Ador Corp.

National Labor Relations Board - Board Decisions

Feb 10, 1965

150 N.L.R.B. 1658 (N.L.R.B. 1965)

1658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
Employees may communicate directly with the Board's Regional Office, 720 Bulkley
Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone No. Main 1-4465, if they
have any questions concerning this notice or compliance with its provisions.
Ador Corporation and Shopmen 's Local 509, International Asso-
ciation of Bridge , Structural and Ornamental Ironworkers.
Case No. 21-CA-5545. February 10, 1965
DECISION AND ORDER
On October 14, 1964, Trial Examiner Howard Myers issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner 's Decision. Thereafter, Respondent and the General Counsel
filed exceptions to the Trial Examiner's Decision and supporting
briefs, and Respondent also filed an answering brief. .
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection
with this case to a three-member panel [Chairman McCulloch and
Members Fanning and Jenkins].
The Board has reviewed the rulings- of the Trial Examiner 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 Decision, the exceptions and briefs, and the
entire record in this case, and hereby adopts the Trial Examiner's
findings, conclusions, and recommendations only to the extent that
they are consistent with this Decision and Order.
The Trial Examiner found that Respondent failed and refused
to fulfill its bargaining obligation in violation of Section 8(a) (5)
and (1) of the Act by not giving prior notice to or consulting with
the Union when it decided to and did cease manufacturing its
"Challenger" line of doors and windows at its Fullerton, California,
plant on June 7, 1963, limiting production of such doors and win-
dows to the filling of orders already accepted. We disagree for
the reasons given below.
As is more fully described in the Trial Examiner's Decision,
Karl Reinhard was appointed general manager of Respondent Ador
Corporation by a referee in bankruptcy on June 7, 1963. Rein-
hard, a former owner of Respondent, arrived at the Ador plant to
take control at approximately 3:45 p.m. on June 7. At that time,
150 NLRB No. 161.
ADOR CORPORATION 1659
all employees in the bargaining unit had' been -laid off and their
wages had been paid in full. Among Reinhard's first decisions
that day was the decision to discontinue the production of Re-
spondent's "Challenger" line of doors and windows, an inexpensive
line which had been installed after Reinhard had sold his interest
in Ador to Respondent. Reinhard made the decision, because it
was his judgment that problems attendant upon the production
and sale of the "Challenger" line had brought Respondent, to the
verge of complete bankruptcy. Admittedly; Reinhard did not give
notice to or otherwise consult with the duly authorized collective-
bargaining representative of Respondent's employees- about the
decision to discontinue production of the "Challenger" line of prod-
ucts. Reinhard's decision was implemented by instructions to the
sales force • to cease accepting orders for "Challenger" products,
when the plant resumed operation, by limiting production of such
products to that necessary to fill existing orders.
On and after June 10, Respondent's plant resumed production.
All employees in the bargaining unit, excepting 4 of the 14 employ-
ees normally engaged in the production of the "Challenger" line,
were recalled. All of the 10 employees who had been recalled for
work on the "Challenger" production line were laid off by October 3,
1963, upon completion of production of orders already accepted
prior to the. implementation of Reinhard's decision to discontinue
the line. Respondent observed the provisions of the existing
collective-bargaining agreement with the Union until it expired by
its terms on July 31, 1963.
From the time of Reinhard's assumption of control until Novem-
ber 8, or thereabouts, Respondent and the Union were engaged
in a series of meetings and discussions concerning the future of
Respondent's operations and the effects on employees of any changes
which might occur and the possibilities of reaching agreement on
a new collective-bargaining agreement. At various times in these,
discussions, the Union reiterated, its demands to be consulted con-
cerning any changes which might be made in Respondent's opera-
tions. At no time during these negotiations, did Respondent dis-
cuss with the Union or offer to negotiate concerning the
discontinuance of the "Challenger" line of products, or the-manner.
in which employees would be selected for layoff' as a result of the
discontinuance of the "Challenger" production line.
The collective-bargaining agreement in effect between Respond-,
ent and the Union at the time Reinhard made -his decision contained
the following section detailing certain management rights :
The management of the Company's plant" and the direction of
its working forces, including the right to, establish new- jobs,.
16601 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
abolish or change existing jobs, increase or decrease the nuni.
ber of jobs, `change materials, processes, products, equipment
and operations shall be vested exclusively in the Company .: .
Subject to the provision of this agreement, the Company shall
have the right to . i . lay off' employees because of lack of work
or other legitimate reasons., .' .. ! -
The complaint alleges that Respondent failed ' and refused to'
discharge its statutory bargaining %obligations by deciding to close
down, and by ' closing down, its "Challenger" line of operations,
without notification to or bargaining with the Union,' by failing to
give the Union information about the_ closedown, and- by laying off'
employees affected by that decision without bargaining with the
Union concerning the methods of selecting employees for layoff.
Contrary to the Trial Examiner, we find that Respondent' s course
of action respecting the discontinuance of its "Challenger" line of
products and the consequential layoff of employees theretofore
engaged' in the production of such products did not contravene' the
statutory mandate that it bargain 'about- matters effecting changes
in the terms and conditions of employment of its employees. The
so-called management rights section of the collective-bargaining
contract in effect at the time Reinhard made his decision and took
the basis steps in the implementation thereof, gave to the Company
the exclusive right to eliminate production of ' any of its products
and to lay off employees who were, as a consequence of such
decision, no longer needed. The parties had, in effect, bargained
about the manner in which such decisions were to be made during
the tel in of the collective-bargaining agreement and had agreed that
the "Company" could take unilateral action in this regard..' Inas-
much as there is neither a 'contention that Respondent laid off
affected employee's in a manner 'contrary to those provisions of, the
collective-bargaining agreement relating to the layoff of employees,
nor evidence to support such a contention,'we conclude that, in the
circumstances of this case, Respondent did not violate' the Act 'in'
laying off 'the employees' in the sequence and at the, times' it''did.2
Furthermore, as we have found that Respondent was, under 'n6,
obligation to consult with the Union over the'decision to discontinue
"General Motors Corporation, 149 NLRB 396. -
2 Although the final reduction in Respondent's working force made necessary by its
decision to discontinue production of the "Challenger" line of products did not 'occur
until after the expiration of the collective -bargaining agreement between the parties, it
does not appear that Respondent departed from established methods of selecting em-
ployees for layoff. Accordingly, and as the allegations of the complaint are limited
specifically to the decision to discontinue the "Challenger" line of products and the
resulting layoffs, and do not allege a failure to bargain respecting proposed changes in
the established methods of selecting employees for layoff, we find no violation of Sec-
tion 8 ( a) (5) as to Respondent ' s failure to bargain about the method of selecting em-
ployees to be laid off. Compare Shell Oil Company, 149 NLRB 283.
