Bridgford Distributing Co.

National Labor Relations Board - Board Decisions

May 16, 1977

229 N.L.R.B. 678 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bridgford Distributing Co. and General Teamsters
and Food Processing Local Union No. 87, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Case 31-
CA-5664
May 16, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On April 22, 1976, Administrative Law Judge
Russell L. Stevens issued the attached Decision in
this proceeding. Thereafter, General Counsel and
Respondent filed exceptions to the Decision and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
We agree with the Administrative Law Judge that
Respondent violated Section 8(a)(5) of the Act by
refusing to bargain with General Teamsters and
Food Processing Local Union No. 87, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, regarding the effects of
its decision to transfer the Bakersfield operation.
However, we disagree with the Administrative Law
Judge's conclusion that Respondent's accelerated
transferring of the Bakersfield operation, because of
Local 87's claim that the employees there were
covered by an existing contract with another Team-
sters local, did not violate Section 8(a)(3) and (1) of
the Act.
Respondent began its Bakersfield operation in
April 1974 when Arlin Fletcher and Daniel Donati
were hired as route salesmen for that area. Prior to
that time, Respondent's Bakersfield customers were
serviced by route salesmen based in Fresno, Califor-
nia. The entire Bakersfield operation consisted of an
answering service, refrigeration facilities, and some
parking spaces. Beginning in September or October
1974, Respondent's business started a downward
trend which continued through 1975. As a result,
Respondent's management discussed the possibility
of consolidating some of its operations in order to
reduce expenses. The sales figures for the Bakersfield
routes were consistently below the break-even point.
In May 1975,1 Respondent's management decided to
transfer its Bakersfield routes back to the Fresno
operation. The customers would remain the same.
The only difference would be that they would be
serviced out of Fresno. Pursuant to this plan, in May
the area sales manager for the San Joaquin Valley,
Stan Hammett, was told to move from Modesto to
Fresno. Hammett made the move on or about
September 12.
As of August, the Bakerfield employees were not
represented by a collective-bargaining agent. In the
middle of that month, Local 87, the Charging Party,
was contacted by Fletcher and Donati after Fletcher
learned that Respondent's Anaheim employees
received $50 per week more base pay under a
contract with another Teamsters local, Local 952. On
August 20, after making a determination (apparently
later discovered to be erroneous) that the Anaheim
local's contract applied to the Bakersfield operation,
Local 87's business representative, Robert Chandler,
telephoned Respondent's president, Orin Adams.
They engaged in a rather heated conversation, during
the course of which Chandler informed Adams that
he felt that the Bakersfield employees were covered
by the Anaheim contract with Local 952. Adams
responded that he knew nothing of Local 87 and
questioned its jurisdiction over Bakersfield.
On August 22, Chandler wrote one of Respon-
dent's principal owners, Allen Bridgford, stating that
there was a difference of opinion concerning applica-
tion of the Anaheim contract. Chandler's letter
concluded as follows:
I am in hopes we may clear this matter up without
a serious problem. Would you be so kind as to
straighten this matter out and I would like to hear
from you in the near future as to your position
regarding this matter.
On August 27, Bridgford replied that Respondent
had operated the Bakersfield routes as part of the
San Joaquin Valley division headquartered in Fresno
but saw "no reason why we shouldn't have a contract
in Bakersfield, if you feel this is the proper proce-
dure." Bridgford also requested a few days to figure
out the situation and a copy of the contract that
Local 87 used in Bakersfield for Teamsters drivers.
On August 29, Chandler wrote to Bridgford, for-
warded a copy of the Anaheim contract, reiterated
his position that the contract then applied to
Bakersfield and was being violated by Respondent,
and concluded, "Please state your position so we
may resolve this matter." Respondent never an-
swered this letter.
i All dates hereinafter are in 1975 unless otherwise indicated.
229 NLRB No. 96
678
BRIDGFORD DISTRIBUTING CO.
On September 2, Adams told Fletcher that the
Bakersfield operation was going to move to Fresno
and to consider that his 30-day notice. On October 3,
Hammett told Fletcher and Donati that the Bakers-
field operation was being transferred to Fresno in I
week. He offered both of them jobs in Fresno, which
they declined. The Bakersfield operation was trans-
ferred to Fresno on October 10.
The Administrative Law Judge found that the date
of the transfer of the Bakersfield operation was
accelerated because of Local 87's claim that Bakers-
field employees were covered by Respondent's
contract with Local 952 in Anaheim. Indeed, Adams
admitted that the date he selected for the move to
Fresno was based on his desire to avoid the higher
wages Chandler claimed was due to Fletcher and
Donati under that agreement. Nevertheless, the
Administrative Law Judge concluded that the accel-
eration of the transfer date does not constitute a
violation of the Act because the transfer was
primarily due to economic reasons and Adams was
not motivated by a desire to interfere with the
Section 7 rights of Fletcher and Donati. We cannot
agree.
It is well settled that an employer who accelerates a
decision to transfer unit work in order to avoid
recognition of, and bargaining with, the collective-
bargaining representative of its employees is in
violation of Section 8(a)(3). This is the case even
where the initial decision to effect the transfer is
based on legitimate economic considerations.2
As noted above, Respondent's president, Adams,
admitted that Local 87's claim for higher wages
under Respondent's contract with the Anaheim
Teamsters local influenced his decision to transfer
the Bakersfield operation on the date which he did.
The fact that Local 87's demands would have added
to Respondent's bleak economic picture, if substanti-
ated, does not overcome the inherently destructive
effect of its precipitate action on the Section 7 rights
of its employees. Respondent acted on the mere fear
that Local 87's demands would cause an unbearable
increase in its expenses. There was no realization of
these demands. Rather, Respondent accelerated the
transfer and moved to Fresno in order to avoid
bargaining with Local 87 over the applicability of the
Anaheim contract to its Bakersfield operation. This
2 Ethel J. Hinz, as an Individual and as Executrix of the Estate of Lester F
Hinz, d/b/a Myers Ceramic Products Co., 140 NLRB 232 (1962); Ox-Wall
Products Manufacturing Co., Inc.. et al., 135 NLRB 840 (1962). As in Myers
Ceramics, supra, we respectfully disagree with the circuit court decisions
relied on by the Administrative Law Judge.
We find that McLoughlin Manufacturing Corporation, et al., 164 NLRB
140 (1967), 182 NLRB 958 (1970) (Supplemental Decision and Order), also
relied on by the Administrative Law Judge, is distinguishable. That case
involved the question of whether the respondent's initial decision to move
was motivated by economic considerations or by union animus, and the
is no less a violation of Section 8(a)(3) than would be
a transfer because of union activities.
Accordingly, we find that by accelerating to
October 10, 1975, the transfer of its Bakersfield
operation to Fresno, and the resulting termination of
Fletcher and Donati, Respondent violated Section
8(a)X3) and (1) of the Act.
THE REMEDY
Having found the Respondent has engaged in
unfair labor practices proscribed by Section 8(a)(5),
(3), and (1) of the Act, it will be ordered that
Respondent cease and desist from such conduct and
take certain affirmative action designed to effectuate
the policies of the Act.
As recommended by the Administrative Law
Judge, Respondent will be ordered to bargain, upon
request, with General Teamsters and Food Process-
ing Local Union No. 87, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, as the exclusive representative of the
discharged Bakersfield drivers, Arlin Fletcher and
Daniel Donati, with respect to the effect on said
employees of Respondent's transfer of its Bakersfield
operation.
