Brockway Motor Trucks, Div. of Mack Trucks, Inc. v. N.L.R.B.

Decision Date19 July 1978
Docket NumberNo. 77-1974,77-1974
Citation582 F.2d 720
Parties99 L.R.R.M. (BNA) 2013, 84 Lab.Cas. P 10,758 BROCKWAY MOTOR TRUCKS, DIVISION OF MACK TRUCKS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
CourtU.S. Court of Appeals — Third Circuit

Wilbur C. Creveling, Jr., Allentown, Pa., for petitioner.

Paul J. Spielberg, Andrew F. Tranovich, John S. Irving, John E. Higgins, Jr., Carl L. Taylor, Elliott Moore, N. L. R. B., Washington, D. C., for respondent.

Before ADAMS, VAN DUSEN and ROSENN, Circuit Judges.


ADAMS, Circuit Judge.

Many of the critical problems in contemporary legal discourse arise out of the difficulty of bringing ideals of public law into the basically private sector of community life. That difficulty has both a philosophical and legal dimension. It is necessary to accommodate norms of private right and individualism, fundamental to our society, with principles of public responsibility, which require limitations on the exercise of a purely private will. In jurisprudential terms, legislatures and courts are called upon to crystallize usable standards that reconcile the notions of public duty and individual interest. 1

One area of labor law reflecting the intricacy of bridging the private and public realms is that of the duty to bargain imposed on parties participating in the collective bargaining process. When a court is asked whether an employer is obliged to meet with a union before making a decision vitally affecting the employees, as we are here, the task of meshing public duty and private purpose is squarely presented. In discussing the scope of the employer's duty to bargain, it is essential to avoid overly simple solutions and instead to reflect the subtle interrelationship between public law principles and conceptions of private right.


With these concepts in mind, we now address ourselves specifically to the facts of the present appeal, which has emerged from a decision by Brockway Motor Trucks, a division of Mack Trucks, Inc., to close its facility in Philadelphia without first mentioning or discussing the possibility of closing with the affected union. The National Labor Relations Board (NLRB) has concluded that such unilateral action violates the duty to bargain imposed on an employer by the National Labor Relations Act (NLRA). Brockway has petitioned this Court for a review of the NLRB's ruling. At the same time, the Board has filed a cross-application for enforcement of its order that Brockway "cease and desist" from refusing to bargain with the union about the decision to shut down the plant, and that upon request the employer commence bargaining on that subject. 2 Prior to the plant closing, Brockway had a number of facilities, including the one in Philadelphia, that were engaged in the manufacture and sale of trucks. 3 The plant in Philadelphia was utilized for the sale and servicing of new and used vehicles. Employees at the plant were represented by Local 724, International Association of Machinists and Aerospace Workers, AFL-CIO. Brockway and the union negotiated a three-year collective bargaining agreement covering these employees, and the contract expired on September 14, 1975.

No new agreement between the parties was then reached, and an extended dispute ensued. As Brockway's counsel indicated at oral argument, the union commenced to strike the Philadelphia plant on May 26, 1976. The strike continued until the union was notified that management unilaterally had decided, on July 19, 1976, to shut down the facility. It is undisputed that the employer neither consulted the union about the decision to terminate nor gave the union any advance notice of the closing.

Less than one month after Brockway decided to cease operations at its plant, the union filed a charge with the NLRB alleging that Brockway, by failing to bargain about that decision, had violated §§ 8(a)(1) and (5) of the NLRA. The union directed its challenge solely at the employer's action of unilaterally closing the facility. 4

On September 23, 1976, the NLRB issued a complaint and notice of hearing in which it asserted that, on July 19, Brockway unlawfully had refused to bargain with the union regarding the plant closing. In its answer, Brockway admitted that it had decided unilaterally to shut down the facility and had refused to bargain with the union regarding that matter; it stated that notice had been given to the union on the day after the decision was made.

