Cooper Thermometer Company, a firm of modest size engaged in the manufacture of commercial-industrial thermometers, seeks review and the National Labor Relations Board asks enforcement of an order, 160 N.L.R.B. No. 150, finding that Cooper had violated § 8(a) (5) and, in consequence, § 8(a) (1) of the National Labor Relations Act by refusing to bargain with United Electrical, Radio and Machine Workers of America, Local 238 (hereafter “the Union”) concerning the termination of its operations at Pequabuck, Conn., and their relocation in Middlefield, Conn., 27 miles away. The petitions raise important issues, unhappily little illumined by the Board, 1 concerning the scope of an employer’s duties and the appropriate remedies for their violation in cases of plant relocation for economic reasons. We hold the Board was warranted in finding that Cooper violated § 8(a) (5) by refusing to supply information pertinent to, and to bargain over, the transfer of employees to the new plant. However, we do not enfоrce those parts of the Board’s order which are based on the unsupportable assumption that if Cooper had bargained, it would have granted not only preferential hiring but transfer of full seniority and other contractual benefits as well.
Cooper had long recognized the Union as the exclusive bargaining representative for its production and maintenance employees, some 80 in number at the time here relevant. The last agreement, executed in 1962 and modified in May, 1964, was scheduled to expire Mаy 17, 1965. On September 11, 1964, Cooper called a meeting with the Union at which it announced its intention to move from Pe-quabuck to the Middlefield region for economic reasons, primarily the inadequacy of its existing facilities and the cost of correcting them; it expected to break ground by the end of the month and hoped the new building would be ready by spring or early summer. It said that it had not yet determined its final hiring plan but that it would welcome applications for the new plant from present employees, whom it would consider еqually with all other applicants, and that it would attempt to relocate nontransfer-ring employees to other jobs in the Pe-quabuck area. Notice of the proposed relocation was posted on plant bulletin boards.
Early in January the Union sent Cooper two letters, one of which requested certain information relating to operations at the new plant 2 “for the purpose of entering into negotiations on the terms *686 and procedures for an orderly and equitable transition.” Cooper’s answer professed inability to understand this language, although thе company agreed to meet with the Union at an early date “to discuss with you all appropriate matters as may involve the orderly cessation of our manufacturing operations at the Pequabuck plant” and said it might then be “in a better position than we are at the present time to make available to you appropriate information necessary to obtain this objective.” • In February the Union repeated its request, saying that Cooper had defined the subjects of negotiation too nаrrowly.
At a meeting on March 1, the Union stated its position that not only the closing of the old but the opening of the new plant were matters for collective bargaining ; specifically it wanted to know whether Cooper would bargain as to having present employees go to the Middle-field plant “with the same conditions, seniority and others” and asked to be recognized as the collective bargaining agent at Middlefield. Cooper countered by furnishing and offering to furnish information the Union had requested in January concerning the economic need for the move, but persisted in its refusal to supply job information as to the new plant, which it claimed to be “confidential,” except to the extent of saying that rates would average 40yi an hour less and there would be no piece-work but a day rate with “normal fringes equal to the area.” 3 It said it would supply applications to Pequabuck employees but that neither employment nor seniority and other benefits would “transfer automatically” and denied the Union’s request for recognition at Middlefield. On the other hand it was willing to discuss vacation or severance benefits to Pequabuck employees who did not transfer. The following day Cooper posted a notice that operations at Pequabuck would cease on May 17, that applications for employment at Middlefield would be available before April 22 with interviews to follow, and that employees desiring help in obtaining other employment should contact their foreman.
By an exchange of letters in March the Union requested negotiations to amend the collective bargaining agreement and Cooper gave the notice of intention to terminate the contract necessary to avoid automatic renewal and asked for a conference. At a meeting on March 22 Cooper made proposals as to vacation pay and insurance; when the Union demanded that Pequabuck employees “be taken” to Middlefield with existing rights and benefits, Cooper refused to do more than offer opportunity for employment on an individual basis. When further meetings on March 29 and April 6 took much the same course, with the Union demanding and the company refusing to transfer employees to Middlefield or to grant any other benefits “that cost money,” the Union on April 15 filed an unfair labor practice charge.
