Acme Industrial Products, Inc.

National Labor Relations Board - Board Decisions

Dec 15, 1969

180 N.L.R.B. 114 (N.L.R.B. 1969)

114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Acme Industrial Products , Inc. and Local No. 155,
International Union, United Automobile,
Aerospace, and Agricultural Implement Workers
of America (UAW). Case 7-CA-6982
December 15, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On June 30, 1969, Trial Examiner Melvin Pollack
issued his Decision in the above -entitled case,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner' s Decision . Thereafter,
the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief and a
request for oral argument; the General Counsel filed
exceptions to the Recommended Order and a
supporting brief; and the Charging Party filed a
brief in answer to Respondent ' s exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner ' s Decision , the exceptions , the briefs, and
the entire record in the case,' and hereby adopts the
findings , conclusions, and recommendations of the
Trial Examiner, with the modifications set forth
below.
The Trial Examiner found, and we agree, that
Respondent violated Section 8(ax5) and (1) by
failing and refusing to bargain with the Union over
its decision to relocate its "Standard" operations
from its Madison Heights plant to its Livingston
plant. In support thereof, the Trial Examiner found,
and we agree, that ( 1) such relocation substantially
reduced the scope of the bargaining unit by
eliminating 20 or more jobs in several categories of
employment, and thus adversely affected job
opportunities, and (2) the displaced employees lost
the benefit of their specialized skills and training,
and, under the contract between the parties which
provided that seniority for purposes of layoff is by
job classification, such employees lost their
accumulated seniority, thus becoming more
vulnerable to layoff or discharge ; and for these
reasons the elimination of the "Standard" jobs
significantly affected terms and conditions of
employment in the bargaining unit , and accordingly
'Respondent's request for oral argument is denied , as, in our opinion,
the record and the exceptions and briefs adequately present the issues and
the positions of the parties
Respondent was under a statutory duty to bargain
with the Union over its decision to relocate before
taking such action.2
The General Counsel urges that Respondent be
required to offer any employee displaced as a result
of the relocation of the "Standard" facilities
substantially similar positions at the Madison
Heights plant without prejudice to seniority, wage
rates, or other rights and privileges; and, if such
positions are not available, or any displaced
employee desires employment at the Livingston
plant, that Respondent offer any displaced employee
employment at the Livingston plant. He further
urges that any affected employee be made whole for
any loss of pay suffered by reason of the relocation
of the Standard facilities or by reason of
Respondent's failure to offer any such employee
substantially equivalent employment at the Madison
Heights or Livingston plant at the employees'
option. He requests that this remedy be effective for
a 3-year period.
While Respondent refused to bargain with the
Union over its decision to relocate, Respondent did
offer proposals on the absorption into other jobs at
Madison Heights of employees affected by the
relocation.3 On the basis of such proposals,
Respondent and the Union reached agreement,
subject to the instant unfair labor practice
proceeding, on such absorption. As a result, the
affected "Standard" employees were given other
jobs at the Madison Heights plant with no loss of
pay or fringe benefits, but they did lose all of their
accumulated seniority in these new jobs.
We agree with the Trial Examiner that, as the
absorption of the "Standard" employees resulted in
no direct loss of pay or overtime work, there is no
warrant for a backpay remedy simply because there
may be a future decline in Respondent's business
which may result in loss of employment by these
employees.' Similarly, as these employees already
have been given other substantially equivalent
positions at the Madison Heights plant, with no loss
of pay or fringe benefits, we see no warrant for
granting the General Counsel's request that these
employees again be offered reinstatement to
substantially equivalent positions at the Madison
Heights or Livingston plant.
However, these employees have lost their seniority
as a direct result of the relocation, over which
Respondent unlawfully refused to bargain.
