Burroughs Corp.

National Labor Relations Board - Board Decisions

Nov 1, 1974

214 N.L.R.B. 571 (N.L.R.B. 1974)

BURROUGHS CORPORATION 571
Burroughs Corporation and Graphic Arts Internation-
al Union Local No. 162-B . Case 10-CA-10482
November 1, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On April 30, 1974, Administrative Law Judge
Stanley N. Ohlbaum issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Coun-
sel has filed an answering brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief 2
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge.
REMEDY
Respondent has not excepted to the Administra-
tive Law Judge's finding that it unlawfully failed or
refused to bargain with the Union with respect to the
decision to close its Birmingham, Alabama, plant.
However, it does except to those portions of the Ad-
ministrative Law Judge's recommended Order which
require a reopening of the plant and the payment of
backpay. We find merit in these exceptions.
The Administrative Law Judge, as fully set forth in
his recommended Order, would order Respondent,
inter alia, to reopen its plant. Alternatively, should
such a reopening become impossible, impracticable,
or unfeasible for no reason attributable to Respon-
dent, he would require Respondent to establish a
preferential list for displaced employees at its loca-
tions throughout the continental United States and
shoulder the burden of reasonable cost of their relo-
cation. The Administrative Law Judge's recommend-
ed Order also requires Respondent to pay backpay to
employees commencing 5 days after their uncondi-
i General Counsel 's motion to strike Respondent 's exceptions and brief is
hereby denied as without ment
2 The Respondent has requested oral argument This request is hereby
denied as the record , the exceptions and the briefs adequately present the
issues and the positions of the parties
J Respondent excepts to certain comments by the Administrative Law
Judge which it contends constitute an erroneous holding that Respondent
acted out of an unlawful discriminatory motive when it closed the Birming-
ham plant The General Counsel does not contend nor would the record
support a finding that Respondent acted out of an unlawful discriminatory
motive Accordingly , we do not adopt any findings by the Administrative
Law Judge to the contrary
tional offer of reinstatement.
The Administrative Law Judge correctly notes that
the Board is reluctant to order the resumption of op-
erations. This reluctance is especially strong where,
as here, the closing is for nondiscriminatory reasons.
Respondent has shipped some of its equipment to
other places to replace old equipment in those plants.
It does not own the Birmingham plant and at the
time of the closing its lease had only a short time to
run. A requirement that it reopen its plant would ap-
parently require it to extend or renew an expiring
lease and to move equipment from other plants leav-
ing gaps in those plants. In our opinion, such a re-
quirement is excessively burdensome. Moreover, the
Administrative Law Judge's contingency remedy of
requiring Respondent to offer the employees jobs at
other plants, together with relocation expenses, along
with the other remedial provisions in his recommend-
ed Order, is adequate to remedy the unfair labor
practices.4 Accordingly, we conclude that the plant
reopening remedy is not warranted in this case and
therefore we will not adopt this part of the Adminis-
trative Law Judge's recommended Order.'
As to backpay, it is settled Board policy not to
award backpay to striking employees until they make
an unconditional offer to return to work. No such
offer was made prior to the closing.6 Accordingly, we
shall not order the payment of backpay herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Burroughs Corporation, Birmingham, Alabama, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to bargain in good faith
with Graphic Arts International Union Local No.
162-B as the duly authorized and certified exclusive
bargaining representative of Respondent's employees
As the plant was closed for economic reasons and has been closed for
some time , we do not believe any useful purpose would be served by requir-
ing further bargaining with respect to the decision to close the plant
Member Fanning would require that Respondent bargain as to the deci-
sion to close the plant He does not agree that no useful purpose would be
served by such a requirement and notes that Respondent did not except to
this aspect of the Administrative Law Judge 's recommended Order See
Arnold Graphic Industries , Inc. 206 NLRB 327 (1973) Moreover, if, as his
colleagues seem to fear , such bargaining is likely to be only pro forma it is
Member Fanning's view that the Board should create a situation in which
meaningful bargaining can take place See Bruce E Kronenberger and Her-
bert Schoenbrod d/b/a American Needle & Novelty Company, 206 NLRB 534
(1973) Royal Plating and Polishing Co, Inc, 148 NLRB 545 (1964), 152
NLRB 619 (1965) Winn-Dixie Stores, Inc, 147 NLRB 788 (1964)
s Since we are not ordering that the plant be reopened , we shall require
that Respondent mail to all employees on the preferential hiring list copies
of the notice
6 Royal Typewriter Company, a Division of Litton Business Systems, Inc,
209 NLRB 1006 (1974)
214 NLRB No. 88
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the appropriate collective-bargaining unit, con-
cerning the subject of the cessation, discontinuance,
or transfer of Respondent's printing operations in or
from its Birmingham, Alabama, plant. The appropri-
ate collective-bargaining unit is the unit heretofore
certified by the Board, including production and
maintenance or other unit employees transferred to,
or employees of that description otherwise employed
at, the Birmingham storage or warehouse facility es-
tablished by Respondent at 2600 Second Avenue
South, Birmingham, Alabama, after said certifica-
tion.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their right to self-organization, to form, join, or
assist any labor organization, and to engage in other
concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to re-
frain from any and all such activities.
2. Take the following affirmative actions, neces-
sary to effectuate the policies of the Act:
(a) Place all striking employees at said plant who
apply for reinstatement on preferential hiring lists es-
tablished by Respondent separately for each of its
other printing plants now in existence or hereafter
established in the continental United States, with pri-
ority of employment on each such list to said striking
employees, in accordance with such system of senior-
ity or other nondiscriminatory practice heretofore
applied by Respondent in the conduct of its busi-
ness; and thereafter offer such employees reinstate-
ment and employment at each such plant as such
employment becomes available and before other em-
ployees are hired for such work, together with one-
way expenses of travel thereto of said employee and
his dependents, and other necessary and reasonable
expenses of relocation; provided, that any such
employee's failure to apply for or accept reinstate-
ment and employment at any of such plants on such
preferential basis shall not thereafter disqualify him
from such preferential reinstatement and employ-
ment at any other of Respondent's said plants, nor
shall it excuse Respondent from the requirement of
offering him such reinstatement and employment, on
a preferential basis, at such of its other said plants at
which said employee has not theretofore been of-
fered and refused such reinstatement and preferen-
tial employment; but Respondent may remove from
each such specific plant preferential hiring list the
name of any employee who has been duly offered,
but has refused or rejected, preferential employment
at that specific plant.
(b) Mail to the last known addresses of all em-
ployees on said preferential hiring list copies of the
attached notice marked "Appendix,"' on forms pro-
vided by the Regional Director for Region 10, after
such notices have been duly signed by authorized
representatives of Respondent.
(c) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the Board hereby re-
serves to itself the right to modify the provisions of
this Order, if made necessary by circumstances not
now apparent.
t 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail and refuse to bargain in
good faith with Graphic Arts International
Union Local No. 162-B as the duly authorized
and certified exclusive bargaining representative
of our employees in the appropriate collective-
bargaining unit, concerning the subject of the
cessation, discontinuance, or transfer of our
printing operations in or from our Birmingham,
Alabama, plant. The appropriate collective-bar-
gaining unit is the unit heretofore certified by
the Board, including production and mainte-
nance or other unit employees transferred to, or
employees of that description otherwise em-
ployed at, our Birmingham storage or ware-
house facility.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization,
to form, join, or assist any labor organization,
and to engage in other concerted activities for
the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any
and all such activities.
