Waymouth Farms, Inc.

National Labor Relations Board - Board Decisions

Oct 31, 1997

324 N.L.R.B. 960 (N.L.R.B. 1997)

960
324 NLRB No. 151
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We have modified the caption to reflect the current name of the
International Union.
2 We shall modify the judge’s recommended Order to reflect the
amended remedy as discussed infra, and to comport with our deci-
sion in Indian Hills Care Center, 321 NLRB 144 (1996).
3 All dates are in 1993 unless otherwise noted.
4 The decision to close the plant is not alleged to be unlawful.
Waymouth Farms, Inc. and Milk Drivers and Dairy
Employees Union, Teamsters Local 471, affili-
ated with International Brotherhood of Team-
sters, AFL–CIO.1 Cases 18–CA–12766 and 18–
CA–12891
October 31, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX
AND HIGGINS
On April 5, 1995, Administrative Law Judge Fred-
erick C. Herzog issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed an answering brief to the Re-
spondent’s exceptions, a brief in support of the judge’s
decision, and in addition filed exceptions and a sup-
porting brief. The Respondent filed an answering brief
to the General Counsel’s exceptions, and a reply brief
to the General Counsel’s answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings, and conclusions as further discussed
below, and to adopt the recommended Order as modi-
fied2 and set forth in full below.
I. INTRODUCTION
We agree with the judge, for the reasons set forth
by him, that the Respondent refused to bargain in good
faith in violation of Section 8(a)(5) and (1) of the Act
by misrepresenting to the Union its intentions and
plans regarding relocation of the Respondent’s facility
located in Plymouth, Minnesota. As set forth below,
however, we will modify the judge’s recommended
remedy to require the Respondent to bargain in good
faith with the Union as the exclusive representative of
the unit employees at the Respondent’s facility located
in New Hope, Minnesota, and to require that it do so
for a reasonable period of time before it may question
the Union’s majority status.
II. FACTUAL BACKGROUND
The Union was certified in August 1986 as the rep-
resentative of a unit of production and maintenance
employees employed at the Respondent’s facility in
Plymouth, Minnesota. The parties executed a collec-
tive-bargaining agreement in June 1987. The agree-
ment provided that the Respondent recognizes the
Union as the bargaining representative of the unit em-
ployees ‘‘in its Plymouth, Minnesota, plants, and at no
other geographical locations.’’ The judge found that
the parties understood this provision to mean that rec-
ognition would cease, and the contract would be void,
in the event that the Respondent moved from the
Plymouth, Minnesota location. The record establishes
that the Union agreed to this provision, in part, be-
cause it believed it could retain employee support and
prevail in another representation election in the event
the Respondent relocated the Plymouth facility. The
parties executed a successor agreement effective March
10, 1991, to March 9, 1994, which retained the geo-
graphic limitation on recognition.
About July 19, 1993,3 the Respondent closed its
Plymouth, Minnesota facility and reopened a new fa-
cility 6 miles away in New Hope, Minnesota.4 In reli-
ance on the parties’ collective-bargaining agreement,
the Respondent declared that agreement void and
ceased recognition of the Union when the geographic
relocation occurred.
The sequence of events leading up to the plant relo-
cation are as follows. On April 17, the Respondent en-
tered into an agreement to purchase the new facility lo-
cated in New Hope. About the last week in April, the
Respondent notified the city of New Hope of its desire
to occupy the facility, and requested blueprints of the
building. On about April 29, an official of the city of
New Hope visited the facility with agents of the Re-
spondent to conduct a preliminary inspection of the
property in preparation for a formal health inspection.
By letter to city officials dated May 3, the Respondent
described its intended operation and requested an opin-
ion on the appropriateness of that intended use under
the city zoning code.
Nevertheless, when the Respondent first notified the
Union of its relocation intentions by letter dated April
23, it failed to mention that the Respondent had en-
tered into the agreement to purchase the New Hope fa-
cility on April 17. Rather, the Respondent stated in its
April 23 letter that ‘‘although the company is consider-
ing several options, relocation may occur outside the
state of Minnesota.’’
In late April or early May, union representatives vis-
ited the Respondent’s Plymouth facility and inquired
as to the relocation. The Respondent’s representatives
responded that it was only known that the lease at the
Plymouth facility would expire in late July. The Re-
spondent’s representatives again failed to mention the
April 17 agreement to purchase the New Hope facility,
and failed to mention the additional steps the Respond-
ent had taken with city officials to prepare the New
Hope site for relocation. The representatives of the Re-
spondent and the Union at this time additionally dis-
cussed assistance for workers who might be dislocated
on relocation. The Union proposed that a severance
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961WAYMOUTH FARMS
5 The judge found that Gamache had previously assured the Union
that the Respondent would likely know what its relocation plans
were by May 18.
6 The Respondent had sent a memo dated June 1 to employees de-
scribing the relocation to New Hope. The Respondent did not send
this memo to the Union.
package be provided, and the Respondent promised it
would respond back to the Union.
Sometime shortly after this visit, Union Representa-
tive Laxen telephoned The Respondent’s representa-
tive, Gamache, to schedule a date to discuss severance
pay for employees. Laxen in addition inquired as to
the relocation. Gamache replied that it looked certain
that the move would be necessary due to the inability
to reach a new lease with the landlord of the Plymouth
facility, and that the Respondent was just beginning to
look at new locations, including some outside the State
of Minnesota. The Respondent again did not inform
the Union of its agreement to purchase the New Hope
facility, or its extensive contact with city officials.
Nor did the Respondent’s officials reference their
conduct to effectuate the relocation to New Hope when
the parties subsequently met on May 13 to discuss a
plant closure agreement. While the Respondent’s rep-
resentatives on this date failed to mention any conduct
in relation to New Hope, they did affirmatively state
that the Respondent ‘‘was considering sites in Califor-
nia, South Dakota, and towns in Minnesota such as
Buffalo, Eagen, or Eden Prairie.’’
