Certified Building Products, Inc.

CERTIFIED BUILDING PRODUCTS, INC. 515 Certified Building Products, Inc.; and Carl Fidler and Glaziers, Glassworkers and Glass Warehouse Workers Union Local 636, International Brother- hood of Painters and Allied Trades, AFL-CIO. Case 21-CA-11522 January 18, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On September 21, 1973, Administrative Law Judge George Christensen issued the attached Decision in this proceeding. Thereafter, the Respondents and the General Counsel filed exceptions and supporting briefs and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs' and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein? Benjamin Banderas, Elpidio Banderas, Josephine Barron, Tomas Nevares Cervantes, Margaret Cisne- ros, Joe Phillip Concha, Ella Cossio, Jesus Cossio, Gary Fonnesbeck, Wade Hudyshere, Lola Mae Jones, Transito Lomeli, Richard Mangaser, Anthony McClure, Sheila Outen, Daniel Rivas, Gilberto Rodriguez, Maria Segura, Freddie Smith, Jose Vasquez, Luis Vasquez, and Josephine Vasquez, for any loss of wages and other benefits they may have suffered as a result of the discrimination against them in the manner set forth in the section of the Decision of the Administrative Law Judge entitled `The Remedy,' and in fn. 2 of the Board's Decision." 3. Substitute the attached notice for Appendix B of the Administrative Law Judge's Decision. The General Counsel moved to quash Respondents' exceptions as improperly filed, but, even upon consideration of these exceptions, we find that the assertion of jurisdiction over both Respondents is proper and that adoption of the Administrative Law Judge' s unfair labor practice findings is warranted Rejected as without record support is Respondent Certified's allegation that Respondents were denied a fair hearing. 2 While we agree with the Administrative Law Judge that the Respondents unlawfully discharged all 24 employees in the bargaining unit named in In 17 of his Decision, we find ment in the General Counsel's exceptions that all of them be made whole for any loss of wages and other benefits they may have suffered from February I, 1973, the date of their discharge. to when the Respondents ceased to do business , on or about March 30. 1973, in accordance with the backpay formula set forth in the said Decision. APPENDIX B ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified, and hereby orders that Respondents, Certified Building Products, Inc.; and Carl Fidler, their officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as modified below: 1. Delete paragraph I and substitute the follow- ing: "1. Cease and desist from: "(a) Discharging, or otherwise discriminating against, any employee to discourage membership in Glaziers, Glassworkers and Glass Warehouse Work- ers Union Local 636, International Brotherhood of Painters and Allied Trades, AFL-CIO, or any other labor organization. "(b) Making any changes in the rates of pay, wages, hours, or other working conditions of their production and maintenance employees without prior notice to and consultation with the Union, the employees' exclusive bargaining representative." ,2. Delete paragraph 2(a) and substitute the following: "(a) Make whole Daniel Andrade, Felipe Arreola, 208 NLRB No. 85 NOTICE MAILED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial during which all parties had an opportunity to present evidence, the National Labor Relations Board found that we committed several unfair labor practices, ordered us to refrain from committing such unfair labor practices in the future, and further ordered us to take certain affirmative acts. In compliance with that Order, we want to tell you that: WE WILL reimburse the following employees who were unlawfully discharged on February 1, 1973, for any loss of wages and other benefits you may have suffered from the discharge date until we ceased doing business in March 1973, together with interest at 6 percent per annum: Daniel Andrade, Felipe Arreola, Benja- min Banderas, Elpidio Banderas, Josephine Barron, Tomas Nevares Cervantes, Marga- ret Cisneros, Joe Phillip Concha, Elia Cossio, Jesus Cossio, Gary Fonnesbeck, Wade Hudyshere, Lola Mae Jones, Transito Lome- li, Richard Mangaser, Anthony McClure, Sheila Outen, Daniel Rivas, Gilberto Rodri- quez, Maria Segura, Freddie Smith, Jose 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Vasquez, Luis Vasquez, and Josephine Vas- quez. WE WILL make contributions to the health and welfare fund established by Glaziers, Glasswork- ers and Glass Warehouse Workers Union Local 636, International Brotherhood of Painters and Allied Trades, AFL-CIO, on your behalf to maintain your coverage under that plan for the months of December 1972 and January, Februar- y, and March, 1973, and we shall reimburse you for any losses you may have suffered by reason of your noncoverage by that plan during those months, together with interest at 6 percent per annum. In the event we resume business, WE WILL reinstitute the rates of pay, wages, hours, and working conditions you