Edward Axel Roffman Associates, Inc.

National Labor Relations Board - Board Decisions

Jun 25, 1964

147 N.L.R.B. 717 (N.L.R.B. 1964)

EDWARD AXEL ROFFMAN ASSOCIATES, INC. 717
CONCLUSIONS OF LAW
1. Stanton Enterprises , Inc., doing business as Holiday Inn of Charleston, the
Respondent herein, is an employer within the meaning of Section 2(2) of the Act.
2. Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO,
Local No. 128, is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in the unfair labor practices alleged in the
complaint.
4. The complaint herein should be dismissed.
RECOMMENDED ORDER
It is recommended that the Board enter an order herein dismissing the complaint.
Edward Axel Roffman Associates , Inc. and Upholsterers' and
Springmakers ' Union , Local 76, United Furniture Workers of
America, AFL-CIO. Case No. 2-CA-9290. June 25, 1964
DECISION AND ORDER
On February 11, 1964, Trial Examiner Thomas S. Wilson issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had not engaged in the unfair labor practices alleged in the com-
plaint and recommending that the complaint be dismissed in its en-
tirety, as set forth in the attached Decision. Thereafter the General
Counsel and the Charging Party filed exceptions to the Decision and
supporting briefs, and the Respondent filed exceptions and brief in
support of the Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, and the exceptions and briefs of the parties, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner with the following exceptions.'
[The Board dismissed the complaint.]
1 While we agree with the Trial Examiner that the complaint here should be dismissed
for the reasons set forth in the Trial Examiner ' s Decision , we do not agree with and do
not adopt the Trial Examiner 's collateral finding that the Respondent 's determination to
move to Allentown was discriminatorily motivated . Apart from the fact that the com-
plaint does not allege that the Respondent ' s move was discriminatorily motivated and that
this issue was not before the Trial Examiner , we are of the opinion that a case of dis-
criminatory motivation was not established by a preponderance of the evidence . Further-
more, we do not adopt the Trial Examiner 's analysis ' of the Board 's decisions in Town &
Country Manufacturing Company, Inc ., 136 NLRB 1022 , and Adams Dairy, Inc., 137
NLRB 815, as reflecting the Board ' s true holdings In those cases.
Member Leedom agrees that the complaint should be dismissed for the reasons relied on
by the Trial Examiner . However, he adopts the Trial Examiner's conclusions concerning
Respondent ' s obligation to bargain only to the extent consistent with his position as ex-
pressed In Town & Country Manufacturing Co., Inc ., supra, Adams Dairy, Inc., supra, and
Northwestern Publishing Company, 144 NLRB 1069.
147 NLRB No. 87.
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge duly filed on April 22, 1963, by Upholsterers' and Springmakers'
Union, Local 76, United Furniture Workers of America, AFL-CIO, hereinafter
called the Union or Local 76, the General Counsel of the National Labor Relations
Board, hereinafter called the General Counsel,' and the Board, respectively, by the
Regional Director for the Second Region (New York, New York), issued its com-
plaint dated August 8, 1963,2 against Edward Axel Roffman Associates, Inc., herein-
after called the Respondent. The complaint alleged that Respondent had engaged in
and was engaging in unfair labor practices affecting commerce within the meaning
of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Labor Management
Relations Act, 1947, as amended, herein called the Act, by deciding unilaterally and
without consultation with the Union representing its employees at its New York City
plant to cease operations in New York and to relocate its operations in Allentown,
Pennsylvania, thereby causing its New York employees to be deprived of employ-
ment opportunities and to receive less employment than they previously had. Copies
of the charges, complaint, and notice of hearing thereon were duly served upon the
Local 76 and Respondent.
Respondent duly filed its answer admitting certain allegations of the complaint but
denying the commission of any unfair labor practices.
Pursuant to notice a hearing was held at New York, New York, on Septem-
ber 23, 24, and 25 and on October 3 and 4 and 15 and 16, 1963, before Trial Ex-
aminer Thomas S. Wilson. All parties appeared at the hearing, were represented by
counsel, and were afforded full opportunity to be heard, to produce, examine, and
cross-examine witnesses, and to introduce evidence material and pertinent to the
issues. Oral argument at the close of the hearing was waived. Briefs were received
from all parties on December 11, 1963.
