Kosher Kitchens, Inc.

National Labor Relations Board - Board Decisions

May 21, 1971

190 N.L.R.B. 465 (N.L.R.B. 1971)

NATL TERMINAL BAKING CORP.
National Terminal Baking Corp ., a Subsidiary of
Kosher Kitchens , Inc. and Cake Bakers Union Local
51, American Bakery and Confectionery Workers
International Union , AFL-CIO. Case 29-CA-1830
May 21, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On December 11, 1970, Trial Examiner Melvin J.
Welles issued his Decision in the above-entitled pro-
ceeding, finding that Respondent had engaged in and
was engaging in unfair labor practices and recommend-
ing that it cease and desist therefrom and take certain
affirmative action as set forth in the attached Trial
Examiner's Decision. The Trial Examiner further
found that Respondent had not engaged in certain
other unfair labor practices alleged in the complaint.
Thereafter, the General Counsel filed exceptions to the
Trial Examiner's Decision and a supporting brief. The
Charging Party filed a statement in support of the Gen-
eral Counsel's exceptions and 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 powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions, the briefs, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that Respondent,
National Terminal Baking Corp., a subsidiary of
Kosher Kitchens, Inc., Brooklyn, New York, its offic-
ers, agents, successors, and assigns, shall take the ac-
tion set forth in the Trial Examiner's recommended
Order.
' In view of the fact, as found by the Trial Examiner, that Respondent's
decision to close its plant and the effectuation of that decision occurred
almost simultaneously and resulted from pressing economic necessity, we
are satisfied that the inclusion of a backpay provision in the remedy here
ordered would be unrealistic, speculative, and inappropriate
190 NLRB No. 98
465
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MELVIN J. WELLES, Trial Examiner: This case was heard
at Brooklyn, New York, on September 14 and October 19 and
20, 1970, on a complaint issued March 31, 1970, based on
charges filed October 24, 1969. The complaint alleges that
Respondent violated Section 8(a)(1) and (5) of the Act by
failing to disclose its intention to close its plant, and closing
the plant without bargaining with the Union about the clos-
ing or the effects of the closing on the employees.
Respondent's President Arthur Siegel, who represented
himself at the hearing,' filed an answer denying the substan-
tive allegations of the complaint and denying that Respond-
ent is engaged in commerce. Counsel for the General Counsel
filed a brief.
Upon the entire record in this case, including my observa-
tion of the demeanor of the witnesses, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent, a New York corporation, with its principal
office and place of business at Brooklyn, New York, is en-
gaged in the manufacture and sale of doughnuts and related
products. During the calendar year 1968, Respondent re-
ceived goods, consisting of baking mixes, flours, and dough-
nut sugars, valued in excess of $50,000 from points outside
the State of New York.' During the calendar year 1969,
Respondent received goods valued at more than $28,000 from
Joe Lane Company, which goods were shipped to Respond-
ent from New Jersey, and goods valued at more than $22,000
from the House of Fodera, a New York corporation, which
were received by the House of Fodera from points outside the
State of New York.'
As both the direct inflow for the year 1968, and the combi-
nation of direct and indirect inflow for the year 1969 exceed
$50,000 in value, I find that Respondent is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
Siemons Mailing Service, 122 NLRB 81, 85.
II THE LABOR ORGANIZATION INVOLVED
Cake Bakers Union Local 51, American Bakery and Con-
fectionery Workers International Union, AFL-CIO, is a la-
bor organization within the meaning of Section 2(5) of the
Act.
III THE UNFAIR LABOR PRACTICES
On September 24, 1969, the Union was certified by the
Board as the exclusive bargaining representative of Respond-
ent's employees. On October 9, 1969, Arthur R. Siegel, presi-
dent of Respondent, met with Union Representatives Sidney
Permisson and Herman Schlansky to discuss a proposed con-
tract. Wages, the Union's pension plan, and other matters
were discussed at this meeting. In the course of the discus-
sions, Siegel indicated a number of times that he was losing
money. He also told the union representatives that the seller
Siegel was not present, nor did Respondent have any representative
present at the 2d and 3d days of the hearing, although he had been notified
that the hearing would be resumed on those days The hearings on those
days concerned only commerce data
This is based on the uncontradicted testimony of Robert J Bernholdt,
of Joe Lane Company, located in New Jersey, and supporting documentary
evidence
Based on the testimony of Bernholdt, of John Fodera, president of
House of Fodera, and supporting documentary evidence
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of National Terminal stock to Siegel' had misrepresented to
Siegel the financial status of National Terminal. Permisson
testified that Siegel "may have said that if he loses enough
money he might have to shut down," that he did say that he
would be happy to have the Union run the bakery for him.
Permisson also testified that Siegel mentioned having had two
trucks stolen. Siegel testified that he told the union represent-
atives in so many words that he was thinking of closing down
within the week, and that Permisson asked Siegel to wait a
week until the Union's president returned from California.