received prior to your February 1, 1973, discharge and will keep those rates of pay, wages, hours, and working condi- tions in effect until we have either reached an agreement with said Union in changing them or reached an impasse in negotiations with said Union over changes therein. CERTIFIED BUILDING PRODUCTS, INC. (Employer) Dated By (Representative) (Title) CARL FIDLER (President) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Eastern Columbia Building, 849 South Broadway, Los Angeles, California 90014, Telephone 213-688-5229. DECISION STATEMENT OF THE CASE GEORGE CHRISTENSEN, Administrative Law Judge: On July 19, 1973,1 i presided over a hearing at Los Angeles, i Read 1973 after all subsequent date references omitting the year 2 Hereafter called the Union 3 Hereafter called the Company and Fidler i Palley also appeared specially for the limited purpose of objecting to the validity of service upon Fidler California, to try issues raised by an amended complaint issued June 21 on the basis of charges and amended charges filed by Glaziers, Glassworkers and Glass Ware- house Workers Union Local 636, International Brother- hood of Painters and Allied Trades, AFL-CIO,2 on February 2, 7, 23, 28, and May 17. The amended complaint alleged that Certified Building Products, Inc.; and Carl Fidler, an Individual,3 4 violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended (hereafter referred to as the Act), by: (1) making changes in wages, hours, and working conditions subsequent to taking over the plant, business, and work force of Allied Equities Corp.5 without prior notice to or bargaining with the Union representing their and Allied's employees; (2) failing to bargain in good faith with the Union concerning the wages, hours, and working conditions of those employees despite their awareness and acceptance of the Union's majority representative status among those em- ployees; and (3) discharging those employees because of their union representation. The Company filed an answer to the amended complaint at the hearing, denying the commission of any unfair labor practices. Fidler did not file an answer to the amended complaint. At the hearing counsel for the Company, while specifically noting he was not appearing on behalf of Fidler, contended the Board had no jurisdiction over Fidler because the amended complaint was not personally served on Fidler. The answer, inter aka, denied the jurisdictional and successor allegations of the amended complaint and admitted the appropriateness of the employee unit, the Union's majority representative status therein, the qualifi- cation of the Union as a labor organization, and the discharge of the employees represented by the Union on February 1. The issues joined by the parties and litigated at the hearing were: (I) Board jurisdiction over the Company and Fidler; (2) the successor issue ; (3) whether the Company and Fidler failed to bargain in good faith; (4) whether the Company and Fidler made unilateral changes in employee wages, hours, and working conditions without prior notice to or bargaining with the Union; and (5) whether the Company and Fidler discharged their employees to avoid bargaining with the Union concerning their employees' wages, hours, and working conditions. The General Counsel and counsel for the Company appeared at the hearing and were afforded full opportunity to adduce evidence, examine and cross-examine witnesses, argue, and file briefs. A brief has been received from the General Counsel. Based on my review of the entire record,6 observation of the witnesses, perusal of the brief and research , I enter the following. Hereafter called Allied. 5 The General Counsel's motion to correct the transcript (filed with his brief) is granted Corrections are set out in full in Appendix A attached hereto lomitted from publication ) CERTIFIED BUILDING PRODUCTS, INC. 517 FINDINGS OF FACT I. rHh JURISDICTION AND SUCCESSOR ISSUES? Between November 1970 and May or June 1972, Allied conducted two separate businesses at a plant located at 702 East Gage Stree ., Los Angeles, California. The two businesses were organized into two divisions, one called the Certified Building Products Division, which manufactured aluminum doors and windows, and the other called the Glasgo Division, which manufactured mirrors. In May or June 1972, Allied leased a plant at Compton, California, for a 5-year term and moved the Certified Building Products Division there, as well as the offices for both divisions. Glasgo manufacturing operations were continued at the Gage Street plant. Allied continued the manufacturing operations of the Certified Building Products Division at the Compton, California, plant through December 3, 1972. During this entire time (November 1970-December 1972), John Verser was employed by Allied as its vice president and handled all purchases and sales for both divisions, in addition to other duties. In the period January 1-December 3, 1972, the Certified Building Products Division purchased from suppliers located outside the State of