O'Neill, Ltd.; Food Equipment Leasing Co; Amalgamated Meat Co.; Fresno Beef Processors, Inc.; Don Turner Corp.; Sierra Pacific Meat Co., Inc.; And J& E Transport, Inc.

National Labor Relations Board - Board Decisions

May 31, 1988

288 N.L.R.B. 1394 (N.L.R.B. 1988)

1394 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Edwin R. O'Neill, an Individual; O'Neill, Ltd.; Food
Equipment Leasing Company; Amalgamated
Meat Co.; Fresno Beef Processors, Inc.; Don
Turner Corporation; Sierra Pacific Meat Com-
pany, Inc.; and J & E Transport, Inc. and
United Food and Commercial Workers Union,
Local 126, AFL-CIO. Case 32-CA-3462
May 31, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On April 16, 1982, Administrative Law Judge
Jerrold H. Shapiro issued the attached decision.
The General Counsel filed an exception, and
United Food and Commercial Workers Union,
Local 126, AFL-CIO filed exceptions and a brief
in support of the exceptions. Respondents Edwin
R. O'Neill, O'Neill, Ltd., Amalgamated Meat Co.,
and Food Equipment Leasing Company (O'Neill
entities) filed exceptions and a brief.' Respondent
I & E Transport, Inc. filed exceptions and a
brief. 2
Respondents Don Turner Corporation, Fresno
Beef Processors, Inc., and Sierra Pacific Meat
Company, Inc. joined in and adopted the excep-
tions and briefs in support of exceptions filed by
both Respondents O'Neill entities and Respondent
J & E Transport. Respondents O'Neill entities
joined in and adopted the exception and brief filed
by J & E Transport. Respondent J & E Transport
adopted the exceptions and supporting briefs filed
by "the other named Respondents."
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, fmdings, and
The request for oral argument made by Respondents Edwin R.
O'Neill, O'Neill, Ltd, Food Equipment Leasing Company, and Amalga-
mated Meat Co is denied, as the record, the exceptions, and the briefs
adequately present the issues and the positions of the parties.
2 As its brief in the present case, Respondent I & E Transport submit-
ted its May 28, 1982 exceptions brief to Administrative Law Judge
Schmidt's decision m the companion consolidated Cases 32-CA-848 and
32-CA-928. In the May 28 brief Respondent J & E Transport took ex-
ception, inter aka, to certain of Judge Schmidt's credibility determina-
tions The Board in O'Neill, Ltd., 288 NLRB 1354 (1988), affirmed the
judge's credibility determinations.
The May 28 brief also incorporated by reference the other Respond-
ents' exceptions and supporting arguments The Respondents alleged bias
on the part of Judge Schmidt. The Board in the companion cases found
Judge Sclunidt's findings to be free of bias.
conclusions3 and to adopt the recommended
Order4 as modified.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondents, Edwin R. O'Neill, an Individual;
O'Neill, Ltd.; Food Equipment Leasing Company;
Amalgamated Meat Co.; Fresno Beef Processors,
Inc.; Don Turner Corporation; Sierra Pacific Meat
Company, Inc.; and J & E Transport, Inc., Fresno,
California, their officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
I. Substitute the following for paragraph 1(b).
"(b) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the
Act."
2. Substitute the following for paragraph 2(a),
and renumber the subsequent footnote.
"(a) Pay the employees in the above-described
appropriate bargaining unit (i) who were terminat-
ed on November 18, 1977, and ordered to be rein-
stated in Cases 32-CA-848 and 32-CA-928 and (ii)
the employees in the appropriate bargaining unit
3 We specifically affirm the Judge's determination that Respondent
Edwin O'Neill is individually liable for the unfair labor practices. See Las
Villas Produce, 279 NLRB 883 (1986)
In light of the specific facts of this case and the companion cases, the
Respondents' bad-faith dealings with Local 126, and Judge Schmidt's
finding in the companion cases that the effects bargaining between the
Respondents and Local 126 on December 8, 1977, and January 19, 1978,
was conducted in bad-faith, we affirm Judge Shapiro's conclusion that
Local 126 was reasonable in believing that any effects bargaining be-
tween It and the Respondents in 1981 would be futile; "rujntons need not
grovel or undertake apparently futile acts" Armour & Co„ 280 NLRB
824 (1986). See also Metropolitan Teletronecs, 279 NLRB 957 (1986).
4 In his recommended remedy, Judge Shapiro imposed a limited back-
pay requirement similar to that required in Transmarine Navigation Corp.,
170 NLRB 389 (1968) Judge Shapiro limited the backpay remedy to
those meat plant employees actually employed by the Respondents in
February 1981.