On May 17, the Respondent closed on the purchase
of the New Hope facility, and notified its landlord at
the Plymouth location that it would vacate that facility
by the end of July. The Respondent and the Union met
on the following day, May 18, to further discuss the
plant closure agreement. Despite having closed on the
purchase of the New Hope facility on the previous day
and given notice to its landlord, the Respondent’s rep-
resentative, Gamache, stated that no decision about the
move had yet been made.5 The Respondent did not
mention the significant events that had occurred the
previous day. The parties in this context continued to
negotiate the plant closure agreement and the Union’s
proposal regarding a severance package.
Later that day on May 18, the Respondent by fax
to the Union accepted the Union’s proposed plant clo-
sure agreement. The agreement specified different re-
quirements for receipt of severance benefits by em-
ployees depending on whether or not the Respondent
relocated more than, or less than, 20 miles from the
Plymouth facility. The agreement further provided that
the Respondent was required to offer all employees the
right to request a transfer to the new facility and if
there were an insufficient number of positions avail-
able, the Respondent was to select employees for ter-
mination based, in its sole judgment, on skill, ability,
and performance. The agreement also provided that the
collective-bargaining agreement between the parties
would be terminated on completion of work at the
Plymouth facility.
On May 19, the Respondent met with a contractor
about remodeling the New Hope facility, and explained
that it needed to be in the facility in July. At this time,
the Respondent’s representative warned the contractor
that the move was not known to employees, and in-
structed the contractor not to discuss the move with
anyone other than the Respondent’s representative.
On June 21, the Union received a postcard from the
Respondent informing it of the relocation of the facil-
ity to New Hope. This was the first instance in which
the Respondent notified the Union of the New Hope
location, and was additionally the first mention
throughout the course of negotiations of any plan to re-
locate so near the Plymouth facility.6
The Union thereafter commenced an organizing
campaign with respect to the New Hope facility. The
Union secured authorization cards, and filed a rep-
resentation petition with the Board’s office. The Union
subsequently filed the instant unfair labor practice
charge, and withdrew the representation petition.
On moving to the new facility, the Respondent exer-
cised its right under the plant closure agreement to ter-
minate employees if there were an insufficient number
of positions available at the New Hope facility. On re-
location the Respondent decreased the number of
enrober operators from six to three, and terminated
employees Nancy Tischner, Phil Blumenthal, and
Cindy Jefferson. Pursuant to the terms of the plant clo-
sure agreement, the Respondent selected these employ-
ees for termination based on its judgment of their skill,
ability, and performance. Additionally, the Respondent
at the time of the relocation granted employees wage
increases ranging from a few cents per hour to over a
dollar an hour. The record further establishes that at
the time of relocation, all 70 of the New Hope em-
ployees had been previously employed at the Plymouth
location.
III. DISCUSSION
A. The Judge’s Decision
The judge found that the Respondent never informed
the Union of the steps it had taken to purchase the
New Hope facility, its plans to remodel that facility,
and its action to satisfy governmental requirements to
complete the relocation. The judge found that the Re-
spondent maintained to the Union that the relocation
plans were unknown, and emphasized that relocation
might occur outside the State of Minnesota. The judge
observed that these misrepresentations occurred
throughout the course of the parties’ negotiations con-
cerning the plant closure agreement. The judge accord-
ingly found, and we agree for the reasons set forth by
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962 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 We have carefully considered the Respondent’s argument in its
exceptions that the judge failed to consider its evidence assertedly
establishing that it in fact was considering relocation to sites other
than New Hope. Assuming arguendo that the evidence so estab-
lishes, the unlawful misrepresentation remains: that of repeatedly
failing to inform the Union of specific steps the Respondent had
taken to relocate to New Hope, while continually mentioning and
emphasizing other geographic options including those outside the
State of Minnesota. The record unequivocally establishes that the
Respondent never mentioned the New Hope location to the Union.
8 We note that the judge inadvertently erred by stating that the Re-
spondent terminated these employees because they engaged in union
activities, and we shall modify the judge’s recommended Order in
this regard. Further, the interest on any payments required under the
Board’s Order shall be calculated as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
The General Counsel has excepted to the judge’s inadvertent fail-
ure to pass on the complaint allegation that the Respondent violated
Sec. 8(a)(5) and (1) of the Act by unilaterally granting wage in-
creases to employees at the time of the relocation. The record evi-
dence establishes, however, that the Union clearly and unmistakably
waived its right to bargain about such increases. Union Representa-
tive Laxen testified that it ‘‘was always understood between the par-
ties that the Employer could give a wage increase above the contract
rate at any time.’’ We shall accordingly dismiss this complaint alle-
gation.
9 Further, pursuant to the usual Transmarine remedy, in order to
ensure meaningful bargaining and to effectuate the policies of the
Act, we shall order the Respondent to pay its employees employed
at the time of the relocation backpay at the rate of their normal
wages when last in the Respondent’s employ from 5 days after the
date of this decision until the occurrence of the earliest of the fol-
lowing conditions: (1) the date the Respondent bargains to agree-
ment with the Union on those subjects pertaining to the effects of
the discontinuation of its operations; (2) a bona fide impasse in bar-
gaining; (3) the failure of the Union to request bargaining within 5
days of this decision or to commence negotiations within 5 days of
the Respondent’s notice of its desire to bargain with the Union; or
(4) the subsequent failure of the Union to bargain in good faith. In
no event shall the sum paid to any of the employees exceed the
amount each would have earned as wages from the time the Re-
spondent relocated its operations, to the time each secured equivalent
employment elsewhere, or the date on which the Respondent shall
have offered to bargain, whichever occurs first; provided, however,
him, that the record evidence establishes that the Re-
spondent violated Section 8(a)(5) and (1) of the Act by
misrepresenting to the Union its intentions and plans
regarding plant relocation while engaged in negotia-
tions with the Union for a plant closure agreement.7
As the Supreme Court has declared, ‘‘[g]ood-faith bar-
gaining necessarily requires that claims made by either
bargainer should be honest claims.’’ NLRB v. Truitt
Mfg. Co., 351 U.S. 149, 152 (1956).
