PETITION FOR REVIEW AND CROSS-PETITION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD
Before Aldisert, Garth and Van Dusen, Circuit Judges.
ABC Trans-National Transport, Inc. has petitioned us to review an order of the National Labor Relations Board which determined that ABC had violated Sections 8(a)(1) and (5) of the National Labor Relations Act by refusing to bargain collectively with its union. Truck Drivers, Chauffeurs and Helpers Local Union No. 100, about a decision to close one of ABC's 35 freight forwarding terminals. The Board has filed a cross-application for enforcement of its order. We affirm the Board's findings and conclusion as to ABC's liability, and therefore deny ABC's petition for review. We must also deny the Board's petition for enforcement of its order, however, inasmuch as it requires ABC to engage in the futile task of bargaining over its decision to close the terminal, the operation of which was shut down on July 21, 1978.
ABC Trans-National, a subsidiary of ABC Freight Forwarding, is a Delaware corporation engaged in the business of freight forwarding and in the transportation of freight, by motor carrier, within and between various states of the United States.*fn1 ABC operates terminals in approximately 35 cities. The company's drivers typically pick up freight in the city in which a terminal is located, bring it to the company's dock, where it is then delivered by the company's local drivers to a destination within the city's limits. One of ABC's terminals was located in Cincinnati, Ohio. Prior to its closing, ABC had operated this terminal for approximately 25 years. During this entire period, ABC's truck drivers and dockmen were represented by the Truck Drivers, Chauffeurs and Helpers Local Union No. 100, an affiliate of the International Brotherhood of Teamsters. The five truck drivers*fn2 and two dockmen employed by ABC at the Cincinnati terminal at the time of its closing were covered by a collective bargaining agreement which was effective from April 1, 1976, through March 31, 1979.*fn3
At the commencement of the proceedings before the Administrative Law Judge, counsel stipulated that ABC's decision to close the Cincinnati terminal was solely an economic decision (Tr. 6). Union Steward Cletus Leon also testified that business at the terminal during the past eight or nine years had continually worsened (Tr. 67). Thus, there is no suggestion that ABC's decision to close the terminal was motivated by any anti-union animus.
On July 14, 1978, Allen Brown, a Vice-President of ABC, telephoned ABC's District Manager Frank Conte and told him that ABC had decided to close the ABC Cincinnati operations and that, as of July 21, the terminal would be closed. Brown also told Conte to communicate this information to the Union. On that same day, Conte telephoned Robert Sturgill, the union's business agent, and related this development to him. Conte testified that he told Sturgill that as of July 21, ABC intended to terminate its operations in Cincinnati and lay off the employees, and that the company would take care of the vacations and sick days that were due (Tr. 24).
Following Conte's conversation with Sturgill, Conte sent Sturgill a letter confirming the substance of their conversation. This letter, dated July 14, was received into evidence as General Counsel's Exhibit No. 2. It read:
This letter is to confirm my telephone call on July 14, 1978, notifying you that ABC TRANS NATIONAL TRANSPORT, INC. will close terminal operation in Cincinnati, Ohio, at the close of business July 21, 1978.
All positions covered by the agreement presently in effect are abolished with the close of business July 21, 1978.
On July 17 or 18, 1978, Odell Hinkle, the union's Secretary-Treasurer, telephoned Edward N. Schwartz, ABC's attorney on this appeal, but the evidence is in conflict as to whether Schwartz had informed Hinkle during this conversation that the company would bargain over its decision to close. In support of the union's position that Schwartz neither offered nor intended to bargain over the decision itself, the General Counsel introduced three letters from ABC's counsel to the union. Each of the letters spoke only in terms of ABC's willingness to bargain over the effects of the closing.
The ALJ's opinion recites that just prior to July 21, 1978, ABC Freight Forwarding, the parent company of ABC Trans-National, purchased Acme Fast Freight, one of ABC's competitors. It goes on to state:
Upon the closing of Respondent's terminal, Conte became terminal manager at Acme Fast Freight. Respondent's former bookkeeper and salesman were also employed by Acme. In its operation Acme does not employ truckdrivers but contracts out that function.*fn1a
Opinion of the ALJ at 3-4.
The ALJ's opinion identifies the sole issue to be determined: whether ABC had refused to bargain over its decision to close the terminal, as distinguished from ABC's willingness to bargain about the effects of the closing. The ALJ stated:
The sole issue herein is whether Respondent failed and refused to bargain about its decision to close its Cincinnati terminal as a result of which its employees were discharged. It is conceded that the shutdown was for economic reasons and further that Respondent offered to bargain concerning the effects of the closing upon its employees.
The ALJ thereafter concluded that ABC had violated Sections 8(a)(1) and (5) of the Act by failing and refusing to bargain with the union in good faith over its decision to close the Cincinnati terminal. His order required ABC to bargain with the union over its decision to close the terminal and to make the employees who were discharged whole for earnings lost since July 21, 1978.*fn4 On January 11, 1980, the Board affirmed the ALJ's rulings, findings, and conclusions, and adopted the ALJ's order with a few minor modifications.*fn5
ABC's petition for review presents essentially two questions for resolution: (1) is there substantial evidence on the record as a whole to support the Board's finding that the company violated Sections 8(a)(1) and (5) of the Act, 29 U.S.C. § 151 et seq. (1976), by failing to bargain with the union about its decision to close the Cincinnati freight terminal? (2) if so, should we enforce the Board's order requiring ABC to bargain?
ABC argues on appeal that there is not substantial evidence on the record as a whole to support the Board's finding that it refused to bargain with the union over its decision to close the Cincinnati terminal. ABC also claims that even if it did not adequately advise the union of its intention to close the terminal, the decision to shut down the terminal does not constitute a mandatory subject of bargaining under the circumstances present here.*fn6 We will deal with these contentions in reverse order.
Within the past few weeks, our court has reviewed the legal principles pertinent to "mandatory subjects of bargaining" which arise in a Section 8(d) setting.*fn7 In Equitable Gas Co. v. NLRB, 637 F.2d 980 (3d Cir. 1981)*fn8 a case involving a subcontract of customer remittance work which had been previously performed by bargaining unit employees, we reaffirmed our adherence to the balancing approach announced in Brockway Motor Trucks v. NLRB, 582 F.2d 720, 731 (3d Cir. 1978):
Thus, it is now settled in the jurisprudence of this Circuit that when issues of subcontracting and partial closings are confronted in the context of the National Labor Relations Act, an initial presumption arises that they are mandatory subjects of bargaining. Applying the balancing analysis formulated in Brockway, this presumption can be overcome only if it appears that the employer's interests outweigh the union's interests in a given situation.
Equitable, supra, at 987. We concluded in Equitable that the company's subcontract of customer remittance work to a bank, under the circumstances present in that case, was not a mandatory subject of collective bargaining, and thus ...