Contrary to the Administrative Law Judge, we
have found that on October 10, 1975, Respondent
discriminatorily accelerated the transfer of its Bak-
ersfield operation in violation of Section 8(aX3) and
(1). The evidence indicates, however, that, absent
unlawful motivation, the Respondent would have
transferred the Bakersfield operation at a subsequent
time for economic reasons. Therefore, Respondent
shall not be required to reestablish the Bakersfield
operation. We are unable to determine on the record
before us the date on which the transfer would have
occurred. Accordingly, we shall leave for the compli-
ance stage of this proceeding the determination of
the date on which the discriminatees would have
been required to relocate to Fresno or terminate
employment with Respondent absent the unlawful
motivation. We shall direct that Respondent bargain
with the Union with respect to whether Fletcher and
Donati may, if they desire, transfer to other positions
in Respondent's organization and as to the method,
terms, and conditions upon which such transfers, if
any, be made. We shall also require the Respondent
Board concluded there that economic considerations rather than any union
animus were controlling. That case, unlike the present one, did not concern
acceleration of a decision previously made in order to avoid bargaining with
a new union. Moreover, in this case, the employees' union activities or
bargaining representative were in no way a factor in the economic
difficulties which led Respondent to the initial decision to transfer the
operation. Rather, having valid nonunion-related reasons for transferring
the operation. the Respondent accelerated the date of the transfer because
of Local 87's demands for bargaining.
679
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to make said employees whole for any losses of pay
or other benefits they may have suffered by reason of
the unlawful discrimination against them by pay-
ment to each of them a sum of money each would
have earned from October 10, 1975, to the date on
which we would have been terminated for nondis-
criminatory reasons, less his net earnings elsewhere.
Such loss of earnings and benefits shall be computed
on a quarterly basis in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), and shall
include interest at the rate of 6 percent per annum as
provided for in Isis Plumbing & Heating Co., 138
NLRB 716 (1962). We shall also order the Respon-
dent to preserve and, upon request, make available to
the Board or its agents payroll and other records
necessary to determine employment rights and the
amount of backpay due.
CONCLUSIONS OF LAW
1. Bridgford Distributing Co., Respondent here-
in, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. General Teamsters and Food Processing Local
Union No. 87, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning
of Section 2(5) of the Act.
3. The following unit is an appropriate unit
within the meaning of Section 9(b) of the Act:
All drivers employed by the Employer in Bakers-
field, California; excluding all office clerical
employees, guards and supervisors as defined in
the Act.
4. The above-named labor organization is, and
has been since August 23, 1975, the exclusive
representative of all employees in the aforesaid
appropriate unit, for the purposes of collective-
bargaining within the meaning of Section 9(a) of the
Act.
5. By accelerating the transfer of its Bakersfield
operation in order to avoid negotiations with the
Union, Respondent has engaged in discrimination
with regard to the hire and tenure of employment of
Arlin Fletcher and Daniel Donati within the mean-
ing of Section 8(a)(3) and (I) of the Act.
6. Respondent engaged in unfair labor practices
in violation of Section 8(a)(5) of the Act by
transferring its Bakersfield, California, business
operation without bargaining with the Union relative
to the effects of such transfer on the Bakersfield unit
employees.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Bridgford Distributing Co., Los Angeles, California,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in General Team-
sters and Food Processing Local Union No. 87,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any
other labor organization of its employees, by discrim-
inating in regard to their hire or tenure of employ-
ment or any terms or conditions of employment.
(b) Failing or refusing to bargain collectively with
General Teamsters and Food Processing Local
Union No. 87, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, concerning the effects of transferring its
Bakersfield, California, business operations on Re-
spondent's employees in the following appropriate
unit:
All drivers employed by the Employer in Bakers-
field, California; excluding all office clerical
employees, guards and supervisors as defined in
the Act.
(c) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of their
rights to self-organization, to form, join, or assist
labor organizations, including the above-named
organization, to bargain collectively through repre-
sentatives of their own choosing, to engage in
concerted activities for the purpose of collective-
bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
2. Take the following affirmative action, which
we find will effectuate the policies of the Act:
(a) Make whole Arlin Fletcher and Daniel Donati
for any losses they may have suffered by reason of
Respondent's discrimination against them in the
manner set forth in the remedy section of this
Decision.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
work lists, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Upon request, bargain with the above-named
labor organization as the exclusive labor representa-
tive of all employees in the aforesaid appropriate unit
with respect to the effect on said employees of
680
BRIDGFORD DISTRIBUTING CO.
Respondent's transferring of its Bakersfield, Califor-
nia, business operations.
(d) Post at its six division offices in California
copies of the attached notice marked "Appendix." 3
Copies of said notice, on forms provided by the
Regional Director for Region 31, after being duly
signed by an authorized representative of the
Respondent, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that the
notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
MEMBER MURPHY, concurring in part: 4
I dissent from the finding that the Respondent
violated Section 8(a)(3) and (1) by accelerating the
closing of its Bakersfield operation.
The record clearly indicates that the Bakersfield
operation was never profitable and that Respon-
dent's business in general was undergoing a down-
ward trend. The result of this profit picture was a
decision to consolidate several routes, including the
Bakersfield route, with the Fresno office. The
effectuation of this decision had already begun with
the issuance of instructions for the relocation of
Respondent's area sales manager, Hammett, to
Fresno when Fletcher and Donati contacted Local
87. Local 87 exacerbated the bleak economic picture
by its onerous and spurious demand that the
Bakersfield employees were entitled to the higher
wages established by Respondent's agreement with
the Anaheim Teamsters local. Consequently, Re-
spondent accelerated the closing of the Bakersfield
operation for economic survival only and not for the
purpose of interfering with its employees' statutory
rights.
There is no evidence of union animus. Respondent
has a longstanding and amicable relationship with
the Teamsters. Several members of its management
are members of the Teamsters, and as of the time of
the hearing employees in all six of its divisions were
represented by Teamsters. Nor has Respondent ever
manifested any hostility toward Local 87. To the
contrary, on August 27, one of Respondent's princi-
pal owners, Alan Bridgford, wrote that, while
3 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
Respondent had not realized that Local 87 was a
member of the same council as Local 952 in
Anaheim and had operated the Bakersfield routes as
part of its San Joaquin Valley division headquartered
in Fresno, he saw "no reason why we shouldn't have
a contract in Bakersfield if you feel that this is the
proper procedure." Also, Respondent's area sales
manager, Hammett, accompanied Fletcher to the
Local 87 office to pick up membership applications
for Fletcher and Donati. Further, Respondent
offered Fletcher and Donati jobs in Fresno which, if
they had accepted, would have required them,
pursuant to the terms of the union-security provision
in the applicable contract, to join the Teamsters local
there. Under these circumstances, I would find that
Respondent did not act unlawfully in accelerating
the closing of the Bakersfield operation in order to
avoid the additional financial burden Local 87
threatened by obstinately (and erroneously) insisting
that the Bakersfield employees were entitled to the
wages established by Respondent's contract with the
Anaheim local. See McLoughlin Manufacturing Corp.,
supra.
I also dissent from my colleagues' finding that
Respondent violated Section 8(a)(5) by refusing to
bargain with Local 87 over the effects of the closing
of its Bakersfield operation.