ADOR CORPORATION 1661
its "Challenger" line of products, we likewise find, in the particular
circumstances of this case, that Respondent did not violate Section
8(a) (5) by withholding information about its intention to dis-
continue the aforesaid operation.
Accordingly, we shall dismiss the complaint.
[The Board dismissed the complaint.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge and three amended charges duly filed by Shopmen's Local 509, Inter-
national Association of Bridge, Structural and Ornamental Ironworkers , herein called
the Union ,' the General Counsel ' of the National Labor Relations Board, herein
respectively called the General Counsel 2 and the Board , through the Regional
Director for Region 21 (Los Angeles , California ), issued a complaint , dated March 12,
1964 , against Ador Corporation , herein called either Ador or Respondent , alleging
that Respondent has engaged in and is engaging in unfair labor practices affecting
commerce within the meaning of Section 8 ( a) (5) and ( 1) of the National Labor Rela-
tions Act, as amended from time to time, 61 Stat . 136, herein called the Act.
Copies of the charges and the complaint with notice of hearing thereon were duly
served upon Respondent, and copies of the complaint and notice of hearing were duly
served upon the Union.
Specifically , with respect to the unfair labor practices , the complaint alleges that (1)
since on or about March 1, 1957, Respondent and the Union have had collective-
bargaining agreements covering Respondent 's Fullerton , California , plant production
and maintenance employees , exclusive of erection, installation , or construction work
employees , truckdrivers , engineering employees , draftsmen , tool-and-die makers, office
or clerical employees , watchmen , guards, professional employees , and supervisors as
defined in the Act; ( 2) the aforesaid production and maintenance employees at all
times material constituted , and now constitute , a unit appropriate for collective bar-
gaining within the meaning of Section 9(b) of the Act; ( 3) since on or about March 1,
1957, and even prior thereto, the Union has represented , and continues to represent,
a majority of the persons in the aforementioned appropriate unit, and by virtue of
Section 9 ( a) of the Act has been, and is now, the exclusive representative of all the
persons in said unit for the purposes of collective bargaining ; (4) on or about June 7,
1963, Ador decided to, and did , close its window and inexpensive door operations and
at the same time laid off employees in the appropriate unit who were working on the
window and inexpensive door operations at the time said operations were discontinued;
(5) since the discontinuance of said window and inexpensive door operations the
Union has been requesting , and still is requesting , Respondent to furnish it with infor-
mation concerning the discontinuance of aforesaid operations ; ( 6) the window and
inexpensive door operations were discontinued without prior notice to or without con-
sultation with the Union ; and (7 ) since June 7, 1963, Respondent has failed and
refused to bargain collectively with the Union concerning the methods of selecting
employees to be laid off as a result of the discontinuance of the aforementioned win-
dow and inexpensive door operations.
On March 18, 1964, Respondent duly filed an answer, in form of a letter addressed
to the Regional Director for Region 21, denying the commission of the unfair labor
practices alleged.
Pursuant to due notice , a hearing was held from April 29 through May 1 , 1964, at
Los Angeles , California, before Trial Examiner Howard Myers. The General Coun-
sel, Respondent , and the Union were represented by counsel . a Full and complete
opportunity was afforded the parties to be heard, to examine and cross -examine
'The original charge was filed on September 13, 1963, the first amended charge was
filed on October 17, 1963, the second amended charge was filed on November 12, 1963,
and the third amended charge was filed on February 19, 1964.
2 This term specifically includes counsel for the General Counsel appearing at the hearing.
i Respondent was not represented by an attorney on the first day of the hearing but
was represented by Clarence L. Brown, a labor consultant.
1662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
witnesses, to introduce evidence pertinent to the issues, to argue orally on the record
at the conclusion of the taking of the evidence, and to file briefs on or before May 22,
1964.4 Each party filed a brief. Said briefs have been carefully considered.5
Upon the entire record in the case and from my observation of the witnesses, I
make the following: ,
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS OPERATIONS
Ador Corporation, a California corporation with its principal offices and place of
business at Fullerton, California, is engaged in, and during all times has been engaged
in, the manufacture, sale, and distribution of aluminum doors, aluminum windows,
and aluminum extrusions. During 1963, Respondent's out-of-State sales of finished
products exceeded $50,000.
Upon the basis of the foregoing facts, I find, in line with established Board author-
ity, that Respondent, during all times material, was engaged in business affecting
commerce within the meaning of Section 2(6) and (7) of the Act and that its business
operations meet the standards fixed by the Board for the assertion of jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and during all times material was, a labor organization admitting to
membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Prefatory Statement
Ador was founded by Karl Reinhard in 1955. In 1956, Respondent recognized the
Union as a bargaining representative of its production and maintenance employees and
in 1957, the first of a series of collective-bargaining agreements was entered into
between the Union and Respondent.
In 1959, Reinhard sold Ador to Turbo Products, which concern was later known as
Polly Industries.
Polly Industries soon became financially embarrassed and as a result thereof was
unable to meet its obligations to Reinhard. In August 1962, a meeting of Polly Indus-
tries creditors was held. At said meeting, a creditors committee formed As Polly
Industries' largest creditor Reinhard was pan active member of the creditors' committee
attending nearly all of its meetings.
On January 31, 1961, Polly Industries filed a petition under chapter XI of the
Federal Bankruptcy Act.
On June 7, 1963, Ador itself filed a petition under chapter XI of the Bankruptcy
Act and was named debtor in possession and Reinhard on the same date was appointed
general manager by the referee in bankruptcy in charge of the Polly Industries and
Ador proceedings.
Pursuant to Ador's chapter XI petition, a plan of arrangement was approved by the
bankruptcy court. This plan provided, among other things, for Reinhard to repur-
chase the original stock of Ador.
On June 7, 1963, the bankruptcy court entered an order authorizing Reinhard to
service as general manager of Ador.
By the time Reinhard arrived at the plant about 3.45 p.m. on Friday, June 7, 1963 ,6
all the nonsupervisory employees had been laid off, their wages paid in full, and they
had left the plant. Reinhard's first official act as general manager of Ador was to
discharge Elwood Buck, the then general manager and vice president, and all Ador's
sales and engineering departments employees.
