Reeves Bros.

National Labor Relations Board - Board Decisions

Mar 6, 1992

306 N.L.R.B. 610 (N.L.R.B. 1992)

610
306 NLRB No. 117
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The citation for M & M Transportation Co. in fn. 14 of the
judge’s decision is corrected to read ‘‘239 NLRB 73 (1978),’’ and
the case name cited in the first paragraph in the ‘‘remedy’’ section
of his decision is corrected to read ‘‘Transmarine Navigation Corp.’’
Also, item (3) in the antepenultimate paragraph of the remedy sec-
tion of the judge’s decision should read, ‘‘the Union’s failure to re-
quest bargaining within 5 days of the date of this Decision . . .’’
(Emphasis added.)
2 The Respondent contends that the Union was in a position to bar-
gain meaningfully during the period in which the Respondent re-
tained certain of the unit employees to assist in the process of plant
closure and, therefore, the customary Transmarine Navigation Corp.,
170 NLRB 389 (1968), remedy for an effects-bargaining violation is
not appropriate. We find this argument without merit. See Los Ange-
les Soap Co., 300 NLRB 289 fn. 7 (1990).
1 Read 1990 after further date references omitting the year.
2 While every apparent or nonapparent conflict in the evidence has
not been specifically resolved below, my findings are based on my
examination of the entire record, my observation of the witnesses’
demeanor while testifying, and my evaluation of the reliability of
their testimony; therefore any testimony in the record which is in-
consistent with my findings is hereby discredited.
ARA Automotive Group, Division of Reeves Broth-
ers, Inc. and Allied Industrial Workers of
America, Local 300, AFL–CIO. Case 16–CA–
14807
March 6, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On June 12, 1991, Administrative Law Judge
George Christensen issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, ARA Automotive Group,
Division of Reeves Brothers, Inc., Grand Prairie,
Texas, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
J. O. Dodson, for the General Counsel.
Jonathan L. Alder and Martin Griffin (Locke, Purnell, Rain
& Harrell), of Dallas, Texas, for ARA.
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge. On
February 26, 1991, I conducted a hearing at Forth Worth,
Texas, to try issues raised by a complaint issued on Decem-
ber 17, 1990,1 based on a charge filed by Allied Industrial
Workers of America, Local 300, AFL–CIO (Union) on No-
vember 7.
The complaint alleged and the answer admitted at all perti-
nent times Reeves Brothers, Inc., through a division known
as ARA Automotive Group (Respondent), maintained facili-
ties at various locations in the United States to manufacture
and distribute automotive parts and accessories, including a
facility at Grand Prairie, Texas; that for many years prior to
October 1 the Respondent recognized the Union as the exclu-
sive collective-bargaining representative of an appropriate
unit of its Grand Prairie employees and was party to succes-
sive collective-bargaining agreements with the Union cov-
ering the unit employees’ rates of pay, wages, hours, and
working conditions, including an agreement expiring October
6; and that on October 1 the Respondent closed the Grand
Prairie plant and terminated the unit employees.
The complaint further alleged and the answer denied the
Respondent closed the Grand Prairie plant without affording
the Union notice of the closure enabling the Union to bargain
meaningfully over its effect on the unit employees, thereby
violating Section 8(a)(1) and (5) of the National Labor Rela-
tions Act (Act).
The issues created by the foregoing are whether the Re-
spondent closed the plant without affording the Union notice
of the closure which would enable the Union to bargain
meaningfully with the Respondent over the effect of the clo-
sure on the employees represented by the Union and, if so,
whether the Respondent thereby violated the Act. An ancil-
lary issue (raised by the parties’ briefs) is what remedy, if
any, should be directed in the event it is decided the Re-
spondent violated the Act.
Counsels were afforded full opportunity to present evi-
dence, examine and cross-examine witnesses, argue, and file
briefs. Both counsel submitted briefs.
