J-B Enterprises, Inc.

National Labor Relations Board - Board Decisions

Aug 10, 1978

237 N.L.R.B. 383 (N.L.R.B. 1978)

J-B ENTERPRISES, INC.
J-B Enterprises, Inc. and Teamsters Local Union No.
688, affiliated with International Brotherhood of
Teamsters, Chauffeurs. Warehousemen and
Helpers of America. Case 14 CA 10788
August 10, 1978
DECISION AND ORDER
BY CHAIRMAN FANNIN(G AND MlMBI-RS J[NKINS
ANI) MI RPtHY
On April 12. 1978, Administrative Law Judge Wal-
ter H. Maloney, Jr.. issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
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.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings. findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order,' as modified herein.
The Remedy
We agree with the Administrative Law Judge's
finding that Respondent violated Section 8(a)(5) and
(1) of the Act by failing to notify the Union of its
decision to go out of business and by failing and
refusing to bargain with the Union over the effects of
that decision upon employees. We also agree. in ac-
cordance with a long line of decisions,2 that a back-
pay remedy is appropriate here in order to restore
some measure of economic strength to the Union so
that meaningful bargaining can take place with Re-
spondent over the closure's effects upon discharged
employees.
Contrary to the Administrative Law Judge, espe-
cially noting the absence of an 8(a)(5) allegation re-
garding Respondent's actual decision to close and
the Administrative Law Judge's presumption, based
upon lack of an 8(a)(3) allegation, that the decision
to close was dictated solely by economic considera-
tions, we see no justification to direct that backpay
Respondent's motion t[o reopen the record and its request for oral argu-
ment are hereby denied inasmuch as the record. exceptions. and hrief ade-
quatels set foirth the issues and the parties' positons
See. eg. I on's PacAing Plant, 211 NL.RB 692 (1974) 4utoIma(oi, n Iilt
tule of 1t.o Angeles. Inc, d h a Ilrei't ( oal Sch th, 20)8 N LRB 727 728
(1974)1 Halter Pap,> In(, 205 NI RB 719. 72(1 721 (1971): In ter ,tie 1;-
Co, In., 177 NI.RB 686. 687 (19h9)b rllnmarairic Nlitzil ( rrrlptrtlton .
170 Nt.RB 389 19)( 1968): Rioli Plarilng and Pihine ( ,. Is, [ Ih) N[ RB
990. 996 99 ( 19h66
begin from October 12. 1977. the date of the employ-
ees discharges. rather than from the date of the
Board Order. In order to effectuate the purposes of
the Act, we shall accompany our Order to bargain
over the effects of the closure with a limited backpaN
requirement designed both to make whole the em-
ploNees for losses suffered as a result of the violation
aind to recreate in some practicable manner a situa-
tion in which the parties' bargaining position is not
entirely devoid of economic consequences for Re-
spondent. We shall do so in this case by requiring
Respondent to pay employees backpay, at the rate of
their normal wages when last in Respondent's em-
ploy, from the date of this Decision and Order until
the occurrence of the earliest of the following condi-
tions: ( I ) the date Respondent bargains to agreement
with the Union on those subjects pertaining to the
effects of the shutdown on unit employees; (2) a
bona fide impasse in bargaining: (3) the Union's fail-
ure to request bargaining within 5 days of this
Decision's issuance or to commence negotiations
within 5 days of Respondent's notice of its desire to
bargain with the Union: or (4) the Union's subse-
quent failure to bargain in good faith: but in no
event shall the sum paid to anF of these emplosees
exceed the amount he would have earned as wages
from October 12. 1977. the date on which unit em-
ployees were discharged. to the time he secured
equivalent employment elsewhere, or the date on
which Respondent shall have offered to bargain.whilch-
ever occurs sooner; provided. hoever,. that in no event
shall this sum be less than the amount these emplo e e s
w ould have earned for a 2-week period at the rate if
their normal wages when last in Respondent's emplo\.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act. as amended. the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge. as modified
herein. and hereby orders that the Respondent. J-B
Enterprises. Inc.. St. Louis, Missouri. its officers.
agents, successors, and assigns. shall take the action
set forth in the said recommended Order. as so modi-
fied:
1. Substitute the following for paragraph 2(b):
"(b) PaN the terminated employees their normal
In the remnzed scitn or f his re.inmmended Deciion, the Administratie
I .a; JIudL!, 11,.icrtcl i', iilttred referenee to sis P/la .ihin5 A l lfo ii
I 1 NI R-B 1t( i f.., or the r:itionmlle on interest paNment,
237 NLRB No. 55
383
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wages for the period set forth in the remedy section
of the Board's Decision."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NovicE To EMPI.OYr ii s
PosIED BY ORDER OF litH
NATIoNAI LABOR RI.AIIONS BOARD
An Agency of the United States Government
WE WIt.L. NOT coercively interrogate employees
concerning their union activities or the union ac-
tivities of other employees.
