NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,605, FRIEDMAN’S EXPRESS, INC. and LOCAL 478, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AFL-CIO., (Dec. 16, 1994), National Labor Relations Board, (Dec 16, 1994)

FRIEDMAN’S EXPRESS, INC. and LOCAL 478, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AFL-CIO.

315 NLRB No. 145.Case No. 22-CA-19247. December 16, 1994 D. Barry Morris, Administrative Law Judge..

Before Stephens, Devaney and Cohen.

Dorothy C. Karlebach, for General Counsel. David W. New, Clifton, New Jersey, for Respondent.

Shutdown of Plant--Bargaining Duty--Effects of Closing.--An employer unlawfully refused to bargain with a union over the effects of its decision to close its freight transport facility. Although the employer did discuss with the union whether employees who remained to wind up the operation would be selected by seniority and whether the terms of the collective bargaining agreement would apply, such conduct was insufficient to fulfill the employer’s duty to bargain over the effects of the closing since the discussion did not pertain to the concerns of all bargaining unit employees. Section 8(a)(5).

Back reference: ¶3145.8941.

From Text of Board’s Decision

On July 29, 1994, Administrative Law Judge D. Barry Morris issued the attached decision. The Respondent filed exceptions and a supporting brief with attachments.

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 amd brief and has decided to affirm the judge’s rulings, findings, and conclusions and to adopt the recommended Order.

One of the issues here is whether the Respondent violated Section 8(a)(5) of the Act by failing to bargain with the Union over the effects of its decision to close its Newark, New Jersey facility. We agree with the judge, for the reasons stated by him, that the Respondent never responded to the Union’s request to engage in effects bargaining and never engaged in such bargaining. Consequently, we also agree with the judge that the Respondent thus violated Section 8(a)(5). [1] .

The Respondent was engaged in the interstate transportation of freight from its Newark, New Jersey facility. The Respondent and the Union were parties to a collective-bargaining agreement effective April 1, 1991, through March 31, 1994, covering the drivers and dockmen at the Newark, New Jersey facility, the only facility at issue here. On April 5, 1993, however, the Respondent closed the Newark facility. On the same day, [2] the Respondent distributed to its Newark employees a notice of plant closing that explained, inter alia, that the cessation of operations would occur over the next several weeks and that “it [was] anticipated that a limited number of employees [would] be retained during all, or part, of the winding down of operations.” Also on April 5, the shop steward at the Newark facility advised Daniel McFall, the Union’s business agent, that the Respondent was closing the facility.

McFall testified that after he learned of the closing on April 5, he made a series of telephone calls the same day in an attempt to contact Daniel Friedman, the Respondent’s president, or Ed Nolan, the Respondent’s director of operations. McFall testified that his purpose in making the calls was both to find out why the Newark facility was closing and why the Respondent had neither notified the Union of the closing nor offered to engage in effects bargaining. Although McFall failed to reach either Friedman or Nolan, he did contact Dennis Weinbrech, the Respondent’s director of operations. McFall testified that his purpose in making the calls was both to find out why the Newark facility was closing and why the Respondent had neither notified the Union of the closing nor offered to engage in effects bargaining. Although McFall failed to reach either Friedman or Nolan, he did contact Dennis Weinbrecht, the Respondent’s terminal manager. Weinbrecht explained that he was not privy to information regarding the closing and did not know the reasons for it. McFall and Weinbrecht agreed, however, that the few employees who would remain for the next 2 or 3 weeks to help wind up operations would be selected on a seniority basis and that the terms of the collective-bargaining agreement would apply during that period. On the following day, April 6, McFall sent a letter to Friedman requesting, inter alia, that the Respondent contact him “to schedule bargaining over the effects of the Company’s cessation of operation on its employees represented by Local Union No. 478.” The Respondent never responded to this April 6 letter.

In finding that the Respondent violated Section 8(a)(5) by failing to bargain with the Union over the effects of its decision to close the Newark facility, the judge considered and rejected the Respondent’s argument that it had engaged in effects bargaining when McFall and Weinbrecht discussed whether the employees who remained to wind up operations would be selected by seniority and whether the terms of the collective-bargaining agreement would apply. The judge distinguished such bargaining over “technical aspects” of the continuing work from true effects bargaining on the grounds that the latter covers all employees in the bargaining unit, not just a few, and that true effects bargaining encompasses such topics as severance pay, health insurance, retraining funds, and reference letters, none of which were discussed by McFall and Weinbrecht. Accordingly, the judge found that the April 5 discussion between McFall and Weinbrecht did not constitute effects bargaining.

The Respondent excepts to this finding by the judge and contends that it did engage in effects bargaining on April 5 and thus fulfilled its bargaining obligation. For the reasons explained by the judge, we find this exception without merit. In this regard, it is well settled that effects bargaining encompasses “issues such as severange pay, seniority, pensions, health insurance, [and] job security” [3] that are of concern to all bargaining unit employees “whose employment status will be altered by the managerial decision.” [4] When viewed in this light, it is clear that the McFall-Weinbrecht April 5 telephone conversation did not constitute a complete discussion of the effects of the decision to close. At most, it was a discussion concerning the employees who would be retained for a short period. The Respondent’s attempt to formalize the McFall-Weinbrecht April 5 conversation into a complete bargaining session does not succeed in disguishing the fact that McFall and Weinbrecht simply agreed in their telephone conversation on the conditions under which a few employees would continue to work for 2 or 3 weeks. But the more important matter, viz, the effects of the closing on employees who would not be retained, was not discussed at all. The Union’s letter of April 6, requesting bargaining on effects, clearly embraced this latter subject. The Respondent failed to answer that letter. That failure was a refusal to bargain.