Limpco Mfg. Inc.

LIMPCO MFG. AND/OR CAST PRODUCTS 987 Limpco Mfg. Inc., and/or Cast Products, Inc. and United Electrical, Radio and Machine Workers of America Local 623. Case 6-CA-8706 and has decided to affirm the rulings, findings, and conclusions I of the Administrative Law Judge and to adopt his recommended Order. August 18, 1976 DECISION AND ORDER BY MEMBERS FANNING, PENELLO, AND WALTHER On April 28, 1976, Administrative Law Judge Julius Cohn issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief 1 At the hearing, Respondent's counsel requested a I-month postpone- ment to allow Joseph Stein, Limpco's president at the time of the alleged unfair labor practices, to testify The Administrative Law Judge correctly denied the motion to postpone for the reasons set forth in In 2 of his Decision Respondent' s counsel then left the hearing and by telegram to the Board requested permission to appeal the Administrative Law Judge's deni- al of its motion to postpone Before leaving the hearing, Respondent's coun- sel neither requested permission from the Administrative Law Judge to sub- mit an affidavit from Stein nor made an offer of proof as to what Joseph Stein would testify in its request for permission to appeal the Administra- tive Law Judge's denial of its motion, Respondent's counsel, in the alterna- tive, requested that it be allowed to submit a written statement from Joseph Stein The Board, by telegram of February 26, 1976, denied Respondent's request for permission to appeal the Administrative Law Judge' s ruling In so doing the Board neglected to mention the Respondent's alternative re- quest With regard to the request to submit a written statement, we first note that such request was not properly before the Board under Sec 102 26 of the Board's Rules and Regulations since Respondent's counsel did not attempt to put a statement from Joseph Stein into evidence at the hearing In fact, Respondent counsel's request does not make it clear as to whether he was requesting permission to submit an affidavit or to take a deposition We assume , however, that Respondent's counsel intended to file an affidavit since he contends that Joseph Stein was "seriously ill" and could not testify, such illness would presumably also prohibit the taking of a deposition Assuming that Respondent's counsel was referring to an affidavit, and the request was properly before us, we would deny such request Except in rare cases, the Board's established policy is not to accept affidavits of allegedly unavailable witnesses because affidavits afford no opportunity to cross-ex- amine or evaluate demeanor Thus, the Board has allowed affidavits gener- ally only when the witness was either deceased or so seriously ill that the taking of oral testimony posed a threat to the witness' health (see, e g , West Texas Utilities Company, Inc, 94 NLRB 1638 (1951), enfd 195 F 2d 519 (CA 5, 1952) In this connection, we are constrained to note our concurrence in the Administrative Law Judge's difficulties with some of the statements and representations of Respondent's counsel As Just one example, in his brief to the Board, he states that Joseph Stein is "seriously ill" and his illness is documented by "medical records " These so-called medical records consist of a letter from a Pennsylvania doctor dated February 4, 1976, when Stein was allegedly in Florida, addressed "To Whom it May Concern," and stat- ing that Stein "has not been in good health because of anxieties of [sic] his wife's illness " The second "medical record," an undated letter from a Flori- da doctor, does not mention Mr Stein's health but states only that Mrs Stein "needs [Mr Stein's] constant attention " In conclusion, we find Respondent's exceptions without merit, reaffirm our earlier decision on appeal, and specifically deny Respondent's request to submit a written statement from Joseph Stein ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Limpco Mfg. Inc., and/ or Cast Products, Inc., Greensburg, Pennsylvania, their officers, agents, successors, and assigns, shall take the action set forth in said recommended Order. DECISION STATEMENT OF THE CASE JULIUS COHN, Administrative Law Judge: This case was heard at Pittsburgh, Pennsylvania, on February 25, 1976. The charge in this proceeding was filed and served October 16, 1975,1 an amended charge was filed on December 15, and served on December 17 simultaneously with the com- plaint herein issued by the Regional Director for Region 6. The complaint alleges that Limpco Mfg. Inc., and/or Cast Products, Inc., herein called the Respondent or Company, violated Section 8(a)(1), (3), and (5) by its refusal to bar- gain with United Electrical, Radio and Machine Workers of America, Local 623, herein called the Union, and by discriminatorily terminating the employment of three of its employees on June 17, As to the violation of Section 8(a)(5), it is alleged that Respondent unilaterally changed wages and conditions of employment, withdrew recogni- tion from the Union, refused to apply the collective-bar- gaining agreement to its foundry employees and bargained directly with them rather than through the Union. The Re- spondent filed an answer denying the commission of unfair labor practices. Issues Whether Limpco and Cast Products constitute a single- integrated employer Whether Respondent unlawfully unilaterally changed conditions of employment. Whether Respondent withdrew recognition from the Union as the exclusive bargaining representative of its foundary employees Whether Respondent unlawfully failed and refused to apply to the foundry employees the collective-bargaining agreement between it and the Union effective April 4. Whether Respondent on June 1 unlawfully bypassed the Union and bargained directly with its foundry employees concerning wages and other terms and conditions of em- ployment 1 Unless otherwise noted, all dates will refer to 1975 225 NLRB No. 148 988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Whether Respondent discriminatorily terminated the employment of Daniel Sprockett, Edward Collier III, and Ernest Constantine on or about June 17. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs? The General Counsel submitted a brief which has been carefully consid- ered.' Upon the entire record of the case and from my observa- tion of the witnesses and their demeanor, I make the fol- lowing: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Limpco Mfg. Inc., is a Pennsylvania corporation with a principal office and place of business located in Greens- burg, Pennsylvania, where it is engaged in the business of manufacture and sale of clutches and brakes for industrial vehicles. During the past 12 months preceding the issuance of a complaint herein in the course and conduct of its busi- ness operation, Respondent sold and distributed from its Greensburg, Pennsylvania, facility products valued in ex- cess of $50,000 which were shipped directly to States of the United States other than Pennsylvania. The complaint al- leges, the answer admits, and I find that Respondent is a Company engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent has denied, however, that Cast Products, Inc., which has been engaged since June 1, 1975, in providing molds to Limpco is and has been a single integrated enterprise with Limpco. For the reasons hereinafter set forth I find that Limpco Mfg. Inc., and Cast Products, Inc., have been a single-integrated enterprise and a joint employer. 2 Before the opening of the hearing Respondent had requested , by letter dated February 11, 1976, that the Regional Director postpone the hearing for a period of more than 2 months because of the unavailability of Joseph Stein, president of Respondent, due to "poor health " Attached to the letter was a note from a doctor dated "February 4, 1976," to the effect that Mrs Stein had recently suffered a heart attack and that Mr Stein "has not been in good health because of his anxieties of his wife's illness " The Regional Director denied the request for postponement and Respondent filed a "Peti- tion for Allowance of Appeal" with the Board On February 23, 1976, the Board denied Respondent leave to appeal Thereafter at the hearing Re- spondent moved for a postponement of the hearing for a period of 2 months based upon the same statement and doctor 's certificate Respondent's coun- sel, conceding that the principal issue in this matter is the question as to whether Limpco and Cast Products are a single-integrated enterprise or a joint employer, nevertheless stated that he would be unable to prepare for a hearing or proceed in any manner without the presence of Joseph Stein He insisted that a postponement of 2 months , which he later reduced to I month, was essential in order for him to conduct a defense in this case, because Joseph Stein was the only one in possession of facts relating to the sale of the foundry to Cast Products When I denied a postponement for either of those periods of time but indicated I might be amenable to a request for a shorter continuance , counsel refused to take advantage of such offer and requested that he be excused from the hearing The doctor's certificate does not describe any specific illness which would disable Joseph Stein and prevent his appearance No other adequate reason was advanced by counsel for the inability of Respondent to proceed with this hearing The absence and whereabouts of Michael Stein , vice president of Respondent and son of Joseph , was unexplained Despite the contention of counsel that Michael Stein was not knowledgeable concerning the issues in this case, the evidence , as subsequently adduced , indicates that he was quite involved in all facets of the operation It would appear that the mode of operations and integration of the foundry with the plant would be deter- minative as to the single employer issue rather than a knowledge of the details of the purported transaction of sale of the foundry , subjects which could be described by other witnesses such as Michael Stein and the fore- man Moreover, Respondent's counsel failed to explain why Respondent was unable to prepare any defense in this matter after the complaint had been outstanding for more than 2 months prior to the hearing and was based upon a charge filed more than 4 months before the hearing It is noted that this was considerably before the Steins felt it necessary to leave for Florida in January 1976 It is clear therefore that Respondent had ade- quate notice and time within which to prepare for the hearing Pure Chem Corporation, 192 NLRB 681 (1971 ) Finally, assuming that Joseph Stein was an essential witness and actually was incapacitated, Respondent made no application to take his deposition as provided in Sec 102 30 of the Board's Rules and Regulations, Series 8 , as amended, and presented no reason why such application was not made House of Adler, 206 NLRB 228 (1973) In view of all the circumstances , the request by Respondent for a continuance of 2 months or, at the minimum , I