Upon the entire record in the case and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleged and the answer admitted that at all times material herein
Edward Axel Roffman Associates, Inc., is a New York corporation which has main-
tained its principal office and place of business at 160 East 56th Street, in the city
and State of New York, together with a plant located on 129th Street in said city and
State, and since on or about April 8, 1963, at various other plants and places of
business in the State of Pennsylvania, where it is, and has been at all times material
herein, engaged in the manufacture, sale, and distribution of furniture and related
products. The answer further admitted the allegations of the complaint that in its
operations Respondent had caused materials valued in excess of $50,000 to be trans-
ported and delivered to its plants in interstate commerce and had sold and dis-
tributed from its plants finished products valued in excess of $50,000 in interstate
commerce.
Accordingly, I find that Respondent is engaged in commerce wtihin the meaning
of the Act.
II. THE UNION INVOLVED
Upholsterers ' and Springmakers' Union, 'Local 76, United Furniture Workers of
America, AFL-CIO , is a labor organization admitting to membership employees of
Respondent.
III. THE UNFAIR LABOR PRACTICES
'A. The facts
.Edward Axel Roffman Associates, Inc., is in reality Edward Axel Roffman, its
president and sole stockholder.
Respondent began manufacturing custom furniture to order in 1955 or 1956. Its
manufacturing operations were performed in a rented loft located on 129th Street,
New York City. Since 1955 Respondent's 30 or so employees have been covered by
successive collective-bargaining agreements between Respondent and Local 76.
I This term specifically includes the attorney appearing for the General Counsel at the
hearing.
2 All dates herein are in the year 1963 unless otherwise specified.
EDWARD AXEL ROFFMAN ASSOCIATES, INC. 719
Although Respondent has never been a member of the Employers ' Association
which negotiated the collective agreements with Local 76, Respondent since 1955 has
executed this same contract which the Association negotiated . On occasions Respond-
ent has executed a stipulation with Local 76 whereby it agreed to be bound by the
terms of the Association contract which would be negotiated. between Local 76 and
the Association.
The last contract between Respondent and Local 76 which extended from Septem-
ber 1 , 1961 , to August 31, 1963, contained the following clauses, among others:
Article 23
Work in Shop
The Employer agrees that he will not cause any of his work to be manu-
factured or performed by him outside of his own shop , except with the written
consent of the Union in each instance.
Article 28
Moving of Shops
During the term of this agreement, the Employer shall not move his shop or
factory from its present location to any place outside of the five boroughs com-
prising the City of New York.
Article 29
Subsidiary and Affiliated Firms
In the event that the Employer shall, directly or indirectly, open lease or
otherwise acquire any plant or factory, the Employer agrees that the terms and
provisions of this agreement shall be deemed to cover such plant or factory
and the workers working thereat and .the terms and provisions of this agreement
shall immediately become binding upon such Employer with respect thereto.
Article 33 of this agreement provided a "Grievance' and Arbitration" procedure
with one Burton Turkus being designated as the arbitrator thereunder.
As early as October 1959, Roffman began toying with the idea of operating his
furniture plant in the Allentown, Pennsylvania, area but, as he wrote John W.
Trauch, executive director of Lehigh Economic Advancement Project (LEAP) at
that time, "still having approximately 2 years to go on our present lease which as
you can understand holds me pat for the time being," the idea remained merely an
idea at that time.
In December 1962 or January 1963 Roffman, accompanied by his foremen, Bir-
stein and Giannini, began inspecting factory sites in the Thruway Industrial Park in
Allentown, Pennsylvania. At that time Roffman requested LEAP to file an applica-
tion on his behalf for assistance in financing the purchase of such a plant with the
Pennsylvania Industrial Development Agency (PIDA). At this point in his dis-
cussions with LEAP Roffman was requesting 100 percent financial assistance in such
purchase.
As of December 1962, a local Allentown paper announced that an unnamed furni-
ture manufacturer "which would employ 50" was negotiating to buy a Lehigh County
factory. Roffman acknowledged that the unnamed manufacturer therein was in fact
the Respondent.
About that same time Roffman made inquiry of two officials of the Upholsterers
International Union, a union not affiliated with the union in this case, as to the
availability of skilled labor in the Allentown area.
In January or February Roffman applied to local Allentown banks for financing
as well as'to PIDA for a second mortgage. Early in April he was informed that the
local banks had turned down: his application whereas in late March PIDA had
approved his application.