The judge accordingly found that the plant closure
agreement had been obtained via the Respondent’s
bad-faith bargaining, and must therefore be set aside.
The judge likewise found, and we agree for the rea-
sons set forth by him, that the termination of the three
employees pursuant to the unlawfully obtained plant
closure agreement additionally violated Section 8(a)(5)
and (1) of the Act.8
The judge’s recommended remedy for the Respond-
ent’s unlawful bargaining was to order the Respondent,
on request, to bargain in good faith with the Union re-
garding a plant closure agreement and, if an agreement
is reached, to embody such agreement in a written and
signed document.
The General Counsel has excepted to the judge’s
recommended remedy. The General Counsel argues
that the judge erred by limiting the bargaining order to
negotiations concerning a plant closure agreement. The
General Counsel submits that the contractual geo-
graphic limitation in the recognition clause is rendered
void because of the Respondent’s bad-faith bargaining.
The General Counsel accordingly contends that the ap-
propriate remedial relief is that the Respondent should
be ordered to recognize the Union as the representative
of the unit employees at the New Hope location, and
bargain with the Union as their representative concern-
ing all terms and conditions of employment, for a rea-
sonable period of time, before the Respondent may
question the Union’s majority status.
The Respondent counters that the contractual geo-
graphic limitation clause precludes the Board from or-
dering the Respondent to recognize and bargain with
the Union as the representative of employees at the
New Hope facility. The Respondent submits that ac-
cordingly the Board is without authority to grant rec-
ognition to the Union at the New Hope facility, and
that the only way the Union can attain recognition at
the New Hope facility is via an organizational cam-
paign. The Respondent thus argues that the Board may
not modify the agreed-on bargaining unit to include
representation at the New Hope facility.
B. The Appropriate Remedy
It is the primary responsibility of the Board to de-
vise remedies that effectuate the policies of the Act,
and the Board is vested with broad discretion in that
determination. Sure-Tan Inc. v. NLRB, 467 U.S. 883,
898 (1984); Fibreboard Paper Products v. NLRB, 379
U.S. 203, 215–216 (1964); NLRB v. Rutter-Rex Mfg.
Corp., 396 U.S. 258, 262–263 (1969). The purpose of
the Board’s remedial relief is to restore, so far as pos-
sible, the status quo that would have obtained but for
the wrongful act. Phelps Dodge Corp. v. NLRB, 313
U.S. 177, 194 (1941).
The usual remedy given by the Board in cases—as
here—in which an employer fails to bargain in good
faith about the effects of its decision to close is set
forth in Transmarine Navigation Corp., 170 NLRB
389, 390 (1968). Pursuant to Transmarine, the Board
orders the respondent to bargain with the union, on re-
quest, about the effects of its discontinuance of busi-
ness operations. Accordingly, the judge correctly rec-
ommended that the Respondent be ordered to bargain
with the Union, on request, about the effects of its dis-
continuance of business operations at its Plymouth,
Minnesota facility.9
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963WAYMOUTH FARMS
that in no event shall this sum be less than the amount these employ-
ees would have earned for a 2-week period at the rate of their nor-
mal wages when last in the Respondent’s employ. See Emsing’s Su-
permarket, 284 NLRB 302 (1987), enfd. 872 F.2d 1279 (7th Cir.
1989). The primary purpose of the Transmarine remedy is ‘‘to create
an incentive for the Company to bargain in good faith.’’ Nathan
Yorke v. NLRB, 709 F.2d 1138, 1145 (7th Cir. 1983).
10 Under the doctrine of Harte & Co., 278 NLRB 947 (1986), not
only the recognitional obligation, but also the contract, would extend
to the new facility if at least 40 percent of the employees at the new
facility had transferred from the facility in which the union was the
incumbent. The complaint does not, however, allege that failure to
extend the contract violated the Act. Accordingly, we have limited
our remedy for the Respondent’s bad-faith bargaining to imposition
of the bargaining order.
11 The Respondent’s answering brief to the General Counsel’s ex-
ceptions, p. 5. We also do not agree with the Respondent’s conten-
tion that having accurate information about the Respondent’s reloca-
tion plans at an earlier date would not have affected the Union’s or-
ganizing efforts, and therefore no remedial relief is necessary. The
Respondent’s own conduct establishes persuasively that it believed
that different results might have obtained. Otherwise, there is no ex-
planation for its lack of candor in the negotiations.
The General Counsel asserts, however, that the
judge’s recommended remedy, alone, is insufficient to
restore the status quo that would have obtained but for
the Respondent’s wrongful conduct. The record evi-
dence shows that the New Hope facility is located only
6 miles from Plymouth; that all 70 of the New Hope
unit employees were previously employed at Plym-
outh; and that notwithstanding the move, the Respond-
ent’s business remained essentially the same. There is,
further, no evidence that unit employees were dis-
pleased or otherwise disaffected from the Union at the
time of the relocation. Thus, in the absence of the geo-
graphic limitation clause, the Union would have been
entitled to recognition at the new plant once it became
clear that a substantial percentage, i.e., at least 40 per-
cent, of the employees there had been transferred from
the plant at which the Union represented the work
force. Rock Bottom Stores, 312 NLRB 400 (1993),
enfd. 51 F.3d 366 (2d Cir. 1995).10 The question to be
decided is, therefore, whether the Respondent should
be allowed to rely on the geographic limitation clause
to relieve it of what would otherwise be its statutory
obligation to recognize the Union at the new location.
The Board will honor a geographic limitation clause
in which a union waives employees’ rights to contin-
ued representation at a new facility as long as there is
no evidence that the employer has secured the waiver
by taking ‘‘any action to mislead the Union or to keep
the Union uninformed.’’ Mohenis Services, 308 NLRB
326, 333 (1992). The evidence here establishes that the
Respondent unlawfully misled the Union about its re-
location plans. We therefore find that the Respondent
is precluded from enforcing the waiver as a shield
against its bargaining obligation.
