Royal Plating and Polishing Co., Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1964

148 N.L.R.B. 545 (N.L.R.B. 1964)

ROYAL PLATING AND POLISHING CO.,.INC. 545
It is evident that such questions could best be settled by an election, and in a letter
of May 15 Respondent suggested that the parties consent to an election to be con-
ducted by the Board, or one conducted by the Respondents. In the latter event the
parties were to select jointly the person to conduct it and to agree on the scope
of his duties. The Union, on May 23, rejected both alternatives and repeated its
insistence on a check of cards. This was the last correspondence on the subject, and
on June 4 Respondents conducted a poll on the floor of the plant during working
hours. Black, previous to the poll, told the employees assembled in a meeting that it
-would be conducted by two local judges, and that it would be secret. He further
declared that if the Union won he would bargain with it. Ballots were passed out
asking for a check in a square opposite a "yes" or "no" to the question as to whether
the employees wished to have the Union. The record does not disclose any anti-
union statement or interrogations uttered during the election. According to Black
the result of the balloting was unfavorable to the Union, but it does not appear
whether it was announced to the employees.
Conclusions
The Board held in its Blue Flash 6 decision that interrogation of employees is not
unlawful unless coercive. The taking of a poll is a form of interrogation, and the
same test applies.7 It is not violative of the Act unless it is conducted in a context,
or against a background, of coercive or discriminatory statements or activities, or when
the purpose of the poll is to undermine the Union. I find no such background or
purpose here. Black testified credibly that numerous employees told him at the
plant, and came to his house to tell him, that they did not wish to be represented by the
Union though they had signed up for it. As has been found, the Union did not in
fact have a majority among the employees,on March 4, 3 months before the poll,
when it demanded recognition. I find Respondents had a good-faith doubt that a
majority of the employees had designated the Union as their representative. When
Respondents suggested an election to be conducted by the Board or arranged by the
parties the Union rejected the suggestion and continued to insist on recognition on the
basis of a card check. In the absence of a coercive context or background I find that
Respondents, by polling their employees, did not violate Section 8(a) (1) of the Act.
CONCLUSIONS OF LAW
1. Cameo Lingerie, Inc, and Sea Isle Manufacturing, Inc., are employers engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
2. International Ladies' Garment Workers' Union, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. The preponderance of the evidence does not establish that Respondents engaged
in the unfair labor practices alleged in the complaint.
RECOMMENDED ORDER
The complaint should be, and hereby is, dismissed.
' e Blue Flash Express, Inc, 109 NLRB 591. '
7 See Emma Gilbert, et at., individually and as Co-Partners d/b/a A. L. ilbert Com-
pany, 110 NLRB 2067, 2072.
Royal Plating and Polishing Co., Inc. and Metal Polishers,
Buffers, Platers and Helpers International Union, Local 44,
AFL-CIO. Case No. 22-CA-1640. August 27, 1964
DECISION AND ORDER
On February 3, 1964, Trial Examiner Joseph I. Nachman issued his
Decision in the above-entitled proceeding finding that the Respondent
had engaged in certain unfair labor practices and recommending that
it cease and desist therefrom and take certain affirmative action, as set
148 NLRB No. 59.
760-577-65-vol. 148-36
546' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forth in the attached Trial Examiner's Decision. Thereafter, the Re-
spondent, the General Counsel, and Charging. Party filed exceptions
to the Trial Examiner's Decision and briefs in support thereof.
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 Ex-
aminer's Decision and the entire record in this case, including the ex-
ceptions and briefs,' and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner with the following
modifications :
For the reasons in his Decision we agree with the Trial Examiner's
conclusion that Respondent violated Section 8(a) (5) of the Act by
failing to disclose to the Union, while it and the Union were engaged
in contract negotiations, its intention to shut down operations at its
Bleecker Street plant, and by unilaterally, and without notice to the
Union, closing down the plant .2
The facts found. by the Trial Examiner reveal, inter alike, that on
April 1, 1963, the Respondent decided that its Bleecker Street opera-
tions had to be closed down, and that it would sell the premises to
the Housing Authority of the City of Newark. Acting upon this
decision, and without notice to the Union, the Respondent initiated
negotiations for the sale of the property to the Authority. On May 14,
Respondent granted the Authority an irrevocable 90-day option to
purchase. Agreement thereafter was reached on the terms of the
sale, and the Respondent on June 3, 1963, conveyed title to the Au-
thority. As part of the agreement of purchase and sale, the Respond-
ent obtained from the Authority the right to occupy the premises as a
tenant on a monthly basis for a period of 6 months.
During the period when negotiations for the sale of the property
were going on, the Respondent was engaged, pursuant to a timely
request from the Union, in negotiating a renewal of their collective-
bargaining agreement, which had terminated on April 18, 1963. Meet-
ings were held on April 30 and May 7 and 17. The parties failed
to reach an agreement, and on the morning of May 17 the Union struck.
As a result, the Respondent immediately came to terms with the
Union and an agreement was concluded subject to ratification by the
employees.
1 Charging Party 's request for oral argument is denied as, in our opinion, the record,
including the exceptions and briefs , adequately presents the Issues and positions of the
parties
2 Member Leedom concurs with the Trial Examiner ' s finding that the Respondent vio-
lated Section 8(a) (5) by its unilateral action in terminating its Bleecker Street operations
without consulting with the Union. However , in accordance with his- position in Town
and Country Manufacturing Company, Inc, et al , 130 NLRB 1022 , he bases his finding
of a violation solely on the ground that the Respondent was under a statutory duty to
bargain as to the effects on employees of the closedown of operations, and not because it
failed to bargain over the economic decisions to sell the plant premises and to discontinue
operations. See also Adams Dairy, Inc., 137 NLRB 815.
