Standard Industries, Inc.

National Labor Relations Board - Board Decisions

Oct 28, 1975

221 N.L.R.B. 141 (N.L.R.B. 1975)

BIRMINGHAM PLASTICS, INC.
Birmingham Plastics, Inc., a Wholly-Owned . Subsidi-
ary of Standard Industries, Inc.; Standard Indus-
tries, Inc. and United Rubber, Cork, Linoleum &
Plastic Workers of America, AFL-CIO, Local
Union No. 652. Case 7-CA-11334
October 28, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND PENELLO
On April 15, 1975, Administrative Law Judge Max
Rosenberg issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief.
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.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge to the
extent consistent herewith-
The Administrative Law Judge found that the
record did' not support a finding that, by its conduct
since May 2, 1974,` Respondent Birmingham Plastics
had engaged in ` surface bargaining"with the Union
regarding vacation, severance, and pension pay. He,
therefore, found' it unnecessary to determine whether
Respondent ' Birmingham Plastics and `Respondent
Standard Industries constitute a single employer and
dismissed the complaint in its entirety.
We do not agree with the Administrative Law
Judge's conclusion that Respondent Birmingham
bargained in good faith with the Union concerning
the effects upon the employees of the plant, closing:
On January 27, 1974, Respondent Birmingham
notified the Union that a decision had been made to
close the plant involved for. economic reasons. Three
days later Birmingham's attorney, Feiger, set a date
for bargaining about the effects of the closing.
Thereafter the parties met a number of times to
negotiate concerning ,vacation, severance, and pen-
sion payments due the employees.' At the May 2
meeting attended by the Union's attorney, Camp-
bell; Birmingham 's comptroller, Siwik; and Birming-
ham's attorney, Feiger, Campbell proposed settling
the employees' money demand for 75 percent of the
claimed liability Of Birmingham of $11,9001 for the
pension fund and $39,000 for accrued vacation
benefits . After further discussion,, Campbell agreed
to accept a settlement for 65, percent of Birming-
ham's claimed liability. Siwik characterized Camp-
bell's offer as "more than fair" and Feiger said that
221 NLRB No. 27
141
he would call New York and - get an answer. For
more than. 3 weeks thereafter Campbell heard
nothing further from any representative , of Birming-
ham despite telephone calls and a letter to Feiger.
Finally, on May 27, Feiger notified Campbell that he
had been relieved of his duties as counsel to
Birmingham and replaced by, Attorney , Lawrence
Stockier who had previously represented that Com-
pany.
When Campbell then contacted Stockier informing
him that the matter could be settled by Birmingham's
payment of-$ I 1,000 to the pension fund as well as the
payment of vacation benefits; Stockier indicated that
he was unfamiliar with the matter and was unaware
that Respondent Birmingham had retained him. On
June 2 , Stockier refused Campbell 's request for a
meeting, stating that "New York" had given him the
authority to settle the entire matter for $2,000 and
release of the pension-severance fund money to the
qualified employees.
Following Campbell 's informing Stockier on June
7 that the former employees had refused this $2,000
offer and approved filing of a lawsuit, Stockier
further retreated from Respondent Birmingham's
previous bargaining offer . On June 13 , Stockier
stated that his client' did "not wish to, make ` any
settlement regarding the pension matter at this time,
inasmuch as they want[ed] to have all matters,
claims , disputes , etc. resolved at one time." More-
over, Stockier stated that "there [would] be no
[pension-severance ] funds made available for distri-
bution ' to them until such time as [his client had]
resolved all " matters with [the] Union." Shortly
thereafter, when Union President See and other
former employees attempted to apply for pension-
severance funds in accordance with Feiger 's previous
indications of Birmingham 's cooperation, Stockier
informed President See that the Union would have to
settle on vacation and severance liability before
Respondent Birmingham would cooperate in dis-
bursing the funds.
Stockier subsequently reaffirmed Respondent Bir-
mingham's switch in bargaining position as to
cooperation in the disbursal of the funds , telling
Campbell, "New York has advised me that unless
you withdraw and settle all lawsuits and outstanding
actions and accept the sum of $2 ,000-and I'm not
even sure I can get you that now-unless you do that
we will not cooperate and release the pension funds."
