Pentalic Corp.

National Labor Relations Board - Board Decisions

Dec 10, 1971

194 N.L.R.B. 500 (N.L.R.B. 1971)

500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Triplex Oil Refining Division of Pentalic Corporation
and Coal, Gasoline, Fuel Oil , Teamsters, Chauf-
feurs, Helpers, Oil Burner Installation , Mainte-
nance, Servicemen and Helpers of New York City
and Vicinity, Nassau and Suffolk Counties, New
York, N.Y., Local Union No. 553, International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America. Case
29-CA-2181
the complaint be, and it hereby is, dismissed in its
entirety.
I As the General Counsel points out in his exceptions, the Trial
Examiner's citation of Textile Workers Union of America v Darlington
Manufacturing Company, 380 US 263, is inapplicable; and the Trial
Examiner's alternative finding that the further processing of the case would
not effectuate the policies of the Act is not acceptable as a basis for
resolving this case.
TRIAL EXAMINER'S DECISION
December 10, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On September 3, 1971, Trial Examiner Thomas F.
Maher issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions as modified herein
and to adopt his recommended Order.
The Trial Examiner concluded that Respondent
fulfilled its duty to bargain with the Union as to the
effects upon the unit employees of its closing of the
Triplex plant. We agree with the Trial Examiner's
conclusion, but we rely only on his finding that
Respondent held a meeting with the Union as to the
effects of the plant closing, and thus satisfied its
obligation to bargain. As the Trial Examiner found,
Krauss, a representative of Respondent, asked an
official of the Union to come down to the plant after
the closing to make sure the terminated employees
were satisfied with the benefits each received under
the contract. The union official did so, and thus had
an opportunity to seek negotiations on the effects of
the closing. As the Respondent fulfilled its bargaining
obligation by affording the Union this opportunity, it
cannot be faulted for the Union's failure to present
any demands. In view of this basis for our conclusion,
we deem it unnecessary to consider the Trial Examin-
er's alternate theories of the case.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
STATEMENT OF THE CASE
THOMAS F. MAHER, Trial Examiner: Upon a charge filed
on November 9, 1970, by Coal, Gasoline, Fuel Oil,
Teamsters, Chauffeurs, Helpers, Oil Burner Installation,
Maintenance, Servicemen and Helpers of New York City
and Vicinity, Nassau and Suffolk Counties, New York,
N.Y., Local Union No. 553, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, against Triplex Oil
Refining Division of Pentalic Corporation, Respondent
herein, the Regional Director for Region 29 of the National
Labor Relations Board, herein called the Board, issued a
complaint on April 21, 1971, on behalf of the General
Counsel of the Board alleging violations of Section 8(a)(1)
and (5) of the National Labor Relations Act, as amended
(29 U.S.C., Sec. 151 et seq.), herein called the Act. In its
duly filed answer the Respondent, while admitting certain
allegations of the complaint, denied the commission of any
unfair labor practice.
Pursuant to notice trial was held before me in Brooklyn,
New York, where all parties were present, represented, and
afforded a full opportunity to be heard,' present oral
argument, and filed briefs. Briefs have been filed by
General Counsel and Respondent.
Upon consideration of the entire record, including the
briefs filed with me, and upon my observation of witnesses
appearing before me, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. THE NATURE OF RESPONDENT'S BUSINESS
The stock of Triplex Oil Refining Company Incorporat-
ed, a New York corporation, was purchased on January 2,
1970, by Pentalic Corporation, a New York corporation
with offices and a place of business at 132 West 22nd Street,
New York, where said Pentalic was engaged in the sale and
distribution of artists' materials. After January 2, 1970,
Triplex, its independent corporate entity dissolved by the
total sale of its stock, continued the operation of its
business as a division of Pentalic Corporation at its plant
located at 37-80 Review Avenue, Long Island City,
Queens, New York, where it was engaged in the rerefining
of waste oil for its subsequent sale and distribution as
lubricating oil.
During the year ending October 30, 1970, Triplex, in the
course and conduct of its business, purchased and caused
1 Counsel for the General Counsel has moved the correction of the
transcript of the hearing in certain minor respects. Having noted the errors
and in the absence of the objection to the motion it is granted and the
transcript is corrected accordingly.