Based on my review of the entire record, observation of
the witnesses, perusal of the briefs and research, I enter the
following
FINDINGS OF FACT2
I. JURISDICTION AND LABOR ORGANIZATION
The complaint alleged, the answer admitted, and I find at
all pertinent times the Respondent was an employer engaged
in commerce in a business affecting commerce and the
Union was a labor organization within the meaning of Sec-
tion 2 of the Act.
II. THE UNIT AND THE UNION’S REPRESENTATIVE STATUS
The complaint alleged, the answer admitted, and I find at
all pertinent times a unit consisting of all production and
maintenance employees of the Respondent at its plant located
at Grand Prairie, Texas, excluding all other employees, office
clerical, plant clerical, professional employees, guards,
watchmen, installation employees, and supervisors as defined
in the Act was an appropriate unit for collective-bargaining
611REEVES BROS.
3 The complaint alleged, the answer admitted, and I find at all rel-
evant times Walsh, Boenker, and Landers were supervisors and
agents acting on Respondent’s behalf within the meaning of Sec. 2
of the Act.
4 Both meetings, in accord with past practice, were held on the Re-
spondent’s premises at Grand Prairie during working hours. The em-
ployee-participants were compensated at their normal rates of pay
for the time spent in negotiations.
5 The minutes of the September 28 meeting of the Reeves board
of directors recites:
The Board reviewed the events of the past two weeks during
which the senior management of ARA Automotive Group made
detailed presentations in Connecticut on ARA’s perform-
ance. . . . The Board reviewed, among other things, the severe,
unexpected drop in sales commencing in August and the reasons
therefor, the revised projections that had been presented for
ARA’s business for the balance of 1990 and the impact of
events in the Middle East on ARA’s business and the U.S. econ-
omy. The Board also discussed various alternatives in lieu of
ceasing operations at ARA and terminating production.
6 His secretary, Rebecca Woods, so testified.
7 A day for which the employee-members of the committee would
not be compensated for time spent in negotiations.
purposes within the meaning of Section 9 of the Act and a
majority of the Respondent’s employees within that unit had
designated the Union as their exclusive representative for the
purpose of bargaining collectively with the Respondent over
their wages, hours, and working conditions.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
On October 6, 1987, the Respondent and the Union exe-
cuted a collective-bargaining agreement for a 2-year term and
year to year thereafter, unless either party gave timely notice
prior to October 5, 1989, or a successive year of a desire to
amend or terminate. In October 1989, the 1987–1989 agree-
ment was extended to October 5, 1990.
In July 1990 the Union served timely notice on the Re-
spondent of its desire to amend the agreement.
The parties first met on September 6. The union spokes-
man was Tom Mauer, president of Local 300. Also present
on behalf of the Union was a district representative assigned
by the International Union, Smith Harris, the chairman of the
Local Union’s negotiating committee, Lloyd Sheffield, and
the balance of the Union’s negotiating committee—Melvin
Young, Sarah Mendez, Elia Bell, and Molly Johnson. All but
Harris were employees of the Respondent. The Respondent’s
spokesman was Pat Walsh, vice president for corporate ad-
ministration, accompanied by Plant Manager Fred Boenker
and Personnel Administrator Gayle Landers.3
Mauer handed Walsh a written contract proposal. The par-
ties discussed the proposal, Mauer explaining each change
the Union was proposing. Prior to the end of the meeting,
the parties agreed to resume negotiations the morning of
Tuesday, September 18.
On September 18 the parties resumed negotiations. Walsh
gave Mauer a written counterproposal and the parties spent
the day discussing its terms. Prior to parting, the parties
agreed to next meet on September 28.4
During the week in which the second meeting took place
(the week of September 17–21) and the following week
(September 24–28) the owners of the parent corporation re-
viewed and discussed the division’s problems with their
managers and what to do about them.5
Walsh did not inform the union committee at any time
during the September 6 or September 18 negotiations the Re-
spondent’s owners were considering plant closure and other
alternatives to resolve the division’s alleged economic prob-
lems.