We find, contrary to the Administrative Law
Judge, that the foregoing conduct indicates that
Respondent Birmingham was not bargaining in good
faith with the Union. The withdrawal from the
tentative agreement reached at the May ' 2 meeting,
the replacement thereafter of the company negotiator
with another representative, the new representative's
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refusal to meet further with Campbell, and the harsh
new terms for settlement proffered by the new
representative on a take it or leave it basis establish
in our opinion that Respondent Birmingham was not
bargaining in a good-faith attempt to reach an
agreement with the Union.' Also highly persuasive is
the fact that Respondent held the pension funds
already in the hands of the trustee, over which there
was no disputing the employees' entitlement, hostage
to the Union's capitulation to the new package
Respondent was offering.
Accordingly, we find that Respondent Birmingham
violated Section 8(a)(5) and (1) of the Act by its
course of bargaining with respect to vacation,
pension, and severance pay due the employees as the
result of the closing of the plant involved.
The Administrative Law Judge found it unneces-
sary to decide whether Respondents Birmingham
and Standard constitute a single employer inasmuch
as he found no violation of Section 8(a)(5) on the
part of Birmingham . As we have reversed this
dismissal of the 8(a)(5) allegation against Birming-
ham, it is now necessary to decide whether Standard
and Birmingham are a single employer so as to make
the former equally responsible with the latter for the
violation of Section 8(a)(5).
Birmingham is a wholly owned subsidiary of
Standard. Birmingham was a moribund corporation.
It is apparent from the conduct and statements of
Attorneys Feiger and Stockler that Standard was
dictating the terms of settlement of employee
interests in vacation, pension, and severance matters.
Thus, at the end of the May 2 meeting between
Campbell and Feiger, at which terms for a tentative
settlement were agreed to, Feiger stated:
I have to call my client . . . I'll have to call my
people in New York.... Well, we also represent
Standard Industries.... Well, that's who is
calling the shots on this thing here because really
Birmingham is down now and Standard is calling
the shots.
Similarly, Attorney Stockler, responding to Camp-
bell's complaint that the Company was not cooperat-
ing in releasing pension funds, said:
New York has advised me that unless you
withdraw and settle all lawsuits and outstanding
actions and accept the sum of $2,000-unless you
do that we will not cooperate and release the
pension funds.
1 Inter-Polymer Industries, Inc., 196 NLRB 729, 761 (1972); San Antonio
Machine & Supply Corp., 147 NLRB 1112, 1117 (1964), enfd. 363 F.2d 633,
635 (C.A. 5, 1966); General Electric Company, 150 NLRB 192, 194, enfd. 418
F.2d 736 (C.A. 2, 1969).
2 Royal Typewriter Company, a Division of Litton Business Systems, Inc.,
The reference to New York obviously related to
Respondent Standard.
In view of Standard's ownership of Birmingham
and the evidence that it was directing the settlement
negotiations with the Union, we find that Standard
and Birmingham constitute a single employer within
the meaning of the Act, and that Standard is
therefore equally responsible with Birmingham for
the violation of Section 8(a)(5) and (1) of the Act
committed here.2
CONCLUSIONS OF LAW
1. Respondent Birmingham Plastics, Inc., a
Wholly-Owned Subsidiary of Standard Industries,
Inc., is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Respondent Standard Industries , Inc., is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
3. United Rubber, Cork, Linoleum & Plastic
Workers of America , AFL-CIO, Local Union No.
652, the Union , is a labor organization within the
meaning of Section 2(5) of the Act.
4. All production and maintenance employees
employed by Respondent Birmingham at its plant
located at 1400 Axtell Road in Troy , Michigan,
excluding office clerical employees, professional
employees , guards, and supervisors as defined in the
Act constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
5. The Union at all times material was and has
been the exclusive bargaining representative of the
employees in the aforesaid unit for the purposes of
collective bargaining within the meaning of Section
9(a) of the Act.
6. By engaging in surface bargaining over the
subjects of vacation , severance , and pension pay,
Respondents have failed to engage in good-faith
bargaining and have thus violated Section 8(a)(1)
and (5) of the Act.
7. The aforesaid unfair labor practice is an unfair
labor practice affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondents have engaged
in an unfair labor practice , we shall order that the
Respondents cease and desist therefrom and take
etc., 209 NLRB 1006, 1011 , 1012 (1974). In view of this finding it is
unnecessary for us to pass on the General Counsel 's exception to the
Administrative Law Judge 's ruling that certain additional evidence of
agency and single-employer status was inadmissible.
