Hackney Iron & Steel Co.

National Labor Relations Board - Board Decisions

May 7, 1970

182 N.L.R.B. 357 (N.L.R.B. 1970)

HACKNEY IRON & STEEL CO.
Hackney Iron & Steel Company and International Chemi-
cal Workers Union , and Its Local 773, AFL-CIO. Cases
23-CA-2505 and 23-CA-2554
May 7, 1970
SUPPLEMENTAL DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On September 28, 1967, the National Labor Relations
Board issued its Decision and Order in the above-entitled
proceeding,' finding that the Respondent as a successor
employer had engaged in and was engaging in certain
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the National Labor Relations Act,
as amended, and ordering the Respondent to cease and
desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act, including
recognizing and bargaining with the Union. The Board
also dismissed those portions of the complaint alleging
that the Respondent violated Section 8(a)(3) and (1)
of the Act by denying overtime work to two employees.
Thereafter, the Respondent filed with the United
States Court of Appeals for the District of Columbia
a petition to review and set aside the Board's Order.
The Board filed a cross-petition seeking enforcement
of its Order. The Court sustained, in full, the Board's
successor and unfair labor practice findings. However,
it did not accept the Board 's rationale for declining
to determine whether the Respondent must comply with
the terms of the collective-bargaining agreement in effect
at the time of the change in business ownership. The
Court held that this issue was within the scope of
the complaint and that, as the contract was in effect
at the time of -acquisition, the Board should consider
the matter in light of the Supreme Court's Wiley deci-
sion.2 Following the remand, pursuant to leave granted
by the Board by letter dated July 10, 1968, briefs were
submitted by the Respondent, the General Counsel,
and the Union. Subsequently, the General Counsel sub-
mitted an addendum to his brief and the Respondent
submitted a supplemental memorandum.
During this period the Union, on July 11, 1968, sought,
through a motion to supplement record, to include the
collective-bargaining agreement in issue as part of the
record of this case. The motion was unopposed, and,
as we view the contract as relevant to our consideration
of the issue presented on remand, the motion is hereby
granted and the contract is received in evidence.
On August 14, 1968, the Respondent filed a motion
to supplement record through which it sought to intro-
duce into evidence a letter from the Union to the
Respondent requesting that negotiations for a new con-
tract begin and stating, in effect, that the automatic
renewal provision of the contract would be inoperative
if no agreement were reached. On September 16, 1968,
167 NLRB
s John Wiley& Sons , Inc v Livingston , 376 U S 543 (1964)
357
the Union filed its opposition to this motion. The same
day the General Counsel filed a reply in which he
expressed no opposition to the Respondent's motion.
However, the General Counsel sought, through his own
motion to supplement the record, by introducing the
Respondent's reply letter in which the Respondent
expressed its position with regard to its professed lack
of any bargaining obligation. The General Counsel also
submitted a motion to file supplemental briefs. The
motions to supplement the record through the introduc-
tion of the letters described above are hereby granted,
and the letters are received in evidence. We do not
believe, that there is any necessity for supplemental
briefs and that motion of the General Counsel is hereby
denied.
On January 31, 1969, the National Labor Relations
Board, having determined that the instant case raised
issues of substantial importance in the administration
of the National Labor Relations Act, as amended,
ordered that this case be consolidated with three others3
for the purpose of oral argument before the Board
on March 12, 1969. The parties were given permission
to file further briefs. Subsequently, on February 19,
1969, the Board extended its date of the oral argument
to April 23, 1969.
The Board also invited certain interested parties to
file briefs amicus curiae and to participate in oral argu-
ment. Briefs were filed by: The Chamber of Commerce
of the United States; American Federation of Labor
and Congress of Industrial Organizations; International
Union, United Automobile, Aerospace and Agricultural
Implement Workers; the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America; and the National Federation of Independent
Unions. The Chamber of Commerce of the United States;
the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America; and the National
Federation of Independent Unions did not choose to
participate in the argument. The National Association
of Manufacturers declined either to file a brief or partici-
pate in the argument.
The Board has considered the briefs, the oral argu-
ments, and the entire record in this case in formulating
a response to the Court's remand and hereby makes
the following findings.
In remanding, the Court limited its directive to the
Board to further consider, giving due deliberation to
the impact of Wiley, "whether the employer should
be called upon to observe the terms of the collective
bargaining agreement in effect at the time of the acquisi-
tion." As previously noted, the Court affirmed the
Board's unfair labor practice findings and its determina-
tion that Respondent was a successor employer.
The agreement in issue was originally negotiated to
cover the 2-year period beginning August 30, 1965. By
August 29, 1966, Respondent had assumed control of
the business enterprise involved herein from its predeces-
3 The William J Burns International' Detective Agency, 182 NLRB
No 50; Kota Division of Dura Corporation, 182 NLRB No 51, and
Travelodge Corporation et al , 182 NLRB No 52
182 NLRB No. 53
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sor. Thereafter, Respondent continually refused to abide
by the collective-bargaining agreement or even, prior
to the issuance of our Decision and Order in the prior
