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Decisions of the National Labor Relations Board
Brooks-Scanlon, Inc. and Local 1017, Lumber and Sawmill Workers affiliated with Western Council, Lumber, Production & Industrial Workers.
November 16, 1979
[**1607] Decision and Order
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
Upon a charge filed on August 2, 1978, as amended on September 26, 1978, by Local 1017, Lumber and Sawmill Workers affiliated with Western Council, Lumber, Production & Industrial Workers, herein the Union, and duly served on Brooks-Scanlon, Inc., herein Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 19, issued a complaint and notice of hearing on September 27, 1978, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charges, complaint, and notice of hearing before an administrative law judge were duly served on the parties to this proceeding.
The complaint alleges that on or about June 16, 1978, Respondent unilaterally, and without prior notice to the Union, announced that it was closing the sawmill department at its Redmond, Oregon, facility; and that at all times since June 16, 1978, Respondent has refused the Union's request that it meet and bargain concerning this decision. On October 19, 1978, Respondent filed its answer to the complaint denying the commission of any unfair labor practice.
The parties executed a stipulation on January 30, 1979, in which they agreed to certain facts, waived a hearing before an administrative law judge and the issuance of an administrative law judge's decision, and submitted the case to the National Labor Relations Board for findings of fact, conclusions of law, and an order based upon a record consisting of the charges, the complaint and notice of hearing, the answer, and the stipulation of facts.
By order dated April 12, 1979, the Board approved the stipulation of the parties and ordered the proceeding transferred to the Board, granting permission and time for the filing of briefs. Thereafter, the General Counsel and Respondent filed briefs.
Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
Upon the basis of the stipulation, the briefs, and the entire record in this proceeding, the Board makes the following findings:
I. BUSINESS OF THE EMPLOYER
Respondent is an Oregon corporation, with its principal place of business located at Bend, Oregon, engaged in the manufacture of lumber and plywood. It operates, as relevant herein, a sawmill in Bend and a plywood plant and sawmill in Redmond, Oregon. During the past 12 months, which period is representative of all times material herein, Respondent has sold and shipped from its Redmond Division finished goods and products valued in excess of $50,000 directly to customers located outside the State of Oregon.
The parties stipulated, and we find, that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and we find that it will effectuate the purposes of the Act to assert jurisdiction herein.1
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and we find, that Local 1017, Lumber and Sawmill Workers affiliated with Western Council, Lumber, Production & Industrial Workers, is, and at all times material herein, has been a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Stipulated Facts
For more than 10 years, the Union has been the exclusive representative of all employees employed by Respondent in the following appropriate unit:
All production, maintenance, transportation, temporary and part-time employees at the Employer's Redmond, Oregon, operation, excluding all office and clerical employees, guards, professional and supervisory employees as defined by the Act.
The current collective-bargaining agreement between the parties is effective from June 1, 1977, through June 1, 1980.
Respondent concluded, at a time prior to June 16, 1978,2 that it would not be economically feasible to continue its Redmond sawmill operation and, on that date, notified the Local Union Plant Committee of its decision. Respondent explained to the Union that the [*477] supply of pine timber available in the surrounding forests was not sufficient to support the continued operation of the sawmill. Although 55 employees were then employed in the sawmill department, Respondent stated that it planned to eliminated only 26 positions on August 11, the anticipated closing date. Respondent also advised the Union of its intention to negotiate the effects of the shutdown upon those employees whose jobs would be curtailed.
Thereafter, the parties agreed to meet at Respondent's offices to discuss the matter further. During this meeting, held on July 25, the Union requested that Respondent bargain concerning the decision to terminate its sawmill operation and that it maintain the status quo pending the outcome of any bargaining. Respondent refused to do so. While conceding that the sawmill operation was profitable, Respondent claimed that it would not be in its best economic interest to continue this operation. The parties then engaged in bargaining discussions as to the effects of the closure but were unable to reach any agreement.
Respondent ultimately closed the sawmill department on August 11. Thereafter, it terminated 26 of the 55 employees who were working in that department. Of the 26 employees whose jobs were eliminated, 19 had sufficient seniority and qualifications to take jobs, and thus bump other unit employees, in the Redmond plywood department. It is undisputed that the decision to terminate the Redmond sawmill operation was based solely on economic considerations.3 Furthermore, Respondent did not subcontract or transfer to its Bend facility any of the work formerly performed by unit employees.
B. Discussion and Conclusion
Based on the facts to which the parties have stipulated, we find that Respondent was under no duty to bargain with the Union over the decision to close its Redmond sawmill department.
The stipulated facts disclose that on June 16, 1978, Respondent informed the Union of its intention to terminate this operation within the next 2 months. In so doing, Respondent explained to the Union that the available supply of pine timber in the vicinity would not be sufficient to support the continued operation of the Redmond sawmill. Factors cited by Respondent as creating the diminution of timber supply were the impact of the activities of several conservationist groups and the anticipated requirements of other lumber-producing companies in the area. Respondent decided that it would be unable to grow or purchase enough suitable pine timber to supply the sawmill operation. While refusing to bargain concerning the decision to close its sawmill department, Respondent was willing to, and indeed did, bargain over the effects of the shutdown. Furthermore, it did not subcontract or transfer any of the unit work affected by the ultimate closing on August 11, 1978.
