Abs Industries, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 1088 (N.L.R.B. 1986)

1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ABS Industries , Inc. and United Steelworkers of
America
Ashtabula Forge, Inc., a subsidiary of, ABS Indus-
tries, Inc. and United Steelworkers of America.
Cases 8-CA-16255-2 and 8-CA-16255-3
and submitted to the Respondents for signature on
10 February 1983, retroactive to 16 September
1981."
3. Substitute the attached notice for that of the
administrative law judge.
30 September 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 6 December 1985 Administrative Law Judge
Wallace H. Nations issued the attached decision.
The General Counsel and Charging Party each
filed exceptions and supporting briefs. The Re-
spondents filed 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, and
conclusions' and to adopt the recommended Order
as modified.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondents, ABS Indus-
tries, Inc. and Ashtabula Forge, Inc., a Subsidiary
of ABS Industries, Inc., Ashtabula, Ohio, their offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
"(a) Refusing to execute the collective-bargain-
ing agreement reached between the Respondents
and the Union as of 6 October 1981 and submitted
for the Respondents' signature on 10 February
1983, retroactive to 16 September 1981, or in any
other manner refusing to bargain in good faith with
the union as the exclusive collective-bargaining
representative of the employees in the appropriate
unit."
2. Substitute the following for paragraph 2(a).
"(a) Duly execute the collective-bargaining
agreement ratified by the Union on 6 October 1981
1 The judge concluded, and we agree, that the Respondents violated
Sec. 8(a)(1) of the Act by failing and refusing to comply with the Union's
information request. We further conclude, in agreement with the General
Counsel, that the Respondent's refusal to supply the requested informa-
tion violated Sec 8(a)(5) of the Act
Members Johansen and Babson find that under any of the analyses set
forth in Otis Elevator, 269 NLRB 891 (1984), that the Respondent's plant
closure decision was not a mandatory bargaining subject
2 We modify the judge's recommended Order to reflect that the collec-
tive-bargaining agreement that the Respondents unlawfully failed to exe-
cute was the document submitted to them for signature on 10 February
1983.
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.
WE WILL NOT refuse to execute the collective-
bargaining agreement reached between us and the
United Steelworkers of America AFL-CIO-CLC,
6 October 1981 and submitted for our signature on
10 February 1983, retroactive to 16 September
1981.
WE WILL NOT refuse to supply to the Union in-
formation necessary to implement the collective-
bargaining agreement and WE WILL supply the
Union with a copy of the pension plan required by
the collective-bargaining agreement.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL execute the collective-bargaining
agreement ratified by the Union on 6 October 1981
and submitted to us for signature on 10 February
1983.
WE WILL make this collective-bargaining agree-
ment retroactive to 16 September 1981 and WE
WILL abide by the terms and conditions of the
agreement.
ABS INDUSTRIES, INC. AND ASHTA-
BULA FORGE, INC.
Frank D. Motil, Esq., for the General Counsel.
James M. Miles, Esq., of Greenville, South Carolina, and
Carey S. Sheldon, Esq., of Ashtabula, Ohio, for the Re-
spondent.
Melvin S. Schwarzwald, Esq. and Kenneth S. Ritzenberg,
Esq., of Cleveland, Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge.
The United Steelworkers of America, AFL-CIO-CLC
(Union), on 22 November 1982 filed a charge against
ABS Industries , Inc. (Respondent Industries), which was
amended on 16 November 1983. On 10 December 1982
281 NLRB No. 145
ABS INDUSTRIES
the Union filed, a charge against Ashtabaula Forge, Inc.
(Respondent Forge), which was amended on 28 Novem-
ber 1983. Based on these charges, the Regional Director
of Region 8 on 30 July 1984 ordered the cases consoli-
dated and issued a complaint incorporating a notice of
hearing. The consolidated complaint alleges that the Re-
spondents, by various actions that will be discussed in
this decision, violated Section 8(a)(1), (3), (5) and Section
8(d) of the Act. A hearing was held on these matters
before me on 4 March through 9 March 1985 in Ashta-
bula, Ohio. Briefs were received from the General Coun-
sel, the Union, and the Respondent about 15 May 1985.
Reply briefs were also submitted.
1. THE BUSINESS OF RESPONDENTS
Respondent, ABS Industries, Inc., is engaged in busi-
ness as a Delaware corporation with wholly owned sub-
sidiaries in various States of the United States. At all
times material to this decision, ABS Industries operated
Respondent Forge either as a division of itself or as a
wholly owned subsidiary, Ashtabula Forge, Inc., a cor-
poration. Respondent ABS Industries, through its sub-
sidiaries, at all times material to this decision, manufac-
tured hot, warm, and cold forgings, fiberglass reinforced
plastics, and component parts for bicycles, automobiles,
trucks, and similar products. Respondent Ashtabula
Forge, as a subsidiary division or as a wholly owned
subsidiary of ABS Industries, engaged principally in the
hot forging of bicycle and automobile components. Re-
spondents admitted in their answer to the involved com-
plaint that at all times material each was an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act. I find that Respondents are en-
gaged in commerce within the meaning of the Act and
that it will effectuate the policies of the Act to assert ju-
risdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
It was admitted by all parties that United Steelworkers
of America, AFL-CIO-CLC is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES INVOLVED
The principal issues raised in this case are as follows:
1. (a) Whether on or about 6 October 1981 the Union
and Respondents reached a full and complete agreement
with respect to the terms and conditions of employment
of the bargaining unit herein, which were to be incorpo-
rated in a collective-bargaining agreement effective from
16 September 1981 to 15 September 1984.
(b) Whether since about 26 August 1982 Respondents
have failed and refused to execute the written contract
embodying the agreement described above. Respondents
admitted by stipulation that they refused to execute the
written contract, but contend they are not lawfully re-
quired to do so.
(c) Whether both Respondents, Industries and Forge,
are responsible under the involved collective-bargaining
agreement and for events occurring subsequent to 6 Sep-
tember 1981 with respect to the Union and the bargain-
ing unit.
1089
2. (a) Whether Respondents were motivated by union
animus in violation of the Act when they implemented a
decision to close the impacter operation in Ashtabula
Forge plants 1 and 2 and to relocate the work performed
by 46 bargaining unit employees.
(b) Whether Respondents were motivated by union
animus in violation of the Act in implementing the deci-
sion to completely cease operations at Ashtabula Forge's
Ohio facility.
(c) Whether Respondents violated the Act by failing
to bargain in good faith over the decision to: (1) transfer
the impacter operations from the Ashtabula Forge facili-
ty to a subsidiary operation in South Bend, and (2) close
Forge in Ashtabula, Ohio permanently.