stage of this proceeding and the Court's subsequent
enforcement thereof, to recognize and bargain with the
Union.
For the reasons enunciated in our companion decision
in Burns" we find that Respondent as the successor
employer in a continuing business identity had an obliga-
tion to honor the collective-bargaining agreement in effect
at the time it took over the employing enterprise.
The Respondent had assumed control of the business
enterprise involved herein by August 29, 1966, and the
contract in issue expired on August 30, 1967.1 On May
1, 1968, the circuit court enforced our order requiring
the Respondent to recognize and bargain with the Union.
Sometime thereafter a decertification petition was filed.
The Regional Director for Region 23 determined that
the Respondent had complied with our order and that
the holding of an election would not be inconsistent
with the fact that the issues involved in this proceeding
by reason of the Court's remand had not been finally
resolved. The election was conducted on July 2, 1969.
The Union failed to receive a majority of the votes
cast, and, in the absence of objections, the Regional
Director certified the results of the election on July
11, 1969.
Consistent with our decision in Burns, Respondent
was bound by the provisions of the contract from August
29, 1966, through August 30, 1967, when the contract
expired. The Respondent's failure to abide by that agree-
ment during its scheduled term constituted an independ-
ent violation of Section 8(a)(5) of the Act. Further,
although Respondent may have recognized and bargained
with the Union following the circuit court's enforcement
of our order, there is no evidence to suggest that it
bargained to the point of impasse. Therefore, to the
extent that Respondent may have caused losses to
employees through the institution of unilateral changes
in the terms and conditions of employment established
by the contract without first having bargained to a good-
faith impasse, it bears the responsibility for these losses.
THE REMEDY
Having found the Respondent in violation of Section
8(a)(5) for failing to honor the collective-bargaining agree-
ment in effect at the time of its takeover, we shall
further order that, upon request by the Union, the
Respondent will be required to make restitution of all
contractual benefits which it may have unlawfully with-
held from employees by virtue of its failure to abide
by the provisions of the collective-bargaining agreement
during its scheduled term. We shall also require that
the Respondent make restitution for benefits which may
have been lost by virtue of any unilateral changes it
may have instituted in the terms and conditions of
employment existing at the expiration of the contract.
The latter form of restitution is applicable from August
31, 1967, the expiration date of the contract, to July
11, 1969, the date of the Union's decertification. Whatev-
er monetary restitution` Respondent's employees may
be entitled to, shall be computed in the manner set
forth in F. W. Woolworth Company, 90 NLRB 289,
and shall include interest in the amount and manner
set forth in Isis Plumbing & Heating Co , 138 NLRB
716.
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board hereby orders that the Respondent, Hackney
Iron & Steel Company, Navasota, Texas, its officers,
agents, successors, and assigns, shall take the following
affirmative action necessary to effectuate the policies
of the Act:
1. Make restitution of all contractual benefits which
it may have unlawfully withheld from employees by
virtue of its failure to abide by the provisions of the
collective-bargaining agreement in effect at the time
of its acquisition of the employing enterprise involved
herein in the manner set forth in the portion of this
decision entitled "The Remedy".
2. Make restitution for any benefits which may have
been lost by virtue of any unilateral changes it may
have instituted in the terms and conditions of employ-
ment existing at the expiration of the contract in the
manner set forth in the portion of this decision entitled
"The Remedy". The termination date for such restitution
is July 11, 1969, the date of the Union's decertification.
3. Post at its establishment in Navasota, Texas, copies
of the attached notice marked "Appendix."" Copies
of said notice on forms provided by the Regional Director
for Region 23 shall, after being duly signed by Respond-
ent's representative, be posted by Respondent immedi-
ately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
to insure that said notices are not altered, defaced,
or covered by any other material.
4. Notify the Regional Director for Region 23, in
writing, within 10 days from the date of this Order,
what steps Respondent has taken to comply herewith.
MEMBER JENKINS, dissenting:
For the reasons expressed in my dissent in The William
J. Burns International Detective Agency, 182 NLRB
No. 50, I would dismiss the complaint here.
' The William J Burns International Detective Agency, supra
s The contract contained a clause which provided for automatic 1-
year renewals unless either party served notice, at least 60 days before
the scheduled expiration date„ of its intention to terminate We view
the Union's letter to the Respondent on June 28, 1967, as having
constituted such notice
8 In the event this Order is enforced by a Judgment of the 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 "
HACKNEY IRON & STEEL CO
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL make restitution of all contractual ben-
efits which we may have unlawfully withheld by
virtue of our failure to abide by the collective-
bargaining agreement in effect at the time when
we acquired control of the company
WE WILL also make restitution for any benefits
which may have been lost because of any unilateral
changes we may have instituted in the terms and
conditions of employment The termination date
for such restitution is July 11, 1969, the date of
the Union's decertification
Dated By
359
HACKNEY IRON & STEEL
CORP
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's
Office, 6617 Federal Office Building, 515 Rusk Avenue,
Houston, Texas 77002, Telephone 713-226-4296