Metropolitan Teletronics Corp.

National Labor Relations Board - Board Decisions

May 19, 1986

279 N.L.R.B. 957 (N.L.R.B. 1986)

METROPOLITAN TELETRONICS 957
Metropolitan Teletronics Corp . and Bedding, Cur-
tain & Drapery Workers Union , Local 140,
United Furniture Workers of America, AFL-
CIO
Metropolitan Teletronics Corp . and Bedding, Cur-
tain & Drapery Workers Union, Local 140,
United Furniture Workers of America, AFL-
CIO and Production Workers Union , Local 148
a/w International Union of Allied Novelties &
Production Workers , AFL-CIO
Production Workers Union, Local 148 a/w Interna-
tional Union of Allied Novelties & Production
Workers, AFL-CIO and Bedding, Curtain &
Drapery Workers Union , Local 140 , United
Furniture Workers of America, AFL-CIO and
Metropolitan Teletronics Corp . Cases 2-CA-
19571, 2-CA-19657, and 2-CB-9912
19 May 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND STEPHENS
On 15 June 1984 Administrative Law Judge
Raymond P. Green issued the attached decision.
The General Counsel (joined by the Charging
Party) filed exceptions and a supporting brief, the
Charging Party filed additional exceptions, and Re-
spondents Metropolitan Teletronics Corporation
(the Company) and Production Workers Union,
Local 148 a/w International Union of Allied Nov-
elties & Production Workers, AFL-CIO (Local
148) filed the posthearing briefs submitted to the
judge.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that the Company had no statu-
tory obligation to bargain with Charging Party
Local 140 over its decision to close its New York
City operations and relocate in Jersey City, New
Jersey , and fulfilled its obligation to bargain about
decision's effects. The judge further found that the
Company was required to recognize Local 148 as
the bargaining representative of employees at the
Jersey City facility, and therefore the Company
and Local 148 did not violate the Act by entering
into an agreement covering employees at the
Jersey City facility.
We find that the Company violated Section
8(a)(5) by failing to bargain over the effects of the
relocation decision . We affirm the judge 's dismissal
of the remainder of the complaints ' allegations.
1. THE FACTS
Until April 1983 the Company reconditioned
used telephones at plants in New York City and
Union City, New Jersey, for resale. The Company
owned the New York City quarters and rented the
Union City space . Local 140 represented the New
York City production and maintenance employees,
and Local 148 represented the Union City produc-
tion and maintenance employees.
The Company suffered serious economic difficul-
ties in 1982 and early 1983. In May 1982 it ob-
tained a large loan at an interest rate of 18-1/2 per-
cent from Atlantic Bank of New York by mortgag-
ing its New York City building . After the Compa-
ny failed to make payments on the loan, Atlantic
Bank commenced foreclosure proceedings against
the property in late October. In mid-November the
Company began negotiations for the purchase of a
facility in Jersey City, New Jersey, that had more
space than the Union City and New York City
plants combined. Representatives of the New
Jersey Economic Development Authority (EDA)
participated in the negotiations , and held out the
prospect of major financial assistance in the form
of tax-exempt bonds2 if the Company opened a
new plant in Jersey City and created jobs for New
Jersey residents. By no later than early March 1983
the Company knew it could not avoid foreclosure
on its New York building. On 30 March the Com-
pany signed the final contract for the purchase of
the Jersey City facility.3 The seller was to finance
the balance of the purchase price after down pay-
ment at an interest rate significantly lower than the
Company's Atlantic Bank loan rate. Within a week
the Company sold its New York facility. The sale
enabled the Company to pay off the Atlantic Bank
loan, make a down payment on the Jersey City
property, and cover moving expenses.4 On or
' The General Counsel has excepted to some of the judge 's credibility
findings . The Board 's established policy is not to overrule an administra-
tive law judge 's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect . Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir
1951). We have carefully examined the record and find no basis for re-
versing the findings.
Contrary to the judge's decision , there was no allegation that the Com-
pany violated Sec 8(d) of the Act.
' The judge incorrectly referred to EDA 's potential assistance as a
loan
s The judge inadvertently placed the final contract signing and closing
in 1982.
4 In April the Company applied to EDA for $975,000 in tax-exempt
bonds that the Company could sell which would allow it to renovate and
equip the new facility for expanded production and new product lines,
and create 200 new jobs . The Company was unable to sell any of the
bonds, however, and the planned expansion had not taken place as of the
October 1983 hearing date.
279 NLRB No. 134
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about 4 April the Company began moving employ-
ees and equipment from the Union City facility to
the Jersey City plant.
In January 1983 Local 140 notified the Company
of its desire to negotiate a new contract to replace
the collective-bargaining agreement due to expire
19 March 1983. The parties exchanged proposals
and met on 23 March and 4 April. On 5 April the
Company rejected Local 140's contract proposals,
and on 6 April Local 140 commenced a strike at
the New York facility. About 10 April the Compa-
ny began moving the New York facility's goods
and equipment to the Jersey City plant. The Com-
pany had not informed Local 140 of the decision to
close and relocate.5
On 11 April Local 140's counsel, Vicki Eren-
stein, wrote to the Company's representative,
Robert Ferris, inquiring about the New York oper-
ations. On 13 April Ferris replied, offering to bar-
gain about the effects of the relocation. Erenstein
and Ferris traded letters in the latter half of April,
each expressing his or her client' s willingness to
meet and bargain over the effects of the Company's
decision to close the New York City operations
and relocate to Jersey City, but differing over
Local 140's continued status as bargaining repre-
sentative for the Company's employees at the relo-
cated plant. Company and Local 140 representa-
tives did not meet until 4 May.6
Local 148 represented about 29 production and
maintenance employees at Union City at the end of
March 1983. By 10 April the Company had trans-
ferred substantially all the Union City employees to
Jersey City, and had begun hiring new employees
at the new plant. Normal production commenced
by 22 April, at which time 28 former Union City
employees, 14 new hires, and 2 former New York
City employees,7 a total of 44, were working at the
Jersey City plant. The next week the Jersey City
employee complement consisted of 26 former
Union City employees, 13 new hires, and 2 former
New York City employees, a total of 41.6 On 25
April the Company recognized Local 148 as the
collective-bargaining representative for the Jersey
City employees and extended the terms and condi-
tions of the Union City contract to the new loca-
tion.9
5 The Company's repeated references between 1980 and 1983 to finan-
cial plight and the possibility of closing the New York City plant did not
amount to notice of the Company's relocation plans
6 The record does not support the General Counsel 's assertion that the
delay in meeting was due to the Company's stalling
7 The Company transferred 2 New York City production employees to
Jersey City but terminated the other 24 New York City employees
s Based on a misinterpretation of the Company's payroll records, the
judge erred in dating the Company's work force fluctuations
9 Between April 1983 and the hearing date in October 1983, the Jersey
City work force gradually expanded to about 68 employees
At the 4 May meeting 1 ° between Company and
Local 140 representatives the Company offered to
employ the former New York City employees at
the new plant on the condition that they work
under Local 148's contract. Local 140 demanded
that the Company recognize Local 140 as the bar-
gaining representative for the production and main-
tenance employees at the new plant , offer the
former New York City employees jobs at Jersey
City, and provide for the employees' travel ex-
penses to the new plant . On 13 May Ferris sent a
letter to Erenstein offering severance pay or em-
ployment at Jersey City under Local 148's contract
in return for Local 140 withdrawing the NLRB
charge it filed in Case 2--CA--19571 on 12 April.
Ferris wrote to Erenstein again on 20 May, indicat-
ing that he had not received a reply to the Compa-
ny's 13 May offer. Erenstein replied on 24 May,
communicating the Union's rejection of the offer,
but making no counteroffer. Thereafter, bargaining
ceased.
II. ALLEGED 8 (A) (5) VIOLATIONS
The judge found the Company was under no
statutory obligation to bargain over its decision to
close its New York City operations and relocate to
Jersey City. We agree. The Company's decision to
move to Jersey City was motivated by the foreclo-
sure action on the New York City building, the
new facility's lower mortgage interest rate and
more spacious quarters, and the prospect of EDA
assistance through the issuance of tax-exempt de-
velopment bonds. The Company's decision did not
turn on labor costs at its New York City plant and
therefore was not a mandatory bargaining subject.
See Otis Elevator Co., 269 NLRB 891 (1984). 11
The judge also found that the Company bar-
gained in bad faith before the plant closed by con-
cealing during negotiations with Local 140 the de-
cision to close the New York facility and relocate
the business, but the judge found that the Company
satisfied its effects bargaining obligation when,
after closing , it offered on 13 April to bargain
about the decision's effects and subsequently ex-
changed proposals with Local 140. We disagree
with the judge's conclusion that the Company ful-
filled the effects bargaining obligation.
10 The judge incorrectly found the meeting occurred 12 May
11 Member Dennis agrees based on her analysis set forth in her sepa-
rate opinion in Otis The factors underlying the decision were wholly
outside the Union's control Local 140 was in no "position to lend assist-
ance or offer concessions that reasonably could [have] affect[ed] . the
employer's decision " Otis Elevator, 269 NLRB at 897.