On June 10 most, if not all, the employees who were laid off on June 7 returned to
the plant to ascertain when they might be recalled to work. None of these employees
were permitted inside the plant. Reinhard met them at the gate and informed them
that he could not employ them until he had succeeded in securing a bank loan, adding
4 At the request of Respondent's counsel the time to file briefs was extended to
June 15, 1964
50n June 11, 1964, the General Counsel filed a motion to correct a certain inaccuracy
appearing in the stenographic transcript of the hearing The motion is hereby granted
and the motion papers, copies of which had been duly served upon the counsel for the
Union and upon Clarence L. Brown, are received in evidence and marked "Trial Examiner's
Exhibit No 1 "
Unless otherwise noted, all dates hereinafter mentioned refer to 1963.
ADOR CORPORATION 1663
that he would call the laid -off employees as soon as jobs opened up . Reinhard, how-
ever, did rehire that day, June 10, a few employees to perform maintenance work.-
Thereafter, from time to time, a few additional employees were rehired as work
became available.
B. The pertinent facts
Uncontroverted credited evidence establishes that at all times material the Union
was, and still is, the duly designated collective-bargaining representative of all Ador's
production and maintenance employees engaged in the fabrication of iron, steel, metal,
and other products, excluding office or- clerical employees, draftsmen, engineering
employees, watchmen, guards, truckdrivers, tool-and-die makers, erection workers,
installation and construction employees, and supervisors as defined in the Act. Uncon-
troverted credited evidence also establishes that the aforesaid employees who were,
and still are, represented by the Union during all times material constituted , and still
constitute, a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
The record is clear, and I find, that on June 7 Reinhard, immediately after being
appointed general manager of Respondent , decided to discontinue manufacturing
Respondent 's window and inexpensive door lines. The record is also very clear, and
I also find, that this decision of Reinhard was made without notice to , or consultation
with , the Union and that said decision was promptly put. into effect . In addition, at
the same time, Reinhard directed that no new orders be accepted for any item of the
discontinued lines.
Despite Reinhard's instructions not to accept any new orders for any windows or
inexpensive doors, production of these articles continued , but on a limited scale; that
is to say, production of said articles was confined to filling those orders which were on
hand as of June 7. These orders were filled within a period of about 60 or 90 days
after Reinhard took over as general manager on June 7. During this 60- or 90-day
period, Respondent discharged 14 bargaining unit employees who were employed in
the discontinued lines departments.
The following named 14 employees were laid off on the dates indicated because the
inexpensive door and window operations were discontinued:
Adolph Amerillos-------------------------------. September 13, 1963
Charles R. Bourdillon ----------------------------- September 13, 1963
John H. Boyle----------------------------------- June 7, 1963
Arthur Van Bruggen----------------------------- October 4, 1963
Talley Burgin ----------------------------------- September 11, 1963
Wanda J. Dear---------------------------------- September 13, 1963
Henry J. Di Eugenio-----------------------------. June 7, 1963
Bessie K. Giggenbach----------------------------- September 23, 1963
Jessie T. Harter---------------------------------- September 13, 1963
Leonard J. Ingro--------------------------------- June 7, 1963
John Lemieux----------------------------------- June 7, 1963
James R. Scribner-------------------------------- October 4, 1963
Ethel Stearman---------------------------------- October 4, 1963
Rudolph Wills ----------------------------------- September 13, 1963
At the time of the last layoff in October 1963 there were 25 to 30 employees in the
bargaining unit as compared to 55 on June 7, 1963. At the time of the hearing, the
bargaining unit personnel had returned to 53.
On or about June 10, Harry Mulkey, the then chief steward at Respondent's plant,
telephoned Norman Willerford, the then Union's assistant business agent,7 and told
Willerford that Respondent was going into bankruptcy and he feared a general layoff
would occur. When Willerford asked if any employees had been laid off, Mulkey
replied in the negative. Willerford then told Mulkey to stand by and see what would
happen and, in the interim, he would attempt to ascertain what Respondent's position
was regarding the matter. A few days later, Mulkey again telephoned Willerford and
this time told Willerford that all the production employees, including himself, had
been laid off.
On or about June 11,8 Willerford visited the plant and conferred with Reinhard.
Regarding this conference, Willerford testified that: He and Reinhard conferred
alone; he opened the discussion by asking Reinhard what position Respondent was
4 Willerford's connection with the Union terminated on January 7, 1964
8 The record does not clearly indicate the exact date that Willerford went to the
plant . Upon the entire record I find that he visited the plant on June 11.
775-692-65-vol. 150-107
1664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
taking with respect to the Union; Reinhard replied that as far as he was concerned he
was trying "to put the company back on a paying basis or until the bankruptcy was
taken care of"; he then asked Reinhard about the layoffs of June 10; Reinhard replied
he was just "straightening around and trying to get his bearings to see which way he
was going but the union agreement would be carried out"; Reinhard did not tell him
that Respondent had decided to close its window and inexpensive door operations; and
he thereupon left the plant.
Regarding the meeting referred to immediately above Reinhard testified as follows:
Q. (By Mr. BROWN.) On or about June 10 of 1963 did you see Mr. Willerford?
A. Yes, he came to my office.
Q. Was he brought in by-
A. He was brought in by Mr. Schwab.
Q. All right, and will you tell us what happened?
A. I knew Mr. Willerford from my previous contract with Mr. Willerford.
Mr. Schwab brought him in and introduced him. However, I knew him before.
He said, "Well, Karl, I am glad you are back. What are you going to do?"
And I told him that this place was about in the worst mess that I ever saw a
place in. The company had lost over $2-million dollars and something would
have to be done to correct this situation and that I was here to do just that.
I told him that the window and door line would have to be discontinued and
he said, "Well, how do you intend to go about it?"
I said, "This I don't know. I will have to fly by the seat of my pants."
I said, "Time will tell."
Mr. Willerford left-he was only in my office about five or ten minutes and he
left and went out in the shop and he asked me if he could go in the shop and talk
to the people in the shop and I told him that he could and he said, "Well, Karl,
good luck to you."
He said, "You need it."
He said, "I am happy you are back."