The record evidence established that the Respondent
understood that it was the Union’s intention, in the
event of plant relocation, to organize the employees at
the new location. During the parties’ negotiations, the
Union expressly stated to the Respondent that it was
accepting the geographic limitation on recognition in
large part due to its belief that it could successfully or-
ganize the employees at a new location. Both parties
were accordingly mindful that any relocation would be
accompanied by an organizational campaign and, in-
deed, the Union commenced such a campaign imme-
diately on learning in late June of the Respondent’s
plans to relocate to New Hope.
The effect of the Respondent’s unlawful conduct,
however, was to preclude the Union from timely com-
mencing organizing the employees at the new location.
Had the Respondent truthfully bargained concerning its
plans, the Union would have been alerted in late April
to the possibility of the New Hope relocation. The
Union thus would have had the opportunity to inform
the unit employees that the Respondent might well be
relocating to a nearby location, and to commence orga-
nizing from its position as an incumbent union
throughout the next several months until the relocation
occurred. Because of the Respondent’s wrongful con-
duct, however, the employees were presented with the
fait accompli announcement of relocation by the Re-
spondent, followed by the Union’s necessarily belated
initiation of its attempt to organize the employees, with
only a month remaining before the relocation and the
termination of the Union’s status as the employees’
bargaining representative. As we have found, the Re-
spondent’s failure to disclose its true relocation plans
also tainted the bargaining over the effects of the relo-
cation. The Respondent’s deception thus breached the
essence of the arrangement agreed to by the parties:
that the Union would waive the employees’ right to
continued representation by the Union at a new loca-
tion, based on an understanding that both parties would
fulfill their legal and contractual obligations, including
the duty to bargain in good faith, as long as the Re-
spondent remained in business at the Plymouth facility.
These obligations included an obligation on the part of
the Respondent to deal fairly and truthfully with the
Union over the critical issue of when and where the
relocation would occur. The Respondent thus fun-
damentally misconceives its legal obligation by main-
taining that it ‘‘had no obligation to act as anything
but a non-union employer when issues relating to the
New Hope facility arose.’’11
As noted above, absent the geographic limitation
clause, the Respondent would have been obligated to
recognize the Union at the new location once it be-
came clear that most of the employees there had trans-
ferred from the plant at which the Union represented
the work force. Because we will not, for the reasons
stated above, give effect to the geographic limitation
clause, we find that the appropriate remedy in this pro-
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964 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 See, e.g., Franks Bros. v. NLRB, 321 U.S. 702, 705–706 (1944);
Poole Foundry & Machine Co., 95 NLRB 34, 36 (1951), enfd. 192
F.2d 740 (4th Cir. 1951), cert. denied 342 U.S. 954 (1952); Stant
Lithograph, Inc., 131 NLRB 7, 8 (1961), enfd. 297 F.2d 782 (D.C.
Cir. 1961) (per curiam); and Lee Lumber & Building Material Corp.,
322 NLRB 175, 178 (1996), remanded 117 F.3d 1454 (D.C. Cir.
1997).
13 The factors for determining a reasonable period of time are set
forth in Caterair International, 322 NLRB 64, 68 (1996). The Board
has found a reasonable bargaining period to encompass as few as 4
months and as much as a full year of good-faith bargaining. See,
e.g., cases cited in NLRB v. Williams Enterprises, 50 F.3d 1280,
1290 (4th Cir. 1995).
ceeding is an affirmative bargaining order directing the
Respondent to bargain with the Union as the represent-
ative of the unit employees at the New Hope, Min-
nesota facility. Longstanding Board and court prece-
dent further instructs that fulfillment of our remedial
goals is best achieved by requiring the Respondent to
bargain with the Union for a ‘‘reasonable time’’ with-
out questioning the Union’s majority status.12 The un-
derlying policy is that when a bargaining relationship
has been restored after being unlawfully broken, it
must be given a reasonable time to succeed before an
employer may question the union’s representative sta-
tus. Lee Lumber & Building Material Corp., supra; and
Franks Bros. v. NLRB, supra at 705.13
Contrary to the Respondent’s contention, the
issuance of a bargaining order to remedy the Respond-
ent’s unlawful conduct is not inconsistent with H. K.
Porter Co. v. NLRB, 397 U.S. 99 (1970). In H. K.
Porter, the Supreme Court held that the Board could
not compel the parties to agree to a particular contract
proposal even if the Board found that a party was re-
fusing in bad faith to agree to the proposal. What we
are dealing with here is not, however, an ordinary term
and condition of employment, but the basic question of
whether an employer should be required to continue
recognizing a union as the representative of its em-
ployees. Our conclusion that a meaningful remedy here
requires a bargaining order is simply not the kind of
order ‘‘compelling a company or a union to agree to
any substantive contractual provision of a collective-
bargaining agreement’’ that the court condemned in
H. K. Porter, 397 U.S. at 102. To the contrary, our
decision here, to recognize the waiver of the employ-
ees’ statutory right to continued representation only on
the condition that the Respondent upholds its obliga-
tion to bargain with the employees’ representative, is
in fundamental support of the principles of good-faith
bargaining by which agreements are mutually enforce-
able and not subject to unilateral modification.
CONCLUSION
For all the above reasons, we shall order the Re-
spondent to bargain in good faith with the Union as
the exclusive representative of the unit employees at
the Respondent’s facility located in New Hope, Min-
nesota, and it must do so for a reasonable period of
time before it may question the Union’s majority sta-
tus.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Waymouth Farms, Inc., New Hope, Min-
nesota, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to recognize and bargain collectively
with the Union, as the exclusive bargaining representa-
tive of its employees in the following appropriate unit,
by refusing to provide accurate information to the
Union about its intentions and plans to relocate its fa-
cility located in Plymouth, Minnesota:
All regular full-time and regular part-time produc-
tion and maintenance employees, drivers,
woodshop, plexiglass, and warehouse employees,
and leadmen, employed by Respondent at its
Plymouth, Minnesota facility until July 19, 1993,
and thereafter at its New Hope, Minnesota facil-
ity; but excluding office clerical employees, re-
ceptionists, sales employees, engineers, quality
control department, research and development per-
sonnel, customer service employees, guards and
supervisors, as defined in the Act.