Member Stephens, in finding that the Company had no duty to bargain
over the closure and relocation of its New York City operations, notes
that the result would be the same under any of the views expressed in
Otis Elevator
METROPOLITAN TELETRONICS
The Company was obligated to bargain "in a
meaningful manner and at a meaningful time" with
Local 140 over the effects on employees of the de-
cision to close and relocate. First National Mainte-
nance Corp. v. NLRB, 452 U.S. 666, 681-682
(1981). An element of "meaningful" bargaining is
"timely notice to the union" of the decision. Penn-
tech Papers, Inc. v. NLRB, 706 F.2d 18, 26 (1st Cir.
1983). By concealing its decision from Local 140
until after it began to vacate the New York City
facility, the Company failed to provide timely
notice, thus denying the Union an opportunity to
bargain at a time when the Union retained at least
a measure of bargaining power. Penntech Papers,
263 NLRB 264, 275 (1982), enfd. 706 F.2d 18 (1st
Cir. 1983). The Company's belated offer to bargain
with Local 140 (after its unfair labor practices de-
prived the Union of bargaining power) was no sub-
stitute for timely notice of its decision and good-
faith bargaining before closing. Thompson Transport
Co., 184 NLRB 38 (1970).1 2
We conclude that the Company failed to bargain
in good faith about the effects of the decision to
close and relocate the New York City operations
by failing to notify the Union of the decision in a
timely manner. 13
Our dissenting colleague asserts that we are ap-
plying a per se rule that an employer commits an
effects bargaining violation if it fails to give pre-
closure notice to the union of the plant closure de-
cision. The rule regarding timely notice is not a per
se rule . An employer can avoid 8(a)(5) liability by
demonstrating that emergency circumstances justi-
fied late notice to the union. Raskin Packing Co.,
246 NLRB 78 (1979); M & M Transportation Co.,
239 NLRB 73, 75 (1978). 14 Here the Company
knew by early March 1983 that it would close the
New York City plant, but offered no explanation
for concealing its plans from Local 140 until after
closure.
What apparently prompts our dissenting col-
league to label our analysis a per se rule is that, ac-
Accord P J Hamill Transfer Go, 277 NLRB 462, 463 (1985)
18 Because we find the Company violated Sec. 8 (a)(5) by its conduct
before closing the New York operations, we find it unnecessary to pass
on the General Counsel 's allegation that the Company engaged in unlaw-
ful conditional bargaining after closing
14 Courts also have indicated their understanding that , absent special
justification , pre-implementation notice is required to satisfy the obliga-
tion to bargain over effects . See, for example , Yorke v. NLRB, 709 F.2d
1138, 1143-1144 (7th Cir. 1983) (trustee in bankruptcy excused from
giving pre-closure notice where "emergency situation" precluded ad-
vance notice); Florsheim Shoe Store Co. v. NLRB, 565 F 2d 1240, 1246 (2d
Ctr 1977) (effects bargaining obligation encompasses bargaining with rep-
resentative over "time and manner of implementing the decision") (em-
phasis added), NLRB v. Transmarine Navigation Corp, 380 F .2d 933, 939-
940 (9th Cir 1967) (employer did not satisfy obligation to give reasonable
notice when it initially withheld information concerning decision to ter-
minate operations and finally notified union through letter dated 3 days
before scheduled termination)
959
cording to him, we find an 8(a)(5) violation with-
out a showing that Local 140 had a "meaningful
chance of extracting substantial concessions" from
the Company before closure. Our colleague would
find that Local 140 lost nothing by having to bar-
gain after closure because before then the Compa-
ny was suffering economic difficulties and the em-
ployees Local 140 represented were low skilled
and low paid.
We find questionable any rule that makes a col-
lective-bargaining representative's rights to pre-clo-
sure notice and effects bargaining turn on the rela-
tive skill and wage levels of the employees it repre-
sents. But even assuming that , contrary to our un-
derstanding, there were support for our colleague's
position that an employer has no obligation to give
pre-implementation notice unless there is a showing
of actual prejudice to the employees' bargaining
position, we would not agree that the record sup-
ports our colleague 's application of the rule. It is
not clear to us that bargaining over concessions in-
volving "substantial" cost to the employer is the
only form of bargaining the Board protects under
Section 8(a)(5). For example, in this case Local
140's priorities were reemployment for the New
York City employees and representational rights
for itself at the new plant, interests Local 140
might have been able to protect by securing a
promise in pre-closure bargaining that the Compa-
ny would hire New York City employees at the
new plant if the Company had positions for
them.' 5 Such a promise would have cost the Com-
pany nothing.
Our 8(a)(5) fording is not based, however, on
speculation about the results of pre-closure bargain-
ing had it taken place. Rather, we find that Local
140 suffered a disadvantage to its bargaining posi-
tion by being denied an opportunity to bargain at a
time when it still represented employees upon
whom the Company relied for services. Moreover,
we observe that if the Company believed there was
's Instead , the Company delayed until mid-April before it offered to
bargain over effects , and did not submit its employment offer to the New
York City employees until after the representational issue at the new
plant had been foreclosed , and the New York City employees could gain
reemployment only at the price of losing representation by their own
representative Contrary to the dissent , taking note that another possible
outcome was foreclosed by the Company's late notice is not inconsistent
with our finding that the Company 's recognition of Local 148 at the
Jersey City plant did not violate the Act As explained below, infra, fn
19, there is no evidence of union animus in the Company 's relocation and
hiring actions, nor can we be sure, had there been timely notice and bar-
gaining, whether the New York employees would have been hired at
Jersey City in sufficient numbers in April , along with Union City em-
ployees and new hires, that when normal operations commenced there
would have been reason to question Local 148's majority status as the
collective -bargaining representative of the combined work force Thus,
we cannot disturb the recognitional consequences of the hiring that actu-
ally took place
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no advantage to be gained by concealing its plans
from the Union, presumably it would not have
done so. We cannot excuse the Company's bad-
faith tactics by after-the-fact conjecture that the
conduct reaped no significant gains.
III. THE COMPANY'S ALLEGED UNLAWFUL
RECOGNITION OF LOCAL 148 AS THE JERSEY
CITY EMPLOYEE REPRESENTATIVE
We agree with the judge's determination that the
Company did not violate the Act by recognizing
Local 148 as the employee representative at the
Jersey City facility. By 25 April, the recognition
date, the Jersey City plant had commenced normal
production. The Respondent's work force of ap-
proximately 40 to 45 production and maintenance
workers, who were performing jobs and functions
that were substantially the same as those at the two
former plants, constituted a substantial representa-
tive complement of employees.) 6 As at least 26 of
the 40 to 45 workers were employees Local 148
had represented at Union City, the Company was
bound under Section 8(aX5) of the Act to recog-
nize Local 148 as the Jersey City employee repre-
sentative . Lammert Industries, 229 NLRB 895, 934-
935 (1977), enfd. 578 F.2d 1223 (7th Cir. 1978);
Fairlawn Care Center, 233 NLRB 1025, 1026
(1977).17
The General Counsel, citing Hudson Berlind
Corp., 203 NLRB 421 (1973), enfd. 494 F.2d 1200
(2d Cir. 1974),18 argues that the Company violated
the Act by unilaterally choosing between Local
148's and Local 140's conflicting representational
claims at the new plant. We do not fmd Hudson
Berlind controlling. When an employer merges two
separately represented work forces the employer
may not choose between the competing representa-
tional claims, unless one of the merged groups con-
stitutes such a large proportion of the combined
work force that there is no reason to question the
continued majority status of that group's bargain-
ing representative. Boston Gas Co., 235 NLRB
1354, 1355 (1978); Martin Marietta Refractories Co.,
270 NLRB 821, 822 (1984). We believe that be-
cause the Union City transferees constituted at least
63 percent and the New York transferees no more
16 The Company's expectation of expansion , contingent on EDA's as-
sistance, was too uncertain under all the circumstances to affect the de-
termination that a substantial representative complement had been hired.
17 Because the former Union City employees constituted a clear major-
ity of the Jersey City plant's employee complement , we find it unneces-
sary to rely on Westwood Import Co, 251 NLRB 1213 (1980), enfd. 681
F.2d 664 (9th Cir 1982)
is In Hudson Berlmd, after the employer merged two warehouses
whose forces had been separately represented by different unions , the em-
ployee complement at the merged facility consisted of a significant
number from both union -represented groups The Board held that the
employer violated Sec 8(ax2) of the Act by recognizing one of the
unions as the employee representative at the merged facility,
than 5 percent of the merged work force on the
recognition date , there was no reason to question
Local 148's majority status.19
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of
Law 3.
"3. By failing to notify in a timely manner Bed-
ding , Curtain & Drapery Workers Union, Local
140, United Furniture Workers of America, AFL-
CIO of the decision to close its New York City fa-
cility in April 1983 and relocate its business in
Jersey City, New Jersey, Respondent Metropolitan
Teletronics Corp. failed to bargain in good faith
about the effects on employees of the decision and
thereby violated Section 8(a)(5) and (1) of the
Act."
2. Add the following as Conclusion of Law 4.
"4. Respondent Metropolitan Teletronics Corp.
has not otherwise violated the Act, and Respond-
ent Production Workers Union, Local 148 a/w
International Union of Allied Novelties & Produc-
tion Workers, AFL-CIO has not violated the
Act."
THE REMEDY
Having found that Respondent Metropolitan Te-
letronics Corp. has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1)
of the Act, we shall order that it cease and desist
therefrom, and take certain affirmative action de-
signed to effectuate the policies of the Act.