WEI Wl 1. NOT offer increases in wages or fringe
benefits in order to induce our employees to re-
ject a union as their bargaining agent.
Wet Wl.L. NOT threaten to close or discontinue
the business in the event that employees select a
union as their bargaining agent.
WE WIL.L NOT solicit grievances from our em-
ployees.
WI[ WILL NOT by an), other means interfere
with, restrain, or coerce employees in the exer-
cise of rights guaranteed to them by Section 7 of
the Act. These rights include the right to form,
join, or assist labor organizations, to bargain
collectively through representatives of their own
choosing, and to engage in other concerted ac-
tivities for their mutual aid and protection.
Wt WILL recognize and bargain with the
above-named labor organization concerning the
effects of plant closing upon our employees,
and, if an agreement is reached, we will reduce
that agreement to writing.
WE- wit. place all employees who were dis-
charged on or about October 12, 1977, on a pref-
erential hiring list and, in the event we resume
any of the operations which were discontinued
on that date, WE W'i.t. offer to said employees full
reinstatement to their former or substantially
equivalent employment.
WF WI.i pay the employees who were em-
ployed at the St. Louis plant their normal wages
for a period required by the National Labor Re-
lations Board's Decision and Order in this pro-
ceeding.
All of our employees are free to become or remain
members of Teamsters Local Union No. 688, affiliat-
ed with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
or an)y other labor organization.
J-B ENTERPRISES. INC.
DECISION
FINDINGS OF FACT
I STrAlEN1EN OF tHL (ASE
WAI.L.TR 1 MAI.ONEY. JR. Administrative Law Judge.
This case came on for hearing before me in St. Louis, Mis-
souri, upon an unfair labor practice complaint ' issued by
the Regional Director for Region 14, which alleges that the
Respondent, J-B Enterprises, Inc.,2 coercively interrogated
employees concerning their union activities and the union
activities of other employees, threatened to discharge em-
ploy.ees because of their union activities, threatened to
close the business if the Union won a representation elec-
tion, impliedly solicited grievances from employees, and
promised benefits to employees if they would reject the
Union. The complaint also alleges that after the Respon-
dent closed its plant on the day of the representation elec-
tion and discharged its employees, it violated its duty to
bargain with the Union in good faith, as it failed to notify
the Union that it had decided to close the business and
refused to bargain with the Union concerning the effects
upon employees of closing the business. The Respondent
denies that Joseph Strebler, who allegedly made some of
the above-recited threats and interrogations, is a supervisor
within the meaning of the Act, and also denies that he
threatened and interrogated employees. Respondent claims
that other statements which constituted the basis of an
8(a)(I) charge were mere predictions of economic conse-
quences that would occur if unionization took place, and
that the Respondent was under no obligation to bargain
with the Union because it had never received a demand for
bargaining. Upon these contentions, the issues herein were
drawn.
11 liHE LNFAIR LABOR PRACTI(CES ALLEGED
The Respondent is a small, closely held family corpora-
tion which, until the events in this case transpired, operated
a vending machine business in St. Louis. It owned vending
machines which were placed in offices, factories, and stores
The principal docket entries in this case are as follows: Charge filed
herein by Teamsters, Chauffeurs. Warehousemen and Helpers of America
(herein called Union) on October 12, 1977. and amended charge filed herein
on November 29. 1977: complaint issued by the Regional Director for Re-
gin 14. on November 29. 1977: no answer appears in the record in this case
although reference to an answer appears in the transcript: hearing held on
D)ecember 20, 1977. in St. Louis. Missouri: briefs filed herein by General
Counsel and Respondenlt on or before January 23. 1978 In a companion
representation case 114 RC-8551), a representation election was held on
October 12. 1977. among certain of the Respondent's employees, The Union
wsas certified as their bargaining agent on October 21. 1977.
Respondent admils and I find. that it is a Missouri corporation which
maintains its principal place of business in St. Louis. Missouri. where it is
engaged in the retail operation of vending machines During the year pre-
ceding October 1. 1977. a representative period, the Respondent derived
gross revenues from this business in excess of $500.000 and purchased at its
St Louis. Missouri, place of business directly from points and places outside
the State of Missouri goods valued in excess of S50.000. Accordingly. Re-
spondent is an employer engaged in commerce within the meaning of Sec.
2(2) (6) and (7) of the Act. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
384
J-B ENTERPRISES, INC
throughout the St. Louis area and which were stocked and
maintained by about seven route drivers and mechanics.
