Barbers Iron Foundry

30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ferazani was the only witness for the General Counsel who testified as to the Company's practice in the hiring of new employees I find that his testimony does not disclose that the Respondent maintained and enforced any illegal practice or oral agreement with the Company in this respect, as alleged in the complaint [Recommendations omitted from publication ] Rudy Barber, Louis B. Barber and Robert Hamlyn, Co-Partners, d/b/a Barbers Iron Foundry and International Molders and Foundry Workers Union of North America, AFL-CIO. Case No 4-CA-1649.. January 8, 1960 DECISION AND ORDER On April 15, 1958, Trial Examiner Louis Plost issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto Thereafter, the Charging Party and the General Counsel filed exceptions to the Intermediate Report and briefs in support thereof On January 12, 1959, the Board ordered that the record be re- opened and the case be remanded for further hearing Thereafter, the parties entered into a stipulation setting forth certain facts and waived their rights to a supplemental Intermediate Report The General Counsel's motion, that the Board accept the stipulation and close the record, is hereby granted The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, the stipulation, and the entire record in this case, and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner with the fol- lowing additions and modifications. Tim UNFAIR LABOR PRACTICE FINDINGS 1 The Trial Examiner found that the Respondent threatened its employees in violation of Section 8 (a) (1) , temporarily locked out its employees from November 21 to 25, 1957, in violation of Section 8(a) (3), discriminatorily discharged employee Henry Hayes in violation of Section 8 (a) (3) , and refused to bargain collectively with the union in violation of Section 8(a) (5) No exceptions were taken to these findings Accordingly, we adopt them pro forma. 2 The Trial Examiner further found that the Respondent dis- criminatorily discharged its employees in violation of Section 126 NLRB No 5 BARBERS IRON FOUNDRY 31 8(a) (3) of the Act by closing its plant on November 27, 1957. He concluded that the plant closing was only temporary because "until final liquidation, the closing, no matter of what duration, must be presumed to be temporary." Nevertheless, he did not recommend the payment of back pay to the discharged employees, contrary to Board policy which provides for reinstatement with back pay in cases of discriminatory, temporary lockouts. Because of this inconsistency and the speculative finding of the Trial Examiner with respect to the nature of the plant closing, the Board remanded the case to the Trial Examiner in order to obtain additional evidence in that respect. The stipulation of the parties, entered into pursuant to that Board order, shows the following facts : Subsequent to the plant closing, the Respondent attempted in various ways to sell its plant. It listed the plant for sale with the South Jersey Development Council, placed an advertisement in the Foundry Supply Magazine, a trade journal, enlisted the services of the Chamber of Commerce of Bridgeton, New Jersey, in its efforts, and listed the property with David W. Blew, a real estate broker. The stipulation further shows that the Respondent has made no pur- chases of materials and equipment since the plant closing, and has commenced liquidation of its assets by selling its materials and equip- ment whenever a reasonable price was obtainable.' These undisputed facts show a consistent pattern of action on the part of the Respondent which supports its contention that the Respondent on November 27, 1957, did not intend to reopen its plant. Accordingly, we find, contrary to the Trial Examiner, that the plant closing on November 27, 1957, was a permanent discon- tinuance of the Respondent's business operations as of that date. There remains the question whether such plant closing, although permanent, was violative of Section 8(a) (3) of the Act. In this regard, the record establishes that the Union won a Board-conducted consent election on November 13, 1957, and 2 days later sent contract proposals to the Respondent. In addition to refusing to bargain with the Union, the Respondent temporarily locked out all its employees from November 21 to 25, discriminatorily discharged Henry Hayes on November 25, and warned the employees that if they wanted to keep their jobs they had better make up their minds about the Union by Wednesday, November 27. Notwithstanding the Respondent's threats and discriminatory acts which tended to discourage their union activity, the employees did not surrender their right to bargain collectively by repudiating their duly chosen bargaining agent. On November 27,1957, the plant closed permanently. 1 Subsequent to the plant closing, Partner Louis Barber died of heart failure. It is undisputed that Louis Barber was in sole charge of the production operations and in over- all charge of the administration and operation of the business The other two partners had full-time jobs elsewhere, although one of them , Robert Iiamlyn, assisted in book- keeping and other nonproduction operations. 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In rejecting the Respondent's claim that only economic considera- tions prompted the plant closing, the Trial Examiner found that the decision to close the plant was not made until after the advent of the Union, and that, although various reasons may have entered into the final decision to close the plant, there can be no doubt but that the actual closing was discriminatorily motivated .2 Accordingly, on the basis of the entire record, we find, in agreement with the Trial Examiner, that the Respondent discriminated in regard to its employees' tenure of employment by closing its plant-thereby discharging the employees-and that, because the plant closing was the direct result of the employees' selection of the Charging Union as their collective-bargaining representative, the Respondent's plant closing discouraged the employees' continued membership in the Union. As the permanent plant closing was discriminatorily moti- vated, we find that the Respondent thereby violated Section 8(a) (3) of the Act .3 We do not agree with our dissenting colleague, Member Rodgers, that a discriminatory plant closing is not a violation where, as here, it is shown to be permanent. In our opinion, the fact that the plant closing was also permanent does not make it any 'less discriminatory. THE REMEDY In his exceptions, the General Counsel concedes that immediate reinstatement cannot be ordered under the circumstances of this case. However, both the General Counsel and the Charging Party urge the Board to fashion a remedy which would result in each employee receiving monetary compensation for his loss of employment. Specifi- cally, the General Counsel requests the Board to order the Respondent to pay each employee "a sum of money equal to that which he normally -would have earned as wages from the date of the discrimination, for such period as may be found appropriate by the Board." 4 It is well settled that a discriminatorily discharged employee is entitled to back pay from the date of the unlawful discharge to the date upon which he is offered immediate reinstatement to his former or substantially equivalent position. The right to back pay during the 2 The Board has found that the permanent closing of part of an employer 's operations is a violation of Section 8(a) (3) where the motivating cause of the closing was opposition to the union, even though economic reasons may have been an additional motive See Missouri Transit Company, 116 NLRB 587, 590, enfd 250 F. 2d 261 (CA. 8). 3 Wallxek & Schwalm Company, 95 NLRB 1262 , enfd 198 F. 2d 477 ( CA. 3) ; A M. Andrews Company , 112 NLRB 626, 628 , enfd. 236 F . 2d 44 (C A 9) ; see Industrial Fabricating Inc, et at , 119 NLRB 162 ; Missouri Transit Company, supra 4 In this regard , the General Counsel suggests alternative methods of fixing back pay He would have back pay begin with the date of the discriminatory plant closing and terminate ( a) when the Respondent notifies its employees of the creation of a preferential hiring list , ( b) when the employees obtain substantially equivalent employment else- where, (e) v.uen the hip i_ n ..Lai=Y t._e pl_,nt i,_ nc.,- discriminatory reasons, or (d) after a reasonable period fixed by the Board, for example, 6 months The Trial Examiner considered the foregoing alternatives and rejected them as being punitive BARBERS IRON FOUNDRY 33 foregoing period is based on the theory that, but for the unlawful discharge, the discriminatee would have earned his normal wages dur- ing this period. However, where it is shown that a discriminatee would not have earned wages during the back-pay period, or a portion thereof, the Board will modify its back-pay order accordingly. Thus, the Board has not ordered payment of wages for that portion of the back-pay period during which the plant was shut down.-' Similarly, the Board has cut off back pay on the date upon which a discriminatee refused reinstatement 6 or was laid off, either because of a reduction in force,7 or because of participation in an unprotected strikes Finally, the Board has declined to order back pay beyond the date of a permanent cessation of business operations.9 In the present case, there was a temporary closing beginning on November 21, followed by a plant reopening on November 25, and finally, a permanent plant closing on November 27, 1957. Under all the circumstances, we conclude that, although the discriminatees are entitled to back pay for the period of the temporary closing, they are not entitled to any monetary compensation for the period subsequent to the permanent cessation of business operations on November 27, 1957. In reaching this conclusion, we are not unmindful of the hardships imposed upon these employees by the Respondent's decision to go out of business rather than deal with the Union. We do not condone such conduct, but at the same time, we do not agree with the General Coun- sel's suggestion 10 that an employer who permanently closes his plant and discontinues business operations should be ordered to continue paying wages to its employees, either for a definite period of time arbitrarily fixed by this Board (for example, 6 months), or for an indefinite period of time, the duration of which is contingent upon the employees obtaining substantially equivalent employment else- where. As the Respondent has permanently discontinued its business opera- tions, we shall not order immediate reinstatement for the discrim- inatees whose names appear in Appendix A attached hereto." In- stead, we shall order the Respondent to create a preferential hiring 5 Frank P. Slater, d/b/a Acme Equipment Company, 102 NLRB 153. 