St. Cloud Factory & Machine Co., Inc.

ST. CLOUD FOUNDRY & MACHINE COMPANY, INC. 911 the Decision and Order of July 19, 1960, insofar as it finds that the Employer is not engaged in commerce and that no question affecting commerce exists concerning the representation of employees of the, Employer, and insofar as it dismisses the petition. We find that the Employer is engaged in commerce within the meaning of the Act and that a question affecting commerce exists concerning the repre- sentation of employees of the Employer within the meaning of Sec- tion 9(c) (1) and Section 2(6) and (7) of the Act. As the stipulated unit herein is one which comprises all production and maintenance, employees and is traditionally appropriate, we shall direct an elec- tion 5 among the following employees of the Employer whom we find constitute an appropriate unit for purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All employees at the Employer's Clinchmore, Tennessee, coal mine,, excluding office clerical employees, engineering and technical em- ployees, professional employees, guards, foremen, and all supervisors, as defined in the Act. [The Board vacated the Decision and Order in Case No. 10-RC-- 4667, dated July 19, 1960, insofar as it finds that the Employer is not engaged in commerce and that no question affecting commerce exists, concerning the representation of employees of the Employer, and insofar as it dismisses the petition herein.] [Text of Direction of Election omitted from publication.] 5Local 104, Southern Labor Union, hereinafter called the Intervenor , was permitted to- intervene in this proceeding on the basis of a current collective -bargaining contract with the Employer which expires on March 18, 1962. We find no merit in the Intervenor's.. contention that its contract is a bar to an election at the present time. The agreement- contains an invalid union-security provision which is not cured for contract -bar purposes. by its accompanying deferral clause. Accordingly , we find that the contract is not a bar. Key8tone Coat, Apron & Towel Supply Company, et al, 121 NLRB 880, 884. Our dis- position of this issue makes it unnecessary to consider other arguments advanced by the- Petitioner for removal of the contract as a bar. St. Cloud Foundry & Machine Company, Inc. and Local 176,_ International Molders and Foundry Workers Union of North_ America, AFL-CIO. Case No. 18-C.4-1113. March 1, 1961 DECISION AND ORDER On July 7, 1960, Trial Examiner Sidney Lindner issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent 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 Inter- mediate Report attached hereto. Thereafter, the Respondent filed. exceptions to the Intermediate Report and a brief in support thereof.- 130 NLRB No. 58. 912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The board has considered the entire record in this case, including the Intermediate Report, the excep- tions and the brief and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner except as modified herein.' ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, St. Cloud Foundry & Machine Company, Inc., its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in Local 176, International Molders and Foundry Workers Union of North America, AFL-CIO, or in any other labor organization of its employees, by discharging, laying off, refusing to reinstate, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named or any other 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, or 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 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, upon request, with Local 176, International Molders and Foundry Workers Union of North America, AFL-CIO, as the exclu- sive representative of all production employees, including working 1 The Trial Examiner did not recommend that the Board reserve to itself the right to modify the backpay and reinstatement provisions of the recommended order, if made necessary by circumstances not now apparent. We have decided that such reservation should be included in our Order. See Bonnie Lass Knitting Mills, Inc, 126 NLRB 1396. A ST. CLOUD FOUNDRY & MACHINE COMPANY, INC. 913 foremen at its St. Cloud, Minnesota, foundry, excluding office cleri- cals, managerial and machine shop employees, guards, and supervisors as defined in the Act, with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an under- standing is reached, embody it in a signed agreement. (b) Make whole Lloyd Abraham, Frank Becker, Vernon Belmont, George Boss, Harold Habiger, Vernon Moore, Raymond Reinholz, Richard Rosenberger, Leonard Schill, and Aloys Steckel for any loss of pay they may have suffered by reason of the discrimination against them in the manner 'set forth in the section of the attached Intermedi- ate Report entitled "The Remedy." (c) Create a preferential hiring list containing the names of all those individuals listed in (b), above, as being entitled to reinstate- ment if and when the Respondent resumes its foundry operations, such reinstatement rights arising from the refusal to reinstate the listed individuals on December 29, 1959. 