Brooks-Scanlon, Inc.

National Labor Relations Board - Board Decisions

Nov 16, 1979

246 N.L.R.B. 476 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brooks-Scanlon, Inc. and Local 1017, Lumber and
Sawmill Workers affiliated with Western Council,
Lumber, Production & Industrial Workers. Case
36-CA-3306
November 16, 1979
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
Upon a charge filed on August 2, 1978, as amended
on September 26, 1978, by Local 1017, Lumber and
Sawmill Workers affiliated with Western Council,
Lumber, Production & Industrial Workers, herein the
Union, and duly served on Brooks-Scanlon, Inc.,
herein Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Direc-
tor for Region 19, issued a complaint and notice of
hearing on September 27, 1978, against Respondent,
alleging that Respondent had engaged in and was en-
gaging in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) and
Section 2(6) and (7) of the National Labor Relations
Act, as amended. Copies of the charges, complaint,
and notice of hearing before an administrative law
judge were duly served on the parties to this proceed-
ing.
The complaint alleges that on or about June 16,
1978, Respondent unilaterally, and without prior no-
tice to the Union, announced that it was closing the
sawmill department at its Redmond, Oregon, facility;
and that at all times since June 16, 1978, Respondent
has refused the Union's request that it meet and bar-
gain concerning this decision. On October 19, 1978,
Respondent filed its answer to the complaint denying
the commission of any unfair labor practice.
The parties executed a stipulation on January 30,
1979, in which they agreed to certain facts, waived a
hearing before an administrative law judge and the
issuance of an administrative law judge's decision,
and submitted the case to the National Labor Rela-
tions Board for findings of fact, conclusions of law,
and an order based upon a record consisting of the
charges, the complaint and notice of hearing, the an-
swer, and the stipulation of facts.
By order dated April 12, 1979, the Board approved
the stipulation of the parties and ordered the proceed-
ing transferred to the Board, granting permission and
time for the filing of briefs. Thereafter, the General
Counsel and Respondent filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the basis of the stipulation, the briefs, and
the entire record in this proceeding, the Board makes
the following findings:
I. BUSINESS OF THE EMPLOYER
Respondent is an Oregon corporation, with its
principal place of business located at Bend, Oregon,
engaged in the manufacture of lumber and plywood.
It operates, as relevant herein, a sawmill in Bend and
a plywood plant and sawmill in Redmond, Oregon.
During the past 12 months, which period is represent-
ative of all times material herein, Respondent has
sold and shipped from its Redmond Division finished
goods and products valued in excess of $50,000 di-
rectly to customers located outside the State of Ore-
gon.
The parties stipulated, and we find, that Respon-
dent is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and we find that it will
effectuate the purposes of the Act to assert jurisdic-
tion herein.'
11. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and we find, that Local
1017, Lumber and Sawmill Workers affiliated with
Western Council, Lumber, Production & Industrial
Workers, is, and at all times material herein, has been
a labor organization within the meaning of Section
2(5) of the Act.
11. THE UNFAIR LABOR PRACTICES
A. The Stipulated Facts
For more than 10 years, the Union has been the
exclusive representative of all employees employed by
Respondent in the following appropriate unit:
All production, maintenance, transportation,
temporary and part-time employees at the Em-
ployer's Redmond, Oregon, operation, excluding
all office and clerical employees, guards, profes-
sional and supervisory employees as defined by
the Act.
The current collective-bargaining agreement between
the parties is effective from June 1, 1977, through
June 1, 1980.
Respondent concluded, at a time prior to June 16,
1978,2 that it would not be economically feasible to
continue its Redmond sawmill operation and, on that
date, notified the Local Union Plant Committee of its
decision. Respondent explained to the Union that the
Siemons Mailing Serice, 122 NLRB 81 (1958).
