Hunt Oil Co.

HLH PRODUCTS HLH Products, Division of Hunt Oil Co. and Audrey Rutledge. Case 25-CA-2366. May 4,1967 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On November 21, 1966, Trial Examiner Melvin Pollack issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Decision and a supporting brief, and the General Counsel filed a brief in support of the Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications.' 325 another section simply because that section was not specifically alleged See N.L R B v Pecheur Lozenge Co , 209 F 2d 393, 402 (C A 2), American Newspaper Publishers Association v N L R B, 193 F 2d 782 , 800 (C A. 7), cert. denied 344 U S 812 An affirmative order would in any event be required here to restore the status quo ante and to remedy the 8 (a)(1) and (3) violations we have found because the Respondent's conduct clearly evinces a rejection of its duty to bargain collectively as evidenced by the flagrant 8(a)(1) and (3) conduct which we have found See Aero Corporation , 149 NLRB 1283 , fn 3, enfd. 363 F.2d 702 (C A D C.) 2 Substitute the word employees for that of employers in the second paragraph of the notice attached to the Trial Examiner's Decision TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MELVIN POLLACK, Trial Examiner: This proceeding was heard in Muncie, Indiana, on June 6, 7, and 8, 1966, by Trial Examiner Melvin Pollack on the complaint of the General Counsel and the answer of HLH Products, Division of Hunt Oil Co., herein called Respondent.' Respondent closed down its Muncie plant on February 4, 1965, and resumed operations about August 1, 1965. The principal questions presented are whether upon resuming operations, Respondent (1) unlawfully refused to bargain with a certified union and (2) discriminatorily failed to recall and reemploy 65 employees in the bargaining unit.2 All parties appeared and were afforded full opportunity to be heard and to examine and cross-examine witnesses. Briefs have been received from General Counsel and Respondent. Upon the entire record in the case, the briefs, and my observation of the witnesses, I make the following: ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, HLH Products, Division of Hunt Oil Co., Muncie, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.2 ' Respondent contends that the 8(a)(5) allegation should be dismissed because no refusal to bargain by the Respondent occurred within 6 months of the April 19 amended charge specifying an 8(aX5). However, the original charge alleging 8(a)(1) and (3) was filed sn November 2, 1965, and within the 10(b) period the Respondent 's July-August discriminatory recall policy occurred. This activity in itself constituted a violation not only of Section 8(a)(1) and (3) as alleged and as found by the Trial Examiner, but also, by its very nature, a refusal to bargain. Respondent by this unlawful discrimination made clear that it sought to avoid its bargaining obligation. Therefore, we find it unnecessary to rely upon the continuing nature of the Union's demand, as the Trial Examiner did by considering the Respondent's October hiring policy in itself a rejection of bargaining, and we base our 8(a)(5) finding and order on the Respondent's 8(a)(1) and (3) activity which, as the Trial Examiner found, was aimed at keeping this certified Union out of the plant The Board is no prevented from considering and deciding that conduct violative of one section of the Act is also violative of FINDINGS AND CONCLUSIONS I. THE BUSINESS OF RESPONDENT Respondent , a Delaware corporation , is engaged in the processing and canning of food products at plants in several States , including a plant in Muncie , Indiana. Respondent's annual interstate sales and purchases each exceed $50 ,000. I find, as Respondent admits, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 135, International Brotherhood of Te amsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Uriion, is a labor organization within the meaning of Section 2(5) of the Act. ' The charge herein was filed on November 2, 1965, and an amended charge was filed on April 19, 1966 A complaint alleging violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, at Respondent's Muncie plant issued on the original charge on December 30, 1965 An amendment to the complaint based on the amended charge issued on May 3, 1966, alleging a violation of Section 8(a)(5) of the Act A list of alleged discrimnatees attached to the complaint was amended at the hearing. 