month , was denied 3 Following the close of the hearing , an extension of time within which to file briefs was granted at the request of Respondent However , indicative of its attitude in this matter, no brief was received II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Single Employer Issue The Respondent has been engaged in the manufacture and sale of clutches and clutch parts at its facilities in Greensburg, Pennsylvania. At that location its operations were conducted in three adjacent buildings consisting of an assembly plant, a machine shop, and a foundry. The Re- spondent has had collective-bargaining relationships with the Union for about 12 years, and, in 1973 when the found- ry was established, Respondent and the Union agreed to apply the then current contract to the foundry and negoti- ated job descriptions, classifications, and wage rates for foundry employees. The current contract covers the period from April 4, 1975, through April 3, 1978, the prior con- tract having expired on January 20 followed by a strike until April 4 During the negotiations, both before and af- ter the strike, Respondent sought to negotiate what it termed a new concept in which all employees in the found- ry would rotate and learn all the jobs in the foundry and when they became qualified at every job, all would be paid at a top rate. If an employee was unable to qualify for all the foundry jobs, he would be paid at the rates of the high- est paying job for which he had become qualified. In addi- tion, the Company wanted a separate seniority list for the foundry. The Union rejected this proposal and the Compa- ny eventually withdrew it, having executed on May 27 the new agreement effective from April 4 4 However, even prior to the final execution of the con- tract, Respondent had indicated that it was not going to abandon its efforts to obtain different arrangements for the The contract unit which I find to be appropriate is All production and maintenance employees and plant clerical employees employed by Respon- dent at its Greensburg, Pennsylvania, plant, excluding office clerical em- ployees, professional employees, guards, engineers, and supervisors as de- fined in the Act LIMPCO MFG. AND/OR CAST PRODUCTS 989 foundry employees. On May 15 at a meeting attended by Joseph Stein, president, Michael Stein, vice president, and Ron Baldasseroni and Daniel Quinn, field representative and chief steward, respectively, of the Union, Joseph Stein stated that he was going to incorporate the foundry into a new company for which he wanted to negotiate a separate agreement. The new agreement would include the "new concept" which the Steins proposed during the strike nego- tiations. Although the Union again declined this offer, it was repeated on May 27 the date on which the current bargaining agreement was actually signed. On June 1 Re- spondent announced to the union representative that a new corporation, Cast Products, Inc., had been formed and that Victor Czajkowski, the foundry manager, was the president of the new corporation. Prior thereto, on May 19, Joseph Stein had informed the union representatives that he would be principal stockholder of the new corporation to be formed, but that he would not take an active part in the day-to-day operation of the foundry. Other than the change in working conditions of the em- ployees, as hereinafter discussed, the formation of the new corporation made no change in operation. The foundry had in the past and continued to provide castings which were sent over to the machine shop and assembly plant for further work. Czajkowski, regardless of title, continued to manage the foundry operation and Wallace Smith carried on as foundry foreman. As will later be described, Joseph Stein met with union representatives, stewards, and em- ployees at various times after June 1 concerning foundry matters. On June 12 Wallace Smith, the foreman re- sponded to a union grievance on Limpco stationery It is noted that in his denial of the Union's grievance Smith stated that the three employees involved in the grievance were working in the foundry under temporary assignment and further states that these employees will be restored to their regular jobs in seniority order when they are called back from layoff. Indeed, one of the employees working in the foundry after June 1, Keilback, was transferred to the assembly plant on July 1. Moreover, foundry employees after July 1 were often observed working in the assembly plant and using the equipment there for the foundry opera- tions In addition CzaJkowski and Smith constantly met with both Steins in their offices in the plant. Finally, Sally Stein, wife of Joseph, was secretary-treasurer of Limpco and signed the weekly paychecks of all employees. She continued to sign the paychecks of the foundry employees through June 19. Witnesses who had been employed at the foundry during this period stated that they still received Limpco checks after June 1, until their final one which was a Cast Products check, also signed by Sally Stein. As it is clear that the Steins continued to control all operations, including the foundry, after June 1 and there was no change, I find that Limpco and Cast Products had at all times material herein been a single-integrated enter- prise. B. The Alleged Violations of Section 8(a)(5) of the Act. As indicated above, the Steins had expressed a desire to make changes in the foundry even before the expiration of during the strike negotiations. These efforts were renewed