Holly Peterson Co., Inc.

HOLLY PETERSON CO Holly Peterson Co., Inc. and United Steelworkers of America, AFL-CIO, CLC. Case 18-CA-10219 July 29, 1988 ORDER DENYING MOTION BY MEMBERS JOHANSEN, BABSON, CRACRAFT On November 25, 1987, the Acting Regional Di- rector for Region 18 of the National Labor Rela- tions Board issued a complaint and notice of hear- ing in the above-entitled proceeding, alleging that the Respondent has engaged in unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act. Subsequently, the Respondent filed an answer, admitting in part and denying in part the allegations of the com- plaint, stating defenses, and requesting that the complaint be dismissed. On January 25, 1988, the General Counsel filed with the Board in Washington, D.C., a Motion for Summary Judgment, claiming the only issues raised by the complaint and answer are legal in nature and that there are no issues of disputed fact war- ranting or requiring a hearing. On February 1, 1988, the Board issued an order transferring the case to the Board and a Notice to Show Cause why the motion should not be granted. The Re- spondent did not file a response to the Notice to Show Cause. The National Labor Relations Board has delegat- ed its authority in, this proceeding to a three- member panel. The Board having considered the matter, IT IS ORDERED that the General Counsel's Motion for Summary Judgment is denied with leave to renew before an administrative law judge as there are genuine issues of material fact that cannot be resolved without a hearing and the Gen- eral Counsel is not entitled to judgment as a matter of law.' 1 Our dissenting colleague would grant the General Counsel's Motion for Summary Judgment Contrary to our colleague, we cannot say, as a matter of law, that the defense raised by the Respondent could never amount to emergency circumstances relieving the Respondent of its obli- gation to notify and bargain with the Union before the closing We em- phasize that we are not deciding the merits of the Respondent's defense When, as our colleague points out, the Board has never addressed this precise question, we believe it is inappropriate to do so without benefit of a full evidentiary hearing Our colleague argues that aside from a general assertion in its answer the Respondent has not come forward with one shred of evidence to sub- stantiate its claim However, in light of our finding that the General Counsel is not entitled to judgment as a matter of law, it is well estab- lished that the Respondent is not obligated to come forward with evi- dence and a simple denial of unlawful conduct is sufficient to warrant a hearing See, e.g, Florida Steel Corp, 222 NLRB 586 (1976) Our colleague states that the Respondent did not specifically deny the allegations in pars 10 and 11 of the complaint that allege the specific vio- lations of Sec 8(a)(5) and (1), and that therefore they shall be deemed 99 IT IS FURTHER ORDERED that the above-entitled proceeding is remanded to the Regional Director for Region 18 for further appropriate action. MEMBER JOHANSEN, dissenting. Based on documentary evidence submitted in support of the General Counsel's Motion for Sum- mary Judgment and admissions set forth in the Re- spondent's answer to the complaint, I agree with the General Counsel that the only issues raised in these proceedings are legal in nature. Finding no genuine dispute as to material facts, I must dissent from my colleagues' denial of the Motion for Sum- mary Judgment. The complaint alleges and the Respondent's answer admits that the Union was certified on De- cember 22, 1986, as the exclusive collective-bar- gaining representative of the production and main- tenance employees at its Albert Lea, Minnesota fa- cility. The Respondent further admits in its answer that it closed its Albert Lea facility on August 13, 1987, without providing the Union with advance notice of the closure. The Respondent acknowl- edges that by letter dated August 18, 1987,1 after implementation of the closure decision, it first pro- vided the Union with formal notice of the plant closing. In addition, the record reveals that only then did the Respondent offer to bargain with the Union about the effects of the closure. Finally, the Respondent did not specifically deny in its answer the allegations contained in paragraphs 10, 11, and 12 of the complaint, i.e., that its actions constituted unfair labor practices within the meaning of the Act. The Respondent raises two defenses to its failure to provide the Union with advance notice of the plant closing. The first defense is that it "extended an open offer to meet with the Union" after actual- ly closing the Albert Lea facility.2 It is well settled that an employer is obligated to bargain with its employees' collective-bargaining representative regarding the effects of a decision to close a facility. In First National Maintenance Corp. v. NLRB, 452 U.S. 666,"681-682 (1981), the Su- preme Court emphasized that bargaining over the effects of a decision to close must be conducted "in a meaningful manner and at a meaningful time." An important element in evaluating whether mean- admitted true pursuant to Sec 102 20 of the Board's Rules and Regula- tions However, Sec 102 20 provides that "any allegation in , the com- plaint not specifically denied or explained in an answer filed shall be deemed to be admitted to be true and shall be so found by the Board " (Emphasis added ) We believe Respondent's answer satisfies the rule ' The record reveals that the correct date of the letter was August 17, 1987 2 The quoted language appears in par 4 of the Respondent's answer to the complaint 290 NLRB No. 17 100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ingful bargaining has occurred is whether the union was provided with clear and timely notice of a plant closing.3 In Metropolitan Teletronics Corp., 279 NLRB 957, 960-961 ( 1986), enfd . without opin- ion 819 F.2d 1130 (2d Cir. 1987), the Board reaf- firmed the principle that notice to a union of a fa- cility's closure after it has occurred is not