0 Alexander Manufacturing Company, 110 NLRB 1457, 1459. 4 E V Prentice Maclaine Worl s. Inc, 120 NLRB 417, 418; J C Boespflug Construction. Co , 113 NLRB 330, 336, Westinghouse Electric Corporation , 77 NLRB 1058, 1061 8 Mid-West Metallic Products Inc . 121 NLRB 1317. 9 A. If Andrews Company, 112 NLRB 626, 630, Colonial Fashions . Incorporated, 110 NLRB 1197, 1204, Reynolds Corporation, 74 NLRB 1622, Randolph Corporation, 89 NLRB 1490, 1495, Cleveland-Cliffs Iron Company, 30 NLRB 1093, 1115, enfd 133 F. 2d 295, 302 (CA. 6). -a `co:ncte 4 Colonial Fashions, Incorporated, supra; Randolph Corporation , supra; Cleveland- Cliffs Iron Company, supra, footnote 10. 554461-60-vol. 126-4 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD list, notify its employees of said list, and, in the event it resumes opera- tion of its foundry business, to offer the discriminatees immediate re- instatement to their former or substantially equivalent positions with- out prejudice to their seniority and other rights and privileges previously enjoyed. We also expressly reserve the right to modify the back-pay and re- instatement provisions of this Decision and Order if made necessary by a change of conditions in the future, and to make such supplements thereto as may hereafter become necessary in order to define or clarify their application to a specific set of circumstances not now apparent.12 ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Rudy Barber, Louis R. Barber, and Robert Hamlyn, Co-Partners , d/b/a Barbers Iron Foundry, Bridgeton , New Jersey, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with International Molders and Foundry Workers Union of North America, AFL-CIO, as the ex- clusive representative of all the employees in the appropriate unit con- sisting of all production and maintenance employees of the Em- ployer's Bridgeton, New Jersey, plant, excluding office clerical employees, guards, and supervisors as defined in the Act. (b) Threatening employees with loss of employment if they do not renounce the Union as their collective -bargaining representative. (c) Discouraging membership in International Molders and Foundry Workers Union of North America, AFL-CIO, or in any other labor organization of its employees, by discriminating in any manner in respect to their hire or tenure of employment, or any term or condition of employment. (d) Discouraging membership in the above -named labor organiza- tion or any other labor organization by discharging employees for their union activities. (e) In any other manner interfering with, restraining , or coercing its employees in the exercise of the right to self-organization , to form labor organizations, to join or assist International Molders and Foundry Workers Union of America, AFL-CIO, or any other labor organization, or bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the pur- poses of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such 12Bermuda Knitwear Corporation, 120 NLRB 332. BARBERS IRON FOUNDRY 35 right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in ,Section 8 (a) (3) of the Act, as modified by the Labor Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) If and when the Respondent resumes its foundry operations, bargain collectively, upon request, with International Molders and Foundry Workers Union of North America, AFL-CIO, as the ,exclusive representative of all employees in the appropriate unit here found, and embody any understanding reached in a signed agreement. (b) Make whole those individuals whose names appear listed on Appendix A of this Order and make whole Henry Hayes for any loss they may have suffered by reason of the discrimination against them in the manner set forth herein and in the section of the Inter- mediate Report entitled "The Remedy." (c) Upon request, make available to the Board or its agents, for examination and copying, all payroll records, social-security pay- ment records, timecards, personnel records and reports, and all other records necessary for determination of the amount of back pay due under the terms of this Order. (d) Create a preferential hiring list containing the names of all those individuals listed in Appendix A of this Order as being entitled to reinstatement if and when the Respondent resumes its foundry operations, such reinstatement rights arising from the lay- off of the listed individuals on November 27, 1957, and further, the Respondent shall include the name of Henry Hayes in such prefer- ential list. The Respondent shall notify the Union and all said listed employees of the establishment of said list and its content and shall offer all said individuals full reinstatement of their former ,or substantially equivalent positions without prejudice to their seniority or other rights and privileges previously enjoyed if and when the Respondent resumes its foundry operations, all as set forth in the .section entitled "The Remedy." (e) Inasmuch as the posting of a notice as customarily required would result in a notice posted in a plant not operating and there- fore be inadequate to inform affected parties, the Respondent shall mail an exact copy of the notice attached hereto marked "Appendix B713 to the Union and to each of the listed employees. Copies of ,said notice, to be furnished by the Regional Director for the Fourth Region, shall, after being duly signed by an authorized "In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative of the Respondent, be mailed immediately after receipt thereof. (f) Notify the Regional Director for the Fourth Region in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the Board reserves to itself the right to modify the back-pay and reinstatement provisions of this Order, if made necessary by circumstances not now apparent. MEMBERS JEN KIN S and FANNING, dissenting in part: We fully agree that the Respondent violated the Act in the man- ner described in the main opinion. However, the remedy that our colleagues have adopted in this case is woefully inadequate, and we must respectfully dissent therefrom. It has been found that the Respondent closed its plant on November 27, 1957, and thereby discharged its employees, because the employees selected the Charging Union as their bargaining rep- resentative. To remedy this violation of the Act, the majority is ordering Respondent to place the discriminatees on a preferential hiring list and offer them work if and when it resumes operations. It must be obvious, however, that this requirement cannot effec- tively remedy the Respondent's illegal conduct which is so serious in nature and extent. By its illegal action, the Respondent has penalized its employees for exercising a right guaranteed by Fed- eral law. The penalty which it imposed upon the employees-loss of work and pay-was a severe one. So far as this Order is con- cerned, the employees' plight can continue unremedied. Under Its provisions, the Respondent is excused from all liability for the loss of pay suffered by the employees as a result of the discrimination against them. Manifestly, such an order does not effectuate the policies of the Act. If the Act has been violated, it is incumbent upon the Board to so find. And if a violation has occurred, Section 10(c) directs the Board to issue an order requiring the violator to cease and desist from its unfair labor practices "and to take such affirmative action including reinstatement of employees iyith or without back pay as will effectuate the policies of the Act."" In performing this statutory obligation in discrimination cases, the Board normally issues a cease-and-desist order, requires reinstatement of the discriminatees in substantially equivalent employment, and awards back pay to the date on which such reinstatement is offered. Only a slight modification of the Board's usual order is required to fit the facts of this discrimination case. Because we are satisfied that the Respondent's business could not be conducted without Louis Barber and thus would have been shut down when Barber died on June 26, 1958, for nondiscriminatory BARBERS IRON FOUNDRY 37 Treasons, we would not enter any order of reinstatement of the discrinu- natees. However, no impediment exists to an award of back pay to the discriminatees until such time as they secured employment substan- tially equivalent to what was illegally taken from them, excluding those periods when, for nondiscriminatory reasons, they would have had no earnings, but in no event to exceed the date of Louis Barber's death. Such an order would be in substantial accord with Board precedent. It would bring about "a restoration of the situation, as nearly as possible, to that which would have obtained but for the illegal discrimination.," 14 It would not "permit an employer to profit ,by his own unlawful conduct" and would discourage the commission of similar unfair labor practices in the future.15 By such an order, the Board would be performing its statutory duty effectively. The majority gives no good reason for permitting Respondent to go scot-free insofar as the violation under discussion is concerned. They point to the Board's practice of deleting from a back-pay order the period when a discriminatee would not have earned wages from the respondent. But this policy, as is manifest from the very cases cited by our colleagues in this connection, cannot be applied to the present case. In each of the cited cases the discriminatees lost back-pay rights because of intervening circumstances which were not attributa- ble to the unlawful activity of the respondent, such as a reduction-in- force or a plant closing for legitimate business reasons. In this case, the locked-out employees have lost wages because of the unfair labor practice itself. In summary, we would expand the Order entered herein by award- ing back pay to the ciscriminatees for loss of earnings resulting from the discrimination against them until such time as they obtained sub- stantially equivalent employment with other employers,'6 but in no event to exceed the date of Louis Barber's death, and, of course, apply- ing the customary rules as to mitigation of back-pay liability. MEMBER RODGERS, dissenting in part : I cannot agree with my colleagues that the Respondent violated the Act when it permanently closed down its plant and went out of busi- ness. In this respect, I do not believe that the motivation for the Respondent's actions is material. There is nothing contained in the Act which limits an employer's right to go out of business at such time and under such circumstances as he chooses, regardless of the 14 Phelps Dodge Corp v N L R B, 313 US 177, 194 15Jack Lewis and Joe Levitan, d/b/a California Footwear Company , 114 NLRB 765, 769; National Licorice Company v. N L.R B., 309 US 350, 364. '"Pursuant to Boald practice, we would also reimburse the employees for expenses justifiably incurred in seeking such employment. 