Transmarine Navigation Corp.

National Labor Relations Board - Board Decisions

Mar 15, 1968

170 N.L.R.B. 389 (N.L.R.B. 1968)

TRANSMISSION NAVIGATION CORPORATION
Transmarine Navigation Corporation and its Sub-
sidiary, international Terminals , Inc. and Amer-
ican Federation of Guards , Local #1. Case
21-CA-5766
March 15, 1968
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On May 28, 1965, the National Labor Relations
Board issued its Decision and Order in this case,' in
which it found that the Respondent violated Sec-
tion 8 (a)(5) and (1) of the National Labor Rela-
tions Act, as amended, by closing the terminal here
involved and terminating certain employees without
bargaining with the certified representative of these
employees. Under the circumstances of the case,
and as the closing was found to be economically
motivated, the Board's Order was limited to requir-
ing that the Respondent make whole the affected
employees from on or about November 1, 1963,
the date on which the Respondent closed its ter-
minal, until June 25, 1964, the date on which it of-
fered to bargain with the Union with respect to
any matter in dispute. 2
Thereafter, on June 21, 1967, the United States
Court of Appeals for the Ninth Circuit handed
down its opinion in this case.' The court held that
the Respondent's "decision, based solely on greatly
changed economic conditions, to terminate its busi-
ness and reinvest its capital in a different enterprise
in another location as a minority partner, is not a
subject of mandatory collective bargaining within
the meaning of Section 8(a)(5)," and, therefore,
that the Respondent had not violated the Act by
failing to bargain with the Union about the decision
to close its terminal. The court's opinion also states,
however, that "it is clear that the Company, by
withholding information from the union of its deci-
sion to terminate the Los Angeles operations,
deterred the union from bargaining over the effects
of the shutdown on the employees." The court con-
cluded that by withholding this information from
the Union the Respondent committed an unfair
labor practice. On the basis that it could not be cer-
tain "that the Board would have issued the same
remedial order had it not reached the erroneous
152 NLRB 998
s On June 18, 1965, the Respondent filed a motion for reconsideration,
which was denied by the Board on June 29, 1965
' 380 F 2d 933.
4 Pursuant to the provisions of Section 3(b) of the Act, the Board has
delegated its powers in connection with this case to a three-member panel
389
conclusion that the Company was required to bar-
gain collectively concerning the crucial managerial
decision," the court remanded this matter to give
the Board an opportunity to review its Order.
In considering the matter remanded to us,' we
accept as the law of the case the court's findings
and conclusions . In this posture of the case, we
adopt the court's view limiting the finding of the
unlawful refusal to bargain to the Respondent's
failure to bargain with the Union over the effects of
its decision to terminate its Los Angeles terminal.
The Board's original•Decision and Order of May
28, 1965, required that the Respondent's guards be
made whole from on or about November 1, 1963,
the date that the Respondent closed its terminal,
until June 25, 1964, when the Respondent offered
to bargain with the Union.5 As our original order
requiring more than 7 months' backpay was based
in part on our finding that the Respondent unlaw-
fully failed to bargain concerning the decision to
close its terminal, it appears, in the light of the
court's remand,, that this order should be modified
to accord with the finding of an unlawful refusal to '
bargain based only upon the Respondent 's refusal
to bargain about the effects of the shutdown on its
"mployees.
It is apparent that, as a result of the Respondent's
unlawful failure to bargain about such effects, the
Respondent's guards were denied an opportunity to
bargain through their contractual representative at
a time prior to the shutdown when such bargaining
would have been meaningful in easing the hardship
on employees whose jobs were being terminated.
The Respondent's only offer to bargain with the
Union came more than 7 months after it closed its
terminal and when the collective strength of the
employees' bargaining unit had been dissipated.
Under the circumstances of this case, including
the lapse of time and changes in the corporate na-
ture of the Respondent, it is impossible to
reestablish a situation equivalent to that which
would have prevailed had the Respondent more
timely fulfilled its statutory bargaining obligation.
In fashioning an appropriate remedy, we must be
guided by the principle that the wrongdoer, rather
than the victims of the wrongdoing, should bear the
consequences of his unlawful conduct, and that the
remedy should "be adapted to the situation that
calls for redress.'!"
'TheTh Board's decision relied on Jersey Farms Milk Service, Inc, 148
NLRB 1392 See also Royal Plating and Polishing Co, Inc, 160 NLRB 990
' N L R B v Mackay Radio & Telegraph Co, 304 U S. 333, Phelps-Dodge
Corp v NLRB , 313 U S 177, 194; N L R B v Don Juan, Inc., 185 F 2d
393 (CA 2)
170 NLRB No. 43
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Applying these principles to the instant case, we
deem it necessary, in order to effectuate the pur-
poses of the Act, to require the Respondent to bar-
gain with the Union concerning the effects of the
shutdown on its terminal guards. Under the present
circumstances, however, a bargaining order alone
cannot serve as an adequate remedy for the unfair
labor practices committed by the Respondent. As
we recently pointed out in Royal Plating and Polish-