timely and cannot serve as a defense to the obligation to bargain in good faith . The Board recognized that a belated offer to negotiate denies a union of the op- portunity to bargain when it retains a measure of bargaining power. Ibid.4 Thus, I find that the Re- spondent's postclosure offer to bargain is not legal- ly cognizable as a defense to the complaint allega- tions. The Respondent's answer raises as a second de- fense that the Company was privileged to withhold from the Union advance notice of the plant closing because of "concern that such notice would have led to a slowdown in the production rate and/or sabotage to the equipment or to the products man- ufactured."5 As the General Counsel acknowl- edges, the rule regarding timely notice is not a per se rule-an employer can avoid 8(a)(5) liability by demonstrating that "emergency circumstances" jus- tified late notice to the union.6 While the Board has recognized as "emergencies " such occurrences as discontinuance of an ongoing line of credit,7 lack of funds to continue in operation,8 and theft of vehicles,9 it has at no time found that concern for the mere conjectured possibility of employee sabo- tage of a plant or product amounts to "emergency circumstances." As the General Counsel points out, such speculation could be raised , with equal justifi- cation, by most employers deciding to close a facil- ity. Should a vague and unspecified "concern" about employee sabotage or production slowdown be recognized by the Board as a valid defense, the exceptions to the advance notice rule would pro- vide a loophole broad enough effectively to nullify an employer's obligation to engage in effects bar- gaining. In this case in particular (and I note that the Respondent failed to respond to the Notice to Show Cause), there is not a shred of evidence that would even hint that the Respondent has any basis ' Penntech Papers v. NLRB, 706 F 2d 18, 26 (1st Cir 1983), enfg 263 NLRB 264 (1982), cert denied 464 U S 892 (1983), P. J. Hamill Transfer Co, 277 NLRB 462 (1985). 4 See also Thompson Transport Co, 184 NLRB 38 (1970). s The quoted language appears in par 4 of the Respondent's answer. 6 Metropolitan Teletronics, supra 7 Raskin Packing Co., 246 NLRB 78 (1979) " M & M Transportation Co, 239 NLRB 73, 75 (1978) 9 National Terminal Baking Corp , 190 NLRB 465 (1971). for its unspecified apprehension or "concern." Even had such evidence been presented, however, the Board did not create (nor do I believe it in- tended to create) an exception based on "concern" for sabotage and/or production slowdown when it recognized that occasional exceptional circum- stances may justify circumvention of the advance- notice requirement. Thus, I find, again, that the Re- spondent has failed to raise a legally cognizable de- fense to the complaint allegations. Accordingly, as I find that the pleadings in this case fail to raise a disputed issue of fact which would warrant litigation, that the Respondent has admitted all the facts material to a resolution of the unfair labor practice issues raised by these proceed- ings, that the Respondent has failed to deny specifi- cally that its actions constitute unfair labor prac- tices,10 and that the Respondent's affirmative de- fenses are legally insufficient as justification for the Respondent's conduct, I would grant the General Counsel's Motion for Summary Judgment. That is the appropriate action when a respondent fails to raise a legally cognizable defense." Finally, I would enter an appropriate remedial order.12 10 Sec 102.20 of the Board's Rules and Regulations, provides that "any allegation in the complaint not specifically denied or explained shall be deemed to be admitted to be true .." In light of my finding that the Respondent has failed to raise a legally cognizable defense to the complaint allegations, I cannot agree with my colleagues that the Re- spondent's answer "explains" the complaint allegations as required by Sec. 102 20 of the Board's Rules and Regulations. Further, contrary to my colleagues, I find that Florida Steel Corp, 222 NLRB 586 (1976), does not require that this case be remanded for a hear- ing in Florida Steel, a distinguishable case, General Counsel filed a Motion for Summary Judgment contending that through its answer the respondent admitted facts sufficient for a Board determination finding the alleged violations of the Act Through an amended answer , the respond- ent sought to withdraw its admission of the alleged unlawful conduct and entered instead a denial of such conduct . The Board denied the General Counsel's motion to strike the amended answer and found instead that re- spondent's denial of the commission of the alleged unlawful acts raised questions of fact and law requiring resolution through a hearing The critical difference between Florida Steel and this case is that we have here the Respondent's admission of all facts material to a resolution of the unfair labor practice issues, a failure by the Respondent to deny that its actions constitute unfair labor practices, and the assertion of de- fenses that are not legally cognizable Thus, the factors which resulted in a remand for a hearing in Florida Steel are not present here 11 See, eg , Auburn Die Co, 282 NLRB 1044(1987) (Motion for Sum- mary Judgment granted because employer admitted factual allegations of complaint except for a contention that its actions resulted from economic circumstances, which is not a cognizable defense in a refusal to bargain case), General Split Corp., 284 NLRB 418 (1987) (Motion for Summary Judgment granted where employer's claim that it was financially unable to make contractually required severance pay disbursements was found not to constitute an adequate defense to a complaint's allegation that the employer unlawfully failed to abide by the provisions of a collective-bar- gaining agreement). to 1 agree with the General Counsel that the appropriate remedy in this case would be a Transmarine remedy See Transmarme Navigation Corp, 170 NLRB 389 (1968), Metropolitan Teletronics, supra; P J Hamill. supra