pursued
In 1983, the Chrysler Corporation decided to sell the
Hartford facility, and contacted Bayliner as a prospective
purchaser
Harold J Daumler Jr, former manager of asset studies
for Chrysler, testified that he had been involved in the
sale of various Chrysler operations, including Chrysler
Marine Corporation, the operating division at the Hart
ford facility 3 Negotiations between Chrysler and Bay
liner were extended and, at times, acrimonious Aside
from questions about the price for the facility, and
whether Bayliner would purchase the stock of Chrysler
Marine or merely the assets a major point of contention
was the disposition of the people employed at the plant
On this latter question Chrysler was anxious about the
fate of the current employees, not so much out of consid
eration for the welfare of those employees, but because
of the prospect of liability under its union contracts for
enormous sums of money in severance pay and supple
mental unemployment benefits Bayliner on the other
hand, acted in a manner throughout these negotiations
which seemed to indicate a desire to keep all its options
open 4 Despite this attitude, it was evident from the tests
2 Chrysler also sold outboard motors directly to independent dealers
and also manufactured a line of motors for the Montgomery Ward Coin
pany
2 Chrysler Marine also operated a plant in Beaver Dam Wisconsin
and the discussions for the sale concerned both plants during the negotia
tions but the Beaver Dam plant was not included in the final agreement
for the final sale of the Hartford plant
4 My findings on the subject of the negotiations and sale of the Hart
ford plant are based on the credible and undenied testimony of Daumler
and Chrysler s associate general counsel Leroy C Richie and on docu
ments introduced through these witnesses After my denial of its motions
to sever or to dismiss and without any notification to me Bayliner and
its counsel chose voluntarily to absent themselves from this hearing
mony of Daumler, and that of James W Hoag Bay
liner s vice president for administration, who also became
the general manager at the Hartford plant, that it was
Bayliner s intention to begin its own operations at Hart
ford as soon as possible after the sale Daumler quoted
Donald Saunders, the corporate secretary treasurer and
one of the principal stockholders of Bayliner, as saying
sometime in the fall of 1983 that Bayliner planned to hire
at least 85 percent of the Chrysler employees In a tele
phone conversation on 26 September 1983 between
Daumler and Christopher Steffan, a Chrysler vice presi
dent on one end and J Orin Edson, Bayliner s chairman
and principal stockholder, on the other, Edson was
quoted as saying that Bayliner would offer the employ
ees its own plans and programs ' to replace those in
effect under Chrysler The implication which I read into
these statements is that, at that time, Bayliner wanted to
start up production as quickly as possible, and in order to
do so, it would have to rehire enough former Chrysler
employees who possessed the necessary skills and expert
ence to enable an effective production schedule to be im
mediately established
Despite some disagreements the terms of the sale were
finally worked out late in November In a memorandum
requesting approval of the sale submitted by Chrysler s
management to its board of directors on 8 December a
description of the terms of the sale included the com
ment that "Bayliner will make no commitment to offer
jobs to all current employees but expects to employ at
least 85-90 percent of the present work force " The
Board duly approved the sale, and the transaction was to
be effective as of 30 December 1983
At this point, Local 879 and its International Union
filed suit in the United States District Court for the East
ern District of Wisconsin in Milwaukee (Civil Action 83
C 1983), against Chrysler Marine Corporation and
Chrysler Corporation, seeking to enjoin the sale as being
in violation of contractual requirements that the Unions
be given 6 months advance notice of the closing of the
Hartford plant, and that the Company negotiate a sever
ance pay plan 5 With the filing of the suit, Chrysler dis
patched Associate General Counsel Leroy C Richie to
Milwaukee to do what he could to clear the matter up
Richie called Edson and asked him to support Chrysler s
position by having someone from Bayliner testify or exe
cute an affidavit that the latter company intended to hire
a majority of former Chrysler employees Edson refused
to support Chrysler's position in a conversation which
Richie described as surprising and not pleasant
Richie then instructed Daumler to prepare a memoran
dum including language which Richie told Daumler to
put within quotation marks as accurately representing
the substance of what Edson had said The memorandum
noted that Bayliner officials had said throughout the ne
gotiations that they expected to hire a majority of the
present employees because they would be needed to run
the plant, and then reneged on an agreement to support
that position in the Federal court The memorandum
5 Chrysler s internal documents in evidence here show that their labor
relations people felt that Bayliner s commitment to continue operations
for a year would render these contractual provisions inapplicable
US MARINE CORP
continued it was not until a day two prior to the De
cember 28 hearing that you (referring to Edson) indicat
ed that you never had any intention of recognizing or
even negotiating with the Union Now it would appear
that your intention is to hire less than 50 percent of the
current employees Therefore the liability for employee
severance is going to run in the millions Had we known
this we would have structured the deal to avoid this li
ability Your misrepresentation has caused us this sub
stantial damage Daumler then called Edson and read
this language to him Daumler did not recall what Edson
said but remarked that it was so minimal as to be insig
nificant "
Richie was a careful witness, but I found his testimo
ny, particularly his clear, positive assertions on cross ex
amination that the substance of the memorandum that he
had Daumler prepare was in fact, what Edson had said
to him, to be candid and credible Thus, I find that some
time between September and December, Bayliner made a
determination that it would not honor its agreement with
Chrysler to hire 85-90 percent of the former Chrysler
employees, and that Edson stated to Richie that Bayliner
intended to hire less 50 percent of its work force from
among former Chrysler employees
It may be noted that Hoag did in fact make an affida
vit to be used in the Union's lawsuit, but that affidavit
carefully avoids any statement that Bayliner intended to
hire a majority of former Chrysler employees, stating
merely that Bayliner was required under the terms of the
agreement with Chrysler to operate the plant for a
period of not less than 1 year The district court issued
an injunction forbidding the sale, but I was informed by
the parties that that decision was reversed by the United
States Court of Appeals for the Seventh Circuit The
sale then went forward and Chrysler closed its doors on
13 January 1984
B The Corporate Succession
Bayliner Marine Corporation was founded in 1955 as a
retail dealership called Advance Outboards In 1966 or
1967 the Company began to manufacture boats under
the name of Puget Plastics and in 1972 was incorporated
under its present name of Bayliner Marine Corporation
It is a Delaware corporation headquartered in Arlington
Washington 6 which is entirely owned by four share
holders J Orin Edson Vinton H (Slim) Sommerville,
David Livingston, and Donald Saunders As of October
1985 and at other times material Edson was the chair
man of Bayliner, Sommerville the president, Saunders
the secretary treasurer, and Livingston the vice presi
dent In addition to these four individuals, the board of
directors of Bayliner also includes Lennox Black of Lim
enck, Pennsylvania, and John Hughes of Seattle, and
Terry Picken of Bellevue Washington By 1985, Bay
liner was operating 13 plants throughout the United
States engaged in the manufacture of fiberglass hulled
powerboats ranging from 14 to 45 feet in length There
6 The complaint was amended at the hearing to reflect the fact that
Bayliner s headquarters is at Arlington Washington instead of at Hart
ford Wisconsin
679
are no unions which represent any employee at any of
these 13 plants
In connection with the purchase of the Chrysler out
board operation The managers of Bayliner decided that
the newly acquired plant would not operate under the
Bayliner name but that a new corporation to be known
as U S Marine Corporation, would be created and incor
porated under the laws of the State of Wisconsin This
was duly accomplished, and the new company was es
tablished on 15 December 1983 The shareholders and di
rectors of U S Marine are the same as those of Bayliner
but the officers chairs have been shuffled around some
what, Edson being the president, Livingston the vice
president, Saunders the secretary, and Sommerville the
treasurer
After the finalization of the sale from Chrysler to Bay
liner for a total amount of $14 8 million, Bayliner as
signed the plant, real estate, and all other assets to U S
Marine for a sum estimated by Bayliner Attorney
Donald C Cramer as $10 7 This done, Bayliner then di
rected its vice president for administration, James W
Hoag, to run the new company Hoag is an attorney
who had been vice president for administration for Bay
liner since September 1982 In that position he had re
sponsibility for human resources and legal services in
cluding all personnel functions, training, compensation,
and recordkeeping for all the 13 Bayliner facilities Hoag
reported directly to Vice President David Livingston
As of 16 January 1984, Hoag was made general manager
and chief operating officer of U S Marine where he re
mained at least until the close of this hearing in Novem
ber 1985 During this time , however, Hoag retained his
title with Bayliner, and was paid by Bayliner, not by
US Marine
After Hoag assumed control of the new company, his
first task was the hiring of a work force, and steps to do
this were instituted even before the closing of the plant
by Chrysler on 13 January 1984 Coupled with the hiring
process itself, which will be discussed in detail below
was the concurrent establishment of new wage rates,
other conditions of employment and certain operational
changes in manufacturing processes, principally involv
ing the reduction in the number of models to be pro
duced
Both Bayliner and U S Marine maintained throughout
the hearing, and in their separate briefs that U S Marine
and Bayliner are not a single or joint employer under the
Act Bayliner s brief, indeed, is devoted solely to this
issue The question of whether they are separate inde
pendent entities or are a single or joint employer depends
on the application of the four criteria established by the
Supreme Court in Radio Union Local 1264 v Broadcast
Service 380 U S 255 (1965) Interrelation of operations,
common management, centralized control of labor rela
tions, and common ownership American Stores Packing
277 NLRB 1656 (1986)
° Neither Cramer s demeanor nor his testimony about his first knowl
edge of these proceedings inspired much confidence on my part as to his
truthfulness but in the absence of any other evidence I do credit this
statement that Bayliner assigned the Hartford operation to U S Manne
for a nominal sum
680 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