Moreover, as we find , in agreement with the Trial
Examiner , such loss was one of the two elements
which significantly affected their terms and
'Ozark Trailers . Inc, 161 NLRB 561, 564-570 We also agree with the
Trial Examiner's subsidiary finding that Respondent 's right under the
parties' contract to determine the location of its plants was not a waiver by
the Union of its right to bargain over the transfer of unit work out of the
plant Weltronic Company. 173 NLRB No. 40
'The Union refused to submit proposals on the absorption of these
employees, on the ground that such proposals would be a condonation of
the unilateral action of moving.
'Cf. Cities Service Oil Company, 158 NLRB 1204.
180 NLRB No. 23
ACME INDUSTRIAL PRODUCTS, INC.
conditions of employment, so as to render the
refusal to bargain unlawful. Accordingly, we find
that the policies of the Act could not fully be
effectuated simply by the Trial Examiner's order
that Respondent not take such unilateral action
again , but require also that the seniority of these
employees be restored to the extent that such
restoration is not inconsistent with the seniority
provisions of the parties' contract.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and hereby orders that the
Respondent, Acme Industrial Products, Inc.,
Madison Heights, Michigan, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
as so modified.
1. Add to the Recommended Order the following
as paragraph 2(a), and redesignate the succeeding
paragraphs as 2(b) and 2(c):
"Restore their accumulated seniority to the
employees who were employed in "Standard"
operations positions at the Madison Heights plant
prior to the relocation of such operations to the
Livingston plant, to the extent that such restoration
is not inconsistent with the seniority provisions of
the contract between Respondent and the Union."
2. Add to the notice the following as a third
paragraph:
WE WILL restore their accumulated seniority to
the employees who were employed in "Standard
Operations" positions at the Madison Heights
plant prior to the relocation of such operations to
the Livingston plant, to the extent that such
restoration is not inconsistent with the seniority
provisions of our contract with the Union.
'As noted above, the parties' agreement on absorption of the "Standard"
employees in other jobs without their seniority was expressly made subject
to the instant proceeding.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MELVIN POLLACK, Trial Examiner This case was heard
on January 30 and May 7, 1969, at Detroit, Michigan,
upon a charge filed on October 3, 1968, and a complaint
issued on November 6, 1968 The complaint, which was
amended at the hearing, alleges that Respondent, Acme
Industrial Products, Inc., violated Section 8(a)(1) and (5)
of the National Labor Relations Act, as amended, by
refusing to bargain with the charging Union over its
decision to remove and relocate certain manufacturing
facilities from its plant in Madison Heights, Michigan.
Upon consideration of the entire record in the case,
briefs filed by the General Counsel and the Respondent,
and •my observation of the demeanor of the witnesses, I
make the following.
FINDINGS OF FACT'
1. THE BUSINESS OF RESPONDENT
115
Respondent is engaged in the manufacture, sale, and
distribution of punches, die buttons, retainers, and related
products Its annual interstate purchases and sales at the
Madison Heights plant each exceed $50,000. I find that
Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act
11. THE LABOR ORGANIZATION INVOLVED
Local No 155, International Union, United
Automobile, Aerospace, and Agricultural Implement
Workers of America (UAW), is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Relevant Facts
The Union has represented the production and
maintenance employees at Respondent's Madison Heights
plant since 1956 The bargaining unit from its inception
included employees who operated machinery for the
manufacture of punches, retainers, and buttons. These
items are "standard" in Respondent's catalog and the
equipment for their manufacture is known at the plant as
the "Standard Products Facilities " The plant normally
employs over 100 persons. In the spring of 1968,2 22 to 24
employees were engaged in the "Standard" operations. On
April 3, Edward Sir, the Union's chief shop steward,
asked Arthur Jordan, Respondent's president, whether
there was "anything to this rumor" that Respondent was
going to move "Standard" out of the plant. Jordan replied
that Respondent had been thinking about such a move for
10 or 12 years but "there is nothing final." He said he
would let the Union know should Respondent "decide to
do something "
Sir and other union representatives spoke to Jordan
about the rumored move one or more times a month
during the next few months Jordan put off their requests
for a meeting to discuss the move by reiterating that he
did not know whether or not the move would be made,
but that he would let them know when Respondent came
to a decision on the move Late in August, the Union
learned that Respondent was constructing a plant in
Livingston County, Michigan On August 29, Stephen
Ryan, the Union's newly elected president, called Jordan
and told him it would be advisable to have a meeting
about the rumored move "to appease the men and avoid
the possibility of friction in the plant." Jordan said he
would call Ryan back on September 6 "with the thought
in mind" of meeting on September 9 or 10.
