Burgmeyer Bros., Inc.Download PDFNational Labor Relations Board - Board DecisionsFeb 27, 1981254 N.L.R.B. 1027 (N.L.R.B. 1981) Copy Citation INC. Bungreyer Brm., H:elpers amendxi alliliated issued engaged 8(a)(5) (1) 2(6) Relatior s zs o~crations. t13 bui liespondent, auld oral ,my decision the ' unl~ble filed. stipul~tion infra), its relati l g !he that 1 1. stipula~ed stipulation, R~spondent's Pennsylvania $50,000 2(6) * 11. ORGANlZATlON 2(5) 111. 8(a)(5) exclu- BURGMEYER BROS., 1027 Inc. and Local Union No. 701, af- filiated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and of America. Case 4-CA-10833 February 27, 1981 DECISION AND ORDER Upon a charge filed on February 4, 1980, and on March 20, 1980, by Local Union No. 701, with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 4, a complaint and notice of hearing on March 26, 1980, which was subsequently amended on August 28, 1980, against Burgmeyer Bros., Inc., Respondent herein, alleging that Respondent had in and was engaging in an unfair labor practice within the meaning of Section and and Section and (7) of the National Labor Act, as amended. In substance, the com- plaint, amended, alleges that on or about De- cember 11, 1979, Respondent permanent] y ceased operations and, since that date, has failed and re- fused to bargain collectively with the Union con- cerning the effects of its decision to permanently cease Thereafter, Respondent filed an answer the complaint1 admitting the factual alle- gations stated therein, including its refusal to bar- gain, denying the commission of any unfair labor practice, asserting rather that it was "not in a position to bargain with the Union as it had no funds that it could offer the Union" in view of the petition for bankruptcy it had filed on December 11, 1979. On September 8, 1980, counsel for the General Counsel, and the Union entered into a stipulation in which they agreed that certain doc- uments w constitute the entire record herein3 and that testimony was not necessary or de- sired by of the parties. The parties further waived a hearing before an administrative law judge and the issuance of an administrative law judge's and agreed to submit the case di- rectly to Board for findings of fact, conclusions We are to determine from the record when the answer was In a entered into by the parties (discussed Respon- dent amended answer by admitting the paragraphs of the amended complaint to filing and service of the charge and amended charge and by admitting it permanently ceased operations on or about December 1979 The stipulation was executed by Respondent and by the Union on September 2 and 3. 1980, respectively. The record consists of the the charge. the amended charge, the complaint and notice of heanng. the amendments to the complaint. answer, and the order postponing hearing in- definitely. 254 NLRB No. 126 of law, and an order based on the stipulated record, reserving to themselves only the right to object to the materiality, competency, or relevancy of any of the stipulated facts or conclusions stated therein. By order dated November 19, 1980, the Board approved the stipulation and ordered the case transferred to the Board, granting the parties per- mission to file briefs. Thereafter, counsel for the General Counsel filed a brief in support of his posi- tion. Upon the entire record, as stipulated by the par- ties, as well as the brief filed by counsel for the General Counsel, the Board makes the following findings and conclusions: Respondent, a New Jersey corporation with a fa- cility located at Cornwells Heights, is engaged in the business of hauling freight. During the 12-month period immediately preceding its cessation of operations Respondent, in the course and conduct of its business, caused to be shipped goods valued in excess of from its Cornwells Heights, Pennsylvania, facility directly to points and places located outside the Common- wealth of Pennsylvania. The complaint alleges, the answer admits, and we find that Respondent is an employer engaged in commerce within the meaning of Section and (7) of the Act and that it will effectuate the pur- poses of the Act to assert jurisdiction herein. THE LABOR Local Union No. 701, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is, and at all material times herein has been, a labor organiza- tion within the meaning of Section of the Act. THE ALLEGED UNFAIR LABOR PRACTICE A. The Issue The sole issue raised herein is whether Respon- dent, who ceased operations and went into bank- ruptcy on December 11, 1979, violated Section and (1) of the Act by failing and refusing to bargain with the Union over the effects of its deci- sion to cease operations. B. Discussion and Conclusions The record, as stipulated to by the parties, re- veals that since at least 1978 Respondent has recog- nized and bargained with the Union as the 10;!8 sik dockmen Cornwells f a ~ i l i t y . ~ fu~ther Since 11, barlcain i n beci~use 8(a)(5) The mi~de, impact beliekes dema~lds.