With respect to the first criterion, interrelation of op
erations it is true that Bayliner is a manufacturer and
seller of boats and U S Marine is a manufacturer and
seller of outboard motors and industrial motors It is also
true that Bayliner is a Delaware corporation and U S
Marine is a Wisconsin corporation 8 The evidence
shows however, that Bayliner did not treat with U S
Marine at arms length The whole Chrysler Hartford
operation which Bayliner had just purchased for $14 8
million was assigned and transferred to U S Marine for a
sum thought by Cramer to be $10 Later Bayliner trans
ferred machine, tools, designs, and patents for a stern
drive engine to U S Marine Hoag did not recall wheth
er there was any consideration paid for this transfer
Bayliner is U S Marine s largest customer and there was
no testimony that Bayliner paid market rates for motors
and engines purchased from U S Marine I can draw no
inferences from this but it can and must be inferred from
these facts that U S Marine is wholly a creation of Bay
liner 9 that Bayliner organized U S Marine and gave the
plant and all its assets to U S Marine , that Bayliner, in
effect, gave the stern drive operation to U S Marine, and
that Bayliner is the largest single customer of U S
Marine It is further inferred that the two corporate enti
ties are vertically integrated, one with the other This in
ference is reinforced from the fact that the reduction in
the number of types of outboard motors and the numbers
of those motors to be produced by U S Marine were all
determined by Bayliner even before the sale from Chrys
ler was completed, 10 and, according to U S Marine s
brief, estimates of U S Marine employment levels were
determined by reference to Orin Edson s estimates of
how many motors Bayliner would require from U S
Marine
The fact of common management does not need to be
inferred but is apparent from the fact that the officers of
one were the officers of the other i i At the next lower
level the actual operation of U S Marine was directed
by Hoag a Bayliner vice president Thus although there
is evidence that Hoag actually exercised management
functions at Bayliner while he was on assignment to U S
Marine, the fact that he held his Bayliner title and salary
and that, even after finally returning to Bayliner in the
fall of 1985 , he again came back as general manager of
US Marine because of his successors legal problems
shows that he was considered an interchangeable ele
ment in the common management of the two enterprises
There is of course no question of common ownership
here because the same four individuals own all the stock
of both operations
With respect to centralized control of labor relations it
must be noted that we are dealing here with two dissimi
lar situations involving labor management relations
0 Hoag testified that one of the reasons for the choice of Wisconsin as
the State of incorporation for U S Manne was tax considerations He
was not asked nor did he say what the other reasons may have been
9 Having the same persons as directors officers and stockholders
10 See letter from Hoag to Chrysler employees dated 8 December
1983
11 Although Edson Sommerville Saunders and Livingston held dif
ferent offices in the two corporations Hoag admitted that because these
four men owned all the stock of both they could call themselves by any
title they wanted
There are not or were not at the time of this hearing,
any unions at any of Bayliner s 13 plants At Chrysler
there had been a union and a union contract leaving
U S Marine, when it took control of the former Chrys
ler facility facing the situation we have in this case
As I have indicated Hoag was given the responsibility
late in 1983 to hire a staff to recommence production fol
lowing the closing of the plant by Chrysler and given
authority to develop a wage and benefit package for
these new employees Hoag testified that he had inde
pendent authority to establish the wage and benefit
package, but he also indicated that he consulted with
Livingston and Saunders as well as Herb Hackbarth,
former personnel manager for Chrysler 12 There is no
question but that Hoag was the officer responsible for
the implementation of labor relations policies at U S
Marine from the time U S Marine assumed control of
the Hartford plant until as least the time of this hearing
There is a great deal of evidence concerning these labor
relations policies which will be discussed in various sec
tions in this decision
There is however, very little evidence and no direct
evidence, on Bayliner s labor relations policies Hoag,
who was in a position to know what those policies were
because he had administered them during 1972 and 1973,
testified only in general terms about his duties at Bay
liner, and did not explain what personnel policies were in
effect then Bayliner, having failed to attend the hear
ings, or to submit any evidence on this subject, must,
perforce suffer me to draw what permissible inferences I
may from the record I have before me
These facts show a clear line of derivation from pole
cies and practices of Bayliner to those of U S Marine
At the outset we have the fact that Hoag s experience
with personnel and labor relations policies must be based
on his experience at Bayliner As far as I can tell from
his testimony his only experience in personnel and labor
relations was in his capacity as vice president for admen
istration at Bayliner from 1972 to 1974 I would infer
then that in the absence of evidence that he was using
other sources, Hoag drew on his experience at Bayliner,
and the policies and practices with which he was there
familiar , in formulating and implementing policies and
practices at US Marine
This inference is borne out by the evidence Even
before the sale of Chrysler was finally agreed on, we
find Edson in a telephone conversation on 26 September
1983 with Christopher Steffan and Harold Daumler stat
ing that Bayliner planned to offer the people our own
plans and programs to replace yours Later, Edson ex
pressed concern that Bayliner s intention to implement a
group incentive compensation system at the Hartford
plant might provoke a strike by the incumbent Union
In his communication to Chrysler employees on Bay
liner s letterhead, and dated 8 December 1983 Hoag told
them that Bayliner had purchased Chrysler s Marine
and Industrial Products Operations 13 Hoag s letter
12 Hackbarth had been personnel manager of Chrysler for some years
before 13 January 1984 and then stayed on with U S Marine until he
retired on 31 May 1984
13 This was before the Unions lawsuit against Chrysler the injunction
and the separation of the Beaver Dam plant from the Hartford operation
US MARINE CORP
went on to say that Bayliner was organizing an affiliated
company called U S Marine and promised the employ
ees that management would be applying the same phi
losophies that made Bayliner an industry leader includ
mg the belief that efficient teamwork is one of the keys
to success This last sentence can only refer to the ap
plication of Bayliner personnel policies and practices to
the employees of U S Marine
In a letter dated 13 December 1983 to Chrysler deal
ers, under the U S Marine letterhead, Sommerville
stated (signing as president of U S Marine' a), Every
one at Bayliner Marine Corporation and all the new
people who will be hired for the US Marine Engine
Company are here to serve you and make this the most
successful engine program in the country The meaning
of this is that Bayliner and its four owners considered
that the two companies were united in service to its deal
ers and customers
An employee handbook prepared by Hoag, using a
Bayliner handbook as a model, and distributed to all em
ployees of U S Marine states that U S Marine is an of
filiate of Bayliner the world s largest pleasure boat manu
facturer U S Marine will operate using the same suc
cessful formula developed by Bayliner , 'Bayliner and
U S Marine Corporation are owned and operated by
people who work everyday in the business The owners
devote their effort and investment to these two business
es exclusively and are committed to making U S Marine
a success and a great place to work
The handbook stated that Bayltner recognized many
years ago that a retirement savings plan was needed for
its employees and determined that the plan should accu
mulate a cash value to the employee We established the
Bayliner Marine Profit Sharing Trust of which all eligi
ble U S Marine employees automatically become mem
bers As it turned out, U S Marine eventually set up its
own profit sharing trust However the terms were the
same, and the trustees were the same, in both trusts The
trustees were Orin Edson and Donald Saunders
During the collective bargaining negotiations which
took place in 1984, Hoag stated on two occasions, as pre
served in the Company s notes, that Bayliner s policies
would prevail if there was a conflict between those
maintained by Bayliner and those sought by the Union in
negotiations with U S Marine
Despite Hoag s protestations that he alone formulated
labor relations policy for U S Marine, he admitted that
he consulted with Livingston and Saunders in the devel
opment of the initial wage package implemented on the
reopening of the plant on 23 January 1984 that he con
sulted with the four owners of the Company before de
ciding not to appeal the injunction ordering U S Marine
to bargain with the Union in May 1984 that he contin
ually consulted with the owners of U S Marine and Bay
liner about the union situation at U S Marine and about
the progress of this hearing Finally, the evidence shows
that on beginning production at Hartford in which all
employees were required to participate U S Marine in
1' Sommerville of course was president of Bayliner and Edson was
president of U S Marine but as I have noted the four sole stockholders
of both companies could call themselves anything they wanted
681
stituted a mandatory system of Safety and Progress
Committees again modeled on those in existence among
employees of at least two other Bayltner plants
It is apparent from all this that the owners of Bayliner
and the creators of US Marine intended to, and did,
place into effect the same policies and procedures which
the owners had found to work successfully at other Bay
liner plants This is a consistent pattern not contradicted
by any testimony or documentary evidence, and I find
that Bayliner and U S Marine have during all times ma
terial shared a common labor relations policy
Accordingly, I find that Bayltner and U S Marine are
commonly owned, have interrelated operations and
share common management and centralized control of
labor relations, thus constituting a single employer Al
britton Communications, 271 NLRB 201, 218 (1984)
Truck & Dock Services, 272 NLRB 592 (1984), Las Villas
Produce, 279 NLRB 883 (1986)
C The Hiring Process
Chrysler employed about 262 production and mainte
nance employees at the time it closed the plant on 13
January 1984 15 All these employees were terminated at
that time and were notified that if they wished to be con
sidered for employment by U S Marine they should file
applications with the Wisconsin Department of Industry,
Labor and Human Relations (the Job Service or
DILHR) In his letter to the Chrysler employees dated 8
December 1983, Hoag asserted that Bayliner/U S
Marine would be hiring the best qualified individuals
from the local area You, as an employee of Chrysler
are encouraged to apply for work with U S Marine
Hoag also notified the Job Service to send all former