The Company was started in 1966 by Joseph Strebler. who
"built it from nothing." Joseph 3 went into retirement, or
more accurately semiretirement, and turned the active
management of at least some aspects of the business over
to his sons, Steven and Michael Strebler. Respondent ad-
mits that Steven and Michael are supervisors but claims
that their father no longer holds such status.
Early in August 1977. Respondent's drivers and mechanics
went to the Union hall in a group and spoke with Union
Organizer William Schneider. They sought the U nion's assis-
tance in organizing the Respondent's employees. Several, if
not all of them, signed Union authorization cards. A represen-
tation petition was filed shortly thereafter and an election was
held on October 12. The Respondent refused to permit the
election to take place on its premises, so the balloting was
conducted a few blocks away on the premises of St. Louis
University. The Union won the election unanimously.
A few weeks before the election, on September 21. Steven.
the Treasurer of the corporation, called the drivers and
mechanics into his office for an unusual group meeting. As
the meeting began, Steven asked the assembled employees
not to talk about the meeting with anyone else, stating that
he could get into trouble if they did. He showed the men
what he indicated were Company books and explained
that, since the first of the year, the Respondent had lost
$29,000.4 He told the employees that if the Union came
into the plant, the Company would fire everyone and sell
the business. He reminded them that they did not have
college educations, whereas he and his brother did, so they
would find it difficult to get other jobs. Steven then went
on to say that if the men did not vote for the Union, he
would raise wages by $15 a week and grant sick leave and
paid holidays, hospitalization, and time and one-half for
Saturday work.5
At or about this same point in time, Gary Hively. a route
driver for the Respondent, had a conversation about the
Union with Joseph in the company office. Joseph asked
Hively who started "this union deal" and Hively replied
that no one in particular started it. He said that the men
had decided as a group to join. Joseph then expressed the
opinion that another driver, David Sgroi, started the union
effort and expressed the further opinion that Sgroi's father
may have had something to do with the organizing drive.
He said that if he found out for sure that Sgroi (Jr.) was
involved, he would fire him "quicker than he could bat an
eye."
One afternoon, Joseph had a similar conversation in-
volving the Union with Richard Knorr, another route
driver. He asked Knorr what had taken place at a union
3In order to avoid confusion and unnecessars repetition. I will refer
herein to the members of the Strebier family solely by their first name,
4These books were not produced in the curse iof the trial of th, disc .e lid
are not in evidence.
Steven admits that this meeting took place and that these impro.ementets
in wages and benefits were mentioned llowever. he sta;les Ihatl her Aere
merely mentioned by him in the context of heing "negotiable" after the
meeting. Knorr professed ignorance of any union meeting.
Joseph replied that Knorr had better not know anything
about it. He also told Knorr that he thought Sgroi was an
instigator of the union effort and said that he would
straighten out the instigators and get rid of Sgroi. He stated
further that Knorr had better not be lying about not going
to a union meeting or it would cost him his job. Joseph had
a third conversation with Guy Thompson, another employ-
ee. about the same subject. The conversation took place
just outside Joseph's office. He told Thompson that if Sgroi
didn't knock off the talk about unionization, he was going
to fire him. Joseph denies all of these conversations. I
credit Hivels. Knorr. and Thompson.
As noted before, the representation election was held on
October 12 in a building on the St. Louis University cam-
pus. The Union was unanimously selected as bargaining
agent. On the same day. shortly after the results of the
election became known, the Respondent discharged all of
its drivers and mechanics and concluded pending arrange-
ments to dispose of all of its vending machines. On Octo-
ber 21. the Union received a certification that it was the
bargaining agent in the driver-mechanic unit.
While there is more than a suggestion in the pleadings
and in the record that the Respondent closed its business
on October 12. record testimony indicates that there has
been only a partial or limited closing. As a corporation, the
Respondent still exists. It had not been dissolved nor had it
gone into receivership or bankruptcy. Oral agreements
with close associates in the vending machine business were
concluded whereb' these vendees would purchase and
stock the vending machines owned by the Respondent.
However, no contract of sale has vet been consummated in
writing, While stickers indicating ownership by other com-
panies have been placed on most machines, some machines
still retain the J-B Enterprises' sticker, and customers still
call J-B Enterprises for maintenance. Since October 12.
Steven and Michael have continued to perform mainte-
nance on those machines and. pursuant to agreement. have
repaired machines bearing the labels of their vendees on
occasions when the vendees have requested them to do so.
Respondent has notified its bank that it has gone out of the
vending machine business but has told the bank that it
might engage in some other business at a future time. Ste-
ven made this same statement in his testimony when a
question was posed to him as to whether J-B Enterprises
might start up again in some other line of endeavor. Re-
spondent owns nine trucks which are now being used by
the drivers employed by its vendees to service the machines
which were sold. Respondent still retains title to these
trucks and is leasing them to the vendees of the machines.
