Molded Fiber Glass Body Co.

National Labor Relations Board - Board Decisions

May 13, 1970

182 N.L.R.B. 400 (N.L.R.B. 1970)

400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Molded Fiber Glass Body Company-Midwest Division
and Teamsters Local Union No. 50, affiliated with
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America. Case
14-CA-4969
May 13, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND JENKINS
On February 4, 1970, Trial Examiner Frederick U.
Reel issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was engaging
in certain unfair labor practices alleged in the complaint
but recommending against issuance of a remedial order
for the isolated violation found, as set forth in the
attached Trial Examiner's Decision. The Trial Examiner
also found that Respondent had not engaged in certain
other unfair labor practices alleged in the complaint
and recommended that these allegations be dismissed.
Thereafter, the Charging Party and the General Counsel
filed exceptions to the Trial Examiner's Decision and
supporting briefs. Respondent filed cross-exceptions to
the Decision with a supporting brief and an answering
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Exam-
iner 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 Deci-
sion, the exceptions, the briefs, and the entire record
in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, with the
following modifications:
1. The Trial Examiner found that Respondent did
not violate Section 8(a)(5) and (1) of the Act when,
more than a year after the Union's certification by
the Board, it refused to bargain with the Union upon
reopening and restaffing a plant which Respondent had
permanently closed for economic reasons 5 months after
the Union was certified. We agree, but for the following
reasons.
Respondent, a manufacturer and distributor of fiber
glass reinforced plastic and related products, operates
plants at Ashtabula, Ohio, and Centralia, Illinois, only
the latter being involved herein. On October 16, 1967,
the Union was certified as the exclusive bargaining repre-
sentative of Respondent's production and maintenance
employees at the Centralia plant.
Thereafter, unsuccessful but good-faith efforts to
reach an agreement covering the wages, hours, and
working conditions for the plant employees were made
at meetings between the parties. When, in January 1968,
Respondent informed the Union that it had determined
for economic reasons to permanently close the Centralia
plant, the parties engaged in further good-faith negotia-
tions concerning the effects of the proposed shutdown.
There is no allegation that the March 15, 1968, plant
closing was precipitated by union animus. In fact, after
the termination of operations at Centralia, Respondent
and the Union still negotiated in good faith, but no
contract covering questions about the plant closing result-
ed.
On May 14, 1968, Respondent proposed a contract
to the Union containing a clause by which Respondent
agreed to recognize the Union as the exclusive bargaining
representative for the already established unit if the
Centralia plant were reopened before October 16, 1968,
the end of the socalled "certification year." No agree-
ment was reached, and further contact between the
parties did not occur again until January 1969.
After closing the Centralia plant on or about March
15, 1968, Respondent sought unsuccessfully to sell the
plant. Since its Ashtabula plant was still operating,
Respondent continued to bid for new work. In the
summer and fall of 1968, Respondent received new
orders for the manufacture of automobile parts, but
found itself unable to raise funds to expand the Ashtabula
operations, as required. In view of the influx of new
orders, the inability to sell the Centralia plant (which
was costing $25,000 a month to maintain), and the inabili-
ty to expand its Ashtabula operations, Company Presi-
dent Morrison informed Respondent's board of directors
on September 27, 1968, that the Centralia plant might
have to be reopened to handle the new orders.
At the hearing, the General Counsel stated that both
the plant closing and reopening were based on economic
considerations, not union animus. However, the com-
plaint alleges that prior to the termination of the "certi-
fication year" on October 16, 1968, Respondent knew
all the factors which eventually led it to reopen Centralia
on or about November 22, 1968. The Trial Examiner's
finding that Respondent did not delay reopening for
the reasons implicit in that allegation is supported by
the fact that major Chevrolet and Pontiac orders were
not received until October 17 and November 12, 1968,
respectively, at which time the decision to reopen the
plant was apparently made.
Respondent did not notify the Union or its former
employees when it reopened the Centralia plant on
November 22, 1968. Instead it hired new employees.
There is no contention that the decision to hire new
employees, rather than to rehire the former employees,
was motivated by union animus. Morrison's uncontrad-
icted testimony is that the former employees were unsa-
tisfactory and so he did not desire to reemploy them.