Chrysler employees who filed applications to the Com
pany for interviews without any preliminary screening
required of other applicants To conduct the interviews
for former Chrysler employees as well as other appli
cants, Hoag brought in five Bayliner executives Allen
McKay from Bayliner s Arlington location Robert Hill,
facilities engineer at Arlington, Gary Klement plant
manager at Valdosta Georgia, Ron Cooley senior vice
president for manufacturing at Arlington, and Richard
Hammond, human resources manager from Arlington
Hoag testified that he himself did some interviewing
The interviews were scheduled for the week following
the shutdown of the plant on 13 January 1984 Hoag
stated that interviews for the former Chrysler employees
were set for the first 3 days of that week, with other ap
plicants scheduled for the last 2 days 16 The interviewers
had been briefed by a labor consultant in Arlington
before coming to Wisconsin, and were further briefed by
Hoag on the Sunday night before the interviews were to
take place The interviewers were told to ask questions
relevant to the job and to make sure to ask no questions
i s In referring to former Chrysler employees throughout this decision I
am referring to those 262 employees who were working at the time of
the closing of the plant not to employees who may have worked for
Chrysler sometime in the past
16 Hoag projected that 230 jobs would be filled after this round of
interviews during which about 500 applicants both former Chrysler and
non Chrysler employees were interviewed
682 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that could be considered discriminatory in regard to age
handicaps sex marital status, or union activity Hoag re
viewed with them the topics they should discuss includ
ing the types of machines the applicants ran, the toler
ance they were used to, and their versatility and flexibil
ity concerning future job assignments The interviewers
were given copies of the Bayliner employee handbook
later used as a model for a U S Marine employee hand
book, and were told to discuss wages and working con
ditions with the applicants
Following the interviews, the scenario for the hiring
process called for those not obviously disqualified to be
referred for physical examinations to a group of nurses
also apparently brought in from Bayliner locations 17
Each evening after the interviews ended the interview
ers and the nurses discussed the interviews with Hoag,
who had sheets showing the names of the days appli
cants Hoag did not tell the interviewers what criteria he
was looking for, but did discuss the interviews with the
interviewers and the physical abilities of the candidates
with the nurses
An additional step in the process was a daily consults
tion in that week of 16 January between Hoag and three
former Chrysler executives who remained on the payroll
of U S Manne-Herbert Hackbarth, the personnel man
ager, Harvey Bulgrin, former plant manager and John
Smith, former production manager These individuals
rated all the applicants on a scale of one to three, one
being the lowest mark, and gave these ratings to Hoag
Hoag then considered all this information and made the
decisions on those who would be hired and those who
would not without further consultation with the inter
viewers, the former Chrysler officials, or anyone else
Those selected for hire were notified to report for work
on 23 January, when the plant reopened under the man
agement of U S Marine At that time 219 employees had
been hired, all of whom were former Chrysler employ
ees By 25 January 12 more employees had been hired
among whom were 3 former Chrysler employees One
more former Chrysler worker was hired on 30 January,
making a total of 223 former Chrysler workers on the
payroll as of that date Between 25 and 30 January an
additional 29 non Chrysler employees were hired
making a total as of 30 January, of 261 employ ees Em
ployment records maintained by U S Marine show that
from 23 January to 31 August 1984 the total employ
ment ranged from 219 to 323, stabilizing between April
and August at 312 to 323 During this whole period the
number of former Chrysler employees varied from a
high of 223 to a low, as of 31 August 1984, of 218
As has been noted no former Chrysler employees
were hired after 30 January 1984 Of 258 former Chrys
ler employees who applied for employment with U S
Marine as shown by the evidence here 34 were not re
hired
When one looks at these facts, two differing perspec
tives emerge the first pointing toward the allegations in
17 The process was hobbled so far as I can determine by the fact that
all the Chrysler employees employment and medical records had been
bundled up when the plant closed on 13 January and sent off to Chrys
ler s headquarters in Detroit These records were unavailable to U S
Marine through no fault of its own
the complaint dealing with U S Manne s failure to rec
ognize the Union, and the second with the refusal to
rehire 34 former Chrysler employees I will deal with
these two broad issues in that order, but would note that
they are interrelated to some extent, and they will be
cross referenced here at appropriate points of contact
D The Refusal to Recognize the Union
The Union was aware, during the negotiations be
tween Bayliner and Chrysler, of the possible disadvan
tages to its members and itself resulting from the sale of
the Chrysler Marine operation In the Union s last collec
tive bargaining agreement with Chrysler, the parties in
eluded a side letter dated 30 June 1983, providing for 6
months notice of the closure of the Hartford and the
Beaver Dam plants and for the negotiation of a sever
ance pay plan This provision was of course part of the
reason why Chrysler officials including Leroy Richie,
were so concerned about Bayliner s equivocal stand on
rehire of the Chrysler employees late in 1983 It was this
provision, also which led to the Union s attempt to
block the sale in December of that year
On 13 December Hoag and Herbert Hackbarth met
with Local 879 President Donald L Griffin Robert
Johnson, Regional Director for Region 9 of the Interna
tional, and John Neff a staff representative for Region 9
According to Hoag s testimony, which was in agreement
with that of Griffin, Hoag informed the union represent
atives that Bayliner did not intend to recognize the
Union and that Bayliner would not abide by the existing
agreement between Chrysler and the Union Griffin also
recalled that Hoag said that he was not interested in
having a union represent the employees, and that he was
too busy to deal with the Union at that time Hoag ad
mitted that he may have made these last two statements
I credit Griffin s testimony that the statements were, in
fact made by Hoag
On 25 January 1984, the Union, by John Neff, wrote
to Hoag, formally requesting that Bayliner and its sub
sidiary U S Marine, recognize the International and
the Local as the representative of the Hartford employ
ees The letter also requested information on the names
and addresses of all employees hired by Bayliner/U S
Marine with job titles and wage rates and copies of em
ployee manuals and handbooks relating to current bene
fits U S Marine did not respond to this letter, and on 2
February 1984 the Union filed the original charge in this
matter in Case 30-CA-8206 During the course of the
events leading up to this present hearing on 13 April
1984 the Regional Director petitioned the United States
District Court for the Eastern District of Wisconsin for
an injunction requiring U S Marine to bargain with the
Union pending resolution of the underlying issues in
Case 30-CA-8206 all under the provisions of Section
10(1) of the Act I"
During the district court proceeding it was argued by
U S Marine, and expressed in an affidavit executed by
Hoag and submitted by U S Marine to the court that
U S Marine had prepared production forecasts in Janu
18 Civil Action No 84-C-498 filed 13 April 1984
US MARINE CORP
ary 1984 which determined when we would reach a
level of employment that could be regarded as a full
complement for our normal operations This led to the
conclusion that as of June, 1984, we would have 460
people employed The theory, then, on which US
Marine based complement 19 theory stated (as dicta) in
NLRB v Burns Security Services, 406 U S 272 (1972), to
the effect that the employer had no duty to recognize
the Union on 25 January 1984 20
According to U S Marine s theory, it began initial op
erations with less than a full complement of employees
In such circumstances
[w]hen a new employer hires only part of the old
unit , together with others who were never part of
the unit, any decision regarding the employers duty
to bargain with the Union affects the new employ
er, the old employees whom he had hired, and the
new employees who were not previously represent
ed by the Union The rights of all three must be
considered The `full complement standard of
Burns attempts to define when the make up of the
controlling majority is to be determined
The problem then becomes one of defining what
is meant by a full complement That cannot be
done by the application of a mathematical formula
but only by considering the facts of each case in
light of the general goal which is sought-to assure
majority rule within the new employers unit as to
whether and if so with what Union there must be
collective bargaining Pacific Hide, supra, at 612-
613
Accurate as the court is in Pacific Hide regarding its
appreciation of the Burns standard, and in its recognition
of the principle of majority rule, it is with no disrespect
intended that I differ with the court's rejection of the ap
plication of a mathematical formula to the issue In all
these kinds of cases the result must turn on the applica
tion of arithmetic or mathematical formulas and on the
ratios between the numbers of employees employed by
the predecessor employer in the appropriate unit
As pointed out by the court in Pacific Hide the facts
of each case must be examined to determine the point at
which a full complement of employees is attained, or
maintained in order to assure majority rule
In this search we must turn first to the methods used
by U S Marine to determine when its full complement
would be reached, and next to discover in or at what
point that full complement was reached
The Company s projections for the number of produc
tion employees required in a given month in the future
were based, first, on estimates by the U S Marine ac
to In reaching my conclusions on this issue I find it unnecessary to
draw distinctions between full complement and substantial and repre
sentative complement because the decision here turns on a different
issue namely the validity of statistics used by Respondents to establish a
projected employee complement at a future time Cf NLRB v Fall River
Dyeing Corp 775 F 2d 425 (1st Cir 1985)
20 Citing inter alts, Pacific Hide & Fur Depot v NLRB 553 F 2d 609
(9th Cir 1977) Premium Foods v NLRB 709 F 2d 623 (9th Cir 1983)
and NLRB v Pre Engineered Building Products 603 F 2d 1134 (10th Cir
1979)
683
counting department, under the direction of Accounting
Supervisor Gil Kiefer, of the numbers of various types of
engines to be manufactured in that month These num
bers, in turn, were computed through surveys conducted
by Bayliner marketing people 21 These numbers would
then be projected by Kiefer s group into a corresponding
number of manhours referred to as basic work stand
and (BWS) hours This, then, reflected a standard
number of hours required to produce the estimated
number of engines
