Molded Fiber Glass Body Co.

400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Molded Fiber Glass Body Company-Midwest Division and Teamsters Local Union No. 50, affiliated with International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America. Case 14-CA-4969 May 13, 1970 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On February 4, 1970, Trial Examiner Frederick U. Reel issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices alleged in the complaint but recommending against issuance of a remedial order for the isolated violation found, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that these allegations be dismissed. Thereafter, the Charging Party and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs. Respondent filed cross-exceptions to the Decision with a supporting brief and an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in con- nection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Exam- iner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Deci- sion, the exceptions, the briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications: 1. The Trial Examiner found that Respondent did not violate Section 8(a)(5) and (1) of the Act when, more than a year after the Union's certification by the Board, it refused to bargain with the Union upon reopening and restaffing a plant which Respondent had permanently closed for economic reasons 5 months after the Union was certified. We agree, but for the following reasons. Respondent, a manufacturer and distributor of fiber glass reinforced plastic and related products, operates plants at Ashtabula, Ohio, and Centralia, Illinois, only the latter being involved herein. On October 16, 1967, the Union was certified as the exclusive bargaining repre- sentative of Respondent's production and maintenance employees at the Centralia plant. Thereafter, unsuccessful but good-faith efforts to reach an agreement covering the wages, hours, and working conditions for the plant employees were made at meetings between the parties. When, in January 1968, Respondent informed the Union that it had determined for economic reasons to permanently close the Centralia plant, the parties engaged in further good-faith negotia- tions concerning the effects of the proposed shutdown. There is no allegation that the March 15, 1968, plant closing was precipitated by union animus. In fact, after the termination of operations at Centralia, Respondent and the Union still negotiated in good faith, but no contract covering questions about the plant closing result- ed. On May 14, 1968, Respondent proposed a contract to the Union containing a clause by which Respondent agreed to recognize the Union as the exclusive bargaining representative for the already established unit if the Centralia plant were reopened before October 16, 1968, the end of the socalled "certification year." No agree- ment was reached, and further contact between the parties did not occur again until January 1969. After closing the Centralia plant on or about March 15, 1968, Respondent sought unsuccessfully to sell the plant. Since its Ashtabula plant was still operating, Respondent continued to bid for new work. In the summer and fall of 1968, Respondent received new orders for the manufacture of automobile parts, but found itself unable to raise funds to expand the Ashtabula operations, as required. In view of the influx of new orders, the inability to sell the Centralia plant (which was costing $25,000 a month to maintain), and the inabili- ty to expand its Ashtabula operations, Company Presi- dent Morrison informed Respondent's board of directors on September 27, 1968, that the Centralia plant might have to be reopened to handle the new orders. At the hearing, the General Counsel stated that both the plant closing and reopening were based on economic considerations, not union animus. However, the com- plaint alleges that prior to the termination of the "certi- fication year" on October 16, 1968, Respondent knew all the factors which eventually led it to reopen Centralia on or about November 22, 1968. The Trial Examiner's finding that Respondent did not delay reopening for the reasons implicit in that allegation is supported by the fact that major Chevrolet and Pontiac orders were not received until October 17 and November 12, 1968, respectively, at which time the decision to reopen the plant was apparently made. Respondent did not notify the Union or its former employees when it reopened the Centralia plant on November 22, 1968. Instead it hired new employees. There is no contention that the decision to hire new employees, rather than to rehire the former employees, was motivated by union animus. Morrison's uncontrad- icted testimony is that the former employees were unsa- tisfactory and so he did not desire to reemploy them. On January 13, 1969, the-Union wrote Respondent requesting that Respondent bargain with it as the certified representative of the new employees. Of the 46 employ- ees hired by Respondent between November 1968 and mid-January 1969, only a handful had been employed by Respondent prior to the March 1968 closing. The parties stipulated that at no time since the Centralia plant reopened has the Union claimed to have signed authorization cards from a majority of the newly hired employees, nor has it claimed that a majority of such 182 NLRB No. 59 MOLDED FIBER GLASS BODY CO persons have union membership The new employees were paid wages higher than those paid at