2 The alleged discrimmatees are hereinafter sometimes referred to as the complainants 164 NLRB No. 61 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. Sequence of Events Respondent purchased its plant at Muncie, Indiana, from William Butterfield in December 1961 and retained Butterfield as plant manager. Respondent's production, maintenance, and warehouse employees were then represented by the Union. On September 7, 1962, Butterfield, in behalf of Respondent, executed a collective-bargaining contract with the Union. The contract expired on March 31, 1964. Sometime thereafter, Butterfield and several employees met at a restaurant during working hours and discussed voting the Union out. Butterfield at this time was no longer plant manager but worked as a "troubleshooter" for Respondent's president, Harold L. Hunt, and frequently appeared at the Muncie plant.3 Foreman Jim Reynolds, who had set up the meeting in the restaurant at Butterfield's request, subsequently used a company car to drive employee Bob Everhart to the Board's office in Indianapolis, where Everhart filed a petition for decertification of the Union. An election on this petition was scheduled for July 17, 1964. Butterfield visited many employees at their homes before the election and urged them to vote against the Union if they wanted to keep their jobs. For example, he told A. V. Harry that Hunt would not let other people run his business and would shut the plant down if the Union won the election, told Mary O'Neal that he could "guarantee" her work if the Union was voted out but could also "guarantee" that she would be out of a job "in less than a year" if the Union won the election, told Thelma Little that her job depended on getting the Union out, and told Norma Benedict that "Mr. Hunt ... had no use for a union" and that the employees surely would be without a job if the Union won the election because Mr. Hunt "would close the plant before he would recognize a union." Butterfield also campaigned against the Union at the plant. He told employees Willard Reynolds, Scott, and Wright that Hunt would "close the doors" if the Union was not voted out. On the day before the election, production was halted at the plant so that Butterfield could address some 20 women employees. Butterfield included in his remarks a warning that President Hunt would close the plant within 6 months to a year if the Union won the election.4 The election was held as scheduled, the Union won by a vote of 65 to 25, and was certified on July 27, 1964, as the bargaining agent of the production, maintenance, and warehouse employees at the Muncie plant, including garage employees, janitors, inspectors, and local truckdrivers. Respondent and the Union began bargaining on August 11, 1964, and seemingly agreed on a new contract 3 The record does not disclose Butterfield's precise relationship to Respondent. 4 A person called the "chicken woman" by the employees, who had been sent to the Muncie plant by President Hunt, similarly warned Norma Benedict that failure to vote the Union out would mean that Hunt would close the plant within 6 months A week or so before the election, the "chicken woman" asked Audrey Rutledge (the Charging Party in this proceeding) to become a supervisor Rutledge refused A few days later, the "chicken woman" told Williard Reynolds that the Union would probably lose the election "if they could put Audrey out of the way " Zelpha Gibson testified that the "chicken woman" asked her to name employees who "would be safe to go to and talk to concerning which was approved by the union membership on September 18, 1964. However, at a meeting on October 1, 1964, Plant Manager Peter J. Lux5 and Business Agent Virgil Barber presented different versions of the contract. Each man insisted that his version was the one previously negotiated and refused to sign the contract presented by the other.6 On February 4, 1965, Respondent closed the Muncie plant.' Three to five truckloads of potatoes in the warehouse and some machinery were shipped to Respondent's plant at Alma, Arkansas. Other inventory on hand and quality control equipment were shipped to Respondent's Plum Tree plant, which is about 40 miles from the Muncie plant. In March 1965 a group of businessmen in the Muncie area and also the American Maize Company showed interest in the purchase of the Muncie plant. No sale was effected, however, and Respondent took steps looking toward a reopening of the plant for the tomato season beginning about the first of August. Keith Sparks, Respondent's former farm manager, who had been laid off on March 5, was recalled about March 20 and reported on April 1, 1965. Sparks purchased tomato crops and made arrangements for their harvesting. On May 15, 1965, Plant Manager John C. Volz of the Plum Tree plant replaced Peter Lux as plant manager of the Muncie plant. At this time, maintenance employees were preparing the plant for the coming season. On July 15, President Hunt instructed Volz to recruit labor for the processing of tomatoes. It had been Respondent's practice to recall laid-off employees by post card or telephone. Volz did not follow this practice, however, but supplied the Indiana Employment Security Division with a list of employees compiled from Respondent's records. Pursuant to arrangements with Respondent, the Division sent these employees letters advising them that Respondent needed men and women to process tomatoes and inviting them to register with the Division on July 22 and 23, 1965. The Division also advertised for cannery workers by newspaper and over the radio. Persons who responded to the letters and advertisements were registered for referral to food processing plants. The Division thereafter