ing Co., Inc.,' similar in many respects to the instant
case:
The Act required more than pro forma bargain-
ing, but pro forma bargaining is all that is likely
to result unless the Union can now bargain
under conditions essentially similar to those
that would have obtained, had Respondent
bargained at the time the Act required it to do
so. If the Union must bargain devoid of all
economic strength, we would perpetuate the
situation created by Respondent's deliberate
concealment of relevant facts from the Union
which prevented the Union from meaningful
bargaining.
Therefore, in order to assure meaningful bargaining
and to effectuate the purposes of the Act, we shall
accompany our order to bargain over the effects of
the shutdown with a limited backpay requirement
designed both to make whole the employees for
losses suffered as a result of the violation and to
recreate in some practicable manner a situation in
which the parties' bargaining position is not entirely
devoid of economic consequences for the Respon-
dent. We shall do so in this case by requiring the
Respondent to pay backpay to the guards involved
in a manner similar to that required in Royal Plat-
ing. In addition, we shall, further to effectuate the
purposes of the Act, require the amounts to be paid
to be not less than the amounts the guards would
have earned during a 2-week period of employ-
ment.
Accordingly, we shall order the Respondent to
bargain with the Union, upon request, about the ef-
fects on its guards of the Los Angeles terminal shut-
down, and to pay these employees amounts at the
-rate of their normal wages when last in the Respon-
dent's employ from 5 days after the date of this
Supplemental Decision until the occurrence of the
earliest of the following conditions: (I) the date the
Respondent ,bargains for agreement with the Union
on those subjects pertaining to the effects of the
closing on guards at its Los Angeles terminal; (2) a
bona fide impasse in bargaining; (3) the failure of
the Union to request bargaining within 5 days of
this Supplemental Decision, or to commence
negotiations within 5 days of the Respondent's
notice of its desire to bargain with the Union; or
(4) the subsequent failure of the Union to bargain
in good faith; but in no event shall the sum paid to
any of these employees exceed the amount he
would have earned as wages from November 1,
1963, the date on which the Respondent ter-
minated its Los Angeles operations, to the time he
secured equivalent employment elsewhere, or June
25, 1964, the date when the Respondent offered to
bargain, whichever occurred sooner; provided,
however, that in no event shall this sum be less than
these employees would have earned for a 2-week
period at the rate of their normal wages when last
in the Respondent's employ.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respon-
dent, Transmarine Navigation Corporation and its
subsidiary, International Termi4als, Inc., Los An-
geles and San Francisco, California, its officers,
agents , successors , and assigns , shall:
1. Cease and desist from refusing to bargain with
American Federation of Guards, Local #1 , with
respect to the effects on the guards of its decision
to close its Los Angeles Terminal.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Pay the guards of the former Los Angeles
terminal their normal wages for the period set forth
in this Supplemental Decision.
(b) Upon request, bargain collectively with
American Federation of Guards, Local #1, with
respect to the effects on its guards of its decision to
close its Los Angeles terminal, and reduce to writ-
ing any agreement reached as a result of such bar-
gaining.
(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, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Mail an exact copy of the Notice attached
hereto, marked "Appendix," to American Federa-
tion of Guards, Local #1, and to all the guards who
were employed at its former Los Angeles terminal.
Copies of said notice, on forms provided by the Re-
gional Director for Region 21, after being duly
' Fn 5, supra
TRANSMISSION NAVIGATION CORPORATION 391
signed by its authorized representative , shall be
mailed immediately upon receipt thereof , as herein
directed.
(e) Notify the Regional Director for Region 21,
in writing , within 10 days from the date of this
Order , what steps have been taken to comply
herewith.
ing any agreement reached as a result of such
bargaining.
WE WILL pay the guards who were employed
at the Los Angeles terminal their normal wages
for a period required by a Supplemental Deci-
sion and Order of the National Labor Relations
Board.
Member Jenkins, dissenting in part:
Since I am unable to perceive any principle upon
which my colleagues establish the minimum
amount of backpay to be "not less than " 2 weeks'
pay, I would delete that portion of the remedy.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Supplemental Decision and Order
of the National Labor Relations Board and in order
to effectuate the policies of the National Labor
Relations- Act, as amended , we hereby notify you
that:
WE WILL , upon request, bargain collectively
with American Federation of Guards , Local #
1, with respect to the effects of our decision to
close our Los Angeles terminal on the guards
who were employed there , and reduce to writ-
TRANSMARINE
NAVIGATION
CORPORATION AND ITS
SUBSIDIARY
INTERNATIONAL
TERMINALS, INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered , defaced , or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions , they may
communicate directly with the Board 's Regional
Office , Eastern Columbia Building, 849 South
Broadway , Los Angeles , California 90014,
Telephone 688-5200.