Whether Siegel's or Permisson's version is correct need not
be resolved, for reasons that will appear. The meeting ended
with a tentative agreement to meet one week later at the
Union's office, a meeting confirmed by telephone a few days
later.
The morning of October 16, Permisson received a call from
an employee at the plant that the plant had been shut down.
He went to the plant, where Production Manager Storkel
confirmed that Siegel had terminated operations.
Siegel testified that he decided to shut down permanently
as a result of the theft of the second of the two trucks stolen
during that week, which brought the Company to the "end
of our money." He consulted his attorney and his accountant,
and they advised him to close. Before Siegel called the plant
to tell Storkel to shut down, he called the union office, accord-
ing to him, to try to inform Union Representative Permisson
or President Erlich of his decision. He did not leave any
message except that he had called.'
There was another meeting between the Union and Siegel
sometime after October 16 and before May 1970. There was
no testimony about what occurred at that meeting. The com-
plaint herein issued March 31, 1970. Early in May 1970,
Siegel telegraphed the Union requesting a meeting to bargain
about the effects of the closing. A meeting was arranged,
attended by Erlich and Permisson for the Union, and Siegel
for Respondent. Erlich asked for 4 weeks' pay for the em-
ployees, and Siegel countered by offering 1 hour's pay. Erlich
indicated that was "ridiculous," but Siegel claimed he was
broke, and could do no better. A week later another telegram
from Siegel requested another meeting, which was held. Sie-
gel again offered 1 hour's pay, and the meeting ended with the
union officials saying there was no point in continuing to
negotiate.
CONCLUSIONS AND REMEDY
As I indicated above, there are several discrepancies be-
tween the version of the October 9 meeting as testified to by
Permisson and that testified to by Siegel. Even Permisson's
testimony, however, indicates that Siegel said Respondent
was in poor financial condition, and that he told the union
representatives it would be fine with him if the Union took
over the business.' Based on Siegel's own testimony that he
decided to shut down after the second truck was stolen, I do
not credit his testimony that he told the union representatives
on October 9 that he would shut down and was asked by them
to remain open. But surely the purport of Siegel's remarks at
the meeting could only lead to the conclusion that there was
a strong possibility of the business closing In the light of
what to such a small and, at the time, money-losing enterprise
must have been a calamitous event, the theft of the two
Actually to Kosher Kitchens , of which Siegel was principal stockholder
' Although there is testimony concerning the Union's telephone proce-
dures , indicating calls are normally recorded in a book , it is of course not
impossible that a mistake was made and Siegel's call not so recorded I am
satisfied he made a call
' Permisson testified that he regarded remarks of this nature as "facetious
and flippant I didn't pay much attention."
trucks, with the second stolen the day before the shutdown,
I am satisfied that the overwhelming economic need for shut-
ting down then and there obviated any possible bargaining
about the decision. There really was no time for bargaining,
and bargaining would have been pointless. Bargaining about
the effects of the shutdown on the employees is quite another
matter, and is required in circumstances such as these wholly
apart from the obligation (or lack of it) to bargain about the
decision to close. Thompson Transport Company, Inc., 184
NLRB No. 5; Morrison Cafeterias Consolidated, Inc., 177
NLRB No. 113; Interstate Tool Co., Inc., 177 NLRB No.
107; N.L.R.B. v. Drapery Manufacturing Co., 425 F.2d 1026,
1028-1029, (C.A. 8).
Thus the failure of Respondent to meet with the Union to
bargain about the effects of the closing was plainly violative
of Section 8(a)(5) and (1) of the Act, and I so find. As noted
above, however, Siegel did offer to bargain with the Union
about the effects of the closing, and met with union officials
twice in May 1970. The General Counsel characterizes the
offer and the meetings as "settlement attempts" because they
occurred after the complaint issued, and 7 months after the
closing. However characterized, the May offer and meetings
do not serve as a defense to the earlier failure to bargain about
the effects. They do, though, raise questions as to how or
whether to remedy the earlier violation. The General Counsel
contends that the remedy fashioned by the Board in Interstate
Tool Co., Inc., supra, and Transmartne Navigation Corpora-
tion, 170 NLRB No. 43, is appropriate here. The more recent
Thompson Transport case, supra, however, suggests a differ-
ent approach so far as this case is concerned. In Interstate and
Transmarine, the Board ordered the company to bargain
with the union about the effects of a plant closing on the
employees, and, "in order to assure meaningful bargaining
. and to re-create in some practicable manner a situation
in which the parties' bargaining position is not entirely devoid
of economic consequence for the Respondent," (Transma-
rine, 170 NLRB No. 63), to pay the employees backpay from
5 days after the Board's decision to the date a bargain is
reached or effects on a bona fide impasse is reached, with
backpay liability to cease if the Union did not request bar-
gaining in 5 days, or bargained in bad faith. Backpay would
in no event be less than 2 weeks, or more than the employees
would have earned from the date of the plant closing to the
date the employee secured equivalent employment elsewhere,
or the date the Company offered to bargain about effects,
whichever was sooner. In Thompson, however, where the
company offered to bargain about the effects 5 weeks after the
closing , the Board took a different approach, not ordering the
company to bargain, but, again because the "duty to bargain
over the effects of a decision to close entails more than pro
forma bargaining at a time after the dissipation of the union's
economic strength," to pay backpay for the 5-week period. In
addition, the Board in Thompson ordered that the terminated
employees be placed on a preferential hiring list in the event
the Company resumed its operations. The Company did have
other terminals.