BIRMINGHAM PLASTICS, INC
certain affirmative action designed to effectuate the
purposes of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents,
Birmingham Plastics, Inc., a Wholly-Owned Subsidi-
ary of Standard Industries, Inc., Troy, and Detroit,
Michigan; and Standard Industries, Inc., New York,
New York, their officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain in good faith with United
Rubber, Cork, Linoleum & Plastic Workers of
America, AFL-CIO, Local Union No. 652, with
respect to the effects of plant closure on the subjects
of vacation, severance, and pension pay,
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain with United Rubber,
Cork, Linoleum & Plastic Workers of America,
AFL-CIO, Local Union No. 652, as the exclusive
bargaining representative of all employees in the
appropriate unit, with respect to the effects on such
employees of the decision to close the Birmingham
plant, particularly with relation to vacation, sever-
ance, and pension pay, and, if an understanding is
reached, embody it in a signed agreement and
thereafter implement said agreement. The appropn-
ate unit is:
All production and maintenance employees em-
ployed by Respondent Birmingham at its plant
located at 1400 Axtell Road in Troy, Michigan,
excluding office clerical employees, professional
employees, guards, and supervisors as defined in
the Act.
(b) Mail to the last known addresses of all
employees in the appropriate unit copies of the
attached notice marked "Appendix."3 Copies of said
notice, on forms provided by the Regional Director
for Region 7, shall, after being duly signed by
authorized representatives of Respondent, be mailed
to said employees.
(c) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps the Respondents have taken to comply
herewith.
3 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "a Decision and
Order of the National Labor Relations Board" shall read "a Judgment of
143
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had an oppor-
tunity to present evidence, the National Labor
Relations Board has decided that we violated the
National Labor Relations Act and has ordered us to
mail this notice. We hereby notify you that:
WE WILL, upon request, bargain in good faith
with the Union, as the exclusive representative of
all employees in the following appropriate unit,
particularly with respect to the subjects of
vacation, severance, and pension pay, and, if an
understanding is reached, we will embody it in a
signed agreement, and we will implement any
agreement reached. The appropriate unit is:
All production and maintenance employees
employed by Birmingham Plastics, Inc., a
Wholly-Owned Subsidiary of Standard In-
dustries, Inc., at its plant located at 1400
Axtell Road in Troy, Michigan, excluding
office clerical employees, professional em-
ployees, guards, and supervisors as defined
in the Act.
BIRMINGHAM PLASTICS,
INC., A WHOLLY-OWNED
SUBSIDIARY OF
STANDARD INDUSTRIES,
INC.
DECISION
MAx ROSENBERG, Administrative Law Judge: With all
parties represented, this proceeding was tried before me in
Detroit, Michigan, on November 6, 7, and 8, 1974, and
December 3 and 4, 1974, on a complaint filed by the
General Counsel of the National Labor Relations Board
and an answer interposed thereto by Birmingham Plastics,
Inc., a Wholly-Owned Subsidiary of Standard Industries,
Inc ; Standard Industries, Inc., herein called Respondent
Birmingham or BPI, and Respondent Standard.' The issue
raised by the pleadings relates to whether Respondents
violated Section 8(a)(5) of the National Labor Relations
Act, as amended, by certain conduct to be detailed
hereinafter. Briefs have been received from the General
Counsel, the Charging Party, and the Respondent, which
have been duly considered.