Respondent still maintains an office at 711 Pine Street
and retains its office lease. its office equipment, about 40)-
45 used vending machines, and a limited supply of com-
modities used for stocking machines. It still has a payroll
and is paying salaries to Steven. Michael, an office em-
ployee. and a guard. It also continues to pay Joseph's pen-
sion. Respondent still owns company cars which are being
utilized, as in the past, by company officers.
election lie did not sa, with Whom the! 'would he rnep.iihabl I iredi! the
corrobhorated sersionns reliled ahboe
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11 ANALYSIS AND (ONCLUSIONS
A. Jurisdiction of the Board
Respondent's first line of defense is that the Board has
no jurisdiction to proceed in this case because the unfair
labor practice complaint which was issued exceeds the
scope of the charge filed by the Union. The Eighth Circuit
had occasion to pass on the merits of a similar contention
in N.L.R.B. v. Louisiana Manufacturing Company, 374 F.2d
696, 705-705 (1967). when it said:
Of course, there are limits to which the Board mav
expand the scope of the litigation outside of the allega-
tions in the charge. However, technical wording of the
charge is not required. The charge will normally he
"sufficient if it informs the alleged violator of the gen-
eral nature of the violation charged against him and
enables him to preserve the evidence relating to the
matter." N.L.R.B. v. RaVnmond Pearson, Inc., 243 F1.2d
456, 458 (4 Cir. 1957) .... And, as generally noted in
N.L.R.B, v. Kohler Companv, 220 F.2d 3. 6 (7 Cir.
1955): "It has been said repeatedly that the charge is
not a pleading, being intended, rather. as an adminis-
trative step necessary to set the Board's investigatory
process in motion. The charge should, therefore, be
construed broadly so as to allow any specific allega-
tions in the complaint that are of 'the same general
nature.' "
The Seventh Circuit decision in Kohler, cited with approval
supra, contains the following additional pertinent language
not repeated in Louisiana Manufacturing Company, which
holds that the General Counsel may issue a complaint un-
less it is (220 F.2d at 7):
. . .so completely outside of the situation which gave
rise to the charge that it may be said to be initiating
the proceeding on its own motion.
The court also stated (220 F.2d at 7):
To hold that the Board cannot include anything in a
complaint that the respondent was not given notice of
in a charge would greatly reduce the usefulness of the
Board's investigatory function. A major reason for
having the General Counsel of the Board take over
and try the charging parties' case is to make it possible
for single employees to enforce their rights in an area
where that takes considerable money and experience.
The courts should not defeat this purpose by insisting
that the failure of the charging party to initially de-
scribe in detail all the separate alleged unfair labor
practices shall limit the issues to be alleged in the com-
plaint and tried by the Board.
In the instant case, section I (h) of the amended charge
filed by the Union herein alleges that the Respondent in
this case violated Section 8(a)(l) and (5) of the Act. The
printed language on the charge form in question goes on to
require the Charging Party to set forth the basis of the
charge. When tested by the broad guidelines set forth in
the above-questioned decisions, I conclude that the
amended charge on file was broad enough to permit the
General Counsel to issue a complaint alleging any unlaw-
ful conduct on the part of the Respondent within the 10(b)
period which came to light in the course of the investiga-
tion and which contravenes either section of the Act re-
ferred to in section l(h) of the charge. Since the complaint
herein does not go beyond allegations that the Respondent
violated Section 8(a)(1) and (5) of the Act. I conclude that
the charge is sufficiently broad to support the complaint
which was issued.
B. The Supervisory Status of Joseph Strebler
Joseph was the founder of Respondent corporation. As
the business grew and he grew older, he turned over more
and more of the operation to his two sons. At the time of
the events here in question, he held the title of assistant
treasurer but was neither a stockholder nor a director. Jo-
seph continued to come to work every day and worked
from 4 to 8 hours. He regularly gave instructions to drivers
and mechanics concerning the runs they were to make. He
signed all checks for the business other than payroll
checks. He did most of the purchasing for the corporation
and was regularly engaged in "beating people down on
prices." He claims that he did everything around the office
from sweeping the floor to going to the bank. He admits
that he hired and fired employees upon suggestion from his
sons. and that he made recommendations to them on such
business matters as major purchases or the hiring of per-
sonnel. These facts, most of which are admitted in Joseph's
testimony, are sufficient to establish that Joseph regularly
hired and fired employees and directed them in their work.
Accordingly, he was a supervisor within the meaning of
Section 2(1 1) of the Act, for whose acts and statements the
Respondent is vicariously responsible.