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 reinstate- ment to 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 of the attached Intermediate Report entitled "The Remedy." (d) Inasmuch as the posting of a notice as customarily required would result in a notice posted in a plant with reduced operations and would, therefore, be inadequate to inform affected parties, the Respondent shall mail an exact copy of the notice attached hereto marked "Appendix A" 2 to the Union and to each of the listed em- ployees. Copies of said notice, to be furnished by the Regional Di- rector for the Eighteenth Region, shall, after being duly signed by an authorized representative of Respondent, be mailed immediately after receipt thereof. (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary for determination of the amount of back- pay due and the rights to reinstatement under the terms of this Order. (f) Notify the Regional Director for the Eighteenth 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 2In 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." 597254-61-,vol. 130-5 9 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD modify the backpay and reinstatement provisions of this Order, if made necessary by circumstances not now apparent. MEMBER RoDCERS, dissenting in part : My colleagues have affirmed the Trial Examiner's finding that the Respondent violated the Act by closing and ceasing operations of the foundry portion of its business. I do not agree. As I stated in my dissenting opinion in Rudy Barber et at., d/b /a Barbers Iron Foundry, 126 NLRB 30, "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 reasons therefor." See, also, my dissent in Bonnie Lass Knitting Mills, Inc., 126 NLRB 1396. The record reveals that since February 6, 1960, the Respondent has not used its foundry for the manufacture of castings. Nor has it made purchases for the foundry. It also appears that Respondent, at the time of the hearing, was engaged in selling foundry supplies generally used in the manufacture of castings. The Respondent therefore, so far as the record shows, has withdrawn from the industrial scene as a foundry operator. This, the Respondent has an absolute right to do. However, I agree with my colleagues' affirmation of the Trial Ex- aminer's findings that the Respondent violated Section 8(a) (3) and (1) of the Act by refusing on December 29, 1959, to reinstate the strik- ing employees who made application for reinstatement on that date. Accordingly, I would order that the Respondent make whole these employees because of such loss of wages between December 29, 1959, and February 6, 1960. APPENDIX A 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 with Local 176, 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, and other conditions of employment, and, if an understanding is reached, embody it in a signed agreement. The bargaining unit is : All production employees including working foremen em- ployed in our foundry at St. Cloud, Minnesota, but excluding office clericals, managerial and machine shop employees, guards, and supervisors as defined in the Act. ST. CLOUD FOUNDRY & MACHINE COMPANY, INC. 915 WE WILL NOT discourage membership in Local 176, Interna- tional Molders and Foundry Workers Union of North America, AFL-CIO, or in any other labor organization of our employees, by discharging, laying off, refusing to reinstate, or in any other manner discriminating against our employees in regard to their hire or tenure of employment or any term or condition of employ- ment because of their union activities. WE WILL make whole the following named employees for the discrimination practiced against them by the refusal to reinstate them on December 29, 1959: Lloyd Abraham Vernon Moore Frank Becker Raymond Reinholz Vernon Belmont Richard Rosenberger George Boss Leonard Schill Harold Habiger Aloys Steckel WE WILL offer the above-named employees immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges, if and when we resume foundry operations. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights to self- organization, to form, join, or assist any labor organization to bargain collectively through representatives of their own choos- ing, 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 organiaztion as a condition of employment as author- ized in section 8(a) (3) of the 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 or- ganization, except to the extent that this right may be affected by an agreement in conformity with Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. ST. 'CLOUD FOUNDRY & MACHINE COMPANY, INC., Employer. Dated-- -------------- By------------------------------------- (Representative ) (Title) This notice must remain posted'for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material. 916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, brought under Section 10(b) of the National Labor Relations Act, as amended, 61 Stat. 136, 73 Stat. 519, herein called the Act, was heard at St. Cloud, Minnesota, on March 16 and 17, 1960, pursuant to due notice, with all parties represented by counsel. The complaint issued by the General Counsel, dated February 18, 1960, against St. Cloud Foundry & Machine Company, Inc., herein called Respondent, alleged that Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1), (3), and (5) and Section 2(6) and (7) of the Act. Respondent filed an answer denying the alleged violations. A brief was received from counsel for the General Counsel on April 27, 1960, and has been duly considered. Upon the entire record, and from my observation of all witnesses, I make the following: FINDINGS OF FACT 1. THE RESPONDENT'S BUSINESS Respondent is a Minnesota corporation having its principal office and place of business at St. Cloud, Minnesota, where it is engaged in the operation of a foundry and machine shop. During 1959, Respondent made interstate sales direct and in- direct, exceeding a total value of $50,000. I find that Respondent is engaged in commerce within the meaning of Section 2(6) of the Act. See order of the Board dated