In their exceptions, the General Counsel and Local 126 request that the
Board extend Judge Shapiro's backpay order to the employees in the ap-
propriate urut who were employed at the meat plant and unlawfully dis-
charged in November 1977, in addition to those employees who were dis-
charged when the Respondents closed the meat plant on February 18,
1981 In Cases 32-CA-848 and 32-CA-928 we found that the Respond-
ents unlawfully discharged employees in the appropriate unit in Novem-
ber 1977 and we have ordered that the discrimmatees be reinstated Ac-
cordingly they would have been employed by the Respondents on Febru-
ary 18, 1981, when the meat plant legitimately ceased operations. The
backpay order should also extend to them. Accordingly, we shall modify
the Order.
We find no merit in Local 126's request for litigation expenses or other
extraordinary remedies. Heck's Inc , 215 NLRB 765 (1974). See also Well-
man Industries, 248 NLRB 325 (1980)
The Respondents' misconduct in the instant case and in the related
cases was so egregious and widespread as to demonstrate a general disre-
gard for the employees' fundamental statutory rights,' therefore a broad
cease-and-desist order is warranted Accordingly, we have substituted
broad cease-and-desist language in place of the narrow language the
Judge used See Hickmott Foods, 242 NLRB 1357 (1979)
288 NLRB No. 148
O'NEILL, LTD. 1395
who were terminated on February 18, 1981, their
normal wages for the period set forth in the
remedy section of the decision, plus interest as
computed in the manner described in New Horizons
for the Retarded 8
"8 283 NLRB 1173 (1987). Interest on and after January 1,
1987, shall be computed at the short-term Federal rate for the un-
derpayment of taxes as set out m the 1986 amendment to 26 U S C.
§ 6621. Interest on amounts accrued prior to, January 1, 1987 (the
effective date of the 1986 amendment to 26 U.S C. § 6621), shall
ba computed m accordance with Florida Steel Corp, 231 NLRB
651 (1977)."
3. Substitute the attached notice for that of the
administrative law judge.
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.
WE WILL NOT fail and refuse to bargain collec-
tively about the effects of the closure of the
O'Neill meat plant with United Food and Commer-
cial Workers Union, Local 126, AFL-CIO as the
exclusive representative of all the employees in the
following appropriate unit:
All slaughterhouse and meatpacking employ-
ees employed at the O'Neill meat plant in
Fresno, California, including kill floor, cooler,
boning, Cry-O-Vac, loading and maintenance
employees; excluding drivers, salesmen, office
clerical, guards and supervisors as defined in
the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain collectively with
the above-named Union with respect to the effect
of closing the O'Neill meat plant in Fresno, Cafi-
fornia, on the employees who were employed there
in the above-described unit, and reduced to writing
any agreement reached as a result of such bargain-
ing.
WE WILL pay the employees in the appropriate
bargaining unit (i) who were terminated on No-
vember 18, 1977, and ordered to be reinstated in
Cases 32-CA-848, and 32-CA-928 and those (ii)
who were employed at the O'Neill meat plant on
February 18, 1981, their normal wages, plus inter-
est, for a period required by the Board's Decision
and Order.
EDWIN R. O'NEILL, AN INDIVIDUAL;
O'NEILL, LTD.; FOOD EQUIPMENT LEAS-
ING COMPANY; AMALGAMATED MEAT CO.;
O'NEILL MEAT COMPANY; FRESNO BEEF
PROCESSORS, INC.; DON TURNER CORPO-
RATION; SIERRA PACIFIC MEAT COMPANY,
INC.; AND J & E TRANSPORT, INC.
Charles A. Askin, Esq., for the General Counsel.
Howard A. Sagaser, Esq. (Thomas Snell, Jamison, Russel,
Williamson & Asperger), for Respondent J & E Trans-
port, Inc.
George J. Tichy, II and Michael J. Hogan (Littler, Mendel-
son, Fastiff & Tichy), for the Respondents other than
J & E Transport, Inc.
David A. Rosenfelct Esq. (Van Bourg, Allen Weinbery &
Roger), for the Charging Party.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge. On
charges filed on March 10, 1981, by Butchers' Union
Local No. 126, United Food and Commercial Workers,
AFL-CIO (the Union), the General Counsel of the Na-
tional Labor Relations Board, by the Regional Director
for Region 32, issued a complaint and notice of hearing
dated April 23, 1981, against Respondents Edwin R.
