350 F.2d 191 (3rd Cir. 1965), 15112, N. L. R. B. v. Royal Plating & Polishing Co.

Docket Nº:15112.
Citation:350 F.2d 191
Case Date:September 01, 1965
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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350 F.2d 191 (3rd Cir. 1965)




No. 15112.

United States Court of Appeals, Third Circuit.

Sept. 1, 1965

Argued May 20, 1965.

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Gary Green, N.L.R.B., Washington, D.C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Harold B. Shore, Attorney, N.L.R.B., on the brief), for petitioner.

Edward N. Schwartz, Newark, N.J., (Milton H. Goldberger, Newark, N.J., on the brief), for respondent.

Before BIGGS, Chief Judge, and STALEY and GANEY, Circuit Judges.

BIGGS, Chief Judge.

This case, before us on a petition to enforce the order of the National Labor Relations Board, presents the issue of whether an employer's unilateral decision to close a part of his business solely for economic reasons, under the facts as will be set out hereafter, constitutes a refusal to bargain in violation of Sections 8(a)(5) and (1) of the National Labor Relations Act.

Royal Plating and Polishing Co., Inc. (the Company) was for many years engaged in the metal plating and polishing business at two plants located within two blocks of each other in Newark, New Jersey. The larger plant was located at 152 Bleeker Street, the Bleeker Street plant, and the other at 70 Sussex Avenue, the Sussex Avenue plant. The two plants constitute a single bargaining unit. The Company has recognized the Metal Polishers, Buffers, Platers and Helpers International Union, Local 44, AFL-CIO (the Union) as the bargaining representative of the production and maintenance employees for seventeen years and the Union has been certified by the Board as the exclusive bargaining representative for these employees since 1960. The facts disclose that over the years there has been little labor trouble between the Company and the Union and that there had never been a strike at either plant prior to the current dispute.

The contract in force at the time the current dispute arose expired on April 17, 1963. The Union notified the Company's President, Joseph Barile, in February and March that it wished to negotiate a new contract and the first bargaining session was held on April 30, 1963. Following the negotiation pattern set in the past seven or eight years, the Union stated its demands and Barile informed the Union that the Company was losing money, that it could not afford an increase and that before he would grant a wage increase he would close the plant. The Company and the Union again met on May 7 but little progress was made in the negotiations. There was another meeting on the morning of May 17. At that meeting the Union notified Barile that its members had authorized a strike if Barile would not make a reasonable wage offer. Barile reiterated his former position and a strike was called. The parties again met that afternoon, this time with the aid of the Federal Mediation and Conciliation Service. After extended negotiations, the Company and the Union agreed on a new contract and a document embodying this agreement was signed on May 23.

While these contract negotiations were in progress, Barile was also negotiating with the Housing Authority of Newark over the sale of the Bleeker Street plant to the Authority. At some previous date not clear from the record, the area in which that plant was located had been designated for redevelopment and Barile had been attempting to negotiate a favorable sales price for the Bleeker Street plant. On May 14, 1 the Company,

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through Barile, granted the Housing Authority an irrevocable 90-day option to purchase the plant.

Subsequent to the execution of the new contract between the Company and the Union, the Housing Authority exercised its option and allowed the Company a six months maximum tenancy. The Company immediately began laying off employees and closed down the plant entirely in June of 1963. On July 10, the machinery and equipment were sold at public auction. The Company continued to operate the Sussex Avenue plant for a short time, but that plant was sold on September 1. The alleged unfair labor practice for a refusal to bargain relates only to the shutting down of the Bleeker Street plant.

The Trial Examiner found that Barile failed to inform the Union of his intention to sell the plant and liquidate until June 14, at which time the Union was handed a fait accompli, and that prior to that time Barile had been evasive and ambiguous in replies made to inquiries from...

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