Rumors began reaching Local 76 that Respondent intended to move its plant into
the Allentown area. Finally, about March 6, Frank Marino, secretary-treasurer and
manager of Local 76, called Roffman to a meeting where Marino inquired as to the
truth of the rumors that he had been hearing. Roffman was "shocked" at these re-
ports and denied having any intention of moving his plant from New York. Marino
then requested Roffman to sign the usual stipulation that Respondent would be bound
by the terms of the contract which would be negotiated later that year with the
Association if, in fact, he had no intention of moving his plant. Roffman refused.
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Following more reports from Respondent's union shop steward that raw frames
were being shipped out of Respondent's 129th Street plant, Marino arranged an-
other meeting with Roffman and his attorney, Zuckerman, on March 28. Marino
referred to these reports and again inquired if Respondent planned to set up shop
elsewhere. Zuckerman acknowledged that Respondent was in fact looking for space
elsewhere but that such plant would be for "expansion" purposes and would not
affect the work of the New York plant in any way. Again Marino suggested the
signing of a stipulation by Respondent agreeing to renew the contract. But again
Respondent through Zuckerman refused.
About April 1 Business Agent George Crisci followed a truck carrying some un-
finished frames from Respondent's plant on 129th Street to a loft building occupied
at that time by Duffy & Krellman where he found a workman actually finishing some
of Respondent's raw frames. When Crisci returned to this loft a few days later, the
loft was completely vacant.
On April 4 or 5 Roffman was back in Allentown making a new approach to the
Allentown bankers for assistance in financing the purchase of a site which Roffman
had previously selected in the Thruway Industrial Park area. By this time the finan-
cial arrangements had been changed so that 5 percent would be paid by Respondent,
50 percent by the local banks, and 45 percent by PIDA. The site Roffman had se-
lected in the Thruway Park was then a partially constructed building containing
some 30,000 square feet of usable space-as compared to Respondent's 15,000
square feet on 129th Street-and was capable of being expanded to 150,000 square
feet. The price of the site had also risen to approximately $217,000.
Also on April 5 the Union filed a grievance against Respondent for breaching the
collective-bargaining agreement in that Respondent was having work performed out-
side of its New York factory without the consent of the Union.
In the first few days of April Crisci followed a truck from the 129th Street plant
carrying raw frames to the George Buehler & Co. plant in Allentown. Respondent
bought many of its raw frames from the Buehler Company. While in Allentown
Crisci saw Robert Stritch, Respondent's expediter at 129th Street, carrying upholster-
ing equipment into a building located at 212 Gordon Street in Allentown. Entering
the building Crisci discovered that Stritch was indeed setting up an upholstering
plant therein which Stritch told Crisci was just a "temporary" location until Respond-
ent's new plant was completed. When Crisci returned a few days thereafter he found
Stritch with two or three new employees busily engaged in the regular upholstering
operations of Respondent at this Gordon Street location.
On April 8 Roffman executed a 6 months' lease at $300 per month expiring
October 15 on this Gordon Street location. Gordon Street had about half as much
space as the 129th Street plant. The number of employees at Gordon Street steadily
increased thereafter until by the time of the hearing there were 20 or 25 persons
employed by Respondent at the Gordon Street plant.
On April 10 LEAP notified Respondent that the Allentown bankers had orally
approved Respondent's requested financing of the purchase of the Thruway Park
plant together with a request for an initial deposit of $5,000 by Respondent as "an
expression of your good faith and interest" in a 30,000-square-foot industrial plant.
It was agreed that this $5,000 would be applied against Respondent's obligations if
an agreement were concluded but that, if LEAP was able to arrange satisfactory
financing but Respondent refused to enter into agreement , the $5,000 would be
applied as liquidated damages.
On April 11 Respondent forwarded its check in the sum of $5,000 as
requested to LEAP.