The Sunday following the September 18 negotiations,
Walsh flew to Darien, Connecticut, to present and discuss
proposals for resolving the alleged problems.6
On September 24 Walsh telephoned Woods and instructed
her: to telephone Harris; to advise Harris he was unable to
resume negotiations on September 28 because he would still
be in Darien that day; and to ask Harris if the negotiations
could be rescheduled to Saturday, September 29.7 Woods
telephoned Harris’ home and asked his wife to have Harris
telephone her, the Respondent needed to reschedule the ne-
gotiations set to resume September 28. When Harris returned
her call, she informed Harris that Walsh would not be return-
ing to Grand Prairie until about midnight on September 28
and wanted to resume negotiations on September 29 instead
of September 28. Harris responded he would have to consult
with the committee members. She asked him to call her back
after his consultation. He returned her call the next day and
informed her the committee was not willing to meet on Sep-
tember 29.
Both Harris and Plant Manager Boenker informed Mauer
the September 28 meeting was canceled, with Boenker advis-
ing Mauer on September 28 he knew nothing about any Sep-
tember 29 meeting.
The owners of the parent corporation completed their re-
view of the division’s problems on September 28 and took
the following action:
RESOLVED, that the Board of Directors has deter-
mined that it is in the best interests of Reeves Brothers
that all manufacturing operations at ARA Automotive
Group cease effective immediately and corresponding
reductions in salaried and support personnel be imple-
mented.
FURTHER, RESOLVED, that the officers of ARA
Automotive Group be and hereby are authorized and di-
rected to implement the foregoing resolution in accord-
ance with the presentation that had been submitted by
ARA’s management.
. . . .
RESOLVED, that the ARA Automotive Group is to
be offered for sale in whole or in part and that Mr. Ste-
ven W. Hart is authorized and directed to retain such
investment bankers, accountants, and/or other firms as
shall be necessary or desirable to assist in the sale of
ARA.
No employees were scheduled to work on September 29.
On that date all the bargaining unit employees received
Western Union mailgrams from the Respondent stating:
AS A RESULT OF RECENT EVENTS IN THE MIDDLE
EAST CAUSING SIGNIFICANT CHANGES THE PREVAILING
ECONOMIC CONDITIONS IN THE UNITED STATES AND A
SEVERE DROP IN ARA’S SALES DURING AUGUST AND
612 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 The Respondent was aware of the home addresses of the three
and their telephone numbers during the entire period plant closure
was under consideration. As noted heretofore, however, their notices
of the closure were received the day after the last day the plant was
in operation.
9 The Respondent recalled approximately 21 maintenance and ship-
ping employees for a short period (in accordance with the seniority
provisions of the unexpired collective-bargaining agreement).
10 The Union requested factual information verifying the Respond-
ent’s alleged reasons for the shutdown.
11 First National Maintenance Corp. v. NLRB, 452 U.S. 666
(1981).
12 Id. at 681–682.
13 Los Angeles Soap Co., 300 NLRB 289 (1991); Reidel Inter-
national, 300 NLRB 282 (1990); Metropolitan Teletronics Corp.,
279 NLRB 957 (1986), enfd. 819 F.2d 1130 (1st Cir. 1987);
Ensing’s Supermarket, 284 NLRB 302 (1987), enfd. 872 F.2d 1279
(7th Cir. 1989).
14 Raskin Packing Co., 246 NLRB 78 (1979); M & M Transpor-
tation Co., 293 NLRB 73 (1975); National Terminal Baking Corp.,
190 NLRB 465 (1971).
15 The Respondent contends ‘‘emergency circumstances’’ war-
ranted the shutdown (relying on the recitations advanced in its no-
tices to the unit employees and the Union). Those recited reasons
were not supported by any factual evidence either supplied to the
Union or produced at the hearing (on the ground such factual evi-
dence was ‘‘confidential’’). In the absence of such evidence, I reject
the contention.
SEPTEMBER, 1990. ALL ARA PLANT EMPLOYEES HAVE
BEEN PLACED ON INDEFINITE LAYOFF EFFECTIVE IMME-
DIATELY.