California goods valued in excess of $50,000. Gross sales during this period averaged between $90,000-$ 100,000 per month. During the week preceding December 4, 1972, Allied sold Certified Building Products' name, equipment, vehi- cles, machinery, inventory, and customer accounts to Fidler for $470,000, payable over a 7-year period. Fidler made no down payment; the first installment on the note was due and payable on March 30. Fidler formed a California corporation, with himself as sole stockholder and president, under the name Certified Building Products Corporation. The new corporation assumed the lease on the Compton plant. Sometime around this period, Allied sold the Glasgo operation to a different buyer. The Company and Fidler continued the business unchanged, at the Compton plant, commencing December 4, 1972. They continued to work on and complete customer orders in process at the time of the changeover. They utilized the same personnel, equipment, machinery , inven- tory, plant, etc., to produce the same products for the same customers and market as Allied had. Verser and other management personnel were retained by Fidler and the Company in the same positions they held with Allied. Fidler and the Company continued to occupy, and to do business at, the Compton plant until late March. They defaulted on payment to Allied of the first installment due on the note (March 30) .8 The business was repossessed by Allied at that time. Verser was employed by Allied following the reposses- sion in the same capacity he previously held with Allied and with Fidler and the Company. He remained in that position for Allied from March through July 1. He has become part of the management of the Company which has since taken over the business. During the penod the business was operated by Fidler and the Company, glass valued at $38,484.63 was pur- chased from Guardian Industries Corporation. All such glass was shipped from Guardian's glass manufacturing plant in the State of Michigan to its warehouse and tempering operation in California. Glass valued at $25,665.43 was tempered by Guardian at the California location and then delivered to Fidler and the Company. The other $7,957.22 worth of glass delivered by Guardian to Fidler and the Company was shipped to them without such tempering; i.e., in the same condition it arrived from Michigan. During this same period, Fidler and the Company ordered a shipment of glass valued at $12,819.20 from Orient Glass, Incorporated. That glass was shipped directly from Japan but was not delivered until April, after assurance of acceptance and payment by Allied. Information was not available at the hearing regarding other purchases made by Fidler and the Company due to the unavailability, either to the General Counsel or counsel for the Company, of the Company's records. Verser's testimony that Fidler and the Company contin- ued in the same plant, in the same business, manufacturing the same products, for the same customers, and utilizing the same personnel as Allied during the time they operated the business was uncontradicted and corroborated by employee witness Josephine Vasquez. That testimony is credited. Based thereupon, I find and conclude that the Company was a successor to Allied, as the term "successor" has been applied in cases arising under Section 8(a)(5) and (1) of the Act. Based on the Verser testimony and supporting evidence that in the period January 1, 1972, to December 3, 1972, Allied purchased from suppliers located outside the State of California goods valued in excess of $50,000; that Fidler and the Company took over Allied's inventory on assumption of the business on December 4; that Fidler and the Company purchased from just one suppliers goods shipped intact from outside of California valued at approximately $8,000 and ordered goods to be shipped intact from outside of California valued at approximately $12,800; and that business continued at the same volume between December 4, 1972, and March 1973, I find that the purposes of the Act will be best served by assuming jurisdiction over the Company and Fidler based on the Board's statutory jurisdiction,iO and I therefore find and r The findings under this heading are based for the most part on the uncontradicted testimony of John Verser, which is credited, and documen- tary evidence submitted at the hearing. 8 Verser's uncontradicted testimony is credited that the default was caused by Fidler's appropriation for his personal account of $60,000 of company cash and $103.000 in receivables and his disappearance prior to the due date of the :irst installment, only a portion of which was subsequently returned, leaving the Company a defunct corporation with no assets. 