Hackney Iron & Steel Co.

HACKNEY IRON & STEEL CO. Hackney Iron & Steel Company and International Chemi- cal Workers Union , and Its Local 773, AFL-CIO. Cases 23-CA-2505 and 23-CA-2554 May 7, 1970 SUPPLEMENTAL DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On September 28, 1967, the National Labor Relations Board issued its Decision and Order in the above-entitled proceeding,' finding that the Respondent as a successor employer had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, and ordering the Respondent to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act, including recognizing and bargaining with the Union. The Board also dismissed those portions of the complaint alleging that the Respondent violated Section 8(a)(3) and (1) of the Act by denying overtime work to two employees. Thereafter, the Respondent filed with the United States Court of Appeals for the District of Columbia a petition to review and set aside the Board's Order. The Board filed a cross-petition seeking enforcement of its Order. The Court sustained, in full, the Board's successor and unfair labor practice findings. However, it did not accept the Board 's rationale for declining to determine whether the Respondent must comply with the terms of the collective-bargaining agreement in effect at the time of the change in business ownership. The Court held that this issue was within the scope of the complaint and that, as the contract was in effect at the time of -acquisition, the Board should consider the matter in light of the Supreme Court's Wiley deci- sion.2 Following the remand, pursuant to leave granted by the Board by letter dated July 10, 1968, briefs were submitted by the Respondent, the General Counsel, and the Union. Subsequently, the General Counsel sub- mitted an addendum to his brief and the Respondent submitted a supplemental memorandum. During this period the Union, on July 11, 1968, sought, through a motion to supplement record, to include the collective-bargaining agreement in issue as part of the record of this case. The motion was unopposed, and, as we view the contract as relevant to our consideration of the issue presented on remand, the motion is hereby granted and the contract is received in evidence. On August 14, 1968, the Respondent filed a motion to supplement record through which it sought to intro- duce into evidence a letter from the Union to the Respondent requesting that negotiations for a new con- tract begin and stating, in effect, that the automatic renewal provision of the contract would be inoperative if no agreement were reached. On September 16, 1968, 167 NLRB s John Wiley& Sons, Inc v Livingston , 376 U S 543 (1964) 357 the Union filed its opposition to this motion. The same day the General Counsel filed a reply in which he expressed no opposition to the Respondent's motion. However, the General Counsel sought, through his own motion to supplement the record, by introducing the Respondent's reply letter in which the Respondent expressed its position with regard to its professed lack of any bargaining obligation. The General Counsel also submitted a motion to file supplemental briefs. The motions to supplement the record through the introduc- tion of the letters described above are hereby granted, and the letters are received in evidence. We do not believe, that there is any necessity for supplemental briefs and that motion of the General Counsel is hereby denied. On January 31, 1969, the National Labor Relations Board, having determined that the instant case raised issues of substantial importance in the administration of the National Labor Relations Act, as amended, ordered that this case be consolidated with three others3 for the purpose of oral argument before the Board on March 12, 1969. The parties were given permission to file further briefs. Subsequently, on February 19, 1969, the Board extended its date of the oral argument to April 23, 1969. The Board also invited certain interested parties to file briefs amicus curiae and to participate in oral argu- ment. Briefs were filed by: The Chamber of Commerce of the United States; American Federation of Labor and Congress of Industrial Organizations; International Union, United Automobile, Aerospace and Agricultural Implement Workers; the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America; and the National Federation of Independent Unions. The Chamber of Commerce of the United States; the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America; and the National Federation of Independent Unions did not choose to participate in the argument. The National Association of Manufacturers declined either to file a brief or partici- pate in the argument. The Board has considered the briefs, the oral argu- ments, and the entire record in this case in formulating a response to the Court's remand and hereby makes the following findings. In remanding, the Court limited its directive to the Board to further consider, giving due deliberation to the impact of Wiley, "whether the employer should be called upon to observe the terms of the collective bargaining agreement in effect at the time of the acquisi- tion." As previously noted, the Court affirmed the Board's unfair labor practice findings and its determina- tion that Respondent was a successor employer. The agreement in issue was originally negotiated to cover the 2-year period beginning August 30, 1965. By August 29, 1966, Respondent had assumed control of the business enterprise involved herein from its predeces- 3 The William J Burns International' Detective Agency, 182 NLRB No 50; Kota Division of Dura Corporation, 182 NLRB No 51, and Travelodge Corporation et al , 182 NLRB No 52 182 NLRB No. 53 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sor. Thereafter, Respondent continually refused to abide by the collective-bargaining agreement or even, prior to the issuance of our Decision and Order in the prior stage of this proceeding and the Court's subsequent