On April 12 in accordance with the grievance procedure of the contract, the Union
and Respondent met. The Union was represented by Marino, Crisci, and Emil and
Peter Schlesinger, attorneys, while Respondent. appeared in the persons of Roffman
and his attorney, Zuckerman. Respondent denied that it had had any work done
outside its 129th Street plant. Whereupon Peter Schlesinger inquired about the
Allentown plant. Zuckerman admitted the existence of the Allentown plant but
maintained that a "slowdown" at 129th Street forced Respondent to have some of its
work done elsewhere. Zuckerman again insisted that the Allentown plant was solely
for "expansion" and was not intended for relocation of Respondent's plant. Zucker-
man requested the Union to waive the contractual requirement of a written grievance
and to permit Respondent' s claim of a slowdown to be heard by the arbitrator at
the same time that he heard the Union' s grievance previously filed. The Union
refused such waiver.
On April 19 the Union filed the unfair labor practice charges which are the basis'
of the present hearing.
EDWARD AXEL ROFFMAN ASSOCIATES, INC. 721
So, on May 1, the parties appeared before Burton Turkus as the arbitrator under
the contract on the union grievance that Respondent was violating section 23 of
the collective-bargaining agreement by having work done outside its plant on 129th
Street without the Union's written consent. When the arbitrator ruled that evidence
of violations at the Allentown plant as well as elsewhere in New York City would be
admissible, Respondent withdrew from the arbitration contending that the arbitrator
was thereby exceeding his authority and jurisdiction. The Union presented its
evidence. On August 8 Arbitrator Turkus handed down an award as follows:
Award
1. The Employer, Edward Axel Roffman Associates, Inc., its president and
other corporate officers, individually and collectively, are herewith directed
to terminate any and all production outside of its New York factory, unless the
same is agreed and consented to by the Union in writing, as is required by the
provisions of Article "23" of the subsisting collective-bargaining agreement.
Until the Union's consent is obtained, all of the Employer's production shall be
confined to its New York City factory.
2. The Employer, Edward Axel Roffman Associates, Inc., is directed forth-
with to pay to the Union for the benefit of its employees, the sum of $3,122.70
as wages lost up to and including April 30, 1963, by said employees of the
Employer.
3. The Employer, Edward Axel Roffman Associates, Inc., is directed forth-
with to pay to the respective Funds the following sums which it owes to said
Funds for the period up to and including April 30, 1963, based on payroll lost
to the New York employees, to wit:
a) to the United Furniture Workers Insurance Fund, the sum of
$109.29 together with $20.00 as a collection charge, making a total of
$129.29; and
b) to the Upholsterers' and Springmakers' Pension Fund the sum of
$93.68 together with $15.00 as a collection charge, making a total of
$108.68; and
c) to the Local 76 Severance Plan, the sum of $9.66 together with
$15.00 as a collection charge, making a total of $24.66.3
In the due course of the mail the Union received the following letter dated May 27
from Respondent:
As you know, our firm has been contemplating the possibility of moving
our present New York plant. No final decision has yet been made on this, nor
are we now in any way committed to any move.
We now have sufficient economic data to engage in collective bargaining on
this problem with your Union. We want now, therefore to initiate such bar-
gaining with you concerning the contemplated move and its effect on our present
employees.
Please contact me immediately to set up a mutually convenient time for
this meeting.
Upon advice of counsel 4 the Union chose to ignore this letter.
Under date of June 26 Respondent sent Local 76 the following letter:
Pursuant to the collective agreement presently in effect between Local 76 U.F.W.
and E. A. Roffman Associates, Inc., we hereby elect to terminate said agreement
on August 31, 1963. This notice is sent in compliance with Article 42 of that
collective agreement.
We would also like to remind you of our letter of May 27, 1963, concerning
the Company's future plans and our offer to bargain with you in reference to
our contemplated relocation.
We will have to make a final decision on any relocation no later than 2 weeks
from the date of. this letter and possibly sooner so that we invite your immedi-
ate attention to this matter. Should we fail to hear from you we will proceed
unilaterally.
This award was confirmed in the Supreme Court of the State of New York, a judgment
entered thereon, and Respondent now had an appeal pending from that judgment.
4 "The Charging Party's brief states that this advice was based "on the ground that the
relocation was already a fait accompli."