i The complaint , which issued on September 30, 1974, is based on
charges filed on August 9, 1974, and served on August 12 and 14, 1974
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the 'entire- record made in this proceeding,
including my observation of the demeanor of the witnesses
as they testified on the stand, I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYER
Respondent Birmingham, a Michigan corporation with
its office and place of business located in the city of Troy,
State of Michigan, had been engaged in the sale, manufac-
ture, and distribution of plastic products at its plant in
Troy until it ceased business operations, and maintained
Lawrence Stockier; Esq., as -its registered resident agent
whose -offices are located at 1924 Guardian Building,
Detroit, Michigan. During the calendar year ending
December 31, 1973, which period is representative of its
operations during all times material herein, Respondent
Birmingham, in the course and conduct of, its business,
derived gross revenues in excess of $500,000 from its
manufacture and sale of molded 'plastics products, of
'which -amount, gross revenues in excess of ` $50,000 were
derived from the sale of such goods to employers in the
automotive industry, including Chrysler Corporation and
General Motors Corporation. Chrysler Corporation and
General Motors Corporation, during the calendar year
ending December 31, 1973, each derived gross revenues in
,excess of $500,000 and, during the same period, purchased
and caused , to be transported and delivered to their various
Michigan installations, goods and materials valued in
excess of $50,000, which were transported and delivered to
said Michigan installations' directly from points located
outside the State of Michigan. During the' calendar year
ending December 31, 1973, Respondent Birmingham
purchased goods valued in excess of $50,000 which were
shipped to its plant directly from points located outside the
State , of, Michigan. The complaint alleges, the answer
admits, and I, find that Respondent Birmingham is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
Respondent Standard, the complaint alleges, is a
Delaware corporation with' its offices and principal place
of business at 120 Wall Street, in the City of New York,
State of New York, and I 'so find. The complaint further
alleges, and the answer denies, that Respondent Standard
has held itself out to the public as the parent corporation of
Respondent; that, at all times material to this proceeding,
it has owned and exercised control over a majority' of the
outstanding stock in Respondent Birmingham; and, that
Respondents Birmingham' and Standard were, during the
material times, 'affiliated businesses with common owner-
ship, officers, and interlocking directors, and constituted a
single' ' employer within the meaning of the Act, with
-centralised managerial control ' over operations and labor
relations and personnel- policies affecting the-employees of
Respondent Birmingham and with close -interrelationship
2, Unless otherwise indicated, all dates herein fall m,1974.
3 The complaint alleges, the answer admits, and I find that all
production and maintenance employees employed by Respondent Binning-
ham at its plant located at 1400 Axtell Road in Troy, Michigan, excluding
all office clerical employees, professional employees, guards, and supervi-
sors`, as defined in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of the Act.
,of services, expertise, and control between Respondent
Birmingham and Standard. Finally, the complaint alleged
and the answer denies that Respondent Standard, based on
its relationship with Respondent Birmingham, is now and
has been at all times material herein an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act. In view of the findings and conclusions made
`hereinafter, I find it unnecessary to determine whether
Respondents Birmingham and Standard constitute a single
employer for statutory purposes.
II. THE LABOR ORGANIZATION' INVOLVED
United Rubber, Cork, Linoleum & Plastic Workers of
America AFL-CIO, Local Union No. 652, herein called
the Union, is a labor organization within, the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that, since on or about May 2,
1974,2 and continuing to date, Respondent Birmingham
and. Respondent Standard, as a single employer, failed and
refused to bargain in good faith with the Union, in an
appropriate unit of employees ' at BPI's Troy, Michigan,
plant,3 by engaging in' surface bargaining over the subjects
of earned and unused vacation pay, severance pay, and
pension benefits, and thereby violated Section 8(a) (5) of
the Act.4 For itspart, Respondent contends that it did` not
engage in any labor practices proscribed by the statute.
The facts are not seriously in dispute and I find them to
be as follows. BPI, prior to its corporate demise in January,
was wholly owned by Respondent Standard and engaged
in the manufacture of molded plastic products for the
automotive industry. Since 1966, the Union had been the
duly designated representative for the, purposes of collec-
tive bargaining in the unit of employees heretofore found
appropriate, and the Union and BPI 'had executed
successive labor agreements which encompassed the
subjects of wages, hours, and other terms and conditions of
employment. In October 103, business at BPI, so declined
that the supply of raw materials was diverted to another
company in the, area, American Plastics, Inc., a corpora-
tion wholly owned by Respondent Standard. In conse-
quence of this diversion, all, BPI's employees were
placed in layoff status and production ceased, Despite the
cessation of business, the Union and BPI met in October,
November, and December 1973, to renegotiate a new
contract to replace an existing compact due to expire, on
-January 27. On December 21, 1973, the parties reached an
accord to extend the current .agreement from January 28,
to January 27, 1975.
On January 7, BPI sent a telegram to Ann See,, the
President of the Union and an employee in layoff status,
and other employees, which recited that "You are hereby
notified that you are not to report for work on Monday
4 The complaint also alleged that , commencing on or about April 1,
1974, Respondent Birmingham failed and refused to bargain in good faith
with the Union over the effects upon employees of its prior closure of the
plant when, upon timely request, it declined to furnish the Union with
information relevant and material to bargaining about these matters. In his
brief, the General Counsel abandoned this allegation.
BIRMINGHAM PLASTICS, INC.