It seems anomalous that in Interstate the company, which
had never bargained with the union about effects, could, by
bargaining in good faith after the Board's order, limit its
backpay liability to 2 weeks, while in Thompson, where the
company did bargain about effects 5 weeks after the closing,
it must pay 5 weeks backpay. Presumably, had Thompson not
bargained at all about effects, it would have had to pay only
2 weeks' backpay, provided it otherwise complied with the
Board's order. Respondent here, as indicated above, did bar-
gain about the effects of the closing some 5 months after the
plant was closed. This would seem to require a remedy pat-
terned after that in Thompson, rather than Interstate, where
NATL TERMINAL BAKING CORP.
no bargaining took place. In the earlier Transmarine case, the
remedy was exactly the same as in Interstate, even though the
company offered to bargain about effects about 8 months after
the closing. I assume the Board's later decision would control
in this respect. However, I deem only the cease and desist
portion, and those affirmative aspects of the Thompson order
as relate to preferential hiring, and sending notices to the
employees concerned as applicable here. Specifically, I see no
reason here to require any backpay. Since, under Thompson,
no bargaining is being ordered, the rationale of Interstate and
Transmarine to have backpay running in order to recreate a
situation where there will be economic consequences does not
apply And, unlike in Thompson, Respondent's failure to
bargain about effects here did not occur at a time the plant
was still open. As I have found, Respondent closed the plant
in an almost emergency situation, and there was no possible
way to bargain about effects before the closing. Thus the
predicate for the backpay awards in all the cases cited disap-
pears, for the Union was never in a position of strength at a
time when any bargaining about effects could have taken
place. I shall therefore recommend that Respondent cease
and desist from the unfair labor practices found to have oc-
curred, place the terminated employees on a preferential hir-
ing list in the event Respondent resumes operations and, at
that time, offer reinstatement to those employees, and mail
notices to the terminated employees.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent, National Terminal Baking Corp., a subsidi-
ary of Kosher Kitchens, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Cake Bakers Union Local 51, American Bakery and
Confectionery Workers International Union, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the
Act.
3. By refusing to bargain with the Union about the effects
of closing its plant, Respondent engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) and (5) of the Act.
4 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:'
ORDER
Respondent, National Terminal Baking Corp., a subsidiary
of Kosher Kitchens, Inc., its officers, agents, successors, and
assigns, shall:
1. Cease and desist from refusing to bargain with Cake
Bakers Union Local 51, American Bakery and Confectionery
Workers International Union, AFL-CIO, with respect to the
effects on its employees of its decision to close its plant in
Brooklyn, New York.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
' In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions and recommended Order herein shall, as provided in
Section 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes
467
(a) Place the names of all its terminated employees on a
preferential hiring list and, in the event its plant reopens, offer
them reinstatement.
(b) Mail exact copies of the notice attached hereto marked
"Appendix"' to Cake Bakers Union Local 51, American Bak-
ery and Confectionery Workers International Union, AFL-
CIO, and to all employees who were employed by Respond-
ent at its Brooklyn, New York, plant. Copies of said notice,
on forms provided by the Regional Director for Region 29,
after being duly signed by Respondent's representative, shall
be mailed immediately upon receipt thereof as herein di-
rected.
(c) Notify the Regional Director for Region 29, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply herewith.'
I In the event the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall be changed to read "Posted
pursuant to a Judgment of the United States Court of Appeals enforcing an
Order of the National Labor Relations Board "
' In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read "Notify
the Regional Director for Region 29, in writing, within 20 days from the date
of this Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act when we refused
to bargain with Cake Bakers Union Local 51, American Bak-
ery and Confectionery Workers International Union, AFL-
CIO, over the effects on your jobs of our decision to close the
Brooklyn plant.
WE WILL NOT refuse to bargain with the above-
named labor organization about the effects of our deci-
sions which affect the employment status of our em-
ployees who are represented by the above-named labor
organization.
WE WILL place the names of our employees who were
discharged as a result of our decision to close our Brook-
lyn, New York, plant, on a preferential hiring list in the
event we resume our operations in Brooklyn, New York,
and, at that time, offer reinstatement to these employees
without prejudice to their seniority and other rights.
NATIONAL TERMINAL
BAKING CORP,
A SUBSIDIARY OF
KOSHER KITCHENS,
INC
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced, or
covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, 16 Court
Street, Fourth Floor, Brooklyn, New York 11201, Telephone
202-596-3535.