YOU SHOULD THEREFORE NOT REPORT FOR WORK
UNTIL FURTHER NOTICE.
YOUR CHECK FOR THE WEEK ENDING SEPTEMBER 28,
1990 WILL BE MAILED TO YOU WITHIN THE NEXT WEEK.
WE WILL BE MEETING WITH YOUR UNION REPRESENTA-
TIVES TO DISCUSS OTHER DETAILS OF YOUR EMPLOY-
MENT AND YOU WILL BE ADVISED ACCORDINGLY.
No union representative was aware the Respondent was
considering the shutdown of the division (among other alter-
natives) prior to the unit employees’ (including Mauer and
the balance of the union committee) receipt of the
mailgrams.
Mauer informed Harris of the contents of the mailgram he
received and attempted to contact management at the Grand
Prairie plant but found the telephones were not manned. The
union representatives decided to appear at the plant on Mon-
day, October 1 at shift starting time and seek clarification of
the situation.
On October 1, Harris, Mauer and about 50 employees ap-
peared at the plant and were denied admission. A guard sub-
sequently asked for Harris and, when Harris identified him-
self, stated Walsh wanted to see him and escorted Harris into
the plant. On his arrival at Walsh’s office, Walsh handed
Harris a letter which read as follows:
As a result of recent events in the Middle East caus-
ing significant changes in prevailing economic condi-
tions in the United States and a severe drop in ARA’s
sales during August and September, 1990, ARA must
curtail production immediately and has ordered a clos-
ing of its facility at 602 Fountain Parkway, Grand Prai-
rie, Texas. Although there may be a recall of a small
number of employees needed to complete some produc-
tion, ARA has determined that the facility will be
closed when such production is completed at the site.
Because of these sudden and unforeseen business cir-
cumstances, ARA was unable to give a full 60 days ad-
vance notice of its actions. The separations will occur
Monday, October 1, 1990 and employees have been no-
tified not to report to work until advised otherwise.
Subject to the possible recall noted above, the termi-
nation includes the employees listed on Schedule A at-
tached to this letter.
In the event you wish to receive further information
with respect to this matter, you should contact Patrick
M. Walsh, Vice President Administration at (214) 647–
4111.
Harris, Mauer, and Sheffield subsequently received iden-
tical letters at their home addresses.8
Walsh also informed Harris the Respondent on September
28 decided to shut down and terminate all the employees in
the division and to sell its products, inventory and assets but
was prepared to utilize some of the unit employees in com-
pleting the shutdown at Grand Prairie.9
Representatives of the Respondent met with representa-
tives of the Union on October 1 and subsequently, discussed
the Union’s complaints over the failure of the Respondent to
give the Union any notice of its planned shutdown and an
opportunity to engage in meaningful negotiations over the ef-
fect of the planned shutdown on the unit employees prior to
the shutdown, along with other subjects, plus the Union’s re-
quest for factual information.10
The Respondent has not resumed operations at the Grand
Prairie facilities since the shutdown, nor has the Union re-
ceived all the information it requested.
B. Analysis and Conclusions
First National Maintenance11 established the principle an
employer is not obligated to bargain with the union rep-
resenting its employees over a decision to cease operations.
The Court also ruled, however, an employer who closes its
operations has a duty to bargain with the union representing
its employees over the effect on those employees ‘‘in a
meaningful manner and at a meaningful time.’’12
‘‘A meaningful time’’ has been construed as a time prior
to the cessation of operations13 unless emergency cir-
cumstances preclude advance notice to the Union of the
planned closure and providing an opportunity to the Union
to seek and engage in effects bargaining.14
In this case the Respondent was discussing the shutdown
over at least a 2-week period prior to its effectuation and one
of the division’s officers privy to those discussions (Walsh)
was meeting with the Union in ostensible negotiations for a
successor collective-bargaining agreement. Yet the Union
neither was notified the Respondent was considering a shut-
down nor afforded an opportunity to bargain over its effects
upon the unit employees represented by the Union until the
shutdown was an accomplished fact. These factors establish
and I find constitute a clear violation of Section 8(a)(1) and
(5) of the Act under the cases cited above.15
613REEVES BROS.