As a result of the Company's unlawful failure to
bargain in good faith with the Union about the ef-
fects of its decision to close its New York City
plant and relocate its business in Jersey City, New
Jersey, the terminated employees have been denied
an opportunity to bargain through their collective-
bargaining representative at a time when the Com-
pany 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
Local 140. A bargaining order alone, therefore,
cannot serve as an adequate remedy for the unfair
labor practices committed.
19 The General Counsel argues that the judge erred when he failed to
find that , had the Company engaged in effects bargaining in a timely
manner, it is possible that the outcome would have been the transfer of a
significantly greater number of New York employees to Jersey City We
find, however, no evidence that union animus motivated the Company's
relocation and conduct toward Local 140 and the New York City em-
ployees . Nor do we find that the Company 's conduct was "inherently de-
structive" of employee rights Absent such findings , we will not attempt
to infer the outcome of good -faith bargaining between the Company and
Local 140 had it occurred at the proper time and thus will not speculate
how many New York employees would have secured jobs at the new
plant.
METROPOLITAN TELETRONICS 961
Accordingly, we deem it necessary, in order to
effectuate the purposes of the Act, to require the
Company to bargain with Local 140 concerning
the effects of the shutdown and relocation on its
employees, and shall accompany our order with a
limited backpay requirement designed both to make
whole the employees for losses suffered as a result
of the violations and to recreate in some practica-
ble manner a situation in which the parties' bar-
gaining position is not entirely devoid of economic
consequences for the Company. We shall do so in
this case by requiring that the Company pay back-
pay to its terminated New York City employees in
a manner similar to that required in Transmarine
Navigation Corp., 170 NLRB 389 (1968). Thus, the
Company shall pay its terminated New York City
employees backpay at the rate of their normal
wages when last in the Company's employ from 5
days after the date of this Decision and Order until
occurrence of the earliest of the following condi-
tions: (1) the date the Company bargains to agree-
ment with Local 140 on those subjects pertaining
to the effects of the plant shutdown on its employ-
ees; (2) a bona fide impasse in bargaining ; (3) Local
140's failure to request bargaining within 5 days of
the date of this Decision and Order, or to com-
mence negotiations within 5 days of the Company's
notice of its desire to bargain with Local 140; (4)
Local 140's subsequent failure to bargain in good
faith; but in no event shall the sum paid to any of
these employees exceed the amount they would
have earned as wages from 5 April 1983, the final
day of operations at the Company's New York fa-
cility,20 to the time they secured equivalent em-
ployment elsewhere, or the date on which the
Company shall have offered to bargain in good
faith, whichever occurs sooner; provided, however,
that in no event shall this sum be less than these
employees would have earned for a 2-week period
at the rate of their normal wages when last in the
Company's employ. Backpay shall be based on
earnings which the terminated employees would
normally have received during the applicable
period, less any net interim earnings, and shall be
computed in accordance with F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest as prescribed in
Florida Steel Corp., 231 NLRB 651 (1977).
80 Because of Local 140 's strike , the precise date the Company closed
the facility is unclear . Absent the Company 's unfair labor practices, how-
ever, the strike might not have taken place Therefore , in limiting the
maximum backpay award , we do not begin the period of presumed em-
ployee earnings with the date of shutdown or employee terminations, but
rather with the final day of operations before Local 140 commenced its
strike , which was also the day the Company signed the contract for the
sale of the New York facility Cf Transmanne, supra Further , the strike
is not to be considered in determining what employees would have
earned in that period
ORDER
The National Labor Relations Board orders that
the Respondent, Metropolitan Teletronics Corp.,
Jersey City, New Jersey, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Failing to bargain in good faith with Bed-
ding , Curtain & Drapery Workers Union, Local
140, United Furniture Workers of America, AFL-
CIO concerning the effects on employees of its de-
cision to close its New York City facility and relo-
cate its business in Jersey City, New Jersey.
(b) In any like or related manner interfering
with , restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain collectively in good faith
with Bedding, Curtain & Drapery Workers Union,
Local 140, United Furniture Workers of America,
AFL-CIO with respect to the effects on employees
of its decision to close its New York City facility
and relocate its business in Jersey City, New
Jersey, and, if an understanding is reached, embody
the understanding in a signed agreement.
(b) Pay the former New York City employees
terminated by the Respondent when it closed the
New York City facility in April 1983 their normal
wages for the period set forth in the remedy sec-
tion of this Decision and Order.
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its facility copies of the attached
notice marked "Appendix."21 Copies of the notice,
on forms provided by the Regional Director for
Region 2, after being signed by the Respondent's
authorized representative, shall be posted by the
Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous
places including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any
other material . A copy of the notice, signed in the
21 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same manner, shall be immediately mailed to Bed-
ding , Curtain & Drapery Workers Union, Local
140, United Furniture Workers of America, AFL-
CIO and to the last known address of each person
formerly employed at the Respondent's former
New York City facility at the time of its closing.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
CHAIRMAN DOTSON, dissenting in part.
Contrary to my colleagues , I agree with the
judge that the Respondent satisfied its bargaining
obligation regarding the effects of its decision to
close its New York City facility. As the judge
found, the Respondent did offer on 13 April 1983
to engage in effects bargaining with Local 140 and
in fact presented a proposal to Local 140 on 4 May
1983. The Respondent reiterated its proposal to
Local 140 by letter dated 13 May 1983 and 1 week
later sent another letter to Local 140 indicating
that it had received no reply to its 13 May offer.
Local 140 subsequently rejected the offer, but did
not make a counteroffer or request any further bar-
gaining.
Regardless of whether the Respondent delayed
notifying Local 140 of its decision to close the
New York City facility, the fact remains that the
Respondent attempted to engage in effects bargain-
ing with Local 140, but Local 140 refused. There is
no reason to assume , as my colleagues appear to
do, that any different result would have occurred if
effects bargaining had commenced at any earlier
date . As my colleagues admit , there was no evi-
dence that union animus motivated either the Re-
spondent's relocation decision or its actions regard-
ing Local 140 and the New York City employees.
The cases cited by the majority are factually in-
apposite. In Penntech Papers, Inc., 263 NLRB 264
(1982), enfd. 706 F.2d 18 (1st Cir. 1983), the em-
ployer failed to bargain in good faith with the
union over effects of its decision to close a facility
after it gave the union notice of the closing by re-
fusing to send a responsible official with sufficient
bargaining authority to the negotiations and by rep-
resenting to the union that the facility was not per-
3nently closed. In Thompson Transport Co., 184
N:,RB 38 (1970), the employer refused the union's
initial request to engage in effects bargaining and
did not agree to bargain until 5 weeks after the
union had been notified of the plant closing. In the
present case, however, the Employer offered to
bargain over the effects of the closing of the New
York facility within days of the closing of the facil-
ity and thereafter remained willing to bargain in
good faith with the Union.
Both Penntech and Thomspon Transport involve
late notice to the union. Both, however, contain, in
addition, much other evidence tending to demon-
strate bad faith on the part of the respective em-
ployers. Here, the majority bases its holding solely
on the concept that the union was due "an oppor-
tunity to bargain at a time when [it] retained at
least a measure of bargaining power." Such oppor-
tunity, according to the majority, can only occur
prior to the closure of the old operation. Presum-
ably it equates this rule to the "meaningful time" of
First National Maintenance Corp. v. NLRB, 452
U.S. 666, 681-682 (1981). I leave to one side the
question of whether these formulations are equiva-
lent because it need not be answered. The real
question is whether the failure to give pre-closure
notice to the Union by itself presents a per se viola-
tion of Section 8(a)(5). I conclude that it does not
because I can see no way in which pre-closure
notice, under these facts, would have affected the
Union's ability to extract concessions.
As found by the administrative law judge, almost
all the New York employees were "relatively un-
skilled ." Their average wage rates "were only
slightly above the Federal minimum wage." Sever-
al times during the life of the labor agreement, and
most recently in March 1983 , the Respondent's
president, Kay, had told the Union that the Re-
spondent was in poor financial straits and might
have to discontinue its New York operation.'
The evidence shows that the Company's eco-
nomic situation was abysmal in 1982 and, even
more significant , in 1983 . Some of the Respondent's
customers had failed to pay for delivered goods.
The Respondent , consequently , was unable to meet
its obligations . Among these were loan payments
on the amount of $3668.34 per month to the Atlan-
tic Bank of New York and rental payments for
1983 at its Union City facilities . On several occa-
sions the Respondent's payroll checks were dishon-
ored. The Respondent was unable to make pay-
ments to Local 140's welfare fund under the collec-
tive-bargaining contract . It was in arrears on New
York, New Jersey, and Federal taxes.
In late October 1982 the Atlantic Bank served
the Respondent with a summons and complaint
whereby it sought to foreclose the mortgage on the
Respondent 's New York facilities . Besides its then-
current tax arrearages, the Respondent owed
money to many of its suppliers.
These facts make the majority opinion's discus-
sion of comparative "bargaining power" an exer-
' The majority finds, and I agree , that these comments lacked the spec-
ificity of detail to constitute notice McGregor Printing Corp, 163 NLRB
938 (1967).
METROPOLITAN TELETRONICS
cise in abstraction rather than an empirical compar-
ison . Whatever the Union 's abstract "bargaining
power" prior to the closure-presumably based on
its power to withhold the services of its members-
that "bargaining power" must be measured oper-
ationally by the possible concessions it could ex-
tract. I do not believe anyone familiar with the
conduct of business would say that local 140, with
these members, had any meaningful chance of ex-
tracting substantial concessions from the Respond-
ent prior to the new Jersey move. That those
chances may also have been poor following the
New Jersey move cannot render the Respondent's
pre-move position a violation of Section 8(a)(5).