after the strike settlement and before the new contract was executed on May 27. Thus, at a meeting on May 15, Joseph Stein told Baldasseroni and Quinn that he was going to form a new corporation and wanted a new contract which would incorporate the "concept" Stein wanted to institute in the foundry. At a meeting held on May 19 for the pur- pose of delivering the final draft of the contract to Stein, he informed the union representatives that the foundry was to be incorporated under the name of Cast Products and that he, Joe Stein, would be the major stockholder although he would not be active.5 Another meeting was held on May 27 for the formal signing of the contract, at which Joseph Stein changed his position somewhat and told the union representatives that he did not want a new contract for the foundry but rather wished to incorporate the new concept with classifications and rates in accordance with the pro- posal he had made during the strike negotiations. In addi- tion, he wanted a separate seniority list for the foundry. The union people again rejected this proposal. On June 1 Joseph Stein called Baldasseroni and Quinn to a meeting and informed them that the foundry was now incorporated as Cast Products and had been divorced from Limpco and that he, Stein, had nothing to do with the foundry. Baldasseroni asked Stein whether he was saying that the Union is not to be recognized in the foundry. Stein replied that he had nothing to do with the foundry but, as he understood it, the Union was not going to be recog- nized. Later that day, June 1, Joseph Stein and Czajkowski called the four employees then working in the foundry to a meeting. The employees were Robert Keilback, Daniel Sprockett, Edward Collier, and Ernest Constantine who had been assigned to the foundry since approximately May 1. Respondent at that time began to implement its new concept. Constantine had been recalled in May as a strip- per and stocker at a Class 4 rate, less than as provided in the contract. He was also assigned different Jobs including that of a molder (a Class 12 job) at the Class 4 rate Simi- larly, Keilback who had returned from sick leave in mid- May was reduced from his usual Class 15 to Class 13, and after June 1 received a Class 7 rate. Sprockett also was paid at a Class 4 rate while switching from job to job in the foundry. These employees testified they had been previously told by Joseph Stein at a meeting in mid-May that Cast Prod- ucts was being formed and that CzaJkowski would be the president of that Company and would restructure the foundry with respect to job classifications and wages. Czaj- kowski told them at that time he wanted them to work with him on that basis. Now, at the June 1 meeting, Joseph Stein told them that the foundry had been incorporated, that it was no longer an arm of Limpco, and they wanted the cooperation of the employees. Czajkowski stated that he was the president and he outlined for them the new pro- gression scale for job rates. One of the employees, Con- stantine, asked about the Union contract and Czajkowski replied that the contract would be valid except for Job de- 5 All of the facts set forth herein are based on the uncontradicted teshmo- the prior collective-bargaining agreement in January and ny of the General Counsel's witnesses, all of whom testified credibly 990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD scriptions and rates but they would have the same protec- tion and coverage. Another employee asked about the sta- tus of the Union and Czajkowski stated that they no longer belonged to the UE Local at Limpco because the foundry was no longer part of Limpco. He told them that they could have their own shop steward and their own contract if they wanted it. Czajkowski also told the employees that he wanted them all to begin at a rate which was equivalent to the bottom of Class 4 under the union contract and that everybody would get the same rate on a 90-day basis and gradually progress up through the various jobs and classifi- cations until everyone would be getting a top rate. Employ- ee Collier said that he thought the rate was not high enough because some of the employees already had consid- erable foundry experience. Stein then remarked that if the employees cooperated they might be able to give them a Class 6 rather than a Class 4 rate and Czajkowski said he would check this out. The employees then told Stein and Czajkowski that they wanted to discuss this matter with their union. That evening in the parking lot of the premises the employees met with Quinn and it was determined that they would file a grievance on this matter. The following day a grievance signed by the employees involved was filed. Thereafter, when Michael Stein returned the griev- ance on the ground that it did not follow contract proce- dures, a new grievance dated June 10 and signed by Quinn in the name of the Union was filed. It is clear from the above that Respondent has violated Section 8(a)(5) of the Act in several respects. Even before it announced the formation of the new corporation, Respon- dent had actually instituted its new plan or "concept," as it was called, in the foundry at approximately May 1. Kell- back, Constantine, and Sprockett were all rotated in vari- ous jobs and received lower wage rates than were provided in the collective-bargaining agreement for the type of work they were performing. By implementing this plan without prior notice or consultation with the Union, despite its re- jection