The figure was then modified by a percentage figure
representing the efficiency of the work force as a whole,
varying between 142 and 137 percent during the time
covered by the estimates submitted as exhibits here 22 A
higher efficiency rating would result in a lower number
of hours required to meet the required production needs
The resulting figure would then be divided by the
number of shift, or production, hours in a given month
(most often 168 hours, based on 21 working days) result
ing in a figure representing the actual number of employ
ees needed in what the Company referred to as direct
labor" in the month being projected
The direct labor figure was then further modified by
factoring in categories described by the Company as in
direct labor including maintenance, warehousing, includ
mg and receiving, and figures representing the manpow
er equivalent of scrap, that is, waste, resulting, from
errors in the production process, engineering , and work
orders, representing work beyond normal production
schedules and maintenance functions All these figures
were then added to the direct labor number to arrive at
the number of people needed to run the factory at the
estimated level of production in each month, described
as the `manpower at work" figure
One final variable figure, the percentage of people
who would be absent during that month, was applied in
the formula to come up, finally, with a figure described
as manpower required
Because the final (manpower required) figure derives
ultimately, as I have described from projected produc
tion requirements it follows that changes in the latter es
timates would result in different figures for required
manpower
In exhibits entered here by the General Counsel fig
ures developed by Gil Kiefer on 20 January 1984
showed BWS hours of 59,574 for May and 65,076 for
June These figures resulted in an estimate of required
manpower for May of 358 and June of 396, before ad
justment for the absentee rate 23
Hoag testified that after these figures were developed
he added to the Kiefer figures a total of 40 additional en
gines for May and 90 engines for June This raised the
BWS hours for May to 60 388 and for June to 67,081
and the "manpower at work ,figure (before adjusting for
21 This use of Bayliner s marketing personnel from Bayliner s Arling
ton Washington headquarters was reflected in the figures at least for the
critical period from January to June 1984
22 January to August 1984
22 Note the absentee rate for this estimate has obviously been removed
from the chart entered in evidence as G C Exh 31 and replaced by ab
sentee factor figures admitted by Hoag to be in his handwriting
684 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the absentee factor) from 358 to 361 in May and from
396 to 405 in June Kiefer s figures (G C Exh 32) show
an absentee rate for May of 3 percent giving a total
manpower required of 372 and an absentee rate of 7 per
cent for June (considered a vacation month) giving a
total of manpower required for that month of 433 At the
same time 31 January the Company s employment fig
ures showed a total of 223 former Chrysler employees on
the payroll as of 31 January
Arithmetically, based on these figures, the Union
would have maintained its majority down through the
month which the Company claimed represented the time
when it would be employing a representative comple
ment of employees
However, a revised schedule was then prepared where
Hoag replaced Kiefer s estimates of the absentee rate,
based on U S Marine figures, with figures representing
Chrysler s experience with absentee rates in the calendar
year 1983 This chart (G C Exh 34) shows that the
Kiefer figures of 3 percent absenteeism for May and 7
percent for June were replaced by Hoag with figures of
7 7 percent for May, giving a manpower requirement of
389 and 13 5 percent for June resulting in a total for that
crucial month of 460 Under this reconstruction of
Kiefer s figures, if no more of the former Chrysler em
ployees were hired from 31 January, and if none of those
who had already been hired left the bargaining unit, then
the Union would not continue to represent a majority in
the month of June
Hoag gave no explanation for the revised estimate in
the number of engines to be produced in May and June
He referred to no marketing forecasts which would have
resulted in such round numbers of 40 additional engines
in May and 90 in June Further, his testimony on the use
of the Chrysler experience is somewhat disingenuous in
that he equated the Chrysler experience, where employ
ees had up to 4 weeks paid vacation with the US
Marine prospects, where employees in 1984 would re
ceive no paid vacation at all, in order to justify his use of
the 1983 Chrysler absentee rates
The accuracy of the manpower requirement figures in
terpolated by Hoag into the formulas worked out be
tween the marketing people at Bayliner with Kiefer and
his staff at U S Marine, depends entirely on Hoag s per
sonal credibility Hoag is not an engineer nor a produc
tion manager, but a lawyer, involved at Bayliner with
human resources and administration not marketing, sales
or production As noted there is no corroborating evi
dence from Bayliner , or U S Marine , or independent
sources, of why Hoag decided that 40 additional engines
would be built in May 1984 and 90 more in June Hoag s
mere assertion that these revised estimates were made as
the result of Orin Edson's optimism seem to me unwar
ranted in the light of descriptions of Edson by Richie
and Daumler as a tough bargainer , and a businessman in
terested in profit , not in unrealistic production goals
Edson may, indeed be an optimist He may have built
Bayliner's business on sanguinary but unerringly accurate
predictions of the public's desire to purchase powerboats
But he did not appear in this hearing to tell us these
things, and we must rely on the evidence we have in this
record which is that he is an owner and manager legiti
mately interested in making a profit from his business,
and not interested in accumulating unsold outboard en
gines The figures in the record here show that Kiefer
estimates, based on Bayliner's projected sales figures,
were much closer to actual production in May and June
than were Hoag s interpolations to those figures
Further Hoag s projections on absentee rates, interpo
lating figures drawn from Chrysler s experience in the
face of the different working conditions imposed by U S
Marine on its new work force were manifestly maccu
rate Particularly, I find Hoag's testimony that his figures
showed a 13 5 percent absentee record in June 1984, be
cause he thought U S Marine employees, having no paid
vacation time under the new regime, would take as much
vacation time as Chrysler employees, who were entitled
to up to 4 weeks paid vacation to be strained and not
believable
Hoag also lowered the employee efficiency rate com
puted by Kiefer, on the ostensible basis that a rapidly ex
panding work force could not sustain the high level in
Kiefer's estimate
These last two estimates made by Hoag, like his esti
mates in production were not borne out by the facts
Indeed all of Hoag's revisions to the production and
manpower projections made by Kiefer seem to have
very little basis in objective or demonstrable fact Hoag s
estimates of the number of engines to be produced may
be explained by an excess of optimism about the out
board motor business, but his manipulation of the absen
tee rates and the efficiency figures does not have any re
lation to his off repeated insistence that production is all
important, and that union demands, which did not reflect
productive use of company time would not be consid
ered Nor does his use of Chrysler figures for absentee
estimates seem consistent either with U S Marine s desire
to hire the most qualified candidates for employment,
or with a realistic view of employee willingness to take
unpaid vacations
I might consider this latter view utterly naive on
Hoag s part if I had not had the opportunity to observe
him carefully during his almost 3 full days on the witness
stand in this hearing He impressed me as a highly com
petent no nonsense executive occasionally brusque, but
capable also of sincere warmth and charm His grasp of
the facts was good, but he did show a selective memory
in certain areas primarily in his testimony on the later
collective bargaining negotiations, and in his statements
to union officers I did not find Jim Hoag to be the type
of business executive who would base production or
manpower requirements on ephemeral or subjective con
siderations However, in this case he chose to override
the work of marketing and accounting people, not being
either an accountant or a marketing specialist himself in
the end offering no logical explanation for this The ex
planations he did give are inconsistent not only with the
estimates he revised, and the final figures actually at
tained in the critical months of May and June 1984, but
are completely inconsistent with his own demonstrated
and observed action in other aspects of this case
For these reasons I do not credit Hoag s explanations
of his motives in revising the U S Marine estimates of
US MARINE CORP 685
production and manpower needs from January to June
1984, and particularly for the months of May and June
The most logical explanation for Hoag s actions, and the
reason most in accord with the probabilities of the situa
tion, is that the figures developed by Hoag, and applied
to the January estimates for the 6 month period to
follow, were intended to furnish a mathematical and sta
tistical basis for a defense to the Union s interest in the
bargaining unit here 24 Whether the immediate cause for
Hoag s action was the filing of the unfair labor practice
in Case 30-CA-8206 on 2 February 1984, is really imma
tenal, because Hoag was aware of the Union s continu
ing interest in representing the unit employees from the
13 December meeting, and the 25 January demand for
recognition Respondents argument that US Marine did
not recognize the Union in January, nor until ordered to
do so by the district court, because it believed that a full
complement would not be reached until June, is shown
to be based on false and misleading figures The cases on
which Respondents rely are thus not relevant to a situa
tion where the actual figures on Kiefer s original esti
mates , carried forward, consistently, until June 1984
show that the former Chrysler employees constituted a
majority of the Respondents work force from 23 Janu
ary when the plant reopened through the entire period
covered by the evidence introduced at the hearing, that
is, until August 1984
In this case there is no question that the skills used and
the functions performed by the employees are the same
under U S Marine's management as they were under
Chrysler s The business continued in the same plant as it
had before, using the same supervisory and clerical staffs
as it had before The products sold remained the same,25
as did the equipment and methods of production The
primary customers for the products of the Hartford plant
remained basically the same , Bayliner as the primary cus
tomer, with other dealers as soon as they could be per
suaded to handle U S Marine engines
In light of all these circumstances Respondents de
fence that a full complement of employees had not been
hired as of 25 January 1984, and that Respondents were
therefore not required under the law to recognize and
bargain with the Union, is rejected 26 I find, further, that
the Respondents have violated and are violating Section