194 NLRB No. 86
TRIPLEX OIL REFINING DIVISION 501
to be transported and delivered to its plant, waste oil and
other goods and materials valued in excess of $50,000, of
which goods and materials valued in excess of $50,000 were
purchased from firms inside the State of New York which
originated outside the State of New York. During the same
period Triplex sold and distributed from its plant products
valued in excess of $50,000, of which products valued in
excess of $50,000 were shipped in interstate commerce to
States of the United States other than the State of New
York.
It appears from documents introduced into the record
and deemed to be credible that on September 30, 1970, all
of the property, real and personal, of Triplex Division was
conveyed to the parent corporation and that on or about
October 30, 1970, the aforesaid property, being the plant, its
equipment, fixtures, machinery, and vehicles, was leased by
Pentalic to Newtown Refining Corporation, not a party to
these proceedings, and on that same date Triplex Division
discontinued all production, terminated all of its employ-
ees, and ceased to exist as a division of Pentalic
Corporation.
Upon the foregoing it cannot be established for lack of
probative evidence that Pentahc Corporation is or ever has
been an employer. I do conclude and find, however, that
Triplex Oil Refining Company, Inc., being otherwise
identified in the pleadings and herein as Triplex Oil
Refining Division of Pentalic Corporation, at least until its
dissolution on October 30, 1970, as described above and in
further detail herein, was an employer engaged in
commerce within the meaning of the Act and over which
the Board would assert its jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I accordingly conclude and find that
Coal, Gasoline, Fuel Oil, Teamsters, Chauffeurs, Helpers,
Oil Burner Installation, Maintenance, Servicemen and
Helpers of New York City and vicinity, Nassau and Suffolk
Counties, New York, N.Y., Local Union No. 553,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor
organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES ALLEGED
A. Sequence of Events
When Pentalic purchased the stock of Triplex Refining
on January 2, 1970, from William Krauss, Thomas
Masterson, George Blake, and Arthur Winn, it retained
these individuals in the management of the operation,
Krauss continuing as president. On the same date Pentalic
also purchased the stock of City Oil Service Corporation
from the same four stockholders.
City Oil was a trucking establishment engaged in the
collecting of waste oil from local service stations and
delivering it to the Triplex plant for processing. Triplex, as
previously noted, was engaged in the processing of waste oil
delivered to it by City Oil and by independent suppliers to
produce a low grade lubricating oil which it sold in bulk.
This process involved a distillation of the waste oil utilizing
four stills and employing approximately 26 employees plus
supervision.
When Pentalic acquired the stock of City Oil and Triplex
each organization had contractual relations of longstanding
with the Union, the current contract being scheduled to
expire on or about April30, 1970. Prior to the expiration of
City Oil's contract Pentalic sold its trucks to the drivers
over the Union's objection, and the drivers were treated
thereafter as independent contractors by all parties.2
Henceforth the drivers continued to operate their trucks,
collecting waste oil which they sold to Triplex. This sale,
according to the credible testimony of Pentalic's president,
Louis Strick, resulted from a determination that the oil
needed for the refining operation could more economically
be collected through drivers working as independent
contractors rather than as City Oil employees.
Upon the dissolution of City Oil and the expiration of its
contract with the Union it ceased to be a factor in Pentalic's
oil refining operations. These were thereafter confined to
Triplex, and nothing further transpired between the Union
and either City Oil or Pentalic with respect to these former
employees. No representations have been made in the
instant proceeding that any phase of this transaction is in
violation of the Act.
By the time the Union's Triplex contract had expired
negotiations for a new one had already begun. From the
outset the Company, represented by William Krauss,
resisted the Union's demand for substantial wage increases,
seeking instead a 1-year extension of the existing contract
based on a claim of continuing poor financial condition.
Following the entry of a Federal mediator into the
negotiations and a week long strike by the employees a new
3-year contract containing terms satisfactory to the Union
was executed and made retroactively effective to May 1,
1970. By the terms of this agreement the employees were
given an immediate 11-percent increase, with 7-percent
increases on each of the two subsequent contract anniver-
saries.