Penntech Papers, cited by the majority, recognizes
this possibility, for the court stated, "A concomi-
tant element of `meaningful ' bargaining is timely
notice to the union . . . so that good faith bargain-
ing does not become futile or impossible." Penntech
Papers v. NLRB, 706 F.2d 18, 24 (1st Cir. 1983).
(Emphasis added .) If no real loss of bargaining
power is shown, the mere timing of the notice be-
comes an irrelevancy and cannot, by itself, create a
violation of Section 8(a)(5).
When the per se theory of violation espoused by
the majority is put to one side, the record demon-
strates a high degree of bona fides on the part of
this Respondent. In early April 1983, two events
occurred which alleviated the Respondent's finan-
cial situation: (1) the Respondent entered into an
agreement with the New Jersey Economic Devel-
opment Authority whereby it could gain additional
capital by the sale of $975,000 in bonds; and (2) the
Respondent sold its New York location for
$350,000. This fresh infusion of capital with pros-
pects for future augmentation gave the Respondent
needed maneuvering room and, significantly for its
dealings with Local 140, the possibility of meaning-
ful proposals.
The Respondent transferred its operations to
New Jersey on 10 April, within a few days of these
events. Upon inquiry, the Respondent wrote the
Union on 13 April stating its readiness to bargain
"concerning the effect of this move on our current
New York employees."2 On 4 May, at a meeting
of the parties, the Respondent offered to employ
the New York employees at the new Jersey City
facility. The Union countered with a proposal that
the Respondent should pay these employees' travel
expenses and, in addition, recognize Local 140 as the
bargaining representative at the new location.3 The
Y The Respondent did not formally discharge its New York employees
during the transfer Those employees were on strike at that time
a This issue clearly represents Local 140's chief concern both in these
negotiations and the subsequently filed charges The grant of recognition
to Local 148 is what made the Respondent's offers unacceptable "because
they did not cure its unfair labor practices "
963
following day, the Respondent made a written
offer whereby it proposed to give $300 severance
pay or an offer of employment at Jersey City
under the terms of the Local 148 contract.4 The
Respondent proposed that any NLRB charges hith-
erto filed against it should be withdrawn. Receiv-
ing no answer, the Respondent wrote again to
Local 140 on 20 May. Finally, on 24 May, Local
140 replied that the Respondent's 4 and 13 May
offers were ."unacceptable" because they "[did] not
cure its unfair labor practices." Local 140 made no
additional counterproposals or further attempt to
bargain with the Respondent. As the administrative
law judge properly found, these exchanges reflect-
ed the Respondent's good faith in dealing with the
effects of the transfer on its employees.5 When the
Respondent was in a financial position to do so, it
attempted to deal meaningfully with Local 140's
questions over the effects of the transfer. Local
140, unfortunately, proved to have purely institu-
tional concerns on its mind.
I have not, as the majority intimates, meant to
confine Local 140's interest to concessions "involv-
ing 'substantial' cost" to the Respondent nor do I
propose, as the majority explicitly states, a different
rule for "low-skilled and low -paid" employees. The
question here revolves not around the costs to the
Respondent or the wage and skill levels of the em-
ployees but whether Local 140's bargaining power
was lessened or destroyed by the Respondent's ac-
tions in this case. Evaluating that question requires
a look at all the surrounding facts and circum-
stances including the Respondent 's economic situa-
tion, the composition of the work force, and, most
particularly, the Respondent's postclosure conduct.
I characterize the majority's approach as "per se"
because it ignores every fact in the case with the
exception of the timing of the notice to Local 140.
That approach is no less per se because the Re-
spondent might have demonstrated (which it did
not) some emergency which, in the majority's
view, would have excused notice.
The majority, while rejecting the possibility that
they have erected a per se rule, proceeds to specu-
late on what Local 140 could have obtained with
pre-closure bargaining . One of those items is em-
ployment for its members at the new location, a
concession actually offered by the Respondent.
The other benefit is representation rights for Local
4 The terms of this contract were substantially similar to those of the
Local 140 contract.
5 I note that the Respondent 's $300 severance pay offer, for instance, is
comparable in amount to the 2 weeks ' minimum backpay award the ma-
jonty would grant as part of its Transmanne remedy The Respondent's
offer was thus comparable to what the majority believes is minimally re-
quired to restore the Union's "bargaining power "
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
140 at the new location. The majority found no
violation in the Respondent 's having recognized
another labor organization (Local 148) at the new
location , but in this context they speculate that
such recognition resulted from the lack of proper
effects bargaining with Local 140. Leaving aside
the fact that Local 148's Union City employees
outnumbered Local 140's New York contingent, I
believe these propositions to be inconsistent.
The majority, finally, comments that there is "no
precedent" for a contrary position. Such lack of
precedent can be attributed only to the uncommon
factual situation of this case. Yet it is exactly such
cases that call for precise and detailed analysis in-
stead of the application of general rules derived
from factually inapposite precedent . Such analysis
is the foundation of the expertise in industrial dis-
putes generally attributed to this Agency by the
Federal courts.
Under these circumstances , I agree with the
judge that the Respondent did not violate Section
8(aX5) of the Act. Accordingly, I would dismiss
this complaint allegation.
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
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively threough representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT fail to bargain in good faith with
Bedding , Curtain & Drapery Workers Union,
Local 140, United Furniture Workers of America,
AFL-CIO concerning the effects on employees of
our decision to close our New York City facility
and relocate our business in Jersey City, New
Jersey.
WE WILL NOT in any like or related manner
interfere with , restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, bargain collectively in
good faith with Bedding, Curtain & Drapery
Workers Union, Local 140, United Furniture
Workers of America, AFL-CIO with respect to
the effects on employees of our decision to close
our New York City facility and relocate our busi-
ness in Jersey City, New Jersey, and, if an under-
standing is reached , embody the understanding in a
signed agreement.
WE WILL pay the former New York City em-
ployees we terminated when we closed our new
York City facility in April 1983 their normal wages
for a period specified by the National Labor Rela-
tions Board , plus interest.
METROPOLITAN TELETRONICS CORP.
Carole Sobin, Esq. and Marisel Ayabarrero, Esq., for the
General Counsel.
Robert Ferris, Esq., of New York, New York, on behalf
of Metropolitan Teletronic Corp.
Lloyd Somer, Esq., of New York, New York, for Local
148.
Vicki Erenstein, Esq. (Sipser, Weinstock Harper, Dorn &
Leibowitz), of New York, New York, for Local 140.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN , Administrative Law Judge.
These consolidated cases were heard by me in New
York, New York, on October 12, 13, and 14, 1983. The
charge in Case 2-CA-19571 was filed on April 12, 1983,
the charge in Case 2-CA-19657 was filed on May 19,
1983, and the charge in Case 2-CB-9912 was filed on
May 1983. The complaint in Case 2-CA-19571 was
issued on May 27 , 1983, and a consolidated complaint
was issued in Cases 2-CA-19657 and 2-CB-9912 on June
29, 1983 . On July 6, 1983, an order consolidating all
three cases was issued.
The allegations of the complaints are as follows:
(1) That the Company relocated certain of its oper-
ations from New York City to Jersey City, New Jersey,
without bargaining about the decision or its effects, with
Bedding, Curtain & Drapery Workers Union, Local 140,
United Furniture Workers of America, AFL-CIO (Local
140). In this respect , the General Counsel alleges that the
Company violated Section 8(axl) and (5) and Section
8(d) of the Act.
(2) That on the relocation to Jersey City, the Compa-
ny unlawfully recognized and entered into a collective-
bargaining agreement, containing a union -security clause,
with the Production Workers Union, Local 148 a/w
International Union of Allied Novelties and Production
Workers. In this regard , the General Counsel contends
that such recognition was granted at a time when there
did not exist a representative complement of employees
and therefore the Company violated Section 8(axl), (2),
and (3) of the Act. (The 8(aX3) allegation is based on the
fact that the contract between the Company and Local
148 contains a union -security clause.)
METROPOLITAN TELETRONICS
(3) That Local 148 violated Section 8(bx1XA) and (2)
of the Act by accepting recognition and by entering into
the aforesaid contract.
The positions of the Company and Local 148 are as
follows:
(1) The Company contends that due to economic con-
siderations , namely, financial losses and the commence-
ment of an action to foreclose the mortgage on its New
York building (owned by the Company), it had no realis-
tic choice but to vacate that building and relocate. The
Company asserts that its decision to relocate was not re-
lated to labor costs under its contract with Local 140
and that, given the circumstances , it would have been
futile to bargain about that decision. Thus, although
there is no real dispute that the Company did not offer
to bargain about its decision to relocate, it asserts that,
given the particular circumstances of this case , it did not
violate Section 8(axl) and (5) of the Act.
(2) The Company asserts that economic circumstances
caused it to vacate its New York City facility and that it
was not motivated by discriminatory reasons. It therefore
contends that it did not violate Section 8(aX3) of the
Act.