756-236-65-vol. 147-47
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 1 the parties met for the last time, the Union being represented by Marino
and Emil Schlesinger and Respondent by Roffman and Zuckerman. Zuckerman
opened the meeting by advising the Union that he now had sufficient economic data
to be able to tell the Union upon what economic terms it would renew the contract
covering the 129th Street plant. Zuckerman stated that Respondent would renew
that contract if the Union would meet lower Allentown cost of rent, insurance and
trucking, reduce the wages by $1.50, and permit Respondent to subcontract part of
its work. Schlesinger stated that Respondent's proposals were not acceptable but
that the Union would be willing to renew the contract for another term at the exist-
ing wage rate (without requesting a wage increase) and would also permit sub-
contracting. Respondent indicated that the Union's proposals were unacceptable to
it and the meeting terminated without any bargaining regarding the effect of the move
to Allentown upon the New York employees.
The parties exchanged a couple of self-serving letters thereafter, which added noth-
ing except that in the letter of July 22 Respondent informed the Union that "the
company intends to make final its plans to relocate its manufacturing facilities as of
August 31, 1963, in Allentown, Pennsylvania, by the end of this week" but would
"honor the contract and maintain the New York shop through August 31, 1963."
On July 31 Respondent executed a formal agreement with LEAP to purchase the
Thruway Park plant transmitting therewith the further deposit of $5,875 to complete
its part of the deal.
The Union's contract expired as of August 31 and on September 2 the Union
placed a picket line around the 129th Street plant. No further work has since been
done at that plant. In September some of the machinery located at the 129th Street
plant was moved and "stored" in Respondent's Thruway plant.
On October 31 Respondent's lease on the premises at 129th Street expired and
has not been renewed.
B. Conclusions
1. Alleged refusal to bargain
Respondent 's original contention in its brief is as follows:
At the close of this hearing, the Trial Examiner sought answers by the parties
to certain questions he raised , assuming , arguendo, the rule of Town & Country,
136 NLRB No . 111, to be the law.
The Respondent here requests the Trial Examiner to reject the rule of Town
& Country and to find that plant relocation without bargaining, if prompted
solely, as here , by economic motivations , does not violate Section 8 ( a)(5) of
the Act . Adams Dairy v. N.L.R.B., 54 LRRM 2171 (C.A. 8); Darlington
Mills v . N.L.R.B., 54 LRRM 2499 (C.A. 4).
As I read Town & Country and Adams Dairy, the difference in the rules, if any, is
determined exclusively by whether the proposed change by the Employer was ex-
clusively motivated by economic considerations or if, on the contrary , the change
was in part at least caused by the determination by Respondent to be rid of the
Union . If the latter is the case , the Town & Country appears to hold that Re-
spondent must bargain with the Union in regard to whether the change itself is to
be made. If the former, then Adams Dairy seems to hold that the decision to make
the proposed change is a matter of "management prerogative " and therefore not a
mandatory subject of bargaining with the Union , but that, once that decision has
been made, then Respondent must bargain with the Union in regard to the effects
of that decision.
If this analysis is accurate , then I have no hesitancy in finding that the rule of
Town & Country-rather than that of Adams Dairy-is applicable to the instant
case.
It is quite true that economics played a part in Respondent 's determination to
move to Allentown . But it is also quite clear that, in order to enjoy the supposed
economic advantages to be found in Allentown , Respondent had to be rid of Local 76
and its contract. The Board has long held that it is discriminatory for an employer
to prefer one union over another because the contract of one union was cheaper for
the employer than that of the other .5 In the instant case it appears that either no
union or another union would prove more economical for Respondent than to renew
the contract with the Union in New York. Hence I have no hesitancy in finding
that Respondent 's determination to "relocate" in Allentown was both discriminatory
and economic.
6 See Ronney & Sons Furniture Manufacturing Co., 93 NLRB 1049.
EDWARD AXEL ROFFMAN ASSOCIATES, INC. 723
Nor can I believe Respondent 's explanation that it was forced to open operations
in Allentown because of a "slowdown" in New York, first, because Respondent began
searching for a plant in Allentown long before even Respondent contended that there
was any slowdown in New York ( in December as against April at least ) and second,
because Respondent produced absolutely no proof that there ever was a slowdown in
New York.
Nor, on the other hand, do I have any hesitation in finding that, despite Respond-
ent's testimony to the contrary, Allentown was never intended to constitute "expan-
sion" but, on the other hand, was always a question of "relocation." Roffman made
this clear as early as his letter of October 2, 1959.
Furthermore Respondent also advanced the thought that it sought a plant outside
New York in order to expand into what is known as "case goods," i.e., furniture
without upholstery. But the facts prove that up to the time of the hearing, at least,
Respondent not only had produced no case goods at Allentown but, more impor-
tantly, had not even employed a framemaker there.