By letter dated September 6, Respondent notified the
Union- "Please be advised that we are relocating our
standard production facilities to Livingston County,
Michigan It is contemplated that said relocation will be
completed within the near future." A copy of the letter
was posted in the plant on September 7
The Union notified Respondent by letter dated
September 10, 1968, that it wished to bargain "in respect
'Respondent ' s proposed findings of fact are accepted to the extent
consistent herewith
'All dates hereafter are in 1968 unless otherwise noted
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to your announced intention to transfer standard's work
from your 12-Mile Road plant to a location in Livingston
County ." Representatives of Respondent and the Union
met eight times between September 10 and November 14
concerning the relocation of the Standard operations.
During the course of these meetings , Respondent
explained why it had decided to relocate the Standard
operations,' acknowledged that it was obliged to bargain
with the Union about the effects of the move on the
employees , but insisted that it was under no obligation to
bargain with the Union over its decision to move the
Standard facilities because , under its contract with the
Union , Respondent retained the sole right to manage its
business , including the right to decide the number and
location of plants. Respondent and the Union, on the
basis of proposals submitted by Respondent , reached
agreement , "subject to this present [unfair labor practice]
proceeding," on the absorption into other jobs of
employees affected by the relocation.4
About November 11, 1968, the Standard machines were
moved from the Madison Heights plant to the new
Livingston plant. The employees who had operated these
machines were offered other jabs at the same or a higher
pay scale and without loss of any fringe benefits.
Respondent's records for a representative 5-month period
show no substantial change in overtime earnings for these
employees or the other employees in the bargaining unit
as a consequence of the assignment of new jobs within the
bargaining unit to the displaced Standard employees.
Seniority for purposes of layoff under the parties' contract
is by job classification. The displaced Standard employees
therefore went to the bottom of the seniority list in their
new jobs.
B. Analysis and Conclusions
Union representatives on and after April 3 questioned
President Jordan concerning Respondent's plans for
relocating the Standard facilities . Respondent concedes
that the Livingston plant was under construction on or
about August 1. Jordan, however, said nothing about the
Livingston plant and kept on insisting that no firm
decision had been taken to transfer the Standard facilities
until September 6 when Respondent notified the Union by
letter that it was relocating the Standard facilities to the
Livingston plant "within the near future." At bargaining
sessions between September 10 and November 14,
Respondent refused to reconsider its decision to relocate
the Standard facilities at the Livingston plant . I find from
these facts that Respondent bypassed the Union and failed
to bargain in good faith over its decision to relocate the
Standard facilities at the Livingston plant.
Respondent contends that its decision to transfer the
Standard facilities was not a mandatory subject of
collective bargaining because it was motivated solely by
economic considerations , involved a capital investment,
and had no adverse effect upon rates of pay, hours, and
'Respondent said inter alto that it would be cheaper to operate "down
there" and that the removal of the Standard equipment would enable it to
bring additional equipment into the Madison Heights plant . The Union
said it could not understand why Respondent was not utilizing the property
it had "right next door."
'The Union refused to submit proposals on the absorption of employees,
explaining to Respondent that such proposals would be "condoning the
action of moving ." When it inquired whether Respondent would "relocate"
the Standard employees , Respondent replied that any employee who
wanted to do so could apply for work at the Livingston plant as a new
hire.
other conditions of employment . It is the Board ' s view,
however, that economically motivated management
decisions which involve "the commitment of investment
capital, or . . . may be characterized as involving `major'
or `basic ' change in the nature of the employer's
business ," are nevertheless subject to the
collective-bargaining requirements of the Act where they
have a significant impact upon the terms and conditions of
employment of employees in a bargaining unit. Ozark
Trailers, Inc., 161 NLRB 561, 564-570. See also Town &
Country Mfg. Co., Inc., 136 NLRB 1022, enfd. 316 F.2d
846 (C.A. 5); Fibreboard Paper Products Corp., 138
NLRB 550, enfd. 322 F.2d 411 (C.A.D.C.), affd. 379 U.S.