(3) The Company contends that it did, in fact, offer to
bargain with Local 140 concerning the effects of the re-
location. It asserts that such bargaining was thwarted by
Local 140's insistence that the Company not only offer
jobs at the new location, but that it recognize Local 140
as the representative at the new location. In this regard,
the Company asserts (as noted below) that the Jersey
City facility was a new operation which resulted from
the relocation not only of the New York facility, but also
from the relocation of its other plant previously located
in Union City, New Jersey, which had a labor agreement
with Local 148. As a majority of the new facility's em-
ployees were transferees from Union City, it is argued
that the Company could not legally agree to Local 140's
condition that it be recognized at the new location, and
that if it had acceded to that condition it would have
been in violation of Section 8(aX2) of the Act.
(4) The Company and Local 148 contend that as the
new facility was populated by employees , a majority of
whom were transferred from the Company's plant in
Union City, the collective-bargaining agreement extant at
Union City automatically extended to the Jersey City fa-
cility. Also, they dispute the General Counsel's assertion
that at the time the contract was applied to Jersey City,
that plant did not employ a representative complement
of employees. Thus, although it is acknowledged that
company representatives, at various times, publicly ex-
pressed the intention of employing about 200 employees,
they argue that these statements should be construed as
wishful thinking and nothing more . It therefore is con-
tended that during the period subsequent to the move
(and until the date of the hearing), the Company em-
ployed a maximum work force of about 68 employees
and that when Local 148's contract was applied to this
new facility, the plant was fully operational . Because a
majority of the Jersey City work force were formerly
members of Local 148, and only two were transferees
from New York City, it is contended that the extension
965
of the Union City contract to the Jersey City work force
was legal.
Based on the entire record in this proceeding , includ-
ing my observation of the demeanor of the witnesses,
and on consideration of the briefs filed, I make the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
The Company Is a New York corporation which is en-
gaged in the business of refurbishing old telephones for
resale . During the calendar year 1982 the Company, at
its New York City facility, sold and shipped goods
valued in excess of $50 ,000 directly to firms located out-
side the State of New York. It therefore is concluded
that the Company is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATIONS INVOLVED
It was agreed by the parties and I find that Local 140
and Local 148 are labor organizations within the mean-
ing of Section 2(5) of the Act.
III. THE OPERATIVE FACTS
Prior to April 1983, the Company had two plants for
its business operations , one located at 18th street in New
York City and the other located in Union City, New
Jersey . Both facilities employed production employees
who did the work of refurbishing old telephones for
resale . Essentially the work done at each plant was the
same and almost all the employees were relatively un-
skilled . The building containing the New York plant was
owned by the Company, but was subject to an outstand-
ing mortgage held by Atlantic Bank of New York.
The production employees at the New York City plant
were represented by Local 140 . The most recent collec-
tive-bargaining agreement between Local 140 and the
Company ran from June 20, 1980, to March 19, 1983.
The production employees at Union City were represent-
ed by Local 148 and its contract ran from August 26,
1981, to August 24, 1984. In March 1983, and prior to
the relocation of both plants to Jersey City, the New
York City plant employed about 26 production employ-
ees. A review of the two collective -bargaining agree-
ments indicates to me that the monetary terms of each
were roughly comparable although it could be said that
the agreement with Local 140 was marginally better. In
both cases the average wage rates were only slightly
above the Federal minimum wage.
During the life of the labor agreement covering the
New York City operation , there were several occasions
when Company President Alpay Kavountzis (Al Kay),
told Union President Enio Carrion that the Company
was in poor financial straits and that he might have to
discontinue operations in New York . The last of these
occasions occurred in March 1983, but the evidence does
not reveal that Al Kay was specific in detailing his trou-
bles or that he informed Carrion of any intended course
of action.
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is, however, no doubt about the Company's
economic situation in 1982 and 1983 which can only be
described as being poor to abysmal . In fact , the record
shows that a couple of the firms which were customers
of the Respondent failed to pay for goods received and
that the Respondent , in turn, was unable to pay certain
of its own obligations . In May 1982, the Company ob-
tained a large loan from the Atlantic Bank of New York
using its New York City building as collateral . In this re-
spect, the loan called for repayments in the amount of
$3668.34 per month, which payments the Company
largely failed to make. Also, in 1983, the Company failed
to pay the rent for the facilities it occupied in Union
City and there were a few occasions when payroll
checks bounced . Also, the Company was not making
payments to Local 140's welfare fund, as required by the
contract , and it was in arrears for state and Federal
taxes.
In September 1982, Al Kay purchased a building for a
purchase price of about $70,000 in West New York, New
Jersey, with the intention of relocating his Union City
operation . Al Kay paid about $20,000 and the mortgage
on this building was held by the seller . For better or
worse, the Company did not utilize the West New York
building and its initial payments were lost.
On October 25, 1982, the Respondent was served with
a summons and complaint by the Atlantic Bank which
sought to foreclose the mortgage on the New York City
building . The evidence shows that at about the same
time , the Respondent owed back taxes to New York
State, New Jersey, and the Federal Government, in addi-
tion to owing sums of money to many of its suppliers
and to Local 140's welfare fund.
About November 15, 1982, the Respondent was con-
tacted by Morton Ruderman of the Archie Schwartz
Company, a broker of industrial property, who negotiat-
ed with Al Kay over the purchase of property in Jersey
City. The first draft of a contract of sale of the Jersey
City property was written in December. However, the
final contract was not executed until March 30, 1982,
and the closing on the property occurred on May 25,
1982. Participating in the negotiations over the purchase
of the Jersey City property were representatives of New
Jersey's Economic Development Authority who appar-
ently were seeking to find and aid companies willing to
locate in some of the lower income areas of New Jersey
and to hire the hardcore unemployed . In early April
1983, Al Kay applied to the New Jersey Economic De-
velopment Authority for a $975,000 loan in order to help
him purchase, renovate , and equip the Jersey City facili-
ty. The loan application stated that the Company
planned to create 200 permanent new jobs.
According to Al Kay, about April 1983, a person,
Paula Kramer , appeared who expressed an interest in
buying the New York City building . He stated that after
a short negotiation Kramer agreed by contract dated
April 5, 1983, to buy the building for $350,000, which
would then enable him to repay the loan to the Atlantic
Bank, to pay off other outstanding debts, and to enable
him to pay for the property in Jersey City.
While the Company engaged in negotiations over the
purchase and sale of property described above, Local
140 on January 12, 1983 , sent a notice to the Company
indicating its desire to negotiate for a new contract. Be-
cause the Company did not respond to this notice, the
Union sent a second notice on January 21, 1983 . On Feb-
ruary 18, 1983, the Company , through its attorney,
Ferris, sent a letter to the Union indicating that it was
willing to commence negotiations on March 7. However,
when the union representatives went to Ferris' office on
March 7, he was unavailable , and the Union left a copy
of their contract demands with his secretary. According
to Ferris, the Union was given a copy of the Company's
demands on the same date.
On March 8 Carrion and Ferris set up a meeting for
March 23 and that meeting was held. According to Car-
rion, Ferris presented the Company 's demands at that
meeting . Carrion states that when he reviewed the Com-
pany's demands, he told Ferris that the Union would not
agree to "give backs" as set forth in the Company's pro-
posals . He also testified that Ferris , at this meeting, asked
that the contract be extended without modification for 1
year . He stated that when he rejected this proposal,
Ferris proposed that the contract be extended for 3
months . By letter dated March 23, Ferris wrote to Carri-
on, as follows:
I refer to our conversation of today concerning
the exchange of demands for the aforementioned
labor contract between Local 140 and Metropolitan.
At the present time , Metropolitan is under in-
credible financial pressures and in finding it an
almost impossible task to even meet the daily busi-
ness expense requirements . As a result, Mr. Kay has
been forced to cut back substantially on new orders
since he is not in a position to even purchase the
materials.
In view of the above, and in an effort to cooper-
ate with Local 140, we respectfully propose that the
current agreement be extended in toto through June
19, 1983, at which time we can review the situation
and decide the next bargaining step , hopefully to
review the proposals submitted by both sides.
If this suggestion meets with the approval of
your constituents, please confirm same in writing to
me and we will prepare the appropriate stipulation.
Following the meeting of March 23, the Union held a
meeting with the Company's New York employees on
March 28 . At this meeting the Company's proposal to
extend the contract for 3 months was rejected . Carrion
then called Ferris and set up another meeting for April
4.
On April 4 a meeting was held at Ferris' office. Ac-
cording to Carrion, at one point in the meeting, he
showed Ferris an article from a New Jersey newspaper
dated April 1, relating to the Company 's purchase of the
Jersey City facility and asked Ferris what he knew about
it. Carrion asserts that Ferris said that he knew nothing
about it . Ferris admitted that by April 4, he was fully
aware of the fact that the Company was purchasing the
Jersey City building and was transferring its operations
from Union City . He concedes that he did not discuss
METROPOLITAN TELETRONICS 967
the Jersey City move with Carrion at the April 4, 1983
negotiating session or at any previous time.
On April 5 Carrion called Ferris on the phone , and the
latter said that the Company would not accept the final
union contract proposals . Accordingly , on April 6, the
Uion commenced a strike at the New York City facility.
About April 10, the union's representatives saw that
trucks began arriving at the New York City facility and
were being unloaded at the Jersey City facility . There is,
in fact, no dispute that during this time the Company
began to vacate the New York City plant and to move
its goods and equipment to Jersey City.
On April 11, 1983, the Union's attorney, Vicki Eren-
stein , sent a letter to Ferris which stated:
Our client , Enio Carrion , President of Bedding,
Curtain & Drapery Workers Union, Local 140,
United Furniture Workers of America has received
information that your client, Metropolitan Tele-
tronic Corp. has purchased a new facility in New
Jersey, resulting in a wide variety of rumors con-
cerning your intention of continuing your oper-
ations in New York.