In finding that Respondent recognized Local 87 as
the exclusive collective-bargaining representative of
the Bakersfield employees, the Administrative Law
Judge relies on Local 87's letters of August 22 and 29
as constituting requests for recognition and bargain-
ing sufficient to create a legal obligation on the part
of Respondent to bargain regarding the effects of its
closing. This is not a fair interpretation of these
letters. Local 87 never indicated to Respondent that
it represented Fletcher and Donati or that it sought
bargaining in a separate unit. Nor did Fletcher or
Donati ever indicate to Respondent that they had
signed union authorization cards for Local 87. There
is no evidence that even on September 9, when
Respondent's area sales manager, Hammett, took
Fletcher to the Local 87 office to pick up member-
ship applications, Respondent had any knowledge
that either Fletcher or Donati completed and signed
the applications. Furthermore, Local 87 did not
make a demand for recognition as the bargaining
representative for Fletcher and Donati. Rather, the
gist of Local 87's claims was that Fletcher and
Donati were an accretion to an existing bargaining
unit represented by Teamsters Local 952 in Ana-
heim. Thus, Chandler stated in his August 22 letter:
I4 agree with my colleagues and the Administrative Law Judge that
Respondent did not interrogate employees about their union activities or
threaten to transfer work from them because of such activity.
681
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. . . your units in Bakersfield are not being
operated under the terms and conditions of the
current labor contract.
And, in his letter of August 29, he wrote:
It is our position that your company has been
under the terms of this contract [with Local 952 in
Anaheim] for some time and when you put your
company in operation here in Kern County the
terms and conditions should have been put into
effect.
Chandler's letters did not request contract negotia-
tions but merely asserted that the Bakersfield
operation was subject to the "current labor contract"
with Local 952 in Anaheim. In this context, Bridg-
ford's letter of August 27 in which he suggested that
there was no problem with having a contract in
Bakersfield can only be read as indicating a
willingness on the part of Respondent to consider
and discuss whether the employees belonged in the
Anaheim unit.
Assuming arguendo that Local 87's assertions that
the Anaheim contract applied to the Bakersfield
operation did constitute a demand for recognition
and contract negotiations and that Respondent had
recognized Local 87 as the exclusive bargaining
agent of its employees, on the facts herein Respon-
dent still had no obligation to bargain over the
effects of the closing absent a request for such
bargaining. The alleged discriminatees were in-
formed of Respondent's decision to close its Bakers-
field operation on August 22 and had heard rumors
to that effect for the previous 6 months. They
testified that they told Chandler, Local 87's business
representative, of the proposed move as early as mid-
September. Yet, Local 87 never protested or request-
ed bargaining relative to the effects of the closing and
transfer to Fresno.
I am unwilling to excuse the failure to request
bargaining merely because of Respondent's failure to
respond to the Union's contention that the Anaheim
contract applied to the Bakersfield employees.
Failure to respond on that issue did not indicate any
general unwillingness to bargain such as to warrant
the finding implicit in the Administrative Law
Judge's Decision that a request to bargain as to the
effects of the closing would be futile. Rather, I
conclude that the Union, having notice of the
closing, failed to exercise its right to demand
discussion or bargaining and cannot claim that
Respondent refused to bargain.5
5 See International Offset Corp., et al., 210 NLRB 854 (1974); Kingwood
Mining Company, 210 NLRB 844 (1974); Hartmann Luggage Company, 173
NLRB 1254 (1968).
In view of the foregoing, I would dismiss the
complaint in its entirety.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity
to give evidence, the National Labor Relations
Board has found that we violated the National Labor
Relations Act and has ordered us to post this notice.
We intend to carry out the Order of the Board and to
abide by the following:
The Act gives all employees these rights:
To organize themselves
To form, join, or help unions
To bargain collectively through represen-
tatives of their choosing
To act together for collective bargaining
or other mutual aid or protection
To refuse to do any or all of these things.
WE WILL NOT discriminate against any employ-
ee in regard to his hire or tenure of employment,
or any other term or condition of employment
because you designate a union to bargain collec-
tively with us about your rates of pay, wages,
hours, or other terms and conditions of employ-
ment.
WE WILL NOT interfere with, restrain or coerce
our employees in the exercise of their rights
guaranteed to them by Section 7 of the National
Labor Relations Act, in violation of Section
8(a)(5) of the Act, by closing our Bakersfield,
California, business operation without bargaining
with General Teamsters and Food Processing
Local Union No. 87, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, relative to the effects of such
closing on the Bakersfield unit employees.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of the rights guaranteed them in Section 7 of the
Act.
WE WILL make whole Arlin Fletcher and
Daniel Donati for any loss they may have
suffered by reason of the discrimination practiced
against them with interest thereon at 6 percent per
annum.
WE WILL, upon request, bargain with the
above-named labor organization as the exclusive
representative of all employees in the aforesaid
682
BRIDGFORD DISTRIBUTING CO.
appropriate unit, with respect to the effect on said
employees of closing our Bakersfield, California,
business operations.
BRIDGFORD
DISTRIBUTING CO.
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge: This
matter was heard at Los Angeles, California, on February
19 and 20, 1976.' The complaint,2 issued December 24, is
based on an original charge filed October 8 and a first
amended charge filed November 25 by General Teamsters
and Food Processing Local Union No. 87, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, hereinafter referred to as the
Union. The complaint alleges that Bridgford Distributing
Co., hereinafter referred to as Respondent, violated Section
8(a)(1), (3), and (5) of the National Labor Relations Act, as
amended, hereinafter referred to as the Act.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to argue orally. Briefs, which have been
carefully considered, were filed on behalf of the General
Counsel and Respondent. Upon the entire record, and
from observation of the witnesses and their demeanor, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is, and at all times material herein has been,
a corporation organized and existing under and by virtue
of the laws of the State of California, with an office and
principal place of business located in Anaheim, California,
where it is engaged in the sale and distribution of
delicatessen food products.
Respondent, in the course and conduct of its business
operations, annually sells and ships goods and services
valued in excess of $50,000 directly to customers located
outside the State of California, and annually derives gross
revenues therefrom in excess of $500,000. 1 find that
Respondent is, and at all times material herein has been, an
employer within the meaning of Section 2(2) of the Act,
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
General Teamsters and Food Processing Local Union
No. 87, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, is, and at
I All dates hereinafter are within 1975,. unless stated to be otherwise.
2 As amended at hearing to request a bargaining order and to correct
misspellings and name of Respondent to read Bridgford Distributing Co.
I Since August. Prior to that time, Parr was a route salesman
(nonsupervisory).
B4 akersfield is the center of most of the controversy herein. Quite a lot
all times material herein has been, a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background
Respondent engages in the sale and distribution of
delicatessen food, and sale of related services, in a rather
extensive area, principally in southern California. Its
corporate offices are located in Anaheim, California.
Principal owners are Allan Bridgford, who serves as
president of Bridgford Foods Corporation; Bill Bridgford,
who is chairman of the board of Bridgford Foods
Corporation; and Hugh Bridgford, who founded Bridgford
Foods Corporation and Respondent.
Orin Adams (Adams) is president of Respondent, with
an office in Anaheim, where he works most of the time. He
reports directly to Allan Bridgford each Monday morning,
and indirectly reports to him on a daily basis. Adams
conducts the labor relations of Respondent, in addition to
performance of his other duties. Stan Hamett (Hamett) is
area manager of Respondent for the valley division
(defined later), and reports directly to Adams. Reggie Parr
(Parr) is sales supervisors of Respondent's northern valley
area (Sacramento and Modesto), and reports to Hamett.
The answer admits, and I find, that Allan Bridgford,
Adams, Hamett, and Parr now are, and at all times
material herein have been, supervisors within the meaning
of the Act.
Respondent has six divisions. Four of the six are in the
Los Angeles area; one is in the Bay area; and one consists
of the valley area from Bakersfield, California, to the
Oregon border. Included among other cities within the
valley area are those of Modesto, Fresno, Sacramento, and,
at times relevant herein, Bakersfield.