the time of the closing, but it appears that this was due to an interim wage increase given employees at the Ashtabu- la plant, since Respondent had previously maintained comparable wage structures at its two plants Respondent answered the Union's January 13, 1969, request for bargaining by contending that since the certi- fication "was no longer valid" and it doubted the Union's majority status, it would not recognize or bargain with the Union at that time Respondent also filed a petition for an election with the Board, but the instant proceeding blocked processing of that petition While the Union's mid-January letter stated that it was "now" informed of the November reopening, without giving reasons for the apparent delay in asking for bargaining, the reopen- ing, as the Trial Examiner indicates, was no secret in Centralia, a city of 15,000 people, especially since the local newspaper had reported the presence of another union's picket at the plant when it reopened That picket- ing is unrelated to the instant case The General Counsel contends that the "certification year" should be extended beyond the normal October 16, 1968, termination date because of the peculiar circum- stances of the case Particularly, the General Counsel contends that, since after January 1968 the parties only negotiated about the effects of termination, rather than the wages, hours, and working conditions of employees in a viable plant setting, the Board should allow the Union at least a full year of such latter bargaining at the plant Alternatively, he argues, the certification create 9 a presumption of continuing representative status beyor d October 16, 1968, which was not overcome by th time of the November 22, 1968, plant reopening, and hat, therefore, Respondent had a duty to notify the 1 neon of the reopening Given Respondent's lack of union animus, the good- faith efforts made by the parties to reach some type of agreement even after the Centralia plant was apparent- ly permanently closed, and the economic considerations which admittedly were the sole factors which caused the plant's closing and subsequent reopening, we find no reason to extend the "certification year" beyond the normal October 16, 1968, termination date, even though less than a full year's bargaining occurred between the parties i For the above reasons, we also find no basis for presuming that the Union continued its representative status beyond October 16, 1968, at which time the Centralia plant was still, as it then appeared, permanently closed Accordingly, we find that Respondent did not violate Section 8(a)(5) and (1) of the Act by failing to notify the Union of the plant reopening and thereafter refusing to bargain with the Union 2 Since we have found that the Union was not the exclusive bargaining representative of Respondent's ' Cf Mar Jac Poultry Company Inc 136 NLRB 785 where the Board extended the certification year because the employer had denied the union a full year s bargaining opportunity as a result of the employer s unlawful refusal to bargain during the certification year 401 newly hired production and maintenance employees at the Centralia plant when Respondent reopened it in November 1968, we find, contrary to the Trial Examiner, that Respondent did not violate Section 8(a)(5) and (1) of the Act by granting, upon reopening, a wage increase to the new employees without notifying the Union Accordingly, we shall dismiss this allegation of the com- plaint 2 ORDER It is ordered that the complaint be, and it hereby is, dismissed in its entirety 2 We express no opinion on the propriety of the recommendation of the Trial Examiner not to issue a remedial order for this isolated violation which he found TRIAL EXAMINER'S DECISION FREDERICK U REEL, Trial Examiner This case, heard at St Louis, Missouri, on November 24, 1969, pursuant to a charge filed the preceding January 23, and a com- plaint issued August 20, presents questions arising out of Respondent's refusal to bargain when, a few weeks after the expiration of the "certification year," it re- opened and substantially restaffed a plant which had apparently been permanently shut down for economic reasons midway in the certification year Upon the entire record, and after due consideration of the briefs filed by General Counsel and by Respondent, I make the following FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent, herein called the Company, an Ohio corporation, is engaged at Ashtabula, Ohio, and at Cen- tralia, Illinois, in the manufacture, sale, and distribution of fiber glass reinforced plastic and related products At its Centralia plant, which is the only facility involved in this proceeding, the Company annually ships products valued in excess of $50,000 to points outside the State, and it is therefore an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act The Charging Party, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act iI THE ALLEGED UNFAIR LABOR PRACTICES A Background-the Certification, and the Bargaining Before and After the Closing of the Plant Early in October 1967 the Union won a Board-conduct- ed election at the Centralia plant, and on October 16, 1967, the Board certified the Union as the exclusive bargaining representative of the production and mainte- nance employees The Company and the Union there- 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after met several times in what apparently were good- faith but unsuccessful efforts to reach agreement. Early