Martin Marietta Aluminum, Inc.

National Labor Relations Board - Board Decisions

Nov 5, 1974

214 N.L.R.B. 646 (N.L.R.B. 1974)

646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Martin Marietta Aluminum , Inc. and United Steel-
workers of America, AFL-CIO-CLC, Petitioner.'
Case 7-RC-12415
November 5, 1974
DECISION ON REVIEW AND ORDER
By MEMBERS FANNING, KENNEDY, AND PENELLO
On May 21, 1974, the Regional Director for Re-
gion 7 issued his Decision and Direction of Election
in the above-entitled proceeding in which he directed
an election in a unit of all production and mainte-
nance employees of the Employer at the Employer's
Adrian, Michigan, plant, rejecting the Employer's as-
sertion that the petition should be dismissed because
the plant was in the process of being closed, there
had already been a substantial reduction in the em-
ployee complement, and the remaining employees
would be terminated before the end of August 1974,
the Employer's outside date for total closure of the
plant. Thereafter, the Employer, in accordance with
the National Labor Relations Board's Rules and
Regulations, Series 8, as amended, filed a timely re-
quest for review 2 of the Regional Director's Decision
on the grounds, inter alia, that in denying the
Employer's motion to dismiss the Regional Director
had departed from officially reported Board prece-
dent and made erroneous findings of fact.
By telegraphic order dated June 21, 1974, the Na-
tional Labor Relations Board granted the request for
review and stayed the election pending decision on
review.3
'International Union, United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), was permitted to intervene in this
matter on the basis of an adequate showing of interest
2 The Employer also filed a motion to supplement the record
3 As in M B Kahn Construction Co, Inc, 210 NLRB 1050 (1974), our
dissenting colleague once again laments the fact that our review processes
do not function as quickly as he would like As we pointed out in Kahn,
however, we cannot ignore due process requirements The Board has de-
vised its review procedures with two considerations in mind (1) the need for
expedition in representation cases, and (2) the need to be fair, to give parties
appearing before us sufficient time in which to present their positions, and
to give ourselves the necessary time carefully to review their positions
We do not lightly grant review of a Regional Director's decision Our
standards for granting review are exacting and narrowly drawn In the in-
stant case, a majority of the Board believed the issue raised to be worthy of
review, and in considering the matter further after granting review conclud-
ed that the Regional Director erred in scheduling an election under circum-
stances where the plant closing was certain rather than speculative and
imminent rather than distant in point of time Our colleague disagrees with
that Judgment, as is his privilege But we think it inappropriate to character-
ize our decision on the merits as an instance where "protracted review pro-
cedures" have "frustrated the holding of an election "
Had we not been concerned, on June 21, that the merits of the issues both
of certainty and imminence of closing were ones which ought to have given
us pause, we would not have granted review It was and is our colleague's
view that the Regional Director was right on those issues It is our view that
he was wrong It is that difference in judgment that lies at the core of this
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 with respect
to the issues under review, including the Employer's
brief on review, and finds no question affecting com-
merce exists herein concerning the representation of
certain employees of the Employer within the mean-
ing of Section 9(c)(1) and Section 2(6) and (7) of the
Act, for the following reasons:
The Employer contends that the Regional Director
erred in concluding that there is some chance of con-
tinuity of employment here, and that he based that
conclusion essentially on testimony by the plant
manager in response to hypothetical questions, con-
trary to the explicit testimony on what prospects for
sale of the plant were actually extant. The Employer
also contends, inter alia, that the Regional Director's
action in directing an election herein in the face of
imminent total closure of the plant is inconsistent
with Board precedent.
The Employer has engaged in the manufacture of
aluminum mill products at its Adrian plant since it
took over the facility from another company in 1969.
Because of a shortage of metal supplies in the indus-
try, and because the aged equipment in the 30-year-
old plant is no longer competitive with more modern
equipment, the Employer made the economic deci-
sion to close the plant. After having unsuccessfully
sought a purchaser at least since November 1973, the
Employer on April 12, 1974, wrote to all plant em-
ployees and issued a public release announcing the
impending plant closure, set for August 31, 1974. The