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reasons therefor. As stated by the court of appeals in N.L.R.B. v. New Madrid Manufacturing Company and Jones Manufacturing Company: 17 But none of this can be taken to mean that an employer does not have the absolute right, at all times, to permanently close and go out of business, or to actually dispose of his business to another, for whatever reason he may choose, whether union animosity or anything else, and without his being thereby left subject to a remedial liability under the Labor Management Relations Act for such unfair labor practices as he may have committed in the en- terprise, except up to the time that such actual and permanent closing or true and bona fide change in ownership has occurred. No one can be required to stay in private business, and no one can be prevented from permanently closing or abdicatingly selling such a business. And the Act affords no basis on which to order a person to reinstate employees in a business which he has, with plain finality, put out of existence, or which he has actually dis- posed of to another, and as to which he neither in law nor in fact possesses any power over the operations of his successor, either of management right in general or of labor-relations control in particular. Cf. Southport Petroleum Co. v. N.L.R.B., 315 U.S. 100, 106, 62 S. Ct. 452, 456, 86 L. Ed. 718, 726. No more, in our opinion, can the Act be said to contain any basis to assess remedial back-pay against such a person, beyond the date of his permanent closing or abdicting sale of the enterprise. [Emphasis supplied.] In view of the fact that the Respondent permanently closed its plant and went out of business, the foregoing principles are applicable. Accordingly, I would dismiss the complaint insofar as it relates to the Respondent's action in that regard. Inasmuch as I would not find that the Respondent violated the Act when it closed down its plant, it follows that I would not issue a remedial order with regard thereto. In this respect, I agree with Chairman Leedom and Member Bean to the extent that they deny back pay to the employees for any period subsequent to the permanent closing of the plant. Moreover, for like reason, and because Louis Barber, the partner without whom the Respondent could not have operated, is now dead, neither would .I order the Respondent to bar- gain. To order a partnership to bargain, which has been dissolved not only by closing down its business but also by the death of its leading partner, seems to me to be an exercise in futility. Nothing (in this world) could be more futile than ordering a dead man to bargain. 17 215 F. 2d 908, 913-914 (C.A. 8). BARBERS IRON FOUNDRY APPENDIX A 39 ALL EMPLOYEES OF BARBERS IRON FOUNDRY LAID OFF ON NOVEMBER 21, 1957, AND LAID OFF ON NOVEMBER 27, 1957 THE NAME OF HENRY HAYES, DISCHARGED NOVEMBER 25, 1957, BEING INCLUDED J. Lukas G. Strauch J. Butts C. Seeny J. Thompson C. Washington N. Durham Boyd Moseley B. Bennett R. Cooney N. Brown H. Hannah A. Ellis J. Willis D. Campbell W. Leone W. Robinson J. Wade A. Pierce A. Hughes L. Irmler 0. Lingo L. Williams J. MacDonald A. Walker C. Williams G. Crawford A. Brown E. Tucker W. Hester J. Walker B. Crowell Henry Hayes J. Hayes APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL, if and when we resume foundry operations, upon request, bargain collectively with International Molders and Foundry Workers Union of North America, AFL-CIO, as the exclusive representative of all our employees in the unit described below, with respect to rates of pay, wages, hours of employment, or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees in our Bridge- ton, New Jersey, plant, excluding office clerical employees, guards, and supervisors as defined in the Act. WE WILL NOT threaten our employees with loss of employment if they do not renounce the Union as their bargaining representa- tive. WE WILL NOT discourage membership in International Molders and Foundry Workers Union of North America, AFL-CIO, or any other labor organization of our employees, by discriminating 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in any manner in regard to their hire , tenure of employment, or any term or condition of employment. WE WILL NOT discourage membership in the above -named labor organization or any other labor organization by discharging em- ployees for their union activities. WE WILL make whole the following named employees for the discrimination practiced against them by their layoff from work from November 21 to 25,1957: J. Lukas G. Strauch J. Butts C. Seeny J. Thompson C. Washington N. Durham Boyd Moseley B. Bennett R. Cooney N. Brown H. Hannah A. Ellis J. Willis D. Campbell W. Leone W. Robinson J. Wade A. Pierce A. Hughes L. Irmler 0. Lingo L. Williams J. MacDonald A. Walker C. Williams G. Crawford A. Brown E. Tucker W. Hester J. Walker B. Crowell Henry Hayes J. Hayes WE WILL offer the named employees immediate and full rein- statement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges if and when we resume foundry operations. WE WILL make whole Henry Hayes for the discrimination practiced against him by his discharge on November 25, 1957. Henry Hayes is also included among those to be made whole for the discrimination of November 27, 1957, in the manner provided therefor. AVE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organi- zation, to form, join, or assist any labor organization , to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Sec- tion 8(a) (3) of the National Labor Relations Act, as modified by the Labor Management Reporting and Disclosure Act of 1959. All our employees are free to become, remain , or refrain from be- coming members of the above -named Union or any other labor organi- zation, except to the extent that this right may be affected by an agree- BARBERS IRON FOUNDRY 41 ment in conformity with Section 8(a) (3) of the Act, as modified by the Labor Management Reporting and Disclosure Act of 1959. RUDY BARBER, Louis B. BARBER, AND ROBERT HAMLYN, CO-PARTNERS, D/B/A BARBERS IRON FOUNDRY, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) INTERMEDIATE REPORT STATEMENT OF THE CASE It having been charged by International Molders and Foundry Workers Union of North America, AFL-CIO (Union) that Rudy Barber. Louis B. Barber, and Robert Hamlyn, Co-Partners, d/b/a Barbers Iron Foundry (Respondent) have been en- gaging in and are engaging in unfair labor practices affecting commerce, as set forth and defined in the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act, the General Counsel of the National Labor Relations Board (Board), on behalf of the Board, by the Regional Director for the Fourth Region, issued a complaint and notice of hearing, pursuant to Section 10(b) of the Act and Section 102.15 of the Board's Rules and Regulations, Series 6, as amended. The complaint and notice of hearing were duly served.' With respect to the unfair labor practices the complaint alleged, in substance, that: On November 21 and 26, 1957, the Respondent refused, and at all times there- after has refused, to bargain with the Union as the representative of certain of its employees for whom the Union has been duly certified by the Board; Respondent discharged and laid off certain employees and has refused to reinstate them because they joined or assisted the Union and/or engaged in concerted activities for the purposes of collective bargaining or other mutual aid or protection; and the Re- spondent engaged in other conduct violative of Section 8(a)(1) of the Act. The Respondent denied in its answer that it has engaged in any of the alleged unfair labor practices, averred that the layoff and termination of employment was caused by the closing of its business, and admits the allegation as to the appropriate unit and the Board's certification thereof. Pursuant to notice a hearing was held before Louis Plost, the duly designated Trial Examiner, at Bridgeton, New Jersey, on February 26 and 27, 1958. The Gen- eral Counsel, the Respondent, and the Charging Party were represented by counsel, herein referred to in the names of their principals. The parties participated in the hearing, and were afforded full opportunity to be heard, to examine and cross- examine witnesses, to introduce evidence bearing upon the issues, to argue orally, and to file briefs and/or proposed findings of fact and conclusions of law with the Trial Examiner. At the opening of the hearing the Trial Examiner granted unop- posed motions by the General Counsel to amend the complaint in order to correct an inadvertent error and to add the name of one of the Respondent's partners. Mo- tions by the Respondent to amend the answer to properly meet the changes were likewise granted. At the close of the hearing the General Counsel moved to conform the pleading to the proof with respect to names, spellings, and like matters, not substantive. The motion was not opposed and was granted. A date was set for the filing of briefs with the Trial Examiner No oral argument was made. Briefs have been received from the Respondent and the General Counsel. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: 'A copy of the charge filed by the Union was served on the Respondent by registered mail dated December 3, 1957 ; a copy of the amended charge filed by the Union was served on the Respondent by registered mail dated December 28, 1957 ; and a copy of the second amended charge filed by the Union was served on the Respondent by registered mail dated January 13, 1958. 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The parties are in agreement that Rudy Barber,2 Louis B. Barber, and Robert Hamlyn, are copartners, doing business as Barbers Iron Foundry. The Respondent herein has its principal offices and plant in Bridgeton, New Jersey, where it is en- gaged in the manufacture and sale of soil pipe fittings. During the 12-month period preceding the date of the occurrence of the events alleged herein, the Respondent sold and shipped more than $50,000 worth of such fittings from its plant to cus- tomers located outside the State of New Jersey. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated that International Molders and Foundry Workers Union of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. The Union admits employees of the Respondent to membership. III. THE UNFAIR LABOR PRACTICES 1. The appropriate unit and the Union's majority therein The parties are in agreement that all production and maintenance employees of the Respondent, excluding office clerical employees and supervisors as defined by the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. Pursuant to an agreement for consent election executed by the Respondent and the Union, a majority of the employees in the unit described above, on November 13, 1957, by a secret-ballot election conducted under the supervision of the Regional Director of the Fourth Region of the Board in Case No. 4-RC-3471, designated and selected the Union as their representative for the purposes of collective bargaining; and on November 21, 1957, said Regional Director, as agent for the Board, certified that the Union had been so designated and selected by a majority of the employees in the unit set forth above. The Trial Examiner therefore finds that at all times since November 13, 1957, the Union has been the representative for the purposes of collective bargaining of all the employees in said unit above described for the purposes of collective bargain- ing in respect to rates of pay, wages, hours of employment, or other conditions of employment. 2. The refusal to bargain and the discrimination in employment (8(a)(5) and (3)) The Trial Examiner believes that the facts disclosed by the record cannot be clearly understood without some knowledge of the individuals comprising the part- nership as shown by their testimony with respect to the parts they played in the operation of the plant. Rudy and Louis Barber are brothers, Hamlyn is their brother-in-law. Louis Barber did not testify. A statement dated January 31, 1958, issued by a local doctor stating that "Louis Barber is suffering from acute congestive heart failure" and a second statement by the same physician dated February 24, 1958, that Louis Barber's "physical condition is such that I have forbidden him to appear in any Court room" were read into the record to explain Louis Barber's absence. Rudy Barber and Hamlyn testified that Louis Barber was the only partner who understood the management of a foundry and was capable of operating the Re- spondent's plant. Rudy Barber testified that his brother had been ill for some time and had been hospitalized about Christmas 1957. He testified: My brother had been sick for two months before that place was ever closed down [November 27, 19571, and I have personally seen him spewing, and he looked like the devil, and I think if it was brought up before the men that worked out there, I think they would substantiate that, that he was a sick man then. Rudy Barber further testified that he operates a welding shop, and that over a 2-year period, which included the construction of the plant in 1956, and its operation from September 1956 to November 27, 1957, he furnished material and services to the Respondent partnership in the amount of $10 ,430.65, of which 2 Rudy Barber 's name Is Rudolph but he is called "Rudy" in the record. BARBERS IRON FOUNDRY 43 $4,000 represented material furnished, the balance being labor, part of which was "done at night after work"; that he was never reimbursed, in fact, never billed the partnership, and that the account is not shown in the financial statement of the Respondent introduced in evidence. Rudy Barber drew no compensation what- ever from the Respondent. He is the principal investor in the business. Partner Robert Hamlyn testified that he is, and at all times material herein has been, a member of the local fire department on duty a full 40-hour week but that in addition to his fireman's job, he worked 12 to 14 hours every day at the Respondent's plant, including every Saturday and Sunday. He testified: Q. (By Mr. Topol.) So, you had a full-time job, forty hours a week. Is that correct? A. That's correct. Q. And you did this work in your spare time? A. Well, if you call twelve or fourteen hours a day spare time, well, yes. Q. Well, eight and fourteen are twenty-two. That is a hard day. Are you telling us that you worked twenty-two hours in a given day? A. If I told you how many hours I worked out there, that's what I worked, and I got people that will testify to that effect, if you want. November 21, 1957: John McAvoy, an international representative of the Union, testified that: After the November 13 election, herein referred to, he mailed formal contract proposals to the Respondent; about 7:15 a.m. of No- vember 21, he received a telephone call from Louis Barber who asked him to come to the Respondent's plant; he and Union Representative Charles Boyd arrived at the plant about 1 p.m., and went to the plant's pattern shop where they met Louis Barber; the pattern shop as well as the yard contained employees who were standing around apparently not at work: Just about that time, Rudy Barber, who I was never introduced to, came out like a wild man, throwing his hands in the air, cursing, and running over to us about the Union coming down there. Rudy Barber using foul, obscene language liberally laced with curses, finally- started complaining of the money they had already owed out, and that he was not going to go in debt for the proposals, repeating so many times that he would close the plant down before he would let the Union come in there. Barber finally stated, "I am not signing no contract." McAvoy testified that following this the two union representatives went into the yard, being followed shortly by Rudy Barber who offered to "lick" Boyd. On cross-examination McAvoy testified that Rudy Barber, during the conver- sation, stated that the Respondent was "in bad shape financially," needed to borrow $25,000, was $73,000 in debt, and offered to let them examine the Respondent's books. Union Representative Charles Boyd corroborated McAvoy but went into greater detail regarding the language used by Barber. He testified that he and McAvoy greeted Hamlyn upon entering the pattern shop; Barber entered and McAvoy said "we are here to see if we can't work out an agreement," and- Now, at this point, Mr. Rudy Barber says,. "There won't be any damned agreement in this place. Now, let's get this straight right now." Boyd testified that having been told by some of the men standing around the room that they had been told not to go to work- I said to Rudy, Mr. Rudy Barber, "Why did you send the men home this morning?" He says "Why?" He says, "I will tell you why: "I sent them home to give them a chance to make up their minds whether or not they want their job or whether or not they want you guys. "I want them here to give me the answer today. I want to know if these fellows want their jobs or if they want to have a union, and I want to know this today." According to Boyd, after some further futile talk: Mr. Rudy Barber again spoke up, and he said, "I am not discussing any- thing; I am not giving you fellows a penny." 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rudy Barber testified that the Respondent telephoned McAvoy asking him to come to the plant. He did not deny the testimony of two union representa- tives. He testified: I said, "I want a little understanding," so Mr. Boyd speaks up and says, "These fellows are not ready to negotiate." I says, "No," I says, "We are not ready to negotiate. We have got to find out where we stand." I said, "This place has lost money," and every time I mentioned the word "money" it was, "That's your business. That doesn't concern us." I said, "Is there anything stopping us from going out of business, selling what stock we have, selling our machinery and stuff, and try to come out of it," Mr. McAvoy and Mr. Boyd both said, "There's nothing we can do if you want to go out of business." I said, "That is it. We are going to close this place and sell what we can to pay our creditors." Rudy Barber further testified: Q. (By the Trial Examiner.) Now, wait a minute Their testimony then is that you answered them all through this conversation with curse words and foul language, and disparaged the Union, calling them names, and calling the Union names, and all that. Do you deny that? A. I did use curse words, but only after they would not try to give me a civil answer to a civil question. On redirect examination he testified: Q. (By Mr. Salvo.) Mr. Barber, you have been asked whether or not you used some pretty strong language in your conversations with these Union people. Did you use any stronger language than you