January 15, 1960, in Case No. 18-CA-1030 (not published in NLRB volumes), adopting the findings, conclusions, and recommendations of Trial Examiner Ralph Winkler as contained in the Intermediate Report issued on December 11, 1959. It should be noted that the Intermediate Report as well as the Board's order in Case No. 18-CA-1030 inadvertently referred to the Union as Local 174 rather than Local 176. II. THE LABOR ORGANIZATION INVOLVED Local 176, International Molders and Foundry Workers Union of North America, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Case No. 18-CA-1030, the prior unfair labor practice case On December 11, 1959, Trial Examiner Ralph Winkler issued his Intermediate Report in Case No. 18-CA-1030, involving the same parties in the instant pro- ceeding, finding that Respondent had engaged in certain unfair labor practices and concluding among other things that the strike of Respondent's employees which began on April 3, 1959, was caused and prolonged by the unfair labor practices. No statement of exceptions having been filed, the Board adopted the findings, con- clusions, and recommendations of the Trial Examiner as contained in the said Intermediate Report and under date January 15, 1960, issued its order as follows: IT IS HEREBY ORDERED that Respondent, St. Cloud Foundry & Machine Co., Inc., St. Cloud, Minnesota, its officers, agents, successors, and assigns, shall. 1. Cease and desist from: (a) Refusing or failing to bargain collectively with Local 176 as statutory bargaining representative of employees in the described appropriate unit. The bargaining unit is: All production employees including working foremen employed in Re- spondent's foundry at St. Cloud, Minnesota, but excluding office clericals, managerial and machine shop employees, guards, and supervisors, as de- fined in the Act. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist Local 176, or any other organization, to bargain collectively through representatives of their own choosing; or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any or all such activities except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment in the manner and to the extent authorized in Section 8(a)(3) and Section 8(f) of the Act. ST. CLOUD FOUNDRY & MACHINE COMPANY, INC. 917 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with Local 176 as the exclusive repre- sentative of all its employees in the above-described unit, and embody any understanding reached in a signed agreement. (b) Offer immediate employment upon application to all striking em- ployees.. . . B. The bargaining meetings and negotiations after October 1, 1959 The complaint in the instant proceeding alleges that beginning on or about February 19, 1959, and at all times thereafter, the Respondent has failed and refused to bargain collectively with the Union as the exclusive representative in an appro- priate unit of Respondent's foundry employees and that on or about February 6, 1960, it closed and ceased operations of the foundry portion of its business, and has failed and refused to resume operations, with an objective and for the purpose of avoiding its statutory duty of bargaining with the Union, in violation of Section 8(a)(5) and (1) of the Act. The Intermediate Report of Trial Examiner Ralph Winkler in Case No. 18-CA- 1030, referred to above, sets forth in detail the events which took place commencing with the Union's request to bargain on February 4, 1959, and the various bargaining sessions between the Union and Respondent on March 20, April 22, May 5 and 20, June 2, 9, and 24, August 3 and 13, September 22, and October 1, 1959. His con- clusion adopted by the Board was that the record in the said case "preponderantly establishes, that Respondent was giving the Union a'run around' and that Respondent revealed an attitude not only of disparagement of the bargaining process but of a determined effort to undermine the status and prestige of its employees' bargaining agent." No testimony regarding the above-referred to bargaining meetings was offered in the hearing herein. Representatives of the Union and the Respondent held meetings on October 27, November 10 and 24, and December 28, 1959, and January 19 and 26, 1960,1 ostensibly to discuss the Union's contract proposals which had originally been sub- mitted to the Respondent on April 3, 1959, and modified thereafter The six main issues-wages, union security, seniority, paid vacations, paid holidays, and griev- ances-which were in dispute when the parties commenced their collective-bargaining negotiations, continued in dispute throughout the above-noted sessions. Benson testified that during these sessions the Union made known its willingness to compromise its demand on wages, and modify its proposals regarding union security. The Union also requested Respondent to submit counterproposals. It was stipulated between counsel for the parties that at the January 19, 1960, meeting the Respondent handed a typewritten sheet to the Union containing he following counter- proposals and that the said counterproposals represent Respondent's position in regard to these issues at each of the negotiation meetings: (1) Seniority shall be considered in all layoffs and rehires along with other factors. (2) There shall be an open shop. All employees can either belong or not belong to a labor organization. (3) There shall be no increase in wages or in vacation or holiday pay over those in effect on April 1, 1959. As in all past negotiations meetings, Respondent, over the persistent objections of the Union, had its stenographer present to make a stenographic report of the pro- ceedings. The Respondent remained adamant in its refusal to turn over a copy of the stenographic report to the Union. It is also interesting to note with regard to the issue of wages, William Radamacher, financial secretary and business agent of the Union, testified that at the January 19, 1960, meeting, Hoffman on behalf of Respondent said, "Why should [they] pay any more wages because the men had applied to come back to work for the same wages as when they went out on strike." 