(b) Discharging employees pursuant to a plant clo-
sure agreement which was negotiated in bad faith.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and, on request, bargain with Milk
Drivers and Dairy Employees Union, Teamsters Local
471, affiliated with International Brotherhood of Team-
sters, AFL–CIO as the exclusive representative of the
employees in the appropriate unit concerning terms
and conditions of employment and reduce to writing
any agreement reached as a result of such bargaining.
(b) Pay the employees employed at the time of the
relocation their normal wages for the time period as set
forth in footnote 9 of this decision.
(c) Within 14 days from the date of this Order, offer
Nancy Tischner, Phil Blumenthal, and Cindy Jefferson
full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights
or privileges previously enjoyed.
(d) Make Nancy Tischner, Phil Blumenthal, and
Cindy Jefferson whole for any loss of earnings and
other benefits suffered as a result of the Respondent’s
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965WAYMOUTH FARMS
14 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
unlawful action, in the manner set forth in the remedy
section of the judge’s decision as modified here.
(e) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charges, and within 3 days thereafter notify the em-
ployees in writing that this has been done and that the
discharges will not be used against them in any way.
(f) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(g) Within 14 days after service by the Region, post
at its place of business in New Hope, Minnesota, cop-
ies of the attached notice marked ‘‘Appendix.’’14 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 18, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure
that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pend-
ency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail,
at its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since August 4, 1993.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to recognize and bargain col-
lectively with the Union, as the exclusive bargaining
representative of our employees in the following ap-
propriate unit, by refusing to provide accurate informa-
tion to the Union about our intentions and plans to re-
locate our facility located in Plymouth, Minnesota:
All regular full-time and regular part-time produc-
tion and maintenance employees, drivers,
woodshop, plexiglass, and warehouse employees,
and leadmen, employed by us at our Plymouth,
Minnesota facility until July 19, 1993, and there-
after at our New Hope, Minnesota facility; but ex-
cluding office clerical employees, receptionists,
sales employees, engineers, quality control depart-
ment, research and development personnel, cus-
tomer service employees, guards and supervisors,
as defined in the Act.
WE WILL NOT discharge employees pursuant to a
plant closure agreement which we negotiated in bad
faith.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of rights
guaranteed you by Section 7 of the Act.
WE WILL recognize and, on request, bargain with
Milk Drivers and Dairy Employees Union, Teamsters
Local 471, affiliated with International Brotherhood of
Teamsters, AFL–CIO as the exclusive representative of
the employees in the appropriate unit concerning terms
and conditions of employment and reduce to writing
any agreement reached as a result of such bargaining.
WE WILL pay the employees employed at the time
of the relocation their normal wages for the time pe-
riod as set forth in Transmarine remedy of the Board’s
decision.
WE WILL, within 14 days from the date of the
Board’s Order, offer Nancy Tischner, Phil Blumenthal,
and Cindy Jefferson full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Nancy Tischner, Phil Blumenthal,
and Cindy Jefferson whole for any loss of earnings and
other benefits resulting from their discharge, less any
net interim earnings, plus interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful discharges of Nancy Tischner, Phil
Blumenthal, and Cindy Jefferson, and WE WILL, within
3 days thereafter, notify each of them in writing that
this has been done and that the discharges will not be
used against them in any way.
WAYMOUTH FARMS, INC.
Joseph H. Bornong, Esq., for the General Counsel.
Steven C. Miller, Esq., for the Respondent.
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966 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Sec. 8(a)(5) of the Act provides that, ‘‘It shall be an unfair labor
practice for an employer . . . to refuse to bargain collectively with
the representatives of his employees, subject to the provisions of sec-
tion 9(a).’’
2 Sec. 8(a)(1) of the Act provides that, ‘‘It shall be an unfair labor
practice for an employer . . . to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in section 7
. . . .’’
Sec. 7 of the Act provides that, ‘‘Employees shall have the right
to self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, and shall also have
the right to refrain from any or all such activities except to the ex-
tent that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment as au-
thorized in section 8(a)(3).’’
3 Unless otherwise noted, all dates here shall refer to the calendar
year 1993.
4 The unit, as modified from the agreements between the parties,
is:
All regular full-time and regular part-time production and main-
tenance employees, drivers, woodshop, Plexiglass, and ware-
house employees, and leadmen, employed by Respondent at its
Plymouth, Minnesota facility until July 19, 1993, and thereafter
at its New Hope, Minnesota facility; but excluding office cleri-
cal employees, receptionists, sales employees, engineers, quality
control department, research and development personnel, cus-
tomer service employees, guards and supervisors, as defined in
the Act, constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the Act.
5 The Union’s representative testified that the negotiations fully
disclosed that the Employer intended to make it reestablish its ma-
jority status if he moved anywhere all. He stated:
Q. And what was—what did the company propose to prevent
the work stoppage?
A. Halverson came back from a lunch meeting with Gerry
Knight and he called me out in the hall, and Bentz was with
me at that time, and he said to me, ‘‘I can give you what you
need as far as your recognition clause and I’ll give you what
you need as far as union security, but only on the grounds that
it will be effective for the address in Plymouth, Minnesota
where we are presently located.’’
A. Halverson made it real plain to me, and there was no mis-
understandings about that one, is that if that company is moved
across the street I wouldn’t have them, and he said, ‘‘That is
understandable,’’ and he says, ‘‘That is the only way I’ll get you
what you need as far as the union security and the recognition
clause,’’ and I told him I’d have to run that by the committee,
which I did.
