Royal Plating and Polishing Co., Inc.

National Labor Relations Board - Board Decisions

May 14, 1965

152 N.L.R.B. 619 (N.L.R.B. 1965)

ROYAL PLATING AND POLISHING CO., INC. 619
All our employees are free to become or remain, and to refrain from becoming or
remaining, members of United Steelworkers of America , AFL-CIO, or any other
labor organization , except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of employment
as authorized in Section 8 (a) (3) of the Act.
SHAKESPEARE COMPANY; SHAKESPEARE PRODUCTS COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 500 Book
Building, 1249 Washington Boulevard , Detroit, Michigan , Telephone No. 963-9330,
if they have any question concerning this notice or compliance with its provisions.
Royal Plating and Polishing Co., Inc. and Metal Polishers,
Buffers, Platers and Helpers International Union , Local 44,
AFL-CIO . Case No. 22-CA-1640. May 14, 1965
SUPPLEMENTAL DECISION AND ORDER
AMENDING ORDER
On August 27, 1964, the National Labor Relations Board issued its
Decision and Order in this case.' In its Decision the Board concluded,
on the basis of the findings of fact set forth in its Decision and more
fully set forth in the Trial Examiner's Decision, that Respondent vio-
lated Section 8(a) (5) and (1) of the National Labor Relations Act,
as amended, "by failing to disclose to the Union, while it and the Union
were engaged in contract negotiations, its intention to shut down opera-
tions at its Bleeker Street plant, and by unilaterally, and without notice
to the Union, closing down the plant." The Board's Order required
Respondent to cease and desist from the unfair labor practices found
and to take certain affirmative action designed to remedy the unfair
labor practices.2 On April 21, 1965, the United States Court of
Appeals for the Third Circuit, acting upon a motion of the Board to
remand the case for reconsideration, ordered that the case be remanded
to the Board for the limited purpose of considering whether, and to
what extent, the decision by the Supreme Court of the United States in
N.L.R.B. v. Darlington Mfg. Co., 380 U.S. 263, affects this case. On
1148 NLRB 545.
2affirmatively, the Board's Order required Respondent to create a preferential hiring
list for use in the event the Respondent voluntarily resumed operations containing the
names of all employees laid off between April 30 and July 1, 1963, i e., the Bleeker plant
employees, to bargain with the Union upon request in the event Respondent resumed
operations, and to make Bleeker plant employees whole for any loss of pay they may
have suffered by reason of the unfair labor practices by paying to each of them a sum
of money equal to the amount he would have earned as wages from the date of his
termination of employment on or after April 30, 1963, to the time he secured equivalent
employment elsewhere, but in no event past the date of December 4, 1963, the date
Respondent was required to vacate the Bleeker Street premises under its agreements
concerning the sale of such premises.
152 NLRB No. 76.
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
April 23, 1965, the Board, by telegraphic order served on the parties to
the case, ordered that the parties be afforded an opportunity to file
briefs on the issue remanded to the Board. Briefs were filed pursuant
to such order by Respondent, the General Counsel, and the Charging
Party.
The Board has reconsidered its decision in this case in the light of
the Supreme Court's decision in the Darlington case, and has consid-
ered the positions and arguments presented in the briefs of the parties
relating to the applicable Darlington decision to this case. The Board
has concluded that the Darlington decision does not require alteration
in its conclusions concerning Respondent's bargaining obligation in
this case.
The issue presented by the pleadings and the trial record of this case
is whether Respondent's failure and refusal to notify the Union, and
to discuss with it, the decision to close Respondent's Bleeker Street
plant violated Section 8(a) (5). The Bleeker Street plant was one of
two plants operated by Respondent. The employees of the two plants
constituted a single unit appropriate for purposes of collective bar-
gaining .3 In these circumstances, we view this case as involving a
refusal to bargain over a partial closing of a business, rather than a
refusal to bargain over a complete closing or total cessation of business.
On or about April 1, 1963, Barile, Respondents president, reached
a decision to close down the Bleeker Street plant without, however,
determining the date upon which the plant would be shut down. It
is undisputed that the decision was made because of economic
considerations.
The subsequent events attending the implementation of this decision
are fully set forth in our original decision in this case and need not be
repeated here. We stress, however, that there is nothing in Barile's
subsequent conduct to indicate anything other than that such decision
related solely to closing down the Bleeker Street plant. Indeed, when
the employees and their Union finally suspected what was happening
-because of Barile's action in turning down new orders and laying off
Bleeker Street employees-and asked Barile if he was going out of
business , he assured them, "No, I am getting smaller, I am trying out
something" and "No, I am not closing down, I am just liquidating,"
and that liquidating did not mean that he was going out of business.
On June 14, 1963, Barile finally notified the Union that the Bleeker
Street plant had been sold and would be closed down. Nothing was
said at this time about closing down the Sussex Avenue plant. Accord-
s The complaint , as amended on the record by agreement of the parties , alleged that
employees of the Respondent ' s New Jersey plant constituted an appropriate bargaining
unit. It was stipulated by the parties that employees of the Bleeker Street plant and
the Sussex Avenue plant voted in the election that resulted in the Union 's certification
as bargaining representative of Respondent 's employees . The Employer concedes and
argues that the two plants constituted a single unit.