2 All dates herein are in 1978 unless otherwise indicated.
246 NLRB No. 76
476
BROOKS-SCANI.ON. INC
supply of pine timber available in the surrounding
forests was not sufficient to support the continued op-
eration of the sawmill. Although 55 employees were
then employed in the sawmill department, Respon-
dent stated that it planned to eliminated only 26 posi-
tions on August 11, the anticipated closing date. Re-
spondent also advised the Union of its intention to
negotiate the effects of the shutdown upon those em-
ployees whose jobs would be curtailed.
Thereafter, the parties agreed to meet at Respon-
dent's offices to discuss the matter further. During
this meeting, held on July 25, the Union requested
that Respondent bargain concerning the decision to
terminate its sawmill operation and that it maintain
the status quo pending the outcome of any bargain-
ing. Respondent refused to do so. While conceding
that the sawmill operation was profitable, Respon-
dent claimed that it would not be in its best economic
interest to continue this operation. The parties then
engaged in bargaining discussions as to the effects of
the closure but were unable to reach any agreement.
Respondent ultimately closed the sawmill depart-
ment on August 11. Thereafter, it terminated 26 of
the 55 employees who were working in that depart-
ment. Of the 26 employees whose jobs were elimi-
nated, 19 had sufficient seniority and qualifications to
take jobs, and thus bump other unit employees, in the
Redmond plywood department. It is undisputed that
the decision to terminate the Redmond sawmill op-
eration was based solely on economic considerations. 3
Furthermore, Respondent did not subcontract or
transfer to its Bend facility any of the work formerly
performed by unit employees.
B. Discussion and Conclusion
Based on the facts to which the parties have stipu-
lated, we find that Respondent was under no duty to
bargain with the Union over the decision to close its
Redmond sawmill department.
The stipulated facts disclose that on June 16, 1978,
Respondent informed the Union of its intention to
terminate this operation within the next 2 months. In
so doing, Respondent explained to the Union that the
available supply of pine timber in the vicinity would
not be sufficient to support the continued operation of
the Redmond sawmill. Factors cited by Respondent
as creating the diminution of timber supply were the
impact of the activities of several conservationist
groups and the anticipated requirements of other
lumber-producing companies in the area. Respondent
decided that it would be unable to grow or purchase
Although counsel for the General Counsel has stipulated to the accuracy
of this statement, he does not agree that it is relevant or material to the
determination of this proceeding.
enough suitable pine timber to supply the sawmill op-
eration. While refusing to bargain concerning the de-
cision to close its sawmill department, Respondent
was willing to, and indeed did, bargain over the ef-
fects of the shutdown. Furthermore, it did not sub-
contract or transfer any of the unit work affected by
the ultimate closing on August 11, 1978.
We recognize that in past cases the Board has con-
sistently found that an employer has an obligation to
bargain about decisions involving subcontracting,
plant removal, and partial closure.4 The purpose of
this requirement is to afford the union an opportunity
to propose alternative measures which might alleviate
the need for the elimination of unit jobs.5 If there
were any remote possibility that the union could in-
fluence the final decision, we would find a bargaining
obligation under these circumstances.
In the instant case, however, Respondent's decision
to shut down the Redmond sawmill department ema-
nated solely from the insufficient supply of pine tim-
ber which existed in the immediate area. The Board
does not require an employer to bargain over the clos-
ing of an operation in situations, such as here, where
the decision is predicated on economic factors so
compelling that bargaining could not alter them.6 As
the availability of a limited natural resource is clearly
beyond the control of either party, we conclude that
Respondent's decision to terminate the Redmond
sawmill operation resulted from an economic condi-
tion which would have rendered bargaining pointless
despite any good-faith effort by Respondent to reach
accomodation. We do not see any useful purpose to
be derived from requiring Respondent to perform a
futile act. In our opinion, Respondent fulfilled its ob-
ligation to the Union by bargaining over the effects of
this decision.
Accordingly, for the reasons set forth above, we
shall dismiss the complaint in this proceeding.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the complaint herein
be, and it hereby is, dismissed in its entirety.