In short Respondent 's behavior throughout this whole period characterized as it
was by deception, subterfuge, and concealment convinces me that the motivation be-
hind Respondent 's determination to relocate in Allentown was not exclusively eco-
nomic. This part of Respondent 's defense is a sham.
Consequently I cannot find that , as in the Adams Dairy case, the determination
to move the plant from New York was solely economic. I must find that Re-
spondent 's purpose in so doing was also to eliminate collective bargaining with the
Union. Hence the rule of Town & Country applies here so that it became incumbent
upon Respondent to bargain with the Union about the decision to relocate the plant
as well as, after that decision had been taken , to bargain as to those subsequent mat-
ters as required by Adams Dairy.
Consequently under the Town & Country rule Respondent here should have noti-
fied and bargained with Local 76 in regard to any decision to open its plant in Allen-
town . Logically it would seem that , if such bargaining is to be of any value, such
negotiations should antedate any final determination by Respondent to relocate.
On the other hand it hardly seems feasible for an employer to notify and negotiate
with a union the very first moment such an employer begins toying with the idea of
making such a change and even before the practicability or impracticability of such
possible change has been considered in private by such employer . Consequently I
do not consider Respondent here should have been required to notify the Union
at the time Respondent wrote his letter of October 2, 1959 , although it is perfectly
clear from that letter that the idea of relocation was definitely in Roffman 's mind even
at that date. At that time, however , his 2-year, lease in New York made the change
impracticable.'
But in December 1962 and January 1963 , it is clear that with his New York lease
expiring on October 31 and the union contract expiring on August 31, Roffman
considered the change to have become highly practicable . If then the notification and
negotiation with the Union on the question of the decision to relocate is to be'more
than a perfunctory gesture, it would seem necessary for Respondent to have opened
negotiations with Local 76 about this time or, at least , before Respondent became
irretrievably committed to the move to Allentown. General Counsel and the Charg-
ing Party maintain , and I tend to agree , that it became incumbent upon Respondent to
notify and negotiate with Local 76 prior to April 11, 1963, when Respondent sent
LEAP its initial downpayment of $5,000 to show "its interest and good faith" in pur-
chasing a factory in Allentown .6
Perhaps Respondent was in technical violation of Section 8(a)(5) by failing to
notify and offer to bargain about the contemplated relocation prior to April 11 under
the Town & Country rule.
However, this same posture of affairs continued to exist on May 27 when Respond-
ent finally notified Local 76 of the proposed move and offered to negotiate on the
"possibility of moving our present New York plant" about which Respondent also
stated "no final decision has yet been made." 7
The Charging Party chose to ignore this notification and request on the ground
that the move was already a fait accompli and in order not to permit Respondent
to "get off the hook."
e Respondent , on the other hand , maintains that there was nothing irretrievable about
this first $5,000 payment and that Respondent was not irretrievably bound until it actually
executed the final papers and paid its final installment of $5,875 on July 31.
71 must note here my skepticism as to the truth of this statement.
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In their briefs both Charging Party and General Counsel, make the contention
that this May 27 notification was not made by Respondent in "good faith." How-
ever, the Charging Party's determination to ignore the request failed to put Respond-
ent's good faith to the test. In order to find the May 27 notification to have been
made in bad faith assuggested, I would have to rely on hunch and speculation. The
courts look askance at findings based on such weak reeds.
Both the Charging Party and General Counsel attempt to remedy this defect in
proof by pointing to the negotiations which actually did occur on July 1 following
Respondent 's June 22 notification of its desire to abrogate its contract with Local 76
on its termination date of August 31. They both point to the fact that the only
negotiations carried on on July 1 concerned the "renewal" of Respondent 's contract
with Local 76. Respondent then offered to renew that agreement and retain the New
York plant in the event that Local 76 would match the economic figures available
to Respondent in Allentown. Of course, Local 76 refused such offer , particularly as
many of the cost items referred to were far beyond the control of Local 76. These
parties further point to the fact that admittedly there were no negotiations at this
time as to either the decision to relocate or upon what is referred to in the Adams
Dairy case as "the treatment of employees who were to be terminated by the Decision."