in January 1968 the Company determined for economic reasons to discontinue operations at the Cen- tralia plant . The Company communicated this intention to the Union, and the parties engaged in further good- faith bargaining over matters relating to the proposed termination , but reached no agreement . On or about March 15, 1968, the Centralia plant was closed. At that time all parties expected that the closing would be permanent , i.e., the Company had no expectation or intention of ever resuming operations there. For the next several months the Company made strenuous efforts to sell the plant to various potential customers, but all such efforts failed. Notwithstanding the closing of the plant , the Company and the Union continued negotiations in April and May 1968, apparently in an effort to reach a contract which would encompass questions arising out of the termination of the plant . On May 14, 1968 , the Company proposed a contract containing , inter alia, the following clause: It is agreed that if the Molded Fiber Glass Body Company, Mid-West Division shall reopen opera- tions at Centralia, Illinois prior to October 16, 1968 the Company will recognize the Union as the exclusive bargaining agent for all production and maintenance employees , factory, janitors and truck drivers employed by the Company at its Centralia, Illinois plant , excluding all office clerical employees , professional employees , guards and supervisors as defined in the National Labor Rela- tions Act, as amended. The provisions of this Agree- ment shall apply solely to those employees for whom the Union has been certified by the National Labor Relations Board , Case No. 14-RC-4779. Agreement was not reached on this contract , and the Company and the Union had no further communications with each other until January 1969. B. The Reopening of the Plant In the summer and fall of 1968 the Company received certain orders which eventually led it to reopen the Centralia plant . The Company' s inability to sell the plant , and its inability to raise funds to expand its Ashtabula plant were likewise factors in its determination to reopen Centralia . As early as September 27, 1968, Company President Morrison told the board of directors that the Company might reopen Centralia. Final decision to do so, however, was not reached until after the Company received other new orders . The evidence fails to sustain the allegation that the Company knew prior to October 16, 1968 (the expiration of the "certification year"), of all the factors which led it to reopen the plant . On the contrary, the evidence shows that the Company did not delay the reopening of that plant because of any considerations growing out of the certi- fication . The plant resumed operations on or about November 22, 1968. When the plant reopened , the Company commenced hiring employees . Approximately 6 were hired in Novem- ber 1968 , about 20 in December , and about 20 during the first 2 weeks of January 1969. Only one or two of these employees had been employed by the Company prior to the shutdown the preceding March . The Compa- ny explained at the hearing that it determined to make a fresh start , as the previous complement of employees had been unsatisfactory on several counts. General Counsel took no issue with this, and expressly disclaimed any allegation that antiunion motivation played any role in the Company 's decision to hire new people rather than to rehire the former crew. The wages at Centralia, prior to the shutdown , had been comparable to those the Company paid in Ashtabula . When Centralia reopened , the wage rates there were somewhat higher than they had been when it closed , as Ashtabula rates had increased during the interim. The Company gave no notice to the Union or to its former employees when it reopened the plant . Howev- er, the reopening was no secret in Centralia, a city of some 15 ,000 people . At the time the plant reopened, another labor organization placed a picket at the gate, protesting an alleged payment of substandard wages with respect to some electrical work allegedly being done in the plant. This matter received some publicity in the local press. On January 13, 1969, counsel for the Union wrote the Company, stating that the Union was " now informed that the plant has been reopened ," asserting that the Union "is still the certified representative" of the employees in the plant, and requesting the Company to begin bargaining negotiations . Company counsel promptly replied that the certification was "no longer valid" because of the "substantial change in circum- stances" and the expiration of the certification year. The letter went on to express the Company's doubt of the Union 's majority status, and announced that the Company was filing with the Board a petition for an election to resolve "any question concerning represen- tation that may presently exist ." The filing of the charge in this litigation , however, has prevented the processing of that petition. The parties stipulated that at no time since the plant reopened in November 1968 has the Union claimed to have signed authorization cards from a majority of the persons hired since the reopening , nor has it claimed that a majority of such persons have membership in the Union. C. Concluding Findings Between May 1968 when the Union rejected the Com- pany's proposed contract and January 1969 when the Union requested bargaining , the Company heard nothing from the Union. When the bargaining