A series of circumstances thereafter conspired to cause
serious losses to Triplex in the period following the
execution of the new contract. As a consequence of the
strike during the May negotiations the Company, already in
shaky financial condition, lost two of its largest customers;
and a month thereafter Penn Central Company, one of its
most important customers, went into bankruptcy owing
Triplex $18,000, canceling further orders .3 In July 1970 one
of the four stills used for the production of lubricating oil
broke down, causing a curtailment of production. In
August 1970 the plant closed down for a week because a
shortage of operating capital made it temporarily impossi-
ble for Triplex to meet its payroll. A week's production was
thereby loss. Finally, in September a second still broke
down.
2 Bernard Pellegrino, the Union's business agent, testified that no unfair
labor practice charges were ever contemplated with respect to this
transaction
3 The findings herein are based, unless otherwise noted, on the
testimony of employee Joseph Stricko, the union steward at the plant,
called as a witness by General Counsel I find that in substantial measure
he is corroborated by Louis Stuck, the president of Pentalic.
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When it was learned that it would cost $40,000 to repair
or replace two damaged stills4 an assessment of Triplex's
facilities was made and it was determined that because the
Company could not afford to repair or replace the stills it
could not continue the rerefining of waste oil into
lubricating oil. Accordingly, in late September it was
decided to abandon the rerefining process. Instead, it was
decided to produce fuel oil from the waste oil it received.
This did not require the use of the stills, as did the rerefining
process for lubricating oil. All that was required were
boilers wherein a dehydration process was carried out to
provide a low grade fuel oil for industrial use.
In consequence of the change of product and the
substitution of the dehydration process for the more
complicated distillation process considerably fewer em-
ployees were required. This, indeed, was assigned as one of
the economic reasons for abandoning the initial product.
Accordingly, in September when the processing changes
were accomplished Triplex laid off approximately 22 of its
28 employees in the bargaining unit represented by the
Union. It posted signs at the plant stating that this layoff
was temporary. When the decision to effect the layoff was
made Krauss notified Union Steward Stricko, who in turn
notified the Union's business agent, Pellegrino. The Union
did not protest this layoff, according to Business Agent
Pellegrino, because it understood it to be a temporary one
which, if past practice were followed, would result in a
recall within a short time. When the recall did not recur
Steward Stricko, one of the employees not laid off, began to
press Krauss on the matter. Krauss' repeated reply was that
he did not know what would be happening. Meanwhile,
during the pendency of what was still believed to be a
temporary layoff, Triplex Oil Refining Company, Inc., by
indenture dated September 30, 1970, conveyed to its parent
corporation and its sole stockholder, Pentalic, all its real
and personal property, including machinery, equipment,
and buildings. At this time, it is stipulated, Triplex Oil
Refining Company, Inc., was dissolved into its parent,
Pentalic Corporation as a Division of Pentalic Corporation.
It is to be noted that on this date and for a period of time
thereafter this division continued as an operating entity
producing fuel oil with its own employees. On October 13,
1970, Triplex Division announced its intention to make
permanent the layoff of the 22 employees in the following
letter:
After giving the matter serious consideration, we
have decided to discontinue making lubricating oil. We
have reached this decision because of the prohibitive
cost necessary to repair our equipment. We are
considering processing our oil on a simplified basis
which would require fewer employees.
Because of this change we regretfully informed our
employees who were layed [sic] off that we would be
unable to keep them on our payroll so that they may be
in a position to seek employment elsewhere.
This letter followed a conversation between Steward
Stricko and Pentalic's Stnck in which Stricko, at Krauss'
suggestion, sought information in behalf of the Union as to
4 The testimony of President Louis Stnck
5 It is to be noted that this phase of the overall transactions, including
the termination of employees , has not been made the subject of the instant
what disposition would be made of the laid-off employees.
Strick, according to Stricko, said that "he was only there a
short time, that as far as he was concerned, they could go
get another job." When Stricko suggested that President
Strick hold a meeting with the men the latter refused and
that ended the subject. The October 13 letter then
followed .5 At this time the plant was producing fuel oil with
the six remaining employees, plus supervisors. The Union,
having learned of the final fate of the laid-off employees,
took no further action in their behalf.
