Regal Aluminum, Inc.

National Labor Relations Board - Board Decisions

May 21, 1971

190 N.L.R.B. 468 (N.L.R.B. 1971)

468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regal Aluminum, Inc. and District Lodge 71, Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO. Case 17-CA-4169
May 21, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On January 25, 1971, Trial Examiner Robert Cohn
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action , as set forth in the attached
Trial Examiner 's Decision . Thereafter , the Respondent
filed exceptions to the Trial Examiner 's Decision with
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended , the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three -member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed . The rulings are hereby
affirmed . The Board has considered the Trial Ex-
aminer 's Decision , the exceptions and brief, and the
entire record in the case , and hereby adopts the
findings, conclusions , and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that the Re-
spondent, Regal Aluminum, Inc., Kansas City, Mis-
souri, its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's recom-
mended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT COHN, Trial Examiner: This case came on for
hearing before me, the duly designated Trial Examiner, in
Kansas City, Missouri, on October 21, 1970, pursuant to
notice. All parties were present and represented thereat and
agreed to submit the case for decision by the Trial Examiner
based upon facts contained in a document entitled "Stipula-
tion" which was received into the record herein as General
Counsel's Exhibit 1.'
' The record shows that the charge herein was filed by District Lodge 71,
International Association of Machinists and Aerospace Workers , AFL-CIO
(herein the Union), on December 19, 1969 (amended July 21, 1970), and
the complaint issued on July 22, 1970
Within the time allowed for the filing of briefs, all parties
submitted memoranda to the Trial Examiner, which have
been duly considered. Upon the record so made, including the
arguments and contentions of the parties, I hereby make the
following:
FINDINGS AND CONCLUSIONS'
A. The Issue
The sole issue in this proceeding is whether , under the
circumstances of this case , the Respondent violated Section
8(a)(5) of the Act when, on or about September 19, 1969, it
closed its aluminum storm window and screen production
department at its Kansas City, Missouri , plant and moved
said department to its newly built plant at Garnett , Kansas,
without prior notification to, or bargaining with , the Union
as the exclusive collective -bargaining representative of the
employees affected thereby.
B. The Facts
On June 14, 1968, the Board issued its Decision and Order
in Cases 17-CA-3291 and 17-RC-5462 (171 NLRB No.
189) finding, inter aha, that the Respondent had unlawfully
refused to bargain with the Union as the collective-bargaining
representative of its employees in an appropriate unit.' The
Board ordered Respondent to bargain with the Union upon
request.
Subsequent events, as set forth in the aforesaid "Stipula-
tion," are hereby adopted as my findings of fact, as follows:
4. Respondent declining to comply with the Board's
said Decision and Order, the Board petitioned the
United States Court of Appeals for the Eighth Circuit
for enforcement of its Order. Subsequent thereto and
upon the Board's Motion, the Court remanded the mat-
ter to the Board for reconsideration in view of N.L.R.B.
v. Gissel Packing Company, 395 U.S. 575.
5. Having given all parties an opportunity to submit
statements in support of their respective positions, the
Board, on October 29, 1969, issued its Supplemental
Decision (179 NLRB No. 189), affirming its Order of
June 14, 1968. Under date of March 20, 1970, the Board
again petitioned the Court for enforcement of its Order
as affirmed by the Supplemental Decision and Order
The matter is currently pending before the Court, having
been argued to the Court on or about October 13, 1970.°
6. In its Decision and Order of June 14, 1968, the
Board found the unit described in paragraph 4 of the
instant Complaint to be appropriate for the purposes of
collective bargaining It also found that the Union had
been the exclusive collective bargaining representative of
all the employees in said unit since June 19, 1967. The
Supplemental Decision and Order adopted and affirmed
these findings.
' There is no issue as to the Board's jurisdiction or as to labor organiza-
tion The complaint alleges sufficient facts, which are admitted by answer,
upon which I may, and do hereby, find that Regal Aluminum, Inc (herein
Respondent or Company), is an employer engaged in commerce within the
meaning of the National Labor Relations Act, as amended (herein the Act),
and that the Union is a labor organization within the meaning of the Act.