C. The Indepedent Violations of Section 8(a)(l) of the Act
While an employer has an absolute right to close his
business completely, even for antiunion motives, it has no
right to engage in a partial closing of its business for such
reasons. Textile Workers of America v. Darlington Manufac-
turing Co. et al., 380 U.S. 263 (1965). Moreover, the right to
go out of business for antiunion reasons does not extend to
the uttering of threats to go out of business if a union
prevails in a representation election. The Supreme Court
noted in Darlington (380 U.S. at 274, fn. 20):
Nothing we have said in this opinion would justify
an employer's interfering with employee organiza-
tional activities by threatening to close his plant, as
distinguished from announcing a decision to close al-
readN reached by the board of directors or other man-
agement authority empowered to make such a deci-
sion.
On this point, the Eighth Circuit recently stated in Chemvet
Laboratories, Inc. v. N.L.R.B., 497 F.2d 445, 448 (1974):
A threat to close the plant, when made in the con-
text of the union organization of the employees, has
long been recognized as one of the most potent instru-
ments of employer interference with the right of em-
386
J-B ENTERPRISES. INC.
ployees to organize under the National Labor Rela-
tions Act. See N... R.B. v. Gissel Packing Co., 395 U .S.
575, 618-620 [(1969)].
In this case. Steven flatly told his employees that if the
Union won, the Company would close the plant. While
arguing that this was a prediction of consequences based
upon objective facts and therefore not a threat, it is clear
that the Respondent had not made a firm decision to close
on September 21 when this statement was made nor was a
firm decision being announced to employees on that occa-
sion. Moreover, the argument that economic necessity and
not union animus dictated the announcement does not
stand up under scrutiny because, at the same time Steven
was saying the business would close if the Union came in.
he was offering substantial increases in wages and benefits
to persuade employees to reject unionization. The asserted.
and unproved, allegation that the Company had lost
$29,000 since January I did not prevent Steven from pro-
viding employees with inducements to reject unionization
which would add substantially to its cost of operation. Ac-
cordingly, I conclude that, when Steven threatened to close
the plant if the employees voted for the Union, he made a
serious threat. which violates Section 8(a)(1) of the Act.
Components, Inc., 197 NLRB 163 (1972); Jimmy-Richard
Co., Inc., 210 NLRB 802 (1974): James Innaco, d b a SkX-
line Transport, 228 NLRB 352 (1977). Moreover. the finan-
cial inducements in the form of wage increases, hospitaliza-
tion. sick leave, paid holidays, and time and one-half for
Saturday work which Steven offered to employees on the
occasion of the group meeting is itself a promise of benefits
and a classic violation of Section 81a)(I). N.L.R.B. v. Ex-
change Parts, Co., 375 U.S. 405 (1964). When, on that same
occasion, Steven asked employees what the Union could
do for them that the Company could not, or words to that
effect, he was impliedly soliciting grievances or making a
promise of benefit in violation of Section 8(a)( 1) of the Act.
The statements made by Joseph to Hively, Thompson.
and Knorr, recited above, amount to coercive interroga-
tions of employees concerning their union activities and
the union activities of other employees. These interroga-
tions were, in some instances, coupled with threats to dis-
charge a union adherent or suspected union adherents.
Such threats also constitute violations of Section 8(a)( ) of
the Act.
D. The Violation of Section 8(a)(5) of the Act
The General Counsel does not claim that the discontin-
uance of the business by the Respondent on October 12.
after the results of the balloting became known, constitutes
a violation of the Act. Nor does he claim that the discharge
of employees following this decision is illegal. Despite the
peculiar circumstances surrounding these events, there is
nothing in the complaint which alleges that a violation of
Section 8(a)3) took place, so I will presume, without decid-
ing, that the decision of the Respondent to close or wind
down its business and to discharge its mechanics and route
drivers was a lawful business decision dictated solely by
economic considerations. It does not follow from these fac-
tual premises, however. that the respondent acted in a law-
ful manner in taking these actions.
On October 12. the bargaining unit employees unani-
mously selected the Union as their bargaining agent. The
Respondent was aware of this determination when it
closed or discontinued the business. The Union was later
certified after the lapse of a period required by the Board's
regulation for the filing of objections to the conduct of the
election. Apparently no objections were filed. The grava-
men of the General Counsel's first 8(a)(5) allegation is that
the Respondent failed to inform the bargaining agent of its
decision to close and failed to afford the bargaining agent
an opportunity to bargain with it about the effects of the
shutdown upon employees. The factual basis for this alle-
gation is undisputed. The Respondent never contacted the
Union about this or any other subject. It simply finalized
its decision to close within hours, if not minutes. after
learning of the election results, without giving the Union
notice of anything.
