Thompson Transport Co., Inc.

38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thompson Transport Company , Inc. and Truck Drivers and Helpers Union Local No. 696, af- filiated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Cases 17-CA-2881 and 17-CA-2934 June 30, 1970 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS FANNING, MCCULLOCH, AND BROWN On June 6, 1967, the National Labor Relations Board issued its Decision and Order in this proceed- ing,[ in which it found that the Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, by, inter alia, closing the terminal involved herein and terminating cer- tain employees without bargaining with the cer- tified Union about the decision to close and the ef- fects of such closure. Under the circumstances of the case, and as the closing was found to have been economically motivated, the Board's order re- garding the 8(a)(5) violation was limited to order- ing Respondent to put the discharged employees on a preferential hiring list and to make such em- ployees whole to July 12, 1966, the date on which Respondent satisfied its obligation to bargain about the effects of the closing. Thereafter on March 21, 1969, the United States Court of Appeals for the Tenth Circuit handed down its decision in this proceeding.2 The court de- nied enforcement of the Board's order based upon the refusal to bargain over the decision to close, stating: It seems apparent, and we hold, that the Com- pany, solely motivated by a sound economic reason, had no duty to bargain on the decision to close the terminal. However, the court further stated there is a con- tinuing "duty to bargain concerning the effects of the closing," but that it was "unable, on the present record, to determine whether the Board did or would consider an 8(a)(5) violation to have oc- curred independent of the Company's admitted refusal to bargain on the decision to close." Con- sequently, the court remanded the case to the Board to further consider whether, in the circum- stances, an independent violation of Section 8(a)(5) based upon the Respondent's refusal to bargain as the effects is warranted herein. In considering the matter remanded to us,3 we accept as the law of the case the court's findings and conclusions. In this posture, we adopt the court 's finding that Respondent was under no obligation to bargain concerning its economically motivated decision to close the terminal. Regarding the refusal to bargain over the effects of closing, the facts are as follows: On March 21, 1966, Respondent informed the Union of its deci- sion to close the Phillipsburg terminal and refused the Union's request to bargain about the effects. Thereafter, on March 31, 1966, Respondent closed the terminal and discharged the employees. Respondent did not offer to bargain concerning the effects until May 2, 1966, some 5 weeks after its terminal was closed and when the collective strength of the Union naturally was dissipated. Im- passe was reached on July 12. In our opinion, Respondent's belated willingness to engage in ef- fects bargaining, though not otherwise in bad faith, furnishes no defense to its denial of the Union's request for such negotiations while the plant remained in operation. The duty to bargain over the effects of a decision to close entails more than pro forma bargaining at a time after the dissipation of the Union's economic strength.4 Accordingly, we hold that Respondent violated Section 8(a)(5) by its denial of the Union's request for bargaining as to the effects of the impending closure and find that it will effectuate the policies, of the Act to issue a remedial order herein.5 THE REMEDY The Board's original Decision and Order on June 6, 1967, required that Respondent place the discharged terminal employees on a preferential hiring list and make them whole from the time of the decision to close until July 12, 1966, the time when Respondent fulfilled its duty to bargain with the Union. Having reexamined the remedy initially provided in the light of our finding that Respondent violated Section 8(a)(5) and (1) by refusing to bar- gain over the effects of its decision, we shall reaf- firm our original remedy except that Respondent's liability for backpay shall terminate as of May 2, 1966, the date Respondent offered to bargain con- cerning the effects of the closure. As heretofore found, Respondent's unlawful refusal to bargain denied the employees the ser- vices of their representative until a time when their Union was devoid of bargaining strength. Neverthe- less, it is presently impossible to restore the situa- tion to that which would have prevailed had ' 165 NLRB 740. 2 406 F 2d 698. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this proceeding to a three -member panel Royal Plating and Polishing Co, Inc , 160 NLRB 990, 997 ' N L R B v Transmartne Navigation Corporation, 380 F 2d 933 (C A. 9), N L R B v Royal Plating and Polishing Co, Inc, 350 F 2d 191, 196 (C.A 3) 184 NLRB No. 5 THOMPSON TRANSPORT COMPANY, INC. Respondent timely fulfilled its obligation to engage in bargaining as to the effects of the terminal 's clos- ing. In the Supplemental Decision in Royal Plating and Polishing, 6 the Board held that "effects bar- gaining" taking place after termination of em- ployees is not the equivalent of that which occurs while the union is in a position of economic strength, stating: The Act requires 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 bar- gained at the time the Act required it to do so. Therefore, while Respondent, in the instant case, did express a willingness to bargain about a month after the closedown, the bargaining that ensued did not neutralize the wrong to employees resulting from Respondent's flat rejection of the Union's de- mand for such bargaining prior to closure of the terminal. Respondent's delay in discharging its statutory obligation precluded the parties from en- gaging in meaningful negotiations with respect to is- sues that could have cushioned the economic im- pact of the closedown on the affected employees, including their possible transfer to Respondent's other operation. This unlawful impairment of em- ployee rights should not be allowed to stand un- remedied