3. Whether Respondents were in violation of the Act
by failing to bargain in good faith with the Union over
the effects of the closure of the Ashtabula Forge facility.
4. Whether Respondents violated the Act by failing to
respond to requests made by the Charging Party Union
to furnish it with certain requests for information includ-
ing the dates and details of change in the corporate
status of Ashtabula Forge, the date when the Union was
notified of such change in status, a statement whether
Respondents intended to execute the contract described
above and a copy of the last official pension plan that ex-
isted between the Respondents and the Union.
The issues set forth above will be discussed fully
below' under appropriate subheadings. Based on the evi-
dence of record, the demeanor of the witnesses observed,
and the entire record in this proceeding, I make the fol-
lowing
FINDINGS OF FACT
A. Whether the Collective-Bargaining Agreement
Binds Both Respondents, its Effective Date, and
Respondents Alleged Refusal to Provide Information
The Union and Respondents have had a longstanding
collective -bargaining relationship . The Union has repre-
sented the employees in the appropriate bargaining unit
at the Ashtabula Forge plant for approximately 40 years
and contends that it had a collective-bargaining agree-
ment in effect from 16 September 1981 through 15 Sep-
tember 194 . It is conceded that the appropriate bargain-
ing unit is all production and maintenance employees at
plants 1 and 2 at Ashtabula Forge, Inc., which are locat-
ed in Ashtabula , Ohio , but excluding all office clerical
employees and professional employees , guards and super-
visors as defined in the Act.
On 29 April 1977 William J. McCarthy became presi-
dent and chief executive officer of ABS Industries. He
has held that office to the present date . McCarthy
became a director of Ashtabula Forge , Inc. in September
1981 as soon as the corporation was formed . McCarthy
became president of Ashtabula Forge in May 1983.
At the time of McCarthy's arrival the Union's collec-
tive-bargaining agreement was in effect from 16 Septem-
ber 1975 to 15 September 1978 . On the expiration of that
contract, the Union went on strike for approximately 3
weeks . The parties reached agreement in early 1978 and
signed a new collective-bargaining agreement covering
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the period from 16 September 1978 to 15 September
1981.
Prior to the expiration of the 1978-1981 agreement on
3 June 1981, the Union sent a letter to Irving S. Shultz,
industrial relations manager of the Ashtabula plant in-
forming the Company of the Union's desire to negotiate
new terms and conditions of employment. On 15 June
19811 the Union and Respondents entered into negotia-
tions for a new collective-bargaining agreement. At this
time, and until approximately 21 September, Ashtabula
Forge was an incorporated subsidiary or division of Ash-
tabula Industries, Inc. It is clear that at this stage of the
negotiations, and until the date of incorporation of Ash-
tabula Forge on 21 September, both entities were in-
volved in negotiations for a new contract and were
bound by the terms of the existing collective-bargaining
agreement. Bargaining committees for the respective par-
ties to the collective-bargaining agreement met approxi-
mately 27 times between 15 June and 6 October.
At the initial negotiating session, Respondents' bar-
gaining team was led by the president of the Ashtabula
Forge division, R. O. Bauer, who was also acting group
vice president, forgings, of Respondent ABS Industries
and a member of the excutive committee of Respondent
ABS Industries during the calendar year 1981. He of-
fered Respondents' general proposals and concerns for
the new contract. Also at the first negotiating session,
the committees established ground rules.' The ground
rules included a signoff procedure that required that any
agreement reached during the collective-bargaining
agreement would be reduced to writing. Initially, the
agreed-on items would be submitted in handwritten form
from the Company to the Union. After union approval,
the item would be typed up and both parties would affix
their signatures. The parties agreed that anything not
specifically signed off would remain in the new contract
as stated in the prior existing agreement. There was
raised an inferential dispute over this point by Respond-
ents' attorneys. The Charging Party and the General
Counsel presented witnesses who were involved in the
negotiations and present at all or many of the negotiating
sessions . They testified that this was the procedure fol-
lowed. The Respondents had available at the hearing
two persons participating in the negotiations. One person
did testify to the fact that this was the procedure and the
other person was not called at all. I find nothing con-
vincing in the record that would conflict with the posi-
tion taken by the witnesses presented by the General
Counsel and the Union and credit their contention that
the procedure described above was the procedure fol-
lowed.
At an early negotiating session, the Company submit-
ted 16 pages of proposals for discussion. Between 25
August and 11 September, the Union and,the Company
agreed to and signed off on 26 separate changes in the
contract. On 15 September full agreement had not been
reached and the Union went out on strike. During the
strike, and to settlement on 6 October, negotiations con-
tinued. There was a negotiating session on 28 September
attended by McCarthy, chief executive officer of ABS
1 All dates are in 1981 unless otherwise stated
Industries . McCarthy submitted to William Hocevar,
staff representative of the Uniort and its chief negotiator,
a proposal dealing specifically with the outstanding eco-
nomic issues . The proposal was signed by Attorney Cary
S. Sheldon, R. O. Bauer, and McCarthy on behalf of
ABS Industries, Inc.
At a negotiating session on 5 October, it appeared that
all the outstanding issues between the Union and Re-
spondents were resolved. The negotiating session took
place without Hocevar, who was at a conference in
Washington, D.C. In order to get Hocevar's approval,
Sheldon, Richard Charles, the Union's Local president,
and two other members of the negotiating team flew to
Washington, D.C., picked up Hocevar, and in the early
morning hours of 6 October flew back to Ashtabula,
Ohio. On the flight they reviewed the agreements that
the committees had reached the previous day. The final
sheets were typed on the morning of 6 October. Ap-
proximately midday, 6 October, Sharon Sherbourne, on
behalf of the Company, and Richard Charles, on behalf
of the Union, signed off on the remaining 10 issues., -
Later that day, negotiators for the Company and the
Union met at the union hall to review and finalize the
entire agreement . The Union requested that Sheldon
clarify what was included in the agreement. Sheldon as-
sured the union negotiating committee that the total
agreement consisted of the entire contract and the agree-
ments that had been signed off. Sheldon was not called
to dispute this assertion.
Two of the union negotiating team members, David
Haytcher and David Hauber arrived at the union hall
after the first meeting between the negotiating commit-
tees. Haytcher and Hauber had driven Hocevar's car
from Washington, D.C. to Ashtabula, Ohio. On their ar-
rival at the union hall, Sherbourne reaffirmed that the
only changes in the collective-bargaining agreement
were those that had been signed off. Sheldon, who was
also present, confirmed Sherbourne 's remarks that every-
thing continued in effect unless specifically changed by a
signoff sheet. Additionally, the Company agreed to
cover insurance claims by union members that arose
during the strike between 15 September and 6 October.