Q. Is there anything else regarding the conversation that you wish to bring in?
A. I think that covers fairly well what I wanted to say.
Regarding the above-mentioned June 11 Willerford-Reinhard meeting, Willie
Schwab, Remhard's brother-in-law and at the time of the aforementioned conversation
the foreman in,the Ador plant, testified that: On June 15 he was appointed plant
superintendent;' on June 10 or 11 Willerford came to the plant and asked him "what
Ador is going to do"; he told Willerford that he did not know; he suggested that
Willerford" discuss the matter with Reinhard; he thereupon took Willerford to Rein-
hard's office and introduced Willerford to Reinhard; he remained about 5 minutes in
Reinhard's office while Willerford was there; when he left Willerford was still with
Reinhard; Willerford asked Reinhard what Ador was planning to do and Reinhard
answered, "What, is going to happen, I don't know yet. But the challenger line 9 is
going to be discontinued."
In the,light of my observation of the conduct and department of Willerford, Rein-
hard, and Schwab and after a very careful scrutiny of the entire record, all of which
has been carefully read and parts of which have been reread and rechecked several
times, and being duly mindful of the contentions of the parties with respect to the
credibility problems here involved, of the fact that in many instances testimony was
given about events which took place many months prior to the opening of the hearing,
I find Willerford's version with respect to his meeting with Reinhard on or about
June 11 to be substantially in accord with the facts. This finding is based mainly, but
not entirely, on the fact that Reinhard and Schwab each gave me the distinct impres-
sion that he was studiously attempting to conform his testimony to what he thought
was to the best interest of Respondent. On the other hand, Willerford impressed me as
being one who is careful with the truth and meticulous in not enlarging his testimony
beyond his memory of what was said and what occurred.'° In accepting Willerford's
version of his meeting with Reinhard on or about June 11, I have given very careful
consideration to Reinhard's testimony regarding certain sworn statements be gave to
Board agents prior to the hearing in this case. He testified, and I find, that in a four-
page handwritten document which he signed and swore to on October 22, 1963, he.
0 The "Challenger" line is also referred to in the record as the "inexpensive door line"
10 This is not to say that at times Willerford was not confused on certain matters
or that there were no variations in his objectivity and convincingness. But it should
also be noted that the candor with which he admitted, during his long and searching
examination, that he could not be certain as to dates, times, or exact words used, only
serves to add credence to what a careful study of his testimony shows that he honestly
believed to be the facts.
ADOR CORPORATION 1665
stated therein, among other things, "A day or two after I moved into Ador as debtor
in possession , Norm Willerford of the Union visited me at Ador. He asked me if I
knew the future plans about Ador. I told him I did not know myself as of now"; that
in said sworn statement he also stated, "This is the only conversation I have had with
any Union representative about the future plans of Ador. At the present time there
has been no decision to change Ador's personal operations in any way"; that in a five-
page typewritten "supplement affidavit" sworn to November 14, 1963, he stated, among
other things, "The letter dated November 8, 1963, from [Clarence] Brown, my labor
relations consultant , to Steinsapir, Attorney, Local 509, Ironworkers Union, was the
first notice given to the Union of the merger or any change of operations. I did not
notify the Union earlier of these plans because I did not know that I was required to do
so"; 11 that in still another "supplement affidavit" of two typewritten pages sworn to
by him on December 11, 1963, he stated, among other things, "I did not notify the
Union of my plans to discontinue the window and inexpensive door operations before
effecting these plans because I did not know that employer was required to notify the
bargaining representative of his employees of these matters. The company had lost
$2,000,000 over a four-year period, and I wanted to take immediate steps to stop this
loss." 12
Sometime between June 14 and 17, Willerford returned to the plant and discussed
with Schwab two grievances which had been presented to Willerford by Respondent
employees.13
Jerry Nemer, Ador's attorney in the chapter XI, Bankruptcy Proceeding, testified,
and I find, that he announced in a formal bankruptcy hearing held on either June 5 or
11, 1963, that if Reinhard understood the management of Ador during the pendency
of the chapter XI proceedings, it was Reinhard's intention to "compress" the opera-
tions. However, there is no credible evidence in the record to indicate that any
representative of the Union was present at the time of Nemer's announcement or that
any union representative had knowledge that Nemer had made such a statement on
either June 5 or 11.
Nemer further testified without contradiction, and I find, that on June 13 and again
on June 14, he spoke on the telephone with Steinsapir. Regarding these telephonic
conversations , Nemer testified, and I credit his testimony, as follows:
I can 't tell you on which date the specific subject matter that I will testify to
took place, but the essence of the two conversations was that Mr. Steinsapir called
me on the 13th, identified himself as the attorney for the employees who were
represented by a union, who had a collective bargaining agreement with Ador,
and advised me that his client had in turn advised him that there were discharges
taking place of employees at Ador, and wanted to know what the story was.
I stated to him that it was imperative that the operation be curtailed. It was
operating at huge losses. It was necessary to phase out, particularly in the two
items which Reinhard thought were defective, and that, under the Bankruptcy
Act, this was not only a right, but it was an obligation of a debtor to prevent
further losses, so that creditors, in the event of a bankruptcy, would not be further
hurt. That was the essence, but we went into quite a lengthy conversation on the
first date because Mr. Steinsapir advised me that he didn't know very much about
bankruptcy law, and I had the feeling that we were not antagonists in any way,
n This letter from Brown, one of the parties who represented Respondent at the hear-
ing, reads as follows. "It is my understanding that on or about November 1, 1962, Ador
merged with Security, and it is my understanding that changes will be made regarding
jobs of production and other matters."
12 Brown was present when Reinhard gave a Board agent the December 11, 1963,
statement. At the conclusion of the signing and swearing to the said affidavit, Reinhard
was given a copy thereof.
I want it distinctly understood that I have never read Reinhard's affidavits referred
to above, either at the hearing or since ; that I have not based any finding in this
Decision upon anything contained in the affidavits except those portions thereof which
were read into the record and about which Reinhard testified. The affidavits, themselves,
were rejected by me upon the objection of counsel for Respondent.
13 Schwab was' appointed plant superintendent on June 15, 1963 The grievances
which Willerford discussed with him concerned the failure of the Respondent to recall
two employees after the general layoff of June 10. The matter was straightened out to
Willerford's satisfaction. Willerford, however, was not informed on that occasion of
Reinhard's decision to discontinue the window and inexpensive door operations or that
more layoffs were forthcoming as a result of such reduced operations In fact, Willer-
ford was given no information that any changes were to be made or when any layoffs
would take place.