January 7, 1974. Your layoff will continue until further
notice ." On January 24, Kenneth Allen, who was then the
president of American Plastics, Inc., the wholly owned
company of Respondent Standard, received notice from an
Edward Weinheimer in New York, that a decision had
been made to close the BPI plant with instructions to make
this decision known to appropriate union officials.5 On or
about January 27, Allen contacted Union Field Represen-
tative John Izzard to convey this intelligence to the latter.
On January 30, Attorney Bernard Feiger, who represented
BPI, dispatched a letter to Izzard which read:
This is to confirm our understanding that representa-
tives of the Company, including myself, shall meet with
representatives of the Union on Thursday, February 7,
1974 at 4:00 p.m. at the offices of Birmingham Plastics,
Inc., to discuss the Company decision to terminate all
operations.
We understand there are many facets of this decision
which involve the Union and its members and are
prepared to discuss all of them with your representa-
tives.
On either February 7 or February 12, the parties met and a
discussion ensued concerning the determination of what
vacation, severance, and pension pay may be due and
owing to the employees. The results of these discussions
were relayed to Edward Weinheimer, and Sidney Jerris, a
director of BPI with addresses at 120 Wall Street, New
York, New York.
On February 28, Attorney Feiger sent a letter to Ann
See, the union president, advising her that "In accordance
with your request, this is to confirm that Birmingham
Plastics, Inc., has ceased its manufacturing operation
effective the close of business January 15, 1974" On
March 4, Morton L. Singer, who signed as "Treasurer,"
wrote to a Mr. Dan Dacey, a Blue-Cross Blue Shield
representative in Detroit, Michigan, that "This is to affirm
our oral guarantee that Birmingham Plastics, Inc. will pay
the amounts due Blue Cross under its agreement for its
employees up to the date of actual termination of
employment of each employee.""
In early March, John Campbell, an attorney for the
Union, contacted John Izzard, the International field
representative who assists its constituent locals in matters
relating to collective bargaining. Campbell and Izzard had
previously conversed about the situation which had arisen
at BPI involving the closure of the plant and the layoff of
the employees. During their March discussion, Campbell
informed Izzard that the former intended to get in touch
with the officials of BPI. Campbell testified and I find that,
sometime thereafter, he placed a call' to'the Company and
a man who identified himself as Ed Siwik answered.
During the colloquy, Siwik informed Campbell that Siwik
occupied the post of comptroller for BPI and was
authorized to speak on BPI's behalf. When Campbell
asked whether BPI was represented by counsel, Siwik
responded in the affirmative and stated that a Bernard
Feiger, Esq., was legal counsel. At the conclusion of the
145
conversation, Campbell inquired whether any other offi-
cials of BPI were available and Siwik answered, "no that he
was given general control of running the plant, he was in
there by the parent corporation to handle the closing of the
plant."
On March 28, Campbell dispatched a letter to Attorney
Feiger which recited:
I understand that you are the attorney for the
corporation which owns, or has a substantial interest in
[BPI]. The former members of [the Union] have
requested assistance from [their International] in the
resolution of certain items as a result of the recent
activities undertaken at [BPI].
I would very much appreciate meeting with you, Mr.
Ken Allen, and Mr. Ed Weinheimer in order that we
might discuss the following topics: repayment of
balances due under the pension plan negotiated on
behalf of these employees, the severance pay which is
due and owing to former employees, the past due
payments to Blue Cross and the reimbursement of
moneys paid to Blue Cross by former employees,
vacation time due and owing at the time of discharge,
the status of the group insurance policies.
I would suggest that we set up a meeting with the above
persons and any other persons that you feel would have
an interest as soon as possible in order to avoid
litigation.
Please advise.
According to Campbell, he mentioned the names of
Kenneth Allen and Edward Weinheimer to Feiger because,
in his earlier conversation with Siwik, the latter indicated
to Campbell that "he would also like to have present at
that meeting those two people so they will have representa-
tives that worked at Birmingham that would be able to
shed some light on what we were talking about."
Following the dispatch of this letter, Campbell called
Feiger. This telephone contact triggered a return letter
from Feiger on April 5, which read:
In reply to your letter dated March 28, 1974, I will be
happy to meet with you at your convenience, in any
mutually acceptable place, to discuss the problems
involving your members and Birmingham Plastics.
In connection with that discussion, the topics you
mention are the topics that we believe are still at issue
between the parties.