Respondent's relationship with unions extends over the
past 22 years. Respondent currently has six contracts with
the Teamsters Union, covering route salesmen of all six
divisions. Each contract describes the area to which it
applies,4 and each includes a union-security clause. Nine
members of management, in addition to division employ-
ees, are union members. Included within the nine are
Adams,5 Hamett, and Parr. The Union never has struck
Respondent, nor has any unfair labor practice charge been
filed against Respondent prior to the present charges.
Prior to April 1974, Respondent's Bakersfield customers
were served by route salesmen based in Fresno, who made
one overnight run into Bakersfield each week. In April
1974 Hamett and another staff member were sent to
Bakersfield to ascertain whether the area could be
developed further; they were successful. Respondent
decided to establish a facility in Bakersfield, and to that
end purchased refrigerated vehicles, rented operating space
of testimony was adduced concerning the question of whether Bakersfield
was covered by the contract between Respondent and Local 952. the Local
having jurisdiction over Orange County including Anaheim. However,
counsel stipulated that at no time was Respondent a party to a collective-
bargaining agreement with Local 87 of Bakersfield.
I Adams has been a union member 21 years.
683
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and services, and hired two route salesmen. The salesmen
were put on salary plus commission,
6 the commission to
become applicable after a salesman's gross business for a
given week reached the then break-even point of $3,450.
7
Two route salesmen were hired for Bakersfield. They
were Arlin Fletcher (Fletcher) and Daniel Donati (Donati),
both of whom were interviewed by Adams. During the
interviews, which were held at different times, Fletcher and
Donati asked Adams if they would have to join a union,
and Adams said they would not.
8 Fletcher was hired by
Adams April 25, 1974, and Donati was hired by Adams
May 20, 1974. Both were placed under the supervision of
Hamett.
In June 1975 Fletcher was sent to Anaheim at Respon-
dent's expense for training. While there, he discovered that
the salesmen in Anaheim, doing work similar to that of
Fletcher and Donati, were receiving base pay of approxi-
mately $50 per week more than Fletcher and Donati were
receiving. When Fletcher returned to Bakersfield he
discussed the salary situation with Donati, and the two of
them decided to ascertain the reason for the difference in
pay between Anaheim and Bakersfield. About the first part
of August Fletcher and Donati went to see Robert
Chandler, Local 87's representative in Bakersfield, and
talked with him about the apparent wage discrepancy.
Chandler agreed to look into the matter, and, shortly
thereafter, on the same day, he telephoned Union Repre-
sentative Kearney in Orange County to discuss the
situation. Chandler asked for a copy of the contract
between Respondent and the Orange County local, and
after he received the copy Chandler concluded
9 that
Bakersfield was covered by the Orange County contract.
Chandler then called Adams on the telephone
o and a
heated conversation developed, during which Chandler
stated his position that the Orange County contract
extended to Respondent's operations in Bakersfield.
Adams said he knew nothing about Local 87 and did not
know there was a local in Bakersfield; he stated that, in his
opinion, the Bakersfield operation was within the jurisdic-
tion of the Fresno local. Chandler did not tell Adams that
he represented Respondent's Bakersfield employees, nor
did he ask Adams to meet with him or to negotiate. This
was the first (and only) occasion on which Chandler ever
talked with any member of Respondent's management
staff. On August 22 Chandler addressed a letter to Allan
Bridgford," in which Chandler asked to discuss the
contract matter, and, on August 27, Allan Bridgford
replied 12 that he saw no real problem, and that he would
discuss the matter with Adams, who then was on vacation.
On August 23 Fletcher and Donati visited Chandler and
signed union authorization cards.t
3 On August 29 Chan-
dler wrote to Allan Bridgford '4 and forwarded copies of
6 The amounts of pay were the same as those for salesmen in Fresno.
7 Each division has a different break-even point, after which point
commissions are paid, and the break-even amounts change as overhead and
costs change. The principal change occurs each year when labor costs are
increased under contracts with the Union. The break-even point is the same
for all cities in the valley division.
" Neither Fletcher nor Donati explained why he asked this question.
Both testified that Adams replied that Bakersfield would be a nonunion
area, and Adams testified that he replied "not at the present time."
s Erroneously, as it developed, and as stipulated by counsel.
o0 Based on the testimony of Chandler and Adams, and G.C. Exh. 6, it is
found that this telephone call was made August 20.
the Local 952 agreement which he (erroneously) thought
included the Bakersfield area.
On September 9 Hamett came to Bakersfield and visited
with Fletcher and Donati. Hamett said he had applications
for Fletcher and Donati to sign, to get them into the Fresno
local, but the two did not sign the applications. Later that
day Hamett took Fletcher to Local 87, where Fletcher
signed an application for membership in that local. Hamett
then asked that Fletcher take an application form to
Donati, which he did.
On September 29 Fletcher and Donati filed claims with
the Division of Labor Law Enforcement, State of Califor-
nia, alleging that Respondent owed them back wages
because of payment of wages from April 22, 1974, to
September 26, 1975, at less than provided for in the
contract with the Union.'
5
The possibility that the Bakersfield operation would be
reduced, or entirely transferred to Fresno, had been under
discussion for some time prior to a final decision on
October 3, as more fully discussed below. Included among
the discussions were several instances wherein Fletcher
questioned Hamett and Adams concerning the possibility
of the change, and the possibility that Fletcher would have
to transfer to Fresno, which would involve selling his house
and moving his family. Fletcher and Donati had been told
that, if the proposed change were made, they would have to
move to Fresno and that they would have to pay their own
moving expenses.?
6 On October 3 Fletcher and Donati met
with Hamett and Parr, and Hamett stated that the decision
to transfer the entire Bakersfield operation to Fresno had
been made. Hamett asked Donati and Fletcher if they
wanted to move to Fresno, and both of them declined.
After Donati and Fletcher said they would not move,
Hamett told them they would have the following week off,
with pay, to look for another job. They did take the week
off, for which they were paid.
Respondent's Bakersfield operation was closed October
10, and its Bakersfield customers since that date have been
served from Fresno.
A. Alleged Discharge of Fletcher and Donati
Paragraphs 6 and 7 of the complaint allege that, on or
about September 26, 1975, Respondent discharged Fletch-
er and Donati because of their union or other protected
activity.
General Counsel's theory is that transfer of the Bakers-
field operation to Fresno was made, wholly or partially,
because of union and related activity at Bakersfield. The
evidence does not support that theory, although it does
show that the timing of the move was related to union
activity.
" G.C. Exh. 6.
12 G.C. Exh. 7.
13 G.C. Exh. 9.
14 G.C. Exh. 8.
is The claims later were denied. Respondent's Bakersfield operation then
was not covered by a union contract.
16 Adams expressed the possibility that, if Fletcher moved himself,
Respondent may pay the cost of a U-Haul vehicle. Donati was single, and
did not own property in Bakersfield.
684
BRIDGFORD DISTRIBUTING CO.
1. Animus of Respondent
The record does not show that Respondent is antiunion.
To the contrary, the evidence is that Respondent has a
good relationship with the Union. That evidence includes
the showing that: (a) all of Respondent's six divisions are
covered by union contracts; (b) most of Respondent's
managers are active union members, and Adams has been
a union member for the past 21 years; (c) the Union never
has struck Respondent, or filed an unfair labor practice
charge against Respondent (prior to the charges herein
discussed); (d) the record shows that the issues herein were
created because of economic considerations, not because
of union animus; and (e) on September 9 Hamett took
Fletcher to see Chandler about Fletcher and Donati
applying for membership in Local 87.