=ROYAL PLATING AND POLISHING CO., INC. 547
Purportedly because of the strike , the Respondent on May 17 re-
solved that the time had come for it to terminate its business, but
instead of so informing the Union , or advising it of the contemplated
sale of -the premises , the Respondent remained silent, and on May 23
-proceeded to sign the agreement that the parties had concluded on
May 17. Shortly after the execution of the new agreement, how-
ever, the Respondent turned away work destined for the plant and a
few days later six polishers were laid off. The explanation given to
the Union in answer to its inquiries was that the Respondent was
"liquidating." The Respondent insisted that it was not going out
of business and that it was only "getting smaller" and was "trying out
something ." As noted, the Respondent sold its property on June 3,
and although it could have continued its operations at the same loca-
tion for another 6 months, it informed the Union for the first time
on June 14 that it had sold its property , that it was closing down its
operations , and that all remaining employees would be laid off. By
the end of June, all operations at its Bleecker Street plant ceased,
and shortly thereafter the Respondent sold all of its machinery and
equipment at public auction.
The Trial Examiner correctly found that Respondent was under
an obligation at the start of negotiations for a new contract to notify
the Union of its impending sale of its property and to afford the Union
an opportunity, if it desired, to consult and negotiate with Respond-
ent about the contemplated action and the possibility of alternative
approaches that might avoid such action. Failing other resolution,
the Union had the right to bargain about the effects upon employees
of the impending action. As we have emphasized before,3 seemingly,
unsolvable problems can, upon occasion, be solved if the parties to a
bargaining relationship confront each other honestly and openly across
the bargaining table with their respective problems and positions.
Had Respondent consulted with the Union in this case , the latter at
least would have been able to negotiate concerning effects on employees
of Respondent 's decision to close down the operations , rather than
devoting its energies and attention to the establishment of phantom
rates of pay and conditions of employment. Moreover, the Union
might have been able to advance a solution to the problems confront-
ing Respondent, however remote that possibility may have been. It
is not necessary that a satisfactory solution to the serious issues in-
volved in a closedown of operations be the probable result of bargain-
ing negotiations for the obligation to give notice and opportunity for
discussion of such matter to be a viable and intrinsic part of the statu-
tory bargaining obligation. The basic concepts of the Act call for
B TVtnn -Diwie Sto,ea, Inc., 147 NLRB 788.
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
utilization of joint efforts at the bargaining table 4 to solve difficult and
seemingly insoluble problems as well as those more amenable to a
resolution satisfactory to both sides. The Act does not, of course,
compel agreement; it does compel notice and opportunity for discus-
sion to the end that all possible bases for agreement are fully explored.
THE REMEDY
While the Trial Examiner correctly found that Respondent violated
the Act in failing to bargain with the Union, by way of remedy, he
merely ordered Respondent to establish a preferential hiring list con-
sisting of those employees laid off by reason of the closing of the
Bleecker Street plant, to be used if Respondent should resume opera-
tions ; and to bargain with the Union in the event it should resume
operations 5 He expressly declined to recommend a backpay order, on
the grounds that the Board has not heretofore granted such an order
in cases where no Section 8(a) (3) violation is alleged, the Employer is
no longer in business, and it is conceded that the shutdown was made
for valid economic reasons. In his view such an order would be puni-
tive rather than remedial. The General Counsel and the Union have
excepted to the Trial Examiner's failure to recommend a backpay
order, noting that absent such a provision, employees are afforded no
relief from the effects of Respondent's unlawful conduct. We find
merit in the exceptions.'
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 shut-
down of operations.7 Furthermore, we do not agree with the Trial
Examiner's' apparent assumption that the imposition of a backpay
award in the instant case is punitive rather than remedial, and that,
therefore, the Board is precluded from ordering Respondent to make
the employees whole for loss of pay occasioned by Respondent's unfair
labor practices. In fashioning remedies the Board must bear in mind
that the remedy should "be adapted to the situation that calls for re-
dress," 9 with a view toward "restoring the situation as nearly as pos-
4 East Bay Union of Machinists, Local 1304, United Steelworkers of America , AFL-CIO,
etc (Fibreboard Paper Products Corporation ) v. N.L.R.B., 322 F. 2d 411 (C.A.D C.),
enfg . 138 NLRB 550
5 He also recommended that the copies of the notice attached to his Decision marked
"Appendix" be mailed to each employee.
0 Because Member Leedom finds 8(a) (5) only in the iefusal to bargain concerning the
effects upon employees of the closing down of the plant, he would remedy such violation
by requiring the Respondent to bargain with the Union, upon request , as to such effects.
He therefore finds unacceptable the Trial Examiner's Recommended Order or the expan-
sion of that order by his colleagues
' See Winn-Dixie Stores, Inc., supra ; Adams Dairy, Inc., supra . See also Town and
Country Manufacturing Company, Inc., et al., 136 NLRB 1022, 1031.
9 Ibid.
9 N.L R.B. v. Mackay Radtio & Telegraph Co , 304 U.S. 333.
ROYAL PLATING AND POLISHING CO., INC. 549
sible, to that which would have obtained but for [the unfair labor
practice]." 10 Adherence to these principles may well lead the Board
to conclude, in one case, that no backpay or other affirmative relief is
required," and, in another case, that a backpay award is necessary,"
-where although the basic substantive violations are similar or identi-
cal, they occurred in different contexts.
Thus it is true that in Fibreboard, Town and Country, and Adams
Dairy, the Board in fashioning its remedies gave consideration to the
fact that the employers had contracted out only a portion of their op-
,erations. But while this circumstance justified the Board in directing
a resumption of the operations contracted out, it was not the sole con-
sideration that motivated the Board in also ordering a backpay remedy.
The different circumstances here present, to wit, the Respondent's total
cessation of operations and the sale and disposition of its physical
properties, would justify the Board in not ordering the Respondent
to resume operations, but they hardly provide a logical basis for absolv-
ing the Respondent of liability for a deliberate disregard of its bar-
gaining obligations under the Act and the consequent injuries inflicted
upon the employees in the immediate loss of jobs and accumulated
benefits.