9 The identity of other suppliers could not be ascertained due to the professed inability of company counsel to locate the Company's records 1s The Company's professed inability to produce the Company's records prevented an accurate assessment of the Company's sales to purchasers located outside of California and purchases from sellers located outside of California In these circumstances , it behooves the Board to assert its statutory jurisdiction Tropicana Products, Inc, 122 NLRB 121, Supreme, Victory and Deluxe Cab Companies, 160 N LRB 140 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conclude that Fidler and the Company at all times pertinent were employers engaged in commerce in a business affecting commerce, as those terms are defined in Section 2(2), (6), and (7) of the Act. A. Jurisdiction Over Fidler The only differences between the original complaint issued on March 30 and the amended complaint issued on June 17 consist of allegations of filing and service of the fourth amended charge on May 17 and the naming of Fidler as a joint- or co-Respondent. There is no question Fidler had actual knowledge of the contents of both the original and amended complaints. On April 3, Fidler sent a letter to Region 21 on his personal letterhead over his signature stating the Company was no longer in business, denying the allegations contained in the original complaint, and designating Mel Darrow of Chubb, Darrow and Associates as counsel. On June 22, the amended complaint was served on Lawrence P. Schwartz of Palley & Schwartz. II On July 16, Region 21 sent copies of the amended complaint, by postpaid registered mail, to Mel Darrow of Chubb, Darrow and Associates and to Fidler at the home address he listed on his April 3 letter to the Region. On July 17, a representative of Chubb, Darrow and Associates signed a receipt for the registered mail. No such receipt was received from Fidler.12 On various dates in July, Fidler appeared and personally participated with his and the Company's attorneys, Palley and/or Schwartz, in discussions of possible settlement of the issues raised by the amended complaint.is The General Counsel seeks to add Fidler as a joint- or co-Respondent in this case on the theory Fidler, the sole stockholder and president of the Company, personally ran the Company, made all policy decisions, and was therefore the Company's alter ego. The Company's answer to the complaint admits that Fidler was its president and sole stockholder. Verser's testimony that Fidler ran the Company and made all policy decisions is unchallenged and credited. I therefore find and conclude that, in view of Fidler's domination of company affairs and his actual knowledge of the contents of the amended complaint, he is a proper party-Respondent in this proceeding and was properly served. B. Labor Organization The amended complaint alleges, the answer admits, and I find that the Union at all pertinent times was a labor organization within the meaning of Section 2(5) of the Act. C. Unit and Union Representative Status The amended complaint alleges, the answer admits, and I find that at all times pertinent the production and ii Palley represented the Company at the hearing 12 Fidler apparently refuses to accept registered mail delivery ; a subpena mailed to him by return receipt registered mail requiring his appearance at the hearing was returned, so indicating. 13 This finding is based on a representation to that effect made at the maintenance employees employed by Allied and its successors, Fidler and the Company, constituted a unit appropriate for collective-bargaining purposes within the meaning of Section 9 of the Act. On either April 10, 1972, or July 12, 1972,14 Allied and the Union executed a collective-bargaining agreement for a term extending to July 12, 1974, wherein Allied recognized the Union as the exclusive collective-bargaining represent- ative of its production and maintenance employees. The amended complaint alleged, the answer admitted, and I find that at all times pertinent since July 12, 1972, the Union has represented a majority of the employees within the aforesaid unit, both while they were employed by Allied and while they were employed by Fidler and the Company. D. The Alleged Failure To Bargain in Good Faith, Unilateral Changes, and Discharges At the time Fidler and the Company assumed the operation of the business on December 4, 1972, they continued in effect unchanged the wages, hours, and working conditions of the unit employees. The Union learned of the change in ownership in mid- December 1972 and immediately arranged a conference with Fidler and Verser. The Union was represented at the conference by Business Representatives John Kurth and Mario Salazar. The union representatives informed Fidler of the Union's majority representative status among the employees within the unit, the terms of the contract between the Union and Allied covering those employees, and asked Fidler to assume the contract for the balance of its term. Fidler accepted the Union's representation of continued majority representative status and expressed a willingness to assume the contract but stated he wished to have his attorney check it over before signing it. The union representatives agreed to this proposal. In succeeding visits in December and January, the union representatives inquired of Fidler regarding the