On January 13, 1969, the-Union wrote Respondent
requesting that Respondent bargain with it as the certified
representative of the new employees. Of the 46 employ-
ees hired by Respondent between November 1968 and
mid-January 1969, only a handful had been employed
by Respondent prior to the March 1968 closing. The
parties stipulated that at no time since the Centralia
plant reopened has the Union claimed to have signed
authorization cards from a majority of the newly hired
employees, nor has it claimed that a majority of such
182 NLRB No. 59
MOLDED FIBER GLASS BODY CO
persons have union membership The new employees
were paid wages higher than those paid at the time
of the closing, but it appears that this was due to
an interim wage increase given employees at the Ashtabu-
la plant, since Respondent had previously maintained
comparable wage structures at its two plants
Respondent answered the Union's January 13, 1969,
request for bargaining by contending that since the certi-
fication "was no longer valid" and it doubted the Union's
majority status, it would not recognize or bargain with
the Union at that time Respondent also filed a petition
for an election with the Board, but the instant proceeding
blocked processing of that petition While the Union's
mid-January letter stated that it was "now" informed
of the November reopening, without giving reasons for
the apparent delay in asking for bargaining, the reopen-
ing, as the Trial Examiner indicates, was no secret
in Centralia, a city of 15,000 people, especially since
the local newspaper had reported the presence of another
union's picket at the plant when it reopened That picket-
ing is unrelated to the instant case
The General Counsel contends that the "certification
year" should be extended beyond the normal October
16, 1968, termination date because of the peculiar circum-
stances of the case Particularly, the General Counsel
contends that, since after January 1968 the parties only
negotiated about the effects of termination, rather than
the wages, hours, and working conditions of employees
in a viable plant setting, the Board should allow the
Union at least a full year of such latter bargaining
at the plant Alternatively, he argues, the certification
create 9 a presumption of continuing representative status
beyor d October 16, 1968, which was not overcome
by th time of the November 22, 1968, plant reopening,
and hat, therefore, Respondent had a duty to notify
the 1 neon of the reopening
Given Respondent's lack of union animus, the good-
faith efforts made by the parties to reach some type
of agreement even after the Centralia plant was apparent-
ly permanently closed, and the economic considerations
which admittedly were the sole factors which caused
the plant's closing and subsequent reopening, we find
no reason to extend the "certification year" beyond
the normal October 16, 1968, termination date, even
though less than a full year's bargaining occurred
between the parties i For the above reasons, we also
find no basis for presuming that the Union continued
its representative status beyond October 16, 1968, at
which time the Centralia plant was still, as it then
appeared, permanently closed Accordingly, we find that
Respondent did not violate Section 8(a)(5) and (1) of
the Act by failing to notify the Union of the plant
reopening and thereafter refusing to bargain with the
Union
2 Since we have found that the Union was not the
exclusive bargaining representative of Respondent's
' Cf Mar Jac Poultry Company Inc 136 NLRB 785 where the
Board extended the certification year because the employer had denied
the union a full year s bargaining opportunity as a result of the employer s
unlawful refusal to bargain during the certification year
401
newly hired production and maintenance employees at
the Centralia plant when Respondent reopened it in
November 1968, we find, contrary to the Trial Examiner,
that Respondent did not violate Section 8(a)(5) and (1)
of the Act by granting, upon reopening, a wage increase
to the new employees without notifying the Union
Accordingly, we shall dismiss this allegation of the com-
plaint 2
ORDER
It is ordered that the complaint be, and it hereby
is, dismissed in its entirety
2 We express no opinion on the propriety of the recommendation
of the Trial Examiner not to issue a remedial order for this isolated
violation which he found
TRIAL EXAMINER'S DECISION
FREDERICK U REEL, Trial Examiner This case, heard
at St Louis, Missouri, on November 24, 1969, pursuant
to a charge filed the preceding January 23, and a com-
plaint issued August 20, presents questions arising out
of Respondent's refusal to bargain when, a few weeks
after the expiration of the "certification year," it re-
opened and substantially restaffed a plant which had
apparently been permanently shut down for economic
reasons midway in the certification year Upon the
entire record, and after due consideration of the briefs
filed by General Counsel and by Respondent, I make
the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT AND THE LABOR
ORGANIZATION INVOLVED
Respondent, herein called the Company, an Ohio
corporation, is engaged at Ashtabula, Ohio, and at Cen-
tralia, Illinois, in the manufacture, sale, and distribution
of fiber glass reinforced plastic and related products
At its Centralia plant, which is the only facility involved
in this proceeding, the Company annually ships products
valued in excess of $50,000 to points outside the State,
and it is therefore an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of
the Act The Charging Party, herein called the Union,
is a labor organization within the meaning of Section
2(5) of the Act
iI THE ALLEGED UNFAIR LABOR PRACTICES
A Background-the Certification, and the Bargaining
Before and After the Closing of the Plant
Early in October 1967 the Union won a Board-conduct-
ed election at the Centralia plant, and on October 16,
1967, the Board certified the Union as the exclusive
bargaining representative of the production and mainte-
nance employees The Company and the Union there-
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after met several times in what apparently were good-
faith but unsuccessful efforts to reach agreement.