Moreover, the facts here are also unlike those in Renton News.13 The
Board is not here confronted with a situation where an immediate
termination of Respondent's business became a matter of pressing
economic necessity. Here, no change in technology, at least none that
the record discloses, had made the continuance of the Respondent's
business prohibitively costly. Indeed, the Respondent contemplated
the use of its plant for at least another 6 months, after it had conveyed
title to the premises. Nor can we say that, had the Respondent made a
good-faith effort to acquaint the Union with the contemplated sale of
its property, and of its business difficulties, it would not have brought
forth an offer from the Union which could have produced desired
economies and permitted the Respondent to continue its business if not
at its old location, then at another.
It is clear that in the present case it would be impractical to order
a restoration of the status quo in order to achieve a theoretically more
just remedy. But if we are to effectuate the policies of the Act and
achieve the desideratum of responsible collective bargaining, it is es-
sential that a backpay remedy be ordered, one that fits the circum-
stances of this case. Accordingly, we shall order the Respondent to
make whole employees for any loss of pay suffered by them as a result
of the Respondent's unlawful refusal to bargain on and after April 30,
10 Phelps Dodge Corp . v. N.L.R.B., 313 U.S. 177, 194.
11 Carl Rochet and Charles Ruud, partners , doing business as The Renton News Record,
et al., 136 NLRB 1294.
"Winn-Dixie Stores , Inc., supra.
11 The Renton News Record, et al., supra.
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1963, by paying to each of them a sum of money equal to the amount
he would have earned as wages from the time of his termination to
the time he secured equivalent employment elsewhere , but in no event
past the date of December 4, 1963, the date upon which Respondent
was required to vacate the Bleecker Street premises , under its oral
agreement with the Authority . Backpay shall be based upon the
earnings which the terminated employees would normally have re-
ceived 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 ctj Heating Co ., 138 NLRB 716.
ORDER
Pursuant.to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, with the addi-
tions noted below, and orders that the Respondent, Royal Plating
and Polishing Co., Inc., its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's Recommended
Order with the following additions :
1. The following paragraph 2(f) is added, to the Recommended
Order :
"Make whole those individuals whose names appear on the pref-
erential hiring list, required to be created under paragraph 2(a)
above, for any loss of pay they may have suffered by reason of Re-
spondent's unfair labor practices, in the manner set forth in the sec-
tion of this Decision entitled `The Remedy.' "
2. The following sentence is added to paragraph 2(a) of the Trial
Examiner's Recommended Order :
"Notify, if and when we resume operations of a plant, as afore-
said„ all the individuals whose names appear on the aforesaid pref-
ential hiring list, if serving in the Armed Forces of the United States,
of their right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed
Forces."
3. The following paragraph is added before the last indented para-
graph of the notice to all employees attached to.the Trial Examiner's
Decision :
WE WILL make the individuals we laid off between April 30 and
July 1, 1963, whole for any loss of pay each of them may have
suffered from the date of termination to the date each has secured
equivalent employment with another employer, but in no event'
past December 4,1963.
ROYAL PLATING AND POLISHING CO., INC. 551
4. The following paragraph is added immediately below the sig-
nature line at the bottom of the notice :
NoTE.-We will notify, if and when we resume operations of
a plant, as aforesaid, all the individuals whose names appear on
the aforesaid preferential hiring list, if serving in the Armed
Forces of the United States, of their right to full reinstatement
upon application in accordance with the Selective Service Act
and the Universal Military Training and Service Act of 1948, as
amended, after discharge from the Armed Forces.
MEMBER JENKINS, concurring in part and dissenting in part :
I would find, like my colleagues, that the Respondent's conduct was
violative of Section 8 (a) (5) and (1), but for a differing reason.
The course of events which took place between April 1 and Septem-
ber 1, 1963, demonstrates conclusively that, throughout the entire pe-
riod in which the Respondent and the Union were engaged in contract
negotiations, the Respondent made no reference to its plans with re-
spect to the sale of the Bleecker Street plant. No such reference was
made although the Respondent had decided to sell the plant prior to
the commencement of negotiations with the Union, although it had
given the Housing Authority an irrevocable option to purchase prior
to agreeing to terms with the Union, which terms thereafter were em-
bodied in an executed collective-bargaining agreement, and although
Respondent had no plans for continuing the business after disposition
of its facilities.
Section 8(d) of the Act requires that parties who are engaged in
collective bargaining must "confer in good faith." Where, as here, one
of the parties deliberately conceals from the other a fact which is so
vitally material to the terms and conditions of employment of the em-
ployees involved, that party cannot be said to have conferred in good
faith with the other. Under circumstances such as these, the negotia-
tion of a contract looking to the future when Respondent knew at the
outset the business had no future, can only be described as a sham.
For this reason, and without reaching either the question of whether
the Act has been violated by virtue of the Respondent's failure to
bargain with the Union over its decision to cease operations at the
Bleecker Street plant or by virtue of its failure to bargain with the
Union over the effects of such cessation, I would find that the Respond-
ent's conduct was violative of Section 8(a) (5) and (1) of the Act.