contract and were uniformly informed by Fidler that the contract was still in the hands of his attorney but had not been reviewed yet. On each occasion Fidler reiterated his willingness to sign the contract following such review. The Union's shop steward, while the business was operated by Allied, was Josephine Vasquez. She continued in Fidler and the Company's employ (along with all the other employees within the unit) following the change in ownership and continued to act as the Union's steward. In early January, Vasquez received a complaint from unit employees concerning their receipt of only I day of holiday pay (for Christmas Day) in view of the contract provision requiring holiday pay both for Christmas Eve and Christmas Day. Vasquez called Kurth and Salazar. Vasquez, Kurth, and Salazar conferred with Fidler and Verser regarding the grievance in mid-January. Kurth and Salazar pointed out to Fidler the contract language hearing by counsel for the General Counsel and corroborated by remarks made at the hearing by counsel for the Company, Palley 14 Union Business Representative Kurth testified the contract was signed on April 10. 1972. The contract recites that it was entered into on July 12, 1972 The difference is immaterial CERTIFIED BUILDING PRODUCTS, INC. requiring holiday pay both for Christmas Eve and for Christmas Day. Fidler at first tried to argue an interpreta- tion of the contract which would not require such payment but, eventually, after asking for the cost of the additional day, agreed to pay holiday pay for Christmas Eve and paid it shortly thereafter. While union dues were deducted from the unit employ- ees' wages during the months of December and January, they were not remitted to the Union.15 The health and welfare payments set out in the contract never were sent to the Union.16 Shortly after hearing the Union's requests for health and welfare payments to avoid lapse of the unit employees' hospital and medical coverage, Fidler told Verser the costs of continuing to meet the wage rates and conditions in effect since December 4 were too high, he was going to shut down the plant and terminate the unit employees in order to get nd of them. On Thursday, February 1, Plant Superintendent Kline called a meeting of the unit employees. There were 24 employees in the unit at that time.1-7 Kline told the employees they were terminated, effective that day. He stated the plant would probably reopen at a later date, with fewer employees, and that applications for employment would be accepted commencing Monday, February 5. He also stated that when and if the plant did reopen, it would be nonunion and lower wage rates and no fringe benefits would be paid. Employee Richard Mangaser was employed by Allied on November 2, 1971, as a punch press operator. He continued in Allied's employ through December 3, 1972. He was employed by Fidler and the Company on December 4, 1972. in the same capacity. He worked continuously for Fidler and the Company through Febru- ary 1, when he was terminated by Kline in the manner set out in the preceding paragraph. Mangaser appeared at the plant on February 5 and saw Kline. Kline stated he would have to sign an agreement to disclaim representation by the Union and accept a wage rate of $2.50 per hour in order to be rehired.18 Mangaser received $3.62 an hour prior to his February 1 discharge. Mangaser asked Kline what other benefits he would receive if he accepted ajob under the conditions set out by Kline. Kline replied he would receive $2.50 per hour, that it would be a nonunion shop, and there would not be any fringe benefits. Mangaser refused to sign the document and was not hired. On February 9, Mangaser returned to the plant and signed the agreement proferred by Kline to the unit employees. The agreement read as follows: I, [Employee's name] am being hired by Certified Building Products, Inc. I realize that my beginning rate of pay will be $2.50 per hour and that that rate will be 15 On February 5, after the discharge of the unit employees, these dues deductions were sent to the employees by mail 16 Union requests therefor were made shortly before the discharge of all the unit employees 17 Daniel Andrade, Felipe Arreola, Benjamin Banderas, Elpidio Bande- ras, Josephine Barron, Tomas Nevares Cervantes, Margaret Cisneros, Joe Phillip Concha, Elsa Cossio, Jesus Cossio, Gary Fonnesbeck, Wade Hudyshere, Lola Mae Jones, Transtto Lomeli, Richard Mangaser, Anthony McClure, Sheila Outen, Daniel Rivas, Gilberto Rodriguez, Maria Segura, 519 in effect until union scales are determined. I have not been requested to join any union and am free to join any union decided upon by a majority of employees. I further realize that I may be discharged at any time during the first thirty days of employment, at the option of the employer. 