during the negotiations, and after Respondent had withdrawn it and signed a strike settlement agreement on April 4, the Respondent engaged in a per se violation of Section 8(a)(5) of the Act.' Of course Respondent contin- ued this course of conduct after its announcement to union representatives that it had severed the foundry from Limp- co on June 1 Respondent further violated Section 8(a)(5) of the Act by withdrawing recognition from the Union as to the foundry on June 1 when it announced the formal incorpo- ration of Cast Products Inc., and the transfer of the found- ry to that corporation. It has already been found that the two corporations comprise a single entity for the purposes of collective bargaining. None of the usual reasons for withdrawal of recognition, such as loss of majority, was advanced by Respondent for its action. The plain fact is that Respondent did not succeed in negotiating a change of operations for the foundry and just decided that it could divest itself of responsibility by going through the motions of a dummy sale to a new corporation. Indeed, Respondent 6 N L R B v Benne Katz d/b/a Williamsburg Steel Products Co 369 U S 678 (1962), Guerdon Industries Inc, Armor Mobile Homes Division, 218 NLRB 658 (1975) withdrew recognition just several days after it fomally exe- cuted the new collective-bargaining agreement on May 27 which by its terms was effective from April 4. Accordingly, I find that Respondent has violated Section 8(a)(5) by withdrawing recognition for the foundry employees from the Union on June 1.' As a result of its unilateral changes of job classifications and wage rates and other contractual provisions in the foundry during May and thereafter, and by its withdrawal of recognition on June 1, Respondent was refusing to apply the terms and conditions of the contract executed May 27 to the foundry employees. By such refusal Respondent fur- ther violated Section 8(a)(5) of the Act. It has long been established that it is the duty of an employer to bargain solely with the statutory representa- tive and no other person or group.' Respondent acted in derogation of this principle when, on June 1, it called a meeting of the foundry employees and, as related above, discussed the various job classifications and wage rates with them. In this connection it is particularly noted that, when one of the employees indicated that he felt that the wage rate proposed was too low, Joseph Stein stated that perhaps they could be paid at a higher level and Czajkow- ski stated that he would look into it. This bypassing of the Union and dealing on these matters directly with the em- ployees further violated Section 8(a)(5) of the Act.9 C. The Alleged Violations of Section 8(a)(3) of the Act On June 17, Respondent laid off Constantine, Sprockett, and Collier and thereafter on July 1 Keilback was transfer- red to the assembly plant. The General Counsel contends that the layoff of the three employees and the transfer of the fourth were discriminatorily motivated. It will be recalled that on June 2, the morning after the employees met with Joseph Stein and Czajkowski, the em- ployees filed a grievance which was signed by each of them. That morning Joseph Stein called them in and want- ed to know why they were harassing him with all the griev- ances. The employees, according to Sprockett, said that they wanted him to adhere to the Limpco contract. Stein said that they should forget about the contract as they were no longer part of the UE, and then began to use abusive language regarding Baldasseroni and Quinn. Constantine testified that Stein said he wanted them to cooperate but the employees said they had to do what their Union told them to do. Stein stated they were no longer part of the Union and "to hell with goddamn Baldasseroni and god- damn Quinn, they had nothing to do with this. This is not Limpco, this was Cast Products." About June 10 Joseph t It appears that the Union, through an inadvertent error failed to include the foundry in the unit description in the April 4 contract However, the parties considered themselves bound by the 1973 job classifications and wage rates negotiated in writing for the foundry employees It is apparent, throughout the negotiations of the parties both before and after the January 20 strike, and during further meetings in May, as well as discussion over the recall of employees not only after the strike but also subsequent layoffs, and in the handling of grievances relating to foundry employees, that the found- ry employees were included in the contract unit I so find 8 Medo Photo Supply Corporation v N L R B, 321 U S 678 (1944) 9 Spriggs Distributing Company, 219 NLRB 1046 (1975) LIMPCO MFG. AND/OR CAST PRODUCTS Stein and Czajkowski called the four employees to a meet- ing. They told the employees that there had been a cancel- lation of orders, there was no longer enough work to sup- port them, and effective that day they were to be laid off. The employees then protested that they had to have a week's notice and Czajkowski said he would give them the notice and post it on the bulletin board. Later he called in Keilback who was the steward and gave him a notice in writing.10 In any case Constantine, Sprockett, and Collier were laid off on June 17 and until July 1, Keilback was the only remaining employee in the foundry apart from super- vision. Despite its claim of lack of work Respondent hired addi- tional foundry employees shortly after June 1. On that date Keilback was transferred to