Under the National Labor Relations Act, you are
obliged to advise the union of any projected change
in your operations insofar as it may affect your em-
ployees . Will you therefore advise the undersigned
in writing of the following:
(1) Whether you are planning to terminate your
operations at your New York location. If you do
plan any such termination , please advise us of the
approximate contemplated termination date.
(2) Whether you are planning to move your New
York operations to some other location. If so,
where, and the approximate date of such planned
move.
(3) Whether you are planning to change the
nature of your New York operations. If so, the
nature of such change and the contemplated date of
such change.
(4) Whether you are planning to sell or otherwise
assign your New York operations, whether you are
soliciting offers for sale, lease , or other disposition
of your New York premises or operations, or
whether you have already sold or leased the same.
(5) Whether you are planning to phase out your
New York operations and/or employees. If so, will
you advise us of such plans insofar as they affect
your employees, including your best estimate of the
rate of such phasing out, including projected date
and number of employees.
We would appreciate your earliest possible re-
sponse.
On April 13 Ferris responded as follows:
Referring to the above client and your letter to
me dated April 11, 1983 , the move of my client to
New Jersey was long known by Local 140.
In any event, we are prepared to bargain with
Local 140 concerning the effect of this move on our
current New York employees. Please contact me
upon receipt to discuss a mutually acceptable date
and time.
About April 18 the Union set up a picket line at the
Jersey City facility, which the Company attempted to
enjoin in a New Jersey court. As part of its moving
papers , certain affidavits were filed which asserted, inter
alia, that the Company intended to employ a total of
about 200 people and that they were in the process of
interviewing , hiring , and training new people.
On April 19 Erenstein sent another letter to Ferris
which stated:
We are in receipt of your letter of April 13, 1983,
in which you offered to bargain with Local 140
concerning the effects of Metropolitan 's removal of
its operations from New York . We have learned
from newspaper articles that the Company is relo-
cating its bargaining unit operations to Jersey City.
Under those circumstances , you are advised that
Local 140 remains as the collective bargaining rep-
resentative of your production and maintenance em-
ployees.
We are prepared to meet with you at any time on
Friday, April 22 or Saturday, April 23, 1983 to dis-
cuss with you and your client all matters arising out
of the transfer of operations.
By letter, dated April 20, Ferris responded as follows:
Article 1 of the Collective Bargaining Agreement
by and between Local 140 and Metropolitan clearly
states that Local 140 represents only those employ-
ees "employed by the employer at its 134 West 18th
Street, New York, New York location."
It is my understanding that the New Jersey em-
ployees of Metropolitan are represented by the Pro-
duction Workers Union Local 148.
In the event that local 140 wishes to discuss the
contents of my letter to you dated April 13, 1983,
please advise me accordingly.
On April 25 the Company and Local 148 executed
both a supplemental agreement and a full collective-bar-
gaining agreement covering the production employees at
the Jersey City facility . In essence, these contracts
merely extended the terms and conditions of the existing
contract already in effect at Union City to the new loca-
tion at Jersey City.
On May 12 a meeting was held between Local 140 and
Ferris . At this meeting the Company offered to employ
at the Jersey City facility, the employees from New
York. Erenstein , in response , demanded that in addition
to such job offers , the Company should pay their travel
expenses and that Local 140 be recognized as bargaining
representative.
On May 13 Ferris wrote to Erenstein as follows:
Confirming our conversation of yesterday, my
client is prepared to offer the employees , on its pay-
roll as of the day prior to the strike, the following:
A. Severance pay of $300.00 or
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. An offer of employment in Jersey City, pur-
suant to all of the terms and conditions of the
current Local 148 agreement and
C. Withdrawal of all charges against Metropol-
itan before the NLRB , cessation of all litigation
(if any), and a representation that no future
charges will be made against Metropolitan
If the above is acceptable , please so indicate in
writing so that we can begin to implement same.
I hope that we can resolve our differences and fi-
nalize this matter.
On May 20 Ferris again wrote to Erenstein, indicating
that he had not received a reply to the Company's offer
of May 13. On May 24 Erenstein did reply in writing as
follows:
The Company's offer of settlement contained in
your letter of May 13, 1983 does not cure its unfair
labor practices, and is therefore unacceptable to our
client.
Subsequent to the exchange of letters on May 13, 20,
and 24, no further meetings or communications were had
between the Company and Local 140.
With respect to the Company's complement of em-
ployees, the payroll records indicate that during the
week ending March 31, 1983, the Company employed,
on an hourly basis, approximately 20 production workers
at its Union City plant and 26 production employees at
its New York City facility. The Company executed its
contract to buy the Jersey City property on March 30,
1983. By April 6 the New York City plant was no longer
functioning as a result of a strike, and about April 10 the
Company began to vacate the New York City plant and
move its goods and equipment to Jersey City. Also
during this period , the Company began transferring its
Union City employees to the Jersey City plant. The pay-
roll records do not indicate how many employees
worked in Jersey City and how many were employed in
Union City at any given point. However, the Company's
president testified that his entire Union City operation
had been transferred to Jersey City, with the exception
of two employees. By April 22, 1983, production had
commenced at the new location and no one remained at
the Union City facility as of April 27, 1983. The payroll
records show that by the week ending April 22, 1983,
the Company employed about 35 hourly paid production
workers. Five of the 35 on payroll had been hired by the
Company during the first 2 weeks in April, 2 had been
transferred from the New York City facility, and the re-
maining 28 had come from the Union City facility. Be-
tween April 22 and 29, the Company hired 9 more new
employees thereby increasing its production staff to a
total of 44 employees . On the date this case was heard in
October 1983, the Company's work force had expanded
to a total of about 68 production workers , the maximum
of number of workers employed by the Company at its
Jersey City facility.
IV. ANALYSIS
The present case essentially involves a situation in
which the Company, after the expiration of its agreement
with Local 140 and during the midterm of its contract
with Local 148, relocated and consolidated its two oper-
ations in one newly purchased facility in Jersey City
without notifying the Charging Party Local 140 of, or
bargaining over , its relocation decision . Although the
vast majority of the Union City employees continued
working for the Company at the Jersey City facility,
only two employees from the New York City plant
transferred to the new location, and the Company con-
tinued to recognize Local 148 as the bargaining agent of
its employees at Jersey City. The motivating factors
behind the relocation decision were economic, inasmuch
as a foreclosure action had been initiated against the
Company's New York City facility and the Company an-
ticipated that it would receive a loan from the State of
New Jersey in return for its promise that it would
employ more residents of the State. Thus, it cannot be
said that the Company manifested any animus toward
Local 140 in its decision to relocate. Nevertheless, ques-
tions remain whether the Company transgressed provi-
sions of the Act by failing to notify Local 140 of, and to
bargain over, the relocation decision and its effects and
whether both the Company and Local 148 violated the
Act by entering into a collective-bargaining agreement
on relocation to Jersey City.
The record indicates that both before and during the
negotiations with Local 140 over a new contract to
cover its New York City employees, the Company did
not reveal its plan to buy the Jersey City facility and
close its New York City and Union City operations. As
early as November 1982, the Company began negotiating
the purchase of the Jersey City property and a draft of a
purchase agreement was drawn up the following month.
In January 1983, Local 140 notified the Company of its
desire to begin negotiating a new contract as its current
contract was due to expire in March 1983. The Company
failed to apprise the Union that a relocation to Jersey
City was being contemplated at that time. Moreover,
during collective-bargaining sessions in March and April
1983, and while New York City employees remained on
strike after an impasse was reached , company negotiators
who were fully aware of the Company's activities, failed
to disclose to Local 140 representatives that the Jersey
City facility had been purchased, and that the Company
was planning to sell its New York City plant and relo-
cate its operations. Thus, Local 140's striking workers
were taken by complete surprise when equipment from
the New York City plant began being loaded on trucks
bound for Jersey City.
Various Board decisions have held that a company en-
gages in bad-faith bargaining by concealing from the
Union during negotiations its previously made decision
to substantially alter its operations. Avila Group, 218
NLRB 633 (1975); Garment Workers, 182 NLRB 958
(1971), enfd. 463 F.2d 907 (D.C. Cir. 1972); McGregor
Printing Corp., 163 NLRB 938 (1967). As evidence of its
claimed good faith, Respondent points to the fact that on
several occasions it advised Local 140 that it might be
METROPOLITAN TELETRONICS
necessary to close the New York operation. In this re-
spect the present case is similar to McGregor Printing
Corp., in which, in finding that the employer had violat-
ed Section 8(a)(5) by failing to notify the Union of its de-
cision to permanently close its plant during a strike, the
Board remarked , "although Respondent had in every
bargaining session , stated that it might become necessary
to close the plant if an acceptable agreement were not
reached . . this did not amount to notice, and was
rightfully construed by the [Union] as merely a 'bargain-
ing tactic"' 163 NLRB at 938 . Similarly , Respondent's
statements in the instant case that it might have to shut
down its New York City plant did not constitute suffi-
cient notice. Consequently, Respondent's failure to notify
Local 140, during negotiations, of its relocation decision
clearly reflected bad-faith bargaining on its part.
Although Respondent negotiated in bad faith by failing
to notify the Union of its relocation decision, it is never-
theless necessary to determine whether Respondent's re-
fusal to bargain with the Union over the decision , itself,
amounted to a violation of the Act.