We recognize that in past cases the Board has consistently found that an employer has an obligation to bargain about decisions involving subcontracting, plant removal, and partial closure.4 The purpose of this requirement is to afford the union an opportunity to propose alternative measures which might alleviate the need for the elimination of unit jobs.5 If there were any remote possibility that the union could influence the final decision, we would find a bargaining obligation under these circumstances.
In the instant case, however, Respondent's decision to shut down the Redmond sawmill department emanated solely from the insufficient supply of pine timber which existed in the immediate area. The Board does not require an employer to bargain over the closing of an operation in situations, such as here, where the decision is predicated on economic factors so compelling that bargaining could not alter them.6 As the availability of a [**1608] limited natural resource is clearly beyond the control of either party, we conclude that Respondent's decision to terminate the Redmond sawmill operation resulted from an economic condition which would have rendered bargaining pointless despite any good-faith effort by Respondent to reach accomodation. We do not see any useful purpose to be derived from requiring Respondent to perform a futile act. In our opinion, Respondent fulfilled its obligation to the Union by bargaining over the effects of this decision.
Accordingly, for the reasons set forth above, we shall dismiss the complaint in this proceeding.
Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety.
MEMBER MURPHY, dissenting:
My colleagues find that Respondent was not obligated to bargain over a decision to close its Redmond [*478] sawmill department because they "do not see any useful purpose to be derived from requiring Respondent to perform a futile act." Such a conclusion is far removed from the actual facts here. It suggests strongly that the Board majority has now decided to base its determination as to Respondent's bargaining obligation on whether they believe that there is likely to be any change in the position of the employer—not on whether there could be any change. In doing so my colleagues have interjected themselves directly into the bargaining process—something the Board has previously consistently refused to do.7
Here Respondent is shutting down the sawmill because of a long-term concern, based on a number of factors, about the continued economic feasibility of operating the plant. While refusing to bargain, Respondent explained to the Union that there was a limited supply of the size and specie of timber (large Ponderosa pine logs) that the sawmill was designed to manufacture. Respondent also pointed out that among factors that contributed to its conclusion that it would be unable to obtain a satisfactory supply of this timber was the impact of preservationists groups, wilderness groups, and some alleged "conservation groups," and the anticipated supply required by competing sawmills and other related and timber dependent organization in the area. Therefore, Respondent did not believe it would be able to grow or buy enough suitable pine timber to continue to operate its Redmond sawmill. Respondent noted there was more sawmill capacity in the area than there was available supply.
An examination of these facts can only lead to the conclusion that Respondent had made a decision based on a long-term factors to shut down the sawmill. There is nothing in these facts which in anyway suggests that alternatives were not available. Thus, there was no showing that it was impossible for Respondent to extend the date of closing, to reduce the level of the curtailment to only a partial closing, to change its relationships with the Union so as to be able to compete with other sawmills for the limited timber available, or any combination of these or other proposals. Without explaining why the Union was not in a position to offer such alternatives, my colleagues simply permit Respondent to cut off the bargaining process. Such a result is unconscionable. See, e.g., Brockway Motor Trucks, Division of Mack Trucks, Inc., 230 NLRB 1002 (1977); First National Maintenance Corp., 242 NLRB 462 (1979).
1 Siemens Mailing Service, 122 NLRB 81 (1958).
2 All dates herein are in 1978 unless otherwise indicated.
3 Although counsel for the General Counsel has stipulated to the accuracy of this statement, he does not agree that it is relevant or material to the determination of this proceeding.
4 See, e.g., Roman Catholic Diocese of Brooklyn, Henry M. Hald Association, Bishop for Central Catholic High School, 236 NLRB 1 (1978); Brockway Motor Trucks, Division of Mack Trucks, Inc., 230 NLRB 1002 (1977); Ozark Trailers, Incorporated, and/or Hutco Equipment Company and/or Mobilefreeze Company, Inc., 161 NLRB 561 (1966); Winn-Dixie Stores, Inc., 147 NLRB 788 (1964).
5 Winn-Dixie Stores, Inc., supra at 789 .
6 Sucesion Mario Mercado E Hijos d/b/a Central Rufina, 161 NLRB 696 (1966) (subcontracted sugar cane grinding operations because of severe mechanical difficulties).
7 The Board is thus once again intruding itself into an area which is outside the statutory jurisdiction assigned to it by Congress, and is thereby legislating rather than adjudicating. See, e.g., my separate opinions in Machinists Local 1327, International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge 115 (Dalmo Victor), 231 NLRB 719 , 725 (1977), enforcement denied on same grounds as her dissent 608 F.2d 1219 (9th Cir. 1979); Westinghouse Electric Corporation, 239 NLRB 106 (1978); The East Dayton Tool and Die Co., 239 NLRB 141 (1978); White Farm Equipment Company, a Subsidiary of White Motor Corporation, 242 NLRB 1373 (1979); Safeway Stores, Incorporated, 240 NLRB 836 (1979); Puerto Rico Food Products Corp., Tradewinds Foods, Inc. and Island Can Corp., 242 NLRB 899 (1979); Belcher Towing Company, 238 NLRB 446 (1978).