It is well settled that an employer has an obligation un-
der Section 8(a)(5) of the Act to bargain with a union con-
cerning the effects of a cessation of business. even if the
cessation of business is motivated by lawful economic con-
siderations. L R.B. v. Esti Veiderman and GCiela Eisner
indii idualli and as co-partners d h a Star Baby (Co., 334
F.2d 601 (C.A. 2, 1964). See also Summit Tooling Company
and .4ce 7Tool Engineering Co., Inc., et al., 195 NLRB 479
(1972); Red Cross Drug Companyl ,, 174 NLRB 85 1969).
Thomp.son Transport Conlpanv, Inhc.. 184 NLRB 38 (1970):
Part of the obligation to bargain over the effects of plant
closing includes an affirmative obligation on the part of an
employer to notify the bargaining agent that the closure
will take place. M.artin Mariietta Corporation, United Brick
Division, and Acme Brick Company. 159 NLRB 905 (1966);
Ozark Trailer, Incorporated andor Hutco Equipment Conm-
pamny and'or Mobilefreeze Compani,, Inc.. 161 NLRB 561
(1966): Walter Pape Inc., 205 NIRB 719(1973): Thompson
Transport Conipaln Inc., 165 NLRB 746 (1967). A threat to
employees that it will close the plant in the event of union-
ization is not the equivalent of actual notice to the Union
that a decision to close has in fact been made. The reason
for this requirement is obvious-a union cannot act to pro-
tect its members from the economic impact of plant closure
if it does not know that plant is going to close. Here the
Respondent presented both the Union and its employees
with a fait acconili. By the time they' learned that the em-
ployer had in fact decided to terminate the business (if that
is what it did)., the employees were discharged and the
vending machines had been sold. Acting so precipitously
that a union cannot act before the event occurs which gives
nse to a bargainable situation is inconsistent with a duty to
bargain in good faith. This duty devolved upon the Re-
spondent as soon as it had objective reason to believe that
the Union represented a majority of its employees, despite
the absence on October 12 of a formal certification. Lbnev
& Duke Storage Warehouse Co., Inc.. et a/l. 151 NL RB 248
(1965). Accordingly, by failing to notify the Union in a
timely fashion that it had decided to go out of business,
thereby preventing the Union from exercising its statutory
responsibility to bargain on behalf of unit employees re-
specting the effects of plant closure, the Respondent herein
violated Section 8)a)(1) and Is) of the Act.
387
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint also alleges that the Respondent violated
the Act by failing and refusing to bargain with the Union
over the effects of plant closure. The underlying fact which
supports this allegation is also undisputed. At no time has
the Respondent ever met and discussed with the Union
either the effects of plant closure or, for that matter, any
other subject. Respondent's defense to this allegation is
twofold: the Union never requested it to bargain over this
subject and, since the business is closed and the employees
have been discharged, there is really nothing left to bargain
about. As the above discussion indicates, the Respondent
acted in a manner designed to prevent the Union from
bargaining over the effects of plant closure as soon as it
learned that the Union had become the bargaining agent.
Under such circumstances, a demand upon the employer
by the Union to bargain would have been an act of sheer
futility. The Act does not impose upon bargaining agents
or anyone else the obligation to perform empty and mean-
ingless rituals in order to preserve their rights. Skyline
Transport, supra; Stagg Zipper Corp., as Successor to Stagg
Tool & Die Corp., Bosch Wire Co., Inc., and Slide Fastener
Tape Co., Inc., 222 NLRB 1249 (1976). The fact that the
employer in this case has been successful in achieving the
desired results of its bad-faith conduct is not a defense to
an unfair labor practice complaint. Many of the cases deal-
ing with the obligation to bargain over the effects of plant
closing involve situations where the plant in question has
been closed for many months before bargaining commenc-
es.6 This situation has prompted the Board to order special
remedies to rectify, as far as possible, the disparity in bar-
gaining strength which necessarily results from such mis-
conduct. This question will be discussed, infra, in the sec-
tion herein on remedy. But the fact that the Respondent's
unlawful act has dissipated the Union's bargaining
strength cannot serve to dissipate its basic obligation to
bargain. Having failed to bargain with the Union over the
effects of plant closing and having perpetrated a series of
acts designed, at least in part, to avoid this obligation, the
Respondent herein violated Section 8(a)(l) and (5) of the
Act. I so find and conclude.
Upon the foregoing findings of fact, and upon the entire
record herein considered as a whole, I make the following:
CONCLUSIONS OF LAWV
1. Respondent, J-B Enterprises, Inc., at all times mate-
rial herein has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Teamsters Local Union No. 688, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All route drivers and mechanics employed by the Re-
spondent at its St. Louis, Missouri, facility, excluding office
clerical employees, professional employees, guards, and
supervisors as defined in the Act, and excluding all other
employees, constitute a unit appropriate for collective bar-
gaining within the meaning of Section 9(b) of the Act.