The Board recently asserted jurisdiction over the Respondent (see 171
NLRB No 189)
The appropriate unit consists of
All production and maintenance employees, including machine opera-
tors, welders, assemblers, shipping and receiving employees, and labor-
ers at the Kansas City, Missouri, plant of Regal Aluminum, Inc , but
excluding all office-clerical employees and professional employees,
guards, and supervisors as defined in the Act
On January 4, 1971, the Court affirmed the Board's Order
190 NLRB No. 99
REGAL ALUMINUM, INC. 469
7. During April 1969, the Respondent commenced the
transfer of approximately one half of its aluminum storm
door, window and screen production equipment to a
newly built plant at Garnett, Kansas. On or about Sep-
tember 19, 1969, the Respondent closed its "aluminum
storm door, window, and screen production depart-
ment" at its Kansas City, Missouri plant having moved
it to said plant at Garnett, Kansas.
8. The relocation of the said production department
was necessitated by economic considerations.
9. The metropolitan Kansas City area has a popula-
tion in excess of one million persons and is approxi-
mately 75 miles northeast of Garnett, Kansas, which has
a population of about three thousand persons.
10. On or about September 19, 1969, a notice (Exhibit
4)5 was posted by the Respondent at its Kansas City,
Missouri plant stating the said department at that plant
was being closed and that the employees listed in para-
graph 7 of the Complaint were discharged.
11. The same notice offered to the production depart-
ment employees a transfer to the Respondent's Garnett,
Kansas plant.
12. The aforesaid notice was the only formal notice of
the closing and contained the only offer of transfer made
to the concerned employees, although the impending
relocation had been common knowledge at the plant for
approximately 30 days.
13. None of the said employees has either discussed
with the Respondent a transfer, or has actually trans-
ferred, to the Garnett, Kansas plant.
14. At no time material herein has the Respondent
been in contact with the Union, or attempted to get in
contact with the Union, for the purpose of bargaining
collectively with the Union concerning the effects on the
discharged employees of its decision to transfer the said
production department nor has the Respondent advised
the Union of said decision and said transfer.
ANALYSIS AND CONCLUDING FINDINGS
It is by now well established that unilateral action, such as
was taken by the Respondent in this case, which has a sub-
stantial impact upon employees' wages, hours, and working
conditions, violates Section 8(a)(5) of the Act when under-
taken without notice to or consultation with such employees'
collective-bargaining representative.' The duty to bargain ob-
tains even though the employer is prompted to take the action
solely because of "economic considerations," as in the case at
bar.' Nor is the duty to bargain obliterated or stayed pending
an appeal of the Board's Order in a United States court of
appeals.I
Respondent contends that any culpability it may have in-
curred through failure to bargain with the Union should be
mitigated by its direct offer to the affected employees to trans-
fer to the new plant and the opportunity to discuss the matter
personally with management. However, rather than mitigate
the violation, it would seem that such attempt at individual
negotiation is antithetical to the collective-bargaining prmci-
6 This exhibit is not attached since the essential facts included in that
notice are stated in the quoted stipulation
6 See Assonet Trucking Co, Inc., 156 NLRB 350, Winn-Dixie Stores,
Inc, 147 NLRB 788, enfd as modified 361 F 2d 512 (C A 5, 1966), The
Red Cross Drug Company, 174 NLRB No 17, enfd 419 F 2d 1245 (C A
7, 1969)
Assonet, supra at 352-353
See Section 10(g) of the Act, Old King Cole, Inc v N.L R B., 260 F 2d
530 (C A 6, 1958), J P Stevens & Co, Inc., 186 NLRB No 34, N.L R.B
v Winn-Dixie Stores, Inc, supra
ple; therefore, this argument is rejected. I therefore find and
conclude that by closing part of its Kansas City operation and
transferring same to Garnett, Kansas, without prior notice to,
or consultation with, the Union, Respondent violated Section
8(a)(5) and (1) of the Act.
THE REMEDY
Counsel for the General Counsel argues that an appropri-
ate remedy in this case requires a broad cease-and-desist
order, plus a make-whole order for the six affected employees
along the lines enunciated by the Board in Winn -Dixie,
supra. 9
The Charging Party urged the Trial Examiner to go further
and (1) recommend backpay to the discriminatees with inter-
est at 9 percent rather than the present 6 percent, plus cost-of-
living increases; (2) require the Respondent to make the em-
ployees whole for any losses in wages and benefits that might
have been negotiated but for the unfair labor practices."