Shortly after Stricko had spoken to Strick in behalf of the
laid-off men Strick called Steward Stricko and suggested
that he get the employees together, referring to those six still
employed, to discuss the problems created by the May
strike and the high cost of the contract with a view to rolling
back wages. Stricko, after considering the offer, told Stricko
later in the day if he wanted to call the six together he
should do it himself. Strick' s answer was "It's of no
importance now, forget about it."
On Friday morning, October 30, the employees noted
strangers dressed in street clothing walking about the plant
and premises. Shortly thereafter and still before noon
Krauss called the union steward, Stricko, into his office and
in the presence of Supervisors Bohen and Blake told him
that as of midnight of that date there would no longer be a
Triplex Oil Refining and that they all were to go out and
look for other jobs. Stricko testified that he learned later in
the day that Krauss had suggested to the two supervisors,
that they return later in the day to meet with the people who
had leased the plant and discuss employment possibilities
with them. All this was reported to Union Business Agent
Pellegrino who then telephoned President Strick. Pellegrino
protested the closing down of the plant and the plan, as he
understood it, to have the new leasee keep the two
supervisors. Strick replied that Triplex was dissolved,
saying "there is nothing to discuss. There is no more
Triplex." After thus fruitlessly urging a discussion Pellegri-
no then prepared and sent to Triplex a telegram dated
October 30, 1970, reading as follows:
WE HAVE BEEN ADVISED THAT YOU INTEND TO LEASE
YOUR PLANT AND EQUIPMENT AND LAY OFF ALL
EMPLOYEES. SUCH ACTION IS IN VIOLATION OF OUR
CONTRACT AND WE WILL TAKE ALL LAWFUL ACTION TO
PREVENT YOUR AVOIDENCE OF YOUR OBLIGATIONS TO THE
EMPLOYEES AND THIS UNION. WE DEMAND IMMEDIATE
MEETING TO DISCUSS ALL ASPECT OF YOUR ACTIONS.
CONTACT UNDERSIGNED IMMEDIATELY. COPIES OF THIS
TELEGRAM SENT TO LOU STRICK, WILL KRAUSS AND TOM
MASTERSON.
On the same date Triplex, over Krauss' signature, sent the
following letter to the Union:
Effective today October 30th, 1970 Triplex Oil
Refining Co. Inc. is no longer in business. We are
paying all vacations and, sick pay due our employees
under the terms of the Union Contract.
case. I am not advised of any other outstanding unfair labor practice
charges
TRIPLEX OIL REFINING DIVISION 503
B. The Disposal of the Plant
In October 1970, as Triplex's production problems were
mounting, discussions began between Pentalic's Strick and
Mr. Russ Mahler of Northeast Oil Co. As a result of these
discussions Pentalic agreed to lease the premises, plant, and
trucks of Triplex to a new corporation to be set up by
Mahler-Newton Refining Corporation. This lease was
executed on November 2, 1970, to become effective
immediately. From that date Newtown engaged in the
production of fuel oil, as had Triplex. It appears from a
description of the Newtown operation by Business Agent
Bernard Pellegrino that it hired the two supervisors
previously employed by Triplex and two of the six Triplex
employees. These two constitute the total bargaining unit at
Newtown. They are, as they were at Triplex, represented by
the Union. On November 30, 1970, Business Agent
Pellegrino in behalf of these employees, executed a
collective agreement with Newtown and that agreement is
presently in force.
C. Conclusions
This case presents two basic issues which, when stated,
could well suggest their own solutions without further
discussion.
First it is questionable in the present state of the law
whether an employer may not completely go out of business,
and at that point be relieved of further bargaining with
respect to the effect of such a closing upon the unit
employees.
Second, assuming an employer must bargain with the
representative of its employees relative to the effects of its
going out of business, it is questionable whether the
purposes of the Act would be properly served by processing
a complaint which alleges a violation of Section 8(a)(5)
under the foregoing circumstances when the Union
presently represents and enjoys contractual relations with
the employer who has leased the plant and property of its
defunct predecessor, and where the represented bargaining
unit consists of two of the six employees of the defunct
employer, and no others. _
1. The obligation to bargain
Here we are presented with the question of the
Respondent's obligation to bargain with the Union
concerning the unilateral closing of the plant, the resulting
termination of employees, and the leasing of the premises to
a new employer who is not claimed to be a successor.