At Cooper’s instigation, both parties met on May 6 with a state mediator but neither changed its position. The following day the Union requested the names of the Pequabuck employees who had sought and had been accepted for work at Middlefield. Cooper answered that 42 had requested applications, that 29 had filed them, that interviews had been arranged for 21 (with the additional eight interviews still to be arranged), that only 14 had appeared at their interviews, and that of those 14 only four said they wished to work for Cooper in Middlefield. Cooper’s letter also set forth criteria the company was using in hiring workers for the new plant, and concluded by stating the company’s willingness “to discuss these matters further with you at our next Bargaining Conference.” The Union rejоined on May 15, with 52 form letters, each signed by an employee, requesting “a transfer to the new location of the company at Middlefield, Connecticut with full recognition of my seniority, which I acquired *687 in your service at Pequabuck through the many collective bargaining agreements” between Cooper and the Union. Cooper returned these to the Union, writing that it had “met with the Union on numerous occasions and negotiated on Union demands that included the right of transfer, referred to in your letter, and on which we failed to reach agreement.” 4 A final meeting with the mediators on June 2 produced only a reiteration of attitudes previously expressed.
Public transportation between Pequa-buck and the Middlefield plant is virtually unavailable. The approximate travel time by private car is 45 minutes. Nearly 80% of the Pequabuck employees were women, many of them “married or second employees in the family.” In early August Cooper wrote 83 letters to former workers saying that it needed their experience at Middlefield and that most Pequabuck employees then working there were receiving hourly rates equal to or higher than those formerly paid and inviting them to telephone collect. Fourteen who called were not sufficiently interested to come for an interview; of the eleven who did only two were hired but left after a few days because, on the testimony of a company witness, “it was too far to travel.” On the other hand, one employee, a former union vice-president, who came for an interview — the only employee called by the General Counsel as a witness — testified that he was offered $1.58 per hour to do the work for which he had been paid $2.76 at Pequabuck. The company also offered him a job requiring more skill than the one he had previously had, which would have paid as much as $2.12 an hour, but he also refused this because he “couldn’t afford to travel that distance for that money.” Ten of the organized employees and virtually all the supervisors did transfer. 5
The Trial Examiner concluded that by failing to furnish the Union with job data relating to the Middlеfield plant, refusing to negotiate concerning conditions of transfer, and insisting on dealing with employees on an individual basis, Cooper had violated § 8(a) (5). Because of the geographical proximity of the two plants, “of all the evidence as to employees’ desires respecting transfer,” and of “the absence of convincing evidence” that a majority of the Pequabuck employees would not have transferred if Cooper “had fulfilled its obligation under the Act,” he thought it was “not unreasonable tо infer” that those workers would have transferred had Cooper bargained fully and that consequently the company had further violated § 8(a) (5) by refusing to recognize the Union as bargaining representative at Middlefield. He recommended that Cooper be required to do what it had unlawfully refused and “offer immediate reinstatement and make whole those unit employees at the Pequabuck plant who were discharged as a result of Respondent’s unlawful actions.” A footnote stated that “reinstatement shall be to thе employee’s former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges” and that “backpay shall be computed at the rates provided in the Pequabuck plant contract.” The Board accepted these recommendations without discussion.
We have no difficulty in approving the Trial Examiner’s first conclusion. Though we assume that, as Cooper maintains, the existing contract, which in any event it could and did terminate by May 17, 1965, did not apply to the new plant, Oddie v. Ross Gear and Tool Co.,
The finding of a further § 8(a) (5) violation in Cooper’s refusal to recognize the Union as bargaining agent at the new plant raises a much more difficult issue. The difficulty stems from the hypothetical nature of the question on which decision turns — would a majority of the Middlefield employees have wished to be represented by the Union if Cooper had not committed the initial violation? While the sole fact firmly known is that only ten Pequabuck employees transferred, the Board might well have been warranted in finding that a majority would have done so if the workers could have brought the Pequabuck contract with them — even though we do not take the problem of traveling 54 miles every day by private car so lightly as the Trial Examiner did. 6 On the other hand we doubt that we would sustain such a finding based, as the Examiner’s apparently was, on the assumption that Cooper would have agreed to the full recognition of seniority stated in the May 7 letters of the 52 employees 7 but only to that, even if there were reason to suppose that bargaining might have led to such an agreement on Cooper’s part. The letters were post litem motam, the signers had little to lose by offering to transfer on a condition they knew would not be met, and the geographical facts and the history of the applicants, interviewees and transferees raise grave question how seriously these letters can be taken. 8 *689 However, we do not need to decide that since § 8(a) (5) did not require Cooper to recognize the seniority of the Pequa-buek employees; its duty was only to talk in good faith, and the evidence makes it fairly plain that such talk would not have that result.