I agree with my colleagues that backpay should be awarded in this
case. I would not find, however, that, because the Respondent sought
and received the right to remain on the Bleecker Street premises on a
month-to-month basis for 6 months after the sale, it necessarily in-
tended to remain on the property for that period or for any period
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
beyond the conveyance of the Sussex Avenue plant. The latter oc-
curred on September 1, at which time, for economic reasons, all of
Respondent's operations ceased completely. I would find the control-
ling date for the cutoff of backpay to be the date at which the Re-
spondent ceased operating for economic reasons and not the date until
which it had nothing more than the empty legal right to use the
premises. I would not, therefore, order backpay for the period after
September 1, 1963.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding under Section 10 (b) of the National Labor Relations Act (herein
called the Act), heard by Trial Examiner Joseph I. Nachman at Newark, New
Jersey, on October 16 and 17,1 involves allegations that Royal Plating and Polishing
Co., Inc.,' ( herein called Respondent or Company), violated Section 8 ( a) (5) and (1)
of the Act, by refusing to bargain with Metal Polishers, Buffers, Platers and Helpers
International Union, Local 44, AFL-CIO (herein called Local 44, or the Union),
the recognized representative of Respondent 's employees , concerning Respondent's
decision to terminate business operations .3 The General Counsel does not contend the
decision to terminate operations was for the purpose of undermining the Union, nor
does he contend that such decision was for other than legitimate economic considera-
tions. At the hearing all parties were represented by counsel and were afforded full
opportunity to adduce relevant testimony and to examine and cross -examine witnesses.
At the conclusion of the testimony, counsel for the respective parties argued orally,
and thereafter submitted briefs, all of which has been duly considered.
Upon the entire record in the case, and from my observation of the witnesses , includ-
ing their demeanor while testifying , I make the following:
FINDINGS OF FACT 4
1. THE UNFAIR LABOR PRACTICE
A. Background
Respondent has been engaged in the metal plating and polishing business for a
number of years. It was a family business; Joseph Bartle, its current president , having
worked in the plant from his early years and grew up in the business . The plant
consisted of two separate buildings , one known as the Bleecker Street plant, the
other as the Sussex Avenue plant , physically located about two blocks apart, but
operated as a single unit. The Union 'was for some, years recognized , and since
March 7, 1960 , has been certified as the collective -bargaining representative of Re-
spondent's employees in a unit which the parties concede and I find to be appropriate,
composed of all production and maintenance employees, excluding office clerical
employees , professional employees , guards, watchmen , and supervisors as defined
in the Act . Successive contracts since about 1947 , mostly on an annual basis, were
negotiated . Certainly for the past 10 years Joseph Bartle has devoted his full time
to the management of all facets of the Company 's business , and conducted the bar-
gaining negotiations on behalf of Respondent . The last contract which set forth in
full all the terms and conditions of employment was executed April 18, 1961,
effective for 1 year , and thereafter from year to year , unless terminated by notice.
A memorandum executed by the parties on June 21 , 1962; made certain modifications
in wage rates , and continued the 1961 contract for an additional year , to.ADril 18,
1963. Events occurring during the 1963 negotiations will be hereafter set forth in
some detail. '
"Unless otherwise noted all dates are in 1963.
2 Name corrected in accordance with stipulation of the parties.
8 The charge was filed June 19, and complaint issued August 22.
6 The complaint alleges and I the answer admits facts which establish that Respondent
was engaged in commerce'within the meaning of the Act : ' I so find . ' Also , the complaint
alleges, the answer admits , and I find, that Local 44 is a labor , organization within the
meaning of the Act.
ROYAL PLATING AND POLISHING CO., INC. 553
The undenied and credited testimony of the members of the Union's negotiating
committee is to the effect that for the past 7 or 8 years contract negotiations followed
a standard. pattern; as one witness put it, "It was like a broken record." The Union
would make known its contract demands; Barile would reply that business was bad,
competition keen, that he was losing money and could not afford a wage increase, and
before he would give any he would close the plant. The union representatives would
indicate that they did not take Barile's statements seriously. Ultimately an under-
standing would be reached and a contract signed.
B. Current facts
Before taking up the negotiations for the 1963 contract, and to better understand
the significance of the events, it is necessary to make reference to a series of events
involving the sale by Respondent of its Bleecker Street plant, where the vast majority
of its employees worked .5
1. Sale of the Bleecker Street plant
The Bleecker Street plant is located in an area designated for redevelopment.
For some time there had been general talk that the Housing Authority of the City
of Newark (herein called Authority), would take the premises for redevelopment
purposes, but no serious negotiations to that end had occurred. Barile admits
that about April 1 he reached a final and definite decision that the Bleecker Street
operation had to be closed out, although no decision was made as to the timing of that
event. He admits that he did not advise the Union of that decision at the time,
saying it was his intention to do so during the contract negotiaions then scheduled
for April 30. On May 14, Respondent gave the Authority a 90-day irrevocable
option to purchase the Bleecker Street property at the agreed price of $550,000.
Barile admits that in the latter part of May he asked the Authority to expedite its
purchase of the property. On June 3, Respondent conveyed the property to the
Authority, collected the purchase price, and obtained from the latter the right to
occupy the premises as a tenant of the Authority. While the tenancy agreement
is from month to month, with the right to the Authority to demand possession at the
end of any month, Barile admits that he' had an understanding with the Authority
that he could retain possession up to 6 months. However, about June 15, Respondent
ceased all operations at the Bleecker Street premises, and shortly thereafter sold all
the machinery and equipment at public auction.6
2. The 1963 contract negotiations
The first meeting of the 1963 negotiations was held on April 30. More than a
month prior to the meeting, the Union had written Barile setting forth desired
improvements in the contract.? At Barile's request, the Union's business agent orally
stated the Union's demands and, as in past meetings, Barile stated that he was losing
,money, could not afford any increases, and before he would give anything, he
would close the plant. Barile admits that at no time during this meeting did he ap-
praise the Union of his plans to discontinue, the business, or any part thereof, or
of any possible sale of the premises to the Authority. His stated reason for not doing
so was that the subject just never came up. The next negotiating meeting was on
May 7. So far as the record shows, the only, topic discussed was wages; the business
agent urging Barile to make some wage increase offer for submission to the employees.
and Barile insisting that he could afford no increase. With respect to this meeting
Barile also admits that he did not inform the Union of his plans to terminate the
buciness or of the possible sale of the Bleecker Street property.