Early in January 1968 the Company determined for
economic reasons to discontinue operations at the Cen-
tralia plant . The Company communicated this intention
to the Union, and the parties engaged in further good-
faith bargaining over matters relating to the proposed
termination , but reached no agreement . On or about
March 15, 1968, the Centralia plant was closed. At
that time all parties expected that the closing would
be permanent , i.e., the Company had no expectation
or intention of ever resuming operations there. For
the next several months the Company made strenuous
efforts to sell the plant to various potential customers,
but all such efforts failed.
Notwithstanding the closing of the plant , the Company
and the Union continued negotiations in April and May
1968, apparently in an effort to reach a contract which
would encompass questions arising out of the termination
of the plant . On May 14, 1968 , the Company proposed
a contract containing , inter alia, the following clause:
It is agreed that if the Molded Fiber Glass Body
Company, Mid-West Division shall reopen opera-
tions at Centralia, Illinois prior to October 16,
1968 the Company will recognize the Union as
the exclusive bargaining agent for all production
and maintenance employees , factory, janitors and
truck drivers employed by the Company at its
Centralia, Illinois plant , excluding all office clerical
employees , professional employees , guards and
supervisors as defined in the National Labor Rela-
tions Act, as amended. The provisions of this Agree-
ment shall apply solely to those employees for
whom the Union has been certified by the National
Labor Relations Board , Case No. 14-RC-4779.
Agreement was not reached on this contract , and the
Company and the Union had no further communications
with each other until January 1969.
B. The Reopening of the Plant
In the summer and fall of 1968 the Company received
certain orders which eventually led it to reopen the
Centralia plant . The Company' s inability to sell the
plant , and its inability to raise funds to expand its
Ashtabula plant were likewise factors in its determination
to reopen Centralia . As early as September 27, 1968,
Company President Morrison told the board of directors
that the Company might reopen Centralia. Final decision
to do so, however, was not reached until after the
Company received other new orders . The evidence fails
to sustain the allegation that the Company knew prior
to October 16, 1968 (the expiration of the "certification
year"), of all the factors which led it to reopen the
plant . On the contrary, the evidence shows that the
Company did not delay the reopening of that plant
because of any considerations growing out of the certi-
fication . The plant resumed operations on or about
November 22, 1968.
When the plant reopened , the Company commenced
hiring employees . Approximately 6 were hired in Novem-
ber 1968 , about 20 in December , and about 20 during
the first 2 weeks of January 1969. Only one or two
of these employees had been employed by the Company
prior to the shutdown the preceding March . The Compa-
ny explained at the hearing that it determined to make
a fresh start , as the previous complement of employees
had been unsatisfactory on several counts. General
Counsel took no issue with this, and expressly disclaimed
any allegation that antiunion motivation played any role
in the Company ' s decision to hire new people rather
than to rehire the former crew. The wages at Centralia,
prior to the shutdown , had been comparable to those
the Company paid in Ashtabula . When Centralia
reopened , the wage rates there were somewhat higher
than they had been when it closed , as Ashtabula rates
had increased during the interim.
The Company gave no notice to the Union or to
its former employees when it reopened the plant . Howev-
er, the reopening was no secret in Centralia, a city
of some 15 ,000 people . At the time the plant reopened,
another labor organization placed a picket at the gate,
protesting an alleged payment of substandard wages
with respect to some electrical work allegedly being
done in the plant. This matter received some publicity
in the local press.
On January 13, 1969, counsel for the Union wrote
the Company, stating that the Union was " now informed
that the plant has been reopened ," asserting that the
Union " is still the certified representative" of the
employees in the plant, and requesting the Company
to begin bargaining negotiations . Company counsel
promptly replied that the certification was "no longer
valid" because of the " substantial change in circum-
stances" and the expiration of the certification year.
The letter went on to express the Company's doubt
of the Union 's majority status, and announced that
the Company was filing with the Board a petition for
an election to resolve "any question concerning represen-
tation that may presently exist ." The filing of the charge
in this litigation , however, has prevented the processing
of that petition.