16 Contris Packing Co., 268 NLRB 193, 196 (1983) (repeated in
almost identical language, Metropolitan Teletronics Corp., 279
NLRB 957, 960 (1986).)
CONCLUSIONS OF LAW
1. At all pertinent times the Respondent was an employer
engaged in commerce in a business affecting commerce and
the Union was a labor organization within the meaning of
Section 2 of the Act.
2. At all pertinent times Pat Walsh was the Respondent’s
vice president for corporate administration, Fred Boenker
was the Respondent’s plant manager, Gayle Landers, was the
Respondent’s personnel administrator, and all three were su-
pervisors and agents of the Respondent acting on its behalf
within the meaning of Section 2 of the Act.
3. At all pertinent times the Union was the designated ex-
clusive collective-bargaining representative of a majority of
the Respondent’s employees within a unit appropriate for
collective-bargaining purposes within the meaning of Section
9 of the Act consisting of:
All production and maintenance employees of the Re-
spondent at its plant located at Grand Prairie, Texas,
excluding all other employees, including office clerical,
plant clerical, professional employees, guards, watch-
men, installation employees and supervisors as defined
in the Act.
4. The Respondent violated Section 8(a)(1) and (5) of the
Act by failing to engage in effects bargaining with the Union
prior to shutting down its Grand Prairie, Texas plant.
5. The unfair labor practice just described affected inter-
state commerce within the meaning of Section 2 of the Act.
THE REMEDY
In Transmarine Navigation Corp., 170 NLRB 389 (1968),
after finding the employer violated Section 8(a)(1) and (5) of
the Act by closing its terminal and terminating its union-rep-
resented guards without affording the union an opportunity to
bargain over the effects of the closure and terminations on
the employees represented by the union, the Board stated:
It is apparent that, as a result of the Respondent’s
unlawful failure to bargain about such effects, the Re-
spondent’s guards were denied an opportunity to bar-
gain through their contractual representative at a time
prior to the shutdown when such bargaining would
have been meaningful in easing the hardship on em-
ployees whose jobs were being terminated. Under the
circumstances . . . it is impossible to reestablish a situ-
ation equivalent to that which would have prevailed
had the Respondent more timely fulfilled its statutory
bargaining obligation.
. . . .
Therefore, in order to assure meaningful bargaining
and to effectuate the purposes of the Act, we shall ac-
company our order to bargain over the effects of the
shutdown with a limited backpay requirement designed
both to make whole the employees for losses suffered
as a result of the violation and to recreate in some prac-
ticable manner a situation in which the parties’ bar-
gaining power is not entirely devoid of economic con-
sequences for the Respondent. [Emphasis added.]
In subsequent effects bargaining cases, the Board consist-
ently has ordered employers to comply with the Transmarine
remedy, refining its reasons therefor. For example, in Na-
tional Car Rental System, 252 NLRB 159, 163 (1980), the
Board stated:
During negotiations with Champion (a union represent-
ative), Respondent failed to inform the Union or the
employees that the jobs of the unit employees were in
jeopardy. The first the Union or the employees heard
of the closing of the Newark facility was on February
22, simultaneously with the notification that the entire
unit was being terminated. . . . the Union immediately
contested the propriety of the Respondent’s precipitous
announcement that all employees were being termi-
nated, but was told it had no control in the situation.
Had Respondent not announced the closing and termi-
nations as a fait accompli, it is clear the Union could
have offered various proposals. Respondent’s announce-
ment, however, precluded such a request and clearly in-
dicated that any attempt at bargaining would have been
futile.
In further explication, the Board has stated:
With respect to Contris’ unlawful failure to bargain
with the Union about the effects of its decision to close
its Wentzville, Missouri plant, the terminated employ-
ees have been denied an opportunity to bargain through
their collective-bargaining representative at a time when
the Respondent might still have been in need of their
services and a measure of balanced bargaining power
existed. Meaningful bargaining cannot be assured until
some measure of economic strength is restored to the
Union. A bargaining order alone, therefore, cannot
serve as an adequate remedy for the unfair labor prac-
tice committed.