The next meeting was during the morning of May 17. Prior to this meeting the
Union's membership had authorized a strike absent a reasonable wage offer from
Respondent, and Barile was aware of that fact. At the start of, this meeting the
business agent told Barile that if the latter, could not make some kind of offer for
increased wages the employees would strike. Barile replied, in substance, that
there never had been a strike at Respondent's plant, and there never would be be-
6 Barile admitted that in the spring of 1963, employment, at Bleecker Street totaled
75 to 80, and at Sussex Avenue about 6.
• O The Sussex Avenue plant continued in operation until August 31, when it was sold.
The General Counsel does not contend that Respondent violated Section 8(a)(5) with
respect to the sale of the Sussex Avenue plant, hence the facts with respect to that sale
are not set forth.
'r Barile admits that he received that letter, and-that he did not reply to it, but put it in
his desk drawer and gave it no further thought.
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause he (Barile) would lock the door and throw the key away before he would
permit that to happen. The business agent thereupon called all the employees out
on strike, and placed pickets at the plant. This occurred about 11:30 am. Barile
admits that at this meeting he did not inform the Union of his plans to terminate
the business, or of the possible sale of the Bleecker Street property to the Authority.
Barile also admits that when the employees struck he made the definite decision that
now is the time to go out of business.8
During the afternoon of May 17 (Friday), the Union's business agent and four
members of its negotiating committee, again met with Barile. This meeting took
place at the Newark office of the Federal Mediation and Conciliation Service, with
Conciliation Commissioner DeLorenzo in attendance.9 At the inception of this
meeting, all parties being present, Barile asked, "What will it take to settle the
strike?" The Union stated it wanted a 10-cent an hour increase to all employees.
After Barile and DeLorenzo conferred privately, the latter returned to the union
representatives stating that Barile offered an increase of 41/2 cents to certain em-
ployees and 21/2 cents to others, excluding the polishers. This offer the Union re-
jected. After again conferring privately, Bartle and DeLorenzo returned to the
union representatives, and after some bickering Barile offered a 5-cent hourly increase
to all employees except the polishers, the latter to receive pay for the one-half day
they were on strike on May 17. The Union accepted this offer subject to ratification
by its membership.ta At this meeting Barile also failed to inform the Union of
his plans to terminate the business, or of the possible sale of the Bleecker Street
property to the Authority.ii
The morning of May 23, the parties met briefly to sign a document embodying
the agreements they reached the afternoon of May 17.12 Barile admits that at this
-meeting he did not tell the Union of the contemplated sale of the Bleecker Street
plant, or of any possible termination of the business. While waiting for the em-
ployee members of the Committee to assemble in his office, Barile did ask Business
Agent Scheuermann if some of the polishers should be laid off, what seniority rights
they would have in other departments. Scheuermann replied that the contract
provides for departmental seniority, and if there should be a layoff among the
polishers the problems could be discussed at that time. No further discussion took
place at that time regarding layoffs or reduction in personnel.13 Several days later
8 Up to this point there is no conflict in the testimony ; the findings being based on
admissions by Barite , or upon uncontradicted testimony
It is to be borne in mind that on May 14 Bartle had given the option to the Authority.
11 Barite asked to be notified promptly of the decision of the membership after its meet-
ing scheduled for Sunday evening ( May 19 ). He was advised immediately after the meet-
ing that the membership had approved the agreement reached the preceding Friday.
"This finding is based on the credited testimony of Business Agent Scheuermann and
Committeemen Ward, Sheppert , and Dryer The contrary testimony of Bartle to the effect
that he told the Union on this occasion that the property would be sold and the business
terminated , that he would accept no further work , and that he was agreeing to the wage
increase only because it was for the short period necessary to complete the work on hand,
is not credited . Barile did not impress me as a credible witness. Time after time 'he was
contradicted by prior inconsistent statements Frequently , when pressed for important de-
tails of the meeting during the afternoon of May 17, he would take refuge in the answer
that he was , during the afternoon referred to, "in a fog" and felt "completely dejected."
In short, Bartle ' s uncorroborated testimony , as well as his demeanor while testifying, was
not such as to inspire confidence . DeLorenzo did not testify , as the subpena served upon
him by Respondent was quashed by me on the authority of International Furniture Com-
pany, 100 NLRB 127 , footnote 2, and the cases there cited . Moreover , in view of the fact
that Bartle admittedly made no reference to the termination of the business when the
parties met and signed the agreement on May 23 , as hereafter set forth , and the fact that
the contract which was executed on May 23 , was for a period of a year, without reference
to a prior termination in the event of the discontinuance of the business , the testimony of
Scheuermann , Ward , Sheppert, and Dryer seems more consistent with the probabilities.
- 12 The document then signed provided for a 5 -cent hourly increase to all employees, ex-
cept polishers , retroactive to April 18, and that as so amended , the contract of April 18,
1901 , should remain in effect to April 18, 1964 , and thereafter from year to year unless
terminated by notice
"Bartle testified that he explained to Scheuermann that he was asking the question In
view of his ' liquidation plans , and because the polishers, many of whom would have
seniority rights, were not qualified for work ' in other departments , and that Scheuermann
promised to let him ( Bartle ) know about this, but never did. Scheuermann denied this.
For the reasons iibove stated I credit Scheuermann.
ROYAL PLATING AND POLISHING CO., INC. 555
Shop Steward Ward noticed that work destined for the plant was being turned away,
and a day or two later six polishers were laid off. The termination slips given the
six polishers bore the legend "Liquidating." Ward and his shop committee called
on Barile to discuss the situation. Barile at first claimed he knew nothing about
it, but after talking with someone in his office, told Ward, "I'm liquidating " Ward
asked if this meant he (Barile) was going out of business. Barile replied, "No,
I'm getting smaller. I am trying out something." Ward tried for several days to
communicate with the business agent, but being unable to do so, again talked with
Barile on one of the last few days in May. Ward again asked Barile if he was
going out of business, and Barile replied, as he did on the prior occasion, that he was
not going out of business; he was "just liquidating." Ward later communicated with
his business agent and a meeting with Barile was scheduled for June 7.