Although called, Sherbourne did not deny this version of
what transpired at the meeting and, as noted, Sheldon
was not called.
Om the evening of 6 October, the Union ratified the
agreement and the Company was notified of that agree-
ment, on the same day. The contract was fully imple-
mented including the payment of insurance claims that
arose during the period of the strike. Shortly after ratifi-
cation of the contract, Charles received a letter from
McCarthy and Bauer congratulating the negotiating
committee for having "reached a meeting of the minds."
As noted earlier, without any notice whatsoever to the
Union and without the fact being made known to the
Union at any time prior to 6 October, Ashtabula Forge,
which had been a division of ABS Industries, Inc., was
separately incorporated and became a wholly owned
subsidiary of ABS Industries.
Eight months after the contract had been ratified and
implemented, representatives of Respondents and the
ABS INDUSTRIES 1091
Union met to review the galley sheets of the new con-
tract . They met approximately five times between May
and August 1982. The representatives went through the
galleys to ensure that the signoff sheets were included
and that the dates were all correct. Sherbourne penciled
in some date changes.
After the changes in the proof had been made , Merlin
Mead , the new staff representative for the Union, re-
ceived a letter from 'Sherbourne, now the industrial rela-
tions manager for Respondents . This letter was dated 26
August 1982, but was not received by Mead until 7 Sep-
tember 1982 . Sherbourne asserted in the letter that the
Company was unilaterally eliminating some significant
portions of the agreed -on contract . Sherbourne's letter
stated that, "Upon review of the contract by labor coun-
sel, it was noted that during the negotiations there were
to be no changes in the pension plan, insurance, etc.
Therefore the date changes penciled in Section 22.01;
23.01; and Appendix B, part 1 , are not appropriate
changes." The implication of the letter was that the
changes in the dates from 16 September 1981 to 15 Sep-
tember 1984 that had been inserted during the proofing
process were not appropriate and that these benefits
would not continue during the course of the contract.
Mead responded to Sherbourne's letter on 10 September
stating that the union position was that pensions , supple-
mental unemployment benefits , and insurance would con-
tinue for the duration of the contract. Mead received no
response to his correspondence.
After Sherbourne's letter and Mead 's response, the
galley sheet proofing process ended without the Compa-
ny formally executing the contract. In an attempt to get
the Company to sign the contract, Mead , on 10 February
1983, sent Sherbourne two signed copies of the collec-
tive-bargaining agreement . On 28 February 1983 Compa-
ny Attorney Jefferey M. Embleton corresponded with
Mead listing 11 items that the Company asserted had
errors in language . Mead responded to Embleton's letter
on 11 March 1983. Mead requested in this letter : (a) the
date and proof from the Company that it had changed its
name from Ashtabula Forge a division of ABS Indus-
tries, Inc., to Ashtabula Forge, Inc., and (b) the effective
date of the change and proof that the Union was notified
of this change. Mead received no response to his inquiry.
The Company did not provide proof of the name change
until shortly before trial in this matter on 23 February
1985. The name change document shows that Ashtabula
Forge, a division of ABS Industries , became Ashtabula
Forge, Inc., a subsidiary of ABS Industries on 22 Sep-
tember 1981 . On that date, the Union was on strike. The
strike was settled and the Union ratified the contract
without the Company ever informing the Union of its
name change . In a similar manner, Respondents have
failed to supply a copy of the pension plan called for by
the collective-bargaining agreement to the Union though
requested to do so at or shortly after the closing of the
Ashtabula facility in October 1983. A copy of the pen-
sion plan is obviously necessary for the Union to per-
form its function as representative of the employees in
the involved bargaining unit with respect to their rights
under the plan and under the contract. I find this failure
to supply the pension plan to the Union , on request, as
well as the undue delay in supplying the other informa-
tion noted above to the Union, to be a violation of Sec-
tion 8(a)(1) of the Act.
At the trial, the Company offered to stipulate that
there was a contract in effect but that it did not become
effective until the termination of the strike on 6 October.
Past practice between the Respondents and the Union
has been that the new contract became effective retroac-
tive to the date of the preceding contract, on ratification
by the parties . This practice was followed in 1978 when
there was a strike and settlement.
With respect to the issues to be decided under this sub-
heading, Respondents admit that a meeting of the minds
was reached on 6 October, but that the written embodi-
ment of the agreement submitted in August 1982 was not
signed because all substantive provisions had not been
agreed on. It also disputes the fact that the collective-
bargaining agreement binds ABS Industries as well as
Ashtabula Forge, Inc. For reasons set forth below, I dis-
agree with both positions taken by Respondents.
As pointed out by the Union on brief, it is well settled
that an employer violates Section 8(a)(1) and (5) of the
Act by refusing to execute a written contract incorporat-
ing the terms and agreement reached with the labor or-
ganization . The Union further argues that where the
Board has found a failure to execute , the following fac-
tors were considered in determining whether the parties
had reached an agreement:
(1) The decision to prepare galley proofs;
(2) The implementation of all the new contractual
provisions;
(3) The parties agreement to submit to arbitration
on an issue raised under the new collective -bargain-
ing agreement; and
(4) The employer's admission of a contractual re-
lationship at the arbitration hearing.
See Cutter Laboratories, 265 NLRB 577 (1982).
As noted earlier at the trial, Respondents admitted that
a full and complete agreement was reached but the effec-
tive date of the agreement was 6 October rather than 16
September. Respondents also admitted at the outset of
the trial that since 6 October, the Union has requested
that the agreement be executed and the Respondents
have refused to execute the contract.
I find from the evidence that the parties did reach final
agreement on 6 October and that agreement became ef-
fective retroactive to 16 September . Past practice, the
signoff sheets, the galley proofs , and the testimony all
demonstrate that it was the intention of the parties that
the contract become effective on 16 September . As noted
above, in 1978, when agreement was also reached at the
conclusion of a 3-week strike, the contract ran from 16
September 1978 through 15 September 1981 . Second, at
least one of the signoff sheets contains references to the
date 16 September (G.C. Exh. 19(j)). McCarthy, on 28
September, submitted a written proposal to the Union re-
garding economic issues using 16 September as the initial
date for the implementation for the economic package.