General Counsel relies on statements allegedly made by
Adams during a telephone call Fletcher made to Adams on
August 20, as evidence of Respondent's union animus.
Fletcher allegedly told Adams that Chandler had ap-
proached him on a loading dock and asked for a union
card. Fletcher testified:
I had called in to verify a charging account that I
was servicing at the time, and Mr. Adams came on the
line and asked about the union activity in Bakersfield.
And I explained to him that we were on the dock
loading at Angland Produce and Mr. Chandler ap-
proached me and asked for my union card, and I
couldn't produce one.
Q. Did Mr. Adams have anything to say?
A. Yes. He said that if Mr. Chandler contacted us
again, not to talk to him, not to sign anything and refer
him directly to the Anaheim office.
That recitation by Fletcher is not credited. Chandler,
General Counsel's witness, testified that he never had
talked with Fletcher or Donati prior to August 20, and he
said he never contacted either of them on a loading dock
any place. Adams denied the statements made by Fletcher.
Adams testified:
THE WITNESS: And he said that somebody had
approached him out on the route and asked to see his
Union card, and he had told him he was non-union.
Then I told him to stay out of it, that this was going
to be a rough deal between this guy who was yelling
around and there was obviously going to be some
problems, and I didn't want him to be involved.
In view of the fact that Adams knew no more about union
activity, as of the date of the telephone call from Fletcher,
than what he had learned as a result of Chandler's call, it
cannot fairly be concluded that the Fletcher-Adams
conversation of August 20 constituted an antiunion
declaration by Adams. Clearly, when Adams talked with
Fletcher, he was concerned about a union claim not related
17 Fletcher testified that he never told any member of management that
he signed an authorization card on August 23, and he also stated that he
never told Hamett that he wanted to be represented by Local 87. Further, he
testified that he never told Adams that he had contacted Chandler. The
testimony of Fletcher and Donati makes it clear that neither Hamett nor
Adams knew that Chandler obtained signed authorization cards from
to Fletcher or Donati's union membership. There is
nothing in the record to show that Adams or any other
representative of Respondent harbored union animus at
times relevant herein, and it is so found.
General Counsel argues that Fletcher and Donati
engaged in concerted activity when they filed claims for
back wages, and that they were discharged, actually or
constructively, for that reason. The evidence does not
support that allegation. The two employees did not file
claims until September 29, and the subject of a move to
Bakersfield by that date was an old one. The conflicting
testimony about Adams "blowing his top" when he learned
of the claims need not be resolved, since it is clear that the
claims neither caused nor contributed to the closing of the
Bakersfield operation. At most, they only illustrate the
reason for accelerating the closing, and acceleration under
the facts of this controversy is not a violation of the Act, as
discussed below.
2. Respondent's knowledge of union activity
The first union activity at Bakersfield occurred in
August, when Fletcher and Donati visited Chandler.
Respondent's first knowledge of such activity occurred
August 20, when Chandler telephoned Adams. However,
Chandler did not tell Adams anything on August 20 that
would lead Adams to believe that Chandler's activity was
instigated by Fletcher and Donati. Chandler only claimed
that the Anaheim contract was applicable to Bakersfield. If
that claim was valid, the principal effect would be that
Respondent would owe Fletcher and Donati a substantial
sum of money for past wages, and a duty to raise their
wages immediately; union membership would be inciden-
tal since, under the Anaheim contract, such membership
was mandatory.
Transfer of Fletcher and Donati to Fresno possibly
would reduce future costs, but it would not eliminate a
claim for back wages if Chandler's claim was valid. The
record does not show when Adams learned that Chandler's
claim was invalid, but the State of California did not deny
Fletcher's claim until after the date of his termination, and
there is nothing in the record to show that Adams knew of
that denial until after Fletcher and Donati had been
terminated. Therefore, as of the date of termination,
Adams must have believed, or was fearful, that Chandler
could support his claim that the Anaheim contract covered
Bakersfield, and that transfer of Fletcher and Donati to
Fresno would do no more than reduce future costs
resulting from a higher wage scale. Whether Fletcher and
Donati remained at Bakersfield or moved to Fresno, their
union membership would be required." Under such
circumstances Fletcher and Donati's union membership
was immaterial, and clearly would not be a reason for
closing the Bakersfield facility.
Fletcher and Donati on August 23. Adams and Hamett attempted, without
success, to have Fletcher and Donati accepted by the Fresno local.
Thereafter, on September 9, Hamett took Fletcher to Local 87 for
membership application, and picked up application papers which later were
given to Donati.
685
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Respondent's decision to close the Bakersfield
facility
Adams testified that Respondent's business started a
down trend in September or October 1974, and continued
through 1975. That testimony is supported by Respon-
dent's exhibits, including profit-and-loss statements and
corporate statistics, and it is credited. Adams further
testified that, during late 1974, Respondent's management
began discussing the possibility of consolidating some
operations, to reduce expenses, and to improve the
Company's financial situation."8 Adams said some routes
thereafter were consolidated, and in May 197519 the
decision was made to move the Bakersfield routes to
Fresno.2 0 He said that decision was communicated to
Hamett in May 1975,21 and Hamett was told he would
have to move from Modesto, whence he had been
supervising Bakersfield and other routes, to Fresno. Adams
testified that the plan to move the Bakersfield routes, and
to transfer Hamett, next was discussed with Hamett in
June 1975. Adams testimony relative to his discussions
with Hamett in May and June was corroborated by
Hamett, and it is credited. Hamett made the move from
Modesto to Fresno about September 12.22 He credibly
testified that some delay in moving was occasioned by
difficulty in selling his Modesto house.
Donati testified that, for a period of about 6 months
prior to August or September 1975, there had been rumors,
and he had been concerned, about the possibility of one or
both of the routes being moved from Bakersfield. He said
his concern principally was caused by Hamett's frequent
and forceful exhortation to increase sales.
Fletcher testified that he telephoned Adams the day
before he signed a union authorization card on August
23,23 and was told:
A. During that conversation, he said that within
the next 30 days, it looked as if the routes in Bakersfield
might be moved to Fresno, and if it was in fact moved
to Fresno, we would have to move to retain our jobs in
Fresno.
I asked if the move did come who would pay for the
moving expenses, and he said that they would be
incurred by me.
Fletcher said he and Donati visited Chandler the following
day to inquire if Chandler had learned anything about the
wage discrepancy between Anaheim and Bakersfield, and
after a discussion Chandler suggested that Fletcher and
Donati sign authorization cards. It has been found, above,
that Chandler called Adams August 20 and discussed the
wage situation. Fletcher said he asked Adams during the
5s Adams credibly testified that consolidation of the Bakersfield facility
would result in elimination of overhead costs of approximately $1,000 per
month, and that substantial administrative savings and advantages would be
effected thereby.
19 Some delay was occasioned because Adams was in the hospital and off
work 3 months due to a ruptured spinal disc.
20 Many customers (about 50 percent) served by Bakersfield formerly
were served by the Fresno facility.
21 General Counsel argues that Fletcher's training in June 1975, after
Respondent allegedly had decided to close the Bakersfield facility, negates
Respondent's claim relative to the date Respondent decided to close
Bakersfield. This argument by General Counsel is not accorded weight,
telephone call he made to Adams on August 23, why the
routes were going to be moved to Fresno and Adams
replied, "they couldn't afford to pay the higher wage
scale." Thus it is quite clear, and found, that Adams' reply
to Fletcher was occasioned by Chandler's telephone call to
Adams on August 20 wherein Chandler told Adams that
the Anaheim contract applied to Respondent's Bakersfield
operations.