1666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and we discussed frankly, as I viewed it, the joint problems that he had and that
we had, and I said I would check further with regard to the Bankruptcy Act, and
particularly the right to reject an executory contract.
On the following day he called me again, or I may have called him, but a con-,
versation took place at which time I advised him that I was satisfied with the law
relating to bankruptcy which gave a debtor or a bankrupt the right to reject an
executory contract , including a collective bargainnig contract , and that I had
viewed the situation as being one in which this debtor had no alternative but to
discharge employees to curtain losses, and that program had to be followed
through on , and he said to me, "Shouldn 't the discharges take place in-order of
seniority?"
I said I would check into it. That was the essence of the telephone conversation.
Frank J. Hudak testified that: he was laid off on June 10; he was appointed a shop,
steward in January 1963; "after [Ador's] bankruptcy was filed" he became chief
steward; he returned to the plant during the week of June 10; he had a conversation
with Superintendent Nagy in which Nagy told him, "There would be some lines discon-
tinued. It was losing money, in the window and door line ." I do not credit Hudak's
testimony. Hudak impressed me as being a very irresponsible witness. This finding
is based mainly , but not solely, on ( 1) throughout his examination he was very
antagonistic to the General Counsel ; (2) sometime in August 1963, Hudak filed a
decertification petition with the Board which petition the Regional Director dismissed
on September 13, 1963, an appeal was taken to the Board from the Regional Director's
dismissal which appeal was pending at the time of the hearing; and ( 3) Hudak testified
that Nagy was the plant superintendent during the week of June 15. On the other
hand, Schwab testified that at that time the superintendent was Steve Nixon. Nagy
was not called as a witness.
Although the collective-bargaining agreement was "struck down" by the Bankruptcy
Court on July 24, 1963, and, in any event, expired its own terms on July 31, 1963,
Respondent observed the provisions of the contract until the expiration date.
On August 14, 1963, at the request of the Union, Ador and the Union met at the
offices of the Union 's counsel . Present thereat were Willerford, Steinsapir, and
William Coleman , representing the Union ; Brown represented Respondent. Brown
testified that he told the union representatives, on that occasion, that Ador might
merge, move, or change its line of products, but that at that time Respondent did not
know what was going to actually happen. Brown further testified that at no time
during this meeting of August 14, 1963, did any union representative make any request
that the Union be notified.in case any production change was to be made or contem-
plated. Brown's testimony regarding the remarks of the Union 's representative at this
meeting is not only belied by the credible testimony of Willerford and of William Neal
Coleman, a general organizer of the Union, but by the correspondence which passed
between Brown and Steinsapir subsequent to the aforesaid August 14, 1963, meeting.
Regarding what transpired at this meeting , Coleman credibly testified as follows:
Q. On August 14, during this meeting , was there any discussion regarding
ADOR's plans and operations?
A. Yes. At this particular meeting he made the statement that he wasn't sure
which way the ADOR Corporation was going to go in the period for about the
next sixty days.
He wasn't positive whether they were going out of business or whether they
were going to sell out or whether they were going to merge, or just what the par-
ticular situation called for.
Q. Do you recall anything else pertaining to these items that was discussed by
either you , the union , or by Mr. Brown?
A. Well, in view of the statement made by Mr. Brown, myself and Mr.
Steinsapir both made statements to Mr. Brown , stating that if there was any con-
templated changes, to be made in the operation of the ADOR Corporation, that
we be notified immediately and we reserve the right to bargain on these issues.
Q. Do you recall what, if anything , Mr. Brown said at this time?
A. Mr. Brown had no comment on this.
Q. At any time during this meeting of August 14 , did Mr. Brown state that
ADOR discontinued its window and inexpensive door operation?
A. No, sir.
Under date of August 23, Steinsapir wrote Brown as follows:
This will confirm the fact that at the negotiations held between your client,
Ador, and our client , Local Union No. 509, at this office on August ' 14, 1963 that
you stated , among other things, as follows:
ADOR CORPORATION 1667
1. You had complete authority to negotiate and sign a collective bargaining
agreement on behalf of Ador Corporation.
2. At that time you did not know how long Ador was going to continue in
business , how long it was going to retain its present'complement of employees,
specifically those represented by Local Union No. 509, or any of its future plans
beyond the next sixth [sic] days.
We are certain that you are cognizant-of a recent Labor Board decision cap-
tioned ESTI NEIDERMAN, et al. dba STAR BABY CO., 140 NLRB No. 67
(1963) which holds that an employer violates the Labor Management Relations
Act, as Amended, by refusing to bargain with the Union when it unilaterally
terminates a business without consulting the Union. This obviously means that
an employer would also violate the LMRA by unilaterally merging his business
with another business, selling his business, or taking any steps in changing his
business in any manner without consulting the Union.
Obviously, neither of us are desirous of having this matter resolved by the
Board when it can be done amicably. Please advise us of any proposed changes
in the formation or future conduct of your business. We will be happy to meet
with you and bargain concerning same.
Under date of August 24, 1963, Brown wrote Steinsapir as follows:
In reference to your letter dated August 23, 1963 your point No. 1 is correct.
Your point No. 2 needs clarification: In order that all the parties concerned
know certain facts I informed the parties that Ador Corporation was just emerg-
ing from a bankrupt position and that about sixty to ninety days would be
required to clean up commitments under the Court Ruling; once this is accom-
plished the Company is not certain as to its future operation ... that the Com-
pany could close down or it may be sold or it may merge or it may change its
products or its methods of manufacturer or it may continue as is (in other words)
the Company may or may not continue in the future exactly as it has in the past-
change certainly is possible. Nothing is contemplated regarding employees
specifically those represented by Local Union No. 509.
Should the Company terminate you will be notified and unless conditions
change regarding representation bargaining will take place; similarly regarding
merging, selling and changing should such also be applicable under the National
Labor Relations Board rulings.
The above occupied a minor position in the negotiations that you refer to, our
greatest concern was with Collective Bargaining items pertaining to wages, hours
and working conditions in the proposal submitted by Local No. 509 and the
Company's position regarding same.
Under date of August 26, 1963, Steinsapir replied to Brown's letter of August 23
as follows:
Thank you for your prompt reply to my letter of August 23, 1963. As you
know, I explained to you in negotiations on August 14, 1963, that since Mr. Rein-
hard had purchased Ador by virtue of an agreement between Poly Industries,
Security First National Bank, and Reinhard on June 5, 1963, that your position
concerning Ador was incorrect. The bankruptcy has nothing whatsoever to do
with the present situation, as Ador is now completely owned and controlled by
Reinhard as set forth in the aforesaid agreement.