WE WILL place all striking employees at our
Birmingham plant, who apply for reinstatement,
on preferential hiring lists separately for each of
our other printing plants now in existence or
hereafter established in the continental United
States, with priority of employment on each
BURROUGHS CORPORATION
such list to said striking employees , in accor-
dance with such system of seniority or other
nondiscriminatory practice used by us in the
conduct of our business ; and WE WILL offer such
employees reinstatement and employment at
each such plant as such employment becomes
available and before other employees are hired
for such work , together with one-way expenses
of travel thereto of said employee and his depen-
dents, and other necessary and reasonable ex-
penses of relocation ; provided that any such
employee 's failure to apply for or accept rein-
statement and employment at any other of our
plants, on such preferential basis, shall not
thereafter disqualify him from such preferential
reinstatement and employment , nor shall it ex-
cuse us from the requirement of offering him
such reinstatement and employment on a prefer-
ential basis at such of our other plants at which
the employee has not been offered and refused
such reinstatement and employment; but we
may remove from each such specific plant pref-
erential hiring list the name of any employee
who has been duly offered , but has refused or
rejected, employment at that specific plant.
BURROUGHS CORPORATION
DECISION
I. PRELIMINARY STATEMENT; ISSUES
STANLEY N. OHLBAUM, Administrative Law Judge: This
proceeding under the National Labor Relations Act as
amended , 29 U.S .C Sec . 151 et seq. ( "Act" ), was brought
on by complaint issued on January 28, 1974, by the
Board 's Regional Director for Region 10 growing out of a
charge filed on November 23, 1973, as amended on Janu-
ary 18 , 1974, by the above Charging Party Union. It was
tried before me in Birmingham , Alabama, on February
21-22, 1974, with all parties participating throughout by
counsel or other representative and afforded full opportu-
nity to present evidence and contentions . At their request,
General Counsel and Respondent were afforded adequate
time , initially over 1 month , subsequently extended upon
application , to submit briefs, which were filed on April 8,
1974. Those briefs, as well as the entire record, have been
carefully considered.
The principal issue here for decision is whether Respon-
dent violated Section 8(a)(5) and ( 1) of the Act by refusing
to bargain with the Union as exclusive collective-bargain-
ing representative of an appropriate unit of Respondent's
employees , concerning Respondent 's closing down and
transfer elsewhere of its Birmingham , Alabama , printing
facility in November 1973. Related subordinate issues are
discussed below . For reasons to be explicated , I resolve the
basic issue in the affirmative , holding that Respondent's
actions violated Section 8 (a)(5) and (1).
573
Upon the entire record and my observation of the testi-
monial demeanor of the witnesses , I make the following:
FINDINGS AND CONCLUSIONS
II. JURISDICTION
At all material times, Respondent was and is a Michigan
corporation, with principal place of business in Detroit,
Michigan , and an office and place of business in Birming-
ham, Alabama, engaged in manufacture, sale, and distribu-
tion of business forms and business equipment supplies. In
the course and conduct of that business during the repre-
sentative year immediately preceding issuance of the com-
plaint, Respondent sold and shipped finished products val-
ued in excess of $50,000 directly in interstate commerce to
customers outside of Alabama.
I find that at all material times Respondent has been and
is an employer engaged in commerce and in operations
affecting commerce within the meaning of Section 2(6) and
(7) of the Act; and that the Charging Party Union has at all
of those times been and is a labor organization within the
meaning of Section 2(5) of the Act.
111. UNFAIR LABOR PRACTICES
A. Facts as Found
1. Background
Respondent manufactures and sells business machines
and business forms. It has maintained a printing plant and
storage facility-one of several geographically distributed
throughout the country-in Birmingham , Alabama, for
many years; employees at that facility have been in its em-
ploy for as many as 20-30 years, the average length of
employment of the 40-45 employees there being around 14
years. At the times here material , that printing plant facili-
ty was located at 220 South 34th Street in Birmingham.
2. Unionization and its sequelae
By official secret ballot election conducted under the
auspices of the Board 's Regional Director for Region 10 on
February 22, 1973, a majority of Respondent' s Birming-
ham employees in a conventional production and mainte-
nance unit , concededly appropriate for collective bargain-
ing, selected and designated the Charging Party Union as
their exclusive representative for collective bargaining pur-
suant to the Act; and on March 2, 1973 , the Union was
formally so certified by the Regional Director in accor-
dance with the Act. The Union has continued as such rep-
resentative at all times to and including the present.
On or about May 3, 1973, Respondent instituted a Bir-
mingham warehousing or storage facility at 2600 Second
Avenue South, ancillary to its described Birmingham print-
ing plant six to seven or eight blocks away at 220 South
34th Street . At various material times Respondent transfer-
red employees from its aforedescribed printing plant bar-
gaining unit to its said newly instituted warehousing or
storage facility , where Respondent concedes they were uti-
lized and "assigned to work."
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Collective bargaining between Respondent and the
Union commenced on May 31, 1973. At all times during
those negotiations-that is, until the very end, under cir-
cumstances to be described-the production and mainte-
nance employees at the 2600 Second Avenue South ware-
house facility were considered and treated by the parties as
members of the bargaining unit and were included there-
In.' Although tentative accords were reached by the parties
on various noneconomic topics , no full and final overall
contract was arrived at or executed by mid-September
1973, and on September 20 the unit employees went out on
strike , picketing both of the aforedescnbed work locations.
No meetings took place between Respondent and the
Union between September 18 (2 days before the strike
started) and November 7, 1973. On or about November 2,
a meeting was called and held by Respondent with its em-
ployees ' bargaining representatives (i.e., the Union and the
employees ' committee) on November 7, 1973. In
Respondent's own words , as reduced by it to writing (p. 1
of November 12, 1973, letter to Union from J. F. Rosier,
Jr., Respondent 's director of employee relations and corpo-
rate employee & industrial relations ; part of G.C. Exh. 2):
The Company requested the meeting and opened it
with the following statement:
We are here to notify you, as the Collective Bar-
gaining Agent of the bargaining unit employees, of
our intention to permanently cease printing opera-
tions at the Birmingham facility.
This action is being taken solely upon business con-
siderations . Declining sheet volume makes this ac-
tion necessary. The trend began back in 1961 with
the switch from sheet produced cut forms to web
produced system sets and continuous forms.
Some of the business reasons for closing Birming-
ham are:
The Birmingham lease expires in 1974.
The plant cannot be expanded to accommodate
growth products
The plant interior arrangement is the poorest of
all sheet plants.
i This matter was expressly discussed and agreed upon at the inception of
the collective negotiations Thus, at the second negotiating meeting , held on
or about June 5, the Union proposed and Respondent agreed that the em-
ployees assigned to the new warehouse-to which , as already stated, some
employees of the printing plant had been shifted-be included in the bar-
gaining unit When later negotiations reached the subject of seniority, the
warehouse employees were integrated into the seniority progressions, as
shown on p I of G C Exh 3-a Company proposal , to which the Union
agreed . It is further to be noted that Respondent 's own proposed collective
agreement of about August 2, 1973, expressly defines the bargaining unit to
include the production and maintenance personnel employed at the newly
established warehouse as well as at the printing plant (G C Exh 3, p I. sec
2, and sec 3, "5") And Respondent 's same proposed agreement makes
express provision for a union bulletin board at "the Birmingham Ware-
house" as well as at the "Birmingham Plant" (G C Exh 3, p 12)
We are ready to discuss with you the effect of the
plant closing on the bargaining unit employees.