O'Neill, (Respondent O'Neill); O'Neill, Ltd. (Respondent
O'Neill, Ltd.); Food Equipment Leasing Company (Re-
spondent FELC); Amalgamated Meat Co. (Respondent
Amalgamated); Fresno : eef Processors, Inc. (Respond-
ent Fresno Beef); Don Turner Corporation (Respondent
Turner); Sierra Pacific Meat Company, Inc. (Respondent
Sierra); and J & E Transport, Inc. (Respondent J & E).
The complaint alleges that Respondents engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (5) of the National Labor
Relations Act (the Act), by not affording the Union an
opportunity to bargain over the effects on the employees
represented by the Union of the closure of a meatpack-
ing plant located in Fresno, California, at 2356 South
Fruit Avenue (O'Neill Meat Plant), operated by Re-
spondents. Copies of the charges and complaint and
notice of hearing were served on the parties. Respond-
ents filed answers to the complaint, admitting certain fac-
tual allegations of the complaint but denying the com-
mission of any unfair labor practices.
Thereafter the parties entered into a stipulation of facts
and jointly petitioned the Deputy Chief Administrative
Law Judge to designate an administrative law judge for
findings of fact, conclusions of law, and an order. The
parties stipulated that they waived the hearing before an
administrative law judge and that no oral testimony was
necessary or desired by any of the parties. The parties
also agreed that the charge, complaint, and the stipula-
tion of facts constitute the entire record in this case.
1396 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On November 16, 1981, I was designated by the
Deputy Chief Administrative Law Judge to prepare and
issue a decision in this proceeding and, on that date,
issued an order for the filing of briefs by the parties.
Thereafter, the General Counsel and Respondents filed
briefs in support of their position.
On the basis of the stipulation of facts and the exhibits
attached thereto, the briefs and the entire record in this
proceeding, I make the following
FINDINGS OF FACT
I. THE BOARD'S JURISDICTION
The parties stipulated that during the 12 months pre-
ceding March 10, 1981, the date of the closure of the
O'Neill Meat Plant, Respondent FELC, in the course
and conduct of its business operations, sold goods and
services valued in excess of $50,000 to customers or busi-
ness enterprises which customers or enterprises them-
selves met one of the Board's jurisdictional standards,
other than the indirect inflow or indirect outflow stand-
ard. In view of this and inasmuch as Administrative Law
Judge Schmidt, in Cases 32-CA-484 and 32-CA-928, as
described infra, has concluded that the Respondents, in-
cluding Respondent FELC, constitute one employer for
purposes of the Act with respect to the operation of the
O'Neill Meat Plant, I find that each of the Respondents
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act and meets an applica-
ble discretionary Board jurisdictional standard. I further
find that it effectuates the policies of the Act for the
Board to exercise its jurisdiction over the instant labor
dispute.
H. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and I fmd, that Butchers' Union
Local No. 126, United Food and Commercial Workers,
AFL-CIO (the Union) is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Stipulated Facts
1. The background'
On November 28, 1977, the facility involved in this
proceeding, the O'Neill Meat Plant, was operated by Re-
spondents O'Neill, Ltd., FELC, and Amalgamated,2
The findings of fact in this subsection are based on the findings made
by Administrative Law Judge Schmidt in his decision issued on March
30, 1982, in eases 32-CA-848 and 32-CA-928 The proceeding in those
cases involved certain issues of fact and law common to the Instant case.
The issues of the single employer and/or alter ego relationship of the
several Respondents and their obligation to recognize and bargain with
the Union as the representative of a unit of employees employed at the
O'Neill Meat Plant were fully litigated before Judge Schmidt. The parties
stipulated that with respect to the aforesaid "issues the record developed
by the parties in Cases 32-CA-848 and 32-CA-928, and the legal conclu-
sions based on that record by Judge Schmidt, as modified by the Board
. . or by any appellate court, shall be binding upon all parties in this
case."
2 Respondent Amalgamated was formerly known as the O'Neill Meat
Company.
which enterprises constitute a single employer for pur-
poses of the Act in connection with the operation of the
O'Neill Meat Plant. In November 1977 the O'Neill Meat
Plant was closed and all of its employees terminated.
The slaughterhouse and meatpacking employees em-
ployed in the plant were represented by the Union and-
covered by a collective-bargaining agreement between
the Union and Respondent Amalgamated effective until
December 31, 1979. Prior to the closure, Respondent
Amalgamated notified the Union of its intent to close the
plant and terminate the employees. Thereafter, represent-
atives of the Union and Amalgamated bargained about
the effects of the closure on the employees represented
by the Union. These negotiations were conducted by Re-
spondent Amalgamated in bad faith with an object of
creating the illusion that Respondent O'Neill was termi-
nating his connection with the operation of the O'Neill
Meat Plant when, in fact, O'Neill's intent was to contin-
ue operating the plant through other companies in order
to escape having to comply with the terms of the
Union's collective-bargaining agreement and to rid him-
self of the Union.