the assembly plant while Fore- man Smith and Czajkowski worked alone in the foundry. In a few weeks other nonunion employees were hired and continued to work in the foundry. In July, Keilback, now working in the assembly plant, was told by both Smith and Czaikowski that he could return to work in the foundry if he quit Limpco completely and came back to the foundry as a nonunion employee. From the above facts, particularly the refusal of the em- ployees to renounce their Union and go along with the new type of operation instituted in the foundry by Respondent, and noting the expressions of harassment by Joseph Stein upon receipt of the union grievance, and the invective he directed toward the union representatives, I conclude that Collier, Sprockett, and Constantine were laid off and ter- minated because of their adherence to their Union and their efforts in seeking enforcement of the collective-bar- gaining agreement. Moreover, I find that the contention of Respondent to the effect that it did not have sufficient orders was merely a pretext which was negated by the fact that in July it operated the foundry with nonunion employ- ees. This is further substantiated by the testimony of Keil- back with regard to the offer made to him that he return to work in the foundry as a nonunion employee. I find there- fore that Respondent discriminatorily and unlawfully laid off the three above-named employees and transferred Keil- back from the foundry to the assembly plant in violation of Section 8(a)(3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Re- spondent described in section I, above, have a close, inti- mate, and substantial relationship 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. to Characteristic of Respondent's dealings with the employees and the Union, the notice referred to was in the form of a letter dated June 10. 1975, written by Cast Products, signed by Czajkowski and addressed to the Union, from which the Respondent purported to have withdrawn recogni- tion on June I V. THE REMEDY 991 Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirma- tive action designed to effectuate the policies of the Act It has been found that Respondent unilaterally, and without prior notice to, or negotiation with the Union, and in contravention of its collective-bargaining agreement im- plemented a new mode of operation in its foundry and instituted new job classifications and wage rates. Further, the Respondent withdrew recognition from and has re- fused to bargain with the Union, the exclusive representa- tive of its foundry employees who are included in the unit found appropriate herein. In addition, Respondent has re- fused to apply the terms and conditions of the collective- bargaining agreement with the Union effective April 4, 1975, to its foundry employees. It will therefore be recom- mended that Respondent cease and desist from unilaterally changing conditions of employment and that Respondent shall accord recognition to the Union as the exclusive rep- resentative of its foundry employees and apply the terms of the current collective-bargaining agreement to such em- ployees It will also be recommended that Respondent cease and desist from bargaining directly with employees and thereby bypassing their collective-bargaining represen- tative. I shall further recommend that Respondent make whole its foundry employees for any losses they may have sustained by reason of its unilateral changes in job classifi- cations and pay rates and its failure to apply the terms and conditions of the collective-bargaining agreement to its foundry employees. Having found that Respondent discriminatorily dis- charged the employees set forth above, I shall recommend that Respondent be ordered to offer immediate and full reinstatement to Constantine, Sprockett, and Collier and transfer Keilback to their former positions or, if those posi- tions are no longer available, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each of them whole for any loss of earnings or other monetary loss each may have suf- fered as a result of the discrimination against them, less interim earnings, if any, plus interest at 6 percent per an- num. Any backpay due is to be determined in accordance with the formulas set forth in F. W Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). CONCLUSIONS OF LAW I Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act Limpco Mfg. Inc., and/or Cast Products, Inc , at all times material herein have been a single-integrated enterprise constituting a joint employer. 2 The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By unilaterally changing conditions of employment, withdrawing recognition from the Union as the exclusive bargaining representative of its foundry employees, failing 992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and refusing to apply the collective-bargaining agreement to its foundry employees, and bargaining directly with the foundry employees and bypassing the Union, Respondent has violated Section 8(a)(5) and (1) of the Act. 4. By discriminatonly discharging employees Constan- tine, Sprockett, and Collier and transferring employee Keilback, Respondent engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER II Respondent Limpco Mfg Inc., and/or Cast Products, Inc., Greensburg, Pennsylvania, their officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Unilaterally and without prior notice to or consulta- tion with the Union promulgating or instituting a new pro- gram involving its