However, it is my understanding that all of the past-due
payments to Blue Cross and reimbursement of monies
paid to Blue Cross by employees will have, been
completed within the next 2 weeks and all claims filed
by Union members will be honored by Blue Cross. In
addition, it is my understanding that Blue Cross is now
accepting payment directly from all of the members of
the Union.
5 At this time, Allen was on loan from American Plastics, Inc., because BPI Vice President Canu had transferred to another company.
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
May I hear from you regarding a possible time
schedule for the meeting and your suggestions as to the
location of such meeting.
Campbell subsequently telephoned Feiger, suggesting a
May 2 meeting date, which was accepted by Feiger by
letter dated April 24.6
The parties met as scheduled on May 2. Campbell, who
was the chief spokesman for the Union, was accompanied
by Field Representative Izzard and the Union's officers.
BPI was jointly represented by Siwik and Feiger. As the
session opened, Campbell asked Siwik whether Weinheim-
er planned to attend as a representative of Respondent
Standard, and Siwik replied that Weinheimer could not be
present because he had an assignment elsewhere. Campbell
then inquired whether Ken Allen would be in attendance,
and Siwik replied in the negative, stating that "he had been
in contact with Mr. Ken Allen and had discussed the issues
we were going to talk about." Campbell thereupon queried
Siwik as to whether the comptroller possessed the authority
to make any recommendations for settlement of the issues
and Siwik replied that "he had not but that he was in
contact with the people who did have the authority to
make such finalization at anything we arrived at." The
discussion turned to the subject of certain Blue Cross
hospitalization payments, and Siwik assured Campbell that
all such payments had been made. At this juncture,
Campbell brought up, the issue of the balances which he
deemed due to the pension and insurance fund. An
argument ensued over the sums which BPI owed to the
fund, and Siwik produced figures for the preceding 5 years
which he averred that he had obtained from BPI's records.
In the course of the argument, Siwik agreed to permit the
Union's auditors, to check the accuracy of his computa-
tions. Siwik also assured Campbell that, subject to the
approval of the Internal Revenue Service, the employees
would encounter no obstacles from BPI to collect the
amounts due to them. At the meeting's end the the parties
discussed the final topic, namely the vacation pay due to
the former employees. Once again, Siwik observed that the
computation of these moneys and their payment would
create no irreconcilable problems. As Campbell and Feiger
departed the conference room, the former opined that the
Union would recover only 75 percent of its claimed sums,
and Campbell queried Feiger as to whether he had the
authority to settle the case immediately, to which Feiger
replied, "No. I have to call my client . . . I'll have to call
my people in New York." At this point, Campbell asked,
"Who is in New York," and Feiger responded, "Well, we
also represent Standard Industries." " Campbell retorted,
"What the hell does Standard have to do with this
company?" and Feiger answered, "Well, that's who is
calling the shots on this thing here because really
Birmingham is down now and Standard is calling the
shots." Campbell then proposed to compromise the funds
due to the employees on a 75-percent basis. After further
6 Feiger's April 24 letter indicates that he sent a carbon copy to "Mr. Ed
Weinheimer, Standard Industries, Inc."
7 On May' 15, Morton L. Singer, styling himself as the vice president of
BPI, executed a "Michigan Annual Report - 1974" on forms provided by
the State of Michigan in which he listed himself and a Sidney Jerris as
directors of BPI with residence addresses at "120 Wall St., New York, N.Y "
discussion, Campbell agreed to accept a settlement for 65
percent of BPI's claimed liability. Siwik interjected, stating
that , he believed that Campbell's offer was "more than
fair," and Feiger noted that "I will call New York and I
will get an answer to you." ,
On or about May 12, Campbell placed a call to Feiger in
which he complained that he had not heard from Feiger.
Feiger explained that, since the, May 2 meeting, John
Canu, the former executive vice president of BPI, had died
in an airplane crash and that' he, had not had time to
contact anyone in New York. However, Feiger promised
that he would pursue the matter further.? On May 21, after
failing to hear from Feiger, Campbell sent him a letter
about Feiger's lapse in communication. Campbell conclud-
ed that "It is apparent to me that the company does not
wish to settle this matter but is obviously looking forward
to litigation. Unless we receive some reply from you on or
before the 27th day of May, 1974, we will forward this
matter to our attorneys in New York and request them to
proceed with appropriate filings in this matter."