filled requests for seasonal cannery workers from Respondent and other food processors by telephone calls to persons selected at random from a file of flagged cards. By letter dated July 23, 1965, Business Representative Barber of the Union requested Respondent to recall employees "in their seniority order" and "to meet with our representatives to negotiate a new contract." Respondent replied on July 27 that operations at the plant would probably be "temporary and seasonal," that its contract with the Union had expired, and that it believed "former employees of our Muncie plant have better employment than we can provide." On August 2, Barber answered that voting the union out " Lux was manager of the Muncie plant from July 31, 1964, until May 15, 1965 6 Lux reiterated in letters to Barber dated October 1 and 8, 1964, his position that the contract presented by Barber contained extensive changes from the contract submitted by Respondent and allegedly accepted by the Union Barber did not reply to these letters. ' Employee Russell Pollard testified that Plant Manager Lux and Foreman Albert Glass told him the plant was being shut down because of the Union Lux and Glass denied making any such remark to Pollard I credit Pollard Infra, fn 9 HLH PRODUCTS Respondent's "former" employees "regardless of ... how you may describe them" had "first right" to jobs in the reopened plant, that these employees "DO CLAIM SUCH JOBS," that the Union's letter was a "NOTICE AS TO SUCH CLAIM," that "in most instances" it was not true that the employees had better jobs than Respondent could provide, and that, as the certified bargaining agent of the Muncie plant employees, the Union "would like to sit down with you and work out the problems as to the re-hire of said former employees as well as the terms of a current collective-bargaining agreement." Respondent rejected the Union's demands on August 9, stating "we believe that representations in our previous letter to you of July 27, 1965, are true and correct." On August 24, Respondent again rejected the Union's position as reaffirmed in a letter dated August 18. Meanwhile, Volz left the Muncie plant on July 28, 1965, to resume his position as manager of the Plum Tree plant. Plant Manager Chester Miller from Respondent' s plant in Sanford, Florida, took over as acting manager of the Muncie plant. At this time, in addition to maintenance personnel, Respondent's employees included two office girls, quality control personnel Melvin Fields and Stella Bell," and Foremen Himes, Albert Glass, and Strunk. Toward the end of July, Miller put Fields in charge of hiring plant personnel. Fields, who succeeded Miller as plant manager about August 14, interviewed some 700 applicants for employment during the 1965 tomato pack and hired about 600 of them. Hourly paid employees filled out applications for employment. Persons hired as "peelers"-a category of employment not included in the Union's certification-were not required to fill out applications. Fields hired almost exclusively persons referred by the Indiana Employment Security Division. Some of these persons worked for only a single day or part of a day. A number of "old hands" unsuccessfully applied for work at the plant. Jackie Robinson asked Plant Manager Volz 3 or 4 weeks before the tomato pack began if he had "a chance of getting a job" and Volz replied that he "didn't see how [Respondent] could get out of" calling "the old employees back." Robinson returned to the plant in August and asked Fields for part-time work. Fields said all jobs were filled. Russell Pollard, a laborer at the Muncie plant for 10 years, asked Fields for part -time work before the tomato pack began. Fields referred Pollard to the plant manager -then Chester Miller-who was in the cafeteria. Miller first questioned Pollard about his union membership and then said, "we just don't want union members in the plant." As Pollard was leaving the plant, he ran into Albert and Paul Glass and was told that Respondent did not want union men in the plant and that he should get out before he was "chased out."9 About August 1, Rex Hart, a shipping department employee, ' Following the February 2, 1965, shutdown, Fields was transferred from the Muncie plant to the Sanford plant He reported back to the Muncie plant on July 12, 1965 Bell was recalled sometime thereafter by Fields 9 Pollard was confused about dates and did not recall Miller's name or whether Miller came from Texas or Florida The record shows, however , that Miller was the acting plant manager just before the tomato season started As Pollard described his conversation with Miller and the Glasses with particularity and impressed me as a reliable witness, I credit his testimony concerning these conversations 10 Gibson and her husband, Melvin, testified that Supervisor Himes told them about 2 weeks before the start of the tomato 327 asked Fields for work. Fields referred him to Supervisor Himes who said he needed help. Fields, however, did not hire Hart, saying that he did not want union trouble on his hands. Zelpha Gibson, a relief girl, spoke to Fields