story was carried on radio and in the newspapers,
and meetings were held with public officials about
the announced closing. On the same day as the an-
nouncement, the Employer stopped taking further
orders at this plant, and shortly thereafter notified
various utility companies and suppliers that it was
terminating its contracts with them. The record re-
veals that any work not finished by September 1
would be shipped to the Employer's Torrence, Cali-
fornia, plant for completion, as the Adrian plant
would be inoperable for production by that date and
without utilities except for those necessary to meet
insurance company requirements.
It is evident from the record that the Employer
was already in the process of closing the plant prior
case-not any inevitable result of unwarrantedly "protracted review proce-
dures "
Moreover, had it been possible to issue a decision in this case on the day
following the period for submission of briefs on review, the result herein
would be unchanged There was then less than 2 months remaining before
the definite closing date of the plant herein involved, it was that short
period of time, and the substantial decrease in the number of employees
available, upon which the majority based its decision
214 NLRB No. 83
MARTIN MARIETTA ALUMINUM, INC.
to the filing of the petition on April 19. A substantial
number of employees had already been terminated
before the hearing herein. By the scheduled election
date, the employee complement would be down ap-
proximately 50 percent, with further substantial lay-
offs scheduled to occur shortly thereafter. The record
shows that closure of the plant herein is definite and
imminent. Moreover, the Employer has no plans or
prospects for sale of the facility as an ongoing busi-
ness. Contrary to the Regional Director's finding, we
view the likelihood of any continuity of employment
here as purely speculative.
On the basis of the foregoing, we find that, in view
of the imminent closing of the plant here involved,
no useful purpose would be served by conducting an
election herein.4 The Employer's motion to dismiss
the petition herein is hereby granted.
ORDER
It is hereby ordered that the petition herein be, and
it hereby is, dismissed.
MEMBER FANNING, dissenting.
This is a case without issue except that of whether
to hold an election in a "contracting" unit.' More
than 4 months of operations remained when the peti-
tion was filed on April 19. In his May 21 decision the
Regional Director directed an election , noting that
4 In view of our disposition of this matter , we need not reach other con-
tentions of the Employer or rule on its motion to supplement the record
5 The Regional Director voted seven engineering department employees
subject to challenge The Employer contends that the record is adequate to
decide the question without resorting to challenge This position is hardly
consistent with Employer' s position that no election at all should be held,
and it urges the Board not to reach it When a sizable unit such as this is
rapidly being decimated , it is clear that a postelection resolution is warrant-
ed for so small a group
647
there would be a representative complement of em-
ployees in June when the election would be held, to
wit: 301 employees, as projected by the Employer,
out of a unit of 430 at the time of hearing. Also, there
would be a representative complement for a substan-
tial time thereafter,6 and there was the possibility that
the plant might be sold and its production continued.
The Regional Director perceived a "vital concern" to
employees in having representation during the last
few months of their employment and during the
course of the termination of their employment. I
agree.
My colleagues, however, granted review on June
21 and now dismiss because "no useful purpose"
would be served by an election at this time. As in
M. B. Kahn Construction Co., Inc., 210 NLRB 1050,
a protracted review process has again frustrated the
holding of an election in a concededly appropriate
unit and denied employee rights. I know of no re-
quirement that the "life" of an appropriate unit be
indeterminate as a prerequisite to holding an elec-
tion.
The Board recognizes that employees who are al-
ready being represented when an employer makes a
decision to close one of two or more of its plants are
entitled to bargain about employee rights incident to
the decision to close.' Why then deny unrepresented
employees, who promptly seek the chance to elect a
representative when they hear of the Employer's
plan, an opportunity to do so?
I voted to deny review of the Regional Director's
Decision and Direction of Election. I would have
held that election. I consider the policy reflected in
Kahn, supra, and this case to be contrary to the fun-
damental policy expressed in Section 1 of our statute.
6 The Employer projected 203 employees in July and 93 in August In its
brief it concedes that termination does not include any recall rights
7Royal Typewriter Company, a Division of Litton Business Systems, Inc,
209 NLRB 1006 (1974)