DECISION
STATEMENT OF THE CASE
FREDERICK C. HERZOG, Administrative Law Judge. This
case was heard by me in Minneapolis, Minnesota, on March
22 and 23, 1994. It is based on charges filed by Milk Drivers
and Dairy Employees Union, Teamsters Local 471, affiliated
with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (the Union), alleging
generally that Waymouth Farms, Inc. (the Respondent) vio-
lated Section 8(a)(5)1 and (1),2 of the National Labor Rela-
tions Act (the Act). On December 10, 1993,3 the Regional
Director for Region 18 of the National Labor Relations
Board (the Board) issued a complaint and notice of hearing
alleging violations of Section 8(a)(1) and (5) of the Act. The
Respondent thereafter filled a timely answer to the allega-
tions contained within the complaint, denying all wrong-
doing.
All parties appeared at the hearing and were given full op-
portunity to participate, to introduce relevant evidence, to ex-
amine and cross-examine witnesses, to argue orally, and to
file briefs. Based on the record, my consideration of the
briefs filed by the counsel for the General Counsel and coun-
sel for the Respondent, and my observation of the demeanor
of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, the answer admits, and I find that,
at all times material hereto, the Respondent is now, and has
been, a Minnesota corporation, with an office and principal
place of business in Plymouth, Minnesota, until about July
19, and in New Hope, Minnesota, since that time, where it
is engaged in the manufacture and nonretail sale and distribu-
tion of snack foods; during the calendar year 1993, the Re-
spondent, in conducting the business operations, described
above-derived gross revenues in excess of $1 million and
purchased and received at its Plymouth and New Hope, Min-
nesota facilities goods valued in excess of $50,000 directly
from points outside the State of Minnesota, and sold and
shipped from its Plymouth and New Hope, Minnesota facili-
ties goods valued in excess of $50,000 directly to points out-
side the State of Minnesota.
Accordingly, I find and conclude that, at all times material
hereto, the Respondent is, and has been, an employer en-
gaged in commerce and in a business affecting commerce
within the meaning of Section (2)(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that,
at all times material hereto, the Union is, and has been, a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts of this Dispute
Waymouth Farms, Incorporated operated a facility from
which it engaged in its business as a packager of snack foods
in the Westpoint Business Center, at the address of 13870 In-
dustrial Park Boulevard, Plymouth, Minnesota, until the sum-
mer of 1993.
Teamsters Local 471 was certified as representative of cer-
tain employees of Waymouth Farms, Incorporated in August
1986. The parties have entered into two collective-bargaining
agreements since then.4
The first agreement was reached in June 1987, following
difficult negotiations between the parties. One provision of
the agreement, union security, was reached as part of a com-
promise in which the Union agreed that, if the Employer
were to move away from Plymouth, or open new facilities,
or, as the parties put it, ‘‘go across the street,’’ then the
Union would lose its right to recognition and its contract
would be void. The Union was well aware that this was the
interpretation of the Respondent throughout negotiations.5
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967WAYMOUTH FARMS
A. I told them just how I felt. That that wouldn’t bother me
with that type of a language in the contract because we weren’t
going to do any better anyway. That if we had to we would—
and they moved we would just have to re-sign them. I still am
an optimist and still think the Teamsters do a good enough job
they can go out and sign their people up again.
The initial agreement expired in 1991. However, the suc-
cessor agreement contained the same geographic limitation as
the initial agreement. Indeed, no attempt was made by the
Union to secure a change in the language, and it was not dis-
cussed at all during the negotiations.
The Respondent’s packaging operations were carried out
under several different roofs while in Plymouth. This resulted
in inefficiencies, such as the requirement that enrober ma-
chines be double staffed. As a result, in 1992 the Respondent
began looking into relocation at a new site where all its oper-
ations could be carried out under one roof, so that its oper-
ations could be consolidated.
On April 17 the Respondent entered into an agreement to
purchase a new facility at 5300 Boone Avenue North in New
Hope, Minnesota. By Gerard S. Knight, the Respondent en-
tered into a purchase agreement on that date. KEP Invest-
ments, Incorporated, again by Gerard S. Knight, closed on
the purchase of the 5300 Boone Avenue North facility on
May 17.
It now operates an essentially similar business in New
Hope. The two locations are about 6 miles apart driving dis-
tance.
On May 17 the Respondent also notified its Plymouth
landlord that it would not be staying at the Plymouth location
past July 31.
On May 19 the Respondent met with a contractor about
remodeling of the new facility, and explained that it needed
to be in the new facility in July. the Respondent’s representa-
tive told the contractor that the move wasn’t common knowl-
edge among employees and that he didn’t want the move dis-
cussed with anyone but himself. In early June an agreement
was reached by the Respondent and the contractor to com-
plete the remodeling by July 31.
In about the last week of April agents of Waymouth
Farms, Incorporated notified the city of New Hope of
Waymouth Farms’ desire to occupy the facility at 5300
Boone Avenue North. They requested blueprints of the build-
ing. They described the intended operation in a letter dated
May 3 in a request for an opinion on the appropriateness of
its intended uses under applicable zoning codes.
On about April 29 the city of New Hope sanitarian, D. D.
Matasovsky, visited the 5300 Boone Avenue North facility
with agents of Waymouth Farms, Incorporated to do a pre-
liminary walk-through inspection of the property in prepara-
tion for a formal health inspection.
Despite all this, when the Respondent first notified the
Union of the move, it wrote on April 23 that:
This letter will serve as notice under the Worker Ad-
justment and Retraining Notification Act. It appears that
the Company’s plant in Plymouth, Minnesota may be
closed because of inability to renew its lease satisfac-
torily. The lease expires on or about July 31 . . . . Al-
though the Company is considering several options, re-
location may occur outside the State of Minnesota.
The letter then went on to emphasize that workers would
be separated and that the names and jobs of affected workers
were on an attached list.
Union Representatives Laxen, Bentz, and Ruth went to the
Respondent’s facility in late April or early May and spoke
to the Respondent’s representatives Gamache and Keenan.