8(a)(1) and (5) of the Act by refusing since 25 January
1984, to recognize and bargain with the Union Burns Se
curity Services, supra, Grico Corp 265 NLRB 1344
(1982), Premium Foods, supra, Metropolitan Teletronics
Corp, 279 NLRB 957 (1986)
E The Failure to Rehire
Closely tied to the factual issues which were discussed
in the preceding section is the issue raised by allegations
in the complaint that Respondents unlawfully failed and
refused to rehire 34 former Chrysler employees who had
applied for employment with U S Marine 27
Referring to my discussion in the previous section, it
would seem that Hoag had intentionally and falsely ma
nipulated the production, worker efficiency, and attend
ance projections, and that he did not really believe either
his own interpolations or the manpower required fig
ures resulting therefrom He would, in that case, have no
compelling motive to decline to rehire any additional
Chrysler employees If, on the other hand, I were to be
lieve that Hoag doctored" these figures in the belief
that the manpower totals resulting would be justified
post hoc by the actual employment situation in June,
then, and in that case, I could find that he declined to
hire any more Chrysler employees after 31 January in
order to avoid tipping the balance further toward a
union majority, and a legal obligation to bargain with the
Union
The major evidentiary fact tending to favor this latter
alternative is the admitted failure of U S Marine to hire
any more Chrysler employees after 30 June 1984 I re
ceived testimony from 12 of the former employees of
Chrysler who were not hired I refused to hear the re
maining employees, informing the General Counsel at
the hearing that I would infer, in the absence of evidence
to the contrary that all the employees who were not
hired were good employees had exemplary work
records and were versatile and skilled in various jobs in
the plant Having heard nothing to the contrary I find
that the skills, abilities and versatility and their work re
lated characteristics of these 34 employees were compa
rable to those 223 former Chrysler employees who were
hired by US Marine 28
24 At this point however I do not see that the interests of justice will
be served by my recommending to the General Counsel or to the Board
that this matter be turned over to the Justice Department for consider
ation under 18 U S C § 1001 et seq
26 The fact that the number of engine models was reduced is not sig
nificant because the product remained exactly the same
2e Respondents also denied that the bargaining unit alleged in the corn
plaint is an appropriate unit The distnct court in Case 84-C-498 found
that the unit sought by the Board there was an appropriate unit At no
time did Respondents introduce any evidence on this point and what evi
dente there is in the proposals made by U S Marine in the course of
bargaining with the Union after April 1984 shows that Respondent U S
Marine at any rate did recognize the unit as alleged in the complaint I
find in these instances that Respondents answers are not based on real
issues of fact or law are frivolous and are designed to prolong and
extend these proceedings Those denials are therefore stricken from
those answers See e g NLRB v Boston Needham Industrial Cleaning
Co 526 F 2d 74 (1st Cir 1975) on the question of a split unit in a
successorship situation and are considered of no effect in this proceeding
27 There were actually 36 names on a list which was used as a refer
ence at this hearing One name that of Donald C Clark was stricken
from the list because he died early in February 1985 Another name that
of Marlene H Shileds was dropped by agreement of the parties because
it was stipulated that she was not working at Chrysler as of 13 January
1984 Neither of these employees will be considered in my decision here
28 The record shows that the employment levels at Chrysler before it
closed were far below what they had been Local Union President Grif
fin testified that all the employees remaining in January 1984 had at least
10 years semonty Thus it is apparent that many of them had long serv
ice and were long in years as well The length of service of the 12 former
Chrysler employees who testified here ranged from l l to 31 years The
average length of service was over 19 years All these people were
middle aged and some had histories of accidents illnesses and allergies
to industrial products However there is no evidence that either the em
ployees who were hired or those who were not and did not testify here
displayed substantially different employment histories health seniority
or allergenic characteristics
686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
But beyond the bare fact that no former Chrysler em
ployees were hired after 30 January 1984, even when
that fact is considered together with the antiunior feel
ings and actions of the Respondents, as I found in the
preceding and will find in the following sections of this
decision, I can discern no real, substantive evidence that
the refusal to hire the 34 was based on their union mem
bership or on their former employment with Chrysler or
even on their various ailments, job preferences, or self
imposed restrictions on shifts or days they would be
available for work 29
The hiring process that took place in the week of 16
January 1984 did not impress me as well organized or
systematic The interviewers, a pickup team of assorted
Bayliner managers, might just as well have stayed at
home, for all the effect their admittedly long and hard
efforts had on the ultimate decisions on who would be
hired Aside from one instance where interviewer Gary
Clement relayed to Hoag his opinion that applicant Tim
othy Noble had been drinking at the time of his inter
view30 there is no indication that the notes they com
piled were used by Hoag in the final decisional process
Much more important to the process were the recom
mendations of Hackbarth, Bulgrin, and Smith former
Chrysler managers, who rated the applicants and con
veyed those recommendations to Hoag
Hoag s own testimony on his part in the decisions to
hire or not to hire tended to be fragmentary and not
marked by his usual ability to remember past events All
the notes that he received from the interviewers, and
those notes he himself made either from the interviewers
notes or on the ratings from the Chrysler managers were
destroyed after the original charges in Case 30-CA-8404
were dismissed by the Board s Regional Office 31
To sum up regarding the interview and hinng process
it is true that the methods used were informal and unsci
entific, and that we have very little in the record to doc
ument management s decision except Hoag s halting and
anecdotal testimony, corroborated, if one can call it that,
with halting and anecdotal testimony by the Bayliner
interviewers and the Chrysler exmanagers The end
result of this process, flawed as it may have been, was
the hiring as of 23 January, when the plant reopened, of
219 employees, all former Chrysler workers including
29 I am not unmindful in reaching this conclusion of the statements by
Edson memorialized by Richie that Edson had no intention of dealing
with the Union nor of the establishment and maintenance by U S Marine
of the Safety and Progress Committees nor of the statements and actions
of Hoag and Lombardo during the extended negotiations with the Union
from April 1984 to the time of the hearing nor of the impact of state
ments by these officers of Respondents on the collective bargamng proc
ess but I cannot extrapolate from these other demonstrated unfair labor
practices to those unfair practices alleged in this portion of the case
unless I can find a nexus or a junction point where Respondents hostile
ty toward the Union intersects with the hiring process here under discus
sion
30 Noble emphatically denied this while he was testifying I credit
Noble s denial He was a candid and credible witness
Si I can read no adverse inference into this action Hoag did not act in
an unreasonable or imprudent manner in assuming that when the Region
al Office dismissed the case it was dead and he could dispose of material
dealing with it Those of us who are more familiar with Board proce
dures might better appreciate the fact that like Lazarus cases can and do
come back to life through appeals or on reconsideration by the Regional
Office or by the General Counsel
according to Dan Griffin's testimony, of 16 out of the 17
former union officers and stewards
Turning to the next stage of the hinng process, the
U S Marine manning level figures for January show that
after the plant reopened an additional 12 employees were
hired on 25 January, of whom 3 were former Chrysler
employees, 7 more on 26 January, including no former
Chrysler employees, on 27 January with no Chrysler
employees, 5 on 30 January, including the last Chrysler
employee rehired, and 3 more on 31 January This made
a total of 264, including 223 Chrysler employees
We do not really know, despite the size of this record
and the diligence of all counsel in trying to make avail
able to us all the material facts concerning the issues in
dispute, what processes were used, or what standards ap
plied, to these post 23 January hires as well as these in
subsequent months We have scattered pieces of informa
tion, such as employment records from Chrysler on six
employees who were rehired, and showing poor or mar
ginal performance ratings These employment records
were not, of course, available to US Marine at any
time, because Chrysler had removed all such records
before the Respondents took over the Hartford plant In
any event, this information does not help the General
Counsel because it merely shows that some former
Chrysler employees who did not have good work
records were hired, and some of the 34 not hired, who
were given low ratings by the Chrysler managers who
continued to work for U S Marine, were not
Similarly, the citations in this record of five persons
who were not former Chrysler employees, and who
were hired fails to give much support to the General
Counsels theory of disparate treatment accorded by Re
spondents to the 34 nonhires Two of these people were
obviously hired because of their relationship to U S Ma
rine's personnel officer and production manager , respec
tively Another a person with a Spanish surname was
hired according to Hoag to increase minority representa
tion among the new employer's employees
Beyond these two areas and despite Personnel Manag
er John Lombardo s admission that some unqualified
people who were not former Chrysler employees were
hired the General Counsel had failed to present what I
consider substantial evidence that the failure to hire the
34 employees was due to the fact that they were mem
bers of the Union 32 I cannot find, here that the General
Counsel has established that the 34 were not rehired be
cause of disparate treatment People with good and bad
records were hired, or were not hired The Respondents
did hire 223 out of 257 former Chrysler employees who
applied including 17 out of 18 union officers and stew
ards There is no substantive evidence of why one person
was hired and one was not hired I do not believe that
fairness, or principles of due process, or the principles of
Wright Line, 251 NLRB 1083 (1980), require that Re
32 It seemed to be presumed by all parties and I think I properly can
infer that all the former Chrysler employees having worked under a
union shop contract were members of the Union and would be counted
by all parties as such Hoag s general statements that there was diaffec