over the telephone early in August and was told "We're all filled up."10 Willard Reynolds, a garage mechanic, who was interested in part-time work, asked Fields in mid-August who was going to keep up the towmotor and trucks but received no answer. Mary O'Neal, who had worked on both tomatoes and potatoes, asked Fields for work four times between August and Labor Day. She told Fields on Labor Day that "two girls ... was going to quit." Fields promised to put her to work if the girls quit. At least one girl, Betty Cook, quit but Fields did not recall O'Neal. Thelma Little, a potato sorter, similarly applied for work several times but was told each time that no work was available. On September 16, Audrey Rutledge, Dean Bowles, and Anna Cowley asked Fields for work. Fields said they were "full up." Rutledge referred to a newspaper article about Respondent's employment of "welfare people" but Fields replied that "the paper was playing it up too big." Wilma and Allen Gates, and Pearl Holt also vainly sought work in the plant. Fields told Holt in November and again in December that new equipment was coming into the plant and more help might be needed after the first of the year. Respondent began to process potatoes on October 18, 1965, selecting for this work employees who had worked on tomatoes. Plant Manager Fields told the employees that they were going to get a wage increase because the Muncie plant "was keeping its head above water and Mr. Hunt felt that they should all have a raise." The employees were given a raise of 12 cents an hour. Respondent also recognized seniority for shift assignments and vacations, using the original date of hire for the "old hands" employed after the reopening of the plant. The certified bargaining unit included about 100 employees when the Muncie plant was shut down on February 2, 1965. Some 60 of these employees were not reemployed after the plant reopened in the summer of 1965.11 B. Analysis and Conclusions 1. The discrimination in hiring A seniority list of employees represented by the Union, posted at the Muncie plant on January 15, 1965, shows that, of 101 employees on the list, 39 started to work at the plant before Respondent purchased it from William Butterfield in December 1961, that 29 employees started work in 1962, that 23 employees started work in 1963, and that only 10 employees started work in 1964 or 1965. The years of service put in by these employees, and the testimony of complainants at the hearing that their work pack that the plant would operate if the Union was kept quiet but would be closed down if "they got the Union started back up again." Casio Cooper , a towmotor operator , ascribed similar remarks to Himes and Supervisor Albert Glass Himes and Glass admit conversations at the plant with these employees but deny making any antiunion remarks. I consider the Gibsons and Cooper trustworthy witnesses and credit their testimony " The complaint as amended at the hearing alleges discrimination against 65 employees Five of these employees worked in the reopened plant Priscilla Duncan, Ann Throckmorton, A. V Harry, and Gertie Burke were hired for the tomato pack but not for the potato pack Bravel Dobbs was not reemployed until March 26,, 1966 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had not been criticized, indicate that they constituted a competent work force. It had been Respondent's practice before the February 1965 shutdown to recall laid-off employees by telephone or post card. As "seasoned men are better than greenhands," 12 it seems that Respondent would have adhered to this practice and recalled its old employees when it reopened the Muncie plant. As full- scale processing operations did not begin until approximately 1 month after President Hunt directed Plant Manager Volz on July 15, 1965, to recruit labor to process the 1965 tomato crop, Respondent had ample time to ascertain how many old employees were interested in returning to work at the Muncie plant. The recall of these employees were entirely compatible with Respondent's arrangements with the Indiana Employment Security Division to obtain plant personnel, for the Division sent applicants to the Muncie plant only upon request. Respondent, however, merely sent a list of 1964 employees to the Division without any instructions to accord them priority of referral, and thereafter refused to bargain with the Union over their recall. Even though many persons referred by the Division worked a day or less, Respondent did not hire old, reliable employees who appeared at the plant seeking work. Indeed, antiunion statements were made to several of them, including Russell Pollard, Rex Hart, Zelpha and Melvin Gibson, and Castro Cooper.13 I find from the foregoing circumstances, evaluated against Respondent's sponsorship of a decertification petition and its threats before the July 1964 election to close the Muncie plant if the Union won the election,'" that Respondent failed to recall and reemploy the workers employed before the shutdown of February 2, 1965, because it knew that most of them were union supporters and it wanted