But as was the case regarding the May 27 letter, it was once again the Union which
failed to bring either one of these matters up for discussion at the meeting despite
the fact that Respondent's July 22 letter had opened up both subjects. Once again
Respondent had offered to negotiate and the Union refused, apparently preferring to
rely upon the technicalities of the situation.
Where men's jobs and livelihood are at stake , the parties should bargain ,rather
than rely on technicalities. This Act is rapidly becoming too technical for any good
use. Accordingly, I must find that on both May 27 and July 1 it was the Union, and
not Respondent , which refused to negotiate . See Times Publishing Company, 72
NLRB 676.
I will, therefore, recommend that the allegations of the complaint insofar as they
refer to a violation of Section 8(a) (5) of the Act be dismissed.
2. Loss of job .opportunities
General Counsel and the Charging Party have requested a finding in favor of some
five of the New York employees for wages lost by reason of Respondent 's subcon-
tracting the work of the New York plant to other outfits in New York or for having
the same done at the Allentown plant.
This record shows that these five New York employees lost time and wages during
the month of April because Respondent was in fact having the work of the New York
plant done elsewhere contrary to the specific terms of its contract with Local 76.
However, as found above , on April 5 the Union filed a grievance under its contract
with Respondent for these same charges - as breaches of its collective-bargaining agree-
ment by Respondent . The matter was heard under the arbitration provisions of that
collective-bargaining agreement and before Burton Turkus , the permanent arbitrator
named therein , who on August 8, 1963 , handed down an award settling the moneys
due the employees and the Union ,from Respondent to and including April 30, 1963,
in addition to ordering the Respondent to cease its operations in Allentown or in any
place else but New York.
Although for reasons of its own Respondent chose not to participate in the afore-
mentioned arbitration, this method for the adjustment of difficulties under the con-
tract had been set up by these parties by mutual agreement in their collective-
bargaining contract. Despite Respondent 's - voluntary withdrawal therefrom, the
arbitration proceedings thereunder appear to have been fair and. regulars I believe
that the award of the permanent arbitrator should be honored by this Board .9 I so
find.
Accordingly, I will recommend that the allegations of the complaint in regard to
loss of wages and job opportunities be dismissed.
On the basis of the foregoing findings of fact , and upon the entire record in this
case , I make the following: -
CONCLUSIONS OF LAW
1. Upholsterers' and Springmakers ' Union, Local 76, United Furniture Workers of
America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of
the Act. •
8 See Denver- Chicago Trucking Company, Inc ., 132 NLRB 1416.
8 As noted this award was sustained by the Supreme Court of the State of New York and
is now on appeal from that decision.
DISTRICT COUNCIL 4, BROTHERHOOD OF PAINTERS , ETC. 725
2. Edward Axel Roffman Associates , Inc., is engaged in commerce within the
meaning of Section 2 (7) of the Act.
3. Although Respondent has engaged in a technical violation of Section 8(a) (5)
and a violation of Section 8(a)(1) of the Act, under the peculiar circumstances
existing here it would not effectuate the policies of the Act for an order to issue
against Respondent therefor.
I recommend that the complaint in the instant matter be dismissed in its entirety.
District Council 4, Brotherhood of Painters , Decorators and
Paperhangers of America , AFL-CIO [Francis Mettile and
John Towart, d/b/a Peerless Painters & Cleaners ] and Everett
R. Mitchell . Case No. 3-CB-721. June 26, 1964
DECISION AND ORDER
On April 22, 1964, Trial Examiner Max Rosenberg issued his De-
cision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain af-
firmative action, as set forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent and the General Counsel filed exceptions
to the Trial Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent, District
1 The Respondent has excepted to the credibility findings made by the Trial Examiner.
It is the Board 's established policy , however, not to overrule a Trial Examiner's resolutions
with respect to credibility unless , as is not the case here , the clear preponderance of all the
relevant evidence convinces us that the resolutions were incorrect . Standard Dry Wall
Products, Inc., 91 NLRB 544 , enfd. 188 F. 2d 362 (C.A. 3).
we also find no merit in the General Counsel's contention that a broad order , rather
than the narrow order recommended by the Trial Examiner , should be issued in this case,
as the violations found affected only one employee of one employer . United Mine Workers
of America and District 30, et al. ( Blue Diamond Coal Company ), 143 NLRB 795.
147 NLRB No. 94.