At this same (November 7, 1973) meeting , Respondent's
chief spokesman-Employee Relations Director Rosier of
Detroit-also, for the first time , "raised the question of the
recently opened warehouse stating that we were of the
opinion that your Union's certification does not extend to
the Birmingham warehouse since it was opened after the
NLRB election and certification . Much discussion between
the parties took place on this point ." (Id., p. 2.)
As a sequel or consequence of Respondent 's November
7 announcement to "cease printing operations " (id., p.1) at
its Birmingham printing plant , effective further negotiation
ceased , so that no agreement has been arrived at between
the parties . Picketing-by all except one employee , and in-
cluding by all warehouse employees-continues at each of
the aforedescribed work locations (as well as at
Respondent 's sales office on 8th Avenue in Birmingham).
Although General Counsel does not contend that Re-
spondent bargained in bad faith prior to the commence-
ment of the strike on September 20, he and the Union
insist that that strike , "economic" in its inception , was con-
verted to and has continued and been prolonged as an
"unfair labor practice" strike by Respondent 's November 7
announcement that it was "ceas[ing] printing operations"
in Birmingham and by its refusal to bargain on that sub-
ject. For reasons hereafter explicated , I agree.
3. Respondent's principal contentions
a. Birmingham warehouse as an accretion
General Counsel urges, and Respondent disputes, that
the described Birmingham warehouse was an "accretion"
to the bargaining unit. In view of facts already found 2 and
circumstances and factors to be described, I find and con-
clude that it was.
As has been shown, shortly after certification of the
Union, Respondent instituted a storage or warehouse facil-
ity in the proximity (six to seven or eight blocks) of its
Birmingham printing facility. Although Respondent as-
signed and transferred employees-concededly members
of the bargaining unit-from its printing plant location to
the warehouse location, even had it not done so and even
had it hired a full new crew to work at the warehouse,3
such new crew could properly have been considered to be
within the bargaining unit under the circumstances here.
Leo A. Russ, called by General Counsel, testified that he
has been in Respondent's employ since 1955, almost 20
years. His testimony establishes that around December
1972 his Supervisor Chandler indicated to him that Re-
spondent needed more space than was available at the
printing plant, and that subsequently Respondent acquired
2 Supra, including In 1
3 Respondent ' s Director of Industrial Relations Rosier testified that, of
the four warehouse employees , two had been transferred from the printing
plant stock and shipping room, and the other two were only temporaries
(vacationing college or university students)
BURROUGHS CORPORATION
extra storage space at the nearby described "warehouse"
facility. In May 1973, Russ was transferred from his job as
"stock handler" at Respondent's Birmingham printing
plant to Respondent's newly instituted, nearby warehouse,
under the same job title (i.e., "stock handler" ). At the
printing plant, his duties had been to receive and store
merchandise, and to pull and fill orders; at the warehouse
it was substantially the same. His supervisor at the ware-
house remained Robert Chandler, the bindery and stock-
room supervisor 4 at the printing plant. When extra help
was needed at the warehouse, it came from the printing
plant. Except for two part-time college students and some
temporary help to set up the warehouse, all of the employ-
ees at the new warehouse came from the printing plant.
The warehouse had the same hours and other terms and
conditions of employment as the printing plant. When
Russ was assigned to the warehouse, there was no change
in his shift, hours, or other terms and conditions of em-
ployment. He also continued to utilize the same equipment
to do his job, including a forklift and scales. (Unlike the
printing plant, however, there is a railroad siding at the
warehouse.) Russ continues to have the same payroll num-
ber at the warehouse as he has had at the printing plant,
and he still receives his paychecks from Chandler. Supplies
and equipment were interchanged with the printing plant.
Russ continued to lunch with employees of that nearby
plant. After the opening of the warehouse, orders received
at the printing plant were filled at the warehouse. The same
business forms produced by Respondent were maintained
at the warehouse as had been maintained in the pnnting
plant stockroom (including "customized" forms). 5 Russ re-
ceived no additional training before being assigned to the
warehouse.
As has already been shown and found, from essentially
the inception of the parties' negotiations they recognized
and treated the employees at the new warehouse as mem-
bers of the bargaining unit, agreeing-and properly so-
that they should be so regarded. As has been shown,
Respondent's own proposals and draft agreements explic-
itly so regarded and designated them. Indeed, at the trial
the chief of Respondent's negotiating team, Director of
Employee Relations Rosier, testified that during the nego-
tiations tentative agreements were reached on all noneco-
nomic matters, including recognition, union shop, check-
off, etc.; and that specific agreement was reached recogniz-
ing the Union as representing the warehouse employees. It
was not until November 7 when, accompanying its an-
nouncement that it was "ceas[ing] printing operations at
the Birmingham facility," Respondent suggested that its
recognition that the employees working at the warehouse
4 Also bindery foreman at the printing plant, according to General Coun-
sel witnesses McKenzie (the union representative) and Compton
5 While Respondent contends that it stores a far larger quantity of busi-
ness forms (notably "customized" forms) at the new Birmingham warehouse
location , including some never previously stocked at the Birmingham print-
ing plant and also some general use business forms prepared mostly else-
where than in Birmingham , and that some of its storage has been shifted to
Birmingham, I do not regard these factors as being inconsistent with the
employees at the Birmingham warehouse being members of the same bar-
gaining unit as its Birmingham printing plant employees, particularly under
the circumstances here shown
575
were in the bargaining unit was not final on its part since it
had not signed a full formal collective agreement. Such a
signed, formal collective agreement is not, however, a pre-
requisite to inclusion of employees in a bargaining unit if
they are indeed, in fact or in law, properly to be regarded
as members of the bargaining unit, by accretion or other-
wise. Respondent's consistent recognition of the warehouse
employees as bargaining unit members, over a period of
months during which they were in fact as such bargained
for and about, imports a concession on Respondent's part
of the propriety of so regarding them, particularly consid-
ering the basic facts-including the circumstances under
which the warehouse facility was established, its proximity
to the printing plant, its assignment and transfer of em-
ployees (bargaining unit members) and supervisor there
from the printing plant, the substantial similarity if not
identity of their duties in both places, the integration of
their duties in both places, the integration of the functions
as well as the personnel at both locations, the common if
not identical bargaining interest of the employees in both
locations, and the parties' consistent treatment of both
groups without distinction as bargaining unit members in
their collective-bargaining negotiations.
Under all of these circumstances, rejecting Respondent's
contentions to the contrary, I find and conclude that
Respondent's described Birmingham warehouse location
was an accretion to its described Birmingham printing
plant, and that the production and maintenance employees
at both of those locations were and are members of the
appropriate bargaining unit here. Cf., e.g., The Great A & P
Tea Co., 140 NLRB 1011 (1963).
b. Respondent 's November 7, 1973, action as a refusal to
bargain about cessation of its printing plant in Birmingham
Respondent concedes (supra) that it "requested the [No-
vember 7 1973] meeting and opened it with the following
statement : `We are here to notify you . . of our intention
to permanently cease printing operations at the Birming-
ham facility . This action is being taken solely upon busi-
ness considerations. . . . We are ready to discuss with you
the effect of the plant closing on the bargaining unit em-
ployees." Notwithstanding , Respondent now contends that
it stood ready at all times to discuss and negotiate with the
Union the subject of its cessation of its Birmingham print-
ing operations, and not merely the effect thereof on the
employees. For reasons to be described , I am of the view
and find that Respondent 's November 7 announcement to-
gether with the totality of its actions constituted a failure
and refusal to bargain with its employees ' duly designated
representative concerning its decision to discontinue its
Birmingham printing operations and to transfer them else-
where.