Contrary to your statement in the last paragraph of your letter of August 24, a
very important point in the negotiations, as fas as Local 509 is concerned, is the
future plans of Ador Corporation. I understand from your letter that you
intend to notify Shopmen's Local Union No. 509 after management makes a deci-
sion to merge Ador with another company, to sell Ador, or to change the opera-
tions of Ador in some manner. I further understand your position that you do
not intend to bargain with Local 509 concerning the future course of the com-
pany's operation, but that you will notify us when said change or changes have
taken place. Again we request that you advise us immediately of any contem-
plated changes in your operation including, but not limited to, merging, selling, or
changing it in any manner, so that we may bargain concerning same.
If we do not hear from you within five days concerning the above, we shall
assume that the aforesaid correctly reflects your position and your understanding
of your remarks. Of course, if the above does not correctly reflect same, please
advise us at your earliest convenience.
Under date of August 28, 1963, Brown wrote Steinsapir as follows:
This letter of yours dated August 26, 1963 is ridiculous; the least that can be
done is to stick with the facts .... it appears that you are attempting to establish
1668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some kind of a record (erroneous as it is) or "building a record" (perhaps with
some idea of filing some charge at the Board)-and/or some kind of a "make
work" program.
Your statement regarding bankruptcy is completely out of context and carries
no such meaning as you have indicated.
Your statement that this office does not intend to bargain with Local #509
is wrong; as we have had another negotiation session scheduled for September 4,
1963 for over a week now ... had you consulted your client on this matter you
would not have made the statement you did regarding negotiations. i
Other items in your letter which do not bring these simple matters in their
proper relationship (or truthfully) are so numerous I just am not going to take
the time to refute or clarify each and all.
One additional point not referred to in your letter dated August 26, 1963
but does refer to my telephone call to you August 27, 1963 wherein I told you
it was my understanding that some sort of a petition had been circulated by the
employees of Ador Corporation and just about 100% of the employees signed
such petition purportedly indicating they no longer wish to remain members or
become members of Local # 509; and that I did not know what ,was to be done
with this petition-if anything. Of course until representation is challenged
and determined this office plans to negotiate with Local # 509.
Please, let us have no more of these "foxy" letters as yours dated August 26,
1963.
Under date of August 30, 1963, Steinsapir wrote Brown as follows:
The comments set forth in your letter of August 28, 1963 are certainly unwar-
ranted. We are satisfied that our correspondence and negotiations will speak for
itself.
We are ready, willing and able to bargain concerning the future conduct of
the Ador Corporation. In other words, we have requested, on numerous occa-
sions, that you bargain concerning whether Ador will merge, sell the business
or take any steps in changing the business in any manner.
May we have a simple answer to this simple question?
Under date of September 4, 1963, Brown replied to Steinsapir's letter of August 20
as follows:
This office is in receipt of your letter dated August 30, 1963. Please be
advised bargaining will take place on all pertinent matters; and should the
Company make the changes you describe Local 509 will be advised providing
there has been no change regarding representation.
As you know certain action has been filed with the National Labor Relations
Board which may concern itself with representation.
Mr. Coleman and this office had a negotiation session scheduled for this
date and Mr. Coleman and this office have mutually agreed to cancel this meet-
ing because of the above referred to filing and because of the meeting scheduled
by the Labor Board regarding this matter.
Depending upon Board Action further negotiation sessions will be scheduled.
Under date of November 8, 1963, Brown wrote Steinsapir as follows:
It is my understanding that on or about November 1, 1963 Ador merged
with Security: and it is my understanding that changes will be made regarding
jobs and products and other matters.
A careful perusal of the correspondence between Brown and Steinsapir, referred
to immediately above, clearly shows that Steinsapir not only pointed out to Brown
that it was Respondent's statutory duty to meet with the Union and to bargain with
it with regard to any major changes which Ador might make in its business opera-
tions but he also suggested that Brown so advise his client. In fact, Brown, himself,
realized Ador's statutory duty to advise the Union of any contemplated changes in
its business operations for in his letters to Steinsapir dated August 24 and September 4,
1963, Brown specifically stated that the Union would be informed of any changes
in Ador's business operations. Despite these assurances, it was not until Novem-
ber 8, 1963, that the Union and/or Steinsapir was advised that Ador intended to
make any operational changes. In the letter of that date, which is quoted above,
Brown informed Steinsapir "changes will be made regarding jobs and products and
other matters." This so-called "notice" came at a time when the discontinuance of
the window and inexpensive door operations was an accomplished fact.
ADOR CORPORATION 1669
At no time prior to November 8, 1963, did any representative of Ador offer to
negotiate or consult with any union representative about the discontinuance of the
window and inexpensive door operations. In fact,' at no time did Ador ever offer to
negotiate or discuss with any union representative regarding the manner in which
employees should be selected for layoff or discharge as a result of the discontinuance
of the window and inexpensive door operations.
C. Concluding findings
It is undisputed that the Union during all times material was the statutory collective-
bargaining representative of the employees here involved. It thus follows that any
change by Respondent in the terms and conditions of employment of those employees
without prior notice to or consultation with the Union constitutes a refusal to bar-
gain within the meaning of Section 8(a) (5) and (1) of the Act.
Respondent takes the position that the determination to unilaterally discontinue
the window and inexpensive door operations was not violative of the Act because
(1) such acts and conduct were a matter of managerial prerogatives; (2) under the
provisions of the contract which was in effect between the Union and Respondent
on June 7, the date of the decision to discontinue the window and door operations,
expressly reserved to Respondent the right to take precisely the action it did take;
and (3) the Union at no'time after the discontinuance of the two operations here
involved, if it felt aggrieved by such action of Ador, should have invoked the griev-
ance procedure provided for in the aforementioned collective-bargaining agreement.