2 1 There was also a meeting on February 11 1900. at which time Paul Hoffman, Re- spondent's attorney and its representative at the collective-bargaining negotiation meet- ings, banded a letter to Hugo Benson, district representative of the Union, advising that the foundry had been closed Nothing further took place 2 The issue of the reinstatement of striking employees who applied unconditionally for their jobs on December 29, 1959, will be taken up separately and in detail hereinafter 918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As previously set forth, the Respondent at the February 11, 1960, meeting handed the Union a written note in which it was stated that the foundry had been closed. It thereafter did not participate in further negotiations. At no time during any of the prior negotiation meetings did Respondent mention that a shutdown of its foundry was being considered. To the contrary, Radamacher testified without contradiction that at the January 19, 1960, meeting the Respondent stated it was its intention to reinstate the striking employees who had applied unconditionally for their jobs after the results of their physical examinations were obtained. The question for determination before me regarding the Respondent's alleged refusal to bargain is precisely the question which was considered by Trial Examiner Winkler in Case No. 18-CA-1030, supra. In defense of its actions subsequent to October 27, 1959, Hoffman testifying in behalf of Respondent stated that as its ne- gotiator he met with the Union on seven occasions since October 1959 and bargained with the Union at each of the seven meetings, except the last one, which was after the shutdown of the foundry. As indicated in the stipulation between the parties set out in full above, Re- spondent's position with respect to the issues regarding which the parties were at- tempting to negotiate had not changed one iota from the very beginning of its re- lationship with the Union. Indeed, it appears clear from the very terms of the stipulation, that even though Respondent met with the Union on request, its efforts to reach an agreement have been a sham , a hoax, and a travesty on the requirement of good faith in bargaining. Section 8(d) of the Act requires more than a mere willingness to meet at reasonable times; it also requires a willingness to ". . . confer in good faith with respect to wages, hours and other conditions of employment. . . It is true that after 10 months of meetings, during which time the Union several times modified its proposals, and continuously requested that counterproposals be submitted to it, the Respondent finally handed the Union a list of its counterproposals. A review of such counterproposals, however, reveals that Respondent merely set forth in writing what it had been articulating at the meetings. The sum and substance of the counterproposals is an attempt by Respondent to make it appear it was making concrete proposals to the Union's demands, when in truth and fact such counterpro- posals were no more than sham gestures without substance. Respondent's continued insistence on a stenographer at all negotiation meetings, even after the Board's order of January 15, 1960, and in the face of it, is I find an additional indicia of bad faith in collective bargaining. Finally we come to the shutdown of the foundry. As pointed out by General Counsel in his brief, ". . . the cessation of operations goes to the very core of the terms and conditions of employment upon which Respondent had a positive duty to bargain " There were two meetings held between the parties subsequent to the date the striking employees unconditionally applied for reinstatement, during which Re- spondent stated its intentions to reinstate the striking employees after it obtained the results of the physical examinations. At no time was any mention made of even the thought of shutting down the foundry. The Union was handed a fait accompli at the last meeting on February 11, 1960. If assuming arguendo, without conceding that Respondent contemplated the shutdown, its failure to reveal its intentions at the bargaining meetings was anything but good faith and I so find. The Board in Mount Hope Finishing Company, et at., 106 NLRB 480, enforcement denied on other grounds 211 F. 2d 365 (C.A. 4), stated; It is settled law that an employer is obligated to notify the collective-bargaining representative of any contemplated changes in the wages or the terms or condi- tions of employment of his employees before putting the changes into effect, in order to afford the bargaining representative an opportunity to discuss with the employer such questions, e.g., whether or not the changes can be avoided, the manner in which the changes should be effected and the principles to govern a return, if any, to the former conditions of employment. It follows that when a duly designated representative exists, unilateral action by the employer in regard to such changes is in derogation of the bargaining agent's status as such, and violates an "essential principle of collective bargaining." The Board