Following certification of the Union , Respondent, as
shown, opened a warehouse in the proximity of its Bir-
mingham printing plant, and shifted to that warehouse cer-
tain work activities which unit employees had been per-
forming at the printing plant . Thereafter , from May 31 to
mid-September 1973, the Respondent and the Union bar-
Even in an otherwise aborted January 23, 1974 , meeting
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gained inconclusively but without reaching impasse. No
bargaining took place between September 20, when the
employees went out on strike, and November 7, 1973,
when Respondent announced the closing of its Birming-
ham printing plant-but not its warehouse 7 -and that it
was "ready to discuss with you the effect of the plant clos-
ing on the bargaining unit employees" (emphasis supplied).
If there is any doubt from Respondent's quoted an-
nouncement at the November 7 meeting that it intended to
limit negotiation to "the effect of the plant closing" and to
avoid negotiation concerning its decision to "cease printing
operations" at Birmingham, that doubt is dispelled by the
attendant circumstances and credited testimony of witness-
es on both sides.
When Respondent made its quoted announcement re-
garding cessation of its Birmingham printing operations at
the November 7 meeting-which Respondent had called-
it came as a bombshell surprise to the employees and the
Union,8 to whom no such possibility had in any way been
previously intimated. Although, in view of Respondent's
announced limitation of the scope of the negotiations it
was willing thereupon to enter as being only the "effect of
the plant closing," the Union entered into initial discus-
sions on the latter subject-encompassing such matters as
severance pay and job transfers, as to all of which no con-
sensus has emerged in the long interval since that time-
this by no means constituted a waiver or abandonment by
the Union of any requirement resting on Respondent to
bargain on the subject of the precipitate cessation of its
Birmingham printing operations. When the November 7
negotiating session rapidly closed, with employees in a
state described as "shock," it was with the understanding
that it be resumed the following day to afford the employ-
ees an opportunity to formulate a position. At the negotiat-
ing meeting on the following day, November 8, employee
negotiating spokesman McKenzie (the union representa-
tive) asked Respondent's chief negotiator Rosier (director
of employee relations) whether the printing plant would be
closing down if the Union had accepted the Company's
last offer. Rosier's answer was in the negative When Mc-
Kenzie inquired whether the plant would remain open if
the Union now accepted the Company's offer, Rosier re-
plied that it was too late.9 Rosier also indicated that the
newly established Birmingham warehouse would remain
7 Respondent 's Birmingham storage facility or "warehouse" is still in op-
eration
8 Respondent 's witness Maxwell (its general manager of manufacturing
engineering of its business forms and supplies division ) conceded that
Respondent's decision to discontinue its Birmingham printing operation
was first disclosed outside of the company hierarchy on November 7, 1973,
by Director of Employee Relations Rosier at the meeting with the Union on
that day
9 Although Respondent now contends it in fact engaged in bargaining
with the Union on November 7 on the subject of its decision to close its
Birmingham pnnting plant , I cannot regard the foregoing or anything else
which took place at that meeting, as credibly described at the hearing, as
constituting bargaining within the Act's requirements At no time did Re-
spondent in any way indicate any willingness to discuss its decision to dis-
continue printing at Birmingham Contrary to Respondent 's apparent posi-
tion , I do not regard the fact that it was theoretically open to the Union to
attempt to discuss this subject with Respondent as an answer to
Respondent 's announcement of cessation of operations coupled with its
limitation of bargaining to the effect thereof
open and that it was not within the Board's certification. 10
The testimony of Respondent' s own witnesses strongly
suggests , if indeed it does not itself establish, that by No-
vember 7 it had determined to terminate its Birmingham
printing operations and that a primary purpose of its No-
vember 7 meeting with the Union and its employees' bar-
gaining committee was to announce that decision. Thus,
Respondent' s witness Maxwell, general manager of manu-
facturing engineering of its business forms and supplies di-
vision, testified about having been involved in the
Company's "decision" to close the Birmingham printing
plant, which was reached based on his recommendation of
October 11, approved by the top hierarchy of the Company
in Detroit on October 29, 1973. Respondent's chief negoti-
ating spokesman, Director of Employee Relations John F.
Rosier, Jr., of its Detroit office, also testified extensively on
this subject. Conceding that he opened the November 7
meeting by reading the statement which has been quoted
above, he testified that after doing this he then said, "We
[are] here to discuss the effects that this decision would have
on the Birmingham plant employees" (emphasis supplied).
Although, at this, the Union did not ask to negotiate con-
cerning that decision by Respondent, Rosier concedes that
Respondent at no time suggested or indicated that this
could be done. Although at the hearing Rosier denied say-
ing that the printing plant closing was because of the strike,
he at the same time admitted that when union representa-
tive McKenzie asked whether the plant would have contin-
ued in existence if the Union had accepted the Company's
proposals, he (Rosier) replied in the affirmative, adding
that although the strike was not the "culminating" factor it
had been a "consideration" since the work was being done
elsewhere And Rosier, a credible witness (like, on the
whole, Respondent's preceding witness, Maxwell), candid-
ly conceded on cross-examination that at the meeting of
November 8 he was twice asked by union negotiator Mc-
Kenzie whether the Birmingham printing plant would be
operating if the Union had accepted the Company's last
offer, and that he (Rosier) replied, "Yes"; and further, that
when he (Rosier) was then also asked if the plant would be
open if the company proposal were accepted now, Rosier
replied, "No.... a decision had been made . . . it [is] too
late." According to Rosier, he was notified in late October
or early November 1973, by top officials of the Company's
hierarchy that the "decision" had been made "to close .. .
the printing plant in Birmingham" (not, it is noted, that the
Company would negotiate on this subject); it was for this
reason, to make this announcement, that the November 7
meeting was convoked, and it was at that (November 7)
meeting that the Union was first informed of that decision.
Rosier further testified that at no time did he receive any
indication that the Company's decision to discontinue
printing at Birmingham was not a firm or final decision or
that he had any authority to negotiate in that regard."
10 The foregoing findings are based on the testimony of General Counsel's
witnesses McKenzie , Compton, Collins, and Stamps, which is in substantial
accord and strongly mutually corroborative
ii Rosier also testified that he nevertheless would have "listened" to any-
thing said by the Union in this regard and would have reported it back to
his superiors I do not regard this-particularly since not communicated to
the Union-as altering the essential nature of Respondent's announced de-
cision to cease its printing operations at Birmingham nor of its expressed
BURROUGHS CORPORATION
Asked whether it was his position that he was prepared to
negotiate with the Union on the subject of that plant dis-
continuance after he first made it known on November 7,
Rosier conceded that on the very next day , November 8, he
stated it was "too late." lz
Additionally , two letters , dated November 12 and De-
cember 3 , 1973, each from Respondent 's Director of Indus-
trial Relations Rosier to the Union (forming part of G.C.
Exh. 2) make it abundantly clear that Respondent was will-
ing to negotiate with the Union only on the subject of the
effect of its announced discontinuance of its Birmingham
printing plant.
On top of the foregoing , it is observed that in a letter
dated December 27, 1973 (G.C. Exh. 2), summarizing
events herein from Respondent 's viewpoint , Respondent's
counsel wrote to a Board agent that "on November 7 and
8 . . the Company notified the Union of its decision to
terminate operations at the Birmingham facility" (p.2); and
in various other portions of the letter there are references
to "the Company's decision to terminate operations at the
Birmingham facility" (e.g., pp . 3 & 4). On page 4 of that
letter the statement occurs that "At the outset, let the rec-
ord reflect that the Company is not `threatening to close'
the plant , but has, in fact , decided to terminate operations
at the Birmingham facility as was announced to the Union
on November 7." On page 5 of the same letter, the follow-
ing statement is made:
Further , it is our position that there was no obligation
to bargain with the Union with respect to such deci-
sion [to terminate the Company 's printing plant in Bir-
mingham] , but merely to bargain as to the effects of
the decision on the unit employees. . .