On or about December 12, 1977, the O'Neill Meat
Plant reopened under the operation of Respondents
Sierra, Fresno Beef, Turner, and J & E who are the
alter egos of the former operators of the plant, Respond-
ents O'Neill, Ltd., FELC, and Amalgamated. All the Re-
spondents constitute one employer for purposes of the
Act with respect to the operation of the O'Neill Meat
Plant.
On reopening the plant in December 1977 the Re-
spondents reemployed only 40 percent of the employees
who had been employed in the plant prior to the closing
and who were represented by the Union. Respondents
also refused to recognize and bargain with the Union as
the slaughterhouse and meatpacking employees' collec-
tive-bargaining representative, repudiated the Union's
collective-bargaining agreement covering these employ-
ees, and unilaterally changed their terms and conditions
of employment without bargaining with the Union.
Respondents, as found by Administrative Law Judge
Schmidt in Cases 32-CA-848 and 32-CA-928, closed the
O'Neill Meat Plant in November 1977 and terminated
the employees represented by the Union and refused to
reemploy 60 percent of these employees when the plant
reopened in December 1977 in order to avoid having to
recognize and bargain with the Union or comply with
the Union's collective-bargaining agreement covenng
these employees, thereby violating Section 8(a)(3) and (1)
of the Act. Judge Schmidt further found that when Re-
spondents reopened the plant in December 1977 they
violated Section 8(a)(5) and (1) of the Act by refusing to
recognize and bargain with the Union, by repudiating
the collective-bargaining agreement with the Union cov-
ering the slaughterhouse and meatpacking employees,
and by unilaterally changing the terms and conditions of
employment of these employees without bargaining with
the Union.
O'NEILL, LTD. 1397
-
Meat Company and Local 126, Amalgamated Meat
Company continues to approach its dealings with
Local 126 in the spirit of good faith and coopera-
tion.
2. The events surrounding the February 18, 1981
closure of the O'Neill Meat Plant
On December 26, 1979, Victor J. Van Bourg, an attor-
ney for the Union, wrote George J. Tichy II, an attor-
ney for Respondent Amalgamated, as follows:
In 1977 when you were negotiating the alleged
shut-down of the O'Neill Meat Company facility,
you purported to give notification that O'Neill Meat
Company intended to terminate the contract with
Local 126, effective December 31, 1979.
In light of the fact that O'Neill Meat Company
continues to exist as a joint employer and/or alter-
ego with the various respondents named in unfair
labor practice cases 32-CA-848 and 32-CA-928,
Local 126 does not desire to terminate the collec-
tive bargaining agreement, but rather to negotiate a
successor agreement with O'Neill Meat Company
and the various entities mentioned above.
Please remember your client's obligation under
Section 8(d) of the National Labor Relations Act
not to make any changes in terms and conditions of
employment except in compliance with the law.
Please advise us when you will be available to
begin such negotiations.
We are sending copies of this letter to the various
attorneys who have entered appearances on behalf
of these other entities, all of which are controlled
by Mr. O'Neill.
By letter dated January 9, 1980, Attorney Tichy replied
to Attorney Van Bourg, as follows:
You correctly note that O'Neill Meat Company
terminated its prior collective bargaining agreement
with Butchers Local 126. As you are aware, O'Neill
Meat Company, presently known as Amalgamated
Meat Company, was forced to go out of business
because of economic reasons on November 17,
1977. Since that time the Company has been with-
out employees in an appropriate bargaining unit
covered by the now terminated collective bargain-
ing agreement.
I want to state clearly and unequivocally that
Amalgamated Meat Company is not involved in any
joint employer or alter ego relationship with any
Respondent named in unfair labor practices cases
Nos. 32-CA-848 and 32-CA-928. Frankly, al-
though I can appreciate your desire for Local 126
to have a collective bargaining agreement covering
someone, there is no agreement in effect and no bar-
gaining unit of Amalgamated Meat Company which
could be covered by a bargaining relationship with
Local 126.
Despite the above facts, we have been authorized
by Amalgamated Meat Company to bargain with
representatives of Local 126 with the object of
reaching an agreement to cover a bargaining unit if
one should come into existence. Please contact me
so that a mutually agreeable time and place may be
arranged for this purpose.
Although there does not appear to be a legal
basis requiring bargaining between Amalgamated
The Union did not answer this letter.