As to (1), the controlling law is basically as the Tenth Circuit pointed out in
N.L.R.B. v. Brown-Dunkin Company, Inc., 287 F. 2d 17, regarding a case very simi-
lar to the instant one as follows:
The contention is also made that the respondent did not deny the Union the
right to bargain concerning the terms and conditions of employment in violation
of Section 8(a) (5). The unassailed facts are, however, to the contrary. While
the Union appears to have had some intimation of the impending Anderson-
Rooney contract, it was not until the morning of the effective date of the con-
tract that the Union learned it had been consummated. And this information
was obtained through the, employees, not the employer. Under no stretch of
the imagination can it be said that these circumstances gave the Union a fair
opportunity to bargain with respondent about not subcontracting the work, or
with Anderson-Rooney concerning the conditions of the new employment.
This is not to say that the Union must first approve before an employer may
contract out work, but it is to say that reasonable notice and a chance to bar-
gain must be afforded before an employer enters into a contract affecting the
hire or tenure of its Union workers' employment. This is so because "Such
unilateral action minimizes the influence of organized bargaining. It interferes
with the right of self-organization by emphasizing to the employees that there
is no necessity for a collective bargaining agent." May Dept. Stores v. N.L.R.B.,
326 U.S. 376, 385. See also N.L.R.B. v. Crompton-Highland Mills, 337 U.S.
217; N.L.R.B. v. Burton-Dixie Corp., 210 F. 2d 199 [C.A. 10].
As to (2), I am not unmindful of the fact that a labor organization may waive the
statutory rights granted to it and to the employees it represents, but the Board has
said that it will not likely infer such a waiver. The waiver, the Board said, must be
in clear and unmistakable terms. Tide Water Association Oil Company, 85 NLRB
1096; Hekman Furniture Company, 101 NLRB 631.
At the hearing and in its brief Respondent contended that section 6(A) of the
collective-bargaining agreement in force on June 7, 1963, the date of Reinhard's
decision to discontinue the window and inexpensive door operations, expressly
reserved to the Company the right to take precisely the action it did take in this case.
This section reads as follows:
The management of the Company's plant and the direction of its working
forces, including the right to establish new jobs, abolish or change existing jobs,
increase or decrease a number of jobs, change materials, processes, products,
equipment and operations shall be vested exclusively in the Company, .
Subject to the provisions of this agreement, the Company shall have the right
to schedule and assign work to be performed and the right to hire or re-hire
employees, promote, recall employees who are laid off, demote, suspend, disci-
pline or discharge for proper cause, transfer or lay off employees because of
lack of work or other legitimate reasons, it being understood, however, the
Company shall not discipline or discharge an employee except for proper cause,
or otherwise improperly discriminate against an employee.'
1670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The so-called management rights clause in section 6(A) of the collective`bargaining
agreement , as set forth above, does not spell out a waiver of negotiations over
Respondent's decision to discontinue its window and inexpensive door operations.
The issue here is not Respondent's decision to discontinue certain of its business
operations. Rather, the issue is whether the Act gives to the Union the absolute
right to be notified and consulted regarding Ador's decision to discontinue certain
of its business operations and to afford the Union an opportunity to bargain about
such changes before they become an accomplished fact. It is thus clear that section
6(A) of the contract cannot be construed as a waiver of this right. This is so
because Respondent's decision resulted in the change of working conditions which
resulted in the termination of 14 employees after their jobs had been discontinued
and the Union had the right under the Act to be notified and consulted regarding
these terminations unless it had waived such right. The mere fact'that' 10 months
after its unilateral decision Respondent rebuilt its work force to where it was numer-
ically comparable to what it had been before this decision to discontinue the two
operations in no way alters the effect of the decision on the terms and conditions of
employment of the 14 affected employees and in no way relieves Respondent from
its statutory duty to bargain within the meaning of Section 8(a)(5) and 8(d) of
the Act. Town & Country Manufacturing Company, Inc., 136 NLRB 1022, enfd.
316 F. 2d 846 (C.A. 5); Fibreboard Paper Products Corporation, 138 NLRB 550,
enfd. sub nom. East Bay Union of Machinists, Local 1304, etc. v. N.L.R.B., 322 F.
2d 411 (C.A.D.C.). See also Smith Cabinet Manufacturing Company, Inc., 147
NLRB 1506; Royal Plating and Polishing Co., Inc., 148 NLRB 545.
As to (3), the grievance procedure does not constitute a waiver, or bar of any
sort. Hekman Furniture Co., supra; Smith Cabinet Manufacturing Company, supra;
N.L R.B. v. Benne Katz, etc, d/b/a Williamsburg Steel Products Co., 369 U.S. 736;
Timken Roller Bearing Co. v. N.L R.B., 325 F. 2d 746 (C.A. 6). The grievance
procedure and arbitration provided for in the contract is not a forum in which to
determine what constitutes a waiver of rights estabished by the Act. Furthermore,
the processing of a grievance after the Act had been accomplished is not an adequate
substitute for full and open negotiation prior to the decision and effectuation of the
change. It is this factor of anticipatory negotiations that the Board emphasized in
Town & Country, Fibreboard, and in Smith Cabinet Manufacturing Company as
being necessary and meaningful for collective bargaining.14
Furthermore, even accepting arguendo, Reinhard's testimony that he told Willer-
ford on June 11, 1963, that the window and inexpensive door lines would have to
be discontinued, Respondent failed to meet its statutory obligations to notify and
consult with the Union concerning its decision. Reinhard's statement was too casual
and too vaguely worded to be significant.15 In fact, Reinhard's statement consti-
tuted no more than an announcement that some yet uncertain step was contemplated
by Respondent at some unknown time in the future. The actual fact that a final
decision had already been made and said decision was in the process of being imple-
mented was concealed from the Union.
Nor did the statement of Nemer to Steinsapir on June 13 or 14, 1963, fulfill
Respondent's statutory obligation to the Union. In substance, Nemer said only that
it was necessary for Ador to "phase out" two operations which were defective and
costly. There is no clear and unmistakable announcement of what these changes
were to be, when they would take place, or who would be affected by them. Again,
there was no offer to negotiate these changes with the Union
In addition, the Union reiterated its request for information from Respondent
during the bargaining session on August 5, 1963, and in the ensuing exchange of
correspondence between Brown and Steinsapir. From the foregoing, three items
are clear: (1) the Union as late as September 4, 1963, had not been notified and
had no knowledge of the discontinuance of the window and the inexpensive door
operations; (2) Respondent continued to conceal its decision to discontinue these
operations from the Union; and (3) the Union never waived its right to bargain
about these changes insofar as they affected the bargaining unit employees.