On May 27, Feiger contacted Campbell and informed
the latter that the former had been relieved of his duties as
counsel to BPI and had been replaced by Attorney
Lawrence Stockler who had previously represented that
company.8 Campbell obtained Sto'ckler's telephone'num-
ber from Feiger and immediately phoned Stockier. After
identifying himself, Campbell explained that the reason for
his call was to quickly resolve 'the matter' of the settlement
of the issues between the parties. Campbell went on to state
that the controversy could be settled by BPI's payment of
$11,000 to the pension fund as well as the payment of
vacation benefits. Stockier rejoined that he'knew, nothing
about these items, whereupon Campbell volunteered to
mail the requisite information to Stockier and the conver-
sation ended.
On June 2, Campbell again telephoned Stockier and
requested that they meet to iron out the pending problems.
Stockier declined to meet with Campbell, stating that "he
had been in contact with New York, and that New York
had told him - that New York had given him authority to
settle this case. He said there are creditors lined up' at the
door, the corporation is dead . He said it has no assets."
Campbell inquired as to what proposals he had to offer,
and Stockier replied that he would settle the entire matter
for $2,000 and release the pension fund money to the
qualified employees. Campbell demurred at this sugges-
tion, and asked, "Who you contacting in New York."
Stockier responded, "Our people," and refused to disclose
their identity.
On June 5, Campbell met with the former employees and
discussed Stockler's proposition with them, after reminding
them that, at the previous meeting with Siwik and Attorney
Feiger ion May 2, 1974, the company representatives had
computed BPI's financial liability as amounting to $11,900
for the pension fund -and $39,000 for accrued vacation
benefits. The claimants rejected Stockler's offer.
8 On May 9, Vice President Singer of BPI executed a form provided by
the Michigan Department of Commerce entitled "Certificate of Change of
Registered Office and/or Change of Resident Agent" which listed Attorney
Stockler as the successor resident agent. This form was filed with and
approved by that department on May 31.
BIRMINGHAM PLASTICS, INC.
On June 7, Campbell notified Stockier by mail about the
sums which Siwik and Feiger had mentioned regarding the
employees' entitlement and stated that the union members
had refused Stockler's offer and had approved the filing of
a lawsuit .9 In reply, and on June 13, Stockier related that:
I have been instructed by my client that they do not
wish to make any settlement regarding the pension
matter at this time, inasmuch as they want to have all
matters , claims, disputes, etc. resolved at one time. I.
would recommend that you do not have your members
contact Mr. Siwik for the necessary forms [to obtain
pension fund payments] at this time in view of the fact
that there will be no funds made available for
distribution to them until such time as we have resolved
all matters with your union.
On June 26, Campbell wrote to Stockier in which letter he
included a copy of the Pension and Severance Award
Agreement between Birmingham Plastics, Inc., and the
Union. After spelling out the pension provisions in the
agreement, Campbell wrote:
Your letter to me dated June 13, 1974, and my
subsequent conversation with you, indicates that your
client refuses to cooperate in any matter whatsoever in
the disbursement of these funds. Frankly, I don't see
where you have any other choice but to cooperate since
the money has been deposited in the hands of the
trustee and is the property of the former employees of
Birmingham Plastics. With the attitude that Birming-
ham Plastics has taken in the past, it would not surprise
me if it made an attempt to get this money back. If
Birmingham Plastics is defunct and dead, without any
assets whatsoever, I really can't understand why they
are reluctant to cooperate with us in the disbursement
of these funds and the approval of a plan to distribute
the remaining assets to the employees. I trust at this
time that you will review the Pension Agreement and
determine the correct position for your client to take.
A few days after mailing the latter, Campbell placed a
call to Stockier. In their conversation, Campbell inquired
whether Stockier had received the copy of the Pension and
Severance Award Agreement and Stockier replied that he
had. Campbell then stated that "I want to sit down and
discuss this with you. I'd like to meet with the company
and finalize this thing. It's been dragging on now since
March and these people are calling me wanting their
money. The company is not cooperating with them, they
will not allow them - they will not cooperate and release
the pension funds." Stockier commented that "New York
has advised me that unless you withdraw and settle all
lawsuits and outstanding actions and accept the sum of
$2,000 - and I'm not even sure I can get you that now -
unless you do that we will not cooperate and release the
pension funds." When Campbell asked whether Stockier
was authorized to settle the matter for any other amount of
money, the latter reported that he had no such authority.