MEMBER MURPHY, dissenting:
My colleagues find that Respondent was not obli-
gated to bargain over a decision to close its Redmond
4See, e.g., Roman Cuatholic Diocese of Brooklyn. Henrv M Hald Associ-
ation. Bishop for Central Catholic High School. 236 NLRB I (1978); Brock-
*,av Motor Trucks Diision of Mack Trucks, Inc., 230 NLRB 1002 (1977);
O:ark Trailers, Incorporated, and/or Hutro Equipment (Cormpans and/or
Mohilefreeze Companr. Inc.. 161 NLRB 561 (1966); inn-Diric Stores. Inc..
147 NLRB 788 (19641
5 'inn-Divie Stores, Inc.. supra at 789.
Sucesion lOrio AMercado E Hijos d/h-a Central Rufina. 161 NLRB 696
11966) (subcontracted sugar cane grinding operations because of severe me-
chanical difficulties).
477
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sawmill department because they "do not see any
useful purpose to be derived from requiring Respon-
dent to perform a futile act." Such a conclusion is far
removed from the actual facts here. It suggests
strongly that the Board majority has now decided to
base its determination as to Respondent's bargaining
obligation on whether they believe that there is likely
to be any change in the position of the employer-not
on whether there could be any change. In doing so my
colleagues have interjected themselves directly into
the bargaining process-something the Board has
previously consistently refused to do.7
Here Respondent is shutting down the sawmill be-
cause of a long-term concern, based on a number of
factors, about the continued economic feasibility of
operating the plant. While refusing to bargain, Re-
spondent explained to the Union that there was a
limited supply of the size and specie of timber (large
Ponderosa pine logs) that the sawmill was designed to
manufacture. Respondent also pointed out that
among factors that contributed to its conclusion that
it would be unable to obtain a satisfactory supply of
? The Board is thus once again intruding itself into an area which is out-
side the statutory junsdiction assigned to it by Congress, and is thereby
legislating rather than adjudicating. See, e.g., my separate opinions in Ma-
chinists Local 1327, International Association of Machinists and Aerospace
Workers, AFL- CIO. District Lodge 115 (Dalmo Victor), 231 NLRB 719, 725
(1977), enforcement denied on same grounds as her dissent 608 F.2d 1219
(9th Cir. 1979); Westinghouse Electric Corporation, 239 NLRB 106 (1978);
The East Dayton Tool and Die Co., 239 NLRB 141 (1978); White Farm
Equipment Company, a Subsidiary of White Motor Corporation, 242 NLRB
1373 (1979); Safeway Stores, Incorporated, 240 NLRB 836 (1979); Puerto
Rico Food Products Corp., Tradewinds Foods, Inc. and Island Can Corp., 242
NLRB 899 (1979); Belcher Towing Company, 238 NLRB 446 (1978).
this timber was the impact of preservationists groups,
wilderness groups, and some alleged "conservation
groups," and the anticipated supply required by com-
peting sawmills and other related and timber depen-
dent organization in the area. Therefore, Respondent
did not believe it would be able to grow or buy enough
suitable pine timber to continue to operate its Red-
mond sawmill. Respondent noted there was more
sawmill capacity in the area than there was available
supply.
An examination of these facts can only lead to the
conclusion that Respondent had made a decision
based on a long-term factors to shut down the saw-
mill. There is nothing in these facts which in anyway
suggests that alternatives were not available. Thus,
there was no showing that it was impossible for Re-
spondent to extend the date of closing, to reduce the
level of the curtailment to only a partial closing, to
change its relationships with the Union so as to be
able to compete with other sawmills for the limited
timber available, or any combination of these or
other proposals. Without explaining why the Union
was not in a position to offer such alternatives, my
colleagues simply permit Respondent to cut off the
bargaining process. Such a result is unconscionable.
See, e.g., Brockway Motor Trucks, Division of Mack
Trucks, Inc., 230 NLRB 1002 (1977); First National
Maintenance Corp., 242 NLRB 462 (1979).
I find that Respondent violated Section 8(a)(5) and
(1) by refusing to bargain as to the decision to shut
down the Redmond sawmill, and I dissent from my
colleagues' refusal to do so.
478