The parties stipulated that at no time since the plant
reopened in November 1968 has the Union claimed
to have signed authorization cards from a majority of
the persons hired since the reopening , nor has it claimed
that a majority of such persons have membership in
the Union.
C. Concluding Findings
Between May 1968 when the Union rejected the Com-
pany's proposed contract and January 1969 when the
Union requested bargaining , the Company heard nothing
from the Union. When the bargaining request was made
in January the Company expressed its doubt (well-found-
ed, as the stipulation establishes) that the Union com-
manded the support of a majority of the employees
then on the payroll, and suggested an election to resolve
the question . The Company 's conduct at this time was
manifestly proper unless, as General Counsel contends,
the Company had violated its bargaining obligation at
MOLDED FIBER GLASS BODY CO.
the time the plant reopened in November 1968. General
Counsel contends that at the time of the reopening
the certification was still viable (a) because the "certifica-
tion year" should be extended beyond the normal 12-
month period because of the shutdown of the plant,
and (b) because, even if the "certification year" had
expired, the presumption of representative status created
by the certification survived subject to rebuttal and
therefore vested status in the Union at the time the
Company started to hire. As a corollary to these proposi-
tions or in elaboration thereof, General Counsel urges
that the mere turnover in personnel does not operate
to unseat the Union during the certification year or
even give rise to a presumption that it has lost its
majority after the year expires, and also that in Novem-
ber when the first new hirings occurred the Company
could not have any basis for doubting the Union's
status because, not having hired new employees or
at least any representative complement of employees,
the Company must assume that the prior representative
continue its incumbency. Finally, General Counsel urges
not only that the Company had an affirmative duty
to negotiate with the Union over the terms of reopening
and the reemployment of new hiring of employees,
but also that even if the Company had no such affirmative
duty, it nevertheless violated its bargaining obligation
by its action in changing wage rates without notice
to, or bargaining with, the Union about that matter.'
Notwithstanding the considerable force of these conten-
tions, it is my considered judgment , for reasons indicated
below, that only the last, dealing with unilateral action,
is well taken, 'and that under all the circumstances
the complaint should be dismissed.
With respect to the certification, I see two compelling,
albeit somewhat mutually inconsistent, reasons for not
extending the certification year, First, although General
Counsel argues that the closing of the plant caused
a cessation of bargaining so that the Union did not
enjoy the normal year of certification, the fact is that
bargaining continued for several months after the closing,
and it was the Union which rejected the last proposal.
To be sure, the closing weeks of actual bargaining
dealt largely with conditions arising out of the shutdown
rather than with going terms of employment, but this
does not alter the fact that the Union continued active
bargaining under the protection of the certification after
the shutdown. The change in circumstances would not
seem a reason for extending the certification year. Sec-
ond, the apparently permanent cessation of operations
effected a sudden mass dissolution of the bargaining
unit . This would seem to be a special circumstance
justifying a shortening of the period in which the certifica-
tion is conclusive. Compare the cases holding that a
sharp expansion of the unit creates an exception to
the "one year" rule. Celanese Corp., 73 NLRB 864;
Westinghouse Electric & Mfg. Co., 38 NLRB 404. Nor-
mal gradual turnover of employees, like normal gradual
'At the close of the hearing I expressed some doubt that the unilateral
action aspect of the case was embraced by the pleadings . Closer examina-
tion of the pleadings shows it to be well within the scope of paragraph
10A of the complaint
403
expansion of the number in a unit, does not create
an exception to the "one year" rule, but a sudden
or precipitate revolution in the employee complement
is as sound a basis for an exception as a sudden expan-
sion. If shortly following a certification, the entire work
force quit en masse for economic reasons, it would
seem unreasonable to apply the certification to cover
a totally new crew, and the same considerations should
apply where the en masse termination is caused by
the employer for purely economic reasons. The consider-
ations applying to normal turnover appear largely inappli-
cable, as they turn in large part on the continuing
representative status of the Union in a going relationship.
The force of the argument just made-that the certi-
fication lost the normal protection of the "one year"
rule because of the sudden termination of the employ-
ees-loses considerable force because of the Company's
proposal as late as May 1968 that it would recognize
the Union if the plant reopened during the certification
year. The proposal was not accepted, and the Company's
readiness to accept the certification as still controlling
would not bind the Board. In any event, and for all
the reasons thus far stated, I would not regard the
certification as creating an irrebuttable presumption of
the Union's status after the plant reopened; i.e., I would
not extend the certification year.