On February 18, 1981, the O'Neill Meat Plant ceased
operation and all the employees employed at that facili-
ty, including the slaughterhouse and meatpacking em-
ployees, were discharged.
On February 19, 1981, during the course of a meeting
about matters not relevant to the instant case, Michael
Hogan, an attorney for Respondents O'Neill, O'Neill,
Ltd., and Amalgamated, asked Marcell° Salcido, the
Union's executive secretary-treasurer, "whether [Salcido]
wished to negotiate concerning the effects of the closure
of the slaughterhouse facility." Salcido replied, "He did
not wish to discuss it at that time, but that he would
make some contact with Hogan at some future time."
Respondents had previously not afforded the Union an
opportunity to negotiate about the effects of the closure.
Salcido did not contact Hogan about this matter.
On February 24, 1981, Sakido, on behalf of the Union,
wrote identical letters to Respondents O'Neill Ltd.,
O'Neill, Amalgamated, and Turner which read as fol-
lows:
[The Union] would like to meet with you to dis-
cuss the decision to close your slaughterhouse and
the effects upon the employees. We ask that you
return to the status quo until the negotiations are
complete. Your decision to close came as a com-
plete surprise without opportunity for any bargain-
ing.
Please advise as to what dates you can be avail-
able to meet.
Respondent Turner responded by letter dated March 4,
1981, from its attorney, William A. Quinlan, which in
pertinent part stated that Respondent Turner had nocon-
tractual or collective-bargaining relationship with the
Union and was under no duty to engage in collective
bargaining with the Union. Respondents O'Neill, O'Neill,
Ltd. and Amalgamated responded by letter dated March
12, 1981, from their attorney, George A. 'Tichy II, which
read as follows:
Your letters of February 24, 1981, addressed to
Edwin R. O'Neill: O'Neill Meat Company, and
O'Neill, Ltd. have been referred to me for response.
As you are aware, neither Mr. O'Neill nor any
company or organization with which he is associat-
ed with has any bargaining relationship with Local
No. 126. Furthermore, none of these entities employ
employees who are represented by your union.
Under the circumstances, there is no proper basis
upon which your union can claim a right to engage
in negotiations with Mr. O'Neill or any entity with
which he is associated.
However, without waiving any position which
Mr. O'Neill or any O'Neill entity has maintained
concerning the absence of a bargaining relationship
1398 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
with your union, a representative of Mr. O'Neill
and the companies is willing to meet with you.
Please contact me if you wish to meet. Of course,
it is understood that neither Mr. O'Neill nor any
company with which he is or has been associated
will by attending this meeting waive any legal posi-
tion which they have advanced in NLRB Cases 32-
CA-848 and 32-CA-928.
On March 16, 1981, Attorney Tichy spoke to Union
Representative Salcido and "mentioned to Salcido that
he [Tichy] had sent a letter to [Salcido] in reply to Salci-
do's letter of February -24, 1981" and asked Salcido
"when they could meet for negotiations." Salcido an-
swered that "he would have to refer that question to his
attorneys."
Following the aforesaid March 16 conversation be-
tween Tichy and Salcido no representative of the Union
contacted any representative of the Respondents in writ-
ing or in person for the purpose of entering into negotia-
tions about the effects on the employees represented by
the Union of the February 18, 1981 closure of the
O'Neill Meat Plant. The Union refused to accept Re-
spondents' invitation to bargain about the effects of the
plant closure because in the Union's view such a request
would be futile in light of the terms set forth in the
aforesaid letters of Respondents dated March 4 and 12,
1981.
B. Discussion and Conclusionary Findings
An employer whose employees are represented by a
labor organization is obliged by Section 8(a)(5) of the
Act to bargain with that union about the effects on the
employees of the employer's decision to close its busi-
ness. First National Maintenance Corp. v. NLRB, 452 U.S.
666, 681 (1981). In the instant case, as found by Judge
Schmidt in Cases 32-CA-848 and 32-CA-928, Respond-
ents operated the O'Neill Meat Plant as a single employ-
er and because of this each Respondent was obligated to
recognize andbargain with the Union as the exclusive
collective-bargaining representative of the plant's slaugh-
terhouse and meatpacking employees. Accordingly, Re-
spondents had a duty to bargain with the Union about
the effects on these employees' of the February 18, 1981
closure of the O'Neill Meat Plant. Respondents take the
position that even if the Board and a court of appeals af-
firms Judge Schmidt's decision in this respect, that Re-
spondents met their obligation to bargain with the Union
about the effects of the closure by virtue of the fact that
subsequent to the closure Respondents invited the Union
to bargain about the effects of the closure and the Union
rejected this offer. The General Counsel takes the posi-
tion that Respondents' invitation to the Union to bargain
about the effects of the closure was untimely because it
was made only after the plant had been closed and the
employees terminated.