While the Supreme Court's decision in Textile Workers
Union' of America v. Darlington Manufacturing Co., 380 U.S.
263, does not treat of a refusal to bargain concerning the
closing of a plant or a portion of it as a violation of Section
8(a)(5), but rather of discriminatory nature of terminations
which result from such a closure, as violations of Section
8(a)(3), there is, nevertheless, an implicit principle to be
drawn from that case which has application to all plant
closures. It is this: "When an employer closes his entire
business, even if the liquidation is motivated by vindictive-
ness towards the union, such action is not an unfair labor
practice." 6
I am aware, of course, that in the assessment of violations
of Section 8(a)(3) distinction is made between partial
closing and a complete closing, as in the instant case. And it
would appear to be settled law that to close part of a plant
or a department or branch does not partake of the
immunity provided by Darlington.
Turning now to violations of Section 8(a)(5) wherein an
employer has failed or refused to bargain concerning the
closing of a plant or a part of it, parallels to the cases
dealing with the discriminatory aspects are not as evident as
might seem logical. Fibreboard Paper Products v. N.L.R.B.,
379 U.S. 203, describes the scope of mandatory collective
bargaining as including "contracting out" work which
results in the replacement of employees in the existing
bargaining unit with those of an independent contractor to
do the same work under similar conditions of employment.
But the court's decision "need not and does not encompass
other forms of `contracting out' or `subcontracting' which
arise daily in our complex economy." 7
The instant circumstances do not comport with those in
Fibreboard There has been no subcontracting whatever,
but as in the terminology of the Supreme Court in
Darlington, this is a situation where "an employer closes his
entire business"-a "liquidation." Nor is it significant that
Newtown Refining, the third party, has leased rather than
has purchased the premises, plant, and machinery. The fact
is that it has leased from Pentalic, the parent of Triplex,
which had already purchased the premises, plant, and
machinery from Triplex, as part of the latter's liquidation.
Thus it cannot be said, as was claimed without avail in
General Motors Corporation, G.M.C. Truck & Coach
Division, 191 NLRB No. 149, that this was something less
than a sale. Whatever legalistic form the transaction has
taken it is clear from the facts herein that, as in General
Motors, there has been a significant withdrawal of capital
which "lies at the very core of entrepreneurial control."
We must ultimately take one of two views of the
management decision here which produced the issue of
Triplex's moribundity on October 30. It is either a closing
down of an entire company (Darlington) or a closing down
of a facility (General Motors) Under Darlington, as
previously quoted, there is no unfair labor practice. And
under the Board's decision in General Motors, there is no
obligation to bargain with respect to the decision to close
even when less than the entire closing is involved. Thus by
either view Respondent's decision herein to close its plant is
proper and lawful.
There still remains for consideration the issue of
obligation to bargain as to the effects of the decision to close
upon the unit employees-the six individuals terminated on
October 30. The Board, in General Motors, restates the
proposition that such bargaining is obligatory and cites
specific authority for its holding. Because the nature of the
closing here differs from that in General Motors in that this
was a total closing and the closing in that case was that of a
facility, and because two of the three cases relied on by the
Board do not relate to a total closing I am inclined to the
6 380 U.S. at 273.
7 379 U.S at215.
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
belief that the "complete going out of business" here brings
into focus the basic nature of the problem.
Although General Motors, in contrast to Darlington's
complete close, presents what amounts to a partial closing,
as do two of the cases relied on,8 the Board has nevertheless
not limited the bargaining obligations to complete plant
closure. Thus in Interstate Tool Co. Inc., 177 NLRB No.
107, failure to bargain about the effect of a plant closure on
unit employees was found to be unlawful where total
closing had occurred, unlike the other cases considered in
General Motors. Relying on Transmarine Navigation
Corporation, 170 NLRB 389, and New York Mirror, Division
of Hearst Corporation, 151 NLRB 834, the Board held that
such an employer "was under a continuing duty to bargain
about the effects of its decision to close and that it violated
Section 8(a)(5) of the Act by refusing to do so, upon the
Union's request." Implicit in this conclusion, I presume, is
the Board's determination that the exclusionary language
of Darlington, as quoted above,9 does not apply. I have no
alternative but to conclude, therefore, that in a complete
closing, just as in the partial closing considered in General
Motors, an employer is obligated to bargain with respect to
the effect of the complete closing upon the unit employees.
