Burgmeyer Bros., Inc.

National Labor Relations Board - Board Decisions

Feb 27, 1981

254 N.L.R.B. 1027 (N.L.R.B. 1981)

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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.