At no point in negotiations did either party suggest an
alternative date on which the contract would become ef-
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fective. Sherbourne, on behalf of Respondents, and
David Haytcher and David Hauber, on behalf of the
Union, from May to August 1982, went through the task
of proofing the galley sheets. During the proofing the
contract was changed to reflect that 16 September was
the date on which the new collective-bargaining agree-
ment became effective. (G.C. Exh. 21.)
Moreover, the contract was fully implemented. At the
hearing on 5 March 1985, counsel for the Respondents
conceded that there had been a meeting of the minds and
that the entire contract was implemented at least from 6
October up to the closing date of the Ashtabula plant.
Respondents stipulated that they had paid all the insur-
ance claims arising during the period of the strike from
16 September to 6 October pursuant to their contractual
obligations.
Respondents offered no direct evidence in response to
the evidence set out above indicating that 16 September
was the date the contract was to be effective. To support
their contention as to effective date, Respondents only
cite edited portions of the transcript dealing with the tes-
timony of the witnesses for the General Counsel and the
Union. These quotations are taken out of context and do
not support the proposition urged by Respondents. When
the witnesses' entire testimony is considered and based
on the foregoing findings of fact, I conclude that a con-
tract did exist between Respondents and the Union and
that such contract went into, effect on 16 September. The
Company has offered no valid reason for its failure to
formally execute the contract and is thus in violation of
Section 8(a)(1) and (5) of the Act.
With respect to the issue whether the contract was ef-
fective between the, Union and Ashtabula Forge, Inc. or
between the Union and Ashtabula Forge and ABS Indus-
tries, Inc., I find that both Respondents are bound by the
contract. The contract in effect from 16 September 1978
through 15 September 1981 was between Ashtabula
Forge, a division of ABS Industries, Inc., and the Union.
It was with that company as well as with the parent
company, ABS Industries, that the Union reached an
agreement on 6 October. During the course of negotia-
tions from 15 June through 6 October, there was no ref-
erence to any change in the entity with which the Union
was bargaining . In its contract negotiation proposals, the
Company made no reference to any change in its name
or corporate status . Furthermore, there is no signoff
sheet in which the Company indicates that there would
be a change in the party with which the Union bar-
gained.
Throughout the negotiating period, McCarthy, on
behalf of ABS Industries, participated in the bargaining.
McCarthy had to give his approval to agreements made
at the negotiating table. At one negotiating session on 28
September, McCarthy submitted to the Union a docu-
ment proposing the settlement of economic issues. The
document was signed, ABS Industries; Inc., Carey Shel-
don, attorney, R. O. Bauer, and William J. McCarthy.
At that time, McCarthy was the chief executive officer
and president of ABS Industries. Cary S. Sheldon was
the attorney representing,the Respondents at the negoti-
ating table. After the ratification of the contract on 6 Oc-
tober, McCarthy, on stationery, indicated that he as
president and chief executive officer of ABS Industries
sent a letter to Richard Charles, president of the Local
Union. The letter congratulates, "our committees which
now have reached a meeting of the minds ...."
Ashtabula Forge surreptitiously incorporated during
the strike in 1981. The Union was not aware of the com-
pany name change until the proofing of the galley sheet.
During that process, the Company tried to write in its
new name. The Union did not recognize the name
change when it submitted the finalized contract for
formal execution as it was the Union's understanding that
it had negotiated another contract between itself and
Ashtabula Forge, a division of ABS Industries. In re-
sponse to this submission, the attorney on behalf of Re-
spondents merely responded to Mead that Ashtabula
Forge had changed its name . Also as noted earlier, it
was almost time for trial before the Company finally sub-
mitted proof that it had incorporated Ashtabula Forge,
Inc., and changed the name. I conclude from all the evi-
dence that the Union, at all times, was lead to believe
that it was negotiating with ABS Industries, Inc. as well
as either of its divisions, Ashtabula Forge, or its separate
wholly owned subsidiary Ashtabula Forge, Inc., and that
it had reached an agreement with both Respondents. At
no time prior to reaching agreement did the Company
notify the Union that ABS Industries was withdrawing
from the negotiations and would not be a party to the
agreement . A surreptitious, unilateral decision to sepa-
rately incorporate Ashtabula Forge, Inc., while the
Union' was on strike in September, without notice to the
Union, does not absolve ABS Industries, Inc. from its re-
sponsibilities and duties under the agreement ^ Further-
more, ABS Industries, Inc. did nothing until 26 October
1982 to give any notice whatsoever to the Union that it
was not part of the agreement. All its actions between
October and August 1982 would indicate only that it was
a party to the agreement. I find that ABS Industries, Inc.
is estopped from asserting that it is not responsible on the
contract because of its actions taken during, negotiations
and its actions taken in the year thereafter. I find that
from the evidence and under the law, that Ashtabula
Forge, Inc. and ABS Industries, Inc. are jointly parties
to the collective-bargaining agreement that I have found
to have existed and' are jointly responsible under the
terms of this agreement . Violations that I have found to
have been committed by Respondents are the violations
of both Ashtabula Forge, Inc. and ABS Industries, Inc.
B. Allegations Relating to Union Animus in the
Decision to Close Ashtabula Forge, Transfer Some
Bargaining Unit Work, and Refusal to Bargain Over
the Decision
As noted earlier, Ashtabula Forge, at all material
times, was either a division of or a wholly owned subsid-
iary of ABS Industries, Inc. The Ashtabula Forge facili-
ty at Ashtabula engaged in the forging of metal products
primarily for the automobile and bicycle industry. Its
processes involved, among others, a hammer process, a
plating process, and an impacter process. At the time of
its closing, the Company had been in the forging business
in Ashtabula for approximately 100 years. Briefly, the
ABS INDUSTRIES 1093
events that led to the filing of charges and the issuance
of the complaint with respect to the closing of the Ash-
tabula facility are as follows : On 15 January 1982 Re-
spondents informed the Union that the hammer operation
at Ashtabula would be discontinued because of loss of
business . On 1 and 12 February notices were posted at
Ashtabula Forge to inform all employees of the discon-
tinuance of the hammer operation and to warn of inevita-
ble job losses . The shutdown of the hammer operation
clearly resulted from the loss of business of the Compa-
ny's two primary customers utilizing the hammer forging
process and is not the subject of complaint . The hammer
operation represented 80 percent of the work at Ashta-
bula Forge.