to keep the Union out of the plant. The General Counsel urges, as further background evidence of antiunion motivation in Respondent's hiring procedure, that Respondent reneged on a negotiated contract and that it "feigned" a permanent shutdown of the Muncie plant on February 2, 1965, as a step towards eliminating the Union and its supporters from the plant. Respondent argues that events after the election refute any inference of antiunion discrimination in hiring, that it bargained in good faith with the Union and that it was the Union which frustrated bargaining by reneging on a negotiated contract, and that it closed the Muncie plant because it was losing money and reopened it only to make it more attractive to prospective purchasers. At their meeting on October 1, 1964, Plant Manager Lux and Business Agent Barker presented different versions of the contract allegedly negotiated and failed to sign a contract because each man insisted that his version of the contract was correct. The record does not warrant a determination that either party acted in bad faith, for it fails to show whether the parties actually reached agreement on a contract or only mistakenly believed they had done so. I therefore assume for purpose of analysis that both Respondent and the Union acted in good faith, in presenting their different versions of the contract for 12 N.L.R B v Remington Rand, Inc, 94 F.2d 862, 872 (C A 2). 13 I find, as alleged in the complaint, that Respondent violated Section 8(a)(1) of the Act by Chester Miller's interrogation of Pollard about his union affiliation, and by Albert Glass' statement to Cooper that the plant would operate only if the Union was kept out. 14 Butterfield described himself as a "troubleshooter" for President Hunt and the record shows that Hunt instructed a truckdriver from the Muncie plant to take the "chicken woman" signature. Respondent's willingness to sign a contract significantly different from one acceptable to the Union'15 however, hardly compels an inference that it had abandoned its opposition to the Union. Indeed, as found below, Respondent, upon reopening the plant, unlawfully refused to resume bargaining with the Union. Respondent's explanations for the closing and reopening of the Muncie plant are unconvincing. President Hunt allegedly closed the plant in February 1965 because it was losing money, decided in March to contract for tomatoes and ready the plant for the 1965 tomato pack so that the plant could be more readily sold, and in June or July issued instructions to run the pack because the plant had not yet been sold. An "Income Statement" put into evidence by Respondent shows losses for the combined operations of the Muncie and Plum Tree plants in 1962 and 1963. Although Respondent claims that the losses are entirely attributable to the potato operations at the Muncie plant, it offered no documentary support for this claim. I therefore find, as shown by the Income Statement, that both plants were unprofitable. Nevertheless Respondent closed only the Muncie plant. As to the selling of the plant, the record shows no attempt by Respondent to find other prospective purchasers after the unsuccessful March 1965 negotiations with a group of Muncie businessmen and the American Maize Company. Respondent has not advertised the plant for sale and the record shows that new equipment was installed around January 1, 1966. In these circumstances, and as the closing of the plant approximately 6 months after the Union won a Board election was preceded by antiunion threats predicting such action and was followed upon reopening by a hiring procedure which ignored the Union's bargaining rights and eliminated a majority of employees who voted in the election, I find, as alleged by the General Counsel, that Respondent "feigned" a permanent closing of the plant on February 4, 1965, as a device to get rid of the Union and its supporters. As Respondent denied the complainants priority of employment for antiunion reasons, I find no merit in its argument that the method it adopted to restaff its plant by referral from the Indiana Employment Security Division did not discriminate against union applicants. I also find no merit in Respondent's argument that its hiring of 39 old employees refutes any inference of discrimination against the complainants. By refusing to bargain with the Union on the reemployment of its old employees, and by making their reemployment depend on referral by the Division-which referral was highly uncertain because it depended upon a random selection of cards-Respondent impressed upon them the futility of union representation and drastically weakened the Union's strength in the plant. Respondent argues that in any event no finding of discrimination is permissible as to complainants who did not indicate their interest in employment by registering with the Indiana Employment Security Division or by directly applying for work at the plant. I reject this to the plant shortly before the election Respondent permitted Butterfield and the "chicken woman" to carry on antiunion activity at the plant. I therefore find that Respondent is chargeable with their preelection conduct N.L R B. v Byrds- Manufacturing Corporation, 324 F.2d 329, 332 (C A. 8), and the cases there cited 15 Respondent's letter of October 8, 1964, to the Union alleges that the contract presented by the Union on October 1 "contains substantial and material changes which we cannot accept " HLH PRODUCTS argument for the Union's letters of July 23 and August 2, 1965, gave Respondent notice that the Union, as their certified bargaining agent, was applying for work in behalf of all employees in the bargaining unit . 