ordinarily use from day to day? A No. I work around a rough bunch of people. I am a welder by trade. I do most of my work for farmers, junk yards. I talk that way every day. I believe I could talk better now if I could use the same tone, here. TRIAL EXAMINER: Well, let's lust leave the explanation in the record. Henry Hayes, employed by the Respondent as a laborer, testified that "a few minutes before 7 o'clock" the morning of Thursday, November 21, 1957, he and another employee standing in the yard before worktune were approached by Rudy Barber who told them, "Boys don't do nothing"; later the employees were called into the pattern shop by Rudy Barber who spoke to them; he could not completely recall Barber's remarks except that- Well, what he did say was, he done a lot of cussing. I wouldn't like to use them kind of words, because-well, our church don't allow it, and I don't like to use them, that's all. and that- No, he didn't say anything about working, no more than he did say this much about-he said that there wasn't no more work that day. Hayes testified that the plant did not operate on Thursday nor the following day; on the following day he was in a group of employees who had reported and one of them- Albert Walker asked him why did we have to stop work while him and the Union talked things over? TRIAL EXAMINER: He asked that of whom? WITNESS: Albert asked that to Mr. Lou Barber. TRIAL EXAMINER: All right. WITNESS: And he said I don't know of any-he said, "We will get together," so him and Albert, they talked and talked and I left. The plant resumed full operation on Monday, November 25. BARBERS IRON FOUNDRY 45 John Hayes, a molder, testified that on the morning of November 21: That morning, when I got to work, we hadn't worked too long before Rudy Barber came along and told each individual molder not to make any more molds. At that time, no one knew what it was all about, but he said to each individual not to make any more molds , and the shop quit working approximately forty- five minutes. Hayes, who is a brother of Henry Hayes, further testified that after the employees had been assembled in the pattern shop- Rudy Barber said that, "You fellows brought the Union into this place, and it is up to you fellows to get it out if you still want to work," and he called us names, curse words, he did. The testimony of John Hayes and Henry Hayes was not denied. Rudy Barber testified: So, that next morning, I went out and I walked up to each man, and I says, "Stop working. Don't make any more molds." I went out in the yard and told them the same thing , no more work. Some of them asked me why, so I says, "Well, we have got to get something straight- ened out." I says, "We don't know what we are going to do," so in the meantime, Robert Hamlyn called the Union officials and asked Mr. Boyd and Mr. McAvoy to come down. The Respondent read into the record the names of all the employees who were denied work on November 21 and 22, and recalled on November 25. The names are listed in Appendix A. Conclusion as to November 21 On the entire record, the evidence considered as a whole, it is clear that the Respondent refused on November 21, 1957, to bargain with the Union , as required by the Act, and further that on November 21, the Respondent locked out its employees because of their membership in the Union , the Respondent's conduct being a maneuver to escape negotiation with the Union by causing desertion of its members. The Trial Examiner finds the Respondent 's conduct, as set forth above, to be violative of the Act, more particularly Section 8 (a)(3) and (5) thereof. November 25: Henry Hayes, who as found herein was locked out on November 21, returned to work November 25, at which time the entire plant resumed operations. Hayes testified , entirely without contradiction , that shortly after beginning work he remarked to a fellow employee, "There's lots of things around here we need we don't get." Hayes further testified: Rudy Barber was up on top of this winch up there which hoists the bucket up, and he says to me, "why in the hell don't you go where you can get these things?" I says to him, I says, "Rudy ," I said, "You come on down ," I said, "We took your cussing Thursday in the office," I said, "But you are talking to me, and I am not going to take your cussing " So, he come on down, sticks the pail on his arm, and walked out.3 According to Hayes , "about half an hour later " Louis Barber called him and he walked to the pattern shop with Louis Barber, there met Hamlyn and Rudy Barber. He further testified: And I said to Lou, I said, "Well, what are you going to lay me off for?" Rudy Barber said, "You are the guy that started this mess." I said, "All of us voted for the Union , as far as that goes." Then, I turns to Lou Barber and says, "Give me a lay-off slip so that I can draw my unemployment." Rudy Barber said to Lou, he said, "He don't need no lay-off slips." He said, "He is fired." Later in the day, Hayes was paid off, having waited at the plant for the check. 3 The belligerent Mr Hayes is the same witness who refused to repeat Rudy Barber's language because "our church don 't allow it" 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hayes' testimony was undenied. On the entire record the Trial Examiner finds that Henry Hayes was discharged by the Respondent on November 25, 1957, because of his membership in and his activities on behalf of the Union. The Trial Examiner finds that by its discharge of Henry Hayes, the Respondent engaged in conduct violative of the Act, more particularly Section 8(a)(3) thereof. Other events, November 25: James L. Butts testified that he was one of those locked out on November 21 and returned to work November 25. In the morning of November 25, the employees were all called to the office and "after he had gathered them in, all in the office," Hamlyn spoke to them saying: "Just a moment," he said, "I just want to tell you guys one thing." He said, "We are going to give you guys to Wednesday to make up your mind to do what you want to do." Fol- lowing this statement, Hamlyn said, "You can go to work then." Butts was corroborated by John Hayes, who also testified that no reason for the termination was given the employees, they were merely told "not to come to work any more." November 26, 1957: Union Representative McAvoy testified that on November 26 (Tuesday), he, together with Union Representative Boyd and Union International Vice President Studenroth, again called at the plant and sometime in the afternoon they, together with a committee of employees, met with the three partners. McAvoy testified: Mr. Studenroth handled the meeting, or did more talking than any one of us. He told Rudy that these people down here had the right to join a Union, that they had won an election held by the Government, and that they should sit down and try to work out some kind of a contract. Rudy said, " I don't give a God damn who comes in, who says the Union is supposed to come in here. We are not sitting down and writing a contract with any union." After considerable conversation during which Studenroth attempted to explain the Union's position and the rights of the employees- Rudy Barber said, "If these people have any trouble, they can see me. I am the boss. I own this place. "The Union don't give no God damn money. I pay them. I am the boss, and no God damn Union is coming in here and telling me how to run my business. "I will close it down and start this warehouse." Mr. Studenroth again let Rudy know that these people had the right to join a union. Rudy said he didn't care what they joined, that be wasn't signing with nobody, or no contract. According to McAvoy: Now, just as we left the shop, Rudy stated again that before the Union would come in there, he would close the God damn doors and make a warehouse out of it. On cross-examination McAvoy testified that Rudy Barber had asked if the Re- spondent did not have a right to close its plant and that "we told them they had a right to shut down their plant, or to do whatever they see fit to do with it." He further testified that the Respondent had referred to its poor financial condition and the fact that its operation made no profit. Union Representative Charles Boyd testified , without contradiction, that during the November 26 meeting, above referred to, Rudy Barber addressed Albert Walker,, one of the members of the Employee Committee , saying: "Let me tell you one thing," he says, "if you fellows want to work for me, you better make up your God damned minds by Wednesday." He says, "Make up your God damned mind by Wednesday if you want your job here or not," and Rudy Barber says, "I don 't have to operate this plant. I have a warehouse right in front of this place that don't cost me nothing to operate. "I rent the warehouse out. I don 't have to bother with pit, and I collect my rent every month. There's nothing to stop me from doing the same thing with this Foundry. "So, you go back and tell the men if they want their jobs , make up their minds by Wednesday, because we are going to sell the plant." BARBERS IRON FOUNDRY 47 Partner Robert Hamlyn testified that at the November 26 meeting Rudy Barber said, "We have the right to close our plant ," but at no time did the Respondent tell the Union's representatives that they had in fact decided to close the plant on the next day, November 27, his volunteered explanation being: Well, we didn't feel that we had to, but at the same time , we didn't want to do something that would get us in a lot of trouble. The Respondent's Contention The Respondent contends that its sole reason for closing the plant was economic difficulty which had brought it to this decision some time before. In support of its contention the Respondent introduced a financial statement 4 for the period January through November 1957, which covered only specific items in "final " figures with no "breakdown." The Respondent also introduced a balance sheet .5 The informa- tion from which the balance sheet is derived is of course entirely in the control of the Respondent, the figures are "final figures" and not sufficiently detailed