enforcement thereof, to recognize and bargain with the Union. For the reasons enunciated in our companion decision in Burns" we find that Respondent as the successor employer in a continuing business identity had an obliga- tion to honor the collective-bargaining agreement in effect at the time it took over the employing enterprise. The Respondent had assumed control of the business enterprise involved herein by August 29, 1966, and the contract in issue expired on August 30, 1967.1 On May 1, 1968, the circuit court enforced our order requiring the Respondent to recognize and bargain with the Union. Sometime thereafter a decertification petition was filed. The Regional Director for Region 23 determined that the Respondent had complied with our order and that the holding of an election would not be inconsistent with the fact that the issues involved in this proceeding by reason of the Court's remand had not been finally resolved. The election was conducted on July 2, 1969. The Union failed to receive a majority of the votes cast, and, in the absence of objections, the Regional Director certified the results of the election on July 11, 1969. Consistent with our decision in Burns, Respondent was bound by the provisions of the contract from August 29, 1966, through August 30, 1967, when the contract expired. The Respondent's failure to abide by that agree- ment during its scheduled term constituted an independ- ent violation of Section 8(a)(5) of the Act. Further, although Respondent may have recognized and bargained with the Union following the circuit court's enforcement of our order, there is no evidence to suggest that it bargained to the point of impasse. Therefore, to the extent that Respondent may have caused losses to employees through the institution of unilateral changes in the terms and conditions of employment established by the contract without first having bargained to a good- faith impasse, it bears the responsibility for these losses. THE REMEDY Having found the Respondent in violation of Section 8(a)(5) for failing to honor the collective-bargaining agree- ment in effect at the time of its takeover, we shall further order that, upon request by the Union, the Respondent will be required to make restitution of all contractual benefits which it may have unlawfully with- held from employees by virtue of its failure to abide by the provisions of the collective-bargaining agreement during its scheduled term. We shall also require that the Respondent make restitution for benefits which may have been lost by virtue of any unilateral changes it may have instituted in the terms and conditions of employment existing at the expiration of the contract. The latter form of restitution is applicable from August 31, 1967, the expiration date of the contract, to July 11, 1969, the date of the Union's decertification. Whatev- er monetary restitution` Respondent's employees may be entitled to, shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, and shall include interest in the amount and manner set forth in Isis Plumbing & Heating Co , 138 NLRB 716. ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Hackney Iron & Steel Company, Navasota, Texas, its officers, agents, successors, and assigns, shall take the following affirmative action necessary to effectuate the policies of the Act: 1. Make restitution of all contractual benefits which it may have unlawfully withheld from employees by virtue of its failure to abide by the provisions of the collective-bargaining agreement in effect at the time of its acquisition of the employing enterprise involved herein in the manner set forth in the portion of this decision entitled "The Remedy". 2. Make restitution for any benefits which may have been lost by virtue of any unilateral changes it may have instituted in the terms and conditions of employ- ment existing at the expiration of the contract in the manner set forth in the portion of this decision entitled "The Remedy". The termination date for such restitution is July 11, 1969, the date of the Union's decertification. 3. Post at its establishment in Navasota, Texas, copies of the attached notice marked "Appendix."" Copies of said notice on forms provided by the Regional Director for Region 23 shall, after being duly signed by Respond- ent's representative, be posted by Respondent immedi- ately 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 to insure that said notices are not altered, defaced, or covered by any other material. 4. Notify the Regional Director for Region 23, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. MEMBER JENKINS, dissenting: For the reasons expressed in my dissent in The William J. Burns International Detective Agency, 182 NLRB No. 50, I would dismiss the complaint here. ' The William J Burns International Detective Agency, supra s The contract contained a clause which provided for automatic 1- year renewals unless either party served notice, at least 60 days before the scheduled expiration date„ of its intention to terminate We view the Union's letter to the Respondent on June 28, 1967, as having constituted such notice 8 In the event this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " HACKNEY IRON & STEEL CO APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL make restitution of all contractual ben- efits which we may have unlawfully withheld by virtue of our failure to abide by the collective- bargaining agreement in effect at the time when we acquired control of the company WE WILL also make restitution for any benefits which may have been lost because of any unilateral changes we may have instituted in the terms and conditions of employment The termination date for such restitution is July 11, 1969, the date of the Union's decertification Dated By 359 HACKNEY IRON & STEEL CORP (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone 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, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone 713-226-4296