In the meanwhile, during the latter days of May, the Authority notified Barile
that it was exercising the option given it on May 14 to purchase the Bleecker Street
property. Barile admits that in the latter part of May (he thought it was May 28) he
telephoned a representative of the Authority and asked the latter to expedite the
purchase of the property. The transaction was closed on June 3, with the payment of
the purchase price and the execution and delivery of a deed. From and after that
time Respondent retained the property as a tenant from month to month, with an
oral understanding that it might occupy the premises for a period up to 6 months.
On or about June 7, Business Agent Scheuermann and the employee committee
met with Barile at the latter's office. Scheuermann asked Barile what he meant
by "liquidating," if this meant that he was laying off all the employees and closing
the business. Barile replied, as he had in the past, "No, I am not closing down. I
am just liquidating ." Scheuermann and his committee again met with Barile on
June 14. On this occasion Scheuermann confronted Barile with the fact that he
was turning work away, laying off people, and apparently closing down operations.
Barile, for the first time told the union representatives that the Bleecker Street plant
had been sold; that operations there would be discontinued; that all employees would
be laid off immediately except for the few in the barrelling department who would
continue until the work on hand was completed; and that then the Bleecker Street
plant would be through. Scheuermann asked Barile if there was anything the Union
could do. Barile replied that "nobody could help at this time." There have been
no further meetings between the parties. By the end of June all employees had
been dismissed and operations at Bleecker Street terminated. On July 10, the
machinery and equipment was sold at public auction.14
Analysis and Concluding Findings
The General Counsel does not contend that Respondent closed the Bleecker
Street plant, for the purpose of undermining the Union, nor does he question that
Respondent terminated that operation for other than legitimate economic reasons.
Rather, the General Counsel contends that during the negotiations between the
parties beginning April 30, Respondent, by withholding from the Union all informa-
tion with respect to the contemplated closing of the Bleecker Street plant, was
guilty of refusing to bargain in good faith, and was guilty of a further refusal to
bargain in good faith by unilaterally, and without notice to the Union, terminating
its operations at the Bleecker Street plant. For the reasons set forth below, I
agree with the General Counsel.
As I have found above, the first time Barile definitely told the Union that opera-
tions at the Bleecker Street plant would be terminated was at the meeting of June 14.
Even at the afternoon meeting of May 17, when contract terms were agreed upon,
and also at the May 23 meeting, when the contract extension agreement was executed,
Barile refrained from even mentioning to the Union that he had any plans to dis-
continue operations. He did this notwithstanding the admitted fact that on April 1
he had reached the definite conclusion that termination of the business could not
be avoided (although no decision as to timing was then made), on May 14 had
given the Authority an option to purchase the plant premises, and on' May 17, when
the employees struck, concluded this was the time to effectuate'the decision to close
down. Nor was there any good-faith disclosure 'after May 23 of any intention to
discontinue the business (until the meeting of June 14), for Barile, as I have found,
continued to be evasive by telling the Union, "No, I am not closing down. I am
just liquidating," and on at least one occasion when this statement, was. made, the
transaction with the Authority had been fully consummated. When the Union
14 As above stated, operations at Sussex Avenue, continued' until about September 1,
when that'operation was sold The General Counsel does not contend that any violation
of the Act resulted from the sale of the Sussex Avenue plant.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was finally told on June 14 that the Bleecker Street plant was being closed, it was
virtually handed a fait accompli, for by then most of the employees had been laid
off, and in a few days thereafter the remainder were terminated. Barile's course
of conduct is consistent only with the conclusion that he acted as he did with a
deliberate purpose in mind, and that his purpose must have been to avoid bargain-
ing with the Union during the April 30 to May 23 period of negotiations, over such
matters as severance and termination pay, insurance and pension funds, and. like
subjects that might be expected to arise when a business is being closed. Barile's
failure to inform the Union while negotiations were in progress, of his intention to
close the plant, reduced the bargaining which did occur, and the agreement which
resulted therefrom, to no more than an exercise in frivolity, and constituted bad-
faith bargaining. Cf. Rapid Bindery, Inc. and Frontier Bindery Corporation, 127
NLRB 212, enfd. 293 F. 2d 170 (C.A. 2); Aluminum Tubular Corporation and
American Flagpole Equipment Co., Inc., 130 NLRB 1306, enfd 289 F. 2d 595
(C.A. 2). Unless the statutory duty to bargain in good faith means that an employer
may not conceal or withhold from the Union his intention to shut down his plant, then
at least so far as the Union is concerned that statutory objective becomes "only a
promise to the ear to be broken to the hope, a teasing illusion like a munificent
bequest in a pauper's will" (per Mr. Justice Jackson in Edwards v. California, 314
U.S. 160, 186).
Likewise, by proceeding unilaterally, without notice to the Union, to close down
the Bleecker Street plant, Respondent refused to bargain in good faith with the
Union. Town and Country Manufacturing Company, Inc., et al., 136 NLRB 1022,
order enfd. on other grounds 316 F. 2d 846 (C.A. 5); Fiberboard Paper Products
Corporation, 138 NLRB 550, enfd. sub nom. East Bay Union of Machinists, Locial
1304, United Steelworkers of America, AFL-CIO, etc. v. N.L.R.B., 322 F. 2d 411
(C:A.D.C.), cert. granted 375 U.S. 963; Adams Dairy, Inc., 137 NLRB 815, en-
forcement denied 322 F. 2d 533 (C.A. 8), petition for cert. pending. See also
Pepsi-Cola Bottling Company of Beckley, Inc., 145 NLRB 785.15 "Unilateral ac-
tion by an employer without prior discussion with the Union does amount to a
refusal to negotiate about the affected conditions of employment .. " N.L R.B.
v. Benne Katz, etc., d/b/a Williamsburg Steel Products Co., 369 U.S. 736, 747.