Accordingly, we deem it necessary, in order to effec-
tuate the purposes of the Act, to require the Respondent
to bargain with the Union concerning the effects of the
shutdown on its employees, and shall accompany our
order with a limited backpay requirement designed both
to make whole the employees for losses suffered as a
result of the violations and to recreate in some prac-
ticable manner a situation in which the parties’ bar-
gaining position is not entirely devoid of economic con-
sequences for the Respondent.16
More recently, in Louisiana Dock Co., 293 NLRB 233
(1989), the Board explained that:
In cases in which an employer has failed to provide
its employees’ bargaining representative with an oppor-
tunity to engage in effects bargaining . . . the Board
traditionally has imposed a limited backpay requirement
and an order that the parties bargain over these effects.
(Citing cases.) In fashioning this remedy, the Board has
specifically found that in order to assure meaningful
bargaining a limited backpay requirement is needed. In
view of the Board’s recognition that such a backpay
award is a necessary precondition for meaningful bar-
614 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
gaining, we find that whatever bargaining the Union
and LDC had engaged in regarding the effects of the
layoffs after the layoffs had occurred is inadequate to
fulfill LDC’s affirmative obligations in this regard.
[Emphasis added.]
further ruling in Riedel International, 300 NLRB 282 (1990),
that when:
The judge found that the Respondent failed and re-
fused to bargain in good faith within the meaning of
Section 8(a)(5) of the Act concerning the effects of its
decision to sell Willamette by failing to notify the
Union of the decision until the day of the implementa-
tion of the decision, when it was virtually a fait
accompli.
. . . .
We agree with the judge that the Respondent pre-
sented the Union with a fait accompli concerning its
cessation of operations and termination of employees in
a manner that was in derogation of its obligation to no-
tify and bargain in advance with the Union about the
effects of these events.
. . . .
We find a violation in the Respondent’s failure to
provide any meaningful prior notice to the Union that
it was ceasing business and terminating employ-
ees. . . . That circumstances may compel confiden-
tiality . . . does not obviate the employer’s duty to give
pre-implementation notice to the union to allow time
for effects bargaining. . . . Thus, the Union here was
entitled as much notice of the closing and termination
of employees as was needed for meaningful bargaining
at a meaningful time. (Citing cases.) We need not de-
cide exactly how many days’ notice would be required
for such a meaningful opportunity; we find the Re-
spondent’s same day notice clearly insufficient. [Em-
phasis added.]
The Respondent argues the Transmarine remedy is inap-
propriate in this case, inasmuch as it notified the Union of
its decision to shut down and to terminate the employees the
Union represented the day after it made the decision to cease
operations in Grand Prairie and commenced negotiations
with the Union concerning the effects of the shutdown the
next workday.
The cases recited above clearly reject that argument; the
Respondent at no time during the contract negotiations pre-
ceding the shutdown gave the Union or the unit employees
any indication it was considering the shutdown of the Grand
Prairie plant, thus denying the Union an opportunity, at a
time when it still possessed some bargaining strength, to ad-
vance proposals designed to alleviate the effect of a shut-
down on the unit employees, such as 30 days’ notice prior
to termination, severance pay, continuation of health benefits
for a reasonable time, etc. Rather, the Respondent confronted
the Union and the unit employees with a fait accompli, with
the Union and the employees possessing little or no bar-
gaining power thereafter to secure some concessions.
The Respondent also contends since it met with the Union
the first working day following the shutdown and prior to the
date the Union filed the charge which led to this proceeding,
the Transmarine remedy is applicable, citing Thompson
Transport Co., 184 NLRB 38 (1970).