request was made in January the Company expressed its doubt (well-found- ed, as the stipulation establishes) that the Union com- manded the support of a majority of the employees then on the payroll, and suggested an election to resolve the question . The Company 's conduct at this time was manifestly proper unless, as General Counsel contends, the Company had violated its bargaining obligation at MOLDED FIBER GLASS BODY CO. the time the plant reopened in November 1968. General Counsel contends that at the time of the reopening the certification was still viable (a) because the "certifica- tion year" should be extended beyond the normal 12- month period because of the shutdown of the plant, and (b) because, even if the "certification year" had expired, the presumption of representative status created by the certification survived subject to rebuttal and therefore vested status in the Union at the time the Company started to hire. As a corollary to these proposi- tions or in elaboration thereof, General Counsel urges that the mere turnover in personnel does not operate to unseat the Union during the certification year or even give rise to a presumption that it has lost its majority after the year expires, and also that in Novem- ber when the first new hirings occurred the Company could not have any basis for doubting the Union's status because, not having hired new employees or at least any representative complement of employees, the Company must assume that the prior representative continue its incumbency. Finally, General Counsel urges not only that the Company had an affirmative duty to negotiate with the Union over the terms of reopening and the reemployment of new hiring of employees, but also that even if the Company had no such affirmative duty, it nevertheless violated its bargaining obligation by its action in changing wage rates without notice to, or bargaining with, the Union about that matter.' Notwithstanding the considerable force of these conten- tions, it is my considered judgment , for reasons indicated below, that only the last, dealing with unilateral action, is well taken, 'and that under all the circumstances the complaint should be dismissed. With respect to the certification, I see two compelling, albeit somewhat mutually inconsistent, reasons for not extending the certification year, First, although General Counsel argues that the closing of the plant caused a cessation of bargaining so that the Union did not enjoy the normal year of certification, the fact is that bargaining continued for several months after the closing, and it was the Union which rejected the last proposal. To be sure, the closing weeks of actual bargaining dealt largely with conditions arising out of the shutdown rather than with going terms of employment, but this does not alter the fact that the Union continued active bargaining under the protection of the certification after the shutdown. The change in circumstances would not seem a reason for extending the certification year. Sec- ond, the apparently permanent cessation of operations effected a sudden mass dissolution of the bargaining unit . This would seem to be a special circumstance justifying a shortening of the period in which the certifica- tion is conclusive. Compare the cases holding that a sharp expansion of the unit creates an exception to the "one year" rule. Celanese Corp., 73 NLRB 864; Westinghouse Electric & Mfg. Co., 38 NLRB 404. Nor- mal gradual turnover of employees, like normal gradual 'At the close of the hearing I expressed some doubt that the unilateral action aspect of the case was embraced by the pleadings . Closer examina- tion of the pleadings shows it to be well within the scope of paragraph 10A of the complaint 403 expansion of the number in a unit, does not create an exception to the "one year" rule, but a sudden or precipitate revolution in the employee complement is as sound a basis for an exception as a sudden expan- sion. If shortly following a certification, the entire work force quit en masse for economic reasons, it would seem unreasonable to apply the certification to cover a totally new crew, and the same considerations should apply where the en masse termination is caused by the employer for purely economic reasons. The consider- ations applying to normal turnover appear largely inappli- cable, as they turn in large part on the continuing representative status of the Union in a going relationship. The force of the argument just made-that the certi- fication lost the normal protection of the "one year" rule because of the sudden termination of the employ- ees-loses considerable force because of the Company's proposal as late as May 1968 that it would recognize the Union if the plant reopened during the certification year. The proposal was not accepted, and the Company's readiness to accept the certification as still controlling would not bind the Board. In any event, and for all the reasons thus far stated, I would not regard the certification as creating an irrebuttable presumption of the Union's status after the plant reopened; i.e., I would not extend the certification year. As to the argument that the Union enjoyed a presump- tion of representative status, although rebuttable, this, of course, would be defeated by the considerations outlined above suggesting that the closing of the plant and the consequent total and sudden dissolution of the unit constitute an exceptional circumstance vitiating the certification. However, I