See also Telegraphers v. Chicago etc. Railway Co., 362 U.S. 330, where it was
specifically held that a decision by management to eliminate jobs was a mandatory
subject of bargaining.
Accordingly, I find and conclude that by withholding from the Union while the
parties were bargaining, the information that Respondent intended to close down
at its Bleecker Street operations, and by unilaterally, without notice to the Union,
closing such operations, Respondent refused to bargain with the Union, and thereby
violated Section 8(a) (5) and (1) of the Act. I)
There remains the question of fixing the time when Respondent's refusal to bargain
occurred. The General Counsel contends that such refusal occurred April 1,
when, as Barile admits, he made the decision to close down. I am unable to agree
that a refusal to bargain occurred at that point. Respondent at that time had taken
no overt step to implement the decision to close down, or which would indicate that
he intended to effect a shutdown without giving the Union an opportunity to bargain
about his decision. Conceivably, Respondent might well have made the necessary
disclosure at the appropriate time. I conclude, however, that when the parties met
in negotiations on April 30, Respondent was then dutybound to inform the Union of
the decision to close the plant. This, admittedly, it did not,do. I therefore find
and conclude that Respondent's refusal to bargain occurred on April 30.
H. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices , I shall
recommend that it cease and desist therefrom and take certain affirmative action, set
forth in the Recommended Order below , which will effectuate the, policies of the Act.
The General Counsel does not ask that Respondent be required to reestablish its
operations . The affirmative remedy he requests is that Respondent be required to
(1) establish, a preferential hiring list consisting of those employees who were laid
u Respondent would distinguish the Board 's decisions in 'Town and Country Manufac-
turing Company, Inc., et al., Fibreboard Paper Products Corporation , and Adams Dairy,
'Inc., supra, on the ground that those cases involved the subcontracting or closing down of
only a portion of the employer 's operations , while In the instant case the employer closed
the entire plant. I regard this to be a distinction without a difference , and conclude that
the principle of Town and Country, Fibreboard, and Adams Dairy Is fully applicable here.
ROYAL PLATING AND POLISHING CO., INC. 557
off by reason of the closing of the Bleecker Street plant, to be used by Respondent in
the event it resumes operations; (2) bargain with the Union in the event such opera-
tions are resumed; (3) pay backpay to those employees laid off by reason of the
closing of the Bleecker Street plant from the date they were severally laid off, until
they find substantially equivalent employment; and (4) mailing, instead of posting,
the usual notice to the employees. In support of such requested remedy, particularly
the request for backpay, the General Counsel relies on such Board cases as Town
and Country Manufacturing Co., Inc., et al., 136 NLRB 1022; Fibreboard Paper
Products Corporation, 138 NLRB 550; Adams Dairy, Inc., 137 NLRB 815; Esti
Neiderman and Gizela Eisner, co-partners doing business as Star Baby Co., 140
NLRB 678, Darlington Manufacturing Company, et al., 139 NLRB 241; and Bonnie
Lass Knitting Mills, Inc., 126 NLRB 1396.
As I have found that Respondent, in violation of Section 8(a)(5) of the Act,
closed down the Bleecker Street plant without bargaining with the Union on that
decision, I shall recommend that Respondent place the names of all employees laid
off by it on or after April 30 on a preferential hiring list, and, in the event it hereafter
resumes operation, to offer those employees immediate reinstatement to their
former or substantially equivalent positions without prejudice to the seniority and
other rights and privileges which they severally theretofore enjoyed. Also, it will
be recommended that in the event Respondent resumes operation, it shall, upon
request, bargain with the Union as the exclusive representative of the employees
in the unit herein found appropriate. As the customary posting of a notice at
Respondent's plant is no longer feasible, nor would such posting have the desired
effect, I shall recommend that Respondent be required to mail a copy of such notice
to the Union, and to each employee who was on Respondent's payroll at anytime
between April 30 and July 1.
I do not think an award of backpay, as requested by the General Counsel is ap-
propriate under the facts of this case. The cases relied on by the General Counsel
are all distinguishable, and I have been referred to no decision by the Board, nor
has my independent research revealed any case where the Board has awarded
backpay in a situation comparable to that prevailing here. In Town and Country,
Fibreboard, and Adams Dairy the employer had continued to operate its business,
simply contracting out the performance of a portion thereof without bargaining
with the Union. To remedy such violation the Board directed the employer to
resume the contracted-out work, reinstate the displaced employees to the jobs they
formerly held, and make them whole for any loss of pay they may have sustained.
In the instant case the employer is no longer in business, and reinstatement can only
be offered if the employer resumes operations-relief which the General Counsel
does not seek. In Darlington, Star Baby, and Bonnie Lass, although the Board
found a violation. of Section 8(a) (5) by -reason of the employer's unilateral termina-
tion of its business without notice to or bargaining with the Union, it also found a
violation of Section 8(a)(3), because the decision to terminate the business was
made to avoid bargaining with the Union. The backpay awarded in those cases
appear to have been for the purpose of remedying the Section 8(a) (3) violation. I
have found no case where, as here, no Section 8(a)(3) violation is alleged, and the
General Counsel concedes that the decision to close down was made for valid
economic reasons, with no intention of undermining the Union. In such circum-
stances an award of backpay would appear to be punitive rather than remedial,
cf. Carl Roche,t and Charles Ruud, partners, doing business as Renton News
Record, et al., 136 NLRB 1294, 1298, and would not effectuate the policies of the
Act. Indeed, in Rudy Barber, Louis B. Barber and Robert Hamlyn, Co-partners,
d/b/a Barbers Iron Foundry, 126 NLRB 30, the Board held that an award of back-
pay was inappropriate where that had been a permanent cessationrof business, and
it awarded backpay in Bonnie Lass, supra, because that employer had a function-
ing business, albeit on a substantially reduced scale, and might resume the discon-
tinued operation. 126 NLRB at 1398. Accordingly, I do not recommend a back-
pay award.