tion with the Union among the rehired U S Marine employees were not
supported by any evidence
US MARINE CORP 687
spondents here be put to the test of carrying forward the
burden of proving that their hiring process did not dis
criminate against the 34 alleged discnminatees
In addition to these assertions of disparate treatment,
the General Counsel also maintains that the failure to
hire the 34 was due to an unlawful desire to keep the
numbers of former Chrysler, i e, Union, employees
down below 50 percent of the figures U S Marine had
computed as the total number of employees at the time
of full employment in June 1984 That latter figure, 460,
made it imperative that the Respondents hire no more
than 229 Chrysler employees, thus when the hiring of
Chrysler employees reached 223, it was determined to
hire no more Under this theory the violation was a
matter of numbers, not requiring proof of disparate treat
ment, and would apply equally to all those applicants not
rehired because of Respondents' numerical imperative,
regardless of skills, versatility, flexibility, or past employ
ment record
The problem I have with this theory is one which I
discussed above, and also with the parties at the hearing,
perhaps not as succinctly or articulately as I would have
liked, but, basically, on the grounds that what we have
here is an inherent contradiction between my findings
that the manpower required figures computed by Hoag
early in 1984, and showing a total of 460 for June, were
in fact false, and the General Counsel's theory that the
manpower required figure of 460 was a real goal of the
Respondents and that the failure to rehire additional em
ployees was an unlawful attempt to attain a nonunion
majority of employees in June 1984
Because I have already found that the manpower fig
ures computed by Hoag were false and designed to de
ceive the Board and the courts on a theory that full em
ployment at the 460 level would not be attained until
June, I cannot now disavow these findings and can
decide that the 460 figure was a real, valid goal and that
the failure to hire was based on real and valid calcula
tions that continued hiring of Chrysler employees would
endanger a real, valid nonunion majority These two
findings are incompatible, and because I have made the
first, I cannot now make the second I find therefore that
the General Counsel has not established a prima facie
case that the failure to rehire the 34 former Chrysler em
ployees violated Section 8(a)(1) and (3) of the Act See
Wright Line supra
F The Collective-Bargaining Negotiations
After the district courts 10 May 1984 order to Re
spondent U S Marine to bargain, the Union and Compa
ny met for a total of 19 times between 24 May 1984 and
15 May 1985 in what were described in the record as
bargaining sessions The General Counsel has alleged Re
spondents' conduct in these sessions as further violations
of Section 8(a)(1) and (5) of the Act
To properly understand these allegations , it is neces
sary to look at the totality of Respondents' conduct
toward the collective bargaining process , as well as
toward the Union, its officers and agents
The attitude of the Respondent companies was made
clear by Edson s statements to Richie described above
Edson, as the chief executive officer of Baylmer had no
intention of dealing with the Union Bayliner's employee
and agent , Jim Hoag , emphasized this point at his meet
ing with the Union on 13 December 1983 Respondents'
conduct through early 1984 reinforced these statements
They refused to recognize the Union, attempting to color
their refusal with legality by the use of false and mislead
ing employment projections
On the takeover of the plant by U S Marine the five
union bulletin boards in the plant were removed Griffin
testified that this was done during the week of 23 Janu
ary Hoag did not really remember, but he "believed" it
was someone in Chrysler management" who removed
the boards I credit Griffin s version of this incident and
find, consistently with my other findings, that the remov
al of the boards was done at Respondents' direction as
part of a plan to wean the employees away from loyalty
to the Union and into a position of dependence and reli
ance on Respondents Another element in this overall
scheme was the refusal by Hoag33 to allow Griffin or
any shop steward any time off, either compensated or
uncompensated, to investigate and process grievances In
this way, employees were left to whatever contacts they
could make on breaks or outside of working hours,
losing that moment when the incident was fresh in the
minds of all and quick resolution was possible Employ
ees necessarily would become frustrated and the Union
viewed as, at best, helpless, and at worst, ridiculous
These measures show clearly that Respondents' wished
to eliminate any union presence in the plant This inten
tion is also made clear in Hoag's insistence that bargain
ing meetings be held away from the plant and outside of
working hours When the city hall in Hartford proved
unsatisfactory the meetings were moved 40 miles away
to the Union s offices in north Milwaukee, far from any
possibility of direct contact between the worker in the
plant and the negotiation process 34
The principal element in Respondents campaign to en
courage employees to depend solely on management for
the settlement of problems was the creation of what
were called Safety and Progress Committees These
committees were, according to Hoag's testimony, an
other Bayliner innovation which had been tried out at
two Bayliner's other plants in Arlington Washington,
and Valdosta Georgia The U S Marine employee hand
book, which I have found was modeled on the Bayliner
handbook, was issued to all US Marine production
workers as they reported to work on 23 January 1984 as
The handbook under the heading Communication-
Key to Understanding goes on to described the Safety
and Progress Committee as follows
33 During all the events of 1985 Hoag was the sole effective manager
involved By his own testimony he was in constant communication on
labor relations matters with Bayhner management in Arlington Washing
ton
94 I do not view this last as particularly important but it is in line with
those matters which are important and serves as a compatible and con
sistent link between Respondents prebargammg conduct and the negoti
ations themselves
35 The handbook had been distributed to office and supervisory em
ployees in the week of 16 January and applicants interviewed in that
week were told about its contents by the Bayliner interviewers
688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
All employees will have the opportunity to serve
as a representative from their work area on the
Safety and Progress Committee The committee
meets on a regular basis to discuss in any open
forum those ideas which will make your plant a
better, safer and more enjoyable place in which to
work
In addition to employee representatives, senior
management employees also attend the Safety and
Progress Committee meetings Information concern
ing U S Marine s goals and objectives are shared as
well as progress toward meeting those goals and ob
jectives
Hoag supplemented this by describing the committee
as a group of individuals who represent various people in
the production areas of the plant, as well as the offices,
and who meet regularly every 6 weeks to exchange in
formation with management There are 11 work areas in
the plant, and each is represented by an employee ap
pointed by the area supervisor The employees are rotat
ed in this representative function The area representa
tive meets with the other employees in his or her area
and questions are propounded by the employees to the
representative, who writes them all down The represent
ative s notes are then given to the area supervisor who
may be able to handle some at his level Those which
cannot be handled locally are sent up through manage
ment channels and are typed and distributed to manag
ers in different areas to answer Then, 2 weeks after the
original meeting between the area representatives and the
employees in the 11 work areas, there is a meeting be
tween the area representatives and senior management
The questions originally asked by the area employees, to
gether with the answers prepared by management are
distributed to the area representatives Additional infor
mation on sales and other items considered by manage
ment to be of interest is given to the representatives The
meeting is then open to questions and discussions on
any part of our operation, including problem areas em
ployees feel cannot be discussed with their supervisor
All these meetings, in the area as well as the plenary ses
Sion are cumpulsory and are conducted on working time
The subject matter of the meetings was shown by sev
eral sets of minutes36 from February April May and
July 1984 These show that the meetings were used as a
forum for peptalks by Hoag on the Company s progress
in selling outboard motors and included questions and
answers on safety matters, but also on matters such as
wages, hours, breaks, and lunch periods, subcontracting
of maintenance work profit sharing hospitalization rest
room rates of pay for daywork leaves of absences, and
lunch schedules Despite protestations to the contrary
such discussions continued after the district court s order
of 10 May 1984
This committee was organized by the employer and its
structure, nature and functions were proscribed by the
36 The General Counsel wanted to place in evidence a number of addi
tional sets of these minutes I declined to receive them because they
would be cumulative The General Counsel urges in his brief that I re
consider but in view of my disposition of this issue I will stand by my
original ruling
employer Its meetings are conducted by supervisors
Area representatives and employees are paid for time
spent in these meetings
On these facts it is apparent that as conceived, cre
ated, and maintained by the Respondents the Safety and
Progress Committee at U S Marine presents a classic ex
ample of an employer dominated labor organization,
Marshall Industries, 132 NLRB 1613 (1961) There is no
allegation in this complaint of a violation of Section
8(a)(2), but on these facts, I find that the original and
continuing recognition of the Safety and Progress Com
mittee as a representative of its employees, constitute an
interference with the rights guaranteed employees by
Section 7 of the Act, and concomitantly a violation of
Respondents duty to bargain with the Union, all in vio
lation of Section 8(a)(1) and (5) of the Act 37 Hunter
Douglas Inc, 277 NLRB 1179 (1985)
Approaching the bargaining sessions themselves I per
ceived from my observations of them as witnesses that
the union negotiators, Griffin, Neff and Johnson, were
conservative in the sense that they wanted to retain the
outline and language of the Chrysler contract, with
which they were familiar Beyond that I found them to
be flexible on most issues but firm on fundamentals like
union security seniority, and grievance procedures My
observations of the management negotiators, Hoag and
Personnel Director John Lombardo revealed two people
with a quite different view of labor management rela
tions I can sum up that attitude by describing it as con
silting of roughly equal parts of arrogance innocence,
and ignorance Arrogance in Hoag s pronouncements to
the employees at the Safety and Progress Committee
meetings, and as expressed in his stilted and condescend
ing answers to some of their questions innocence in the