am reluctant to rely on that theory in the light of the Company's postclosing offer to respect the certification. Of course, insofar as the refusal to bargain occurred in January 1969, the rebutta- ble presumption was in fact rebutted. But General Coun- sel rests his case on violations allegedly occuring in November 1968. At that time the Union made no request to bargain. The issue therefore boils down to whether the Company, even in the absence of a bargaining request, violated a bargaining obligation which it owed to the Union prior to the time the presumption arising out of the 13-month old certification was rebutted. When the Company reopened the plant in November it had no employees in the unit. The termination the previous March had been complete and final.' This case is not to be analogized to those in which economic strikers, once believed permanently replaced, are held entitled to reinstatement because the "permanent" replacement proved impermanent, for in those cases the strikers retain "employee" status under Section 2(3) of the Act. It may be that under the presumption discussed above, the Union became the representative of the new employees upon their being hired and before the presumption of continued status was rebutted by the facts, here stipulated, that the Union held no authori- zation cards from the new employees, none of whom Y General Counsel' s reliance on Chemrock Corp , 151 NLRB 1074, is misplaced, for that case involved no interruption of employment. 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were members But the Company is under no duty to bargain with the Union over the identity of the new hires For that matter, it has no duty to bargain over individual discharges, except as the Union raises grievances after the fact While the Company may have had a duty to bargain over the mass discharge implicit in the plant's closing, the record is clear that it fully discharged this duty General Counsel argues that the Company had an affirmative duty to notify the Union that the plant was reopening The record is clear that even before the plant went back into operation, the fact that work was to resume there was a matter of common knowledge in the area, as the local press described the picketing activities of another union In the light of this circumstance it may be assumed that the Union was aware of the reopening, and General Counsel called no witness to testify to the contrary While it might have been better practice for the Company to give formal notice to the Union, I find from the facts established on this record that the Union was not prejudiced by the failure to receive such formal notice Had the Union desired to bargain with the Compa- ny to urge the rehiring of former employees, the Union could have done so In the absence of a bargaining request, the Company had no obligation to consult with the Union over the Company's decision as to whether to hire new employees or to rehire those formerly employed As noted above, the former employees had been terminated, and were not in layoff status Cf Zatko Metal Products Co , 173 NLRB No 6 At the time it reopened the plant, the Company because of the general inflation (as evidenced by wage increases given at its Ashtabula plant while Centralia was shut down) paid a higher wage than it had paid at Centralia when that plant closed This raising of wages was done without notice to, or bargaining with, the Union As the raises were given the new employees as they were hired, this would appear to be a unilateral change of working conditions violative of Section 8(a)(5) and (1) This result follows because the certification, after 1 year, conferred a rebuttable but still presumptive status on the Union, and the rate changes were made before there was any basis for rebutting the presumption (This argument, of course, rests on the continuing vitality of the certification after the shutdown, a matter conceded by the Company in its negotiations, although possibly questionable ) But this unilateral action violative of Sec- tion 8(a)(5) and (1) had no bearing whatsoever on the Company's doubt of the Union's majority the following January Under the peculiar circumstances of this case, I would not think it effectuated the policies of the Act to issue any order arising out of the isolated violation here found Cf Allied Chemical Corp , 143 NLRB 260, 263 3 CONCLUSION OF LAW The Company has not engaged in any unfair labor practice warranting the issuance of a remedial order RECOMMENDED ORDER The complaint should be and hereby is dismissed H In many respects this case illustrates the adage that hard cases make bad law To dismiss as I have done requires careful limitation of normally applicable and sound principles which if carried to their logical conclusion might lead to a contrary result devoid of equity and not effectuating statutory policy in this situation I should add that even if I found other violations or recommended a remedial order I would not grant the remedy sought by General Counsel of reinstating the former employees with backpay Such a remedy perhaps defensible under Fibreboard Paper Products Corp 138 NLRB 550 enfd 322 F 2d 411 (C A D C) affd 379 U S 203 would seem inappropriate here in the light of all the circumstances including the Union s delay in not seeking bargaining for several weeks and the express position of General Counsel that the existence of lawful economic reasons for not rehiring the former employees is immaterial