In April 1982, the plating operation at Ashtabula
Forge plant 3 was sold. During June 1982, 213 employ-
ees were laid off at Ashtabula Forge as a result of dis-
continued operations . In July 1982, the bicycle crank
product line was sold at Ashtabula Forge, the machining
process was sold for a short-term note and royalties, the
note was later sold at substantial discount and the royal-
ty relinquished. In August 1982 ABS management devel-
oped a plan , adopted by the ABS board in September
1982, to consolidate the impacter operations at Ashtabula
Forge with a subsidiary company, South Bend Forge,
and shut down the Ashtabula Forge facility permanently.
On 1 October 1982 the notice of plant closing was
posted at Ashtabula Forge and four meetings were held
between Ashtabula Forge management and the Union to
discuss the effects of closing the plant. On 29 October
1982 the remaining operation at Ashtabula Forge, the im-
pacter operation, was closed , except for the winding
down work that was completed in November 1982.
It is contended by the Union and the General Counsel
that the decisions to close the Ashtabula facility in Octo-
ber 1982, transfer the impacter operations to the South
Bend Forge facility, and dispose of the Company's re-
maining assets were motivated by union animus and such
actions were, therefore, unlawful. It is further contended
that the Company did not bargain with the Union over
the decision to close the facility as required by law and
that the Respondent should be required to bargain over
the decision.
The evidence of union animus relied on by the Union
and the General Counsel consists primarily of quotes
from interviews given by President McCarthy to various
news reporters over a period of years and excerpts taken
from annual reports of ABS. The thrust of the statements
by McCarthy and those contained in the annual reports
is that the Company's goal is to move to a union-free
status, become more flexible, and more competitive. Also
relied on is an unfair labor practice case arising out of
the 1979 firing of a single employee at the Ashtabula fa-
cility wherein the Company was found to be in violation
of the Act. There was also evidence introduced reflect-
ing the Company's refusal to bargain with another union
that successfully organized ABS' current operating com-
pany, Coalfor, Inc. Although I believe the evidence in-
troduced by the Union and the General Counsel in this
regard does reflect a desire by the Company to operate
in a union-free environment with maximum flexibility to
set wages and working conditions, there is little evidence
of actual union animus shown with respect to manage-
ment's dealings with the Union at the Ashtabula facility.
During the long history of union representaton at the
Ashtabula facility, relations appear to have been relative-
ly normal and were not characterized by repeated
strikes, bitter relationships, or disputes.
The Respondents have introduced into the record a
vast amount of credible financial and, economic evidence
detailing the Company's financial problems and the ac-
tions taken in response to these problems from the time
of McCarthy's joining the Company. in 1977 to the cur-
rent date . This evidence , which I credit, will be set forth
in summary fashion below. It explained to my satisfac-
tion that the plant closing was caused by economic ne-
cessity and desperation having little if anything to do
with the union status of the Ashtabula facility.
As noted above, McCarthy joined ABS Industries in
1977. At the time of his arrival, the Company had fin-
ished a year in which it had lost $ 1 million and was in
default on a $6 million debt. The Company had already
embarked on a program of asset sales and liquidation to
improve its condition . ABS Industries in 1977 owned, in
addition to its Ashtabula Forge division , several other
subsidiaries , which engaged in both forging-related busi-
ness and wholly unrelated business.
In 1975, a convertible top operation ' at Ashtabula
Forge was discontinued and its sale was completed in
1977. In 1976, ABS discontinued research and sold cer-
tain assets . With McCarthy's coming in 1977, the board
of directors began a formal program of realignment of
operations and disposition of certain assets in an attempt
to maximize return on investment of the Company's
assets . In connection therewith, the board adopted a plan
to liquidate the nonunion subsidiary, Sun Cycle Compa-
ny, and a sale of this Company's assets was completed in
1980 . The board also started negotiating the sale of
dnionized Elray Company, another subsidiary , in 1977.
The realignment , under McCarthy, was a reversal of a
diversification program that had, led ABS away from
forging into such small markets as metal stamping and
adult tricycles. The initial results of this realignment pro-
gram were positive allowing the Company to earn ap-
proximately $2 million of which approximately half were
profits on sold assets.
In 1978 , net earnings of approximately $2 million re-
flected over $350,000 net gain on the sale of product
lines of subsidiaries and the plant and equipment at non-
union Crane Edmund Company, another subsidiary.
These discontinued operations reduced the current liabil-
ity of ABS by over $ 3 million . During 1978, ABS also
sold certain Florida property connected with the cycle
company. In that same year, Ashtabula Forge issued its
first documentation of economic problems to its employ-
ees. Ashtabula Forge compiled a 10-year study that was
sent to all employees and discussed with the Union. The
Union was invited to hire an independent auditor and in-
spect Ashtabula 's financial records. By 1978, Ashtabula
Forge had lost 36 percent of its business from one of its
prime customers , Ridge Tool. The Company had earlier
tried to sell its forging operation to Ridge Tool but the
offer was declined because of the age of the Ashtabula
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
facility and the fact that its business was heavily tied to
one other customer, Schwinn Bicycle Company.
In 1979, the Company committed to establishing a sub-
sidiary, South Bend' Forge, in South Bend, Indiana. This
subsidiary was designed to utilize a different type of
forging process to serve the automobile industry in a
modern, efficient facility. South Bend Forge was estab-
lished after a study was commissioned for the site and a
$27 million contract was obtained from Ford Motor
Company for air-conditioning parts for its automobiles.
The expansion of ABS's primary operation, forging, at
South Bend relying on the contract offered by Ford was
designed to solidify ABS financially. However, as will be
discussed later, Ford failed to honor its contract, deliver-
ing only 15 percent of the contract amount, $4 million,
after South Bend Forge had spent over $10 million for
production alone . Ford's costly action was based almost
entirely on the collapse of the automobile industry after
198Q.
Based on the evidence, I find the Company's ultimate
closing of the Ashtabula Forge facility was directly re-
lated to the decision to establish South Bend Forge. Be-
cause of the refusal or inability of Ford Motor Company
to live up to its contract with South Bend Forge and the
inability of ABS to develop other markets for South
Bend 's capacity, the subsidiary became a substantial li-
ability to the overall viability of ABS because of its
overhead and debt' structure. "Neither the decision to es-
tablish South Bend Forge, the location of South Bend
Forge, or the effect its creation would have on the
future of Ashtabula Forge was discussed by the Union
with ABS at any time that would have been useful. I be-
lieve that no serious concern was shown by the Union
about the establishment of the South Bend Forge facility
because, like management, the Union did not anticipate
the drastic downturn in economic conditions that would
shortly occur. Nor did anyone anticipate the substantial
loss of business that would be suffered by Ashtabula
Forge in the near future. Though with the aid of hind-
sight, the decision to establish South Bend Forge and to
incur substantial debt by ABS was questioned at the trial
in, this case, the damage had already occurred and the
question was moot.