foundry employees concerningjob clas- sifications, job rates, and other terms and conditions of employment. (b) Withdrawing recognition and refusing to bargain collectively with the Union with respect to rates of pay, job classifications, and other terms and conditions of employ- ment of its foundry employees. (c) Refusing to apply the collective-bargaining agree- ment dated May 27, 1975, effective April 4, 1975, to its foundry employees. (d) Disregarding the Union and bargaining directly with its foundry employees in derogation of their bargaining representative. (e) Discouraging membership in, or activities on behalf of United Electrical, Radio and Machine Workers of America, Local 623, or any other labor organization by discharging employees, transferring employees, or other- wise discriminating against them in any manner with re- gard to their hire, tenure of employment, or any term or conditions of employment because of their union activities. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guar- anteed by Section 7 of the Act, except to the extent that such right is affected by the proviso of Section 8(a)(3) of the Act. 2. Take the following affirmative action designed to ef- fectuate the purposes and policies of the Act. (a) Bargain collectively, upon request, with the above- named Union as the exclusive representative of the em- ployees in the appropriate unit. (b) Recognize the Union as the exclusive bargaining representative of the foundry employees and apply the col- lective-bargaining agreement mentioned above to said foundry employees. (c) Make whole the foundry employees for any loss of pay or other loss of benefits they may have sustained by reason of Respondent's unilateral changes and its failure to apply the collective-bargaining agreement to said foundry employees since approximately May 1, 1975. (d) Offer Ernest Constantine, Daniel Sprockett, and Ed- ward Collier immediate and full reinstatement and transfer Keilback to their former positions or, if those fobs no lon- ger exist, to substantially equivalent positions, without prejudice to their seniority or other rights previously en- joyed, and make them whole for any loss of pay due to the violations against them in accordance with the manner set forth in the section of this Decision entitled "The Reme- dy" (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this recommended Order. (f) Post at its Greensburg, Pennsylvania, plant copies of the attached notice marked "Appendix." 12 Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by the Respondent's rep- resentative, shall be posted by it 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 placed. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material (g) Notify the Regional Director for Region 6, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 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 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 12 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 to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides had a chance to give evidence it has been found that we have violated the Na- tional Labor Relations Act in certain respects. To correct and remedy these violations we have been directed to take certain actions and to post this notice WE WILL NOT unilaterally and without notice to or consultation with United Electrical, Radio and Ma- chine Workers of America, Local 623, promulgate or institute new fob classifications and pay rates involv- ing our foundry employees represented for collective bargaining by that labor organization. WE WILL recognize United Electrical, Radio and Machine Workers Union of America, Local 623, and, LIMPCO MFG AND/OR CAST PRODUCTS 993 upon request, bargain with it as the exclusive represen- tative of our foundry employees and all employees in the appropriate unit described below: All production and maintenance employees and plant clerical employees employed by Respondent at its Greensburg, Pennsylvania plant, excluding of- fice clerical employees, professional employees, guards, engineers and supervisors as defined in the Act. WE WILL apply our collective-bargaining agreement with the Union dated May 27, 1975, effective April 4, 1975, through April 3, 1978, to our foundry employ- ees. WE WILL NOT disregard the Union and bargain di- rectly with our foundry employees in derogation of their bargaining representative. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act WE WILL NOT discourage membership in or activities on behalf of United Electrical, Radio and Machine Workers of America, Local 623, or any other labor organization by discharging or otherwise discriminat- ing against employees in any manner with regard to their rates of pay, wages, hours of employment, hire, tenure of employment, or any term or condition of employment. WE WILL offer Ernest Constantine, Daniel Sprockett, and Edward Collier immediate reinstatement to their former jobs or, if those jobs no longer exist, to a sub- stantially equivalent job, without prejudice to their se- niority or other rights, and WE WILL make them whole for any loss of pay or any benefits they may have suffered by reason of our discrimination against them WE WILL offer Robert Keilback a transfer to his for- mer position in the foundry or, if such job no longer exists, to a substantially equivalentjob, and make him whole for any loss of pay or benefits he may have suffered by reason of our discrimination against him. LIMpco MFG INC., AND/OR CAST PRODUCTS INC.