~ 0 1 1 t.?e ' The t:omplalnt dockmen pllrposes. Stagg ZippPr Instirute Angeles, Inc,. t Coast Schmls, Transmarine Cbrporatro,~. Inc.. 189 (1968:, F.2d 152 ( 1 965). ' L r a l 453 v . Inc.. F.2d (Zd 1975). Baldwin Laomotive F.2d (fd Cir. ser Ltd.. (1979), Juniors 8(a)(5) 111, 8(a)(5) collective- backpay backpay Trans- backpay 5 ' backpay 8(a)(5) violations I n c , DECISIONS OF NATIONAL LABOR RELATIONS BOARD e collective-bargaining representative of all local drivers and employed by Respondent at its Heights, Pennsylvania, It reveals that Respondent and the Union were parties to a collective-bargaining agreement covering employees in the abovedescribed unit. The agreement is effective from April 1, 1979, to March 31, 1982. On December 1 1, 1979, Respondent permanently ceased operations and filed a chapter XI petition for bankruptcy with the U.S. Bankruptcy Court for the Eastern District of Pennsylvania, and has, since then, remained a debtor-in-possession of its assets. December 1979, Respondent has failed to with the Union over the effects of the clos- ing the bargaining unit employees. As noted, in its answer Respondent asserts it is not able to bargain over the effects of its closing it is bankrupt. The General Counsel con- tend s that under existing precedent Respondent was obligated to bargain over the effects of its de- cisic n on the unit employees, regardless of its finan- cial situation, and that Respondent's refusal to do so violated Section and (1) of the Act. We find merit to the General Counsel's contention. Board, with court approval, has long held that when an employer decides to terminate or close its entire operation it must, once that decision is afford the employees' collective-bargain- ing representative the opportunity to bargain over the and effect of that decision on unit em- p l o y e e ~ . ~Furthermore, an employer is not relieved of its obligation to bargain over the effects of its decision to close merely because it has become a debtor-in-possession under the Bankruptcy Act and that, as a result thereof, it would be finan- cially unable to meet any of the Union's bargaining In view of the foregoing, we find Re- spondent's assertion of bankruptcy as a defense to its refusal to bargain to be without merit. Further- more, we find that since December 11, 1979, the day which Respondent decided to close its op- erations, Respondent has been required to bargain with Union concerning the effects of that deci- sion on unit employees. By failing and refusing to alleges, the answer admits. and we find that all local drivers ar d employed by Respondent at its Cornwells Heights, Pennsylvania, facility constitute an appropriate unit for collective-bar- gaining Merry weather Optical Company, 240 NLRB 1213 (1979); Corp.. 221 NLRB 1249 (1976); Automarion of Los d /b /a We! 208 NLRB 725 (1974); Navigation and its Subsidiary. International Terminals, 170 NLRB 380 933 (9th Cir. 1967). remanding NLRB 998 See Union No. Kevin Steel Products 519 698 Cir. citing N.L.R.B. v. Works, 128 39 at 43 1942). Also Oxford Structures. Debtor-in-Possession. 245 NLRB 1180 and Jersey Inc., 230 NLRB 329 (1977). do so, Respondent, we find, violated Section and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of Respondent set forth in section above, occurring in connection with its oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent has engaged in an unfair labor practice within the meaning of Section and (1) of the Act, we shall order that it cease and desist therefrom, and take certain affir- mative action designed to effectuate the policies of the Act. As a result of Respondent's unlawful failure to bargain about the effects of its cessation of oper- ations, the terminated employees have been denied an opportunity to bargain through their bargaining representative at a time when Respon- dent might still have been in need of their services, and a measure of balanced bargaining power exist- ed. Meaningful bargaining cannot be assured until some measure of economic strength is restored to the Union. A bargaining order alone, therefore, cannot serve as an adequate remedy for the unfair labor practice committed. Accordingly, we deem it necessary, in order to . effectuate the purposes of the Act, to require Re- spondent to bargain with the Union concerning the effects of the closing of its operations on its em- ployees, and shall include in our Order a limited requirement7 designed both to make whole the employees for losses suffered as a result of the violation and to recreate in some practicable manner a situation in which the parties' bargaining is not entirely devoid of economic consequences for Respondent. We shall do so in this case by re- quiring Respondent to pay to its employ- ees in a manner similar to that required in marine, supra. Thus, Respondent shall pay employ- ees at the rate of their normal wages when last in Respondent's employ from days after the date of this Decision and Order until the occur- rence of the earliest of the following conditions: (1) We have indicated that orders are appropriate means of re- medying of the type involved herein, even where such violations are unaccompanied by a discriminatory shutdown of oper- ations. Cf. Royal Plating and Polishing Co.. 148 NLRB 545, 548 (1964). and cases cited therein. BURGMEYE .R date commc:nce bargair~ wcluld operations, ernployment &curs have e m p l ~ y . ~ manner FIorida NL;RB Isir 13 Heatijzg fu;.ther Respondtmt no Re:%pondent l qc ) Act, Burgmeyei- officers, Brot.'lerhood Tmnsrncrrinr Navi~ution Corwrgtion, sunro. Ma.rufacruring Inc., and While C o m p ny. I106 (1968). afirmative resnit "Appendi~"'~ ( f ) ' O BROS., INC. 1029 the Respondent bargains to agreement with the Union on those subjects pertaining to the ef- fects of the closing of Respondent's operations on its employees; (2) a bona fide impasse in