As to the argument that the Union enjoyed a presump-
tion of representative status, although rebuttable, this,
of course, would be defeated by the considerations
outlined above suggesting that the closing of the plant
and the consequent total and sudden dissolution of the
unit constitute an exceptional circumstance vitiating the
certification. However, I am reluctant to rely on that
theory in the light of the Company's postclosing offer
to respect the certification. Of course, insofar as the
refusal to bargain occurred in January 1969, the rebutta-
ble presumption was in fact rebutted. But General Coun-
sel rests his case on violations allegedly occuring in
November 1968. At that time the Union made no request
to bargain. The issue therefore boils down to whether
the Company, even in the absence of a bargaining
request, violated a bargaining obligation which it owed
to the Union prior to the time the presumption arising
out of the 13-month old certification was rebutted.
When the Company reopened the plant in November
it had no employees in the unit. The termination the
previous March had been complete and final.' This case
is not to be analogized to those in which economic
strikers, once believed permanently replaced, are held
entitled to reinstatement because the "permanent"
replacement proved impermanent, for in those cases
the strikers retain "employee" status under Section
2(3) of the Act. It may be that under the presumption
discussed above, the Union became the representative
of the new employees upon their being hired and before
the presumption of continued status was rebutted by
the facts, here stipulated, that the Union held no authori-
zation cards from the new employees, none of whom
Y General Counsel' s reliance on Chemrock Corp , 151 NLRB 1074,
is misplaced, for that case involved no interruption of employment.
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were members But the Company is under no duty
to bargain with the Union over the identity of the
new hires For that matter, it has no duty to bargain
over individual discharges, except as the Union raises
grievances after the fact While the Company may have
had a duty to bargain over the mass discharge implicit
in the plant's closing, the record is clear that it fully
discharged this duty General Counsel argues that the
Company had an affirmative duty to notify the Union
that the plant was reopening The record is clear that
even before the plant went back into operation, the
fact that work was to resume there was a matter of
common knowledge in the area, as the local press
described the picketing activities of another union In
the light of this circumstance it may be assumed that
the Union was aware of the reopening, and General
Counsel called no witness to testify to the contrary
While it might have been better practice for the Company
to give formal notice to the Union, I find from the
facts established on this record that the Union was
not prejudiced by the failure to receive such formal
notice Had the Union desired to bargain with the Compa-
ny to urge the rehiring of former employees, the Union
could have done so In the absence of a bargaining
request, the Company had no obligation to consult with
the Union over the Company's decision as to whether
to hire new employees or to rehire those formerly
employed As noted above, the former employees had
been terminated, and were not in layoff status Cf
Zatko Metal Products Co , 173 NLRB No 6
At the time it reopened the plant, the Company
because of the general inflation (as evidenced by wage
increases given at its Ashtabula plant while Centralia
was shut down) paid a higher wage than it had paid
at Centralia when that plant closed This raising of
wages was done without notice to, or bargaining with,
the Union As the raises were given the new employees
as they were hired, this would appear to be a unilateral
change of working conditions violative of Section 8(a)(5)
and (1) This result follows because the certification,
after 1 year, conferred a rebuttable but still presumptive
status on the Union, and the rate changes were made
before there was any basis for rebutting the presumption
(This argument, of course, rests on the continuing vitality
of the certification after the shutdown, a matter conceded
by the Company in its negotiations, although possibly
questionable ) But this unilateral action violative of Sec-
tion 8(a)(5) and (1) had no bearing whatsoever on the
Company's doubt of the Union's majority the following
January Under the peculiar circumstances of this case,
I would not think it effectuated the policies of the
Act to issue any order arising out of the isolated violation
here found Cf Allied Chemical Corp , 143 NLRB 260,
263 3
CONCLUSION OF LAW
The Company has not engaged in any unfair labor
practice warranting the issuance of a remedial order
RECOMMENDED ORDER
The complaint should be and hereby is dismissed
H In many respects this case illustrates the adage that hard cases
make bad law To dismiss as I have done requires careful limitation
of normally applicable and sound principles which if carried to their
logical conclusion might lead to a contrary result devoid of equity
and not effectuating statutory policy in this situation I should add
that even if I found other violations or recommended a remedial order
I would not grant the remedy sought by General Counsel of reinstating
the former employees with backpay Such a remedy perhaps defensible
under Fibreboard Paper Products Corp 138 NLRB 550 enfd 322
F 2d 411 (C A D C) affd 379 U S 203 would seem inappropriate
here in the light of all the circumstances including the Union s delay
in not seeking bargaining for several weeks and the express position
of General Counsel that the existence of lawful economic reasons
for not rehiring the former employees is immaterial