The Supreme Court in First National Maintenance
Corp. v. NLRB, 452 U.S. 666 (1981), held that an em-
ployer has no obligation to bargain about its decision to
terminate a part of its business provided that the decision
was not discriminatorily motivated. The Court did not,
however, purport to overrule earlier Board and court
holdings concerning relocation decisions ' and stated at
footnote 22, "In this opinion we of course intimate no
view as to other types of managerial decisions, such as
plant relocation, sales , other types of subcontracting, au-
tomation, etc., which are to be considered on their par-
ticular facts."
In First National Maintenance the Supreme Court dis-
tinguished between three categories of managerial deci-
sions in relation to the bargaining obligations imposed by
Section 8(a)(5) of the Act. In the first category of deci-
sions, "such as choice of advertising and promotion,
product type and design , and financing arrangements,"
the Court opined that these types of decisions did not re-
quire bargaining as they "have only an indirect and at-
tenuated impact on the employment relationship." In the
second category, including order of succession of layoffs
and recall, production quotas, and work rules, the Court
concluded that decisions of this nature are "almost exclu-
sively 'an aspect of the relationship' between employer
and employee." Thus, concerning category two types of
decisions, it is reasonable to conclude that the Court
would invariably require decision bargaining absent
union waiver.
The Court also set forth a third category of decisions
which, while involving "a change in the scope and direc-
tion of the enterprise ," also are of "central and pressing
concern to the Union and its member employees." Con-
cerning category three type decisions, the Supreme
Court in First National Maintenance, stated that the obli-
gation to bargain will depend largely on whether "the
' See, e g , Park-Ohio Industries, 257 NLRB 413 (1981), enfd 752 F 2d
624 (6th Cir 1983), Garment Workers v. NLRB, 463 F 2d 907 (D C Cyr
1972), Weltromc Go, 173 NLRB 235 ( 1968), enfd 419 F 2d 1120 (6th Cu
1969), cert denied 398 U S . 938 (1970).
969
subject proposed for discussion is amenable to resolution
through the bargaining process ." The Court further
stated that bargaining over management decisions "that
have a substantial impact on the continued availability of
employment should be required only if the benefit for
labor management relations and the collective bargaining
process outweighs the burden placed on the conduct of
the business."
In essence, therefore, the Court in First National Main-
tenance prescribed a balancing test for cases involving
category three types of managerial decisions . It did not
state, however, that such decisions only would be subject
to bargaining if they are motivated solely by labor cost
considerations. Although a managerial decision which is
taken for the purpose of reducing labor costs would pre-
sumptively be amenable to the bargaining process be-
cause the Union would be in a position to make direct
concessions in this area , this does not necessarily mean
that the bargaining process cannot be used to resolve de-
cisions motivated by other considerations. For example,
even when managerial decisions to subcontract , relocate,
etc., are made for reasons completely divorced from
labor cost considerations, it is conceivable that manage-
ment may change its mind if a union were to make con-
cessions not only on wage rates, but also with respect to
work rules, productivity programs , etc. (In short , a union
may make an offer which a Company cannot refuse.)
For instance, in a case recently tried before me (Liquid
Carbonic Corp., 257 NLRB 686 (1983)), the Company as-
serted that its decision to subcontract out certain driving
work was motivated by cost considerations separate and
apart from labor costs. Yet, at the same time, company
representatives conceded that they nevertheless would
have preferred to retain control over the work and
would have done so had the Union made contract con-
cessions.
The Board's recent case of Otis Elevator Co., 269
NLRB 891 (1984), does not assist me regarding the ab-
stract question whether a company must bargain about
its decision to relocate. Thus, although all the Board
members agreed, on the facts of that case, that decision
bargaining was not required , there was no majority opin-
ion about the rationale. According to Board Members
Dotson and Hunter, the critical factor is whether the de-
cision to relocate turned on a "change in the nature or
direction of the business, or turns on labor costs." They
opined that the question of whether a bargaining obliga-
tion exists is not dependent on the decision 's "effect on
employees nor a union 's ability to offer alternatives." It
therefore appears that these two Board members would
determine that a managerial decision of a category three
type would be amenable to bargaining only if it turned
on labor costs , even if in a particular case , a union was in
a position to offer alternatives. In this respect I do not
believe that this is what the Court intended in First Na-
tional Maintenance. On the other hand, Board Members
Dennis and Zimmerman , in their concurring opinions,
did not automatically equate labor costs to the question
of whether a decision is amenable to bargaining.
In the present case, the evidence establishes that Re-
spondent's decision to relocate was motivated by the
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commencement of a foreclosure action on the New York
City building and Respondent's belief that the State of
New Jersey would offer it a sizeable loan in return for its
promise to employ more residents of that State. It is
clear that prior to its sale of the New York City facility,
the Company did not have the resources to pay off the
bank loan nor many of its other debts. Thus, the Re-
spondent's decision to relocate was based solely on eco-
nomic factors wholly independent from the employment
relationship between Respondent and its New York City
employees . Moreover , the Union was not in a realistic
position to make labor cost concessions which would
have helped forestall the foreclosure action and alleviate
the Company 's serious financial plight as contractual pay
rates at the New York City plant were only marginally
above the federal minimum wage level, and other bene-
fits were minimal . Under such circumstances, it seems to
me that bargaining over the decision to relocate would
likely have been futile. See, e.g., NLRB v. Transmarine
Navigation Corp., 380 F.2d 933 (9th Cir. 1967), remand-
ing 152 NLRB 998 (1965), NLRB v Rapid Bindery, 293
F.2d 170 (2d Cir. 1961), modifying 127 NLRB 212
(1960); NLRB v. Royal Plating & Polishing, 350 F.2d 191
(3d Cir. 1965), enf. denied in relevant part 148 NLRB
545 (1964); Raskin Packing Co., 246 NLRB 78 (1979). I
therefore conclude that the Company was under no stat-
utory obligation to bargain over its plant relocation deci-
sion in this case.
Although Respondent was under no duty to bargain
with Local 140 over its plant relocation decision, it was,
however , obligated to bargain with the union over the
effects of this decision on company employees. Garment
Workers v. NLRB, 182 NLRB 958 (1970), enfd. 463 F.2d
907 (D.C. Cir. 1972). As the Supreme Court held in First
National Maintenance Corp. at 681-682:
There is no dispute that the union must be given a
significant opportunity to bargain about these mat-
ters of job security as part of the "effects" bargain-
ing mandated by § 8(a)(5). See, e.g., NLRB v. Royal
Plating & Polishing Co., 350 F.2d 191, 196 (CA 3
1965); NLRB v. Adams Dairy, Inc., 350 F.2d 108
(CA 8 1965), cert. denied. 382 U.S. 1011 (1966).
And, under § 8(a)(5), bargaining over the effects of
a decision must be conducted in a meaningful
manner and at a meaningful time , and the Board
may impose sanctions to insure its adequacy.
The General Counsel contends that Respondent failed
to fulfill its "effects" bargaining obligation by condition-
ing negotiations on the withdrawal of all charges against
the Company before the NLRB and reinstatement of em-
ployees on the acceptance of Local 148's contract terms.
The General Counsel argues that such conditional bar-
gaining violated Section 8(a)(5) because it amounted to
no bargaining at all. On the other hand, the Company
maintains that it did, in fact , offer to and did engage in
good-faith bargaining concerning the effects of the relo-
cation decision and that such bargaining was thwarted
by Local 140's insistence that the Company recognize it
as the bargaining agent at the Jersey City facility.
The record reveals that the Company offered to bar-
gain over the effects of its plant relocation decision and
did sit down with Local 140 to exchange proposals. Con-
trary to the General Counsel 's contention, I find that the
Company's offer of reinstatement , in return for the
Union's acceptance of Local 148's contract terms and the
withdrawal of charges, fell short of unlawful condition-
ing bargaining . In so concluding , I note that Respondent
did not refuse to bargain over the effects of the reloca-
tion unless the Union agreed to its terms and did not pre-
clude the reinstatement of employees in Jersey City
without such an agreement . See National Family Opinion,
246 NLRB 521 (1979). The Company negotiator's May
13 letter , in fact, asked the Union to respond if the terms
offered by the Company were "acceptable" thereby af-
fording the Union the opportunity to reject the proposals
and offer counterproposals . The Union , however , failed
to respond with a counteroffer , and no further communi-
cations were exchanged . In Carlsen Porsche Audi, 266
NLRB 141 (1983), the Board agreed with the administra-
tive law judge 's conclusion that it is permissible for ne-
gotiating parties to discuss nonmandatory subjects of bar-
gaining , such as the withdrawal of unfair labor practice
charges, so long as such matters are "not held out as a
condition on which agreement depended." Because the
Company in the instant case did not represent that its
participation in effects bargaining and conclusion of an
agreement depended on Local 140's withdrawal of
charges and acceptance of Local 148's contract terms, I
find that Respondent did not refuse to bargain over the
effects of its plant relocation decision in violation of the
Act.
Having concluded that the Company was not obligat-
ed to bargain over its plant relocation decision and that
it did , in fact, engage in effects bargaining as required by
the Act, the next question is whether the Company and
Local 148 violated the Act by concluding a supplemental
collective-bargaining agreement to cover the Jersey City
employees on relocation.