16 N.L.R.B. v. E. L. Dell, Jr., Trading as Waycross Machine Shop, 283 F.2d 733, 740 (C.A. 5). Moreover, as referral by the. Division for work with Respondent turned on "the luck of the draw" and Respondent refused employment to complainants who applied for work at the plant, I find that neither registration with the Division , nor an application for work at the plant, is a prerequisite to a finding of discrimination against any complainant . Cf. N.L.R.B. v. Valley Die Cast Corp., 303 F.2d 64, 65-67 (C.A. 6). 2. The refusal to bargain with the Union Respondent's refusal to bargain with the Union on and after July 23, 1965, over the recall and reemployment of employees in the certified bargaining unit was violative of Section 8(a)(5) of the Act, as it occurred within the certification year and was clearly motivated by a desire to gain time to dissipate the Union's majority status by bypassing the employees who voted in the 1964 election and restaffing the plant through the Indiana Employment Security Division. Ray Brooks v. N.L.R.B., 348 U.S. 96; Frank Bros. Companyv. N.L.R.B., 321 U.S. 702. Respondent contends, however, that Section 10(b) of the Act" precludes such a finding because the record contains no evidence of events within the Section 10(b) cutoff date-October 19, 1965-showing a refusal to bargain with the Union. Respondent overlooks its continued disregard of the Union in its hiring after October 19. Having been thrice turned down by Respondent, the Union was not obliged to make further useless demands for bargaining over the recall of employees. This is therefore not "a case of mere company inaction for 6 months following a refusal to bargain" but one where Respondent's "determination to refuse to recognize and bargain was actively implemented [after October 19] by its efforts to undermine the Union." N.L.R.B. v. Aero Corporation, 363 F.2d 702, 706 (C.A.D.C.). Respondent argues in its brief that a theory of "continuing violation" is barred by Machinists Local 1424 v. N.L.R.B., 362 U.S. 41. But as stated in the Aero Corporation case,supra: That decision cannot be viewed so broadly. When within the six-month period there has been active conduct, as contrasted with mere passive inaction following an old offense, it is open to the Board to refer to previous acts "to shed light on the true character of matters occurring within the limitations period." 362 U.S. at 416. In effect what was involved here was a basic Company approach started more than six months prior to the charge, but carried forward by more recent actions. The Board in effect viewed the actions within the six-month period as reiterations by deed of the underlying refusal to bargain and hence as establishing a violation of Section 8(a)(5). We think this was within its authority under the Act. 18 I have found that the plant was shut down temporarily on February 4, 1965, as an antiunion stratagem. The workers in the certified bargaining unit therefore retained their status as employees of Respondent . I would reach the same result even if the shutdown was intended to be permanent , for Respondent changed its mind within 2 months, purchased tomato crops, and IV. CONCLUSIONS OF LAW 329 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(3) and (1) of the Act by refusing to recall and reemploy 65 employees about August 1, 1965, because of their union activty. 4. Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union on and after July 23, 1965. 5. Respondent violated Section 8(a)(1) of the Act by coercively interrogating employees about their union activity and by threatening to discontinue operations rather than to operate a unionized plant. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. V. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondent refused employment to the 65 complainants because of their union activities or sympathies. I shall therefore recommend that Respondent offer them immediate and full reinstatement to their former or substantially equivalent positions at the Muncie plant, without prejudice to their seniority or other rights and privileges, dismissing if necessary all, persons not employed by Respondent on February 4, 1965. If there is not then sufficient work available for the remaining employees including those offered reinstatment, all available positions shall be distributed among them without discrimination because of their union activity or sympathy, in accordance with such system of seniority or other nondiscriminatory practice heretofore applied by Respondent