also stated in Mount Hope "by concealing their true intentions with re- spect to the closing of the plant, the Respondents did not bargain with the Union in good faith." See also Schieber Millinery Co., 26 NLRB 937, 956-957. I find as did my brother Trial Examiner Winkler that the record preponderantly establishes that Respondent never intended to negotiate and enter into a contract with the Union, further that Respondent "revealed an attitude not only of disparagement of the bargaining process but of a determined effort to undermine the status and prestige of its employees' bargaining agent" N.L.R.B. v. Fant Milling Co., 360 U.S. 301, thus violating Section 8(a) (5) and (1) of the Act. ST.' CLOUD FOUNDRY & MACHINE COMPANY, INC. 919 C. The striking employees seek reinstatement In Case No. 18-CA-1030, Trial Examiner Winkler concluded, upon the entire record made before him, that Respondent by refusing and failing to bargain in good faith with the Union caused and prolonged the strike of its employees which com- menced on April 3, 1959 . It was his recommendation that Respondent offer immedi- ate employment upon application to all striking employees . The Board on January 15, 1960, adopted such findings, conclusions , and, recommendations and issued its order, supra. - At. the hearing counsel for the parties agreed and stipulated to the following: (1) That Lloyd Abraham, Frank Becker, Vernon Belmont , George Boss, Harold Habiger, Vernon Moore , Raymond Reinholz, Richard Rosenberger , Leonard Schill, and Aloys Steckel unconditionally applied for reinstatement to their former positions of em- ployment on December 29, 1959 ; (2) that the said striking employees were there- upon . directed by Respondent to take physical examinations, including X-rays, as a condition to returning to work and that such directions were complied with by Abraham on January 21, 1960 ; Becker on February 1, 1960; Belmont subsequent to -February 6, 1960 ; Moore on January 30, 1960; Reinholz on January 19, 1960; Rosenberger on January 20, 1960; Schill on January 13, 1960 ; Steckel on January 18, 1960; Boss was not given a referral to the physician ; and Habiger did not take the physical examination; (3) that Respondent also distributed to each of the said striking employees who unconditionally applied for reinstatement certain typewritten blanks,3 in the nature of an application for employment , which none of the employees filled out or returned to Respondent; and (4) that none of the said striking employees have ever been reinstated. There is no evidence in the record that Respondent , at any time prior to the un- conditional applications for reinstatement by the striking employees , required any applicant for employment to fill out an application blank . Respondent did not offer any evidence in explanation of why it requested such applications of the striking employees or what purpose such applications were intended to serve. With regard to the requirement that the striking employees submit to physical examinations and X-rays before reinstatement , John Campbell, president of Re- spondent, testified this was Respondent's established policy and that such requirement was in accord with Minnesota State law 4 and the rules of its insurance carrier. That such requirement -of physical examinations and X-rays was not Respondent's established policy as a condition of hire is revealed from the testimony of Leonard Schill, a striking employee, who first became employed by Respondent in September 1956 . Schill testified that he did not have a physical examination until 6 months after he started working for Respondent and that he had annual physical examina- tions thereafter, usually in the month of February or March. His* last physical examination was in February 1959. Richard Rosenberger, a striking employee who worked for Respondent 's prede- cessor and went on Respondent's payroll in October 1956 when it took over the plant, testified he did not take - a physical examination until about 4 months after that date. Thereafter he had an annual physical examination in February or March, the last one of which took place in February or March 1959. Felix Kieke, who was hired by Respondent in April 1959 as a replacement for a striking employee, testified that about 2 or 3 weeks later he submitted to a physical examination. . Ralph Reid testified that he did not take a physical examination during the entire period he was employed by Respondent from November 1959 when he was hired as a replacement for a striking employee until February 6, 1960 , when he was laid off. - Melvin Looman was hired by"Respondent in June 1959 to replace a striking em- ployee and took a physical examination 3'months later. . Based on the testimony of Schill , Rosenberger, Kieke, Reid, and Looman, which I" credit, it is clear and I find that . it was never Respondent's- policy to require its employees to submit to a physical examination as a condition of hire. As noted in the stipulation, a number of the striking employees completed their physical examinations during the second and third weeks in January . They were never advised of the results, .nor. were they reinstated to their former jobs. This lends further support to the conclusion that Respondent's requirement that the striking employees take physical examinations :as a condition, of reinstatement -was a pretext to deny reinstatement to the said striking employees -and I so find. a See General Counsel's Exhibit No. 10 in evidence.' . 4 See Minnesota Statutes Annotated, vol. 13, ch. 176, sec. 176:667. 