Doubtless because of the difficulty in determining how many employees would have transferred, the Board has long been rather cautious before ordering an employer to recognize a union designated at the old plant as the bargaining agent at the new. Until very recently this has been done only when the distance was so short that there was considered to be no change in the bargaining unit, see Royal Oak Tool & Machine Co.,
The Board urges that here the new plant was somewhat nearer than in
Rapid Bindery
where we denied enforcement of a recognition order, and that it was much nearer than in
Garwin;
however, Cooper’s conduct was nothing like so gross a violation of the Act as was
Garwin’s
against which a § 8(a) (3) finding was sustained. Exercising our reviewing authority in the manner we have been instructed, Universal Camera Corp. v. NLRB,
Since Cooper violated § 8(a) (5) by refusing to discuss the terms of transfer with "the Union, requiring an offer of preferential reinstatement was proper. See Note, Labor Law Problems in Plant Relocation, 77 Harv.L.Rev. 1100, 1107-08 (1964). But reinstatement on what basis? The Trial Examiner said that “in accordance with the usual requirements,” this “shall be to the employees’ former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges.” We are not sure whether or not this means at the Pequabuck rates of pay. Neither are we vouchsafed any light on the source of “the usual requirements”; if the Examiner was referring to cases of discriminatory discharge, these are inapposite since in such cases there would be no reason to doubt that the discharged employee would otherwise have continued at his existing rate of pay. We think the reinstatement offer should bе on whatever basis emerges from good faith bargaining between Cooper and the Union; recognizing the likelihood that such bargaining will produce little change from the current practices at Middlefield, we believe this would still be a much closer approximation to what bargaining would have yielded at the proper time. A sanction for refusal to bargain that would treat the guilty party as if he had agreed to what the other party demanded although the evidence shows he would have done nothing of the sort would givе insufficient respect to Congress’ direction in § 8(d) that the obligation to bargain “does not compel either party to agree to a proposal or require the making of a concession.”
Award of back pay to workers who would have transferred to a new plant had there been proper bargaining is also something of a new departure. No such
*691
remedy was imposed in the leading relocation cases of the past
decade
— Broum
Truck & Trailer; Bickford Shoes, Inc.;
or
California Footwear Co.,
in that case deliberately so, see the Examiner’s discussion,
We thus grant enforcement in part and deny it in part. The Board shall submit a decree in conformity with this opinion, in accordance with Rule 13 (Z) of this Court.
Notes
. A three-member panel merely endorsed the decision of the Trial Examiner. As will appear below, the lack of adequate discussion is not explicable on the basis that the decision was following well-trodden paths.
. This included a list of all job classifications and occupations, the number of employees in each, the rate schedules, and the schedule of hours and any other conditions of employment that would vary from those in the Pequabuck contract.
. Average hourly pay at Pequabuck had ranged from $1.45 to $2.97.
. It was stipulated that only 24 of the 52 signers filed an application for employment other than this form letter, and that 21 of these were interviewed of whom 20 indicated lack of interest and the remaining one was hired.
. Included in the ten are the two who were hired in August but left within three days because of the difficulty of commuting to the new plant.
. There was no evidence whether the residences of the Pequabuck workers were so located as to make car pools or other cost-sharing devices practicable or as to other employment opportunities in the Pequabuck area which might have rendered the time and cost of the 54-mile daily drive unattractive even at the old rates.
. The Examiner’s finding seems to have been based on the supposition that if Cooper had bargained, it would have agreed at least to hire the Pequabuck employees preferentially with full seniority, since he found it “apparent” that “there was little desire on the part of the employees” to transfer on any terms less than those “outlined in their application which was prepared by the Union.”
. In addition to the evidence already cited strongly suggesting that the Pequabuck employees found it unprofitable to travel *689 to Middlefield for the lower wages paid there, Tomasetti, the Union’s international representative and chief negotiator who was called as a witness by the General Counsel, testified that at the rates of pay offered by Cooper at the Middle-field plant, Pequabuck employees “would have to be crazy to go there.” Audette, an officer and negotiator for Cooper, named several of the 52 signers of the Union’s letter who did not appear for interviews because they did not want to travel to Middlefield. One of these, Belisle, was enthusiastically sought by the comрany but refused to transfer even when offered 50/ per hour more than he had been earning. And of the ten Pequa-buck employees who did transfer, at least three quit within a short time because of the burden of commuting.
. The Board itself has recognized this to have been its historic policy: “[I]n cases where an employer relocates a plant at a distant site in order to avoid statutory bargaining obligations, the Board has not imposed an obligation to bargain at the new location until the statutory representative could reestablish its representative status at the new location.” Garwin Corp.,