Counsel for Respondent urges that any remedial order
"would be a futility as Respondent afforded the complaining
employees an opportunity to maintain their employment,
which is all the Union would have sought if the parties had
bargained concerning the effects of the partial plant shut-
down." (Resp. Memorandum Brief, p. 2) I reject this argu-
ment as being too speculative in nature.
I have considered all the foregoing arguments, as applied
to the facts in this case, in the light of applicable legal prece-
dent. It appears to me that the six employees affected by the
Respondent's unlawful conduct should be reimbursed for
such losses until such time as Respondent remedies its viola-
tion "by doing what it should have done in the first place,""
it being well established that a backpay order is in appropriate
means of remedying a Section 8(a)(5) violation of the type
involved herein, "even where such violations are unaccom-
panied by a discriminatory shutdown of operations."" Ac-
cordingly, I shall recommend that the Respondent make the
discharged employees whole for any loss of pay they may
have suffered as a result of the Respondent's unfair labor
practices. 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 Respondent is herein required to bargain about; (2)
bargaining to a bona fide impasse; (3) the failure of the Union
to commence negotiations within 5 days of the receipt of the
Respondent's notice of its willingness to bargain with the
Union; or (4) the failure of the Union to bargain thereafter
in good faith. Of course, Respondent's backpay obligation to
any individual employee shall cease should Respondent offer
such employee reinstatement to a substantially equivalent
position at its Kansas City plant (should such a position exist
' See also Assonet, supra at 354, The Red Cross Drug Company, supra
10 In support of (1), The Charging Party cites the TXD of Trial Examiner
E Don Wilson in B & G Chrysler-Plymouth, Inc (Case 17-CA-4068)
However , since the hearing herein, the Board has rendered its Decision and
Order in that case in which it rejected the Trial Examiner's recommendation
in this regard (see 186 NLRB No 45, In 2)
In support of (2), the Charging Party relied upon the U S court of appeals'
decision in International Union of Electrical, Radio and Machine Workers,
AFL-CIO v NL R B [Tndee Products, Inc], 426 F 2d 1243 (C A D C,
1970) However, valid and persuasive the court's discussion of the remedial
powers of the Board, I am bound by the present state of Board law on this
issue as expressed in Ex-Cell-O Corporation, 185 NLRB No 20 Accord-
ingly, I also reject this motion of the Charging Party
11 International Union of Electrical Workers, etc v NL.R.B [Tiidee
Products] supra, p 1249, citing with approval NLRB v Winn-Dixie
Stores, supra
" Ozark Trailers, Inc, 161 NLRB 561, 571, Royal Plating and Polishing
Co, Inc., 148 NLRB 545, 548, The Red Cross Drug Company, supra.
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there) without prejudice to her seniority or other rights and
privileges previously enjoyed.
Backpay, which shall run from September 19, 1969, until
the fulfillment of one of the foregoing conditions, 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
Company, 90 NLRB 289; N.L.R.B. v. Seven-Up Bottling
Company of Miami, Inc., 344 U.S. 344; with interest thereon,
Isis Plumbing & Heating Co., 138 NLRB 716.
In addition to the foregoing, I shall recommend the issu-
ance of the customary cease-and-desist order as well as an
affirmative directive to the Respondent to bargain with the
Union concerning the effects of the shutdown upon the afore-
said six employees."
Finally, I shall, in accordance with the request of General
Counsel, recommend a broad cease-and-desist order. (Regal
Aluminum, Inc., 171 NLRB No. 189.)
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the Union
is a labor organization, all within the meaning of the Act.
2. All production and maintenance employees at the Regal
Aluminum plant in Kansas City, Missouri, including ma-
chine operators, welders, assemblers, shipping and receiving
employees, and laborers, but excluding all office-clerical em-
ployees and professional employees, guards and supervisors,
constitute an appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
3. At all times since June 19, 1967, the Union has been
exclusive representative of all the employees in the aforesaid
unit for the purposes of collective bargaining with respect to
rates of pay, wages, hours of employment, or other terms and
conditions of employment.