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD More important however is the principle of law involved in the instant situation. As the Board stated in Jack C. Robinson, d/b/a Robinson Freight Lines, 114 NLRB 1093, 1096, "it is well established that strikers who are entitled to reinstate- ment upon request are entitled thereto free of any discriminatory condition and not as new employees." True, the Minnesota statute requires examinations from em- ployees "hereafter entering the service of an employer...." [emphasis supplied] and an annual physical examination thereafter of employees in certain industries where silicosis is an occupational hazard, as in this case. The record is clear, how- ever, that all striking employees had had their annual physical examinations within the year prior to their unconditional applications for reinstatement and certainly there was no requirement statutorily or otherwise to insist that the striking em- ployees take examinations as -a condition of reinstatement .5 I agree with the con- tention of the General Counsel set forth in his brief that "an employer may not utilize a discriminatorily administered physical examination as a pretext for denying employment where the motivating reason for the denial is antiunion animus." N.L.R.B. v. East Texas Steel Castings Company, Inc., 211 F. 2d 813 (C.A. 5), enfg. as mod. 99 NLRB 1339. I conclude and find from the above and the record as a whole that the imposition of immediate physical examinations as well as applications for employment on the striking employees, neither of which Respondent in the past had ever required as a condition of hire, was a pretext intended to deny such employees their rights, as constituted the addition of new conditions for employment which did not prevail when the employees held their jobs before 'the strike. By discriminatorily refusing to reinstate unconditionally the 10 striking employees, the Respondent violated -Section 8(a)(3)-and (1) of the Act. D. The shutdown of the foundry Under date of February 5, 1960, Benson sent a letter to Hoffman requesting Respondent to meet with the Union on February 11 for the purpose of further ne- gotiations looking toward a collective-bargaining contract between the parties. Benson testified that on February 8 he talked with Hoffman on the telephone, at which time the latter advised that the February 5 letter had been received by Re- spondent, but since the foundry was closed on February 6,6 he saw no point in further negotiation meetings. The parties met however on February 11 when Hoff- man handed Benson a letter setting forth among other things that the foundry had been closed permanently. Respondent had never previously mentioned any thought of closing its foundry. The complaint alleges that Respondent closed and ceased operations of the foundry portion of its business with the objective and for the purpose. of avoiding its statutory duty of bargaining with the Union, and for the further purpose of denying reinstatement to the striking employees to their former positions of em- ployment. This the Respondent denied in its answer and contended at the hearing that the foundry was closed because of economic necessity, since it was steadily losing money. It should be pointed out at the outset that St. Cloud Foundry & Machine Com- pany, Inc., consists, as the name implies, of a foundry and a machine shop. The entire business is organized and operated as one corporation, an integrated oper- ation with a single accounting system. The foundry and machine shop occupy the same building, have the same supervision, with the foundry contributing a share of its production to the machine shop and both contributing products to the North Star Granite Company of which Campbell is the majority stockholder.? In support of its position that the foundry closing was economically essential, Re- spondent adduced testimony from its president, its attorney, and its accountant. Thus Campbell testified at one point that both the foundry and he machine shop had been losing money. At another point he testified that from September 30. 1959, to the date the foundry closed only the foundry operation lost money. This in spite of the fact, according to Campbell, that the production in the foundry increased 5 The strikers with whom we are concerned were not "entering" the service of Re- spondent, they remained employees within the definition of the Act from the time they went out on strike. N.L.R.B. v. Mackay Radfo & Telegraph Co., 304 U.S. 333. 8 Reid and Looman testified they were working in the foundry on February 6 when about 11 :45 a.m. Foreman Curtis told them and others to wait around and he would let them know if there was going to be anything for them to do the following week. Curtis' returned shortly and told the men the foundry was permanently closed. This was the only notice any of the employees received about the foundry closing. - 7 These findings are based on the testimony of Campbell. ST. CLOUD FOUNDRY & MACHINE COMPANY, INC. 921 after the strike and there was also an increase in sales of foundry products over the previous year. Hoffman admitted that prior to the meeting which he attended with Campbell and other management officials on February 6 , 1960, he was not familiar with the financial statements of Respondent . At -another point he testified in contradiction to this testimony, as well as to Campbell's testimony, that the machine shop never lost money. E. J. McMahon, a certified public accountant and accountant for Respondent, testified that he prepared profit and .loss statements for Respondent each year since it has been in business. In