Upon the foregoing findings of.fact,-and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section 2(2) of the Act,
which is engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act, and at all times material has been the certified and recognized collective-
bargaining representative of a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act, composed of all production
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and maintenance employees employed at Respondent 's Newark , New Jersey , plant,
excluding all office clerical employees, professional employees , guards, watchmen,
and supervisors as defined in the Act.
3. Since April 30, both by its failure to disclose to the Union , while the parties
were engaged in contract negotiations , its purpose to shut down operations of its
Bleecker Street plant, and by unilaterally, and without notice to the Union , closing
down its aforesaid plant, Respondent refused to bargain collectively with the Union,
and thereby engaged in unfair labor practices proscribed by Section 8(a) (5) and (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law, and upon the entire
record in this case , pursuant to Section 10(c) of the National Labor Relations Act,
as amended , I recommend that Respondent, Royal Plating and Polishing Co., Inc.,
its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Metal Polishers , Buffers, Platers and
Helpers International Union, Local 44, AFL-CIO, as the exclusive representative
of all employees in the appropriate unit, consisting of all production and main-
tenance employees employed at its Newark , New Jersey, plant, excluding all office
clerical employees , professional employees, guards, watchmen , and supervisors as
defined in the Act.
( b) In any like or related manner dnterfering with , restraining , or coercing its
employees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist the above named or any other labor organization, to bargain
collectively through representatives of their own choosing , and to engage in other
concerted activities for the purposes of collective bargaining or other mutual aid
or protection , or to refrain from any and all such activities , except to the extent
that such right may be affected by an agreement requiring membership in a labor
organization as a condition of employment , as authorized by Section 8(a)(3) of
the National Labor Relations Act, as amended.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Create a preferential hiring list containing the names of all employees laid
off by it between April 30 and July 1, 1963, and notify the aforementioned Union,
and each listed employee, of the establishment of such list and the contents thereof.
If and when it shall resume operations , it shall offer the individuals whose names
appear on the aforesaid list full reinstatement to their former or substantially equiv-
alent positions , without prejudice to their seniority or other rights and privileges
previously enjoyed , all as set forth above in the section entitled "The Remedy."
(b) If and when operations are resumed , bargain collectively , upon request,
with Metal Polishers , Buffers, Platers and Helpers International Union, Local 44,
AFL-CIO, as the exclusive representative of all employees in the appropriate unit
above set forth , and embody any understanding reached in a signed agreement.
(c) 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 or useful in
checking compliance with this Order.
(d) Mail an exact copy of the attached notice marked "Appendix ," 16 to Metal
Polishers , Buffers, Platers and Helpers International Union , Local 44, AFL-CIO,
and to each employee whose name appears on the preferential hiring list required
by paragraph 2(a) hereof . Copies of said notice , to be furnished by the Regional
Director for Region 22 of the Board (Newark , New Jersey ), shall, after being
signed by its authorized representative , be mailed immediately upon receipt thereof,
as herein directed.
(e) Notify the aforesaid Regional Director, in writing , within 20 days from the
receipt of this Decision , what steps it has taken to comply herewith.17
"In the event this Recommended Order is adopted by the Board, the words "a Decision
and Order" shall be substituted for the words "the Recommended Order of a Trial Ex-
aminer" in the notice In the further event that the Board's Order is enforced by a decree
of a United States 'Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order "
11 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify the aforesaid Regional Director, in writing, within
10 days from the date of this Order, what steps it has taken to comply herewith."
DOUGLAS COUNTY ELECTRIC MEMBERSHIP CORP. 559
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL, if and when we resume operating a plant for the plating or polish-
ing of metal, bargain on request with Metal Polishers, Buffers, Platers and
Helpers International Union, Local 44, AFL-CIO, as the exclusive representa-
tive of all employees in the appropriate unit consisting of all production and
maintenance employees employed at our Newark, New Jersey, plant, exclud-
ing all office clerical employees, professional employees, guards, watchmen, and
supervisors, as defined in the National Labor Relations Act, as amended, and
embody any understanding reached into a signed agreement.
WE WILL create a preferential hiring list containing the names of all em-
ployees laid off by us between April 30 and July 1, 1963, and notify the above-
mentioned Union and all persons named on said list of the establishment thereof.
WE WILL, if and when we resume operations of a plant, a aforesaid, offer
all the individuals whose names appear on the aforesaid preferential hiring
list, full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges previously
enjoyed.
WE WILL NOT interfere with, restrain, or coerce our employees in the exercise
of their rights to self-organization, to form, join, or assist the above-named or
any other labor organization, to bargain collectively through representatives
of their own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection, or to refrain
from any and all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as
authorized by Section 8(a) (3) of the National Labor Relations Act, as amended.
All our employees are free to become, remain, or refrain from becoming
or remaining, members of the above-named Union or any other labor organiza-
tion, except that this right may be affected by an agreement in conformity
with Section 8(a)(3) of the National Labor Relations Act, as amended.
ROYAL PLATING AND POLISHING CO., INC.,
Employer.
Dated------------------ By-------------------------------------------
(Representative) (Title)
Employees may communicate directly with the Board's Regional Office, 614
National Newark Building, 744 Broad Street, Newark, New Jersey, Telephone No.
Market 4-6151, if they have any question concerning this notice or compliance with
its provisions.
Douglas County Electric Membership Corporation and Inter-
national Brotherhood of Electrical Workers, AFL-CIO. Case
No. 10-CA-5503. August 27,1964
DECISION AND ORDER
On May 6,1964, Trial Examiner Alba B. Martin issued his Decision
in the above-entitled proceeding, finding that the Respondent had en-
gaged 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. There-
after, the Respondent filed exceptions to the Trial Examiner's Decision
and a supporting brief.
148 NLRB No. 61.