in the conduct of its business. All such employees for whom jobs are not available after such distribution shall be placed on a nondiscriminatory preferential hiring list. I shall further recommend that Respondent make the complainants whole for any loss of pay suffered because of the discrimination against them. The loss of pay under the order recommended shall be computed in the manner set forth inF. W. Woolworth Co., 90 NLRB 289, with interest added thereto in the manner set forth in Isis Plumbing & Heating Company, 138 NLRB 716. I shall further recommend that Respondent bargain with the Union upon its request. As the unfair labor practices of Respondent found herein go to the heart of the Act, it will be recommended that Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. RECOMMENDED ORDER HLH Products, Division of Hunt Oil Co., its officers, agents, successors , and assigns , shall: readied the plant for the tomato pack Cf NLRB. v W C. Bachelder, Receiver for Hoosier Veneer Co., 120 F 2d 574, 578 (C.A. 7) " Section 10(b) provides in pertinent part that "no complaint shall issue based upon any unfair labor practice occurring more than 6 months prior to the filing of the charge " 330 DECISIONS OF NATIONAL 1. Cease and desist from: (a) Unlawfully interrogating employees about their union membership and activity or threatening them with loss of employment because of such membership or activity. (b) Discouraging membership in the Union, or any other labor organization, by unlawfully discriminating against any of its employees in regard to their hire or tenure of employment. (c) Refusing to bargain with the Union as the exclusive bargaining representative of its production, maintenance, and warehouse employees, including garage employees, janitors, inspectors, and local truckdrivers. (d) In any other manner, interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, bargain collectively with the Union as the exclusive representative of all the employees in the certified bargaining unit. (b) Offer the individuals listed in the attached notice immediate reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings suffered by reason of the discrimina- tion against them, as provided in "The Remedy" section of this Decision. (c) Notify the above individuals if serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (e) Post at its place of business and plant in Muncie, Indiana, copies of the attached notice marked "Appendix.""' Copies of said notice, to be furnished by the Regional Director for Region 25, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 25, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. 19 ii In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words " a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." 19 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read- "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL bargain, upon request, with Local 135, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the representative of our production, maintenance, and warehouse employees, including garage employees, janitors, inspectors, and local truckdrivers. All our employees have the right to)oin or support a labor union. WE WILL NOT in any manner interfere with their exercise of this right. Specifically, we will not question employees about their union membership and activity or threaten them with loss of employment because of such membership and activity. WE WILL NOT discourage membership in Local 135, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization , by refusing to hire employees because of their union activity or sympathy or by discriminating in any other manner in respect to their hire or tenure of employment. WE WILL offer to the following employees immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered as a result of the discrimination against them. Finley Barnett Charles Beasley Martha Bell Norma Benedict Kenneth Boles Dean M.Bowles Cletus Buck Gertie Burke Albert Clark George Coffey William Coil Anna Conley Castro Cooper Clarence Cooper Clifton Cooper Flinton Cooper O. D. Cooper Junior Cope Jett Davis Charles Dearduff Perry Delk Bravel Dobbs William Dodson Priscilla Duncan Margaret Earley Pat Franklin Allen Gates LeRoy Gates Wilma Gates Henderson Gee Virgil Gregory A. V. Harry Rex Hart Joe Hicks Arnold Hines Pearl Holt Dewey Howard Oscar Huddleston Ather Hurt Thelma Little Herbert Merrill Ethel Metzger Mary Mickel Paul Millington Ethel Neese Mary O'Neill Russell Pollard Oma Jean Rains Dorothy Reagan James Reagan James Reeder Willard Reynolds Bessie Roberts Betty Robinson Jackie Robinson Walter Rowls Audrey Rutledge Mary Sams Raymond Scott Earl Stephens HLH PRODUCTS 331 Jesse George Zeipha Gibson Billy Trasher Anne Throckmorton Noble Troutman presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge front the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, ISTA Center, 150 West Market Street, Indianapolis, Indiana 46204, HLH PRODUCTS, DIVISION OF HUNT OIL CO., (Employer) Dated By (Representative) (Title) Note: We will notify the above-named employees , if Telephone 633-8921.