4. By unilaterally closing down a part of its Kansas City
plant without prior notice to, consultation with, or bargain-
ing with the above-named labor organization as the exclusive
representative of the employees in the above-described unit,
the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) of the Act.
5. By the above-described conduct, which thereby inter-
fered with, restrained, and coerced its employees in the exer-
cise of rights guaranteed them in Section 7 of the Act, the
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
6. The above-described unfair labor practices tend to lead
to labor disputes burdening and obstructing commerce and
the free flow of commerce, and constitute unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:"
" Counsel for the General Counsel does not urge a bargaining order with
respect to the decision of Respondent to close down part of its operation
" In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions, and order, and
all objections thereto shall be deemed waived for all purposes
ORDER
Respondent, Regal Aluminum, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with District Lodge 71,
International Association of Machinists and Aerospace
Workers, AFL-CIO, as the exclusive representative of its
Kansas City, Missouri, plant employees in the aforesaid ap-
propriate unit concerning the effects on such employees of the
partial shutdown of such plant.
(b) Unilaterally closing down or discontinuing unit work,
or otherwise unilaterally changing the terms or conditions of
employment of unit employees, without prior consultation
and bargaining with the aforesaid labor organization con-
cerning such decisions and the effects thereof.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-
organization, to join or assist District Lodge 71, International
Association of Machinists and Aerospace Workers, AFL-
CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage
in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or
all such activities, except to the extent authorized in Section
8(a)(3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which, it is found,
will effectuate the policies of the Act:
(a) Offer to, and upon request, bargain collectively with the
aforesaid Union concerning the effects of the Respondent's
partial shutdown of its Kansas City, Missouri, plant upon
unit employees. If an understanding is reached, embody such
understanding in a signed agreement.
(b) Make whole the employees named below who were
discharged as a result of Respondent's partial close down of
its Kansas City, Missouri, plant, as aforesaid, in the manner
set forth in the section of this Decision entitled "The
Remedy":
Lena Bradford Mary Motley
Erma Fonteno Dorothy Shatswell
Ernestine Mayfield Ruby South
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(d) Post at its premises in Kansas City, Missouri, copies of
the attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for Re-
gion 17, after being duly signed by Respondent's authorized
representative, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
" In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "POSTED
BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN OR-
DER OF THE NATIONAL LABOR RELATIONS BOARD "
REGAL ALUMINUM, INC. 471
(e) Notify the Regional Director for Region 17, in writing,
within 20 days from the receipt of this Decision , what steps
have been taken to comply herewith.16
16 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify the Regional Director for Region 17, in writing, within 20 days from
the date of this Order, what steps the Respondent has taken to comply
herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unilaterally shut down or cease operat-
ing a part of our Kansas City, Missouri , plant or other-
wise unilaterally make changes in the wages, hours, and
other terms or conditions of employment for the em-
ployees in the appropriate unit set forth below without
prior bargaining with District Lodge 71 , International
Association of Machinists and Aerospace Workers,
AFL-CIO.
WE WILL NOT in any other manner interfere with,
restrain , or coerce employees in the exercise of their
right to self-organization , to form , join , or assist the
above-named Union , or any other labor organization, to
bargain collectively through representatives of their own
choosing , and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection , or to refrain from any or all such activities.
WE WILL, upon request , bargain collectively with the
above-named Union as the exclusive representative of all
employees in the appropriate unit with respect to the
effects of the closedown of the aluminum storm window
and screen production department upon such em-
ployees, the appropriate unit is.
All production and maintenance employees at our
Kansas City, Missouri, plant, including machine
operators, welders, assemblers, shipping and receiv-
ing employees and laborers, but excluding all office-
clerical employees and professional employees,
guards, and supervisors as defined in the Act.
WE WILL make Lena Bradford, Erma Fonterno,
Ernestine Mayfield, Mary Motley, Dorothy Shatswell,
and Ruby South whole for any loss of pay suffered by
them as a result of our failure and refusal to bargain with
the aforenamed Union concerning the shutdown of the
aluminum storm window and screen production depart-
ment , in the manner set forth in "The Remedy" section
of the Board's Decision.
Dated By
REGAL ALUMINUM,
INC.
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by any-
one.
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 Office, 610
Federal Building, 601 East 12th Street, Kansas City, Mis-
soun 64106, Telephone 816-374-5181.