203.1 The critical question in this case, accordingly, is
whether Respondent's relocation of the Standard facilities
significantly affected the terms and conditions of
employment of the employees represented by the Union at
the Madison Heights plant.
The removal of the Standard facilities to the Livingston
plant substantially reduced the scope of the bargaining
unit by eliminating 20 or more jobs in several categories
of employment and thus adversely affected job
opportunities. The displaced employees lost the benefit of
their specialized skills and training and, under a contract
which emphasized the importance of seniority on a
particular job, went to the bottom of the seniority list on
their new jobs, so becoming more vulnerable to layoff or
discharge. For these reasons, I find that elimination of the
Standard jobs significantly affected terms and conditions
of employment in the bargaining unit and, accordingly,
that Respondent was under a statutory duty, before taking
such action, to notify the Union of its intention and to
afford the Union an opportunity to consult and, on
request, to bargain with it about the matter. Cf. Weltronic
Company, 173 NLRB No. 40; Cities Service Oil
Company, 158 NLRB 1204.
I find no merit in Respondent's contention that the
Union waived its statutory right to be consulted over the
relocation of manufacturing facilities by accepting a
contract clause (Article I, Section 4) reserving to
Respondent " the sole right to manage its business , include
the right to decide the number and location of plants." A
waiver of statutory right "must be clearly and
unmistakably established and is not lightly to be
inferred." Cloverleaf Division of Adams Dairy Co., 147
NLRB 1410. The Union's acceptance of Respondent's
right to determine the location of its plants is not a clear
and unequivocal waiver of its right to bargain over the
transfer of unit work out of the plant. Weltronic
Company, 173 NLRB No. 40; Unit Drop Forge Division,
171 NLRB No. 73.
I conclude that Respondent violated Section 8(a)(5) and
(1) of the Act by failing and refusing to bargain in good
faith with the Union over its decision to relocate the
Standard facilities at the Livingston plant.
CONCLUSIONS OF LAW
1. Acme Industrial Products , Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7 ) of the Act.
'Relying on its interpretation of the Supreme Court decision in the
Fibreboard case , the Board in Ozark Trailers declined to follow circuit
court rulings that an employer must bargain only upon the effects of a
"major ' or "basic" economic decision. See, eg., N.L.R.B. v Royal
Plating & Polishing Co., 350 F .2d 191 (C.A. 3); N.L.R.B v. Adams
Dairy . Inc.. 350 F.2d 108 (C.A. 8), cert denied 382 U .S. 1011; N.L R.B
v. Rapid Bindery, Inc., 293 F.2d 170 (C.A. 2).
ACME INDUSTRIAL PRODUCTS, INC.
2. Local No. 155, International Union, United
Automobile, Aerospace, and Agricultural Implement
Workers of America (UAW), is a labor organization
within the meaning of Section 2(5) of the Act.
3. All employees at the Madison Heights plant of
Respondent, excluding supervisors, foremen, salaried
employees, professional employees, plant guards,
confidential employees, and office and clerical employees,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. The Union at all times material has been the
exclusive representative of the employees in the
above-described unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
5. By refusing to bargain with the Union over its
decision to transfer the Standard Production facilities
from the Madison Heights plant, Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(5) and (I) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has violated Section
8(a)(5) and (1) of the Act, I shall recommend that
Respondent cease and desist from such conduct and that it
take certain affirmative action designed to effectuate the
policies of the Act.