The facts in this case indicate that when the Company
purchased the new plant facility in Jersey City, it intend-
ed to transfer the work done at its Union City and New
York City facilities. Recognizing that its contract with
Local 148 was still in effect and anticipating that many
of its Union City employees would opt to transfer to
Jersey City, the Company on April 25, 1983, extended
the terms and conditions of its existing agreement with
Local 148 to cover its Jersey City employees. The exten-
sion agreement , however, was executed before the Com-
pany had offered to employ its Local 140 members at the
Jersey City facility. At the same time, it annnounced to
the public that it intended to employ , at some point in
the future, a total of 200 workers at the new plant. On
relocation to the new plant, of 44 production employees,
only 2 came from New York City, while 28 transferred
from Union City, and the rest were new hires. The
record does not indicate that any of the Company's
former New York City employees thereafter took jobs in
Jersey City In fact, approximately 6 months after the re-
location, the Company's production staff had increased
to a total of approximately 68 employees, and none of
METROPOLITAN TELETRONICS
the former New York City employees were working for
the Company at this time.
In her excellent brief, the General Counsel argues that
the Company and Local 148 violated the Act by reaf-
firming their collective-bargaining relationship and con-
cluding a supplemental agreement to cover the Jersey
City employees at a time when the new facility was not
yet fully operational but merely undergoing renovations
and the Company did not employ a representative com-
plement of employees. Specifically, the General Counsel
points to the fact that the Company recognized Local
148 as the bargaining agent at its new plant at the same
time that it publicly asserted that it intended to hire a
total of 200 employees at the Jersey City facility. Ac-
knowledging that Respondent never hired the 200 em-
ployees it predicted it would hire, the General Counsel
contends that the lawfulness of the recognition is deter-
mined at the time recognition was extended and not by
subsequent events.
It is clear to me that given the complement of employ-
ees at the Jersey City facility and the nature of the relo-
cation involved, the Respondent was obligated to contin-
ue its recognition of Local 148 as the bargaining repre-
sentative at the new plant.
The Board has held on numerous occasions that an
"existing and effective collective-bargaining agreement
will remain in effect following a relocation, provided op-
erations and equipment remain substantially the same at
the new location, and a substantial percentage of the em-
ployees at the old plant transfer to the new location."
Westwood Import Co., 251 NLRB 1213, 1214 (1980). See
also Tricor Products, 234 NLRB 65 (1978), Fairlawn Care
Center, 233 NLRB 1025 (1977), W. T. Grant Co., 197
NLRB 955 (1972), and International Paper Co., 150
NLRB 1252 (1965). Thus, for example, the doctrine was
expressed in General Extrusion Co., 121 NLRB 1165,
1167 (1958), in which the Board, in discussing its con-
tract-bar rules, stated:
Thus, we shall adhere to the rule that a contract
does not bar an election if changes have occured in
the nature as distinguished from the size of the op-
erations between the execution of the contract and
the filing of the petition , involving (1) a merger of
two or more operations resulting in creation of an
entirely new operation with major personnel
changes; or (2) resumption of operations at either
the same or a new location , after an indefinite
period of closing , with new employees . However, a
mere relocation of operations accompanied by a
transfer of a considerable proportion of the employ-
ees to another plant, without an accompanying
change in the character of the jobs and the func-
tions of the employees in the contract unit , does not
remove a contract as a bar.
Notwithstanding the general statement of principle
quoted above , questions anse in relocation cases regard-
ing what will constitute a substantial percentage of em-
ployee transfers and at what point in time do we measure
whether a substantial percentage of the new work force
is composed of transferees from the old location.
971
In Westwood Import Co., the Board made it plain that
after a relocation, a company would continue to be obli-
gated to honor the existing contract, even when the
transferees did not comprise a majority of the work force
at the new location when it became fully operational. In
that case, the Board concluded that when approximately
40 percent of the new work force was composed of
transferees, that would constitute a substantial percent-
age. See also W. T Grant Co., 197 NLRB 955 (1972).
In Westwood, the Board further indicated that the de-
termination of whether a substantial percentage of the
work force at the new location is composed of transfer-
ees should be made when the new facility becomes fully
operational. Obviously, this leaves some degree of
leeway and it does not appear that the point of measure-
ment must necessarily be either at the commencement of
operations, or when the new location has reached its
maximum level of employment.
In a relocation of the nature involved herein, it can be
expected that the transfer of equipment and employees
will occur expeditiously, rather than gradually, and oper-
ations will begin quickly. In Lqmmert Industries v.
NLRB, 578 F.2d 1223 (7th Cir. 1978), enfg. 229 NLRB
895 (1977), the Seventh Circuit enforced the Board's
holding that the company violated Section 8(a)(5) of the
Act when it withdrew recognition after a relocation
where 19 of the 26 employees of the new work force
consisted of transferees at the commencement of oper-
ations. The company's argument that the employee com-
plement should have been measured several months after
the opening was rejected and the court stated at 578
F.2d 1223:
Although we need not decide whether the Compa-
ny would have properly been ordered to bargain
with the Union if at the opening of the new plant,
less than a majority of the employees came from the
Union represented facility, we have no question but
that the appropriate point of analysis is ordinarily
the date the new facility opened and began full op-
erations. Replacements after that date do not, in
most situations, affect the presumption of the
Union's continuing majority status. Those replace-
ments are presumed to support the Union in the
same ratio as those they replace.
In addition , the court noted at 578 F .2d 1224:
Moreover, even if the employer demonstrates that
an expansion is contemplated , the Board will not
delay the bargaining obligation if, as here , the Com-
pany has hired a substantial and representative com-
plement of empoyees.
Similarly in Lutheran Homes & Hospitals , 233 NLRB
1499 (1977), the Board held that the employer was obli-
gated to apply the contract it had with the Union at its
old facility on relocation and the commencement of its
same operations and functions at a new facility . On that
date, the Board found that at least 22 employees were
transferred to the new facility and 16 new hires were
also working at the time. Over the course of the follow-
mg 2 weeks , 10 additional new hires began working. The
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board ruled that the employer's "obligation to bargain
with the Union is determined as of the time it began its
operations at the new location and is not affected by the
subsequent hiring of additional employees alone."
It is clear that in making the determination whether an
existing contract survives a "mere relocation," the Board
and the Courts are balancing the rights of certain em-
ployees to retain their bargaining representative and con-
tract rights after a relocation against the rights of other
employees to select whether or not they wish to have
that Union as their representative or any representation
at all.
For example, in Hudson Berlind Corp., 203 NLRB 421
(1973), the Company purchased two warehouses from
different employers, the employees of which were repre-
sented by two different unions . When the Company
merged both warehouses and the employees into a new
facility, it recognized the Union which represented the
larger group of employees . In that circumstance, the
Board held that the Company violated Section 8(a)(2) of
the Act by unilaterally selecting among rival union
claims, and thereby depriving the employees of their
right to select which union, if any, they wished to repre-
sent them . It nevertheless is noted that the facts of the
instant case are distinguishable from those in Hudson Ber-
lind, as the latter case involved a merger and consolida-
tion of two facilities into an entirely new operation and
because rival unions were each making legitimate repre-
sentational claims. In the present case , only two employ-
ees at the Jersey City facility were formerly represented
by Local 140. Therefore, Local 140 had no colorable
claim of representation for the Jersey City employees,
and the General Counsel does not and cannot assert a
Midwest Pipingz theory to support her argument that the
recognition violated the Act.
2 Midwest Piping, 63 NLRB 1060 ( 1945) In that case, the Board held
that a company may not initially recognize one union (even when it rep-
resents a majority of the employees ), when a second union has made a
colorable claim of representation for the same group of employees. It is
noted that the Mid-West Piping doctrine has been subsequently modified
in Bruckner Nursing Home , 262 NLRB 955 (1982 ), and RCA Del Canbe,
262 NLRB 963 (1981).
Thus, the critical question is whether the Company's
continuing recognition of Local 148 at the Jersey City
facility comports with the legal tests enunciated in Gen-
eral Extrusion , et al. The Company's operations remained
substantially the same after the relocation to Jersey City
with no change in the character of the jobs. Secondly, at
the commencement of operations in late April, the 28
Union City employees who had transferred to the Jersey
City facility constituted 64 percent of the new work
force, a much greater percentage that that found by the
Board in Westwood to be substantial. Accordingly, the
Company was obligated to continue its recognition of
Local 148 on relocation to Jersey City notwithstanding
the fact that the Company contemplated hiring a total of
180 to 200 more employees at some point and, in fact,
hired about 24 additional employees after the relocation.
Given the Company's precarious economic situation, its
expectation of expansion at the time of the relocation
could be characterized as uncertain at best and was no-
where near being realized as of the date of the hearing in
this case . Because the Company had hired a substantial
representative complement of employees when it com-
menced operations in Jersey City, I find that it was obli-
gated, under Section 8(a)(5) of the Act, to continue to
recognize Local 148 as the lawful bargaining agent of its
employees at the new facility.
CONCLUSIONS OF LAW
1. The Respondent, Metropolitan Teletronics Corpora-
tion, is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Bedding, Curtain, & Drapery Workers Union, Local
140, United Furniture Workers of America, AFL-CIO,
and Local 148 a/w International Union of Allied Novel-
ties and Production Workers, AFL-CIO, are labor orga-
nizations within the meaning of Section 2(5) of the Act.
3. The Respondents have not engaged in the unfair
labor practices alleged in the complaint.
[Recommended Order for dismissal omitted from pub-
lication.]