If, during all this letterwriting as well as meetings, Re-
spondent had been willing to discuss with its employees'
representatives the subject of its decision to discontinue its
Birmingham punting plant , under the circumstances
shown , it would have been a simple matter for it to have
said so in plain words, as it did in explicitly stating repeat-
edly that it was prepared to discuss the "effect" of that
decision.
In light of this record , I believe it abundantly clear and
accordingly find that Respondent 's November 7, 1973, an-
nouncement , as well as its actions at all times since then,
constituted a refusal to bargain on the subject of its deci-
sion, unilaterally arrived at on its part prior thereto, to
discontinue its Birmingham printing plant. I further find
that at no time has Respondent bargained on that subject
nor indicated or evinced willingness to bargain thereon.
limitation of bargaining to the "effect" thereof
12 In view of the contrary testimony of Respondent's own credited wit-
nesses Rosier and Maxwell, as well as General Counsel's credited witnesses
McKenzie, Compton, Collins, and Stamps, I reject and discredit the testi-
mony of Respondent's Manager of Sheet Plant Employee and Industrial
Relations Huntress to the effect that Rosier not only indicated willingness
to discuss the effects of the Birmingham printing plant discontinuance but
also the closing itself
13
These, more complex than the "sheet" or "cut' forms, are punched or
rolled and collated or assembled into packs or otherwise The Birmingham
printing plant was not then producing such forms
577
c. Respondent's cessation of its printing operations at
Birmingham as a "Total Shutdown" rather than a
"Transfer" elsewhere,- alleged "Economic" factors involved
Respondent further contends that its described action
constituted a total and permanent shutdown of its entire
former operations in Birmingham, for valid economic rea-
sons, and not merely a partial shutdown or transfer thereof
elsewhere. For reasons to be explicated, I disagree also
with these contentions and find that its described actions
constituted a transfer of a portion of those operations to
other locations, while maintaining a portion thereof in Bir-
mingham; and I conclude that, although Respondent has
failed to establish factual or legally valid economic necessi-
ty therefor, in any event economic necessity is not a de-
fense to failure to bargain as required by the Act.
Respondent's Birmingham printing plant is not the only
such facility it has. Respondent has a number of printing
plants and business forms storage facilities geographically
and strategically situated throughout (as well as outside of)
the country. Thus, at the time of the strike herein at its
Birmingham printing plant, it was perhaps a relatively sim-
ple matter, though perhaps inconvenient and involving ex-
pense, to divert orders from there-as credibly testified by
General Counsel witness Compton, who has been em-
ployed by Respondent since 1956, almost 20 years-to its
other printing plants at Dallas, Denver, and Cincinnati.
Respondent's general manager of its manufacturing en-
gineering of its business forms and supplies division, Rich-
ard E. Maxwell, called by Respondent, testified at length
concerning some aspects of its organizational methodolo-
gy. He is stationed at Respondent's Rochester, New York,
headquarters. As described by Maxwell, in 1973 the Bir-
mingham printing plant here involved, coming under his
jurisdiction, was one of eight of Respondent's business
forms plants, and one of five such plants producing "sheet"
or "cut" forms, which, when bound, are shipped to custom-
ers. Maxwell claims that on October 4, 1973, he noted-or,
more accurately, again observed, since this was concededly
not a novel observation-a change, of unquantified degree,
in consumer demand for "rotary-type" or "pin register" 13
rather than "sheet" or "cut" forms. Although Maxwell de-
scribed the change as a "significant" downward trend, he
conceded that what he meant by this was no more than a
prediction for some indeterminate time in the future, since
the level of consumer demand for the "sheet" or "cut"
forms being produced at Birmingham and four other Bur-
roughs plants (i.e., Dallas, Cincinnati, Denver, and Tolland
[Connecticut] ), as well as industrywide, had remained con-
stant, and that there was even a backlog of orders waiting
to be filled at Birmingham. Since the strike of employees at
Birmingham commenced on September 20, it was thus
roughly contemporaneously and subsequent thereto-by
coincidence or otherwise-that the described Maxwell ob-
servations took place, and that the printing work then in
process at Respondent's Birmingham printing plant was
shifted to one or more of Respondent's four other printing
plants turning out "sheet" or "cut" forms, and that Re-
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent initiated its determination to discontinue printing
operations at its Birmingham printing plant. Maxwell as-
cribes this decision to the predictive "factor" for other prod-
ucts already noted, in the face of a concededly stable de-
mand for products of the type being produced at Birming-
ham; to the fact that the Birmingham printing plant lease
was due to expire on August 31, 1974-almost a year later,
with no indication that renewal thereof was economically
unfeasible 14 or even automatic under the terms thereof,
nor that other, suitable facilities could not readily be ob-
tained in Birmingham or its vicinity; to conclusory and
vague observation that the Birmingham facility offered
"relatively little economic feasibility for expansion"; to his
conclusion that the "available space" at the Birmingham
printing plant was "not particularly well laid out for manu-
facturing"-in the face of the fact that it had been in exis-
tence for approximately 20 years, and again, with no indi-
cation that ample suitable facilities were not readily and
economically available in Birmingham or its vicinity; and,
finally, to his assertion that Birmingham is "geographically
.. . less well located" than Respondent's other plants-
again, in the face of its location there for some 20 years
and the further fact that removal of that plant concededly
left a total void for the southeast in Respondent's country-
wide geographic coverage (a void which, as educed on
cross-examination, would be filled by Respondent's imple-
mentation of its recent decisions-i.e., after its decision to
discontinue its Birmingham printing plant-to open two
other printing plants, one at Salisbury, Maryland, with at
first 70 and eventually 200 employees, and one at Rocky
Mount, Virginia, with 150-200 employees). Conceding that
no consideration had been given to moving the Birming-
ham printing plant to elsewhere in Birmingham or in the
Birmingham area (not only for "sheet" or "cut" forms pro-
duction, but also for "rotary-type" or "pin register" forms
production), Maxwell further conceded that one of the fac-
tors involved in Respondent's decision to discontinue its
printing operations at Birmingham was the "anticipated
additional costs of operating that plant"-which cannot be
assumed not to include additional labor costs through the
impact of unionization of that plant. Maxwell testified that
the decision to close the Birmingham printing plant was for
"economic reasons" unrelated to the September 20 strike
"except for timing" since Respondent's printing work there
was "reassigned" to other locations after the strike started
so as to "service the customers"-again indicating a con-
tinuin need for the printing service performed at Birming-
ham.lg
On cross-examination, Maxwell conceded that, at the
time of his described observations and review of the situa-
tion in October 1973, he was "well aware" of the Union
and collective-bargaining situation and strike at the Bir-
mingham plant, that anticipated "labor costs" did indeed
enter into Respondent's decision to discontinue that plant,
14 Maxwell conceded on cross-examination that he never received any
indication that the Birmingham lease could not be economically renewed if
ResFondent wished to renew it
1 Although Maxwell indicated that Respondent has closed other plants
elsewhere-two in the past 14 years-no significance can be ascribed there-
to, in terms of the issues here presented, at any rate in the absence of a
comprehensive showing of the precise comparative circumstances thereof
and that his projection of estimated "savings" through
1977 from the closing of that plant (Resp. Exh. 4, p. 3)
included savings of "labor costs." Also according to Max-
well, since the strike at Birmingham, various items of print-
ing equipment, related to continuation of Respondent's
production requirements including those for Birmingham
plant customers, have been transferred from there to
Respondent's Denver and Dallas plants;16 and its person-
nel at its four other comparable printing facilities were in-
creased by a total of 24 employees (including supervisory)
between September 30 and December 31, 1973)
Respondent's chief negotiator, Director of Employee
Relations Rosier, testified, consistently with Maxwell, that
the strike of employees at Birmingham was a "consider-
ation" in its decision to terminate printing operations
there, since the printing work which had been done there
had been shifted elsewhere.