Adams' credited testimony shows that the date he
selected for the move to Fresno was based entirely upon a
desire to cut his losses as soon as possible. It developed that
his fear of higher wages was groundless, since the Anaheim
contract did not extend to Bakersfield; however, that fact is
immaterial to the issues. Adams testified:
Q. Did Chandler's intervention and filing of the
wage claims, all of this, have any influence as to the
actual decision to close and the date it was closed?
A. Not the decision to close, but the date that we
closed.
Q. You closed earlier because of it?
A. Yes.
It is found that the decision to close the Bakersfield
facility was made in May 1975, and that the date of the
closing was accelerated because of Chandler's claim made
to Adams, that Bakersfield was served by the Anaheim
contract.
Discussion
The question thus is presented as to whether such action
by Respondent constitutes a violation of the Act. This
question is not a novel one. It has been before the Board
and the courts a number of times and, although some
inconsistency is apparent in older cases, the law presently
makes it clear that acceleration of a plant closing, or a
closing effected partially for union reasons, may be
permissible if the closing itself primarily is because of
economic reasons. A modern case that is instructive is that
of McLoughlin Manufacturing Corporation, 164 NLRB 140
(1967). There the Board reversed the Trial Examiner's
finding of an 8(aX3) violation, because economic consider-
ations of the respondent were paramount; the union
problem merely was the "last straw" which "tipped the
scale" in making a decision to close a plant. The Board
stated, inter alia:
As found by the Trial Examiner, there is no evidence
of opposition to the employees' exercise of their
statutory rights. Nor is there evidence of overt hostility
to the Union. Rather, Respondents have dealt amicably
since the training was more than a year after Fletcher's date of hire, thus
obviously not an indoctrination course. The training would be appropriate,
regardless of where it was used. Further, there is nothing in the record to
show that, as of June, there was any reason for Adams to doubt that
Fletcher would decline to move to Fresno - the subject had not been
discussed with him as of that date.
22 This move by Hamett was about 3 weeks prior to the date (October 3)
when Fletcher and Donati were told they would have to move to Fresno.
23 Fletcher's testimony relative to this subject is confusing and uncertain,
but the outline given here appears accurately to relate the chronology of
events.
686
BRIDGFORD DISTRIBUTING CO.
with the Union for many years. It was Respondents'
economic and operational difficulties arising in part
from an onerous contractual provision, and their
inability to obtain relief therefrom and the Union's
overall intransigent attitude with respect to the negotia-
tion of a new agreement that appear to have been the
determining factors in the decision to close the plant.2 4
In Lassing, supra, the Sixth Circuit was most emphatic on
this subject when it stated, inter alia at 783:
The Board contends that this case is not controlled
by the ruling in the Adkins and Mahon cases because
the respondent accelerated its proposed change in
operations upon its learning that the three employees
had joined the Union and before any demands for
increased pay for said employees had been made upon
it by the Union, and that such action constituted the
discrimination found by the Board to exist.
We do not agree. Although the Union had made no
demand for increased pay, the evidence fully justified
respondent's belief that such demands would be made
and could not be met.
* * *
There is no evidence in the present case, and there is
no contention made, that there was any anti-union
background on the part of the respondent. Fundamen-
tally, the change was made because of reasonably
anticipated increased costs, regardless of whether this
increased costs was caused by the advent of the Union
or by some other factor entering into the picture. This
did not constitute discrimination against the three
employees with respect to their tenure of employment
because of membership in the Union, within the
provisions of Section 8(aX)(I) and (3) of the Act.
N.L.R.B. v. Houston Chronicle Pub. Co. 5 Cir., 211 F.2d
848, 854.
Following Lassing, the Second Circuit had occasion to
face the same issue in N. LR.B. v. Rapid Bindery, Inc., and
Frontier Bindery Corporation, 293 F.2d 170, 174 (C.A. 2
1961). Again, the respondent was considering a business
close because of economic necessity, when the union
entered the picture. Even though respondent admittedly
was unhappy about the advent of the union, and even
though that advent hastened the closing of the plant, the
court held that Section 8(a)(3) had not been violated. The
court stated:
In those situations where a change or discontinuance
of business operations is dictated by sound financial or
economic reasons the courts have refused to find that
§8(a)(3) has been violated even though the employer
action may have been accelerated by union activity.
N.L.R.B. v. Lassing, 6 Cir., 1960, 284 F.2d 781,
certiorari denied 1961, 366 U.S. 909, 81 S. Ct. 1085, 6
24 See also N. LR.B. v. J. M. Lassing, et al., d/b/a Consumers Gasoline
Stations, 284 F.2d 781 (C.A. 6, 1960), cert. denied 366 U.S. 909 (1961); Israel
Taub d/b /a Dove Flocking and Screening Co., 145 NLRB 682 (196%3).
25 Textile Workers Union ofAmerica v. Darlingron Manufacturing Co., 380
U.S. 263 (1965).
L.Ed.2d 235; N.LR.B. V. R.C. Mahon Co., 6 Cir., 1959,
269 F.2d 44, N.LR.B. v. Houston Chronicle Pub. Co., 5
Cir., 1954, 211 F.2d 848.
As discussed above, the union membership of Fletcher
and Donati was of secondary interest to Chandler. He was
interested primarily in the Anaheim contract to Bakers-
field, and he made it clear to Adams that he did not intend
to back away from that proposition. He testified that he
never told Adams that he later learned his position was
wrong. Adams was not motivated by union animus, or by a
desire to interfere with the Section 7 rights of Fletcher and
Donati when he decided to accelerate a move already
planned. His motivation was economic survival. Under
such circumstances 25 it is clear, and found, that this
allegation of the complaint is not supported by the
evidence.
B. Alleged Refusal To Bargain
The complaint alleges that, since on or about August 23,
1975, Respondent unlawfully has refused to bargain with
the Union and that, since on or about September 26, 1975,
Respondent unlawfully has refused to recognize or meet
with the Union and unilaterally has changed the terms and
conditions of unit employees.
General Counsel argues that Respondent's Bakersfield
route salesmen constitute an appropriate unit for bargain-
ing, based on Respondent's past practice, its past relation-
ship with Teamsters locals, and the distance of the
Bakersfield operation from the nearest appropriate unit.
That argument is valid, and it is found that Respondent's
Bakersfield route salesmen constitute an appropriate unit
for collective bargaining.2 6
Respondent knew nothing about Fletcher and Donati's
first visit to Chandler in early August. When Chandler
called Adams August 20 he did not identify himself, or
claim that he represented the employees, or ask that
Respondent bargain about anything. He merely stated, in
blunt language,2 7 that Respondent's Bakersfield operation
was covered by the Anaheim contract, and that Respon-
dent had been violating that contract's wage provisions.
On August 22 Chandler wrote a letter to Allan Bridg-
ford.2 8 The letter is ambiguous. The first paragraph is a flat
statement that Respondent was violating "the terms and
conditions of the current labor contract." The second
paragraph, however, states there was a difference of
opinion concerning application of the contract, as exhib-
ited during the August 20 Chandler-Adams telephone call.
The final paragraph states:
I am in hopes we may clear this matter up without a
serious problem. Would you be so kind as to straighten
this matter out and I would like to hear from you in the
near future as to your position regarding this matter.
It is quite clear, and it is found, that the letter was a request
to bargain about application of the contract.