November 1959 he sent a letter to Campbell in which he stated his opinion that the foundry part of the operation was losing money. Mc= Mahon admitted however that the letter was sent to Campbell before he had com- pleted his audit for the year ending September 30, 1959. He also admitted that the profit and loss statement was not certified by him for • the reason that he did not confirm by direct correspondence the correctness of the payables or receivables but merely accepted the inventory that Respondent submitted to him. McMahon admitted that as the basis of his analysis from which he rendered his opinion that the foundry was -losing money, the business records of Respondent were kept on a combined basis for the machine shop, foundry , and sales and no attempt was made by him to break down precisely the profit or loss of either the foundry or the machine shop . When asked if the machine shop lost money , McMahon answered, "it must have lost." He was then asked where was the . greatest percentage lost, and answered , "I would not be able to tell you unless I had a complete audit.'! He admitted he did not make a complete audit . Finally, McMahon admitted that on the basis of his most recent analysis of the Respondent 's operation it would be impossible for him , to determine whether the machine shop or the foundry or both were . losing money: . It is interesting to note that even though the accountant could not ascertain with any degree of certainty which part of Respondent 's operation was losing money, discussions were had only with respect to the closing of the foundry where the employees were organized. The machine shop where the employees remained unorganized did not enter into the discussions and has been maintained as a running business continuously. _ Because the testimony of Campbell, Hoffman , and McMahon regarding the Respondent's operations is conflicting and contradictory and because Respondent's profit and loss statement does not clearly set forth that only the foundry was losing money, and- also because of McMahon's admissions and the implausibility of his recommendations, I.do not accept Respondent's defense that the foundry was closed due to economic necessity... ' The Board, in Case No.- 18-CA-1030, found that shortly after the Union was chosen the collective-bargaining representative of Respondent's employees, Camp- bell said "there would never be a union [in the] shop." Thereafter, when the employees went out on strike, Campbell- said "None of these men would ever punch ' that time clock again." Even while the parties were meeting in an attempt to ne- gotiate a collective-bargaining agreement Campbell let it be known that he "would not have the boys back under the Union and would never deal with the Union or. execute a contract." Finally confronted with the Board 's order, supra, I am con- vinced from the findings of the Board above and the record herein that to avoid reinstating its striking employees and bargaining with the Union , Respondent de- cided to close its foundry . So that, even assuming arguendo without conceding that the foundry operation was unprofitable , I conclude and find upon the entire record in the instant matter together with the Board's order in Case No . 18-CA-1030 that Respondent's opposition to the Union was the motivating cause for the aban- donment of the foundry and that by thus closing its foundry and discriminating in regard to its employees' tenure of employment, the Respondent violated Section 8(a) (3) and (1) of the Act. See Missouri Transit Company et a!., 116 NLRB 587, enfd . 250 F. 2d 261 (C.A. 8); Rapid Bindery, Inc., 127 NLRB 212. The fact that the foundry closing may be permanent does not make -it any less discriminatory. See Rudy Barber et al., d•/b/a Barbers Irdn Foundry, 126 NLRB 30. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III , above, occurring in con- nection with the operations of the Respondent 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. '922 - DECISIONS OF NATIONAL LABOR- RELATIONS BOARD V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, I will recommend that it cease and 'desist therefrom- and take certain affirmative action designed to effectuate the policies of the Act. The General Counsel urges that Respondent be ordered to reopen its foundry operation and offer its striking employees immediate and full reinstatement and bargain with the Union on request. On -the state of the record made herein, I am unable to accept the General Counsel's suggestion in toto. Since the shutdown of the foundry, Respondent has been purchasing castings from outside sources for use in its machine shop as well as for Campbell's North Star Granite Company. While it may well be,. that since the foundry was, an in- tegral part of Respondent's. entire operation, housed in the same building as the machine shop, and because of these circumstances operations could be resumed on short notice, nevertheless there is uncontradicted evidence in the record that since February 6 Respondent has not used its foundry for manufacturing castings. Nor has it made purchases for the foundry. It appears that it has been in the process of selling foundry supplies generally used in the manufacture of castings. It is clear, however, that Respondent has a presently functioning business, albeit on a reduced scale, and may in the future resume full-scale operation. Under these circumstances and in accordance with the remedy formulated by the Board in Bonnie Lass Knitting Mills, Inc., 126 NLRB 1396, I shall recommend that in-the event the Respondent resumes its foundry operation. in