We believe that the remedy provided herein accomodates the interest of all parties while at the same time effectuating the policies of the Act in this case. However, further bargaining, in the sense contemplated by the Act, would only be ef- fective on the present facts if we were to direct Respondent to restore its Phillipsburg terminal, reinstate the employees, and then bargain over the effects of the decision to close. Under the circum- stance, such an order would be unduly harsh and therefore inappropriate Consequently, a further bargaining order would not produce meaningful negotiations, would serve no useful purpose, and therefore the appropriate remedy should not be designed to ensure that the Respondent will again bargain. From this, however, it does not follow that we lack authority to redress the denial of employee rights occasioned by the unlawful rejection of the Union's preclosedown request for such bargaining. Thus, in the circumstances of this case, we find it necessary to devise a fair and reasonable remedy which directly affords redress to the employees, rather than one which, as is true in the usual uni- lateral action case, incidentally benefits employees while returning the parties to the bargaining table. It is our opinion, based on the total curcumstances of this case, that the violation of employees rights 39 can be redressed in reasonable fashion by retaining the provision in our original order for preferential hiring, and by guaranteeing a minimum of backpay corresponding to the period in which employees were denied the services of their bargaining representative In approving a Board order which in like fashion remedied a similar violation, Circuit Judge Lay, speaking for the Eighth Circuit Court of Appeals in N L R.B v. Drapery Manufacturing Co., Inc., 425 F.2d 1026, 1029, stated. We are unwilling to say on this record that the Board's back pay order is totally without reasonable relationship to the company's delay in refusing to bargain over the effects of clos- ing. . . It is not totally outside the realm of reasonableness to relate the failure of the com- pany to enter into immediate bargaining over the effects of closing, upon its decision to close, to the possibility that American might well have absorbed the four seamstress em- ployees into their overall operation. Under the circumstances we cannot substitute our judgment as to the proper remedy for that of the Board's. Accordingly, we shall require Respondent: (I) to place all the terminated employees on a preferential hiring list in the event Respondent resumes operations in the Phillipsburg area and, at the time, to offer reinstatement to those employees, and (2) to make employees whole for any loss of pay they may have incurred as a result of Respon- dent's refusal to bargain about the effects of its March 31, 1966, closing from that date to May 2, 1966, or until the date they secured equivalent em- ployment elsewhere, whichever is earlier, plus in- terest computed in accordance with Isis Plumbing & 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 orders that the Respon- dent, Thompson Transport Company, Inc., McPherson, Kansas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from refusing to bargain with Truck Drivers and Helpers Union Local No 696, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, with respect to the effects of its em- ployees of its decision to close its Phillipsburg ter- minal 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act 160 NLRB 990 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Make Ronald Wise, Robert Ringle, and Wil- lis Hodge whole as provided for in the section of this Supplemental Decision and Order entitled "The Remedy," and place their names on a preferential hiring list in the event the Phillipsburg operation is resumed (b) 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 or useful in checking compliance with this Order (c) Mail an exact copy of the notice attached hereto marked "Appendix" to Truck Drivers and Helpers Union Local No 696, affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and to all employees who were employed by Respondent at its Phillipsburg terminal immediately prior to March 31, 1966' Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by Respondent's representa- tive shall be mailed immediately upon receipt thereof as herein directed. (d) Notify the Regional Director for Region 17, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. MEMBER MCCULLOCH, concurring: In light of the court's decision in N L.R.B v. Drapery Manufacturing Co., Inc., 425 F.2d 1026 (C.A. 8), 1 concur in the remedial order now directed by my colleagues when we refused to bargain with the Truck Drivers and Helpers Union Local No. 696, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, over the effects on your jobs of our decision to close the Phillipsburg terminal. WE WILL NOT refuse to bargain with the above-named labor organization about the ef- fects of our decisions which affect the employ- ment status of our employees who are represented by the above-named labor or- ganization. WE WILL place the names of Robert Wise, Robert Ringle, and Willis Hodge, who were discharged as a result of our decision to close our Phillipsburg terminal, on a preferential hir- ing list in the event we resume operations in the Phillipsburg area and, at that time, offer reinstatement to these employees without prejudice to their seniority and other rights. WE WILL pay to the above-named employees an amount in wages equal to what they nor- mally would have earned from March 31, 1966, to May 2, 1966, or until the date on which they secured equivalent employment, whichever is earlier. THOMPSON TRANSPORT COMPANY, INC. (Employer) Dated By r In the event that this Supplemental Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Order of the National Labor Relations Board" shall read " Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order " APPENDIX NOTICE TO EMPLOYEES MAILED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board had found that we violated the National Labor Relations Act (Representative ) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone 816-374-5181.