The Union’s steward, Jahnke, also attended the meeting. In
response to the Union’s inquiry about what was going to be
happening, Keenan said that it was only known that the lease
would expire in late July. They then discussed assistance for
the workers who would be dislocated. Following a caucus in
which the Union decided to seek severance pay for affected
employees, the Union proposed to the Respondent that a sev-
erance package be provided. The Respondent promised to get
in touch with Knight and get back to the Union.
Shortly afterwards, while on the phone with Gamache to
set up a date to discuss severance pay for employees, Laxen
asked Gamache if he knew anything about the Respondent’s
plans. Gamache again referred to the inability of the Re-
spondent to reach a new lease with it’s Plymouth landlord
and stated that it looked for certain as if a move would be
necessary. However, Gamache went on and stated that the
Respondent was just beginning to look at new locations, in-
cluding some outside the State.
The parties met once again at the Union’s office on May
13. Gamache again professed ignorance about what was to
become of the employees. Keenan stated that the Respondent
was considering sites in California, South Dakota, and such
places in Minnesota as the towns of Buffalo, Eagan, or Eden
Prairie. The Respondent presented a written plant closure
agreement, and read it aloud. No agreement was reached
then, however.
The parties met again on May 18 to discuss the plan.
Gamache had assured the Union that it would likely know
what the plans were by that time. At this meeting the Union
revised its demands downward. Gamache said that he’d have
to run the Union’s new demands by Knight. As to the move,
Gamache said that no decision had been made as yet, but he
was not sure he would move if the Respondent did.
That afternoon the Respondent faxed the Union a new
draft, by which it accepted the Union’s severance package.
Next day, Bentz and Laxen signed the agreement (which was
modified a couple of days later in ways not important to the
decision of this case). The ‘‘Plant Closing Agreement’’ be-
tween the parties provides that the Respondent was required
to offer all employees the right to request a transfer to the
new facility, but, if insufficient positions are available at the
new facility then the Respondent was to select employees
based on skill, ability, and performance, as determined by the
Respondent. The agreement specifies different requirements
for receipt of severance benefits by employees depending on
whether or not the Respondent relocated to a place more, or
less, than 20 miles away from its Plymouth location. The
agreement also provides that the collective-bargaining agree-
ment between the parties would be terminated on completion
of work by bargaining unit employees.
On June 21 the Union received a postcard from the Re-
spondent, which was a copy of what the Respondent sent to
customers. The postcard stated that the Respondent was mov-
ing to New Hope, just 6 miles away.
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968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The Respondent had, however, sent employees a memo dated
June 1, notifying them of the fact that it had leased a new plant fa-
cility at the New Hope address. It went on to say that all administra-
tive and distribution functions, and a portion of production facilities,
would be relocated there.
This was the first time that the Union had heard of any
plan to relocate in any location so near the old one.6
The Union’s initial reaction was to begin organizing the
employees, and securing authorization cards, in order to se-
cure recognition at the new location. Indeed, the Union went
so far as to file a petition with the Board. However, shortly
thereafter, the petition was withdrawn, and the instant unfair
labor practice charge was filed.
While operating at the Westpoint Business Center through
June and part of July Waymouth Farms, Incorporated, em-
ployed six enrober operators. They were Nancy Tischner
(hired October 22, 1987), Bill Walton (hired November 11,
1987), Leon Payne (hired November 30, 1987), Phil
Blumenthal (hired April 25, 1988), Cindy Jefferson (hired
June 18, 1990), and Marsha Moore (hired January 11, 1993).
Immediately after moving to the Boone Avenue facility
Waymouth Farms, Incorporated employed only three enrober
operators. On about July 15 Nancy Tischner, Phil
Blumenthal, and Cindy Jefferson were told by their super-
visors that they would not be needed at the new facility and
they were terminated shortly thereafter.
The selection of Tischner, Blumenthal, and Jefferson for
layoff was based on the procedure set forth in the plant clos-
ing agreement between the parties, that is, Waymouth Farms’
determination of their relative skill, ability, and performance.
In July the Respondent notified the Union of specific dates
on which employees transferred to the new facility, as well
as that, because of the move, the employees were no longer
members of the Union. Most employees received wage in-
creases, which ranged from a few cents per hour to over a
dollar an hour.
All except three employees (Tischner, Blumenthal, and
Jefferson) were offered transfers. They, instead, were notified
that their services were no longer needed, and they were paid
the agreed-on severance benefits.
B. Discussion and Conclusions
Counsel for the General Counsel’s claim is that the nego-
tiations leading to the plant closing agreement were tainted
by fraud, and he goes on to argue that, as a result, the agree-
ment should be found invalid, and violative of Section
8(a)(5) of the Act. Counsel for the General Counsel also ar-
gues that the Respondent engaged in changes in employees
working conditions in excess of those which were negotiated
between the Respondent and the Union, and that any such
changes were violative of Section 8(a)(3) of the Act.
In NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956), the Su-
preme Court stated that, ‘‘Good-faith bargaining necessarily
requires that claims made by either bargainer should be hon-
est claims.’’
Thus, the Board has held that intentional misrepresentation
or concealment of an employer’s future plans during collec-
tive bargaining violates Section 8(a)(5). Royal Plating Co.,
160 NLRB 950, 954 (1966). And, it has ordered restoration
of the status quo ante where an employer made false rep-
resentations during negotiation of a severance plan. Sheller-
Globe Corp., 296 NLRB 116 (1989). In fact, an employer’s
misrepresentations have led repeatedly to sanctions by the
Board. Cf. Accurate Die Casting Co., 292 NLRB 284 (1989),
and Penntech Papers, 263 NLRB 264 (1982).
I accept counsel for the General Counsel’s arguments to
the effect that from and after April 17 the Respondent was
no longer able to represent in good faith to the Union that
it’s plans for relocation were still unknown to it, or that they
involved the possibility that the relocation would involve a
move hundred, perhaps even thousands, of miles away.
The evidence is clear that by that time, and as confirmed
by rapid developments thereafter, the Respondent had settled
on the New Hope facility, had plans to remodel it to suit its
needs, and was involved in all the administrative and govern-
mental work to carry out its intent to relocate to that loca-
tion.