In general, when an employer decides to take action
that significantly impacts on employees' terms or condi-
tions or tenure of employment, the employer must afford
the union an opportunity to bargain in advance of the
actual implementation of the employer's decision. See
NLRB v. Katz, 369 U.S. 736, 747 (1962) ("unilateral
action by an employer without prior discussion with the
union [amounts] to a refusal to negotiate. . . . [emphasis
supplied]"); Machinists v. Northeast Airlines, 473 F.2d 549,
557 (1st Cit. 1972) ("A company must give prior notice
to the employees' representatives of any managerial deci-
sion which will have an impact on employment security
and conditions so that the union will have an opportuni-
ty before the change takes place to negotiate concerning
how the employees are to be protected [emphasis sup-
plied]"); Ladies' Garment Workers v. NLRB, 463 F.2d
907, 919 (D.C. Cir. 1972) ("notice to be effective must be
given sufficiently in advance of actual implementation of
a decision to allow reasonable scope for bargaining.")
Consistent with this principle, in cases dealing with the
duty of an employer to bargain with a union about the
effects on employees of the employer's decision to close
its business, the Board has found a violation of Section
8(a)(5) of the Act even though the employer, after the
plant has been closed and the employees terminated, in-
vites the union to bargain over the effects of the closure.
Transmarine Navigation Corp., 170 NLRB 389 (1968);
Thompson Transport Co., 184 NLRB 38 (1970); National
Terminal Baking Corp., 190 NLRB 465, 466 (1971). As
the Board stated in Stone & Thomas, 3 "meaningful bar-
gaining over effects can only occur prior to the employ-
er's making and acting upon its decision." Likewise in
discussing an employer's obligation under Section 8(a)(5)
to bargain over the effects on employees of a plant clo-
sure the Supreme Court has recently stated, "under Sec-
tion 8(a)(5), bargaining over the effects of a decision
must be conducted in a meaningful manner and at a
meaningful time [emphasis supplied]." See First National
Maintenance Corp. v. NLRB, 452 U.S. at 681-682.
Respondents cite Triplex Oil Refining Division, 194
NLRB 500 (1971), 4 in support of the contention that Re-
spondents' invitation to the Union to bargain over the ef-
feöts of the decision to close the O'Neill Meat Plant ful-
filled Respondents' bargaining obligation under Section
8(a)(5), despite the fact that the invitation was issued
after the actual closure and termination of the employ-
ees. In Triplex Oil Refining the Board concluded:
[A] representative of Respondent, asked an official
of the Union to come down to the plant after the
closing to make sure the terminated employees were
satisfied with the benefits each received under the
contract. The union official did so, and thus had an
opportunity to seek negotiations on the effects of
the closing. As the Respondent fulfilled its bargain-
ing obligation by affording the Union this opportu-
nity, it cannot be faulted for the Union's failure to
present any demands.
The Triplex Oil Refining decision, insofar as it stands for
the proposition that an employer can satisfy its obligation
under Section 8(a)(5) to bargain over the effects of a
3 221 NLRB 573, 576 (1975).