to have any real meaning. In the opinion of the Trial Examiner , any probative value the balance sheet may have was considerably diluted by the following testimony of Partner Robert Hamlyn: Q. (By Trial Examiner.) When was the first discussion you had among yourselves regarding closing the plant, after the Consent Election was held? Mr. SALVO. No after the sigmng of the Consent , and before the Election. TRIAL EXAMINER . All right. Q. (By Trial Examiner.) After you had agreed to a Consent Election. That is the question. A. I don't recall the exact date. Q. Well, give us approximately the time. A. It was in the latter part of October, but it was in the Pattern Shop. Hamlyn then continued: So, I told Rudy I would get our accountant to make up a sheet for us and see how we stand, just exactly everything we owed. This, we proceeded to do. He then testified that the "sheet," presumably the balance sheet herein referred to, was not received by the Respondent until after the plant was closed. The exhibit introduced as the balance sheet is not authenticated or even signed by the accountant who prepared it. The Respondent's Exhibits The Trial Examiner has no intention of belaboring the Respondent's Exhibits Nos. 1 , 2, and 3, but must do more in all fairness than to merely point out that they consist of "final figures" only. The Trial Examiner makes no pretense of being an accountant but in his opinion when the exhibits are asked "to speak for them- selves" they shout aloud certain disturbing information . For instance, it must be remembered the Respondent testified that the balance sheet, although dated January 1, 1958, goes only to the shutdown of November 27, 1957, and that the balance sheet (Exhibit No. 2) shows a net loss of $708.16 for the year 1957. On its first page, the balance sheet, showing "Assets and Liabilities," shows an excess of $3,200 in assets over liabilities . The "Partnership Capital Accounts" appears to be made up of this difference rather than of any actual capital investment. The "Profit and Loss" statement of the balance sheet (page 2), shows total sales of $249,000 (round figures are being used ) and shows cost of goods sold as $228,600 and sales expense of $21,000. This creates the $700 loss.) Included in the cost of manufacture is $3,400 for "partners salaries." It seems to the Trial Examiner that a partner cannot take any distribution even as salary until after profits are determined . If this is so then the entire cost of goods sold is less than $228,600 and the entire profit and loss for the period is not correctly set out. In "Current Liabilities " ( page 1) the balance sheet lists: Notes Payable--------------------------------------------------- $27,600 Loans payable- -------------------------------------------------- 6,500 4 Respondent's Exhibit No. 1. 5 Respondent's Exhibit No 2 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As there is no breakdown or other explanation, the Trial Examiner must ask: Do the notes and loans represent in whole or in part loans to the partnership by the partners?, do the notes evidence such loans? If the answer is affirmative, then the loans and notes represent "capital," not "liabilities." Realistically (again the Trial Examiner points out that he is not an accountant, not even a "businessman," but is here merely commenting on a "balance sheet"), in any event, it seems extraordinary that in a business with the relatively small earning poten- tial of the Respondent's, there would actually be $27,600 of notes payable and $6,500 of loans payable outstanding which were to fall due during the year starting with the balance sheet date, viz, 1958, as they must be classified properly as current lia- bilities. If the due dates of these notes and loans, or part of them, do not fall within 1958, then they have not been properly classified. If they are not truly current liabilities, irrespective of whether or not they are held by the partners, the firm's current 6 ratio would be improved thus: Current assets (page 1) ------------------------------------------ $41,500 Current liabilities ($51,000-$34,000) ------------------------------ 17, 000 Excess of c.a. over c.l-------------------------------------- $24, 500 In such an eventuality, the notes and loans payable (assuming they had been is- sued for a valuable consideration) would still be a charge on the firm's assets, sub- ject to secured creditors' rights, but they would not have the overwhelming un- favorable impact on the firm's current ratio which they do have as presently set up on the balance sheet. The balance sheet shows payables other than notes and loans totaling $17,500, of which $16,600 are for accounts payable, i.e., amounts due to creditors on current account. A discrepancy exists between this part of the balance sheet and Exhibit No. 1, which shows, at the end of November (the last month of operations), that accounts payable totaled $23,000 How did this difference arise? The balance sheet shows: "Cost of Goods Manufactured"------------------------------------ $92,000 Exhibit No. 1 shows-"Cost of Goods Manufactured" as-------------- 79, 000 Difference between No. 2 and No. 1-------------------------- $13, 000 Standing unexplained, this would mean that $13,000 more of raw materials went into goods manufactured during 1957 than were purchased during that year. One possible explanation is that $13,000 of raw materials were carried over from 1956 operations and were consumed in manufacturing operations during 1957 in addition to $79,000 worth purchased in that year. It is not possible to determine whether or not this is so, however, as the balance sheet's beginning inventory figure for 1957 ($22,450) does not break down this account among raw materials, goods in process, and finished goods inventories. There is also a discrepancy in the "Fuel Purchases": Exhibit No. I shows--------------------------------------------- $14,400 Exhibit No. 2 (cost of goods manufactured schedule) shows----------- 11, 800 Difference------------------------------------------------- $ 2,600 If the fuel account is (as seems probable from the schedule of "Cost of Goods Manufactured") an expense account, this discrepancy seems to mean that of fuel purchases of $14,400, only $11,800 were consumed by the manufacturing process during 1957. The $2,600 difference should then, it seems to the Trial Examiner, appear as a current asset (prepaid expense item) on January 1, 1958. Such an item does not appear on Exhibit No. 2. There is a possibility that fuel not used in 1957 was thrown into the inventory account, but this, of course, cannot be learned from the balance sheet as it stands. It is also possible that the $2,600 represents a short- age which could have arisen in many different ways, ranging from theft to appiopria- tion for personal use by persons in a position to do so. The Trial Examiner may be entirely in error and it may well be his doubts would entirely vanish were the exhibits detailed. However, as they stand, they seem to cast more doubt than light. 6 See Ray A Foulke-Practical Financial Statement Analysis , McGraw Hill Book Co 2d ed , pp 173, 185-186 BARBERS IRON FOUNDRY 49 Regarding the Respondent's financial condition, which allegedly brought on the closing of the plant, Rudy Barber testified that: The foundry had been a losing ven- ture and had required capital which had been obtained by mortgaging other prop- erty belonging to Hamlyn and himself; he had wanted to close the plant long before it was closed; the Respondent had resolved to liquidate before the final meeting with the Union; and some 2 months before the final meeting with the Union he had offered to sell his interest to the employees. During his testimony regarding the November 26 meeting with the Union's repre- sentatives, Rudy Barber testified on direct examination: Q. (By Mr. Salvo.) At that time [November 26], had you decided definitely to close down? A. As far as I was concerned, that plant was closed down the morning of the 21st, when I walked in there and sent them home. I didn't send them home; I told them to stop working. The Respondent then dropped this line of inquiry. Barber further testified that in November the Respondent owed $20,000 for scrap iron used in its manufacturing and that its supplier had cut off the Respondent's credit. In support of this contention the Respondent called David Kane who testified that in November the Respondent owed him $20,919.06 for scrap iron and that after having asked for payment numerous times he finally told the Respondent "a couple of weeks" before the plant closed that when the account reached $20,000 he would shut off the Respondent's credit and deliver no more scrap. However, he admitted that scrap iron was delivered to the Respondent "the Monday before they closed" (November 25). He further admitted that this iron was delivered on his order by a dealer from whom he bought it specially to be delivered to the Respondent. Kane testified he came to the plant on November 26 and found Hamlyn paying off the men and that Hamlyn then told him the plant was being shut down. The Respondent introduced a "Statement of Scrap Purchases" prepared by Kane .7 The statement in "final figures" only shows that in November the Respondent owed Kane $20,919.06. Neither the testimony of the witness, Kane, nor Respondent's Exhibit No 3 is persuasive From his observation of the witness, as well as his testimony, the Trial Examiner is convinced that Kane was not reliable and therefore does not credit his testimony. In so doing the Trial Examiner also rejects similar testimony by the Respondent regarding its indebtedness to Kane and Kane's curtailment of its credit.. Rudy Barber frankly admited that he did not know the amount of the Respondent's indebtedness and made no pretense at understanding the balance sheet. Partner Hamlyn testified that he was in charge of the Respondent's books. How- ever, his testimony with respect to the Respondent's balance sheet impressed the Trial Examiner that Hamlyn was unfamiliar with its contents and did not fully grasp its meaning. Hamlyn testified: Q. (By Mr. Salvo.) And what was