Brown's final letter to Steinsapir, dated November 8, 1963, in which Brown stated
that Ador would be making changes in products, jobs, and other matters, did not
16 See Adams Dairy, Inc., 137 NLRB 815, affd. 322 F. 2d 553 (C.A. 8) ; Carl Rochet
at at, doing business as The Renton News Record, 136 NLRB 1294; American Manufac-
turing Company of Texas, 139 NLRB 815; Hawaii Meat Company, Limited, 139 NLRB
966; Esti Neiderman, at at, doing business as Star Baby Co, 140 NLRB 678; Brown
Transport Corp., 140 NLRB 954; National Food Stores, Inc., 142 NLRB 340; North-
western Publishing Company, 144 NLRB 1069.
15 See Servette, Inc., 133 NLRB 132, 137.
ADOR CORPORATION 1671
fulfill Respondent's statutory obligation. By the time Brown made this vague and
misleading announcement, the window and inexpensive door lines had been discon-
tmued and 14 employees had been terminated. This was the final step in the course
of conduct which Respondent had engaged in since June 7, 1963, and which effec-
tively obstructed. the Union's effort to obtain timely and meaningful negotiations.
Not only, were Respondent's replies concealments indicia of bad faith, but they. in'
themselves constituted a refusal to bargain within the meaning of Section 8(a) (5) of
the Act.
Accordingly, I find,- upon the entire record in the case, that Respondent did not
bargain with the Union as a statutory representative of its employees in the appro-
priate unit and thus has engaged in unfair labor practices within the meaning of
Section 8(a)(5) of the Act. I further find that by the foregoing, Respondent has
interfered with, restrained, and coerced its employees in the exercise of the rights
guaranteed by Section 7 of the Act, within the meaning of Section 8(a)(1) thereof.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the business operations of Respondent as described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and such of them as have been found to constitute unfair labor
practices, tend to lead to' labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and is engaging in unfair labor
practices violative of Section 8 (a) (5) and (1) of the Act, I will recommend that it•
cease and desist therefrom and take certain affirmative action designed to effectuate
the policies of the Act.
Having found that Respondent failed and refused to fulfill its statutory bargaining
obligations within the meaning of Section 8(a) (5) and (1) of the Act, when, without
prior notice to or consultation with the Union, it discontinued its window and inex-
pensive door operations and terminated 14 of its employees who had performed
work in those departments prior to said discontinuance, thus violating the Act, I
will recommend that Respondent be ordered to bargain with the Union respecting
such discontinuance.
Having also found that Respondent terminated the aforesaid 14 employees with-
out prior notice to, or consultation with, their statutory collective-bargaining repre-
sentative, I will recommend that Respondent be ordered and directed to take appro-
priate steps to reinstate the aforementioned 14 men at the same wages and working
conditions without prejudice to their seniority or rights and privileges and make
each whole for any loss of earnings. It is important to note in this connection that
an order reinstating the aforesaid 14 employees by Respondent and making them
whole for loss of earnings is warranted on the basis of the 8(5) violations of the
Act found above. In order, therefore, to adapt the remedy to the situation which
calls for redress and to give substance to the remedial order to bargain, it is neces-
sary to restore the status quo ante without which effective bargaining in behalf of
the 14 employees here involved cannot be conducted. The broad remedial powers
invested in the Board by the Act afford ample authority in the Board to order
Respondent to reinstate the said 14 employees to the jobs they held immediately
prior to their discriminatory discharges, or to substantially equivalent jobs, and
give them backpay with interest thereon at the rate of 6 percent per annum where
the deprivation of employment status is a consequence of a Section 8(a) (5) viola-
tion Backpay and interest are to be computed and paid in accordance with and in a
manner set forth in F. W. Woolworth Co., 90 NLRB 289, and in Isis Plumbing &
Heating Co., 138 NLRB 716.
The unfair labor practices found to have been engaged in by Respondent are of
such a character and scope that in order to insure Respondent's employees of their
'full rights guaranteed them by the Act it will be recommended that Respondent
cease and desist in any maner interfering with, restraining, and coercing its employees
in their exercise of the rights of self-organization.
Upon the basis of the foregoing findings of fact and upon the record as a whole,
I make the following:
'CONCLUSIONS OF LAW
1. Respondent is, and during all times material was, an employer engaged in
commerce and in a business affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
1672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Shopmen's Local 509, International Association of Bridge, Structural and Orna-
mental Ironworkers is, and during all times material was, a labor organization
within the meaning of Section 2(5) of the Act.
3. All employees covered by the contract between Ador and the Union which was
in effect on June 7, 1963, during all times material constituted, and now constitute, a
unit appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
4. At all times material the Union has represented the majority of employees in
the appropriate unit and by virtue of Section 9(a) of the Act has been, and now is,
the exclusive representative of all the employees in the aforesaid appropriate unit
for the purposes of collective bargaining with respect to grievances, labor disputes,
rates of pay, wages, hours of employment, and other terms and conditions of
employment.
5. By refusing to answer all pertinent inquiries on and after June 7, 1963, of the
Union and of its counsel about Ador's intention to discontinue any of its operations,
Respondent has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a) (1) and (5) of the Act.
6. By unilaterally discontinuing its window and inexpensive door operations on
June 10, 1963, Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a) (1) and (5) of the Act.
7. By refusing to discuss and negotiate with the Union on and after June 7, 1963,
its intention to discontinue its window and inexpensive door operations, Respondent
has engaged in and is engaging in unfair labor practices within the meaning of Sec-
ton 8 (a)( 1 ) and (5) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Structural Steel and Bridge Painters of Greater New York,
Local 806, AFL-CIO and Steele & Associates, Inc. Case No.
29-CD-6 (formerly 2-CD-307). February 10, 1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the National Labor
Relations Act, as amended, following a charge filed by Steele &
Associates, Inc., herein called the Employer, alleging that the Struc-
tural Steel and Bridge Painters of Greater New York, Local 806,
AFL-CIO, herein called the Painters, had violated Section 8(b) (4)
(D) of the Act. Pursuant to notice, a hearing was held before
Hearing Officer Jacques Schurre between August 19 and October 19,
1964. The Employer, the Painters, and United Slate, Tile and
Composition Roofers, Damp & Waterproof Workers Association,
Local Union No. 8, herein called the Waterproofers, appeared at
the hearing and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to adduce evidence bear-
ing on the issues.' The rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the
National Labor Relations Board has delegated its powers in connec-
i Waterproofers Local Union No. 154 did not enter an appearance at the hearing.
150 NLRB No. 164.