To the foregoing must be added certain statements made
on Respondent's behalf, in a December 27, 1973, letter
from its counsel, to the Board investigator (G.C. Exh. 2);
namely, that after commencement of the strike (September
20, 1973) Respondent made "[a]rrangements . . . to trans-
fer work normally performed at the Birmingham plant to
other plants of the Company" and that, "in order to meet
the increased demands on the capacity of these other
plants due to the increase in volume of work necessary to
be performed at these locations," Respondent "relocate[d]
certain equipment which was located at the Birmingham
facility" t (id., p. 3); that after Respondent's rapidly ensu-
ing decision to terminate its printing operations at Bir-
mingham-at least in part for "economic" reasons includ-
ing "labor costs," as conceded by Respondent's witness-
es-"arrangements have been made to relocate the
remaining equipment to other of the Company's locations
to be utilized in their production operations" (id. ); that the
Birmingham "strike precipitated the Company's manage-
ment to reassess and reconsider its future manufacturing
plans . . . for the Birmingham facility" (id., p.4); and that
"the strike made it necessary to transfer work normally
performed at the Birmingham facility to other locations in
order to meet customer requirements. It was discovered
that these other locations could reasonably absorb the in-
creased volume of work, which further made the Birming-
ham facility expendable from a business standpoint." (id.,
p 5) . 19
It is finally to be noted that not only has the lease at
Respondent's Birmingham printing plant premises not ex-
pired, but that, with the exception of the items of equip-
ment which have been described, that plant continues to be
16 These are listed in the December 27, 1973, letter from Respondent's
counsel to the Board agent (G C Exh 2, p 3) as consisting of six numbering
machines shipped on October 2 to Respondent's Denver plant, a precollator
shipped on October 5 to its Dallas plant, and two AB Dick printing presses
shipped on October 23 to its Dallas plant
As of September 20, 1973, there were 43-45 employees in the Birming-
ham bargaining unit, including employees at the new warehouse location
18 This equipment is described in fn 16, supra
19 A previous portion of the same letter (p 4) lists "the Union's demands
for a substantial wage increase, reduced working hours, increased overtime
premium and increased vacation time off" as "major areas" of bargaining
divergence resulting in the strike and which, as aforestated, "precipitated
the Company's management to reassess and reconsider its future manufac-
turing plans for the Birmingham facility "
BURROUGHS CORPORATION
otherwise intact, and with or without-but in any event
with-the return of those items of equipment, able to re-
sume operations.
In view of the circumstances shown, I consider it abun-
dantly clear and accordingly find that Respondent's an-
nounced decision to "cease printing operations at the Bir-
mingham facility" (G.C. Exh. 2, Respondent's letter of No-
vember 12, 1973, to Union, p.1) was-contrary to
Respondent's contention-not a shutdown of its Birming-
ham printing operations, but merely a transfer and redistri-
bution thereof among its other printing plants, while main-
taining and expanding an essential part of its Birmingham
operation-namely, its storage, warehousing, and customer
supply facilities-in Birmingham; and that no economic
necessity therefor has been established by substantial cred-
ible proof, even though, for reasons to be described, eco-
nomic necessity would in any event not constitute a legal
justification for Respondent's failure and refusal to bargain
with respect to its announced decision to "cease pnnting
operations at the Birmingham facility."
B. Resolution and Rationale
Conceding it was and is obliged to bargain concerning
the effects of its discontinuance of its printing operations in
Birmingham, Respondent insists it was and is under no
obligation to bargain concerning its decision to discontinue
those operations. ° Under the circumstances shown, I dis-
agree.
Notwithstanding disapproval by some of the Circuits 21
(although it may be questioned whether such disapproval
would be extended to the circumstances here shown),
seemingly not including the District of Columbia 22 the
Fourth, or the Fifth 24 in which this case arises, the Board
appears consistently to have adhered to the principle that
an employer must bargain with employees concerning a
partial discontinuance or shifting, change, or relocation of
its business operations affecting the terms and conditions
of unit employees, as well as concerning the effects thereof.
The Board's rationale, derived from or consistent with
principles firmly established by the Supreme Court in Fi-
breboard 25 (that elimination of bargaining unit jobs re-
20"[I]t is our position there was no obligation to bargain with the Union
with respect to such decision, but merely to bargain as to the effects of the
decision on the unit employes " (Respondent 's counsel's December 27,
1973, letter to the Board Agent Cynthia P Bibb, G C Exh 2, p 5)
21 Notably the Third (N L.R B v Royal Plating and Polishing Co, Inc,
350 F 2d 191 (1965), Eighth IN L R B v Adams Dairy, Inc, 350 F 2d 108
(1965), cert denied 382 U S 1011 (1966) ), Ninth (N L R B v Transmarine
Navigation Corporation, 380 F.2d 933 (1967); and Tenth (N L R B v Thomp-
son Transport, inc, 406 F 2d 698 (1969)) Cf also N L R B v Dixie Ohio
Express Company, 409 F 2d 10 (C A 6, 1969)
2 International Ladies' Garment Workers Union [McLoughlin Mfg Corp ]
v N L R B, 463 F.2d 907 (C.A D C , 1972), motion for leave denied 392
U.S. 922
23 Cf remarks infra, In 25, in relation to Darlington on remand
24 N L R B v Winn-Dixie Stores, Inc, 361 F 2d 512, 517 (C A 5. 1966),
cert. denied 385 U S. 935 (1966)
25
Fibreboard Paper Products Corp v N L R B, 379 U S 203, 210 (1964)
Subsequent to Fibreboard, the Court ruled in Textile Workers Union of
America v Darlington Manufacturing Co., 380 U S 263 (1965), that an em-
ployer may at any time, without violating Section 8(a)(3) of the Act, totally
close down its business to avoid dealing with a Union, but may not partially
close down its business if its foreseeable purpose for so doing is to "chill
579
quires bargaining since it comes within the Act's phrase
"other terms and conditions of employment" ), as ex-
pressed in Ozark Trailers, Inc., 161 NLRB 561, 566 (1966),
has been:
[A]n employer's decision to make a "major" change in
the nature of his business, such as the termination of a
portion thereof, is also of significance for those em-
ployees whose jobs will be lost by the termination.
For, just as the employer has invested capital in the
business, so the employee has invested years of his
working life, accumulating seniority, accruing pension
rights, and developing skills that may or may not be
salable to another employer. And, just as the
employer's interest in the protection of his capital in-
vestment is entitled to consideration in our interpreta-
tion of the Act, so too is the employee's interest in the
protection of his livelihood.