26 P. Ballantine and Sons, 141 NLRB 1103(1963).
27 There are some discrepancies in the accounts of Chandler and Adams
relative to what was said by each. Based on observation of the witnesses and
the record, Adams is credited where such discrepancies occur.
28 G.C. Exh. 6.
687
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On August 23 Fletcher and Donati signed union
authorization cards, at the request of Chandler. That fact
never was related to Respondent by Fletcher, Donati or
Chandler.
On August 27 Allan Bridgford wrote to Chandler 29 and
stated, inter alia, "we did not realize that your local was a
member of the same council as the local in Orange County,
with which we have a contract." Bridgford also stated,
"However, I can see no reason why we shouldn't have a
contract in Bakersfield, if you feel that this is the proper
procedure." Finally, Bridgford stated "give us a few days to
figure out this situation and we will get back to you
concerning the contract. Maybe in the meantime you could
send us a copy of the contract that you use in Bakersfield
for Teamster drivers." That letter clearly is reaffirmation of
Adams' position that the Anaheim contract did not apply
to Bakersfield, and, equally clearly, it is an agreement to
negotiate relative to Bakersfield.
On August 29 Chandler wrote to Allan Bridgford,3 0
forwarded a copy of the Anaheim contract, reiterated his
position that the contract then applied to Bakersfield and
was being violated by Respondent, and concluded "Please
state your position so we may resolve this matter."
There was no further correspondence between Respon-
dent and Local 87.
On September 2 Adams told Fletcher that the Bakers-
field operation was going to move to Fresno, and that he
was on 30-day notice. Adams then offered Fletcher a job in
Fresno at the same pay, and gave Fletcher a week to
consider the move and to discuss the situation with his
wife.
On September 9 Hamett took Fletcher to see Chandler in
order to sign an application for membership in Local 87,
and picked up an application later given by Fletcher to
Donati.
On October 3, with no notice to Chandler or Local 87,
Hamett told Fletcher and Donati that the Bakersfield
operation was moving to Fresno, and offered both of them
a job in Fresno.3 ' They declined and were given I-week's
severance pay. The Bakersfield operation closed October
10.
The foregoing makes it abundantly clear, and it is found,
that, at least as of September 9, Local 87 was the exclusive
representative of the Bakersfield employees, that such fact
was well known by Respondent, and that there then was
pending an unanswered request by Local 87 to negotiate
the question of applicability of the Anaheim contract to
Bakersfield. Under such circumstances, Respondent was
obligated to notify and bargain with Local 87 relative to
effects of the intended closing of the operation.
Generally, the Board has held that an employer must
bargain with employees concerning a partial discontin-
uance or relocation of its business operations, as well as the
effects thereof,3 2 although those decisions are not always in
29 G.C. Exh. 7.
30 G.C. Exh. 8.
31 General Counsel endeavored to cast doubt on thefides of Respondent
in offering Fletcher and Donati continued employment. However, it is quite
clear from all the testimony, including that of Fletcher and Donati, and it is
found that the two received a bonafide offer from Respondent of continued
employment in Fresno.
32 Burroughs Corporation, 214 NLRB 571 (1974); Royal Typewriter
accord with views of circuit courts.33 However, the facts of
this case differ substantially from the cases wherein the
Board has so held. Here, (a) the decision to close the
operation was made, solely because of economic necessity,
in May, several months before the Union obtained
authorization cards from Fletcher and Donati on August
23; (b) by the date Fletcher and Donati were told they
must move in order to retain their jobs (October 3), their
supervisor, Hamett, already had been moved to Fresno
approximately 3 weeks. With the move thus having been
decided upon, and partially effected, prior to the Union's
interest in the employees having been communicated to
Respondent, it would be patently improper to order
Respondent to bargain about the decision it made in May.
Thus, this case is brought within the ambit of law
expounded in Royal Plating & Polishing Co., Inc., supra.
The court there stated:
We conclude that an employer faced with the economic
necessity of either moving or consolidating the opera-
tions of a failing business has no duty to bargain with
the union respecting its decision to shut down.
However, under circumstances such as these present-
ed by the case at bar an employer is still under an
obligation to notify the union of its intentions so that
the union may be given an opportunity to bargain over
the rights of the employees whose employment status
will be altered by the managerial decision. N.LR.B. v.
Rapid Bindery, Inc., 293 F.2d 170 (2nd Cir. 1961). See
also N.LR.B. v. Lewis, 246 F.2d 886 (9th Cir. 1957);
Shamrock Dairy, Inc., 119 NLRB 998 (1957), 124
NLRB 494 (1959), enforced sub nom., International Bhd.
of Teamsters etc. v. N.LR.B., 108 U.S. App. D.C. 117,
280 F.2d 665, cert. denied 364 U.S. 892, 81 S.Ct. 224, 5
L.Ed.2d 188 (1960).
Donati's attitude toward moving to Fresno is somewhat
ambiguous, but it appears that he was guided at all times
herein by Fletcher's thoughts and actions. Fletcher's
principal concern, from the time he first learned of a
possible move until the date he was informed that a move
was required, including his discussion with Adams on
September 2, was the cost of the move. Fletcher testified
about the final discussion with Hamett:
A. Dan [sic] just said that the decision had been
made and that as of the following Friday, the routes
would be moved to Fresno. And he again asked us if we
wanted to move to Fresno to retain our positions with
the company. I asked him again if I had to move would
the moving expenses have to be incurred by myself, and
he said yes, so I declined to move.
Thus, it is clear that, had Respondent agreed to pay
Fletcher's moving expenses, Fletcher, and most likely
Company, A Division of Litton Business Systems, Inc., el al 209 NLRB 1006
(1974); Ozark Trailers, Incorporated, and/or Huteo Equipment Company, et
al., 161 NLRB 561 (1966).
33 See, for example, N.L.R.B. v. Acme Industrial Products, Inc., 439 F.2d
40 (C.A. 6, 1971); N.LR.B. v. Royal Plating & Polishing Co., Inc., 350 F.2d
191 (C.A. 3, 1965); N.LR.B. v. Adams Dairy, Inc., 350 F.2d 108 (C.A. 8,
1965).
688
BRIDGFORD DISTRIBUTING CO.
Donati also, would have accepted Respondent's offer and
would have moved to Fresno.
Direct and incidental expenses involved in the move
would be substantial, especially in Fletcher's case. Fletcher
would incur expenses in selling his house in Bakersfield,
transporting himself and his family to Fresno, and
obtaining a new house in Fresno. Seniority and other rights
may be involved. Fletcher and Donati were given I week's
severance pay, but is is possible that negotiated severance
pay would be different. Such matters are the essence of
bargaining. The Union was the representative of the
employees at time of termination, and that fact was well
known to Respondent. Fletcher and Donati were not
familiar with the bargaining process. The Union represent-
ed Respondent's employees at all its locations other than
Bakersfield, and would be able to bargain for Fletcher and
Donati against a background of knowledge and expertise.
Respondent did not discuss the proposed move with
Chandler, or give the Union an opportunity to bargain for
Fletcher and Donati. That opportunity should have been
given.
Respondent argues that Chandler knew about the move
before it was made, and waived, through inaction, his right
to demand that the move be bargained. That argument is
not persuasive. As shown above, Chandler asked Allan
Bridgford in a letter dated August 29, "Please state your
position so we may resolve this matter." The "matter" was
whether the Anaheim contract extended to Bakersfield.