bargain- ing; (3) the failure of the Union to request bargain- ing within 5 days of this Decision and Order, or to negotiations within 5 days of Respon- dent's notice of its desire to bargain with the Union; or (4) the subsequent failure of the Union to in good faith; but in no event shall the sum to any of these employees exceed the amount he or she have earned as wages from December 11, 1979, the date on which Respondent terminated its to the time he or she secured equiv- alent elsewhere, or the date on which Respondent shall have offered to bargain, whichev- er sooner; provided, however, that in no event shall this sum be less than these employees would earned for a 2-week period at the rate of their normal wages when last in Respondent's Interest on all such sums shall be paid in the prescribed in Steel or-ration, 231 651 (1977). See, generally, Plumbing Co., 138 NLRB 716 (1962). To effectuate the policies of the Act, Re- sponden t shall be required to establish a preferen- tial hiring list of all terminated unit employees fol- lowing the system of seniority provided for in the collective-bargaining agreement and, if Respondent ever resumes operations anywhere in the Cornwells Heights, Pennsylvania, area, it shall be required to offer these employees reinstatement. If, however, were to resume its Cornwells Heights operation, Respondent shall be required to offer unit employees reinstatement to their former or substantially equivalent positions. Furtheirnore, in view of the fact that Respon- dent is longer in operation and its former em- ployees rnay be in different locations, we shall order o mail each of its employees employed on the date it ceased operations copies of the attached notice signed by Respondent. ORDER Pursuant to Section of the National Labor Relations as amended, the National Labor Re- lations Board hereby orders that the Respondent, Bros., Inc., Cornwells Heights, Penn- sylvania, its agents, successors, and assigns, shall: 1. Cease and desist from refusing to bargain with Local Union No. 701, affiliated with the Interna- tional of Teamsters, Chauffeurs, War- e Drapery Co.. American Goods 170 NLRB ehousemen and Helpers of America, with respect to the effect on its employees of its decision to close its operation. 2. Take the following action which the Board finds will effectuate the policies of the Act: (a) Pay the terminated employees their normal wages for the period set forth in the remedy sec- tion of this Decision and Order. (b) Upon request, bargain collectively with the above-named labor organization with respect to the effects on its employees of its decision to terminate its operations and reduce to writing any agreement reached as a of such bargaining. (c) Establish a preferential hiring list of all em- ployees in the appropriate unit, following the system of seniority provided for under the collec- tive-bargaining contract with the Union and, if op- erations are ever resumed anywhere in the Corn- wells Heights, Pennsylvania, area, offer reinstate- ment to those employees. If, however, Respondent were to resume its operations at the Cornwells Heights facility, it shall offer all those in the appro- priate unit reinstatement to their former or substan- tially equivalent positions. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payments, timecards, personnel records and reports, and all other records necessary or useful in checking com- pliance with this Order. (e) Mail a copy of the attached notice marked to each employee in the appropriate unit who was employed by Respondent at its Corn- wells Heights facility immediately prior to Respon- dent's cessation of operations on December 11, 1979. Copies of said notice, on forms provided by the Regional Director for Region 4, after being duly signed by Respondent's authorized representa- tive, shall be mailed immediately upon receipt thereof, as hereinabove directed. Notify the Regional Director for Region 4, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. In the event that this Order is enforced by a Judgment o f a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." NOTICE TO POSTED ORDER RELATIONS dockmen Conwells DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX EMPLOYEES BY OF THE NATIONAL LABOR BOARD An Agency of the United States Government WE WILL, upon request, bargain collectively with Local Union No. 701, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, concerning the effects of our deci- sion to close our Cornwells Heights, Pennsyl- vania, facility on employees who were em- ployed there, and will reduce to writing any agreement reached as a result of such bargain- ing. WE WILL pay the employees who were em- ployed at the above facility their normal wages for a period required by a Decision and Order of the National Labor Relations Board. WE WILL establish a preferential hiring list of all terminated employees in the bargaining unit, which is made up of all local drivers and employed by us at the above facility, following the seniority system provided for in the collective-bargaining agreement with the Union and, if we resume operations anywhere in the Cornwells Heights area, we shall offer these employees reinstatement. If, however, we resume our operations at the Heights facility, said unit employees shall be offered reinstatement to their former or sub- stantially equivalent positions. Copy with citationCopy as parenthetical citation