remarks of both Hoag and Lombardo decrying the stub
bornness of the Union as not seeing as clearly as they
that with the employees corporation and the Company s
good will, all would be well happy and prosperous, and
ignorant in that neither Hoag nor Lombardo had any ex
perience in the collective bargaining process or in the ne
gotiation of collective bargaining agreements Hoag
talked sometimes during the negotiations here as if he
had a smattering of labor law, or that he was being ad
vised by people who had a smattering of labor law but
that smattering proved to be inaccurate Lombardo had
some very peculiar ideas about the principles of exclu
sive representation and the duty owed by employers to
the exclusive representative of its employees Nowhere is
this combination of artlessness and self justification more
apparent than in a memorandum which Hoag prepared
and circulated to Lombardo and Harvey Bulgnn 38 just
before the start of the negotiations
3 7 Respondents conduct in continuing to recognize the Safety and
Progress Committee and to deal with it on matters involving wages
hours and conditions of employment seems to me at least disrespectful
to the district court s 10 May 1984 order to bargain with the Union as
well as to this agency
3 8 Bulgrin formerly plant manager for Chrysler and a holdover in that
job for U S Marine for a short time participated to some extent in the
negotiations but Hoag testified that he did not discuss the union propos
all with Bulgrin His name appeared as attending all but one of the ses
Continued
US MARINE CORP 689
AIWA NEGOTIATIONS 1984
Philosophy We will seriously consider any matter
which affects the wages hours, or terms and condi
tions of employment of our hourly workers
We are not interested in negotiating about mat
ters which benefit the union as an institution or em
ployees solely because of their positions in the
union hierarchy 39
Current Position Our wages, benefits and terms
and conditions of employment are contained within
our employee handbook, insurance booklet, profit
sharing booklet (soon to be available) and the de
scnption of our progression plan We are satisfied
that our employees are fairly compensated and pro
vided with good benefits
Table Manners We will employ them at all times
in the negotiating process We will deal with all
issues raised on a rational basis even if the issues
appear irrational
Perception Our employees and the NLRB should
perceive our negotiating as bargaining in good faith
Neither group should be able to be convinced that
our positions are unreasonable
Goal To achieve an accord acceptable to both
management and the bargaining unit employees in a
reasonable length of time
This document shows in its first and last paragraphs, a
predisposition, first to avoid any negotiations about mat
ters of union security40 or questions about rights and
privileges of union officers or stewards second, try to
separate the Union as an institution from its membership
This last observation is borne out by the matters I have
outlined above the removal of the bulletin boards, the
refusal to allow grievance investigations and processing
by stewards, and the establishment and maintenance of
the Safety and Progress Committee
The second paragraph of this memorandum states
clearly the fact that any variation from the documents
cited there, the employee handbook the Company's in
surance plan the Company's profit sharing plan and a
progression plan would be a remote and improbable
eventuality
The note of self justification which I commented on
above is clear in this second paragraph and prominent in
the next two paragraphs approaching the questions of
company conduct at the bargaining table and the percep
tions of the Board with lordly condescension Again in
the fourth paragraph it is apparent that Hoag is interest
ed in the employees not the Union
Turning, at last, to the negotiations themselves and
taking into consideration all this substantial background
I find that Respondents came to the table with a set pur
pose of avoiding a long lasting relationship with this
sions between May 24 and the end of September 1984 but there is no
indication that he did anything said anything or had anything to do with
the establishment or implementation of Respondents policy
39 Typical of Hoag s answers in this case was his response to a ques
tion by the General Counsels about whether this quoted paragraph re
ferred to union security matters No said Hoag but added not neces
sanly
40 Hoag s equivocal denial notwithstanding
Union which the Federal court had ordered them to sit
down and negotiate with Hoag's statement at the second
meeting that the contract if they negotiated one might
be only temporary, depending on the outcome of the
court proceedings, Hoag s refusal to meet more than
once a week, saying this was about the best he could do
with the other responsibilities he had 41 Hoag s statement
at the 14 June meeting that U S Marine s employees did
not need a Union, that they were supposed to have faith
and trust in the Company, but Lombardo s statements
concerning what he considered the anachronistic features
of unions and the fact that union issues were not the hot
issues in 1984, all bespeak an attitude on the part of
these managers that would make an agreement difficult
The negotiations began and ran from 24 May to at
least 22 August, a total of seven meetings that were
largely taken up with explanations by the union negotia
tors of the Union s proposals It is not uncommon in the
field of collective bargaining for one of the parties to
come to the bargaining table with a new negotiator, un
familiar with the collective bargaining history and the in
formal relations between the parties A certain breaking
in is something to be expected But in this situation both
Hoag and Lombardo, obviously intelligent and compe
tent people, but admitted amateurs both in the field of
collective bargaining and in the informal relations be
tween the Union and Chrysler, sought no advice from
Bulgrin, who if he did not negotiate the Chrysler con
tracts at least had something to do with their administra
tion, or any other professional Hoag and Lombardo in
effect told the Union, teach us about this contract you
want us to agree to This task, even with a trained edu
cator on one side, and open minded students on the
other would be formidable enough, but working union
representatives on one side and Hoag and Lombardo,
carrying the burdens of their prejudices, on the other it
is scarcely surprising that the Union's explanations of its
proposals failed to prove persuasive
A review of the minutes compiled by John Neff for
the Union and John Lombardo for U S Marine shows
that there was a lot of discussion over issues such as
grievances time off for stewards and the 34 former
Chrysler employees who were not hired and less con
sistent and direct talk about the basic issues of wages and
hours There was what I would call a lack of flow in
the negotiations This flow or current describes the
process of serious negotiations when both parties grasp
an issue or series of issues and push them along, moving
and conceding back and forth, until agreements are
41 Neither U S Marine nor Bayhner is a mom and pop operation They
are both substantial corporations with substantial resources The fact that
the Union was forced to dance attendance on Hoag s convenience in lieu
of dealing with a competent professional in the field of labor relations
indicates to me a rather cynical desire to hobble the collective bargaining
process The fact as Hoag stated that he did not even consult with
Harvey Bulgrin Chrysler s plant manager concerning the Union s pro
posals which were based on the Chrysler contract shows me that Hoag
was not really serious about the bargaining process Bulgrin apparently
was fired by U S Marine in September or October 1984
690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
reached There was none of this either in the testimony
or in the notes submitted in evidence here 42
The Union had submitted a proposed contract on 24
May 1984, and, as noted, the parties entered into lengthy
discussions on the meaning of each article The Compa
ny countered these proposals with the suggestion that
the Company s employee handbook serve as the collec
tive bargaining agreement It was not until the 10th ses
sion, on 22 August, that the Company submitted a partial
proposal, consisting of 11 whole or partial articles, in
cluding recognition, nondiscrimination, hours and over
time vacation, and holidays, and a no strike clause The
parties agreed at this meeting to delete Bayliner s name
from the proposed agreement, and to the preamble of the
agreement
On 29 August, the parties agreed to a provision for
nondiscrimination contained in both the company and
union proposals, and Hoag agreed to union suggestions
on the makeup of the union and company bargaining
committees
There were no agreements on 5 September, and on 12
September there was a tentative agreement on vacation
schedules, but no agreement on other provisions of the
vacation article as proposed by the Company There was
an agreement on a no strike, no lockout clause, as pro
posed by both parties On 19 August, the Company
agreed to a union proposal for special union company
meetings, to some provision for jury duty pay and a
probationary period as proposed by the Company On 11
October the parties finally agreed to a recognition clause
with certain exceptions as proposed by the Company
and a provision for funeral leave The 17 October meet
ing resulted in no progress toward solution of outstand
ing issues, and on 25 October there were no substantial
agreements on any proposals Hoag submitted a new set
of proposals, which were rejected by the Union
At this point the Union through Johnson, suggested
that the parties call on a Federal mediator to help in
working in an agreement Hoag rejected this He said
that because the Union would not agree on two issues,
seniority and union security, there was no sense in meet
mg with the mediator
The Company s last proposal of 25 October was imple
mented on 21 January 1985 There were two additional
bargaining sessions on 10 April and 15 May 1985, when
the Union proposed modifications on its seniority and
union security proposals These changes were rejected
by the Company, and no further meetings had been held
down to the time of this hearing
In making my determination on the question of wheth
er Respondents here engaged in hard but lawful and le
gitimate bargaining or whether they merely went
through the motions, not with any desire to make any
accommodations or to come to agreement I have exam
fined these negotiations in the framework of Respondents
total conduct, beginning with the initial views of Edson
42I would point out also that this flow process can move around
and past tough issues like union security or seniority in this case then
return to reconsider those issues There was none of that in this case
Hoag felt that because the Union would not agree to company demands
on two issues the parties were at impasse and there was no sense in
meeting with a Federal mediator
and Hoag before the Respondents took over the plant
that they had no intention of recognizing or bargaining
with the Union, the immediate removal of the bulletin
boards, the shackling of the union officers and stewards,
and the establishment of the Safety and Progress Com
mittee immediately on taking over in January 1984, the
continual illegal activities of Respondents in using the