your reason for stopping the operation of this Foundry? A. The only reason for stopping it was just financially, we weren't making any money. We were going in the hole every month We kept going further and further in the hole. Our orders had dropped off considerable in the last two months. Hamlyn further testified, "Rudy wanted to close all the time," and: Q. (By Mr. Salvo.) When did you and your partners first consider the ques- tion of closing this operation? A. Well, that went back to around-oh, I believe it was either January or February, because we were in- Q. Of what year?' A. 1957, and we were going in the hole quite a bit then. He then testified that the firm decision to close the plant was made November 21, "at which time we were going to sell it," that at the time of the last meeting with the Union's representatives November 26, the firm decision to close the plant had been made; however, he admitted that the Union's representatives were not told this., He testified that the plant was closed November 27, and that the Respondent has no intention to reopen and is actively seeking to sell it. l Respondent's Exhibit No 3 554461-60-vol. 126-5 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to Hamlyn's testimony, it is of interest to note that although in order to substantiate the Respondent's claim of its poor financial condiion, both Hamlyn and Barber testified that Kane, their supplier of raw material, had warned them their credit would be cut off when the account reached $20,000, the Respondent accepted merchandise from Kane after it had decided to close the plant, bringing the account to $20,919.06, and this at a time when it was allegedly unable to meet the account. Of course the Trial Examiner draws no inference from the above observa- tion other than that the Respondent's failure to notify Kane it was about to close the plant, leaving Kane (according to his testimony) to ask, "How about-where do I stand with my money here?" was merely an oversight on the Respondent's part quite similar to its failure to notify the Union's representatives on November 26. The Respondent began manufacturing September 1956, closed November 27, 1957. It had been in business less than a year. Conclusion The Trial Examiner is not persuaded by the Respondent's testimony, including the exhibits hereinabove referred to, that only economic considerations prompted the closing of its plant. The following undisputed facts weigh heavily against the Respondent's contention. The Respondent told its employees before its final "meet- ing" with the Union's representative: Fellows-I give you until Wednesday to make up your mind whether you want-what you are going to do. The meaning is plain. The Wednesday referred to is the day before Thanksgiving Day, when the plant was closed. The Respondent did not tell the Union's repre- sentatives on November 26 that it had decided to close; the Respondent received raw material on November 25. Accepting the Respondent's exhibits and testimony at par value, the most that can be inferred is that the Respondent was engaged in a marginal operation; how- ever, other facts which throw light crept into the record. Although not stressed by either the Respondent or the General Counsel, this testimony so impressed the Trial Examiner as to, in his opinion, not only warrant, but require, consideration. Both Rudy Barber and Hamlyn testified they did not understand the foundry business. Rudy Barber testified that only Louis Barber operated, and of the three partners was capable of operating, the foundry, and further testified that Louis Barber was a sick man, hospitalized before Christmas 1957. A statement from a physician regarding Louis Barber's physical condition was introduced. The statement reads: This is to certify that Louis Barber is under my professional care, and has been for several weeks. He is suffering from acute congestive heart failure and his physical condi- tion is such that he will be unable ,to pursue the type of physical labor which he did in the past. Rudy Barber further testified, "in the wintertime things slow up," explaining: In my knowledge, the cold months of the year is our worst months. Granted that the Respondent's is a marginal operation; that only one of the part- ners, incapacitated, is capable of operating the plant; and that the winter season "when things slow up" was just around the comer at Thanksgiving time, it may be reasonably inferred that the Respondent had reasons other than the advent of the Union for closing its plant, although the advent of the Union served to bring all these reasons into play. Moreover, had the Respondent been operating a highly profitable business which it chose to liquidate rather than operate under a union contract, it could not be ordered to resume business ; the law could no more reach the three partners than if they decided to, and did, "cut off their noses to spite their faces," the Trial Examiner assuming them to be compos mentis and not liable for military service. However, the Trial Examiner is mindful of the fact that the Respondent did not liquidate its business, it did not go out of business, it merely closed. Until final liqui- dation, the closing, no matter of what duration, must be presumed to be temporary. The summer season will undoubtedly come again, Louis Barber may completely recover, and a loss of $708.16 on $248,899.80 of sales during the first year of operation may not seem at all to be pointing to an impossible future. BARBERS IRON FOUNDRY 51 Under all the circumstances in the case and from all the evidence in the record, the Trial Examiner is persuaded that: ( a) The Respondent has not liquidated its business and is still in business although its operations are suspended ; (b) the closing of the plant was "triggered " by the advent of the Union; (c) the Respondent in viola- tion of the provisions of the Act from November 21 to 25, 1957, locked out its employees whose names appear listed in Appendix A; (d) on November 25, 1957, the Respondent illegally discharged Henry Hayes; (e) at all times since November 21, 1957, the Respondent has refused to bargain with the Union as the legal representative of an appropriate unit of the Respondent's employees ; (f) because the Respondent closed its plant for various reasons , among them the fact that the employees were represented by the Union, the termination of its employees on November 27 who are also listed in Appendix A was also an unfair labor practice violative of Section 8(a)(3) of the Act. Additional Interference, Restraint, and Coercion The Trial Examiner has found that Rudy Barber, on November 21, told his assem- bled employees that they had brought the Union "into this place" and it was up to them to get it out if they wanted to work; and that on November 25, Rudy Barber told employee Albert Walker in the presence of other employees , "If you fellows want to work for me you better make up your God damned minds by Wednesday." This statement was made during the Union's request for contract negotiations . The plant was closed Thursday. Robert Hamlyn on November 25 also told the assembled employees they had until Wednesday "to make your mind to do what you want to do." The Trial Examiner finds the above remarks of Barber and Hamlyn to be coercive, and thereby the Respondent has engaged in conduct violative of Section 8(a)(1) of the Act. W. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent , set forth in section III , above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic , and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it is incumbent on the Trial Examiner to recommend a remedy which will effectuate the policies of the Act, by establishing the status quo. As has been often pointed out, the Act is concerned only with the public interest and not with private rights. The Act does not invest the Board with punitive power and to recommend action which smacks of the punitive would be presumptuous on the part of the Trial Examiner. As to the violations of Section 8(a)(1) of the Act, both independent and deriva- tive, as found herein ; the violations of Section 8(a)(5) which arise from the Re- spondent's refusal to bargain with the Union on November 21, and again on Novem- ber 26; and the violations of Section 8(a)(3) of the Act which arise from the Respondent's lockout of its employees on November 21 to 25, the Trial Examiner will recommend the customary remedy as follows: Having found that the Respondent has engaged in unfair labor practices, the Trial Examiner will recommend that it cease and desist therefrom, and take certain affirmative action which will effectuate the policies of the Act. It has been found that the Respondent refused to bargain collectively with the duly designated representative of its employees . It will therefore be recommended that it cease and desist therefrom. It will further be recommended that the Respond- ent bargain collectively, upon request, with the Union as the exclusive representa- tive of its employees in the appropriate unit herein found. Since it has been found that the Respondent has discriminated in regard to the hire and tenure of employment of certain named employees because of their membership in and activities on behalf of the Union, by locking them out of employment from November 21 to 25, 1957, it will therefore be recommended that the Respondent make whole each of them for any loss of pay he may have suffered by reason of the discrimination against him by payment to each of them of a sum of money equal to that which he would normally have earned as wages from the date of the discrimination , November 21, 1957, to the date of the Respondent's reopening, November 25, 1957, less his net earnings during such 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD period.8 The back pay shall be computed in the manner established by the Board,9 and the Respondent shall make available to the Board its payroll and other records to facilitate the checking of amounts due. Since it has been found that the Respondent discriminatorily discharged Henry Hayes on November 25, 1957, it will therefore be recommended that