That question inevitably would affect any proposal by
Respondent to close its plant. Bridgford did not respond to
the letter, thus the announcement of the move, approxi-
mately a month after the letter was received, was made
while there was a pending request to negotiate. Further, the
rights here involved are those of Fletcher and Donati, who
declined jobs in Fresno only because of Respondent's
denial of moving expenses. They were deprived of union
services which were sorely required, and it would be unjust
to permit a waiver under such circumstances. It is found
that the Union did not, as a matter of fact, waive its right to
bargain with Respondent over the effects of the Bakersfield
closing.
C. Alleged Interrogation
Paragraph 13 of the complaint alleges that, on or about
August 20, Adams interrogated an employee about union
activities and instructed that employee not to engage in
union activities.
Fletcher's version of this conversation with Adams is
quoted above. As there noted, Chandler contradicted
Fletcher's statement about Chandler asking to see Fletch-
er's union card. Based on that contradiction, and on
observation of the witnesses, Adams' version of this
conversation is credited. Adams testified:
Q. Did you speak with Mr. Fletcher after you
received the August 29th telephone call?
A. Yes, Arlin called in, either the next day or the
day following, for a credit approval, and I heard the
call and I jumped on the line.
Q. What did you say?
A. To ask him if anybody had approached him
from the Union, that I had received this wild call -
MR. COHEN: Just limit it to what was said in the
phone call.
JUDGE: Just what was said.
THE WITNESS: And he said that somebody had
approached him out on the route and asked to see his
Union card, and he had told him he was non-union.
Then I told him to stay out of it, that this was going
to be a rough deal between this guy who was yelling
around and there was obviously going to be some
problems, and I didn't want him to be involved.
MR. COHEN: I move to strike the last sentence.
JUDGE: He said that is what he told him.
MR. COHEN: I object.
JUDGE: You told him this?
THE wirNEss: Yes.
JUDGE: All right. Motion will be denied as long as
we restrict ourselves to just what was said and by
whom.
Q. (By Mr. Wolfram) Did you tell him not to sign
anything?
A. Not in those words, no.
Q. Did you say it in other words?
A. Not to get involved.
Q. Did you tell him not to talk to Chandler?
A. No.
Q. Did you ask him whether he wanted to be
represented by the Union?
A. No.
Q. Did you say anything to him regarding his job
security?
A. Yes.
Q. How did that subject come up?
A. Well, we were both worried about it at that
moment, the situation -
Q. Did he say something to you about being
worried about something?
A. I don't know whether he started or I did, I don't
know what the first word was.
Q. What did you say?
A. I told him not to worry about his job, that the
worst that could happen was that he could be moving.
Adams had talked with Chandler prior to his conversa-
tion with Fletcher, and it is clear that, when Adams talked
with Fletcher, he limited his alleged "union" talk to matters
related to Chandler's irate call. Since Chandler did not
identify himself, or represent himself as an agent of the
Union or Respondent's employees, and since he limited his
conversation to a claim that Respondent was violating its
contract, it was logical and natural for Adams to advise
Fletcher to stand clear. This conversation was isolated, and
in a context that is not consistent with restraint or coercion
on the part of Adams. It came in the midst of a call
Fletcher placed relative to a charge account. Adams did
not talk with Fletcher at any other time about union
matters. As discussed above, there is no evidence of
Adams' or Respondent's union animus. Under such
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
circumstances Adams' statements are found not to be
coercive, and not in violation of the Act.34
D. Alleged Statement by Hamett
Paragraph 14 of the complaint alleges that, during the
latter part of August, Hamett told an employee that
Respondent would transfer work from Bakersfield because
of the employees' union activities.
General Counsel did not argue this issue in his brief. The
employee referred to apparently is Donati, since the record
does not support any statement of this nature made to
Fletcher.
Donati was a confusing witness, and apparently one with
a poor memory. He testified that he and Fletcher met with
Hamett on September 26 and had "just general discussion
over the routes." After much probing and leading, Donati
stated:
Q. Did the subject of the union ever come up
during those conversations?
A. Yes.
I asked him why, was it because of the union, and he
said, "Yes."
JUDGE: When did that occur?
THE WITNESS: This occurred that Friday, the 26th.
JUDGE: The 26th.
September 26th?
THE WITNESS: Yes, sir.
Donati later said the statement may have been made by
Hamett at some other time "or out on my route going to
Tehachapi." Still later, on cross-examination, Donati again
testified relative to the September 26 meeting with Fletcher
and Hamett:
A. Really, it was just general conversation, you
know, nothing spectacular happened.
Q. Was there any discussion about a Union?
A. At that time no, I don't think Mr. Hamett knew
anything about it, to be honest with you, because he
didn't find out about our filing with the Labor
Commission until that afternoon.
Q. There was nothing said about the Union then?
A. Not to my recollection, no. There may have
been, but I can't remember right now, it is a long time
ago.
Again later, Donati said Hamett's alleged statement was
made "a couple of days before September 26," prior to the
meeting of September 26.
Fletcher, who was said by Donati to be present at the
meeting of September 26, did not corroborate Donati's
statement about the routes being moved because of the
Union.
In view of such uncertainty and confusion, this testimony
of Donati is not credited. Hamett denied having made the
remark, and Hamett is credited.
This allegation was not proved.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The Respondent's activities set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
General Counsel requested an order directing Respon-
dent to reestablish its Bakersfield operation. Such an order
would not be appropriate, for several reasons. First, it
would be merely punitive, not remedial. Second, it would
not be warranted, since the closing was based on financial
reasons. Respondent is not motivated by union animus,
and Respondent's only violation of the Act was its failure
and refusal to negotiate with the Union concerning the
effects of the closing. Finally, reopening would require that
Respondent enter into new leases of buildings and
equipment at Bakersfield, that it transfer or purchase
trucks and equipment, that Hamett move again, and most
onerous of all, it would require Respondent to reopen a
facility that is a proved loser. Such a remedy is too severe.
The Union represents Fletcher and Donati and should
have been a party to negotiations with Respondent relative
to job offers, moving costs, seniority, severance pay, and
other matters involved in closing the facility at Bakersfield.
An order requiring Respondent to bargain at this time
about effects of the move will not be a futile gesture. To the
contrary, as recognized by Allan Bridgford in his corre-
spondence with Chandler, the Teamsters represents all of
Respondent's route salesmen and drivers, in all six of
Respondent's divisions. Respondent's principal managers
are Teamsters members. There is a long history of
successful bargaining between Respondent and the Team-
sters. Finally, the record shows that Respondent in good
faith offered Fletcher and Donati jobs in Fresno, and there
is no showing of ill-will toward the two employees. It
cannot be concluded, in such circumstances, that the
Union will be unable to bargain with strength. An order to
bargain about the effects of the closing is the appropriate
remedy.
Upon the basis of the foregoing findings of fact and the
entire record, I make the following:
CONCLUSIONS OF LAW
1. Bridgford Distributing Co., Respondent herein, is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. General Teamsters and Food Processing Local
Union No. 87, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2(5) of
the Act.
34 General Counsel did not argue this issue in his brief.
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BRIDGFORD DISTRIBUTING CO.
3. The following unit is an appropriate unit within the
meaning of Section 9(b) of the Act:
All drivers employed by the Employer in Bakersfield,
California; excluding all office clerical employees,
guards and supervisors as defined in the Act.
4. The above-named labor organization is, and has
been since August 23, 1975, the exclusive representative of
all employees in the aforesaid appropriate unit, for the
purposes of collective bargaining within the meaning of
Section 9(a) of the Act.
5. Respondent engaged in unfair labor practices in
violation of Section 8(aX)(5) of the Act by closing its
Bakersfield, California, business operation without bar-
gaining with the Union relative to the effects on the
Bakersfield unit employees, of such closing.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
691