The quoted rationale is singularly applicable here, where
employees were summarily ousted from jobs they had held
for 20-30 years, in effect for or as a direct sequel to exercis-
ing a right guaranteed to them by Congress in the Act. It is
difficult to perceive justification for an arbitrary refusal to
bargain concerning matters at the very core of the employ-
ment relationship and its continuance, particularly in the
light of the Act's mandate, the teachings of myriads of
reported cases and other publications, and common indus-
trial relations experience that in the peristalsis of bargain-
ing many ideas are born and compromises and accommo-
dations made so as to keep operations going instead of
summarily delivering them up to the executioner's axe. It is
no answer to this to insist that employers have the right to
manage their own affairs. Of course they do, as do employ-
ees and unions. But the obligation to bargain, imposed by
the Act in the collective wisdom of its enactors, requires no
more than to bargain in good faith-not, as has innumera-
ble times been pointed out, necessarily to agree.26
Nor is it an answer to the Act's bargaining obligation
that "economic" factors mandated a partial discontin-
uance and shifting of an employer's operations from one
plant to another, particularly where-as here-the
employer's decision follows on the heels of unionization
and concededly is based at least in part on added "labor
costs" because of the unionization and is triggered by an
employees' strike. Royal Norton Mfg. Co., 189 NLRB 489
(1971). These are the very matters that collective bargain-
ing involves; when bargained about, they frequently if not
usually result in a scaledown or readjustment of union eco-
nomic demands.
Finally, it is emphasized that the issue here-unlike that
in Darlington 27 -is not Respondent's right to discontinue
unionism" at another of its plants Darlington did not involve any issue of
violation of Section 8(a)(5) of the Act On remand of Darlington to the
Fourth Circuit, the Board 's decision that the employer was in violation of
Section 8(a)(3) for chilling unionism in its other plants was enforced, 397
F 2d 760 (1968), and certiorari thereafter denied 393 U S 1023 (1969)
26 Ozark, supra, 161 NLRB at 568
27 Supra, In 25 It is also to be observed that in the instant case-further
unlike Darlington-Respondent's announced decision to discontinue its
printing operations at Birmingham and its refusal to bargain on that subject
Continued
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its printing operations at Birmingham or to shift them else-
where-it undoubtedly has that right-but to bargain col-
lectively with its employees on that subject. Under the cir-
cumstances shown, for the reasons explicated, I hold and
conclude that Respondent did and does have that obliga-
tion.
It is accordingly concluded that Respondent violated
Section 8(a)(5) and (1) of the Act by failing and refusing to
bargain with the Union concerning its partial discontin-
uance of its printing operations at its Birmingham plant as
described and found; and that the strike of the bargaining
unit employees there was, under the circumstances shown,
on November 7, 1973-the date on which Respondent an-
nounced and since which it has maintained that decision-
converted to an unfair labor practice strike, which since
that time it remains. Fibreboard Paper Products Corp v
N.L.R.B., 379 U.S. 203, 210-215 and 215-217 (1964); Royal
Typewriter Company, 209 NLRB 1006 (1974); Southeastern
Envelope Co., Inc., 206 NLRB 933 (1973); Bruce E. Kronen-
berger and Herbert Schoenbrod d/b/a American Needle &
Novelty Company, 206 NLRB 534 (1973); Harper Truck
Service, Inc., 196 NLRB 262 (1972); Plastics Transport Inc.,
193 NLRB 54 (1971); Regal Aluminum, Inc., 190 NLRB
468 (1971); Royal Norton Mfg. Co., 189 NLRB 489 (1971);
Fraser & Johnston Company, 189 NLRB 142 (1971), modi-
fied 469 F.2d 1259 (C.A. 9, (1972) ); Morrison Cafeterias
Consolidated, Inc., 177 NLRB 591 (1970), enforcement de-
nied in part 431 F.2d 254 (C.A. 8, (1970) ); The Red Cross
Drug Company, 174 NLRB 85 (1969), enfd. 419 F.2d 1245
(C.A. 7, (1969) ); Drapery Manufacturing Co., Inc, 170
NLRB 1706 (1968), modified 425 F.2d 1026 (C.A. 8, 1970);
Thompson Transport Company, Inc., 165 NLRB 740 (1967),
enforcement denied in part 406 F.2d 698 (C.A. 10, 1969),
and 184 NLRB 38; McLoughlin Mfg. Corp., 164 NLRB
140, 141, enfd. as mod., 463 F. 2d 907 (C.A.D.C.), motion
for leave denied 392 U.S. 922; McGregor Printing Corpora-
tion, 163 NLRB 938, 939-940 (1967); Ozark Trailers, Inc.,
161 NLRB 561, 564-570 (1966); Royal Plating and Polish-
ing Co., Inc., 148 NLRB 545, 547-48 (1964), and 152
NLRB 619 (1965), enforcement denied 350 F.2d 191 (C.A.
3, 1965), and 160 NLRB 990 (1966); Winn-Dixie Stores,
Inc., 147 NLRB 788 (1964), enfd. as modified 361 F. 2d 512
(C.A. 5, 1966), cert denied 385 U.S. 935 (1966). Cf. Order of
Railroad Telegraphers v. ChicaSo & North Western Railway
Co., 362 U.S. 330, 336 (1960). 8
occurred during the course of and in avoidance of further negotiations with
the Union
Notwithstanding the foregoing, however, the ripples and chilling effect of
Respondent 's actions here in partially "discontinuing" or transferring some
of its Birmingham operations could not but be felt in its other plants, as I
find they were , particularly considering that Birmingham orders and work,
as well as some equipment, were openly transferred to those other plants
28 But cf Summit Tooling Company, 195 NLRB 479 (1972), enf 474 F 2d
1353 (C A 7, 1973), in which, however, the Board indicated that-wholly
unlike the instant case-the "practical effect [of the closing ] was to take the
Respondent out of the business of manufacturing tool and tooling prod-
ucts" (id, p 480) and that under these circumstances the Act did not require
"eliminating the prerogative of an employer to eliminate itself as an
employer" (id ) Intl Union, UA W, and its Local 864 (General Motors Corpo-
ration), 191 NLRB 951 (1971), affd 470 F 2d 422 (C A D C , 1972), involv-
ing an economic decision to sell an independent dealership , is in the same
category "It [General Motors Corporation ] did not overrule Ozark Trailers,
Inc, 161 NLRB 561, 565-570, and other decisions in which the Board,
Upon the foregoing findings and the entire record, I
state the following:
CONCLUSIONS OF LAW
1. Jurisdiction is properly asserted in this proceeding.
2. By failing and refusing at all times since November 7,
1973, to bargain with the Union as the duly certified exclu-
sive collective-bargaining representative of Respondent's
employees in an appropriate collective-bargaining unit,
concerning cessation of Respondent's printing operations
at its Birmingham , Alabama, plant, under the circum-
stances set forth and found in section III, supra, Respon-
dent has engaged and is continuing to engage in unfair
labor practices in violation of Section 8(a)(5) and (1) of the
National Labor Relations Act as amended.
3. Said unfair labor practices have affected, affect, and
unless discontinued or permanently restrained and en-
joined will continue to affect commerce within the mean-
ing of Section 2(6) and (7) of the Act.
4. The economic strike of said unit employees which
commenced on or about September 20, 1973, was, by rea-
son of and in consequence of Respondent's unfair labor
practices referred to in Conclusion of Law 2, supra, on
November 7, 1973, converted to, and has at all times since
remained and is, an unfair labor practice strike.