Campbell reiterated that "we can't accept that amount of
9 While the record is not entirely clear on this point, it appears that the
Union filed a suit against Respondents Birmingham Plastics, Inc., and
147
money. We would like to sit down and bargain with you."
Stockler went on to relate that BPI had gone out of
business, despite his efforts to keep the Company alive.
Campbell cut him short and remarked that "we're not
talking about what happened in the past, we have two
things that are left to be settled. I would like to sit down
with your people, to meet and discuss them and fmish it."
The conversation concluded with Stockler's statement that
"I'll see what I can do."
On July 23, Campbell received a letter from the holder of
the pension trust informing him that the pension fund
could not be released without BPI's authorization. About a
week following receipt of this letter, Campbell telephoned
Stockier and stated "that again we were willing to settle
this matter" but insisted that the $2,000 offer in settlement
of items other than the pension fund was "ridiculous."
Campbell told Stockier, "Larry, if you can get me some
money I will take it to the people and I will try to resolve
this issue so that we can settle everything that we have at
Birmingham Plastics. . . . They admitted they owed some
money. Why don't you see if you can get us $10,000 or
$15,000 and I'll take it to the people and I'll try to sell it to
them... " Stockier responded, "I'll try, I'll try. I'll have
to call my people in New York. I don't know if I can do it
or not, I'll try. It's possible." Thereafter, nothing further
was heard from Stockier and the Union no longer pressed
the matter.
As previously chronicled, the General Counsel contends
that, since May 2, Respondent had offended the provisions
of Section 8(a)(5) of the Act by engaging in "surface
bargaining" with the Union over the issues of vacation and
severance pay and pension benefits. On the, record before
me, I am not convinced that the General Counsel has
sustained this thesis by preponderant proof. When the
decision was made to cease operations at BPI in January,
the Union was fully apprised of this action and BPI
voluntarily met with representatives of that labor organiza-
tion to discuss all facets of the decision to cease operations
and its impact upon its employees. On "February 7 and
12," the parties met and discussed vacation, pension, and
severance pay. Indeed, on March 4, Morton L. Singer,
BPI's vice president, informed Blue Cross that BPI stood
willing and ready to pay whatever sums were necessary to
cover its employees until the date of the actual termination
of their employment, a matter which was of bargaining
concern to the Union and an obligation which BPI
fulfilled. In March and April, BPI exchanged ideas and
information with the Union concerning the effects of the
closure upon the employees, and, on May 2, explored in
depth such items as the pension and insurance fund and
vacation and severance pay. Although the representatives
of BPI opined that certain amounts might be due the
employees based on the company records, they did not
agree that these sums would or could be payable in view of
the demise and the financial plight of BPI, and sought
consultation with higher authorities in the Company.
When Attorney Stockier assumed the reigns as the
negotiator for BPI, he informed Attorney Campbell of the
Union that he would study the matter of the pension fund
Standard sometime thereafter under Sec . 301 of the Act claiming damages.
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and vacation and severance payments because he was a
stranger to the bargaining process. In their discussion on
June 2, Stockler agreed to release the pension fund money
to the qualified employees and offered the sum of $2,000 in
discharge of BPI's obligation to them concerning vacation
and severance pay, an offer which the Union rejected.
Shortly thereafter, the Union filed its suit for damages
under Section 301 of the Act, apparently seeking the same
sums in that action as it believed it was entitled to in this
proceeding. While Stockier did, on June 13 and again at
the end of June, report that his client was unwilling to treat
the settlement claim in piecemeal fashion until all
outstanding legal issues had been resolved between the
parties, he never shut the door on negotiations and even
indicated that he would attempt to escalate the nonpension
fund sum to a figure above the $2,000, which he had
previously offered to settle the matter, as late as the end of
July or early August. Thereafter, the Union made no
further efforts to press its claim at the bargaining table,
but, instead, pursued the matter by the filing of the instant
charges.
On the record before me, I am unable to find and
conclude that, by its conduct since on and after May 2,
BPI engaged in surface bargaining with the Union
regarding vacation, severance, and pension pay. In light of
this disposition, I deem it unnecessary to consider whether
Respondent Birmingham and Respondent Standard con-
stitute a single employer. I shall therefore order that the
complaint be dismissed in its entirety.
[Recommended Order for dismissal omitted from publi-
cation.]