The Union urges that Respondent be required to return
the Standard facilities to the Madison Heights plant. It is
not disputed, however, that Respondent transferred the
Standard facilities to the Livingston plant for economic
reasons; it appears that no employee of Respondent was
laid off, discharged, or suffered a loss of pay, as the result
of its unilateral action; and there is no evidence of any
prior unfair labor practices by Respondent in its dealings
with the Union. I find in these circumstances that it would
be inappropriate to direct that the status quo ante be
restored by ordering the return of the Standard facilities
to the Madison Heights plant. Cf. Cities Service Oil
Company, 158 NLRB 1204, 1206-1207.
The General Counsel urges in his complaint that
Respondent be required to offer any employee displaced
as a result of the relocation of the Standard facilities
substantially similar positions at the Madison Heights
plant without prejudice to seniority, wage rates, or other
rights and privileges; and, if such positions are not
available, or any displaced employee desires employment
at the Livingston plant, that Respondent offer any
displaced employee employment at the Livingston plant.
He further urges that any affected employee be made
whole for any loss of pay suffered by reason of the
relocation of the Standard facilities or by reason of
Respondent's failure to offer any such employee
substantially equivalent employment at the Madison
Heights or Livingston plant at the employee's option.'
The record shows that the Respondent, pursuant to
contract posting procedures, assigned the displaced
employees to other jobs at the same or higher wage rates
and that this action resulted in no loss of pay or fringe
benefits to any unit employee.' Although Respondent
acknowledged its statutory obligation to bargain on the
effects of its decision to move the Standard facilities to
Livingston, the Union chose to make no proposals on
'The General Counsel requests that the remedy be effective for a 3-year
period.
117
seniority or transfer of the displaced employees to
Livingston. In these circumstances, I see no basis for
recommending the relief requested by the General
Counsel.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
I recommend that Respondent, its officers, agents,
successors, and assigns, shall be ordered to:
1. Cease and desist from:
(a) Refusing to bargain collectively with the Union as
the exclusive bargaining representative of Respondent's
employees in the appropriate unit by unilaterally
transferring unit work to other locations, or otherwise
changing the wages, hours, and other terms and conditions
of employment of the unit employees without prior
bargaining with the Union or any other labor organization
they may select as their representative;
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights under the Act.
2. Take the following affirmative action which I find
will effectuate the policies of the Act.
(a) Post at its plant at Madison Heights, Michigan,
copies of the attached notice marked "Appendix."' Copies
of said notice on forms provided by the Regional Director
for Region 7 shall, after being duly signed by Respondent,
be posted by it immediately upon receipt thereof and
maintained for a period of 60 consecutive days thereafter
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced or covered by any other material.
(b) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Decision,
what steps it has taken to comply herewith.'
'As the absorption of the Standard employees resulted in no direct loss
of pay or overtime work, I see no warrant for a backpay remedy simply
because a decline in Respondent 's business may result in loss of
employment.
'in the event this Recommended Order be adopted by the Board, the
words, "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice In the further
event the Board 's Order be enforced by a decree of a United States Court
of Appeals, the words "a decree of the United States Court of Appeals,
Enforcing an Order" shall be substituted for the words "a Decision and
Order."
'In the event this Recommended Order be adopted by the Board, this
provision shall be modified to read : "Notify said Regional Director, in
writing , within 10 days from the date of this Order what steps Respondent
has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act we hereby notify our employees that:
After a Trial in which both sides had the opportunity to
present their evidence, the National Labor Relations
Board has found that we violated the act and has ordered
us to post this notice and to keep our word about what we
say in this Notice.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board found we violated the law when we did
not consult or bargain with the Union before
transferring Standard Products Facilities work to a
plant in Livingston County, Michigan.
WE WILL NOT hereafter transfer work out of this
plant without first discussing and negotiating such
transfer with the Union, and we will not otherwise
refuse to bargain collectively with the Union as
required by law.
Dated By
ACME INDUSTRIAL
PRODUCTS, INC.
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 500 Book
Building , 1249 Washington Boulevard, Detroit, Michigan
48226, Telephone 226-3200.