Yet, the evidence is also clear that following that date,
while the Respondent was engaged in negotiations with the
Union concerning plant closure and severance payments to
employees, the Respondent’s officials repeatedly lied to the
Union about whether or not such plans had been finalized.
While the Union was afforded notice of the intent to move
on April 23, the Respondent sought then to emphasize that
no plans had been reached about where to relocate, for ex-
ample by the words in its letter, i.e., ‘‘Although the Com-
pany is considering several options, relocation may occur
outside the State of Minnesota.’’ That untruth was repeated
verbally to the Union, several times, for approximately a
month thereafter, right up to the signing of the plant closing
agreement.
Accordingly, I find that the Respondent engaged in bad-
faith bargaining when it misrepresented its state of planning
to the Union, by concealing the fact that it had reached a de-
cision as to where it would relocate from and after April 17.
It simply strains credulity too much to attempt to agree with
the Respondent that the purchase of that property does not
also signal the fact of a plan having been reached. I find and
conclude that it did.
In the Respondent’s view, however, the matter cannot rest
there. the Respondent would have it that the fact of conceal-
ment of its intent had no effect on negotiations and, even if
it did, given the language of the agreement reached, the
Union waived any right to rely on it.
The Respondent argues that the language of the plant clo-
sure agreement provides explicitly for just such a move. That
is, in the Respondent’s view, an agreement which provides
alternative benefits and provisions for workers in case the
move is either more or less than 20 miles shows that the
Union has waived its right to claim that deception played any
part in these negotiations.
The Respondent then points out that the Union conceded
at trial that it has no sure way to know what tack it would
have taken had the information been accurately presented to
it, other than the probabilty that it would have attempted to
organize employees at an earlier date.
In response, I find that I agree with counsel for the Gen-
eral Counsel’s argument to the effect that there is no require-
ment that there be actual proof that the misrepresentations
would have certainly led the Union to a different result in
negotiations, so long as the misrepresentations are relevant to
the issues during negotiations. Architectural Fiberglass, 165
NLRB 238 (1967). Here, while it is true as claimed by the
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969WAYMOUTH FARMS
7 See generally Isis Plumbing & Heating Co., 138 NLRB 1357
(1962).
8 See Sterling Sugars, 261 NLRB 472 (1982).
Respondent, that prior agreements had waived the Union’s
right to claim representation rights if the facility relocated,
the subject of the distance of the proposed relocation is seen
by me as presumptively appropriate to, and relevant, in any
discussion of, or negotiations about, severance benefits and
transfer rights of employees.
Further, it seems clear to me that the Respondent cannot
rely on the silence of the Union, and its failure to seek any
revision of the 20-mile provision in the plant closure agree-
ment. To do so would be to absolve the Respondent from
any blame for having misrepresented what its intentions
were. For one cannot say what effect good-faith disclosure
would have had on negotiation for that agreement, and
whether or not it would have still contained the 20-mile pro-
vision.
Accordingly, I find and conclude that the Respondent’s
claim that the Union has waived its right to bargain in good
faith over severance benefits of employees is not meritorious,
and that the Respondent has violated Section 8(a)(5) and (1)
of the Act.
Similarly, for the same reasons, the Respondent’s reliance
on the terms of that plant closure agreement, which it ille-
gally obtained from the Union, in terminating three employ-
ees cannot be allowed to stand. A remedy shall be provided
for these violations of Section 8(a)(5) and (1) as part of the
order for the return of the status quo ante.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth in section III,
above, found to constitute unfair labor practices occurring in
connection with the operations of the Respondent described
in section I, above, have a close, intimate, and substantial re-
lationship to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow thereof.
THE REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, I shall recommend that it be re-
quired to cease and desist therefrom and to take certain af-
firmative action designed to effectuate the policies of the
Act.
It shall be recommended that the Respondent be required
to reinstate the three employees named below to their former
or, if not available, substantially equivalent positions of em-
ployment, without loss of seniority or other privileges. It
shall be further recommended that the three employees
named below be made whole for lost earnings resulting from
the discrimination against them by payment of a sum of
money equal to that he or she would have earned from the
date of discharge to the date a bona fide of offer of reinstate-
ment, less net interim earnings during that period. Backpay
shall be computed in the manner prescribed by F. W. Wool-
worth Co., 90 NLRB 289 (1950), and Florida Steel Corp.,
231 NLRB 651 (1977).7
It shall be further recommended that the Respondent be or-
dered to expunge from its records any reference to the dis-
charges of the three employees named below, and to provide
each of the three written assurances that the Respondent’s
unlawful conduct will not be used as a basis for further per-
sonnel action against him or her.8
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Since on or about April 17, 1993, the Respondent has
violated Section 8(a)(5) and (1) of the Act by refusing to
bargain collectively in good faith concerning transfer rights
and severance benefits with the Union by misrepresenting its
intentions and plans regarding plant relocation.
4. The bargaining unit described below is an appropriate
unit for collective bargaining within the meaning of Section
9(b) of the Act:
INCLUDED: All regular full-time and regular part-time
production and maintenance employees, drivers,
woodshop, plexiglass, and warehouse employees, and
leadmen, employed by the Respondent at its Plym-
outh, Minnesota facility until July 19, 1993, and
thereafter at its New Hope, Minnesota facility.
EXCLUDED: but excluding office clerical employees,
receptionists, sales employees, engineers, quality con-
trol department, research and development per-
sonnnel, customer service employees, guards and su-
pervisors, as defined in the Act, constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
5. Since on or about July 15, 1993, the Respondent has
violated Section 8(a)(1) and (5) of the Act by discharging its
employees Nancy Tischner, Phil Blumenthal, and Cindy Jef-
ferson, because they had engaged in union or other protected,
concerted activities.
6. The above unfair labor practices have an effect on com-
merce as defined in the Act.
[Recommended Order omitted from publication.]
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