4 U.S. Contractors, 257 NLRB 1180 (1981), also cited by Respondents
is completely inapposite to the instant situation. There, the respondent-
employer prior to closing its business operation, met with the union, and
was prepared to bargain with the union about the effects of the closure,
but the union, by virtue of its own conduct, precluded such bargaining
O'NEILL, LTD. 1399
plant closure by inviting the union to bargain after the
plant has been closed and the employees terminated,
stands alone, and is inconsistent with the great weight of
authority set forth above, in particular with the Supreme
Court's admonition in First National Maintenance that
"under 8(a)(5), bargaining over the effects of a decision
must be conducted . . at a meaningful time." In any
event, the instant case is significantly different from Tri-
plex Oil Refining. There the employer recognized the
union as the employees' collective-bargaining representa-
tive and the union had no reason to doubt that the em-
ployer's invitation to bargain was expressed in good
faith. In the instant case, Respondents, by their own con-
duct, created a situation calculated to cause the Union to
believe that Respondents did not intend to bargain in
good faith over the effects of the decision to close the
meat plant and that any attempt by the Union to secure
good-faith bargaining would be futile. Thus, while invit-
ing the Union to bargain over the effects of the closure,
the Respondents, in the same breath, informed the Union
that the Respondents were still refusing to recognize and
bargain with the Union as the employees' exclusive col-
lective-bargaining representative. Respondents took the
position that they were not obligated to bargain with the
Union about anything, including the effects of the clo-
sure on the employees, since the Union did nqt represent
the employees. In this situation the Union was reasonable
in believing that it would have been futile to accept Re-
spondents' after-the-fact invitation to bargain about the
effects of the plant closure. For, "an employer who takes
the erroneous position that a particular subject matter is
not bargainable can hardly approach the discussion of
this subject with an open mind and a willingness to reach
an agreement." NLRB v. Reed & Prince Mfg. Co., 205
F.2d 131, 136 (1st air. 1953). Moreover, as Judge
Schmidt found in Cases 32-CA-848 and 32-CA-928, Re-
spondents had previously bargained in bad faith with the
Union over the effects of the previous closure of the
O'Neill Meat Plant in November 1977, and when the
plant was reopened in December 1977 Respondents repu-
diated the Union's collective-bargaining agreement, uni-
laterally changed the terms and conditions of employ-
ment of the employees represented by the Union, refused
to bargain with the Union, and in order to avoid recog-
nizing and bargaining with the Union, refused to reem-
ploy the majority of the employees represented by the
Union who were employed at the meat plant prior to the
closure. Under the foregoing circumstances, the Union's
failure to accept Respondents' invitation to engage in ef-
fects bargaining after the plant was already closed and
the employees terminated was the foreseeable result of
Respondents' own illegal conduct.5
Based on the foregoing, I find that Respondents violat-
ed Section 8(a)(5) and (1) of the Act by refusing to bar-
gain with the Union with respect to the effects on the
employees represented by the Union of Respondents'
5 For the same reasons I reject Respondents' argument that the Union
waived any representational claim by its failure to engage in negotiations
with Respondents following Respondents' December 26, 1979 letter
agreeing to bargain with the Union for a collective-bargaining agreement
"to cover a bargaining umt if one should come mto existence."
closure on February 18, 1981, of the O'Neill Meat Plant
located at 2356 South Fruit Avenue, Fresno, Califomia.6
Respondent O'Neill, an individual, argues that he has
been improperly named as an individual respondent in
this proceeding. In Cases 32-CA-848 and 32-CA-928,
Judge Schmidt concluded that Respondent O'Neill was
the alter ego of Respondent O'Neill, Ltd. and its subsidi-
aries and that Respondent O'Neill was individually re-
sponsible for remedying the unfair labor practices found
to have been committed in that proceeding. In reaching
this conclusion, Judge Schmidt found that Respondent
O'Neill was the dominant figure in the formulation of the
illegal scheme whereby the O'Neill Meat Plant closed in
November and reopened in December 1977 under the
auspices of new operators in order to avoid having to
continue to comply with the Union's collective-bargain-
ing agreement and to get rid of the Union and, further,
found that the new business enterprises that had taken
over the operation of the meat plant when it reopened
were mere fronts for Respondent O'Neill and that, in the
absence of moneys from RespondentO'Neill and his en-
terprises, the new enterprises were unable to operate the
meat plant. In view of these circumstances, Judge
Schmidt concluded that in the absence of imposing liabil-
ity on Respondent O'Neill for the unfair labor practices
committed therein, it was unlikely an effective remedy
could be fashioned. In the instant proceeding there is no
evidence that Respondent O'Neill's role in the operation
of the meat plant has changed in any way. In other
words, while certain of the Respondents appear to be the
operators of the meat company, it is Respondent O'Neill
who is the dominant figure and that without the infusion
of his moneys the plant could not operate. Since this
state of affairs came about because of Respondent
O'Neill's illegal scheme to get rid of the Union, I find
that, as was the case in Cases 32-CA-848 and 32-CA-
928, Respondent O'Neill was properly named as one of
the Respondents and is responsible for remedying the
unfair labor practices.
CONCLUSIONS OF LAW
1. During the time material, Respondents Edwin R.
O'Neill; O'Neill: Ltd.; Food Equipment Leasing Compa-
ny Amalgamated Meat Co.; Fresno Beef Processors,
Inc.; Don Turner Corporation; Sierra Pacific Meat Com-
pany, Inc.; and J & E Transport, Inc. have been a single
employer for purposes of the Act in connection with the
operation of the O'Neill Meat Plant and constitute a
single employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Union, Butchers' Union Local No. 126, United
Food and Commercial Workers, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
3. All slaughterhouse and meatpacking employees em-
ployed at the O'Neill Meat plant in Fresno, California,
including kill floor, cooler, boning, Cry-O-Vac, loading,
6 Respondents' argument that Sec. 10(b) of the Act bars this proceed-
ing is without merit inasmuch as the charge was filed on March 10, 1981,
well within 6 months of the plant closure that took place on February 18,
1981.
1400 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and maintenance employees; excluding drivers, salesmen,
office clericals, guards and supervisors as defined in the
Act, constitute an appropriate unit for the purposes of
collective bargaining within the meaning of Section 9(b)
of the Act.
4. During the time material, the Union has been the
exclusive representative of the employees in the aforesaid
appropriate unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By refusing to bargain with the Union about the ef-
fects on the employees of the closing of the O'Neill Meat
Plant on February 18, 1981, Respondents engaged in
unfair labor practices within the meaning of Section
8(0(5) and (1) of the Act.
6.The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents have engaged in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act, I shall recommend that Respondents cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
As a result of the Respondents' unlawful failure to bar-
gain about the effects of the closing of the O'Neill Meat
Plant, the displaced employees represented by the Union
have been denied an opportunity to bargain through
their collective-bargaining representative at a time when
Respondent was still in need of their services, and a
measure of balanced bargaining power existed. Meaning-
ful bargaining cannot be assured until some measure of
economic strength is restored to the Union. A bargaining
order, therefore, cannot serve as an adequate remedy for
unfair labor practices committed.
Accordingly, I deem it necessary, in order to effectu-
ate the purposes of the Act, to require the Respondents
to bargain with the Union concerning the effects of the
closing of the O'Neill Meat Plant on its employees, and
shall accompany this recommended Order with a limited
backpay requirement designed both to make whole the
employees for losses suffered as a result of the violation
and to recreate in some practical manner a situation in
which the parties' bargaining position is not entirely
devoid of economic consequences for the Respondents. I
shall do so in this case by requiring Respondents to pay
backpay to its employees in the manner similar to that
required in Transmarine Navigation Corp., 170 NLRB
389. Thus, the Respondents shall pay employees backpay
at the ‘rate of their normal wages when last in Respond-
ent's employ from 5 days after the date of this decision
until the occurrence of the earliest of the following con-
ditions: (1) the date the Respondents bargain to agree-
ment with the Union on those subjects pertaining to the
effects of the plant shutdown on its employees; (2) a
bona fide impasse in bargaining; (3) the failure of the
Union to request bargaining within 5 days of this deci-
sion, or commence negotiations within 5 days of Re-
spondents' notice of its desire to bargain with the Union
or (4) the subsequent failure of the Union to bargain in
good faith; but in no event shall the sum paid to any of
these employees exceed the amount he or she would
have earned as wages from February 18, 1984, the date
Respondents closed the O'Neill Meat Plant, to the time
he or she secured equivalent employment elsewhere, or
the date on which Respondents shall have offered to bar-
gain, 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 Respondent's
employ.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed?
ORDER
Respondents, Edwin R. O'Neill, an Individual;
O'Neill, Ltd.; Food Equipment Leasing Company; Amal-
gamated Meat Co.; Fresno Beef Processors, Inc.; Don
Turner Corporation; Sierra Pacific Meat Company, Inc.;
and J & E Transport, Inc.; Fresno, California, their offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively con-
cerning the effects of the closure of the O'Neill Meat
Plant on employees with Butchers' Union Local No. 126,
United Food and Commercial Workers, AFL—CIO, as
the exclusive representative of all employees in the fol-
lowing apprippriate unit:
All slaughterhouse and meatpacking- employees
employed at the O'Neill Meat Plant in Fresno, Cali-
fornia, including kill floor, cooler, boning, Cry-0-
Vac, loading and maintenance employees; excluding
drivers, salesmen, office clericals, guards and super-
visors as defined in the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Pay the terminated employees in the above-de-
scribed appropriate bargaining unit their normal wages
for the period set forth in the remedy section of this de-
cision, plus interest as computed in Florida Steel Cotp.,
231 NLRB 651 (1977).
(b) On request, bargain collectively with the above-
named labor organization with respect to the effects on
the employees in the appropriate bargaining unit of the
closure of the O'Neill Meat Plant, and reduce into writ-
ing any agreement reached as the result of such bargain-
ing.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
7 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
O'NEILL, LTD. 1401
-
the employees who were employed at the O'Neill Meat
Plant on February 18, 1981. Copies of said notice on
forms provided by the Regional Director for Region 32,
after being signed by Respondents' authorized represent-
atives, shall be mailed immediately on request as herein-
above directed.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
(d) Mail an exact copy of the attached notice marked
"Appendix" 8 to Butchers' Union Local No. 126, United
Food and Commercial Workers, AFL-CIO, and to all
8 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."