In Thompson, the employer notified the union of its inten-
tion to cease operations prior to doing so, but refused the
union’s request for effects bargaining prior to the closure and
did not offer to bargain with the union until 5 weeks after
the closure (after which the parties bargained to impasse). On
these facts, the Board held further bargaining would be futile
and ordered the employer to place the terminated employees
on a preferential hiring list and pay them 5 weeks of back-
pay, i.e., for the period between the date operations ceased
and the date effects bargaining commenced.
Applying the formula here would result in no backpay
whatsoever.
Thompson was a 1970 decision, made no reference to
Transmarine, a 1968 decision, and cannot be reconciled with
the principles enunciated in the later-decided cases cited
above, i.e., that an employer should not escape economic
consequences when, as here, the employer’s failure to afford
the union representative and its employees meaningful bar-
gaining at a meaningful time by failing to provide the Union
notice and an opportunity to engage in effects bargaining
prior to a shutdown, when the Union still possesses some
bargaining power.
I therefore reject the Respondent’s contention and rec-
ommend the issuance of the traditional Transmarine remedy
in this case, i.e., I recommend the Respondent be directed to
cease and desist from committing the unfair labor practices
enumerated above and pay backpay to the employees rep-
resented by the Union from 5 days after the date of this De-
cision and Order case until occurrence of the earliest of the
following conditions: (1) the date the Respondent bargains to
agreement with the Union on subjects pertaining to the ef-
fects of plant closing; (2) a bona fide impasse in bargaining;
(3) the Union’s failure to commence bargaining within 5
days of the date of this Decision or to commence bargaining
within 5 days of its receipt of notice from the Respondent
of its desire to bargain with the Union; (4) the Union’s sub-
sequent failure to bargain in good faith; but in no event shall
the sum paid to any of those employees exceed the amount
they would have earned as wages from September 28, 1990,
to the time they secured equivalent employment elsewhere or
the date on which the Respondent offers to bargain in good
faith, whichever occurs sooner; provided, however, that in no
event shall this sum be less than the wages these employees
would have earned for a 2-week period at the rate of their
normal wages when last in the Respondent’s employ.
Backpay shall be based on the earnings the terminated em-
ployees would have received during the applicable period,
less net interim earnings, with the sums due calculated in the
manner set out in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest thereon calculated in accordance with
New Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended17
615REEVES BROS.
18 If 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.’’
ORDER
The Respondent, ARA Automotive Group, Division of
Reeves Brothers, Inc., Grand Prairie, Texas, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing to bargain in good faith with Allied Industrial
Workers of America, Local 300, AFL–CIO concerning the
effects on employees represented by that Union of its shut-
down of its plant at Grand Prairie, Texas.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, bargain collectively in good faith with
Local 300 over the effects on the employees represented by
Local 300 of its shutdown of its Grand Prairie, Texas plant
and termination of its employees represented by Local 300.
(b) Pay the employees represented by Local 300 who were
terminated on and after September 29, 1990, their normal
wages for the appropriate period set forth in the remedy sec-
tion of this decision.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security records, timecards, personnel records and re-
ports, and all other records necessary to analyze the amounts
of backpay due under this Order.
(d) Sign and mail copies of the attached notice marked
‘‘Appendix’’18 to all employees represented by the Union
who were terminated on and after September 29, 1990, to
their last known addresses and sign and mail a copy to the
Union at its business address.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT fail or refuse to give notice of the shutdown
of our plants to the Union or unions representing our em-
ployees there in ample time prior to such shutdown to afford
such unions the opportunity to engage in meaningful bar-
gaining over the effects of the shutdown on the employees
represented by those unions.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL, on request, bargain collectively in good faith
with Alled Industrial Workers of America, Local 300, AFL–
CIO over the effects of our shutdown of our Grand Prairie,
Texas plant on our employees represented by Local 300.
WE WILL pay backpay to the employees represented by
Local 300 who were terminated when we shut down our
Grand Prairie, Texas plant as specified in the Board’s Order,
with interest on the sums due.
ARA AUTOMOTIVE GROUP, DIVISION OF
REEVES BROTHERS, INC.