REMEDY
Because of the strong equities presented in cases of this
type, where employees have been dislodged from their long
term livelihood and simultaneously stripped of effective
bargaining power through their employer's precipitate uni-
lateral removal of their place of employment, unusual rem-
edies will be encountered in the reported cases, tailored to
the individual case and seeking to repair the situation cre-
ated by the particular employer, in the frame of fairness to
the wronged employees without unnecessary harshness to
the wrongdoing employer. Cf., e.g., Garwin Corporation;
S'Agaro, Inc., etc., 153 NLRB 664 (1965), enfd. as modified
374 F.2d 295 (C.A.D.C., 1967), cert. den., 387 U.S. 942,
and 169 NLRB 1030 (1968), enfd. 70 LRRM 2465 (C.A.D.
C., 1969), cert denied 395 U.S. 980 (1969). The difficulty is
that of fitting broken pieces together again without creat-
ing an unacceptably imperfect product.
Although the Board has traditionally been loath 29
-notwithstanding the absence of similar reluctance on the
part of courts and even arbitrators-to exercise its power
to order return of "runaway" employers, in this case the
employer is not yet gone; it has but one foot out of the
door. Under the particular circumstances here presented,
with Respondent's Birmingham printing plant not yet dis-
assembled but still substantially intact-except for some
pieces of equipment, which can be returned with the same
notwithstanding court decisions to the contrary, held that an employer oper-
ating two or more plants was obligated to bargain with respect to a decision
to close one of those plants Decisions since General Motors have reached
the same result [Citations omitted ] Accordingly, we hold that Respondents
were required to bargain in good faith concerning the decision to close the
plant" Royal Typewriter Company, 209 NLRB 1006 (1974)
29 Cf , e g, Garwin, supra
BURROUGHS CORPORATION
apparent ease as they were removed-for startup of the
stalled operations there. (Respondent concedes in its brief
(p. 4) that this equipment is "not significant as compared to
the total capital equipment of the Birmingham facility." )
This being the case, the usual reasons for withholding a
resumption order not being here present, all things consid-
ered in my view an order to resume normal operations at
the Birmingham plant pending negotiations as to its future
fate would be appropriate, fair, and equitable here, and I
shall accordingly so recommend. Cf. Bruce E. Kronenberger
and Herbert Schoenbrod d/b/a American Needle & Novelty
Co., 206 NLRB 534 (1973).
Notwithstanding the foregoing, however , it is recognized
that for various reasons which cannot now be anticipated
and which may or may not eventuate by the time any rec-
ommended Order herein becomes final or is enforced,
compliance with the order to resume normal operations of
the Birmingham printing plant may become impossible,
impracticable, or unfeasible for no reason attributable to Re-
spondent. (Thus, for example, although Respondent's own
proof indicates no basis for believing that Respondent's
lease on the Birmingham printing plant premises-said to
be due to expire in August 1974 if not extended or re-
newed-cannot economically be renewed, or that an alter-
native suitable factory site in or around Birmingham can-
not readily be obtained, the theoretical possibility never-
theless remains that for no reason attributable to Respondent
such may not come about in view of the mere passage of
time until the recommended Order becomes final or is en-
forced.) In such event, and in such event alone, if reinstitu-
tion and resumption of the Birmingham printing plant is
not possible or feasible and does not take place within 60
days from the date the recommended Order herein be-
comes final or is enforced (or sooner), in lieu thereof Re-
spondent should be required to establish a special and
meaningful preferential hiring list for the displaced em-
ployees, since otherwise Respondent's employees who lost
their jobs in direct consequence of Respondent's unlawful
unilateral discontinuance of that portion of its operations
will have been totally deprived of a remedy restoring them
to those jobs or any substitute jobs. In connection with
such preferential hiring list, in view of the circumstances,
having in mind among other things that some of the em-
ployees of the Birmingham printing plant have grown old
in Respondent's service , Respondent should shoulder the
burden of the reasonable cost of their relocation. It is rec-
ognized that this alternative of establishing a preferential
hiring list and relocating those of its wrongfully displaced
employees who desire to avail themselves thereof-an al-
ternative here designed out of considerations of fairness to
Respondent, as an alternative to plant resumption-may
place Respondent in the position of having to make a hard
choice between resuming or altogether abandoning its Bir-
mingham operations, at its peril. However, on the analogy
of the tort-feasor who must disentangle himself from the
consequences of a situation of his own makmg,30 equity
30 Cf Judge Learned Hand in N L R B v Remington Rand, Inc, 94 F 2d
862, 872 (C A 2)
581
requires that Respondent rather than its wronged employ-
ees assume at least the initial risk of adverse findings, by a
trier of fact in any compliance proceedings supplemental
hereto, on the question of whether any failure on
Respondent's part hereafter to resume its Birmingham
printing operations, in accordance with the terms of the
Order herein, will in fact have been impossible, impractica-
ble, or unfeasible for a reason not attributable to Respon-
dent.
Respondent should, of course, also be required to refrain
from repetition of the violation found; to bargain collec-
tively in good faith on the subject of its professed intention
or decision to move its printing operations out of Birming-
ham; and to produce data for computation of such back-
pay and other sums and benefits as may be due, in accor-
dance with principles established in the Woolworth and Isis
cases.31 Under the circumstances here presented, involving
unfair labor practice strikers and a closed or suspended
plant operation ordered to be resumed, but with the possi-
bility nevertheless that it may not be resumell and that in
that event preferential hiring lists may have to be estab-
lished, backpay shall be calculated for each affected em-
ployee from a date 5 days from the date of his uncondition-
al application for remstatement,32 and shall continue until
(a) the date he is reinstated to his former (or, if not avail-
able, substantially equivalent) position in Respondent's re-
sumed Birmingham printing plant, or (b) the date said em-
ployee, at his election as herein provided, enters upon sub-
stantially equivalent employment in another of
Respondent's printing plants, or rejects or refuses such em-
ployment at each and all of said plants, or (c) the date said
employee enters upon substantially equivalent employment
elsewhere, whichever contingency "(a)," "(b)," or "(c)" oc-
curs earliest.
Respondent should also be required to post the usual
Notice to Employees.
Respondent has at no time disputed its obligation to bar-
gain with the Union concerning the effects of its an-
nounced decision to discontinue or transfer its Birming-
ham printing operations. Since the complaint neither alleg-
es any failure on Respondent's part to comply with that
obligation nor was the extent of Respondent's compliance
or noncompliance with that obligation litigated on this pro-
ceeding, I shall refrain from including any provision on
that subject in the recommended Order.33
[Recommended Order omitted from publication.]
31 F W Woolworth Company, 90 NLRB 289 (1950), Isis Plumbing & Heat-
ing Co. 138 NLRB 716 (1962)
'12Cf
Roosevelt Roofing and Sheet Metal Works, Inc, 204 NLRB 671
(1973). Sea-Way Distributing, Inc, 143 NLRB 460 (1963)
33 1 note, however, without comment, a letter from Respondent to the
Union, dated February 8, 1974 (Resp Exh 3), taking the position that
Respondent has fulfilled its obligation on that subject by having arrived at
an "impasse" thereon Under the circumstances shown , I do not regard the
Charging Party or General Counsel as estopped from asserting or prosecut-
ing Respondent 's refusal to bargain about the partial discontinuance and
transfer of its Birmingham printing operations, by reason of any discussion
with Respondent concerning the effects thereof, nor even by any payment
by Respondent to employees of any Respondent-imposed "impasse" formu-
la concerning "severance pay", although in the event of resumption of
Respondent's said operations any such amounts so received by employees
should in equity be offset against backpay calculated under the restitution
provisions of the Order herein, in any supplemental compliance proceeding