1. [Employee's name], have read and do understand the above information and accept employment under the conditions noted. APPROVED DATE Approximately nine unit employees were rehired by Fidler and the Company following February 5 and remained in Fidler and the Company's employ until they ceased doing business in late March. Their wages, etc., were those set out in the above agreement. In the leading case of N.L.R.B. v. Burns International Detective Agency, Inc., 406 U.S. 272 (1972), the Court held that, in instances in which it was clear that a new employer plans to retain all the employees in his predecessor's employ, he is obligated to consult with the exclusive collective-bargaining representative of those employees before fixing or changing the terms of their employment. The Board has since ruled that, even in the absence of a preconceived plan to retain all of the predecessor employ- er's employees, the successor employer is nevertheless obligated to notify and bargain with the union representing his and his predecessor's employees prior to making any changes in the wages, hours, and working conditions of the unit employees subsequent to the change in ownership.19 Fidler and the Company obviously planned to and did continue all unit employees in their employ following the change in ownership. In the 2-month period following their takeover, they did comply with the rule of the Burns case enunciated above-continuing in effect unchanged the rates of pay, wages, hours, and other working conditions enjoyed by the unit employees while working for Allied.20 Faced with union demands in January for payment of the health and welfare contributions in order to maintain employee coverage under the health and welfare plan, Fidler advised Verser he had decided to get out from under the prevailing rates of pay, wages, and other conditions (including the health and welfare obligation) by discharg- ing the unit employees. He therefore caused Kline on February 1, without prior notice to or bargaining with the Union, to discharge the unit employees and, after a brief hiatus, to rehire approximately nine of them at substantially lower rates, without any of the preexisting fringe benefits, without regard to seniority, and on condition they renounce representation by the Union. Freddie Smith, Jose Vasquez, Luis Vasquez , and Josephine Vasquez. 18 Other unit employees who reported on February 5 and subsequently received the same message. 19 Ranch- Way, Inc., 203 NLRB No. I I8. 20 With two exceptions; while Fidler and the Company deducted union dues from the unit employees' wages, they failed to remit the dues to the Union; they also failed to remit to the trustees the health and welfare payments due to the fund under the health and welfare provision of the agreement. 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find and conclude that Fidler and the Company violated Section 8(a)(5) and (1) of the Act by Fidler's stalling tactics when requested to sign a contract with the Union setting forth the wages, rates of pay, hours, and working conditions of the unit employees; by Fidler and the Company's February 1 discharge of the unit employees without prior notice to or bargaining with the Union; by Fidler and the Company's failure to maintain unit employee coverage under the health and welfare plan; by Fidler and the Company's rehire of unit employees on and after February 5 without regard to seniority status, at different wages, rates of pay, hours, and working condi- tions than those in effect on February 1 without prior notice to or bargaining with the Union; and by Fidler and the Company's February 5 and subsequent negotiation of individual contracts of hire with unit employees. I further find and conclude that Fidler and the Company discharged the unit employees on February 1 in order to avoid their obligation to bargain collectively with the Union either to impasse or agreement prior to making any changes in the rates of pay, wages, hours, and working conditions of the unit employees and thereby violated Section 8(a)(1) and (3) of the Act. CONCLUSIONS OF LAW 1. At all times material Fidler and the Company were employers engaged in commerce in a business affecting commerce and the Union was a labor organization, as those terms are defined in Section 2(2), (5), (6), and (7) of the Act. 2. At all times pertinent a unit consisting of all of Fidler and the Company's production and maintenance employ- ees constituted an appropriate unit for collective-bargain- ing purposes within the meaning of Section 9 of the Act. 3. At all times pertinent the Union was the duly designated exclusive collective-bargaining representative of a majority of the employees within that unit. 4. For purposes of the Act, at all times pertinent Fidler and the Company were successor employers to Allied. 