In any event, during the same year in which the Com-
pany committed to establishing South Bend, ABS sold
substantially all the assets of its nonunion subsidiary
Time Screw, which had been operating at a loss. Some
sales from Time Screw were transferred to another sub-
sidiary, Thun, which was being started. The net earnings
of ABS in 1979 were approximately $1.5 million includ-
ing a $57,000 net gain from the sale of Time Screw
assets. Due to the startup expenses of South Bend Forge
and Thun and attendant notes payable and accounts pay-
able, current liabilities approached current assets in 1979.
'In the 1980 ABS annual report, McCarthy discussed
the business reasons behind the investment of South
Bend Forge:
New facilities carry with them significant effi-
ciencies in not having to deal with the history of
work practices, bad habits and older plant layouts.
New facilities attract people through the concept of
starting on the ground floor in a new operation and
. are located near our current customers and
sources of raw materials.
However, as noted by Respondents in detailed evi-
dence, the advantages perceived by Respondents' man-
agement in establishing the South Bend facility were
almost immediately overwhelmed by the economic
burden of carrying the costs of substantial new capacity
and the deteriorating economy. That cost was exacerbat-
ed by the high interest rate prevailing at the time, which
resulted in interest expense in the millions from 1980 to
1982. The losses incurred by South Bend Forge, Thun,
and Ashtabula Forge were documented in the ABS
annual report for 1980. Current liabilities then matched
current assets. In 1980 ABS showed an, operating loss of
almost $1 million. The earnings picture of ABS, and
Ashtabula Forge specifically, were damaged by a work
stoppage at Schwinn Bicycle due to a lengthy strike. The
temporary loss of business with Schwinn during 1980,
combined with the permanent loss of much of Ridge
Tool business, which purchased its own forging shop in
1980, did in fact severly damage the economic viability
of Ashtabula Forge.
In 1981 the operating losses of ABS jumped from $1
million to approximately $6.5 million, its creditors placed
liens on all unsecured assets of ABS. ABS' independent
auditors met with the board to consider qualifying its
report because the Company was no longer a viable eco-
nomic entity. As documented by the Respondent, five
factors generated losses at ABS: (1) a $2 million loss on
the sale of Trans Plastics, a subsidiary; (2) approximately
$17 million debt and startup costs generated by Than
and South Bend Forge; (3) the work stoppage at Ashta-
bula Forge in September; (4) 5 years of recession in the
automobile industry; and (5) reduced demand for bicy-
cles and transportation products, ABS' primary markets,
evidenced by a drop of 9 million sales units to 4000 units.
To survive during this period, ABS entered into what it
called a revolving credit agreement with five banks in
1981. The agreement has been maintained to this date.
The agreement enabled ABS to have working capital
and to reduce current liabilities, but also gave the in-
volved banks substantial input if not absolute control
over decisions made by the Company's management.
Some notice of the ABS and Ashtabula Forge's finan-
cial problems were made known to the Union at the start
of negotiations on the new contract in June. However, it
was not until negotiations ended that the actual gravity
of the Company's financial condition was made known
to the affected employees and the Union. For example,
in September, the ABS board had developed a plan for
liquidation of Ashtabula Forge if negotiations for a new
contract were not satisfactorily concluded. Notice of the
loss of business of Ridge Tool and Schwinn were com-
municated to the Union in October. Ashtabula Forge
management held a town meeting in December with its
employees after advertising in the media with a full page
ad in the local paper and posting notices in the plant. All
employees of Ashtabula Forge and their families were in-
vited to the meeting where the economic condition of
the Company was documented. Respondents requested
ABS INDUSTRIES
that the Charging Party bring an independent auditor
and verify the Company's presentation . Suggestions to
solve the Company's problems were sought from the em-
ployees and thereby indirectly from the Union, but no
suggestions were forthcoming . At this stage in the Com-
pany's history, because of the overall condition of Ashta-
bula Forge and its parent ABS Industries, it is difficult to
conceive what suggestions could have been made in any
event.
In 1982 the losses by the four remaining ABS-held
companies including Ashtabula Forge, remained at the
$6 million mark . The automobile business had not im-
proved, debt had peaked at approximately $24 million,
and interest rates were climbing . ABS creditors directed
the Company to dispose of assets to reduce its debt
structure . Several of the financial witnesses called by
ABS in the trial testified that, at this stage, the Company
was on the verge of bankruptcy and drastic action had to
be taken if it were to survive. In my opinion, many of
the actions mandated by the banks were devised merely
to protect their loans and were not necessarily in the
long-term best interest of ABS . In 1982 Respondent
showed that the Company' s retained earnings account,
which was approximately $ 13.5 million in 1980, had de-
clined to a deficit of $491,000 in 1982. The Company
was unable ' to secure additional financing in 1982 because
of its financial condition and engaged in repeated renego-
tiations with its established lenders. From 1980 to 1982,
ABS stock had dropped from $11 to $ 1 per share.
On 7 June 1982, ABS moved from its new corporate
offices and put them on the market for sale . ABS at-
tempted to sell handlebar stem production equipment to
Fargo Machine Company. Because of a lack of confi-
dence on the part of Fargo, it paid only $1900 to move
the equipment from Ashtabula and then leased it for $1.
ABS sold at a 50-percent discount its note receivable
from the 1981 sale of Trans Plastics on the advice of its
lenders; it sold the assets of Flray Pressed Metals; sold
the plating operation of Ashtabula Forge to Lake City
Plating ; ceased hammer forging at Ashtabula Forge; and
sold the impacter operation at Ashtabula Forge to South
Bend Forge.
Once the hammer operation ceased at - Ashtabula
Forge , which comprised approximately 80 percent of the
business of Ashtabula Forge, the only critical move to
the continued life of Ashtabula Forge was the decision
to sell the impacter operation . As noted, the hammer op-
eration was shut down because of the loss of Ridge Tool
and Schwinn Bicycle business and is not complained of.
The evidence reflects, in my opinion, that ABS was
faced in '1982 with two subsidiaries, Ashtabula Forge and
South Bend Forge, neither of which was economically
viable at, the time on its own. Given the situation , decid-
ing to move the impacter operation from an older facility
at which the operation was the only operating part to a
newer more efficient facility that needed increased sales
potential seems, to this judge, to be the hard but rational
business decision. It is also a decision that I find to have
been mandated by the decision to establish South Bend
Forge in 1979 and by the economic conditions that dras-
tically worsened from 1979 to 1982 through no real fault
1095
of either the management of ABS , Ashtabula Forge, or
the involved Union.
