Fabsteel Co., of Louisana

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fabsteel Company of Louisiana and United Steel- workers of America, AFL-CIO. Case 23-CA-6008 (formerly 15-CA-6059) August 15, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On April 8, 1977, Administrative Law Judge Jerry B. Stone issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief supporting the Administrative Law Judge's 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 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. 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 below, and hereby orders that the Respon- dent, Fabsteel Company of Louisiana, Shreveport, Louisiana, its officers, agents, successors, and as- signs, shall take the action set forth in the said recommended Order, as modified herein: I. Delete the following from paragraphs l(a) and (c): "Except to the extent permitted by the proviso to Section 8(a)(3) of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. i Since Louisiana is a right-to-work State, we shall delete references to the proviso to Sec. 8(aX3) from the recommended Order and notice. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to reinstate or otherwise discriminate against our employees in regard to hire or tenure of employment or any term or 231 NLRB No. 50 condition of employment because of their union or protected concerted activity, including their engaging in an unfair labor practice strike. WE WILL NOT refuse to recognize or bargain with the Union as the exclusive bargaining representative of our employees in the below appropriate bargaining unit. 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 offer to the employees named below immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent ones, without prejudice to their seniority or other rights previously enjoyed, except Rufus Walls and John M. Patterson who have now been reinstated, and make whole each of the employees named below, including Walls and John M. Patterson, for any loss of pay or other benefits suffered as a result of the failure to reinstate such unfair labor practice strikers on January 1, 1976, and as to Patterson and Walls, provide backpay from January 1, 1976, to date of reinstatement, plus 6 percent interest per annum in accordance with Isis Plumbing & Heating Co., 138 NLRB 716. George W. Brown James Cheatham L. D. Coleman Herman Gilliam Mertin Harton, Jr. Claudia V. Johnson Larry D. McDonald Edward C. McLean Latham Montgomery Herman L. Patterson John M. Patterson Clyde Pennywell Joe N. Peyton John S. Pouncy, Jr. Cleo Pratt Robert C. Procell Lee G. Taylor Rickey C. Taylor Charles H. Thomas Rufus Walls Roosevelt Washington Donald G. Woodward WE WILL upon request, bargain collectively with United Steelworkers of America, AFL-CIO, as the exclusive bargaining representative of the employees in the appropriate collective-bargain- ing unit and, if an understanding is reached, embody such understanding in a signed agree- ment. The appropriate collective-bargaining unit is: All production and maintenance employees, including leadmen, truckdrivers, janitors, and plant clericals employed at Respon- dent's Shreveport, Louisiana, plant, exclud- ing guards, watchmen and supervisors as defined in the Act. 372 FABSTEEL COMPANY OF LOUISIANA All our employees are free to become or remain, or refrain from becoming or remaining, members of any labor organization. FABSTEEL COMPANY OF LOUISIANA DECISION STATEMENT OF THE CASE JERRY B. STONE, Administrative Law Judge: This proceeding, under Section 10(b) of the National Labor Relations Act, as amended, was heard pursuant to due notice on October 19 and 20, 1976, at Shreveport, Louisiana. The charge was filed on April 1, 1976, in Region 15 of the National Labor Relations Board (New Orleans), and was docketed as Case 15-CA6059. Thereafter, on April 13, 1976, said charge and case was transferred to Region 23 (Houston, Texas) and renumbered and docketed as Case 23-CA6008. The complaint in this matter was issued on August 18, 1976. The issues presented by the pleadings and statements of counsel concern whether the Respondent (I) is a successor to Mosher Steel Company; (2) has, since on or about January 5, 1976, violated Section 8(aX5) and (1) of the Act by refusing to recognize and bargain with the Union with respect to an appropriate bargaining unit limited to certain described classifications of Respondent's employees; and (3) has violated Section 8(a)(3) and (1) of the Act by refusing, since on or about January 5, 1976, to "reinstate" certain named employees who had participated in an unfair labor practice strike against Mosher Steel Company. All parties were afforded full opportunity to participate in the proceeding. Briefs have been filed by the General Counsel and the Respondent and have been considered. Upon the entire record in the case and from my observation of witnesses, I hereby make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Fabsteel Company of Louisiana, the Respondent, is and has been at all times material herein a corporation duly organized under and existing by virtue of the laws of the State of Louisiana, having its principal office and place of business in Shreveport, Louisiana, where it is engaged in the business of fabrication of structural steel products. Mosher Steel Company is, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of Texas, having its principal office and place of business in Houston, Texas, where it is engaged in the business of fabricating structural steel products. Prior to January 1, 1976, Mosher Steel The facts are based upon the pleadings and admissions therein. 2 The facts are based upon the pleadings and admissions therein, upon stipulations, and upon official notice of the facts, concluding findings, and Decision and Order of the Board in Mosher Steel Company, 220 NLRB 336 (1975). and in the Board's Decision and Certification of Representative in Company also owned and operated a facility in Shreveport, Louisiana, where steel products were manufactured. During the calendar year of 1976, which period is representative of all times material herein, Respondent, in the performance of its business as described above, purchased goods and materials valued in excess of $50,000, which goods and materials were shipped directly to Respondent's Shreveport, Louisiana, plant from points and places located outside the State of Louisiana. During the same period of time, Respondent sold materials valued in excess of $50,000 to customers located at points and places outside the State of Louisiana, which materials were shipped directly from Respondent's Shreveport, Louisiana, plant to said customers. During the past calendar year, which period is represen- tative of all times material herein, Mosher Steel Company, in its performance of its business as described above, purchased goods and materials valued in excess of $50,000 which were shipped directly to Respondent's Houston, