Ozark Trailers, Inc.

National Labor Relations Board - Board Decisions

Oct 27, 1966

161 N.L.R.B. 561 (N.L.R.B. 1966)

OZARK TRAILERS, INC. 561
Ozark Trailers, Incorporated and/or Hutco Equipment Company
and/or Mobilefreeze Company, Inc. and International Union,
Allied Industrial Workers of America, Local No. 770, AFL-CIO.
Case 17-CA-2414. October 27,1966
DECISION AND ORDER
On December 14, 1964, Trial Examiner Sidney S. Asher, Jr.,
issued his Decision in the above-entitled proceeding, finding that
Respondents had engaged in certain unfair labor practices and rec-
ommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the Decision attached hereto. The
Trial Examiner also found that Respondents had not engaged in
certain other unfair labor practices and recommended that the com-
plaint be dismissed with respect to such allegations. Thereafter,
Respondents filed exceptions to the Trial Examiner's Decision, and
also filed a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and brief, and the entire
record in this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the following
modifications :
1. The Trial Examiner found, and we agree, for the reasons set
forth in the Trial Examiner's Decision, that Ozark Trailers, Incor-
porated, herein referred to as Ozark, Hutco Equipment Company,
herein referred to as Hutco, and Mobilefreeze Company, Inc., herein
referred to as Mobilefreeze, together constitute a single employer
within the meaning of the Act. We further find, from the same
record evidence, that Ozark, Hutco, and Mobilefreeze, during the
critical period herein involved, functioned and operated as a single,
integrated enterprise engaged principally in the manufacture, dis-
tribution, sale, and service of refrigerated truck bodies.
2. The Trial Examiner found that Respondents interfered with,
restrained, and coerced the Ozark employees in violation of Section
8(a) (1), and discriminated against them in regard to their tenure
of employment in violation of Section 8(a) (3) by locking out said
employees on December 19, 1963, in retaliation for the Union's
demand that certain dischargees be reinstated. However, the Trial
Examiner found that Respondents' conduct in this regard was not
violative of Section 8(a) (5) as alleged in the complaint. No excep-
tions were filed to these findings, and we hereby adopt them pro
forma.
161 NLRB No. 48.
264-188-67-vol. 1 G 1-3 7
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The Trial Examiner further found that the Respondents vio-
lated Section 8(a) (1) and (5) of the Act by closing the Ozark plant
on March 1, 1964, without prior notice to, or consultation with, the
employees' authorized representative at the Ozark plant.' We agree
with this finding of the Trial Examiner.
As a result of a Board-conducted election held on March 1, 1963,2
the Union was certified on March 11, 1963, as the exclusive bargain-
ing representative of all the employees of Ozark, excluding office
clerical employees, watchmen and guards, professional employees,
the plant manager, and all other supervisors as defined in the Act.
On April 16, 1963, Ozark and the Union executed a collective-
bargaining agreement for a term of 1 year, which provided for auto-
matic renewal thereafter in absence of notice from either of the par-
ties to the contrary. The contract continued in effect during the
events set forth below.
Near the end of January 1964, Ozark's board of directors,3 for
economic reasons, determined to close the Ozark plant located in
Ozark, Missouri. Sometime prior to February 21, 1964, the plant
manager of the Ozark plant, Holekamp, was informed that the
plant was to be closed, but, apparently, he was not notified that the
plant closing would be permanent.
At the time, there were four truck bodies nearing completion in
the plant. Thereafter, it appears that as each truck body was com-
pleted, employees no longer needed were laid off on a seniority
basis. The first reduction in force occurred on February 20, 1964. At
that time, Holekamp told Union Steward Henry that the layoff was
due to lack of work, that it was a temporary layoff, and that he
could not promise when Henry would be recalled. It is clear that
Henry was not informed that the plant was being closed perma-
nently. On February 27, 1964, the office manager, and on the following
day the remaining production employees were terminated. By
March 1, 1964, the four truck bodies having been completed, the plant
was closed. Thereafter, Plant Manager Holekamp was transferred
1 The complaint also contained an allegation that by terminating the employment of the
employees at the Ozark plant or before its final closing, and thereafter failing and refusing
to reinstate them, Respondents also violated section 8(a) (1) and (3) of the Act The
Trial Examiner found, however, on the basis of the record evidence, that Respondents'
decision to close down the Ozark plant "was based primarily upon economic considera-
tions," and that the General Counsel failed to demonstrate by a fair preponderance of the
evidence that the decision was motivated to any appreciable extent by union animus or
a desire to get rid of the Union Accordingly, the Trial Examiner granted Respondents'
motion to dismiss this particular 8(a) (3) allegation of the complaint As no exceptions
were filed to these findings or ruling of the Trial Examiner, we hereby adopt them
pro forma.
4 Case 17-RC-4042.
'At the time, Henry Warren, Jr, John B. Latzer, Henry G. Drosten, and William B
Westfall served as Ozark's board of directors In addition, Warien, Latzer, and Drosten
were the principal stockholders of Ozark, AIobilefree-,e, and Hutco, and also served as the
board of directors of Mobilefreeze and Hutco.
OZARK TRAILERS, INC. 563
to the Mobilefreeze plant in Parsons, Kansas, where he became man-
ager of the truck body manufacturing operation at that plant. Most
of the equipment located at the Ozark plant was then moved to the
Mobilefreeze plant for storage.
The record shows that, prior to its shutdown, the Ozark plant
was engaged almost exclusively in manufacturing refrigerated truck
bodies for Mobilefreeze. Normally, the materials required for the
manufacturing operation were ordered by Mobilefreeze and shipped
to the Ozark plant. After the truck bodies were made at Ozark,
they were returned to Mobilefreeze for distribution and sale. It also
appears that in addition to the truck bodies made at the Ozark
plant, other truck bodies were manufactured at the Mobilefreeze
plant in Parsons, Kansas. However, the manufacturing operation at
the Mobilefreeze plant did not increase substantially after the closing
of the Ozark plant. Instead, it appears from the record that after
the Ozark plant closed, Mobilefreeze (Hereafter contracted with
Schodorf Body Company in Columbus, Ohio, for the manufacture
of truck bodies.4
It is clear from the record evidence that the Ozark plant was
closed and dismantled without notice to and without affording the
Union an opportunity to bargain with respect to the effects of
Respondent's decision upon the employees. In N.L.R.B. v. Royal
Plating & Publishing Co., 350 F.2d 191, 196 (C.A. 3), the court
aptly described Respondents' obligation to notify and bargain with
the Union over the effects of such a decision to close the plant in the
following manner :
However, under circumstances such as those presented by the
case at bar an employer is still under an obligation to notify
the union of its intentions so that the union may be given an
opportunity to bargain over the rights of the employees whose
employment status will be altered by the managerial decision.
N.L.R.B. v. Rapid Bindery, Inc., 293 F.2d 170 (2 Cir. 1961).
See also N.L.R.B. v. Lewis, 246 F.2d 886 (9 Cir. 1957) ; Sham-
rock Dairy, Inc., 119 NLRB 998, 124 NLRB 494, enfd. sub nom.,
International Brotherhood of Teamsters etc. v. N.L.R.B., 108
U.S. App. D.C. 117, 280 F.2d 665, cert. denied, 364 U.S. 892 ....
Bargainable issues such as severance pay, seniority and pensions,
among others, are necessarily of particular relevance and impor-
tance. Cf. John Wiley cC Sons, Inc. v. Livingston, 376 U.S. 543,
554.... ; Inland Steel Co. v. N.L.R.B., 170 F.2d 247.... (7 Cir.
1948), cert. denied, 336 U.S. 960, ... ; N.L.R.B. v. Westinghouse
Air Brake Co., 120 F.2d 1004 (3 Cir. 1941).
'It is not clear from the record whether the contract with Schodorf Body Company
provided for the manufacture of the same type truck bodies previously manufactured at the
Ozark plant.
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There can be no doubt that Respondents, by withholding all infor-
mation of their intentions to close down and terminate the operations
at the Ozark plant, prevented the Union from bargaining over the
effect of the plant closing on the employees. Moreover, in the cir-
cumstances of this case, we find no merit in Respondent's contention
that it was not required to bargain with the Union because the Union
failed to request bargaining "about the closing of Ozark." Indeed,
the record evidence shows that the union representatives were una-
ware of Respondents' decision to close the Ozark plant, and on
February 20, when the union steward sought information as to the
duration of the layoff, Respondents' plant manager told him that
the layoff was due to lack of work and was only temporary in nature.
It thus appears that the Union, during the most critical period, and
at the very time when bargaining would have been most productive,
was completely unaware of Respondents' intention to close the Ozark
plant permanently. After so concealing its intentions from the Union,
Respondents cannot now persuasively argue that it was not required
to bargain with the Union because the Union did not request such
bargaining. Accordingly, on the basis of the entire record, and for
the reasons set forth above, we agree with the Trial Examiner's find-
ing that Respondents violated Section 8 (a) (5) of the Act by closing
the Ozark plant and discharging all employees in the unit without
consulting the Union or giving it an opportunity to bargain over
the effects of such closing on the employees.
We turn next to the more difficult issue; namely, whether Respond-
ents also violated Section 8(a) (5) and (1) by bypassing the statutory
aargaining representative of the employees at the Ozark plant and
failing to bargain over the decision to close the plant permanently.
The Trial Examiner found that Respondents did so violate the Act.
We agree with the Trial Examiner in this regard for the following
reasons:
At the outset, and as we have heretofore found, .Respondents
Ozark, Hutco, and Mobilefreeze, during the critical period herein
involved, functioned and operated as a single, integrated, multiplant
enterprise, engaged principally in the manufacture , sale , and service
of refrigerated truck bodies. In these circumstances we must view
the closing of the Ozark plant only as a partial closing of the
Respondents' enterprise, and not a complete going out of business
by the Respondents. Thus, we are not here confronted with the
question whether a decision to go out of business completely is a
mandatory subject of bargaining under Section 8(a) (5) of the Act.
Accordingly, we need not, and. do not, determine the impact on
that question of the Supreme Court's holding in N.L.R.B. v. Darling-
ton Manufacturing Corp., 380 U.S. 263. It is sufficient to note that
OZARK TRAILERS, INC. 565
that holding cannot be relevant to the issue before us which involves
Respondents' duty to bargain about the partial closing of their busi-
ness.5 We perceive nothing in that portion of the Darlington decision
dealing with the discriminatory partial closing of a business which
suggests the inapplicability of the collective-bargaining requirement
of the Act to Respondents' decision to close down the Ozark plant.
Indeed, as the Darlington decision affirms the propriety of the appli-
cation of Section 8(a) (3) to a partial closing of a business, it would
be anomalous to find that Section 8(a) (5) is without governing
authority in such situations.6 We therefore find that the Darlington
decision does not require dismissal of the complaint, and that the
question of whether the Respondents violated the Act in unilaterally
determining to close down the Ozark plant must be decided in the
light of considerations set forth in the Supreme Court's decision in
the Fibreboard case.'
In Fibreboard, the Supreme Court was faced with the question
whether an employer's decision, motivated by economic consider-
ations, to subcontract certain maintenance work performed by its
employees, was covered by the phrase "terms and conditions of
employment" within the meaning of Section 8(d) and was, accord-
ingly, a matter about which the employer was obligated to bargain
by virtue of Section 8(a) (5). In affirming our findings that sub-
contracting was a matter about which the employer must bargain,
the Court commented (379 U.S. at 210):
The subject matter of the present dispute is well within the
literal meaning of the phrase "terms and conditions of employ-
ment." See Order of Railway Telegraphers v. Chicago di N.W.R.
Co., 362 U.S. 330. A stipulation with respect to the contracting
out of work performed by members of the bargaining unit
might appropriately be called a "condition of employment."
The words even more plainly cover termination of employment
which, as the facts of this case indicate, necessarily results from
the contracting out of work performed by members of the estab-
lished bargaining unit.
So here, a termination of employment was the necessary result of
Respondents' decision to close the Ozark plant. Thus, here, just as
in Fibreboard, Respondents have failed to bargain concerning a
"term or condition of employment."
We recognize, of course, that the Supreme Court's decision in
Fibreboard was limited to the type of contracting out involved in
that case, and did not explicitly deal with the question whether
6 Royal Plating and Polishing Co., Inc., 152 NLRB 619, 622.
0 Ibid.
7 Fibreboard Paper Products Corp. V. N.L.R.B., 379 U.S. 203.
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an employer must bargain concerning a decision to terminate a
portion of its operations . We further recognize that two Courts
of Appeal have held , in reliance on the concurring opinion in Fibre-
board, that a decision of this nature need not be bargained about.
Thus, in N.L.R R. v. Adams Dairy. Inc., 350 F.2d 105, cert. denied
382 U.S. 1011, the Court of Appeals for the Eighth Circuit held that
a managerial decision to substitute independent contractors for
employees in the distribution of the employer's products was outside
the mandatory bargaining requirements of the Act on the ground
di,At it involved a "basic operational change" and a "partial liqui-
(Iation and a recoup of capital investment." 8 Similarly, in 11'.L.R B. v.
Royal Plating ct Polishing Co., 350 F.2d 191, the Court of Appeals
for the Third Circuit held that a decision to shut one of an employ-
er's two plants involved a "management decision to recommit and
reinvest funds in the business" and a "major change in the economic
direction of the Company," s and, accordingly, that the employer
was under no duty to bargain with the union respecting that
decision.
With all respect to the Courts of Appeals for the Third and
Eighth Circuit, we do not believe that the question whether a par-
ticular management decision must be bargained about should turn on
whether the decision involves the commitment of investment capital,
or on whether it may be characterized as involving "major" or
"basic" change in the nature of the employer's business. True it is
that decisions of this nature are, by definition , of significance for
the employer. It is equally true, however, and ought not be lost
sight of, that an employer 's decision to make a "major" change in
the nature of his business , such as the termination of a portion
thereof, is also of significance for those employees whose jobs will
be lost by the termination . For, just as the employer has invested
capital in the business , so the employee has invested years of his
working life, accumulating seniority , accruing pension rights, and
developing skills that may or may not be salable to another employer.
And, just as the employer 's interest in the protection of his capital
investment is entitled to consideration in our interpretation of the
Act, so too is the employee 's interest in the protection of his liveli-
hood. As the Supreme Court said in dealing with a not dissimilar
question in Wiley v. Livingston, 376 U.S. 543, 549:
The objectives of national labor policy, reflected in established
principles of federal law, require that the rightful prerogative
of owners independently to arrange their businesses and even
8 350 F . 2d at 111. See also N L IZ B v. William J. Burns International Detective Agency,
Inc., 346 F 2d 897 (C.A. 8
0 350 F.2d at 196.
OZARK TRAILERS, INC. 567
eliminate themselves as employers be balanced by some pro-
tection to the employees from a sudden change in the employ-
ment relationship.
In short, we see no reason why employees should be denied the
right to bargain about a decision directly affecting terms and con-
ditions of employment which is of profound significance for them
solely because that decision is also a significant one for management.
Nor do we believe that the rationale which -underlies both our deci-
sion in Fibreboard and the Supreme Court's decision in that case
compels such a limitation . It was our view in Fibreboard , and the
view of the Supreme Court-, as we read the Court's opiinon therein,
that bargaining about contracting out might appropriately be
required because to do so effectuated one of the primary purposes of
the Act-"to promote the peaceful settlement of industrial disputes
by subjecting labor-management controversies to the mediatory influ-
ence of negotiation." 10 The Court there continued (ibid) :
To hold, as the Board has done, that contracting out is a man-
datory subject of collective bargaining would promote the
fundamental purpose of the Act by bringing a problem of vital
concern to labor and management within the framework estab-
lished by Congress as most conducive to industrial peace.
We think it plain the same may be said about a management decision
to terminate a portion of the enterprise-termination , just as con-
tracting out, is a problem of vital concern to both labor aid manage-
ment, and it would promote the fundamental purpose of the Act to
bring that problem within the collective -bargaining framework set
out in the Act.
There is yet another significant respect in which the management
decision involved in the instant case is similar to that in Fibreboard
and ought also be the subject of collective bargaining . In Fibreboard,
the Court noted that the factors which underlay the employer's
decision to contract out were primarily related to the cost of labor
(size of the work force , fringe benefits , overtime payments ) and that
these matters had long been regarded as "peculiarly suitable for
resolution within the collective bargaining framework." it In the
instant case the factors relied upon by Respondents as justifying
their decision to close the Ozark plant were (as set out in Ozark's
answer to the complaint ) : excessive man hours were required for the
production of custom refrigerated truck bodies ; the truck bodies
produced and sold would not perform properly because of defective
workmanship, necessitating a return of the bodies to the plant at
10379 U.S. 211.
11 379 U S. 213, 214.
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disastrous expense to Respondents ; and the plant facilities were not
efficiently laid out. At least the first two of these-rate and quality
of production-are traditional subjects of collective bargaining and
would appear as susceptible of resolution within the collective-
bargaining framework as the labor cost issues involved in Fibre-
board. A decision to contract out the work performed at the Ozark
plant, if substantially predicated on these factors would surely,
under the rationale of Fibreboard, be subject to the bargaining
requirements of the Act; we see no reason why a decision to close
the Ozark plant, predicated on the same considerations, ought not be
equally subject to those bargaining requirements.
The argument has been made to compel an employer to bargain
about a decision to relocate or terminate a portion of his business
would significantly abridge his freedom to manage the business. In
the first place, however, as we have pointed out time and time
again '12 an employer's obligation to bargain does not include the
obligation to agree, but solely to engage in a full and frank discussion
with the collective-bargaining representative in which a bona fide
effort will be made to explore possible alternatives, if any, that may
achieve a mutually satisfactory accommodation of the interests of
both the employer and the employees. If such efforts fail, the
employer is wholly free to make and effectuate his decision. Hence,
to compel an employer to bargain is not to deprive him of the free-
dom to manage his business.
But, it has been argued, imposing the obligation to bargain, which
includes a requirement that the bargaining be in good faith, and
which precludes unilateral action absent sufficient bargaining,13 all
subject to the surveillance of this Board, and ultimately of the
courts, so impedes management flexibility in meeting business oppor-
tunities and exigencies that the statute ought not be interpreted to
require such bargaining. As to this, however, the answers are plain.
Initially, Congress made the basic policy determination, in enacting
the National Labor Relations Act, that, despite management's inter-
est in absolute freedom to run the business as it sees fit, the interests
of employees are of sufficient importance that their representatives
ought be consulted in matters affecting them, and that the public
interest, which includes the interests of both employers and employ-
ees, is best served by subjecting problems between labor and manage-
ment to the mediating influence of collective bargaining.
Secondly, the Supreme Court held in Fibreboard, affirming our
decision therein, that such limitations on absolute freedom to manage
the business as are inherent in compelling bargaining on contracting
12 See, e g., Town & Country Manufacturing Company, Inc , and Town & Country Sales
Company, Inc., 136 NLRB 1022, 1027, enfd. 316 F 2d 846 (C A 5).
13 See Shell Oil Company , 149 NLRB 305.
OZARK TRAILERS, INC. 569
out are justified by the potential gains of requiring bargaining. If
this is true with respect to decisions regarding contracting out, Ave
think it is a fortiori true with respect to decisions regarding the
relocation or termination of a portion of the business. Decisions as
to contracting out are not infrequent. To require bargaining as to
such decisions does arguably impose certain constraints on manage-
ment in the normal operation of the enterprise (ameliorated, of
course, by management's freedom to negotiate arrangements con-
cerning the future contracting out of work as the need arises). Yet,
it is plain, bargaining over contracting out is required. Decisions
whether to relocate or terminate a portion of the business surely
arise with less frequency in the life of the typical corporate enterprise
than decisions whether to contract out certain work. Indeed, such
decisions are extremely rare for most employers. Hence, to require
bargaining over these decisions appears, if anything, less of a
limitation on management flexibility in running the business than
to require bargaining about contracting out. Accordingly, we think
it no significant intrusion on management freedom to run the busi-
ness to require that an employer-once he has reached the point of
thinking seriously about taking such an extraordinary step as
relocating or terminating a portion of his business-discuss that step
with the bargaining representative of the employees who will be
affected by his decision. Furthermore, such limitation on absolute
employer freedom as is involved in imposing a bargaining require-
ment is amply justified by the interest of the employees in being
consulted about a decision with profound impact on them, and by
the public interest in industrial peace. Cf. Wiley, John, d Sons, Inc.
v. David Livingston, 376 U.S. 543, 549.
It has been contended'14 however, that issues of contracting out,
plant removal, or shutdown are impossible of resolution by collective
bargaining, that there is an irreconcilable conflict between the
demands which bargaining representatives are compelled-by inter-
nal political necessities-to make, on the one hand, and the com-
petitive and managerial necessities which employers are compelled to
follow, on the other. Hence, it is urged, these matters must by a
narrow construction of the law be committed to the sole discretion
of employers as an unconditional management prerogative.
The conduct and experience of a growing number of employers
and unions 15 attest to the complexity and difficulty of such problems,
14 See, e.g., F. A. O'Connell, New Ferment in Labor Relations-Employer View, 61
LRRM 110
15 See F¢breboard, supra at 211-"While not determinative, it is appropriate to look to
industrial bargaining practices in appraising the propriety of including a particular sub-
ject within the scope of mandatory bargaining." See also Order of Railway Telegraphers
v Railway Express Agency Inc., 321 U.S 342, 346; Cox and Dunlop, Regulation of Collec-
tive Bargaining by the National Labor Relations Board, 6. Harv. L Rev. 389, 405-406.
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but prove , contrary to the above claims, that they can be and are
resolved, and support the rationale of our decisions that such matters
properly come within the scope of the bargaining obligation under
the Act.
Thus, a Bureau of Labor Statist ics study of 1,687 major collective-
bargaining agreements in effect at the beginning of 1959 shows that
there were 378 with express limitations on contracting out work
that might otherwise be available to employees in the bargaining
unit."s Again, a study of bargaining in 74 plants relating to con-
tracting out by Professor Margaret K. Chandler,17 showed that 32
percent had collective-bargaining contracts with clauses governing
contracting out. Reflecting the growing number of cases in which
mutual discussions have even succeeded in averting shutdowns is an
article in the Wall Street Journal, June 10, 1964, descrlbini a num-
ber of situations in which unions accepted cuts in wages and fringe
benefits to save employee jobs threatened by proposed plant relocation
or closure. ' In short , bargaining about plant removal and shutdown,
albeit not as widespread as bargaining about contracting out (per-
haps because of the greater frequency with which the latter problem
arises ), does take place and need not be futile . Under these circum-
stances, we see no justification for interpreting the statutory bar-
gaining obligation so narrowly as to exclude plant removal and
shutdown from its scope.
Finally, while meaningful bargaining over the effects of a decision
to close one plant may in the circumstances of a particular case be
all that the employees' representative can actually achieve, especially
where the economic factors guiding the management decision to
close or to move or to subcontract are so compelling that employee
concessions cannot possibly alter the cost situation , nevertheless
in other cases the effects are so inextricably interwoven with the
decision itself that bargaining limited to effects will not be meaning-
ful if it must be carried on within a framework of a decision which
cannot be revised. An interpretation of the law which carries the
obligation to "effects," therefore, cannot well stop short of the decision
itself which directly affects "terms and conditions of employment."
TllE REMEDY
While the Trial Examiner correctly found that Respondents vio-
lated the Act in failing to bargain witli the Union over the closing
10 Fibreboard . supra at 212 , footnote 7.
n Chandler , Management Rights and Union Interests, p. 217 ( 1964).
Is See also Business Week, February 29, 1964 (company agrees to retain plant in Phila-
delphia In return for union acquiesence in changed work rules ) ; Oswald , Easing Job
Changes by Advance Notice, AFL-CIO Federationist , December 1965 , p. 13, Seidman,
The Union Agenda for Security, 86 Monthly Labor Rev. 636, 640 ( 1963).
OZARK TRAILERS, INC. 571
of the Ozark plant, by way of remedy, he ordered, inter alia, back-
pay for the employees until one of the following conditions occurred :
(1) reaching a mutual agreement with the Union relating to the
subjects which Respondents are hereby required to bargain about;
(2) bargaining to a genuine impasse; (3) the failure of the Union
to commence negotiations within 5 days of the receipt of the
Respondents' notice of their desire to bargain with the Union; or
(4) the failure of the Union to bargain thereafter in good faith.
We agree that backpay is appropriate under the facts in this case,
but we do not agree with the Trial Examiner that backpay liability
is to continue until one of the above conditions occur.
The Board has indicated that backpay orders are appropriate
means of remedying 8(a) (5) violations of the type involved herein,
even where such violations are unaccompanied by a discriminatory
shutdown of operations.19 In fashioning remedies the Board bears in
mind that the remedy should be adapted to the situation that calls
for redress,20 with a view toward "restoring the situation as nearly
as possible, to that which would have obtained but for [the unfair
labor practice]." 21 Here, the unfair labor practice was the unilateral
closedown of the Ozark plant without giving the Union notice or
opportunity to discuss the decision to close down and matters that
would affect the employees involved. The nature of the violations
would justify directing the Respondents to restore the situation
existing prior to the closedown of the Ozark operation by reestab-
lishing the discontinued operation. But this appears impractical as
the plant has been shut down for a considerable period of time
and the machinery has been shipped some distance away.22 Further,
Ave are satisfied that the Respondents' decision to close down the
Ozark operation was prompted solely by pressing economic neces-
sity.23 However, if we are to effectuate the policies of the Act and
achieve responsible collective bargaining, it is essential that a back-
pay remedy be ordered, one that fits the circumstances of this case.
We think the Trial Examiner's recommendation as to the time that
backpay should cease, that is the occurrence of one of the afore-
mentioned conditions, is too speculative. Accordingly, we shall order
the Respondents to make whole the employees for any loss of pay
suffered by them as a result of the Respondents' unlawful refusal
to bargain from the time they made the decision to close the plant
at the end of January 1964, to the date the Ozark plant was closed
19Royal Plating and Polishing Co., Inc., 148 NLRB 545, and cases cited therein at
footnote 7.
2D N.L R B. v Mackay Radio & Telegraph Co , 304 U S 333.
21 Phelps-Dodge Corp. v N.L R B., 313 U.S. 177, 194.
22 See N .L.R.B. v . American Manufacturing Co of Teaas , 351 F.2d 74 ( C.A. 5).
0 See Renton News Record, 136 NLRB 1294.
57 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on March 1, 1964, by paying to each of them a sum of money equal
to the amount each would have earned as wages from the date of
his termination during that period until the Ozark plant was closed.
Backpay shall be based upon the earnings which the terminated
employees would normally have received during the applicable
period less any net interim earnings, and shall be computed on a
quarterly basis in the manner set forth in F. W. Woolworth Com-
pany, 90 NLRB 289; N.L.R.B. v. Seven-Up Bottling C, ompany of
Miami, Inc., 344 U.S. 344; with interest thereon, Isis Plumbing cE
Heating Co., 138 NLRB 716.
The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Delete subparagraph 1(b) and insert in lien thereof the
following:
["(1)) Failing and refusing to bargain collectively with Inter-
national Union, Allied Industrial Workers of America, Local No.
770, AFL-CIO, as the exclusive representative of their Ozark plant
employees, concerning the decision to close the Ozark plant and the
effects of the discontinuance of their Ozark plant operations on such
employees."
[2. Add the following to subparagraph 1(c)
["(c) Unilaterally closing down any of their plants without prior
notice to and bargaining with the collective-bargaining representa-
tives, if any, of employees in such plant concerning the decision to
close down and its effects."
P. Renumber the present subparagraph 1(c) to 1(d).
[4. Paragraph 2(c) is amended by changing the period appearing
at the end of the paragraph to a comma, and by adding the words
"as modified by the section entitled `The Remedy' of the Board's
Decision and Order."
[5. Amend the notice attached as an Appendix to the Trial Exam-
iner's Decision by deleting therefrom the second indented paragraph
and insert therein the following two paragraphs :
[WE WILL NOT fail and refuse to bargain collectively with
International Union, Allied Industrial Workers of America,
Local No. 770, AFL-CIO, as the exclusive representative of our
Ozark plant employees, concerning the decision to close the
Ozark plant and the effects of the discontinuance of our Ozark
plant operations on such employees.
[WE WILL NOT unilaterally close down any of our plants with-
out prior notice to and bargaining with the collective-bargaining
representative or representatives, if any, of employees in such
plant concerning the decision to close down and its effects.
OZARK TRAILERS, INC. 573
[6. Amend the sixth indented paragraph of the Appendix by chang-
ing the period appearing at the end of the paragraph to a comma, and
by adding the words "as modified by the section entitled 'The Remedy'
of the Board's Decision and Order.'']
MEMBER JENIKINS took no part in the above Decision and Order.
TRIAL EXAMINER'S DECISION
On March 23, 1964, International Union, Allied Industrial Workers of America,
Local No. 770, AFL-CIO, herein called the Union, filed charges against Ozark Trail-
ers, Incorporated, Ozark, Missouri , herein called Respondent Ozark, and/or Hutco
Equipment Company, Springfield , Missouri , herein called Respondent Hutco, and/or
Mobilefreeze Company, Inc., Parsons , Kansas, herein called Respondent Mobile-
freeze. Amended charges were filed on June 15, 1964. On June 16 , 1964, the General
Counsel 1 issued a complaint, alleging that Respondents Ozark, Hutco, and Mobile-
freeze constitute a single employer within the meaning of the Act; that on or about
December 15, 1963, Respondent Ozark locked out all its employees for 4 hours
because the Union attempted to settle certain grievances ; that during December 1963
a supervisor of Respondent Ozark threatened employees with economic . reprisals
unless they abandoned the Union; that on various dates between February 20 and
28, 1964, the Respondents terminated the employment of certain employees,2 and
since then has failed and refused to reinstate them , and that on March 1, 1964, the
Respondents discontinued all production activities at Ozark and transferred the
entire operation to Mobilefreeze., It is further alleged that the lockout of Decem-
ber 15, 1963, and the discontinuance and transfer of March 1, 1964, were both
accomplished by the Respondents without prior consultation with or notification to
the Union, although the Union was then the statutory bargaining representative of
the affected employees in an appropriate unit. It is alleged that this conduct violated
Section 8(a)(1), (3 ), and (5) of the National Labor Relations Act, as amended
(61 Stat . 136), herein called the Act. Each Respondent filed an answer denying that
Respondents Ozark, Hutco , and Mobilefreeze constitute a single employer and
denying the commission of any unfair labor practices.
Upon due notice , a hearing was held before Trial Examiner Sydney S. Asher, Jr.,
on July 6 and 7, 1964, at Springfield , Missouri. All parties were represented and
participated fully in the hearing. At the close of the hearing , each Respondent
moved to dismiss the complaint against it. Rulings on these motions were reserved.
These motions are now disposed of in accordance with the findings and conclusions
contained herein . After the close of the hearing , the General .Counsel and each
Respondent filed a brief , which have been duly considered.
Upon the entire record in this case , and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
The complaint alleges, the answers admit , and it is found that each Respondent
is, and at all material times has been , an employer engaged in commerce as defined
in the Act , and the operations of each Respondent , considered individually, meet
1 The term General Counsel , as used herein , refers to the General Counsel of the National
Labor Relations Board and his representatives at the hearing
2 The employees and the dates on which they are alleged to have been terminated are:
0 1964 1964
A. R. Chilton_______________ Feb. 28 Rex Henry----------------- Feb 20
Clarence Chilton____________ Feb. 28 Hollis H. Hull______________ Feb. 20
Bill Clayman_______________ Feb. 28 Jim Tinker_________________ Feb. 28
Larry Day_________________ Feb 28 Eugene Van Horn___________ Feb 20
Max Estes_________________ Feb 21 Tom Van Horn ______________ Feb. 28
Howard Haifling____________ Feb. 28 Lyle Wood_________________ Feb 21
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board's jurisdictional standards; 3 and that the Union is, and at all material
times has been, a labor organization within the meaning of the Act.
A. Interrelationship of Respondents
1. Facts
Respondent Hutco was incorporated in 1954. Since November 1963 the owner-
ship of its stock has been equally divided between Henry B. Warren, Jr.,' John B.
Latzer, and Henry G. Drosten and Company. Its president has been Warren, its
vice president, Latzer, and its secretary-treasurer, Henry G. Drosten. The same
three individuals have constituted its board of directors. Respondent Ozark was
'incorporated in 1957. Since November 1962 the ownership of 'its stock '(except for
a nominal number of shares in the name of William B. Westfall) has been equally
divided between Warren, Latzer, and Henry G. Drosten and Company. Its officers
have, since November 1963, been the same individuals who held corresponding
offices in Respondent Hutco, and its board of directors has consisted of these
officers plus Westfall. Respondent Mobilefreeze was incorporated in 1960. Since
about 1961 the common stock has been held as follows: 4,965 shares in Latzer's
name, 238 shares in the name of Henry G. Drosten and Company, 70 shares in
Warren's name, and the remaining 20 shares in other names? Its officers have been:
president, Drosten; vice president, Warren; and secretary-treasurer, Latzer. These
three individuals have constituted its board of directors.
As previously noted, Respondent Hutco's principal business is the sale, service,
and repair of all kinds of truck semitrailers. It also acts as distributor for Thermo
King, a manufacturer of refrigeration units; approximately one-quarter of its sales
are of Thermo King products. Since 1959 Warren has been the active manager of
Respondent Hutco's day-to-day operations.
Respondent Ozark was originally set up to build city delivery type truck semi-
trailers for sale to the public. Later it also engaged in repair work. Eventually
approximately 80 percent (dollarwise) of its total production consisted of truck
bodies. From January 1963 until it ceased manufacturing operations about March 1,
1964, the day-to-day activities of Respondent Ozark were managed by' John H.
Holekamp, who was neither a stockholder nor an officer of any of the Respondents.
Respondent Mobilefreeze's primary business is selling custom-built refrigerated
truck bodies. This is conducted from its sales office in Clayton, Missouri. In 1963
Respondent Mobilefreeze leased a building in Parsons, Kansas, acquired and
installed machinery, and commenced to manufacture refrigerated truck bodies.
This has continued to date at that location. The distance from Parsons, Kansas, to
Respondent Hutco's plant in Springfield, Missouri, is approximately 120 miles. The
distance from Parsons, Kansas, to Ozark, Missouri, where Respondent Ozark's
plant had been located is approximately 136 miles., Ozark, Missouri, and Spring-
field, Missouri, are about 16 miles apart.
Respondent Mobilefreeze purchases Thermo-King units and a "few small items
occasionally" from Respondent Hutco. These transactions account for approximately
s Respondent Hutco is, and at all material times has been, a Missouri corporation with
its principal office and place of business at Springfield, Missouri, where it is engaged in the
sale and service of semitrailers and semitanks, and to a minor extent in the sale and
service of refrigerated truck bodies. Respondent Hutco annually ships products valued at
more than $50,000 directly to destinations outside the State of Missouri and purchases
materials valued at more than $50,000 directly from sources outside the State of Missouri.
Respondent Mobilefreeze is, and at all material times has been, a Missouri corporation
with its principal office at Clayton, Missouri, and a plant at Parsons, Kansas, where it is
engaged in the manufacture and distribution of custom-built refrigerated truck bodies.
Respondent Mobilefreeze annually purchases materials valued at more than $50,000 directly
from sources outside the State of Kansas. 4
Respondent Ozark, a Missouri corporation, has maintained its principal office at Ozark,
Missouri. From January 1963 until on or about February 28, 1964, Respondent Ozark was
engaged in the manufacture of custom-built refrigerated truck bodies primarily for the
account of Mobilefreeze. Respondent Ozark annually purchased materials valued at more
than $50,000 In the State of Missouri directly from Respondent Mobilefreeze which, in
turn, annually purchases goods valued at more than $50,000 directly from sources outside
the State of Kansas.
4 The preferred stock of Respondent Mobilefreeze has been owned by individuals not
otherwise named herein.
OZARK TRAILERS, INC. 575
10 percent of Respondent Mobilefreeze's purchases from all sources. However,
Respondent Ozark, when it was in operation, was Respondent Mobilefreeze's prin-
cipal supplier. Indeed, Respondent Mobilefreeze purchased virtually Respondent
Ozark's entire production of truck bodies. The transactions operated as follows-
The bulk of the materials needed by Respondent Ozark were ordered and paid for
by Respondent Mobilefreeze and shipped to Respondent Ozark. Respcndent Ozark
then manufactured the bodies, invoicing Respondent Mobilefrecze for the cost of
the completed units, and crediting Respondent Mobilefreeze with the value of the
purchase orders.
From time to time, Respondent Hutco performed repair work for Respondent
Ozark on faulty truck bodies. Respondent Hutco charged for these services "on a
time-material basis," and billed most of these repair jobs to Respondent
Mobilefreeze.
In August 1962, Respondent Ozark hired an office manager. For approximately 2
or 3 weeks, practically full time, he was trained by Respondent Hutco. Thereafter,
from time to time, Respondent Ozark's office manager asked questions of Respond-
ent Hutco's office manager regarding procedure.
Later in 1962 Respondent Hutco was engaged in building plastic refrigerated
truck bodies for Respondent Mobilefreeze. In mid-November of that year this work
was transferred to Respondent Ozark, which then continued with it. At the same
time, two employees of Respondent Hutco who had been working on plastic bodies
left the employ of Respondent Hutco and became employees of Respondent Ozark,
where they continued to perform the same type of work.
As of March 31, 1963, Respondent Hutco's liabilities (other than capital and sur-
plus) totaled $296,195. Of this amount Respondent Hutco was indebted to
Respondent Mobilefreeze in the sum of more than $211,000, or approximately 71
percent of all Respondent Hutco's obligations. On the same date, Respondent
Ozark's current liabilities totaled $139,362 Of this amount, Respondent Ozark
owed Respondent Mobilefreeze in excess of $131,000, or more than 90 percent of
all Respondent Ozark's current obligations 5 By December 31, 1963, Respondent
Ozark's debt to Respondent Mobilefreeze had risen to more than $285,000. This
was secured by a mortgage in the principal sum of $75,000.6
2. Contentions and conclusions
As indicated above, the complaint alleges, and each answer denies, that the
Respondents collectively constitute a single employer. The General Counsel main-
tains that the three corporations together form a single, integrated enterprise, while
the Respondents contend that they are independent of one another. The principal
factors to be weighed in deciding whether sufficient integration exists include the
extent of (1) interrelation of operations; (2) centralized control of labor relations;
(3) common management; and (4) common ownership or financial control.?
The record shows the following facts which, in my opinion, tend to indicate the
integration of the three corporations:
a. Respondent Mobilefreeze was the principal source of materials for
Respondent Ozark.
b. Respondent Mobilefreeze was the principal purchaser of Respondent
Ozark's products.
c. Respondent Ozark was, in turn, Respondent Mobilefreeze's principal
supplier.
d. Respondent Hutco did repair work for Respondent Mobilefreeze, sold
items to Respondent Mobilefreeze, and manufactured plastic bodies for
Respondent Mobilefreeze.
5 These figures are taken from a document prepared by Respondent Mobilefreeze's ac-
countant, entitled: "Mobilefreeze Company, Inc , and affiliated Companies-Combined Bal-
ance Sheet "
9 The document referred to in the previous footnote also indicates that on March 31,
1963, Respondent Mobilefrecze had current assets totaling over $475,000, of which $342,000
(or more than 70 percent) consisted of moneys owed by Respondents Flutco and Ozark
Also on that date (and even more so on December 31, 1963), the total assets of Respondent
Ozark were substantially less than the amount it owed to Respondent Mobilefreeze.
7 Twenty-first Annual Report of the National Labor Relations Board (1956) at pp. 14-15.
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
e. There was some interchange of personnel. Thus, Respondent Hutco
trained Respondent Ozark's office manager; two rank-and-file employees left
Respondent Hutco and went to work for Respondent Ozark; and Respondent
Ozark's plant manager after Respondent Ozark ceased operations, entered
Respondent Mobilefreeze's employ in the same capacity.
f. In December 1959 the Union organized the employees of Respondent
Hutco. During the contract negotiations which ensued, Warren conferred with
other officers of Respondent Hutco. When the Union began its campaign to
organize Respondent Ozark's employees in 1963, Warren conferred with other
officers of Respondent Ozark, namely, Latzer and Drosten. In the contract
negotiations which followed, Respondent Ozark was represented by Warren
and Latzer.
g. The decision to close Respondent Ozark's operations was made jointly
by Warren, Latzer, and Drosten.
h. With minor exceptions, the same three individuals, Warren, Latzer, and
Drosten, together own all the common stock of all three corporations, con-
stitute their boards of directors, and hold all their offices.
i. Respondent Mobilefreeze has apparently financed the operations of
Respondents Ozark and Hutco virtually single-handed, and is their principal
creditor. In turn, most of Respondent Mobilefreeze's assets have been invested
in loans to Respondents Hutco and Ozark.
j. Some of the records of Respondent Ozark remaining after it ceased opera-
tions are now kept at Respondent Mobilefreeze's office.
It is my opinion that these factors demonstrate the operational integration of all
three corporations, their centralized control of labor relations, and their common
ownership and financial control. As tending to offset this prima facie proof of
integration, the Respondents, in their briefs, point out:
a. Each Respondent is separately incorporated and maintains its separate
complement of employees, books of account, and auditors.
b. Each operation is geographically separated some distance from the others.
c. Respondent Hutco has one contract with the Union governing its employ-
ees, and Respondent Ozark has a separate contract with the Union for its
employees.
d. Respondent Hutco's employees are covered by a separate group insurance
plan with an insurance carrier different from that used by the other two
Respondents.
e. Warren has little or nothing to do with the day-to-day operations of
Respondents Mobilefreeze and Ozark.
f. While Ozark was operating, Holekamp had nothing to do with the
day-to-day operations of Respondents Mobilefreeze and Hutco.
When these factors are weighed against the factors indicating integration, in my
opinion they are insufficient to overcome the General Counsel's strong prima facie
case. Considering all the circumstances here present, I am convinced, and find, in
accord with the General Counsel, that the three Respondents together constitute a
single employer as defined in the Act.
B. Rackgiound events
In early 1963 the Union filed with the Board a representation petition in Case
17-RC-4042, seeking to represent the employees of Respondent Ozark. A Board-
conducted election was held on March 1, 1963, and on March 11, 1963 , the Union
was certified as the exclusive bargaining representative of all the employees of
Respondent Ozark, excluding office clerical employees, watchmen and guards, pro-
fessional employees , the plant manager , and all other supervisors as defined in the
Act. Thereafter, on April 16 , 1963, Respondent Ozark and the Union executed a
collective -bargaining agreement for a term of 1 year , automatically renewable
thereafter in the absence of notice to the contrary . There has been no intervening
certification of any other union or decertification of the Union as the bargaining
agent of Respondent Ozark's employees . So far as the record indicates , the contract
between the Union and Respondent Ozark has never been revoked , set aside, or
amended by any mutual act of the signatories thereto.
OZARK TRAILERS, INC. 577
C Alleged interference, restraint, and coercion
1. Facts
The parties stipulated, and it is found, that at all material times Calvin W. Green
was employed by Respondent Ozark and was a supervisor within the meaning of
the Act. A. R. Chilton, a rank-and-file employee of Respondent Ozark until Feb-
ruary 28, 1964, testified on direct examination as a witness for the General Counsel
as follows:
Q. Now did you ever have any conversations with Mr. Green about the
Union?
A. Yes, sir, I have.
Q. Specifically did you have a conversation with him along about the 1st of
December 1963?
A. Yes, sir, I did.
* * * * * * *
Q. Would you tell us what he said and what you said?
A. Well, it happened several times, I mean Mr. Green was of the opinion,
I didn't take it that time as a threat, not to me personally, but he said the
company would dispose of me, whether by closing down and reopening at
another time or some other way.
On cross-examination, Chilton testified:
Q. (By Mr. HASELTINE.) You say that Mr. Green gave you his opinion
that the company would dispose of the Union?
A. Yes, sir.
Green did not testify, hence Chilton's testimony in this regard is undenied.
2. Contentions of the parties
The complaint alleges, and the answers deny, that during December 1963 Green,
an agent of Respondent Ozark, "threatened employees with economic reprisals
unless they abandoned the Union and their activity on its behalf." In his brief, the
General Counsel contends that Green "told Chilton that the Company would dis-
pose of the Union." Respondent Ozark, in its brief, states that Green told Chilton
that "the company would dispose of Chilton, which Chilton `didn't take as a
threat,"' and argues that this did not constitute a warning to abandon the Union.
It further urges that this was a mere expression of opinion by a minor supervisor,
and therefore not binding upon Respondent Ozark.
3. Conclusions
A perusal of Chilton's testimony on direct examination indicates little in the way
of threats directed at Chilton's union activities, or at the Union. Indeed, there is
no evidence that, at this time (early December 1963), any Respondent harbored
union animus or that Chilton was then active on behalf of the Union. All that
this testimony shows is that Green warned that Respondent Ozark would "dispose
of" Chilton. On cross-examination Chilton, in answer to a leading question, testi-
fied that Green threatened that Respondent Ozark would "dispose of" the Union,
an altogether different thing. Taken as a whole, Chilton's testimony regarding this
incident is so self-contradictory and confused that it "carries its own death wound." 8
I shall therefore base no findings thereon. Accordingly, the Respondents' motions to
dismiss the complaint are granted, insofar as the complaint alleges that during
December 1963 Respondent Ozark threatened employees with reprisals unless they
abandoned their support of the Union.
8 N.L R.B. v. Robbins Tire & Rubber Company, Inc, 161 F.2d 798, 800 (C A. 5). See also
Bernhardt Bros. Tugboat Service Inc , 142 NLRB 851, 864, enfd 328 F.2d 757 (C.A. 7).
264-188-67-vol 161 38
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The closedown of December 19, 1963
1. Facts
On about December 16, 1963, Respondent Ozark discharged two or three employ-
ees. The General Counsel does not allege that these discharges were discriminatory.
On December 19, 1963, about 9 a.m , Boyd C. Shinn, a representative of the
Union's parent organization, and Blaine Breeden, then president of the Union, con-
ferred with Holekamp at Respondent Ozark's plant. The Union's representatives
insisted that the discharges were unjustified and that the dischargees should be
taken back to work. Holekamp resisted the demand. After about an hour's discus-
sion, Holekamp blew the whistle, and the employees ceased working and gathered
in the "break room." Holekamp announced to the assembled employees: "Boys, this
is it. This is the end. This is as far as we are going. When I can't get eight hours
pay for eight hours work lsic], we will close it down." He further announced that
the plant would close at noon that day. Accordingly, from then until noon the
employees prepared to shut the plant, by returning tools to the parts room, moving
unfinished bodies into the plant, and similar tasks. Holekamp directed the office
manager to prepare the paychecks for the employees by noon, which was done.
Holekamp also asked A. R. Chilton, an employee, whether he had any job "lined
up" or if he (Holekamp) might help Chilton obtain employment.9 That afternoon
the plant remained closed, and no work was done. Holekamp conferred with Shinn,
Breeden, and Chilton for several hours. This conference resulted in an agreement by
Holekamp to reopen the plant the next morning, and to put the dischargees back
to work. Accordingly, the plant reopened on December 20, and the dischargees
returned.
2. Contentions of the parties
The complaint alleges that on or about December 15, 1963, Respondent Ozark
"locked out and denied employment to all its employees . . . for a period of four
hours . . because the Union attempted to settle certain employees' grievances
and without prior consultation with or notification to the Union." The General
Counsel's brief argues: "this lockout was retaliatory for proper employee union
activity under the existing collective bargaining agreement."
Respondents Hutco and Mobilefreeze deny this allegation in their answers. The
answer of Respondent Ozark "denies there was any lockout or otherwise; but states
the supervisor of the operation without consultation with any of the directors or
officials of the Company quit temporarily and left the plant without an operating
manager; that this did not constitute action by the Company, was not induced or
ordered or brought about in any fashion by the Company; denies the employees
were deprived of any appreciable pay by reason of this action." However, at the
hearing, Respondent Ozark conceded that, with one exception (Jerry Hardcastle),
the employees of Respondent Ozark lost 4 hours' pay on December 19, 1963, but
argued that Holekamp did not possess "authority to shut down the plant." Respond-
ent Ozark's brief iterates its contention that it "is not chargeable with an unfair
labor practice if its agent Holekamp acts without the knowledge or authority of
the board of directors or other officers, and under circumstances where no
director or officer is present to pevent what happens." The brief goes on to say:
"while denying guilt of an unfair labor practice, Ozark feels that in good con-
science, as between the employees and Ozark, Ozark should stand the pay loss.
Ozark therefore admits liability for 4 hours additional pay on December 19, 1963,
to all employees who punched in that date."
3. Conclusions
Holekamp testified. "I was quite annoyed when they came down and told me I
had to take back these three men." In the light of this admission, the tenor of
Holekamp's announcement to the employees at 10 a.m., and all the surrounding
0 The findings of fact regarding Holekamp 's conduct that morning are based upon a syn-
thesis of the testimony of Chilton and Shinn . Holekamp testified that he announced to
Shinn and to the employees that he personally was resigning , and that this ipso facto
necessitated the closing because "there was no one in authority to take over the plant "
I do not credit this testimony. Foreman Green was presumably in the plant, and able to
take over Moreover, Holekamp never submitted his alleged resignation to his superiors, or
notified them that a replacement was needed to take charge of the plant.
OZARK TRAILERS, INC. 579
circumstances, it is quite clear, and I find, that Holekamp closed down Respond-
ent Ozark's plant on December 19, 1963, in retaliation for the Union's demand
that the discharges be reinstated. As the Union's demand constituted concerted
employee activity protected by Section 7 of the Act, Holekamp's conduct amounted
to an illegal and discriminatory lockout.10
The Respondents' defense that Holekamp lacked authority to take the action he
did is without merit. As the highest mangement official at the Ozark plant, he was
clothed with apparent authority to take any measuies which he deemed necessary
or appropriate with regard to the employees of that plant, including shutdown
Accordingly, I conclude that Holekamp was an agent of Respondent Ozark, acting
within the scope of his authority, when he penalized the employees at the Ozark
plant by shutting down. It follows, and I find, that by the shutdown of the Ozark
plant on December 19, 1963, the Respondents interfeied with, restrained, and
coerced the Ozark employees in violation of Section 8(a)(1) of the Act, and also
discouraged membership in the Union by discriminating against the Ozark employ-
ees in regard to their tenure of employment , in violation of Section 8(a)(3) of
the Act.
The General Counsel contends that the Respondents further violated the Act on
December 19, 1963, by failing to fulfill their statutory duty to bargain with the
Union regarding the shutdown. Let us look at the facts. Holekamp's decision to
close the Ozark plant that day seems to have been a spur-of-the-moment or "spon-
taneous" decision. So far as the record shows, it was communicated to the Union's
representatives promptly-and at least 2 hours before it actually went into effect.
No attempt was made to withhold information from the Union, or to mislead in
any way. Furthermore, Holekamp bargained with the Union in the morning con-
cerning the discharges and in the afternoon concerning not only the discharges but
also reconsideration of his decision to close the plant. Indeed , the Union prevailed
upon him to reverse his decisions in both matters. Under these circumstances, I
cannot agree that he was in any substantial degree remiss in his obligation to bar-
gain in good faith with the Union . The Respondents ' motions to dismiss the com-
plaint are accordingly granted insofar as the complaint alleges that the Respondents
violated Section 8(a)(5) of the Act on December 19, 1963, and denied insofar as
the complaint alleges that the Respondents violated Section 8(a)(1) and (3) of
the Act on that date.
E. The final closing of the Ozark plant
1. Facts
Near the end of January 1964 , Respondent Ozark's board of directors determined
finally that the operation in Ozark would no longer continue . li During the week
prior to February 21, 1964, Holekamp was first notified by his superiors that the
Ozark plant was going to close . Apparently , however, he was not informed that
the closing was to be permanent.12 At that time there were four truck bodies near-
ing completion in the Ozark plant. As each body was finished the employees who
were no longer needed were laid off on a seniority basis. The first such reduction
in force took place on February 20, 1964, when Rex Henry, the Union 's steward,
and several other production employees were terminated . Holekamp stated to
Henry that the layoff was due to lack of work at that time, that it was a temporary
10 See Wood , J B., an individual , d/b/a Wood Manufacturing Company and J. B Wood
and Conrad Wood, a partnership , d/b/a Wood Manufacturing Company, 95 NLRB 633,
641 ; Daykin, Legality of Lockouts Under the Taft-Hartley Act, 9 LLJ 136-142 , Annota-
tion, Employer's lockout of employees as unfair labor practice under § 8(a) (1) and (3)
of amended National Labor Relations Act, 1 L Ed 2d 2022-40
In so holding , I do not pass upon the merits of the discharges which brought about the
dispute. Nor do I imply that Holekamp was obliged to accede to the Union's demand that
the dischargees be taken back.
11 This finding of fact is based upon a synthesis of the testimony of Warren and Latzer.
12 Holekamp testified, on cross-examination by the General Counsel:
Q. I see. Mr. Holekamp, when were you notified by your superiors that the plant
was going to close permanently?
A. To my knowledge, I was never notified the plant was going to be closed
permanently.
Q You were never notified of that?
A. Not that it vas going to be closed permanently then
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
layoff, and that he could not promise when Henry would be called back. There was
no mention of the plant being shut down.13 The office manager was terminated on
February 27, 1964, and the remaining rank-and-file production employees on
February 28, 1964. After that, all four truck bodies having been completed. the
plant ceased operation about March 1, 1964.
Thereafter, Holekamp became manager of Respondent Mobilefreeze's manu-
facturing operation in Parsons, Kansas. Most of the equipment formerly used by
Respondent Ozark (upon which Respondent Mobilefreeze held a moitgage), was
moved to Respondent Mobilefreeze's Parsons plant as a credit against the moneys
owed Mobilefreeze. But as the Parsons plant was already equipped and operating,
a large part of the machinery from Ozark was duplicate and was therefore put in
storage. No bankruptcy proceedings regarding Respondent Ozark have been insti-
tuted, nor is there any indication in the record that legal steps have been taken to
dissolve the corporation.
2. Contentions of the parties
The complaint alleges that "on or about March 1, 1964, the Respondent without
prior consultation with, or notice to, the Union . discontinued all production
activities at Ozark and transferred the entire operation to [Respondent] Mobile-
freeze." It lists the individuals terminated. The answers of Respondents Hutco and
Mobilefreeze deny these allegations. Respondent Ozaik's answer admits that it
"had to terminate its operation of business for economic reasons in February of
1964" and alleges that "for this reason alone, the employment of the persons listed
. was terminated." The parties stipulated that the employees named in the
complaint were terminated upon the dates set forth opposite their names. At the
hearing, the General Counsel took the position that the actual work which
Respondent Ozark would have done was in fact carried on by Respondent Mobile-
freeze thereafter. In his brief, the General Counsel maintains that "at least one of
the reasons that the Respondent moved its Ozark operation to Mobilefreeze was
to rid itself of unionization among its employees" and that the discharge of the
Ozark employees was therefore discriminatory. In its brief, Respondent Ozark
repeats its contention that the closedown of the Ozark plant was dictated by eco-
nomic considerations alone.
3, Conclusions
a. Motive for the closedown
To support his claim that the closedown of the Ozark plant was discriminatory,
the General Counsel relies upon (a) alleged statements by Latzer and Drosten in
1962 regarding the experimental nature of the manufacture of plastic bodies; (b)
alleged statements by Holekamp in December 1963 and January 1964 regarding
Respondent Ozark's profits; (c) Green's alleged threat in December 1963; (d)
the Respondents' alleged union animus as demonstrated by Holekamp's discrimina-
tory closedown of the Ozark plant on December 19, 1963; (e) Holekamp's alleged
statements in January 1964 regarding the likelihood of a closedown; (f) Holekamp's
alleged statement in February 1964 regarding the "move" to Parsons, Kansas; (g)
Holekamp's alleged statement in February 1964 that the closing of the plant had
nothing to do with orders or production; (h) the fact that after the closing of the
Ozark plant the machinery and plant manager were transferred to Respondent
Mobilefreeze; and (i) the fact that after the cessation of operations in Ozark,
Respondent Mobilefreeze manufactured bodies similar to those previously made by
Respondent Ozark. Let us examine these factors seriatim.
As to (a), Chilton testified that in 1962, while he was still in the employ of
Respondent Hutco, Latzer and Drosten on two different occasions told the employ-
ees of Respondent Hutco's plastic department that the manufacture of plastic bodies
was "purely experimental" and that "it would possibly be three years before they
would realize any profit." Assuming that such statements were made, it does not fol-
low-as the General Counsel seems to imply-that the management was irrevocably
committed to keep the operation going for at least 3 years regardless of losses. All
that the alleged statements may reasonably be taken to mean is that, at that time,
management was willing to wait a reasonble period (and perhaps to absorb modest
losses in the meanwhile), before expecting to realize a profit Surely the substantial
losses which the Respondent did in fact thereafter sustain, the size of which may
is The findings of fact regarding this conversation are based upon Henry's undented
testimony.
OZARK TRAILERS, INC. 581
have exceeded expectations, were of a nature to justify a later reappraisal of the
situation in January 1964-approximately 11/2 years after these statements were
alleged to have been made.
As to (b), Chilton testified that in December 1963 Holekamp "said it was the
first time the company had ever realized any profit ... it was strictly book profit,
but the company had realized for the first time they could make the operation pay."
Chilton further testified: "I think in January, also, that I had a talk with him and
the company, the way I understood it, was making money at that time, January and
December." Chilton failed to tie down the times and places and other persons
present, if any. Holekamp could not recall making any such statements to anyone
in December 1963. The financial statements of Respondent Ozark, discussed in more
detail hereafter, show that it was sustaining severe losses during the months in
question. Holekamp testified that he normally saw the monthly statements. There-
fore if Chilton's version were to be believed, Holekamp deliberately misled Chilton;
furthermore, Chilton would not be likely to have been worried in January 1964
(as events that month indicated he was), regarding the likelihood of the plant
closing. While Holekamp did not impress me as an entirely candid witness in all
respects, for the foregoing reasons I find it difficult to accept as accurate, and
therefore do not credit, Chilton's version of these alleged statements by Holekamp.
With regard to (c), it has already been determined that Chilton's testimony was
too vague and self-contradictory to warrant basing any findings thereon. We turn,
then, to (d). It is undoubtedly true that, in discriminatorily locking out Respondent
Ozark's employees for half a day on December 19, 1963, Holekamp exhibited a
strong union animus. Despite past contractual relations at Ozark and apparent
amicable relations also at the operation of Respondent Hutco,14 I agree with the
General Counsel that in January 1964 the Respondents were opposed to the union-
ization of the Ozark operation.15
As to (e), on January 15, 1964, Chilton was nominated for president of the
Union and before accepting told Holekamp of his nomination, explaining that he
did not want to accept if there were any possibility that the plant might close in
the foreseeable future. Holekamp's reply is in dispute. According to Chilton,
Holekamp answered that "he had no idea of closing" the plant, that there "was
six months work . in advance" and that he would "check" and talk to Chilton
again in a week. According to Chilton a second conversation ensued about a
week later, attended also by Henry, at which Holekamp reported that Respondent
Ozark "had at least six months work ahead, they had a number of bodies for Swift
and Company. They were contemplating some orders from the air force [and] .. .
in the foreseeable future they wouldn't be closing down." Holekamp's version was
that there was one such conversation, in which Holekamp "couldn't give him
[Chilton] any firm answer one way or another because I don't know if the com-
pany was in bad shape, but at that time I did not know of any closedown." Although
Henry testified as a witness for the General Counsel, he did not mention this inci-
dent. Chilton thereafter accepted the Union's presidency. I am of the opinion that,
in view of his hesitation, he would not have done so absent some sort of assurance
from Holekamp. Accordingly, I credit Chilton's version of this incident as the
more accurate.
Regarding (f), Tom Van Horn, an employee of Respondent Ozark who was
terminated on February 28, 1964, testified that a week before his termination he
14 Shim testified that in 1959 he was in charge of organizing the employees of Respond-
ent Hutco and had several conferences with Warren and Respondent Hutco's attorney. He
further testified:
Q I will ask you this, in all of your experience in your capacity that you now per-
form, have you ever had an organization that took place in a company quicker and
smoother in all your experience"
A. Mr. Hulston, I thought that was remarkable for its simplicity and completeness.
is This conclusion is not related critically, but merely as a statement of fact. The Re-
spondents had, of course, a legal right to show antagonism toward the Union, so long as
they took no action forbidden by the Act N L R B. v McGahey, T. A., Sr ; T A McGahey,
Jr., Mrs Attie McGahey Jones and Mrs Wilda Frances McGahey Harrison, d/b/a Colum-
bus Marble Works, 233 F 2d 406, 409 (C.A. 5). But, as the United States Court of Appeals
for the Fifth Circuit has said in N.L R B. v. Dan River Mills, Incorporated, Alabama
Division, 274 F.2d 381, 384: "antiunion bias and demonstrated unlawful hostility are
proper and highly significant factors for Board evaluation In determining motive " See also
Caldwell Mfg. Co , Inc., 149 NLRB 112.
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked Holekamp• "John, is there anything to it about the shop closing?" and that
Holekamp answered: "Yes, we are moving to Parsons, Kansas" and inquired if
Van Horn "wanted to go with him," which Van Horn declined. According to
Van Horn, when Van Horn admonished: "Let go of the union in Parsons," Hole-
kamp responded "he guessed he could block the union in Parsons as he did in
Ozark." Holekamp admitted that he "made mention that some of the equipment
was being moved" to Parson, but denied stating that he was "going to break the
union " The facts show, as related above, that the Union obtained a 1-year con-
tract at Ozark, arranged the rehire of several dischargees, and convinced Holekamp
to reverse his decision closing the plant on December 19, 1963. It can hardly be
said, therefore, that Holekamp had "blocked" the Union there, and I doubt that
he told Van Horn that he had done so. I accordingly do not credit Van Horn's
version of this conversation.
As to (g), Chilton testified that on February 28, 1964, when he was terminated,
Holekamp advised him "that he didn't think it [the layoff] would be over 3 weeks'
duration . and it had nothing to do with the orders or production." Indeed,
Chilton testified that he "gathered" the layoff was due, in part at least, to the
"Ross Vaughan suit" 16 which, according to Chilton, was set for trial for
March 15, 1964. Holekamp's version was somewhat different. According to Hole-
kamp, he told Chilton that the men were going to be laid off for an indefinite
length of time, and when Chilton asked if he thought the plant would reopen
he replied that he did not know. Holekamp further denied mentioning that the
Ross Vaughan case was set for trial March 15, in fact he testified that the pleadings
in that case were not even filed unitl May 1964. In view of the status of the Ross
Vaughan case in February 1964, and in lieht of Holekamp's ctatenient to Henry
at the time that the layoff was due to lack of work, I do not credit Chilton's
version that Holekamp informed him that the layoff "had nothing to do with
the orders or production."
There remain (h) and (i), dealing with events after the closing of the Ozark
operations. It is true that Holekamp then became manager of the Parsons operation
of Respondent Mobilefreeze, and that machinery previously used at Ozark was
shipped to the Parsons plant. But, as previously noted, Respondent Mobilefreeze
held a mortgage on this property, and took possession of it as an offset against
Respondent Ozark's unpaid debt. It is also true that Respondent Mobilfreeze
manufactured bodies similar to those previously made by Respondent Ozark.
However, it had done so ever since it began manufacturing operations in Parsons-
long before the decision to close the Ozark plant. Indeed, Latzer testified: "It
was our [original] intention that both operations would be maintained and
operated together." Prior to the closing of the Ozark plant, Respondent Mobile-
freeze purchased some bodies from Metal Stamping Corporation in Conway,
Arkansas. Since the closing, Respondent Mobilefreeze has contracted for the
purchase of bodies from Schodorf Body Company in Columbus, Ohio. In the
job categories which existed at the Ozark operation before it closed, only one new
employee has been hired at Parsons since March 1, 1964. There is no evidence
that any work under way by Respondent Ozark on March 1, 1964, was thereafter
completed by Respondent Mobilefreeze, that Respondent Mobilefreeze's operations
or employee complement have increased substantially since March 1, 1964, or
indeed that its operations have undergone any change, or been affected to any
substantial degree. I conclude that there is no support in the record for the
complaint's allegation that "on or about March 1, 1964, the Respondent . . .
transferred the entire [Ozark] operation to Mobilefreeze."
In sum, the record shows that the Respondents, in January 1964, opposed the
unionization of their employees at Ozark; that during the same month, through
Holekamp, the Respondents assured Chilton that the Ozark plant "had at least
6 months work ahead"; that the Respondents permanently closed down the Ozark
operation at the end of February 1964 (but did not however transfer it to Parsons);
and that at that time the Respondents indicated to the employees that the shutdown
was only temporary, thereby withholding from its employees the fact that a per-
manent closing had already been agreed upon. These facts, in unexplained, would
lend support to the General Counsel's contention that the Ozark plant was per-
manently closed by the Respondents in order to get rid of the Union. Let us turn
then to the Respondent's explanation.
ie Apparently a lawsuit filed against Respondent Ozark by Ross Vaughan, its former
president and manager
OZARK TRAILERS, INC. 583
Latzer testified that the decision to close the Ozark plant was arrived at "strictly
for financial reasons." The U.S. Corporate Income Tax Return of Respondent
Ozark for 1961 showed a net loss of over $2,000, although during that year the
president's total compensation (he having also acted as manager), was only $1,200
In 1962 Respondent Ozark fared even worse-a total net loss of over $ 12,000, of
which over $9,000 was due to "inventory adjustment", total officer salaries were
only about $4,800. But the big loss came in 1963 In that year the net loss exceeded
$136,000, of which about $17,000 was due to "loss on inventory." At the end of the
year Respondent Ozark owned total assets of only about $160,000, while its debt
to Respondent Mobilefreeze alone exceeded $285,00. In January 1964 Respondent
Ozark sustained another net loss of over $9,400. Thus, fiom the beginning of 1961
to the end of January 1964 Respondent Ozark lost a total of approximately
$160,000 During this period no dividends were paid to stockholders and no salaries
to officers except in payment for actual managerial services. In the face of such
staggering losses and virtually hopeless insolvency of the Ozark operation, there can
be little doubt that the financial situation was uppermost in the minds of the direc-
tors when they decided to close the Ozaik plant permanently to prevent further
losses.i7 I find this to be an acceptable and reasonable explanation for the closing
On the entire record, and bearing in mind the importance of the profit motive in
private industry, I am persuaded and find that the Respondents' decision to close
down the Ozark opciation was based primarily upon economic considerations, and
that the General Counsel has failed to demonstrate by a fair preponderance of the
evidence that the decision was motivated to any appreciable extent by union animus
or the desire to get rid of the Union.
b. Failure and refusal to baigain
As noted above, the General Counsel contends that the Respondents closed the
Ozark operation on or about March 1, 1964, "without prior consultation with, or
notice to, the Union, the duly authorized representative of all its employees in the
[appiopriate] unit." As previously set forth, the Union was certified on March 11,
1963, as bargaining agent for Respondent Ozark's employees. By virtue of the 1-
year contract executed on April 16, 1963, the Union was entitled to exclusive recog-
nition for at least the term of the contiact Shinn, representing the Union's parent
organization, Chilton, then president of the Union, and Henry, a member of the
Union's bargaining committee, all testified that the final closing of the Ozark opera-
tion was accomplished without prior notice to or consultation with the Union. Thus
the Respondents closed the Ozark operation and effectively discharged all employees
in the unit without consulting with the Union or giving it an opportunity to bargain
with respect to the contemplated change as it effected employment. The Board has
held that, under such ciicumstances, an employer's bypassing of the statutory repre-
sentative of its employees, and failure to bargain in good faith regarding its decision
to close down, as well as the effects of such a decision upon the employees, is vio-
lative of Section 8(a)(5) of the Act.18 The Respondents' motions to dismiss the
complaint are accordingly granted insofar as the complaint alleges that the Respond-
ents violated Section 8(a)(3) of the Act by the final closing of the Ozark operations
on or about March 1, 1964, and denied insofar as the complaint alleges that the
Respondents violated Section 8(a)(1) and (5) of the Act by such unilateral
conduct.
"The General Counsel argues in his brief that "the best that can be said for the move
was that Respondent combined two losing operations at one location. . . Nowhere did
the Respondent .. show that it had benefited itself in any way by combining the Ozark
operation with that of Mobilefreeze " The basic error in this reasoning is the assumption that
the operations at Ozark and Parsons were combined In fact this was not done All that
occurred was that the Ozark operation, which had proved to be unprofitable, was abandoned
18 Town & Country Manufacturing Company, Inc, 136 NLRB 1022, 1026-28, enfd. 316
F 2d 846 (C.A. 5), rehearing denied June 29, 1963, The Renton News Record, 136 NLRB
1294, 1296, Adams Dairy, Inc, 137 NLRB 815, 816, enforcement denied 322 F 2d 553
(C A 8) , Fibreboard Paper Products Corporation, 138 NLRB 550 (Supplemental Decision
and Order), enfd. 322 F 2d 411 (C A D C ), rehearing denied September 27, 1963, cert
granted 375 U S 963 ; Winn-Dixie Stores, Inc , 147 NLRB 788 ; Royal Plating and Polish-
ing Co , Inc , 148 NLRB 545 ; and The William J. Burns International Detective Agency,
Inc, 148 NLRB 1267. See also N L R B. v Rapid Bindery, Inc, 293 F 2d 170, 175-176 To
the extent that Seaboard Packing Company, 107 NLRB 1295, holds to the contrary, I deem
it to have been overruled sub silentio by the Board's decisions in Town & Country, Renton
News, Adams Dairy, Fibreboard, Winn-Dixie, Royal Plating, and Burns.
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the above findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Ozark Trailers, Incorporated, Hutco Equipment Company, and Mobilefreeze
Company, Inc., together constitute, and at all material times have constituted, a
single employer within the meaning of Section 2(2) of the Act, engaged in com-
merce within the meaning of Section 2(6) of the Act.
2 International Union, Allied Industrial Workers of America, Local No. 770,
AFL-CIO, is, and all material times has been, a labor organization within the mean-
ing of Section 2(5) of the Act
3. By closing its operation at Ozark, Missouri, on December 19, 1963, thereby
discouraging membership in the above-named labor organization, the Respondents
have engaged in and are engaging in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
4. All employees of Ozark Trailers, Incorporated, excluding office clerical employ-
ees, watchmen and guards, professional employees, the plant manager, and all
other supervisors as defined in the Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b) of the Act.
5 International Union, Allied Industrial Workers of America, Local No. 770,
AFL-CIO, was on March 11, 1963, and at all times since has been, the exclusive
representative of the employees in the above-described unit for the purposes of col-
lective bargaining within the meaning of Section 9(a) of the Act.
6. By unilaterally closing their operation at Ozark, Missouri, on or about
March 1, 1964, without prior notice to, consultation with, or bargaining with the
above-named labor organization, thereby failing and refusing to bargain collectively
with the above-named labor organization as the exclusive representative of the
employees in the above-described unit, the Respondents have engaged in and are
engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act.
7. By the above-described conduct, thereby interfering with, restraining, and coerc-
ing their employees in the exercise of rights guaranteed in Section 7 of the Act,
the Respondents have engaged in and are engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
8. The above-described untair labor practices tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of commerce, and constitute
unfair labor practices affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
9. The General Counsel has failed to establish that the Respondents violated the
Act during December 1963 by threatening employees with reprisals; or that they
violated Section 8(a)(5) of the Act by failing or refusing to bargain regarding the
closing of their operation at Ozark, Missouri, on December 19, 1963; or that they
violated Section 8(a)(3) of the Act by discriminatorily closing the said operation
on or about March 1, 1964.
THE REMEDY
It has been found that the Respondents discriminatorily locked out their employ-
ees for 4 hours on December 19, 1963, and that they failed and refused to bargain
collectively with the Union with respect to the final closing of the Ozark operation
on or about March 1, 1964. It will accordingly be recommended that the Respond-
ents cease and desist from such conduct. Because of the underlying purpose and
tendency of this unlawful conduct, it is concluded that there exists danger that the
Respondents will in the future commit other unfair labor practices. Accordingly, it
will be recommended that the Respondents cease and desist , not only from the
unfair labor practices found, but also from in any other manner infringing upon
the rights guaranteed in Section 7 of the Act.
Affirmatively, it will be recommended that the Respondents make whole all
employees or former employees of Respondent Ozark who reported for work on
December 19, 1963, for any loss of pay they may have suffered by reason of the
Respondents' discrimination against them on that day, by paying to each of them
a sum of money equal to that which he would normally have earned during those
4 hours, less his net earnings during the said period, if any. The backpay provided
for herein shall carry interest at the rate of 6 percent per annum.
The Respondents' unilateral discontinuance of their operation in Ozark, Missouri,
about March 1, 1964, resulted in the termination of 12 employees. In fashion-
ing an affirmative order, it must be borne in mind that the remedy should be
adapted to the situation that calls for redress with a view toward restoring the
situation as nearly as possible, to that which would have obtained but for the
OZARK TRAILERS, INC. 585
unfair labor practice.19 The nature of the violation would justify directing the
Respondents to restore the situation existing prior to the closedown of the Ozark
operation by ieestablishing the discontinued operation. However, the remedy should
also be tempered by practical considerations. The Ozark plant has been shutdown
for almost 10 months and most of the machinery has been shipped quite a distance
away. Therefore that remedy would seem to be impractical. The type of violation
would also justify directing the Respondents to put the discharges on a preferential
list for hire as positions open in the Respondents' other plants. But the Respondents'
other plants are some distance away, and the record does not indicate whether the
affected employees are suitable for employment elsewhere in the Respondents'
organization. Therefore I do not consider this remedy feasible. Of course, if the
parties feel otherwise, they are free to agree on establishing such a preferential
hiring list-but this is, in my opinion, properly a matter for collective bargaining.
Effectuation of the policies of the Act does require, however, if the unilaterally
discontinued operation is not restored, that the Respondents undo the specific viola-
tions found by offering now to bargain with the Union, not only about the effects
on the employees of the discontinued operation, but also about the resumption of
such operation. Moreover, it is clear that if the Respondents had honored their
statutory bargaining obligation, the employees affected by the discontinuance would
not have been terminated without the protection afforded them through collective
bargaining about the proposed action. As a result of the process of bargaining, the
employees might not have been terminated at all. In any event, they might have
retained their jobs at least until the Respondents had fulfilled their bargaining
obligation by negotiating to a genuine impasse. Effectuation of the Act's policies
therefore further requires that the employees whose statutory rights were invaded
by reason of the Respondents' unlawful unilateral action, and wno may have Buf-
fered losses in consequence thereof, be reimbursed for such losses until such time
as the Respondents remedy their violation by doing what they should have done in
the first place. Accordingly, it will be recommended that the Respondents make the
discharged employees whole for any loss of pay they may have suffered as a result
of the Respondents' unfair labor practice The liability for such backpay shall
cease upon the occurrence of any of the following conditions : ( 1) reaching mutual
agreement with the Union relating to the subjects which the Respondents are
hereby required to bargain about; (2) bargaining to a genuine impasse; (3) the
failure of the Union to commence negotiations within 5 days of the receipt of the
Respondents' notice of their desire to bargain with the Union; or (4) the failure
of the Union to bargain thereafter in good faith. Of course, if the Respondents
decide to resume their operation at Ozark, Missouri , and offer to reinstate their
former employees to their same or substantially equivalent positions, their liability
will cease as of that date. Backpay shall be based upon the earnings which the
terminated employee would normally have received during the applicable period,
less any net interim earnings , and shall be computed on a quarterly basis in the
manner established by the Board, with interest thereon at the rate of 6 percent per
annum.20 It will be further recommended that the Respondents post appropriate
notices, and mail copies thereof to each of the discharged employees.
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in this case, I make the following:
RECOMMENDED ORDER
It is therefore recommended that Ozark Trailers, Incorporated, Ozark, Missouri
Hutco Equipment Company, Springfield, Missouri, and Mobilefreeze, Inc., Parsons,
Kansas, their officers, agents, successors, and assigns, shall-
1. Cease and desist from:
(a) Discouraging membership in International Union, Allied Industrial Workers
of America, Local No. 770, AFL-CIO, or any other labor organization, by locking
out their employees or otherwise discriminating against them in regard to their hire
or tenure of employment or any other term or condition of their employment.
(b) Unilaterally closing any of their plants or otherwise instituting changes in
the wages, hours, or other terms or conditions of employment of employees in the-
unit described below, without prior notice to and bargaining with the above-named
labor organization concerning such decision and its effects.
19 Y L.R B. v. Mackay Radio t Telegraph Co, 304 U S. 333, 348; and Phelps -Dodge Corp -
v NLRB,313U.S 177,194
20 Wann -Davie Stores , Inc., 147 NLRB 788
,586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) In any other manner interfering with, restraining , or coercing their employ-
ees in the exercise of their rights under Section 7 of the Act, except as permitted
by Section 8(a) (3) of the Act, as amended
2. Take the following affirmative action, which it is found will effectuate the
policies of the Act:
(a) Make whole all employees or former employees of Ozark Trailers, Incor-
porated, who reported for work on December 19, 1963, for any loss of pay suffered
as a result of the discrimination against them on that date, with interest thereon
at the rate of 6 percent per annum.
(b) Offer to and, upon request, bargain collectively with the above-named labor
organization as the exclusive representative of all employees in the appropriate
unit concerning resumption of their operation at Ozark, Missouri, and failing to
reach agreement in this matter, bargain collectively regarding the effects of the
discontinuance of this operation. If an understanding should be reached, upon
request, embody such understanding in a signed agreement. The appropriate unit is:
All employees of Ozark Trailers, Incorporated, excluding office clerical employ-
ees, watchmen and guards, professional employees, the plant manager, and all
other supervisors as defined in the Act.
(c) Make whole A. R. Chilton, Clarence Chilton, Bill Clayman, Larry Day,
Max Estes, Howard Haifling, Rex Henry, Hollis H. Hull, Jim Tinker, Eugene
Van Horn, Tom Van Horn, and Lyle Wood for any loss of pay they may have
suffered by reason of the Respondents' unilateral closing of their operation at
Ozark, Missouri, with interest thereon at the rate of 6 percent per annum.
(d) Preserve and, upon request, make available to the Board or its agents. for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to compute
the amount of backpay due hereunder.
(e) Promptly upon receipt from the Regional Director for Region 17 of copies
of the attached notice marked "Appendix," 21 cause such copies to be signed by a
representative of each of the Respondents and be posted in conspicuous places at
their plants in Spiingfield, Missouri, and Parsons, Kansas, including all places where
notices to employees are customarily posted
(f) Maintain such posting for 60 consecutive days, during which they shall take
reasonable steps to prevent such notices from being altered, defaced, or covered
by any other material.
(g) Promptly upon receipt from the said Regional Director of copies of the
said notice, mail a copy thereof, signed as set forth above, to each of the employees
entitled to backpay hereunder, at his last known address, by certified mail.
(h) Notify the said Regional Director, in writing, within 20 days from the
receipt of this Decision,22 what steps they have taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to carry out the policies of the National Labor Rela-
tions Act, as amended, you are notified that:
WE WILL NOT discourage membership in International Union, Allied Indus-
trial Workers of America, Local No. 770, AFL-CIO, or any other union, by
locking out our employees or otherwise discriminating against them in regard
to their hire or tenure of employment or any of their working conditions
WE WILL NOT close any of our plants or otherwise change the wages, hours,
or working conditions of employees in the unit described below, without first
21 In the event that this Recommended Order is adopted by the Board, the words "the
Recommended Order of a Trial Examiner" shall be stricken from the notice, and the words
"a Decision and Order" shall be substituted therefor. If the Board's Order should be en-
forced by a decree of a United States Court of Appeals, the words "Decision and" shall
be stricken from the notice, and the words "Decree of the United States Court of Appeals
Enforcing an" shall be substituted therefor
22 In the event that this Recommended Order is adopted by the Board, the words "20 days
from the receipt of this Decision" shall be stricken, and the words "10 days from the
date of this Order" shall be substituted therefor
1 AUGHAN-HICKS BUICK CO. 587
notifying and bargaining with the above-named Union concerning such
decision and its effects.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their right to self-organization , to form, join,
or assist unions, to bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection, or to refrain from such activities,
except to the extent that such right may be affected by an agreement " requiring
union membership as a condition of employment , as authorized in Section
8(a)(3) of the National Labor Relations Act, as amended by the Labor-
Management Reporting and Disclosure Act of 1959.
WE WILL reimburse all employees or former employees of our plant at
Ozark, Missouri, who punched in on December 19, 1963, for any loss of pay
suffered because of the discrimination against them on that date , with 6 percent
interest.
WE WILL offer to and , upon request, bargain collectively with the above-
named Union as the exclusive representative of all employees in the unit about
resumption of our operation at Ozark, Missouri, and failing to reach agree-
ment in this matter, WE WILL bargain collectively about the effects of the dis-
continuance of this operation. If agreement should be reached, WE WILL, upon
request, put it in the form of a written contract. The unit is:
All employees of Ozark Trailers, Incorporated, except office clerical em-
ployees, watchmen and guards, professional employees, the plant manager,
and all other supervisors.
WE WILL reimburse the employees named below for any loss of pay suffered
by them because of the discontinuance of our operation at Ozark, Missouri,
with 6 percent interest.
A. R. Chilton Max Estes Jim Tinker
Clarence Chilton Howard Haifling Eugene Van Horn
Bill Clayman Rex Henry Tom Van Horn
Larry Day Hollis H. Hull Lyle Wood
OZARK TRAILERS, INCORPORATED,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
HUTCO EQUIPMENT COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
MOBILEFREEZE COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Any questions concerning this notice or compliance with its Provisions may be
directed to the Board's Regional Office, 1200 Rialto Building, 906 Grand Avenue,
Kansas City, Missouri 64106, Telephone Baltimore 1-7000, Extension 731.
Vaughan-Hicks Buick Co. and International Association of Ma-
chinists and Aerospace Workers , AFL-CIO. Cases 26-CA-2260
and 26-RC-2507. October 28, 1966
DECISION AND ORDER
On June 22 , 1966, Trial Examiner George A. Downing issued his
Decision in the above -entitled proceedin, finding that Respondent
161 NLRB No. 41.