To demonstrate the necessity for taking drastic action,
one need only look at the losses suffered by ABS from
the period of 1979 through 1982 when the decisions were
made . The Company lost approximately $250,000 in
1979 ; $1.1 million in 1980; $7.5 million in 1981 ; and over
$6.5 million in 1982 . The ` 1983 losses were approximately
$4.2 million . In 1983 the Company sold its South Bend
Forge facility and its Thun subsidiary and concentrated
its activity on one operating unit , Coalfor, Inc., which
provides a forging service with a process unlike that
used at the other facilities. By 1984 , the steps described
above resulted in a reversal to positive earnings. I agree
with the arguments of the Respondents that the business
strategy of ABS to sell, liquidate , or consolidate its hold-
ings was implemented companywide from 1979 to 1983
not out of any retaliatory motivation in an attempt to
slow unionism and was not directed at Ashtabula Forge
because of its unionized employees . All the companies
held by ABS that were sold , liquidated , or consolidated
in 1975 to 1983 were nonunion except the two plants
sold in 1982.
I agree with Respondents that the recession in the
automobile industry , the collapse of the ABS primary
markets, the large operating losses, financial straits, and
its $16 .9 million debt that had been , incurred to modern-
ize and improve operations forced the discontinuance of
operations and the sale of equipment , product lines,
buildings , land, and notes receivable.
ABS introduced evidence that indicated that it was
not alone in its predicament , showing that some 27 forg-
ing plants closed in the United States and Canada after
1980. The sale in 1983 of South Bend Forge and Thun,
for which the Company had incurred a $16.9 million
debt in their acquisition , further supports my belief that
the Company's actions were not taken from antiunion
motivation but out of economic necessity . Both Thun
and South Bend were nonunion companies.
The complaint also alleges that Ashtabula Forge
and/or ABS subcontracted out certain bargaining unit
work at or about the time of the closing of the facility of
Ashtabula Forge. In fact, there was no additional sub-
contracting of work beyond that which had been done
before and the attendant sale of some of the assets to
other Ashtabula companies was merely part of the effect
of closing the facility entirely. I have found the closing
of Ashtabula Forge to ' have been for economic reasons
and not out of any antiunion motivation . I likewise find
that the Company's actions in subcontracting and the dis-
posal of remaining assets does not constitute a violation
of the Act. Similarly , I find, that the sale of the imparter
operation to South Bend Forge and the closing of the
Ashtabula facility entirely were the result of financial
and economic necessity, not antiunion motivation, and
did not constitute a violation of the Act.
Having determined that Ashtabula Forge and ABS did
not violate the Act by closing the Ashtabula facility,
transferring a portion of its work to South Bend Forge,
and selling or subcontracting the remainder of the bar-
gaining work from Ashtabula , the question that still
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exists is: Did Ashtabula Forge and ABS have a mandato-
ry duty to bargain over the decision to close the facility?
The Board has recently instructed that the employers'
mandatory duty to `bargain under Section 8(d) includes
only those management decisions that turn on a reduc-
tion of labor costs. This is true whether the decision may
be characterized as subcontracting, reorganization, con-
solidation, or relocation, if the decision in fact turns on
direct modification of labor costs and not on a change of
the basic direction or nature of the enterprise. Otis Eleva-
tor Co., 269 NLRB 162 (1984).
In Otis Elevator Co., supra, the parent company evalu-
ated Otis' operations and determined that its technology
and facilities were outdated and inadequate, that its engi-
neering work was duplicative of that performed else-
where in the parent organization, that Otis' products
Were no longer competitive, and that its market share
was steadily declining. The decision to consolidate Otis'
operations into other United Technologies' facilities was
held not to be amenable to bargaining because it was a
fundamental change in the direction of the business.
In the instant case, the parent company ABS, acting at
the direction of its lenders and fmancial advisers, en-
gaged in a steady course of selling assets , discontinuing
major product lines, and consolidating operations from
1975 to 1983 in an attempt to survive the recession in the
automobile industry, loss of major customers, massive fi-
nancial losses, and near bankruptcy. Included among the
assets sold or liquidated were six nonunion plants and
two unionized plants. Two of the nonunion facilities
sold, including South Bend Forge to which the impacter
operation of Ashtabula Forge was transferred, were sold
approximately 1 year after the closing of the Ashtabula
facility. I agree with Respondents that the equipment and
work relocation were an integral part of an ongoing sig-
nificant change in the nature and direction of ABS' busi-
ness and was not a maneuver especially designed to
defeat the Union at Ashtabula Forge by simply reducing
costs.
Respondents notified the Union on 6 October of its
precarious financial position and the potential loss of
major customers. Discussions began in December on the
need to increase productivity and to devise a better way
of doing business to solve the economic problems facing
Ashtabula Forge.. In January 1982 Respondents gave the
Charging Party several months notice of the intent to
discontinue Ashtabula Forge's hammer operations, which
represented 80 percent of the employees who worked at
Ashtabula Forge. In October 1982 it was made clear that
the entire operation was to be shut down and the impact-
er operation transferred. However, even the consolida-
tion of the assets from Ashtabula Forge impacter oper-
ations with the modern facility at South Bend Forge,
where machine servicing was available and duplication
of work was eliminated, did not stop losses by ABS. As
noted earlier, the South Bend facility was built on a
promise from Ford Motor Company that it would pur-
chase a high volume of products manufactured there.
Ford delivered only $4 million of the promised $27 mil-
lion sales leaving ABS with no return on its investment
and no cash flow with which to repay the $12.4 million
construction notes and bonds. The relocated Ashtabula
Forge impacter business brought some additional sales to
South Bend Forge but not enough to make the operation
profitable. ABS sold South Bend Forge only 1 year after
the Ashtabula Forge relocation. Once Ashtabula Forge
was liquidated, ABS never again engaged in the com-
bined operations of plating, hammering, and impacter
forging. ABS attempted to save its hot-forging operation
and the impacter operations by combining them in a
modern facility; however, that failed. The only operating
facility owned by ABS, Coalfor, Inc., engages only in
cold and warm forging. I find that under Otis Elevator,
supra, and more recent Board cases following it, Re-
spondents in this case had no duty to bargain with the
Charging Party regarding the decision to close Ashtabu-
la Forge and, relocate the work performed there. There-
fore, I will recommend that the portion of the combined
complaint alleging that Respondents unlawfully refused
to bargain in regard to the decision to close Ashtabula
Forge and relocate the remaining work there in violation
of Section 8(a)(5) of the Act be dismissed.