ROYAL PLATING AND POLISHING CO., INC. 621
ing to Barile's testimony on cross examination he did not view the sale
of the Bleeker Street plant to the Housing Authority as finishing his
business, rather he thought it would give new life to his business .4
It was not until the end of July, 1 month after the cessation of opera-
tions at the Bleeker Street plant, and more than 2 months after Barile
commenced laying off Bleeker Street employees, that he decided to
close down the Sussex Avenue plant. On August 26, 1963, Barile noti-
fied the Union that he had decided to dispose of the Sussex Avenue
plant offering to discuss and consider the matter with the Union, and
informing the Union that Respondent had discussed the possible sale
of the plant to certain employees who were interested. As noted in the
Trial Examiner's Decision, there was no charge or allegation in the
complaint that the sale and closedown of the Sussex Avenue plant,
which marked Respondent's termination of business, violated Section
8(a) (5).
On the basis of the foregoing, we believe it readily apparent that the
issue litigated and decided in this case was whether Respondent's fail-
ure and refusal to notify the Union and to discuss the partial closing
of its business through the shutdown of the larger of its two plants
violated Section 8 (a) (5) and (1) of the Act.5 We believe it also appar-
ent that the decision to sell and close down the Bleeker Street plant was
made in the hope and expectation, at least at the time of the making and
the effectuation of that decision, that the money realized from the sale
of the property and the savings realized from not operating the plant
would enable Respondent to continue its plating operation at the Sus-
sex Avenue plant.
In view of our holding that this involves only the partial closing of
a business, we are not here faced with the question of whether a deci-
sion to go out of business completely is a mandatory subject of bargain-
ing. Consequently, we need not, and do not, determine the impact on
that question of the Supreme Court's holding in the Darlington case
"... that when an employer closes his entire business, even if the liquida-
tion is motivated by vindictiveness towards the Union, such action is
not an unfair labor practice."
4 Barile was asked whether he understood that giving an option to the Housing
Authority to buy the Bleeker Street plant meant that his business was finished He
replied no , that he thought it would bring new life to the business . According to an
affidavit Barile gave to a Board Agent, dated July 2, 1963, Barile stated, We have
decided to continue the Sussex Avenue plant on a three shift basis for a couple of months
to determine whether under those circumstances the Sussex Avenue plant can show a
profit."
6 Respondent contends that the Board 's motion to remand and portions of the Board's
brief filed with the Court constitute a concession that our previous Decision and Order
herein are premised on a finding that Respondent failed to bargain concerning a decision
to terminate its business . We have no desire to quarrel with Respondent over semantic
niceties as to these two documents We do not, however , make any such concession.
As already indicated , we do not believe the issue of a total closedown is presented in
this case. We believe , instead , that this case presents only the issue of Respondent's
failure to notify the Union and discuss with it it's decision to discontinue operations at
the Bleeker Street plant
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We perceive nothing in that portion of the Darlington decision deal-
ing with the discriminatory partial closing of a business which war-
rants withholding application of the Act's collective-bargaining pro-
visions to Respondent's decision to close down the Bleeker Street plant.
The Supreme Court clearly indicated that managerial decisions to close
a part of an integrated business are subject to the Act's provisions pro-
hibiting discrimination with respect to hire and tenure of employment
when such discrimination is practiced for the purpose of encouraging
or discouraging union membership. In short, under Darlington,
Respondent's decision to close down the Bleeker Street plant, one of
the two plants comprising a single appropriate bargaining unit, would
be a proper subject of scrutiny under the provisions of Section 8 (a) (3)
under the Supreme Court's ruling in the Darlington case. In these
circumstances, we perceive no reasonable basis on which it can be said
that the Court's decision requires a holding that a partial closing is not
a subject for scrutiny under Section 8 (a) (5).
The fact that Respondent sold and closed down the Bleeker Street
plant because of economic considerations provides no basis for exempt-
ing that decision from the mediatory influence of the Act's collective-
bargaining provisions, although it, of course, does explain why no
8 (a) (3) violation was alleged. Plainly, Respondent's decision to close
down the Bleeker Street plant, and the Union's efforts to bargain con-
cerning that decision and its impact on employees related to employees'
"terms and conditions of employment." The order of Railroad Teleg-
raphers, et al. v. Chicago and North Western R. Co., a Corporation,
362 U.S. 330; Fibreboard Paper Products Corp. v. N.L.R.B., 379 U.S.
203. The fact that the decision was based on economic considerations
made it particularly amenable to the procedures of collective bargain-
ing. For under such procedures, the Respondent would not have sur-
rendered its managerial right to run its business and to take those steps
which its business judgment satisfied it were necessary. All that was
required here was that Respondent bargain in good faith about the ter-
mination of the Bleeker Street plant with its employees' bargaining
representative to give its employees an opportunity to persuade it to
achieve similar economies through negotiation of an acceptable alter-
native. The Act requires that an employer give the employees' bargain-
ing representative notice and opportunity to confer about and discuss
the closing down of a plant not for the purpose of securing the employ-
ees' agreement before he may proceed, but to give his employees an
opportunity to induce him to follow a different course of action which
may safeguard both his and their rights and interests.