Safety and Progress Committees to denigrate the Union
and to serve as a bargaining and grievance forum bypass
ing the Union, the fabrication of false and misleading
production and employment statistics to avoid Respond
ents lawful obligation to bargain,43 and the comments
and statements disingenuously peppered throughout
Lombardo s notes on the bargaining sessions that Jim
Hoag said the employees did not need a Union, that he
was never going to agree to union security, that the
Company was not a collection agency for Union dues, '
and that the Company would not agree to union de
mands that would interfere with production
I have noted Hoag's manifesto on what the Company
would not agree to, for philosophical reasons, and his
satisfaction with the then current benefits provided in the
employee handbook, and I note further that Hoag stood
firm on his philosophy and on the Company s benefits
throughout the entire negotiations, refusing even to con
sider union security checkoff seniority (except in a very
limited way), wages, holidays, vacations, and all other
categories of employee benefits
The record of what transpired at the bargaining ses
sions did not show any dedication by management to the
collective bargaining process Not only was there no
`flow or current" to the negotiations, there were spe
cial manifestations of smugness and self satisfaction ex
pressed by Hoag and Lombardo which inevitably tended
to disrupt the meeting into a welter of mutual charges
and recriminations Likewise the company officials re
fused to give relevant information to the Union both
before and during the negotiations Although this is dis
cussed infra, as a separate area of alleged violation of
law, it is applicable in this context here as a part of the
total picture of Respondents conduct and attitude
toward the bargaining process
The same attitude prevailed in the Company s treat
ment of the Union in connection with holiday shutdowns
of the plant The Union was notified, but only at the
same time as all other employees, and the Union's re
quest to bargain about at least the Christmas shutdown,
was summarily rejected In Lombardo s view, the Union
was in the same position as any other outside organiza
tion, and entitled to no more consideration This is un
derstandable only in view of Lombardo s fancy that a
union may be an exclusive representative of employees
for some things and not for others The Company s cava
her rejection of the Federal Mediation and Conciliation
42 As a postscript to this element I might also note the empty and un
supported claim that U S Marine and Baylmer are separate and mde
pendent employers even though information on this fact was and is par
ticularly and exclusively within the knowledge of the Respondents
US MARINE CORP
Services help in resolving the problem is indicative that
the Company did not want to solve the problem at all 44
In consideration of all these reasons , the totality of Re
spondents conduct , together with its firm purpose, de
cided before any negotiations began , that union security
would not be considered , and its termination , before ne
gotiations began , that its substantive benefits were satis
factory and adequate for the employees , and its consist
ent adherence to these positions right down to the end, I
find that Respondents have engaged in surface bargain
ing, with no real intention to reach an agreement with
the Union , all in violation of Section 8(a)(1) and (5) of
the Act 4b NLRB v Reed & Prince Mfg Co, 205 F 2d
131 (1st Cir 1953), Chevron Chemical Co, 261 NLRB 44
(1982), NLRB v A 1 King Size Sandwiches , 732 F 2d 872
(11th Cir 1984)
G Additional Complaint Allegations
It follows from the findings already made that the Re
spondents had a duty to bargain with the Union from
and after January 23, 1984, and that by refusing to give
information including names and addresses of all employ
ees hired in the bargaining unit I have found to be ap
propnate, job titles and wages, together with copies of
any handbooks or manuals describing employee benefits,
Respondents have further violated Section 8(a)(1) and (5)
of the Act The information requested is obviously rele
vant to the Union s duty to act as bargaining representa
tive for all employees in the unit Respondents have of
fered no reason why preparation of this information is
burdensome in any way 46 Whitin Machine Works, 108
NLRB 1537 (1954), Pfizer Inc, 268 NLRB 916 (1984)
The complaint listed several incidents of unilateral
changes in terms and conditions of employment institut
ed by Respondents without providing notice to, or offer
ing to bargain with the Union These were layoffs of
employees during the Thanksgiving and Christmas holi
day weeks granting a wage increase to employees effec
tive 21 January 1985 and individual bargaining with em
ployees since 5 November 1984 regarding which em
ployees should work during the 1984 Christmas and
Thanksgiving layoffs
All the facts on these matters were admitted by Hoag
and Lombardo The wage increase was a part of the im
plementation of the Respondents last offer made on 25
October 1984 But I have found that the whole of Re
spondents' conduct during the negotiations was a show
44 I note also that the Company s declaration of impasse based ac
cording to Hoag on the fact that he did not believe that the Union
would agree to the union security and seniority provisions offered by Re
spondents was premature but in view of the totality of conduct here
any remedy for the former would merge in that I am recommending for
the latter In such a case however any changes unilaterally implemented
were unlawful as well NLRB v Herman Sausage Co 275 F 2d 229 (5th
Cir 1960)
45 In view of these findings I take no position on the question of
whether Respondents insistence on using an awkward and cumbersome
Wisconsin statute in place of a customary arbitration clause and their in
sistence contractually on limiting the right of the Union to discipline or
fine its members constituted additional evidence of bad faith Cf Bouut
to s Inc 277 NLRB 977 (1985)
46 Hoag s cynical comment that the Union could obtain payroll infor
mation from employees does not raise a question of Respondents ability
to make this information readily available
691
and a pretense , entered into and continued from May to
October 1984 with no real intent to enter into any agree
ment In these circumstances, Respondents are not free
to walk away from their obligations to bargain in good
faith by pleading an impasse in a process indelibly tainted
by an extended and grievous course of conduct which I
have found violative of the law Thus, I find that the
failure to bargain over the Christmas and Thanksgiving
layoffs in 1984 and the wage increase in January 1985
are independent violations of Section 8(a)(1) and (5) 47
A final allegation in the complaint charges that on 10
November 1984, Lombardo told an emnloyee, Richard
Powers that if U S Marine even had to observe seniori
ty in job transfers or layoffs, US Marine would no
longer operate the plant Lombardo remembered the
conversation with Powers, but denied making the threat
that U S Marine would move if they had to observe se
nionty in layoffs and transfers I found Lombardo to be
a credible enough witness, albeit arrogant and naive in
his approach to unionism in general and this Union in
particular I therefore credit his denial that he made such
a threat
IV THE REMEDY
Having found that the Respondents have violated Sec
tion 8(a)(1) and (5) of the Act, I shall recommend that
they cease and desist therefrom, and that they take the
following affirmative action designed to effectuate the
policies of the Act I will recommend that Respondents
be required to bargain collectively in good faith with the
Union over wages, hours, and terms and conditions of
employment for employees in the following bargaining
unit All full time production and maintenance employees
of the Hartford Wisconsin plant, except executives,
office and clerical workers, salesmen , shop superintend
ents , supervisors engineers, nurses first aid attendants,
guards, temporary summer/seasonal employees any em
ployee in training for the foregoing, and all other em
ployees having the right to hire and discharge Such bar
gaining in good faith shall commence immediately on the
request of the Union and shall continue until an agree
ment is reached, or a legitimate impasse occurs I will
further recommend that Respondents cease and desist
from making unilateral changes in wages, hours and
working conditions, and that they shall be ordered to
bargain collectively and in good faith over all changes in
such wages hours and working conditions which have
been made and implemented by Respondents since Re
spondents began operations at the Hartford, Wisconsin
plant on 23 January 1984
I shall recommend that Respondents immediately fur
nish the Union with the information heretofore request
ed and also furnish information legitimately required for
collective bargaining or grievance processing as request
ed by the Union in the future
41 I leave to the compliance stage of these proceedings the question of
further unilateral changes in wages hours and working conditions The
taint I have found in the bargaining process may well affect further ac
tions of Respondents even though I decline to reopen this hearing to re
ceive additional evidence on these matters
692 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I shall recommend that Respondents immediately cease
and desist from dealing with the organization known as
the Safety and Progress Committee, that they hold no
further meetings of the committee and that they cease
and desist from paying employees to participate in any
meetings of the committee
Because of the serious nature of the unfair labor prac
tices here found and the disregard shown by Respond
ents to the fundamental rights of their employees, I find
it necessary to recommend the issuance of a broad order
requiring Respondents to cease and desist from infringing
in any other manner on rights guaranteed employees by
Section 7 of the Act Hickmott Foods, 242 NLRB 1357
(1979) For the same reasons, I shall recommend in my
Order a visitatorial clause as requested by the General
Counsel
CONCLUSIONS OF LAW
1 Respondent U S Marine Corp and Bayliner Marine
Corporation are employers engaged in commerce, and
are a single employer within the meaning of the Act
2 The International Union, Allied Industrial Workers
of America AFL-CIO, and its Local Union 879 are
labor organizations within the meaning of the Act
3 All full time production and maintenance employees
at the Hartford Wisconsin plant, except executives
office and clerical workers, salesmen shop superintend
ents supervisors, engineers, nurses, first aid attendants,
guards temporary summer/seasonal employees any em
ployee in training for the foregoing and all other em
ployees having the right to hire and discharge, is an ap
propriate unit for bargaining within the meaning of the
Act
4 Respondents have violated Section 8(a)(1) and (5) of
the Act by refusing to recognize the Union, by refusing
to give information to the Union by bargaining in bad
faith with the Union, and by unilaterally implementing
changes in wages, hours, and conditions of employment
without bargaining in good faith with the Union, and by
bargaining individually with employees
5 Respondents have violated Section 8(a)(1) and (5) of
the Act by establishing and bargaining with Safety and
Progress Committee
6 Respondents have not violated the Act in any other
manner
[Recommended Order omitted from publication ]