Such bargaining subject matter it is pointed out, consists of
"severance pay, vacation pay, seniority and pensions,
among others, which are necessarily of importance and
relevance to the employees." This criteria is quoted from
the Board's decision in Interstate Tool Co. Inc., supra,
where, as here, the entire operation was closed, all unit jobs
abolished, and assets sold.10 Under the same circumstances
present here, based on this specific holding of the Board, I
am constrained to find that Triplex was required to bargain
with the Union as to the effects of the total plant closing.
There is evidence, however, that something akin to
bargaining of this sort actually occurred. Granted, as the
cases generally concede,"' there is little of substance to
discuss at such a late date and in such an atmosphere of
finality. Here Union Steward Stricko testified that Krauss,
the former president of Triplex, asked him to come down to
the plant after the closing "to make sure that everything was
straightened out. [He ] wanted to make sure all of the people
were taken care of that worked there." And when asked to
explain what he meant by "taken care of," Stricko
explained, "everybody satisfied with the pay according to
contract etc., etc. with vacation pay, sick days that had to
be paid off and stuff like that."
If, as I view the Board's requirement, there still must be
bargaining as to the effect of that closing upon the
employees in the unit even upon a complete closing, then I
8 Thompson Transport Co. Inc., 184 NLRB No. 5 (one terminal);
Drapery Manufacturing Co, 170 NLRB 1706 (one of two integrated
enterprises found to constitute both a single employer).
9 "When an employer closes his entire business ... such action is not
an unfair labor practice ," supra fn. 6.
10 In the Interstate case the Board relied on an earlier decision in
Transmanne Navigation Corporation , 170 NLRB 389, as authority for the
am satisfied that the meetings between Triplex's Krauss
and the Union's steward, Stricko, satisfied this requirement.
I would accordingly conclude and find that there was in
fact bargaining as to the effects of the closing upon the six
unit employees. I would therefore recommend that so much
of the complaint as alleges a violation of Section 8(a)(5) be
dismissed in this respect.
2. Alternative conclusion relating to the
effectuation of the policies of the Act by further
processing of the complaint
In the course of his testimony as a witness for the General
Counsel Union Business Agent Pellegrino testified that the
Union had negotiated a contract with Newtown Refining
which became effective as soon as it began operation at the
leased Triplex site. He also testified that the bargaining unit
represented by the unit was identical to the previous one at
Triplex, but that it consisted of but two employees, both of
whom were among the six displaced by the Triplex closing.
Essentially, therefore, this case devolves about the four
Triplex employees who did not obtain employment with the
new company because of its reduced employment opportu-
nities.
While I am fully aware that this outcome of the closing of
the Triplex plant and the continued recognition of the
Union by the new employer has no legal effect on Triplex's
obligations, we cannot avoid the fact that bargaining has
resumed on the same premises, for the same type of work,
in behalf of the same employees performing the same
duties, albeit these employees are fewer in number.
Clearly under Darlington the four displaced employees
would have no recourse, even had the closing, contrary to
the fact, been discriminatory. Furthermore, it is doubtful
that bargaining in their behalf on some more formal basis
than Stricko's meetings with Krauss (supra), would have
been more fruitful. It is respectfully suggested, therefore,
that the further processing of this matter would not
effectuate the policies of the Act, and for this further
alternative reason it is recommended that the complaint be
dismissed.
Upon the basis of the foregoing findings of fact,
conclusion of law, and .the entire record, I hereby issue the
following:
RECOMMENDATION
It is recommended that the complaint in this matter be
dismissed in its entirety.
proposition that such bargaining was required-"where an employer sold
its entire business " With all due deference for the Board's reliance on this
particular case it is respectfully noted that in the Transmanne Navigation
case only the Los Angeles terminal of the employer was closed down.
11 Cf. Thompson Transport Company, Inc., 184 NLRB No. 5; Royal
Plating and Polishing Co., 160 NLRB 990; Transmarine Navigation Corp.,
170 NLRB 389.