In closing down the Bleeker Street operation and selling the capital
equipment, Respondent did not merely withdraw its capital from the
enterprise; Respondent also deprived employees of jobs in which they
had invested years of work, had built up seniority rights, and may have
ROYAL PLATING AND POLISHING CO., INC. 623
had other rights, all of which became relatively worthless upon discon-
tinuance of the operation of the plant. "[A]lthough it is not possible
to say whether a satisfactory solution could [have been] reached,
national labor policy is founded upon the congressional determination
that the chances are good enough to warrant subjecting such issues to
the process of collective bargaining." Fibreboard Paper Products
Corp. v. N.L.R.B., supra.
While mindful of the scope and deference that must properly be
accorded to management's prerogative to make business decisions, we
do not believe that the Supreme Court's decision in Darlington was
intended to affect the application of the aforestated "national labor
policy" in circumstances like those in the instant case. Accordingly,
we adhere to our prior decision.
REMEDY
The unfair labor practices found herein involve the unilateral close-
down of Respondent's Bleeker Street plant without giving the Union
notice or opportunity to discuss the matter. In our original decision
we determined that, in order to effectuate the policies of the Act, it was
necessary to order Respondent to make the employees of the Bleeker
Street plant whole for loss of pay suffered by reason of the unfair labor
practices by paying each of them a sum of money equal to the amount
he would have earned as wages from the date of his termination of
employment between the dates of April 30, 1963, and July 1, 1963, to
the time he secured equivalent employment elsewhere, but, in no event,
past the date of December 4, 1963, the date Respondent was required
to vacate the Bleeker Street premises under its agreements concerning
the sale of such premises. We are now persuaded that Respondent's
back-pay liability properly terminates as of the date it finally went
out of business by closing down the Sussex Avenue plant on August 31,
1963. As previously indicated, there is no charge or allegation that
such closing was accompanied by failure to satisfy statutory obliga-
tions. In these circumstances, we deem it appropriate to limit Respond-
ent's backpay liability to the date of August 31, 1963, and amend the
cease-and-desist provisions of our Order so as to make them apply only
in the event Respondent resumes operations.
ORDER
IT IS HEREBY ORDERED that the order previously issued in this case
be, and it hereby is, amended in the following manner:
Paragraphs 1(a) and 1(b) are amended by inserting the words "In
the event Respondent resumes business operations," at the beginning
of the paragraphs, and by reducing the existing upper case letters
beginning those paragraphs to lower case.
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Paragraph 2 (f) is amended by changing the period appearing at the
end of the paragraph to a comma, and by adding the words "as modi-
fied by the section entitled `Remedy' of the Board's Supplemental Deci-
sion and Order Amending Order Amending Order."
The paragraph of the Notice which contains reference to the date of
"December 4, 1963" is amended by striking that date and substituting
the date "August 31,1963."
MEMBER JENKINS, concurring in part:
I have grave doubts about the correctness of my colleagues' position
that the Supreme Court's decision in Textile Workers Union of Amer-
ica v. Darlington Manufacturing Company, 380 U.S. 263, is not appli-
cable to cases involving alleged violations of Section 8(a) (5) for clos-
ing a plant without prior bargaining. However, I need not reach that
issue here. I stated in my original opinion in this case that I agreed
that Respondent violated Section 8 (a) (5), but rested that decision on
the clearly established fact that the bargaining it engaged in leading
to the last contract with the Union was sham bargaining and not under-
taken in good faith. I reaffirm that opinion here, including the remedy
I there proposed.
United States Gypsum Company and International Union of Elec-
trical Radio & Machine Workers , AFL-CIO , Petitioner. Case
No. 8-RC-5571. May 14, 1965
ORDER AMENDING CERTIFICATION
Following a Board-directed election conducted on November 6, 1964,
the Petitioner was certified as the exclusive bargaining representative
of "all production and maintenance employees at the Employer's War-
ren, Ohio, plant, on Phoenix Road, including the sample department
operator, storekeeper, all shipping department operators, the packing
department operator, and all production department operators, but
excluding all office clerical employees, guards, professional employees,
the works manager, superintendents, foremen, head machinist, head
mechanic, and all other supervisors as defined in the Act."
On November 13,1964, the Petitioner filed with the Board a motion
to amend and clairfy the unit so as to include four employees, classi-
fied as "firemen-watchmen." The Employer, on November 23, 1964,
filed a separate motion to amend and clarify so as to exclude the fire-
men-watchmen from the unit on the ground that they are guards within
the meaning of the Act. The Board having considered the motions and
having decided that they raised substantial and material issues of fact,
152 NLRB No. 62.