Both parties entered into a stipulation on December 27, 1976, in which they agreed that certain documents including the charge, complaint, notice of hearing, answer and stipulation would constitute the entire record in the case. They also waived all proceedings before an administrative law judge, and submitted the case directly to the NLRB for resolution on the basis of the record and opposing briefs.

It was stated in the stipulation that the discontinuance of operations at Brockway's Philadelphia facility was based solely on "economic considerations." Thus, it is to be assumed that the decision was not the product of anti-union animus on the part of Brockway. 5 There are no facts in the record, however, to explain in any detail the nature, extent or history of the considerations prompting the employer's decision to close its Philadelphia plant. Notably, the record does not make reference to economic Necessity as a basis of the decision. Moreover, there is no indication that in any specific way the employer's interest in managing the business would have been impeded by bargaining about the matter. For instance, there is no suggestion that any negotiations between Brockway and a third party about the firm's business had been underway or that relationships with suppliers or customers would have been adversely affected by bargaining with the union prior to deciding to close the plant. In short, the only explanation in the record for the unilateral determination by Brockway is the bare statement that the closing was prompted by "economic considerations."

In a decision dated July 21, 1977, 6 the NLRB concluded that Brockway had violated its duty to bargain with the union regarding "wages, hours and other terms and conditions of employment." The Board's opinion is rooted in the premise that an employer who decides to shut down part of its business violates § 8(a)(5) of the NLRA if it fails to bargain with the union about that subject. 7 When an employer's action directly affects the conditions of employment as does the decision to close a plant the employer was said by the Board to have a duty to bargain about the action "notwithstanding an employer's contention that such a requirement significantly restricts its ability to manage the business." The reason for such a result, it asserted, is that the union has a right under the NLRA to engage in a "full and frank discussion regarding such decisions." 8 Further, the Board noted, its finding of a duty to bargain does not compel the parties to come to any substantive agreement, but merely directs a process in which the union has an opportunity to discuss and perhaps influence the employer's final decision. 9

Brockway challenges the Board's conclusion as contrary to the law of this Court. It also insists that the prevailing view among the Circuits is that there never is any duty to bargain about a partial closing, such as we have here, 10 and that that view should be embraced in this case. In response, the Board urges that Brockway's refusal to bargain about the closing is properly seen to constitute an unfair labor practice. Further, the Board maintains that the opinion of this Court on which Brockway primarily relies NLRB v. Royal Plating & Polishing Co. 11 is not only distinguishable from the present case, but also should not be read to reach this situation.


Ever since the Supreme Court in NLRB v. Jones & Laughlin Steel Co.,301 U.S. 1, 30-40, 46-47, 57 S.Ct. 615, 81 L.Ed. 893 (1937), upheld the NLRA as constitutional, it has been a prime principle of American labor law that the parties to an industrial dispute are not free to act unrestrictedly in their own economic self-interest. The Court in Jones & Laughlin observed that "(w) hen industries organize themselves on a national scale, making their relation to interstate commerce the dominant factor in their activities, how can it be maintained that their industrial labor relations constitute a forbidden field into which Congress may not enter when it is necessary to protect interstate commerce from the paralyzing consequences of industrial war?" 12 The authority of Congress in establishing a structure of duties within which the participants in labor controversies are to fit themselves is thus based on an abiding sense of a national need for a system of restraints on unbridled, and potentially destructive, private force.

At the center of the Congressional effort to provide a framework for peaceful labor relations is the idea that collective bargaining between the parties should be encouraged. 13 The NLRA provides affirmative legal protection against the employer's exercise of its power to frustrate the organization of employees for collective bargaining. 14 Also, the Act imposes on employers an enforceable duty to bargain with unions representing appropriate bargaining units. 15

Congress did not undertake to specify the precise subjects that the parties are obliged to discuss. Rather, § 8(a)(5) of the NLRA, an aspect of the original legislation enacted in 1935, deals only in general terms with an employer's duty to negotiate, saying that it shall be an unfair labor practice for an employer:

. . . to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a). 16

In 1947 Congress amended the NLRA to include a new section, § 8(b)(3), which imposes a correlative duty to bargain upon labor organizations. 17 In...

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