5. By stalling the Union in its request for execution of a contract containing the wages, rates of pay, hours, and working conditions carved over from Allied and covering their production and maintenance employees subsequent to their assumption of operation of the business; by failing to pay the requisite health and welfare payments to continue unit employee coverage in the health and welfare fund; by changing rates of pay, wages, hours, and working conditions of unit employees without prior notice to or bargaining with the Union; by terminating the unit employees without prior notice to or bargaining with the Union; by requiring the unit employees to sign individual contracts prior to recall; and by recalling unit employees without regard to seniority, Fidler and the Company violated Section 8(a)(1) and (5) of the Act. 6. By discharging their unit employees in order to avoid their obligation to bargain collectively either to impasse or agreement prior to making any changes in those employ- ees' rates of pay, wages, hours, and working conditions, 21 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec Fidler and the Company violated Section 8(a)(1) and (3) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found that Fidler and the Company engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act, I shall recommend that Fidler and the Company be directed to cease and desist therefrom and to take affirmative action designed to effectuate the policies of the Act. In order to make the unit employees whole for losses they suffered by reason of Fidler and the Company's unfair labor practices, I shall recommend that Fidler and the Company be directed to pay to the health and welfare fund, which provided a schedule of benefits to the unit employees prior and subsequent to Allied's sale of the business to Fidler and the Company, the sums that would have been paid to that fund for the months of December 1972, January, February, and March but for Fidler and the Company's nonpayment thereof; and that Fidler and the Company compensate the unit employees for any out-of- pocket expenditures they may have been obligated to pay by virtue of the fact Fidler and the Company did not make such payments. For the same purpose, I shall recommend that the Company be directed to pay to the nine unit employees who would have been recalled on and after February 5 but for the Company's disregard of the recall practices adopted by the predecessor employer, Allied, the difference between the wages and other benefits such nine employees earned between the date the nine unit employ- ees were recalled and the date the Company and Fidler ceased to do business, calculated in the manner set out in F W Woolworth Company, 90 NLRB 289, with interest on the sums due at the rate of 6 percent per annum (see N L R.B. v. Isis Plumbing & Heating Co., 322 F.2d 913 (C.A. 9, 1963)). 1 shall further recommend that Fidler and the Company be directed to recognize the Union as the exclusive collective-bargaining representative of their production and maintenance employees, to employ them at the rates of pay, wages, hours, and working conditions they enjoyed prior to their discharge, and to continue such rates of pay, wages, hours, and working conditions in effect until such time as Fidler and the Company and the Union have negotiated concerning same either to impasse or agree- ment, in the event Fidler and the Company resume business. Upon the foregoing findings of fact, conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER21 Fidler, the Company, their officers, agents, successors, and assigns, shall: 1. Cease and desist from making any changes in the rates of pay, wages, hours, or working conditions of their 102 48 of the Rules and Regulations. be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes CERTIFIED BUILDING PRODUCTS, INC. production and maintenance employees without prior notice to and consultation with the Union. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Make their employees whole in the manner set forth in the section of this decision entitled "The Remedy" (b) In the event Fidler and the Company resume business operations, they shall reemploy unit employees at the rates of pay, wages, hours, and working conditions followed prior to February 1 and continue same in effect until and unless they and the Union bargain and either reach an agreement for changes therein or reach an impasse in such bargaining. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, health and welfare payment records, pension payment records, personnel records and reports, and all other records 22 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals. the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant 521 necessary to analyze the amount of money or other payments or benefits due under the terms of this recommended Order. (d) Mail to the 24 unit employees whose names appear in footnote 17, at their last known addresses, copies of the attached notice marked "Appendix B.1122 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by authorized represent- atives of Fidler and the Company, shall be mailed by them immediately upon receipt thereof. Proof shall be provided to the Regional Director for Region 21 that such notices have been mailed to each of the 24 unit employees in the manner specified. (e) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps Fidler and the Company have taken to comply herewith. to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."