addition to its present ma- chine shop operation, that it offer to Lloyd Abraham, Frank Becker, Vernon Bel- mont, George Boss, Harold Habiger, Vernon Moore, Raymond Reinholz, Richard Rosenberger, Leonard Schill, and 'Aloys Steckel, employees who were found to have been discriminatorily denied reinstatement on and after December 29, 1959,. im- mediate and full reinstatement to their former or substantially equivalent positions and make each whole for any loss of pay suffered by reason of the discrimination against him. I shall also recommend that Respondent create a preferential hiring list of those employees discriminatorily denied reinstatement, notify the employees of said list, and in the event it resumes its foundry operations, offer the discriminatees imme- diate reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights-and privileges previously enjoyed.. I shall also recommend that in the event Respondent does not reopen its foundry, it make whole the employees discriminatorily denied. reinstatement on December 29, 1959, for any loss of pay suffered by reason of the discrimination against them by paying to each of them a sum of money equal to the amount he would normally have earned as wages from December 29, 1959, until' such time as each secures or did secure substantially equivalent employment with other employers 8 in,accordance with the Board's policy set out in F. W. Woolworth Company, 90 NLRB 289. In addition I shall recommend that if and when Respondent resumes its foundry operations it bargain collectively upon request with the Union as the exclusive repre- sentative of all employees in the appropriate unit, and embody any understanding reached in a signed agreement. Since the Respondent has engaged in serious violations of the Act which are related to other unfair labor practices proscribed by the Act, and the danger of their commission in the future is reasonably to be anticipated from its past conduct, the preventive purposes of the Act may be thwarted unless the recommendations are coextensive with the threat. To effectuate the policies of the Act, therefore, I will recommend that Respondent cease and desist from infringing in any manner upon the rights guaranteed employees by the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: 8 I am aware that the striking employees resumed their strike after the Respondent denied them reinstatement upon their unconditional applications on December 29, 1959. However, the Board In Ozark Hardwood Company, 119 NLRB 1130, 1133, quoting from Merchandiser Pre88, Inc., 115 NLRB 1441 , stated, "Because the Respondent's unlawful discrimination has made it impossible to ascertain whether these employees [who went out on strike subsequent to their discriminatory discharge] would have gone on strike in the absence of such discrimination, the uncertainty must be resolved against the Respondent. We find, therefore, that the employees here are entitled to backpay from the time of their discriminatory discharge until receipt by them of the Respondent's letters offering them unconditional reinstatement." G & H CONSTRUCTION COMPANY 923 CONCLUSIONS OF LAW 1. Local 176, 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. 2. St. Cloud Foundry & Machine Company, Inc., is engaged in commerce within the meaning of Section 2(6) of the Act. 3. All production employees including working foremen employed in Respon-. dent's foundry at St. Cloud, Minnesota, but excluding office clericals , managerial and machine shop employees , guards, and ,supervisors as defined in the Act, consti- tute a unit appropriate for the purpose of collective bargaining within Section 9(b)- of the Act. 4. On February 4, 1959, and at all times thereafter, Local 176 has been and still is the exclusive representative of the employees in the above-described ap= propriate unit for purposes of collective bargaining within Section 9(a) of the Act. 5. Respondent has violated Section 8 (a)(5) and (1) of the Act by refusing and failing to bargain in good faith with Local 176. 6. Respondent has violated Section 8 (a)(3) and (1) of the Act by refusing and failing on December 29, 1959, and thereafter to reinstate its employees in the unit who went out on strike April 3, 1959, to wit: Lloyd Abraham Vernon Moore Frank Becker Raymond Reinholz Vernon Belmont Richard Rosenberger George Boss Leonard Schill Harold Habiger Aloys Steckel 7. Respondent has violated Section 8 (a)(3) and (1) of the Act by closing and ceasing operations on February 6, 1960, of the foundry portion of its business with the objective and for the purpose of denying reinstatement to their former posi- tions of employment to those employees named above. 8. Respondent by the foregoing conduct has interfered with , restrained, and co- erced its employees in the exercise of rights guaranteed them by Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 9. 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.] G & H Construction Company and John H. Clifton. Case No. 12-CA-1368. March 1, 1961 DECISION AND ORDER On July 20, 1960, Trial Examiner George A. Downing issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices alleged in the complaint 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. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices. Thereafter, the Respondent filed exceptions to the Intermediate Report together with a supporting brief. On October 24,1960, the Board remanded the case to the Trial Examiner for further hearing, and on January 3, 1961, the Trial Ex- aminer issued his Supplemental Intermediate Report, a copy of which 130 NLRB No. 92. -