National Wood Products Co., 812 (1969)
Pittsburgh Reflector Company d/b/a National Wood Products Company and National Store Fixture and Equipment Company and United Brotherhood of Carpenters and Joiners of America, Millmen's Local Union 1160, AFL-CIO. Case 6-CA-4127
June 30, 1969 DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On January 9, 1969, Trial Examiner Frederick U.
Reel issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. The General Counsel filed cross-exceptions limited to the Trial Examiner's failure to issue a cease-and -desist order, and a brief in support of this exception.
Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel.
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 the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner except to the extent inconsistent herewith.
In October 1967, the Respondent purchased the plant of the National Store Fixture and Equipment Co. and the National Wood Products Co., both of which were losing money and had defaulted on a bank loan. For 2 months the Respondent continued operations, completing only work in progress; it claims that high labor costs, which the Unions refused to lower, prevented it from bidding successfully for new orders. During this period, the Respondent formally refused to assume some of the terms of its predecessors' contracts with the Unions but agreed to pay the existing wage rates and fringe benefits for the temporary work. Between October 11 and November 29, at various meetings described in the Trial Examiner's Decision, the Respondent's representative attempted to negotiate for a lower wage rate and warned the Unions that it might have to close the plant if it could not cut labor costs.
According to testimony credited by the Trial Examiner, on more than one occasion the Unions' representative replied that he did not care if the plant closed down as he had plenty of work for his men. In November, the Respondent was informed that it would no longer secure a month-to-month lease on the plant but would have to sign for a longer term. In early December, having been unsuccessful in its attempts to lower labor costs and to secure new orders, the Respondent permanently closed the operation.
The Trial Examiner dismissed allegations that the Respondent had failed to notify the Unions that it was contemplating closing the plant on the ground that it had duly warned the Unions in the meetings;
but he found that the Respondent had violated Section 8(a)(5) of the Act by unilaterally changing certain 'terms and conditions of employment.' Specifically, the Trial Examiner found that the Respondent had violated the Act by failing to make the following payments in the 2-month period prior to the closing: 1 week's contribution to the health and welfare funds; personal holiday and vacation pay for certain employees; vacation payments accrued at termination; certain benefits accrued under the Respondent' s predecessor; some elements of severance pay and a raise of 10 cents per hour due December 1 by the terms of a predecessor's contract with Local 1160.' We find merit in the Respondent's exceptions.
The Trial Examiner cites, as one ground for his holding, Hackney Iron & Steel Co., 167 NLRB No.
84, presently before us for decision on remand from the United States Court of Appeals, District of Columbia Circuit (395 F.2d 639). Even were we to view the instant case in the light most favorable to the General Counsel, i.e., that Hackney will be decided in such a way as to bind a successor to its predecessor' s collective-bargaining contracts, we would nonetheless be constrained to dismiss the unfair labor practice allegation in question. The 10-cent wage increase would have been effective for only about 1 week before Respondent ceased operations. The remaining alleged violations are at most minimal and isolated breaches of contract, not of a continuing nature and not sufficient to constitute a unilateral modification of the contract within the meaning of Section 8(d) of the Act. In the peculiar circumstances of this case, including the brevity of operation ( 2 months ), the Respondent's severe financial difficulties and the fact that it generally fulfilled its bargaining obligation, we do not believe that it would effectuate the policies of the Act to find a refusal to bargain or to issue a remedial order.
Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor 'There was no proof or finding as to the specifics of these matters, but only a general finding by the Trial Examiner that some payments were not made. The plant was closed I week after the pay raise of 10 cents per hour was due to go into effect 177 NLRB No. 57
PITTSBURGH REFLECTOR COMPANY Relations Board hereby orders that the complaint be, and it hereby is, dismissed.
TRIAL EXAMINER' S DECISION STATEMENT OF THE CASE
FREDERICK U. REEL, Trial Examiner: This proceeding, heard at Pittsburgh, Pennsylvania, on November 26, 1968, pursuant to a charge filed December 26, 1967, and a complaint issued October 16, 1968, presents questions as to whether Respondent, herein called the Company, violated...
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