in addition to being made whole for the discrimination practiced against Hayes by reason of the lockout, the Respondent also make Hayes whole for the period of November 25 to 27, 1957, and further as hereinafter recommended. In the opinion of the Trial Examiner, the 8(a)(3) violation arising from the layoff of employees as a result of the shutdown November 27 cannot be remedied in the same manner as the other violations found. The Trial Examiner has found that the Respondent cannot be said to have actually quit business on November 27, 1957; the Trial Examiner rejected the Respondent's contention that the sole reason of the shutdown was the Respondent's poor financial condition and here again states to the point of redundancy that were the Respondent's contention as to the economics involved completely cor- rect, still the controlling question to be answered here is whether the alleged financial condition or a discriminatory motive really prompted the shutdown. The Respondent may rightfully cite an economic ground for a shutdown but it becomes quite a different matter if action for these reasons was "triggered" by a discriminatory motive. The Trial Examiner has found the discriminatory motive to be present and, moreover, has found that it has not been conclusively shown that the Respondent has finally quit business. On these findings the layoff of employees on November 27 was clearly in violation of Section 8(a)(3) of the Act and the discriminatees created thereby are entitled to reinstatement. The question is when, and the corollary question arises: are they entitled to back pay and for what period? As found herein the plant shut down November 27, and had not been re- opened at the time of the hearing. The Respondent contended that it would never be reopened. In his brief the General Counsel urges: As stated above, it is submitted that Respondents should be ordered to forthwith notify the employees who have been locked out, that, if Respond- ents resume their foundry, they will be offered reinstatement and, of course, to actually offer such reimbursement in that event. An adequate method of reimbursing the employees locked out on November 27 for the loss of pay from that date presents greater difficulty. It is submitted that Respondent be ordered to make such employees whole by paying back pay from the time of the complete shut-down on November 27, 1957, to the time of the notification urged above. This would constitute a fair and reasonable cut-off point for the back pay period. Should the Trial Examiner of the Board decline to adopt the back pay remedy suggested above, it is submitted that an alternative proposal would be to order Respondents to make the employees whole for a fixed reasonable period, let us say, six months. Assuming that no other back pay formula can be devised with a termination point similar to the Board's conventional order, it is inconceivable that Respondents would be relieved of any respon- sibility to reimburse these employees for loss of pay. Such a course would place a premium upon using the most vicious and unconscionable of anti- union tactics, namely the lock-out. The payment of back pay for a six month period has much to commend itself as appropriate remedial action. The employees would be given a cushion to soften the impact of Respond- ents' illegal conduct upon them. This would give them a reasonable period within which to adjust themselves to new employment. By the same token, Respondents are not faced with the possibility of the back pay liability running indefinitely. Although this proposal falls short of making the vic- timized employees entirely whole, it would most certainly effectuate the policies of the Act as against receiving no reimbursement whatever for loss of pay. The General Counsel cites cases he considers analogous, but which the Trial Examiner does not. In his brief the General Counsel argues: 8 Crossett Lumber Company,.8 NLRB 440 9 F. TV Woolworth Company, 90 NLRB 289. BARBERS IRON FOUNDRY 53 Although the framing of a remedial order for the unlawful shut-down November 27 in this case presents novel problems, the salient consideration is that some remedy must be found to compensate in some way the em- ployees for their loss of earnings caused by this illegal conduct of Re- spondents. They are the victims of a most flagrant violation of the Act. If the status quo cannot be completely resolved and these employees made whole for reasons over which the Board has no control, then some fair and equitable formula for reimbursement should be found which would come as close to full restoration as the circumstances of the case will permit. Of course the General Counsel here urges the Board to remedy a private grievance in a punitive manner. Under all the circumstances in the case, the Trial Examiner does not agree with the General Counsel; however, being persuaded that the employees laid off November 27 are still the Respondent's employees, entitled to reinstatement if and when operations of the plant are resumed and furthermore as these employees were legally represented by the Union with which the Respondent has been found obligated to bargain, the Trial Examiner will recommend that the Respondent setup a preferential hiring list, containing the names of the employees hereafter listed and so notify those listed. If and when the Respondent resumes operations, the employees so listed shall be tendered employment to their former or substantially equivalent positions. Copies of the first and second notifications shall also be sent to the Union. The employees to appear on the above hiring list shall be: J. Lukas G. Strauch W. Hester C. Seeny J. Thompson Henry Hayes N. Durham Boyd Moseley J. Butts R. Cooney N. Brown C. Washington A. Ellis J. Willis B. Bennett W. Leone W. Robinson H. Hannah A. Pierce A. Hughes D. Campbell 0. Lingo L. Williams J. Wade A. Walker C. Williams L. Irmler A. Brown E. Tucker J. MacDonald J. Walker B. Crowell G. Crawford J. Hayes The name of Henry Hayes, found herein to have been discriminatorily discharged, is added to the list and he is to be offered the recommended relief as part of the recommended order as to him. In the opinion of the Trial Examiner the preventive purposes of the Act will be' thwarted unless the recommendations herein are coextensive with the threat con- tained in the violations of the Act as herein found. It will therefore be recom- mended that the Respondent cease and desist from infringing in any manner upon the employees' rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Rudy Barber, Louis B. Barber, and Robert Hamlyn, partners, doing business as Barbers Iron Foundry, are engaged in commerce within the meaning of the Act. 2. International Molders and Foundry Workers Union of North America, AFL- CIO, is a labor organization within the meaning of the Act. 3. On November 13, 1957, and at all times since, the Union aforesaid has been the exclusive representative of all the employees in an appropriate unit of the Respondent's employees for the purposes of collective bargaining within the mean-, ing of Section 9(a) of the Act. The unit of the Respondent's employees appropriate for collective bargaining is: All production and maintenance employees of the Respondent excluding office employees, and supervisors as defined in the Act. 4. By refusing on and after November 21 and again on November 26, 1957, to bargain collectively with the aforesaid Union as the exclusive representative of the employees in the aforesaid appropriate unit, the Respondent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8(a)(5) of the Act. 5. By discriminating in regard to the hire and tenure of employment of the employees on November 21 and 27, and who are listed in Appendix A, and by the 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge of Henry Hayes as herein found, the Respondent has discouraged member- ship in a labor organization and thereby by such discrimination and by interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, as hereinabove found, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act, and 8 (a) (1) thereof. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Alliance of Television Film Producers , Inc.; Desilu Produc- tions; McCadden Corporation ; Lindsley Parsons Productions, Inc.; Ziv Television Programs, Inc.; Hal Roach Studios; Marterto Productions, Inc.; Flying A Productions, Inc.; Mark VII, Music ; 1 and Revue Productions, Inc. and Musicians Guild of America, Inc., Petitioner. Cases Nos. 21-RC-5513, 21-RC-5511, 21-RC-5514, 21-RC-5515, 21-RC-5516, 21-RC-5517, 21-RC-5518, ,21-RC-5519, 21-RC-5520, and 21-RC-5512. Janu- ary 8, 1960 DECISION, ORDER, AND DIRECTION OF ELECTIONS Upon separate petitions duly filed under Section 9(c) of the Na- tional Labor Relations Act, hearings were held before William R. Magruder, hearing officer.2 The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in these cases, the Board finds : 1. The Employers are engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain employees of the. Employer.' 3. The Intervenor contends that no questions concerning repre- sentation exist herein because the musicians sought by Petitioner are not a sufficiently identifiable group who enjoy stability in employ- ment. For reasons given in Cavendish Record Manufacturing Com- pany,' we find no merit in this contention. Except as indicated below, we find questions affecting commerce exist concerning the representation of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. • i The name of the Employer in this case appears as amended at the hearing. A consolidated hearing was held on all the cases except Revue Productions, Inc., Case No. 21-RC-5513. The latter case is consolidated with the others for decisional purposes 3 American Federation of Musicians of the United States and Canada, AFL-CIO, inter- vened in these cases on the basis of contractual interests . Its request for oral arugment is denied as the record and briefs adequately present the issues and positions of the parties. 4124 NLRB 1161. See also Independent Motion Picture Producers Association, Inc., 123 NLRB 1942. 126 NLRB No. 1.