Stagg Zipper, upra,. Thompson 7Transport, supra, Roral Plaring and Pol-
ishing Co., Inc.. 160 NLRB 990 (1966).
4. Since October 12, 1977, Teamsters Local Union No.
688, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
has been the exclusive collective-bargaining representative
of all employees employed in the unit found appropriate in
Conclusion of Law 3, above, for the purpose of collective
bargaining, within the meaning of Section 9(a) of the Act.
5. By failing and refusing to notify the above-referenced
bargaining representative that it was closing its business,
and by failing and refusing to bargain with the said bar-
gaining agent over the effects upon employees of closing
the Respondent's business, the Respondent herein violated
Section 8(a)(5) of the Act.
6. By the acts and conduct set forth in Conclusion of
Law 5, above: by coercively interrogating employees con-
cerning their union activities and the union activities of
other employees: by threatening employees with discharge
and closing of the business if they engaged in union activi-
ties or selected the bargaining agent herein as their repre-
sentative; by promising to raise wages and to grant various
fringe benefits to employees if they rejected the above-ref-
erenced Union as their bargaining agent; and by soliciting
grievances from employees, the Respondent herein vio-
lated Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices have a close, inti-
mate, and substantial effect on the free flow of commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent herein has commit-
ted certain unfair labor practices, I will recommend that it
be ordered to cease and desist therefrom and to take other
affirmative actions designed to effectuate the purposes and
policies of the Act. Since violations of Section 8(a)(1) of the
Act which have been found in this case are repeated and
flagrant, and since they evidence a continuing and de-
termined disposition by the Respondent to violate the Act,
I will recommend a so-called broad order designed to sup-
press any and all violations of Section 8(a)(l). In order to
remedy the violations of Section 8(a)(5) which have been
found herein, I will recommend that the Respondent be
required to recognize and bargain with the Union concern-
ing the effects of plant closure upon bargaining unit mem-
bers and about wages, hours, and terms and conditions of
employment if the Respondent should resume its opera-
tions.
The General Counsel requests that tha Respondent be
required to place all employees discharged on October 12,
1977, on a preferential hiring list and that they be rehired
pursuant to this list in the event the Respondent resumes
its vending machine operations. I will so recommend. The
General Counsel also requests a backpay remedy. Since
Royal Plating, supra, a line of Board cases, most of which
have been cited in the analysis section of this Decision,
have held backpay, within certain limitations, to be an ap-
propriate remedy in refusal-to-bargain cases involving
plant closing and the effects thereof upon discharged em-
ployees. The theory which has been articulated in support
of this remedy is that a plant closing has the effect of dissi-
pating a union's bargaining strength. Hence, where an un-
388
I-B ENTERPRISES. INC.
fair labor practice has occurred in conjunction with a plant
closing, such as a refusal to notify a bargaining representa-
tive of a refusal to bargain over the effects of closing. the
dissipation of bargaining strength is caused, either in whole
or in part, by the wrongful act of the employer. While it is.
as a practical matter, not possible months after employees
have been discharged to restore the status quo in its en-
tiret\. a backpay remedy serves, at least in some measure.
to place the union in a better position to deal effectively
with an employer in its effort to alleviate the economic
impact of closing upon discharged employees. Thus. the
Board has ordered backpay, at the rate of an emplosee's
normal wages when last employed, from the date of the
Board's order until the respondent bargains to agreement
with a union on the subjects pertaining to the effect upon
employees of the closing of the plant or to a bona fide
impasse. if such bargaining has occurred. The remeds nor-
mally excuses the respondent from backpay upon the fail-
ure of the union to request bargaining within 5 das of a
decision or if the union bargains in bad faith in the course
of negotiations over the effects of plant closing. Backpa\ in
such situations normally terminates when a discharged em-
ployee obtains regular and equivalent employment else-
where. A backpay remedy for an 8(a)(5) violation has been
given judicial approval in A'.L.R.B. v. Draperv Afanifiltur-
ing Co. Inc., and American White Goods Compani, 425 f.2d
1026 (C.A. 8, 1970).
In some instances, backpay has been ordered to begin
from the date of discharge, as in a discrimination case.
rather than from the date of the Board order. Draper,
Manufacturing Companr, supra. The complaint requests
such an order in this case. Because of the flagrant nature of
the violation herein. I am disposed to honor this request.