C. The Issue of Respondents' Failure to Bargain in
Good Faith Over the Effects of the Decision to Close
Ashtabula Forge
Respondents acknowledged that they had a legal duty
to bargain with the Union over the effects of the closing
of the' Ashtabula facility, transfer of the impacter work
and subcontracting other bargaining unit work to inde-
pendent companies. It contends, contrary to the allega-
tions in the complaint and the assertions of the Union
and the General Counsel, that it did engage in good-faith
bargaining over the effects of the closing.
Four meetings were held between the Charging Party
and Respondents at the request of the Charging Party on
12, 18, 21, and 27 October, prior to the, shutdown of
Ashtabula Forge on 29 October 1982. During the course
of these meetings, the Union was notified of the decision
to close down Ashtabula Forge and provisions were
made with respect to pensions, medical insurance, vaca-
tions, employee funds, and the manner in which oper-
ations would be wound down.
With respect to pensions, the parties agreed to set up a
pension' committee composed of two representatives of
the Charging Party and Sherbourne. The committee de-
cided to meet with those employees who would be eligi-
ble for pensions to discuss their options and draft a joint
letter to all such employees explaining their options. The
parties agreed that the decisions of the committee would
be binding. The committee came up with a compromise
agreement with respect to coverage of pensions, different
from the initial proposals of the Union and the Respond-
ents.
With respect to medical insurance, the parties made
proposals and counterproposals during the course of the
meetings and I cannot find from the record what sub-
stantive agreement was reached with respect to the med-
ical benefits. However, the record indicates some accord
was reached. ,
On the issue of vacation pay, the Charging Party pro-
posed that the Respondents pay full vacation pay,and
Respondents proposed virtually no such pay. Respond-
ABS INDUSTRIES
ents suggested that a committee be established to handle
the question and a committee was established . At a later
meeting Respondents proposed that vacation pay be pro-
rated and at the last meeting Respondents announced an
agreement by the committee that the vacation pay would
be based on the hours worked during the preceding
quarter . This result was more generous than the original
proposal of Respondents.
With respect to the issue of winding down the plant,
the matter was discussed during the course of the meet-
ings, and at the last meeting Respondents agreed to the
Union 's designation of workers to perform these tasks.
Issues raised but not bargained over were severance
pay and allegations of unfair labor practices . Respond-
ents contended that the question of severance pay was
not timely raised, that severance pay was financialy im-
possible, and denied any unfair labor practices.
The General Counsel and the Charging Party asserted
through testimony of their witnesses that they were told
at the sessions by Respondents ' representative what was
going to happen on each issue and, thus, there was no
true bargaining . I cannot agree . Though the Union did
not get all of what it sought with respect to the issues
discussed, there was give and take on these issues and
the Union did secure some of the benefits and results it
sought . I agree with the Respondents that bargaining ap-
pears to have been conducted in a meaningful manner at
the meetings held at times before the plant closure.
Given the financial circumstances of the Respondents at
the time bargaining sessions took place , I find that Re-
spondents efforts in the bargaining sessions satisfied their
legal duty to bargain in good faith over the effects of the
closing of the plant . Therefore, I find that the Respond-
ents have not violated the Act as alleged in the com-
plaint and will recommend that the complaint, insofar as
it alleges a violation by reason of the failure of the Re-
spondents to bargain in good faith over the effects of the
closing of the plant , be dismissed.
CONCLUSIONS OF LAW
1. ABS Industries, Inc. and Ashtabula Forge, Inc. are
employers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. United Steelworkers of America, AFL-CIO-CLC is
a labor organization within the meaning of Section 2(5)
of the Act.
3. By refusing execute the agreement reached between
the parties and ratified by the Union on 6 October, retro-
active to 16 September , Respondents have engaged in
and are engaging in unfair labor practices in violation of
Section 8(a)(1) and (5) of the Act.
4. By failing and refusing to comply with reasonable
information requests by the Union, and particularly a re-
quest for a copy of the involved pension plan, Respond-
ents have engaged in and are engaging in unfair labor
practices in violation of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
6. The Respondents have not committed any other
unfair labor practices alleged in the consolidated com-
plaint.
THE REMEDY
1097
Having found that Respondents have engaged in cer-
tain unfair labor practices in violation of Section 8(a)(1)
and (5) of the Act, I shall recommend that Respondents
be ordered to cease and desist from such practices and
from in any like or related manner infringing on its em-
ployees' Section 7 rights and take certain affirmative
action I find will effectuate the policies of the Act. I
have found that Respondent unlawfully refused and con-
tinues to refuse to execute a written contract embodying
the terms of the collective-bargaining agreement ratified
by the Union on 6 October. The agreement had been re-
duced to writing prior to the Respondents' refusal to
execute same . I shall, therefore , recommend that Re-
spondents be ordered to execute the written agreement
contract that incorporates the collective-bargaining
agreement , retroactive to 16 September , by signing the
agreement . The agreement will be retroactive to 16 Sep-
tember and Respondents shall be jointly responsible
under the agreement and jointly liable for any failure to
abide by its terms and conditions.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed2
ORDER
The Respondents, ABS Industries , Inc. and Ashtabula
Forge , Inc., Ashtabula, Ohio, their officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Refusing to execute the collective-bargaining agree-
ment reached between them and the Union as of 6 Octo-
ber 1981 , retroactive to 16 September 1981 or in any
other manner refusing to bargain in good faith with the
Union as the exclusive collective-bargaining representa-
tive of the employees in the appropriate unit.
(b) Refusing to supply information requested by the
Union necessary to implement the collective -bargaining
agreement and, specifically, failing to provide a copy of
the pension plan required by the collective-bargaining
agreement.
(c) In any like or related manner restraining or coerc-
ing 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) Duly execute the collective-bargaining agreement
ratified by the Union on 6 October 1981, retroactive to
16 September 1981.
(b) Immediately make available to the Union a copy of
the pension plan required by the collective-bargaining
agreement.
(c) Post at its place of business in the State of Ohio, or
if no such place physically exists, at any existing facili-
z If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ties, copies of the attached notice marked "Appendix."3
Copies of the notice, on forms provided by the Regional
Director for Region 8, after being signed by the Re-
spondent's authorized representative , shall be posted by
the Respondent immediately upon receipt and maintained
a 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 "
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted . Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not spe-
cifically found to have been committed.