Accordingly. I will recommend to the Board that it direct
the Respondent to pay to each employee discharged on
October 12, 1977, backpay in the amounts they were earn-
ing at the time of their discharges. which shall run until the
Respondent has reached an agreement with the Union
concerning the effects of the shutdown or has bargained to
impasse with the Union over this subject, provided the
Union bargains in good faith with the Respondent over
this subject. Having found that the Union was excused
from making a formal demand to bargain on the Respon-
dent because of the latter's obdurate conduct, I will not
require that it make a formal request to bargain as part of
the backpay remedy. Backpay will be tolled as to each em-
ployee on the date when he obtains, or has obtained, regu-
lar and substantially equivalent employment. Like all
backpay awards, it should be computed in accordance with
the Woolworth formula] with interest thereon at the ad-
justed prime rate used by the Internal Revenue Service for
tax payments. Florida Steel Corporation. 231 NLRB 651
(1977). 1 will also recommend that the Respondent post
and mail to each of its discharged employees copies of the
attached notice, informing employees of their rights and of
the remedy in this case.
Upon the foregoing findings of fact, conclusions of law,
and the entire record herein considered as a whole, and
F W i4oolw/orth ('Cnipani. 90 Nt.RB 289 ( 1950)
pursuant to Section 10(c) of the Act, I make the following
recommended:
ORDER
'Ihe Respondent. J-B Enterprises. Inc.. St. Louis. Mis-
souri, its officers. agents. successors. and assigns, shall:
1. ('ease and desist from:
(a) Refusing to recognize and bargain with Teamsters
Local Uinion No. 688. affiliated with the International
Brotherhood of Teamsters. Chauffeurs. Warehousemen
and Helpers of America, as the duly certified collective-
bargaining representative of all of the Respondent's route
drivers a.nd mechanics, exclusive of office clerical employ-
ees. professional emploees. guards and supervisors as de-
fined in the Act.
(b) Coercivels interrogating employees concerning their
union activities and the union activities of other employees.
(c) Offering to employees wage increases and fringe
benefits to persuade them to reject the Union as their bar-
gaining agent.
(d) Threatening to close the business if the Union is se-
lected as bargaining agent.
(e) Soliciting grievances from employees.
(d) B, any other means interfering with, restraining. or
coercing emploees in the exercise of rights guaranteed to
them bh Section 7 of the .Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes and policies of the Act:
(a) Bargain collectively with Teamsters l.ocal Union
No. 688. affiliated with the International Brotherhood of
Teamsters. ('hauffeurs, Warehousemen and Helpers of
America. with respect to the effects upon its employees of
its decision to discontinue its business, and reduce to writ-
ing an) agreement reached as a result of such bargaining.
(b) PaN to employees who were discharged on or about
October 12. 1977. their normal wages for the period set
forth in the section of this Decision entitled "The Rem-
eds." with interest thereon.
(c) Place the names of each of the employees discharged
on or about October 12. 1977, on a preferential hiring list
and offer to such employees full reinstatement to their for-
mer or substantially equivalent employment in the event
the Respondent resumes any of the operations which were
discontinued on October 12, 1977.
(d) Preserve and. upon request, make available to the
Board or its agents. for examination and copying. all pa ! -
roll and other records necessar, to analyze and compute
the amounts of backpay due under the terms of this Order.
(e) Post at its St. Louis, Missouri, place of business and
mail to all of its employees who were discharged on or
about October 12. 1977. copies of the attached notice
marked "Appendix." ' Copies of said notice, on forms pro-
In the crcn nto cscepIlons .are filed as prosided hs Sec 102 46 of Ihe
Rule and Reg ullatons of Ihe National I.lahr Relations Board, the findings.
corln.iul, ldn,, land recomlnltended Order herein shall. as pro ilded In Sec
0248 of tilhe Rules and Regulallon,. be adopted h tihe Board and hbecore
its findins concluslion.s fnd ()rder. and all obhlectlons thereto shall he
deermed l ased for .all purposes.
' In the csent that this (irder is enfored hb a judgment of the I. nired
Slates ('lurt of Appea.ls Ihe ords in Ihe notice reading "Posted h' Order
of tic s.ational I ;lhor Relations Boa.rdi s1hall rea.d ":'oted Pursuant to ;
( 'o nrinued
389
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vided by the Regional Director for Region 14, after being tive days thereafter, in conspicuous places, including all
duly signed by a representative of the Respondent, shall be places where notices to employees are customarily posted.
mailed immediately to said employees upon receipt Reasonable steps shall be taken by the Respondent to in-
thereof, and shall be posted immediately upon receipt sure that said notices are not altered, defaced, or covered
thereof and maintained by the Respondent for 60 consecu- by any other material.
(f) Notify the Regional Director for Region 14, in writ-
Judgment of the United States C< uri of Appeals Enfuoring an Ordcr of the ing within 20 days from the date of this Order, what steps
National Labor Relations Board." the Respondent has taken to comply herewith.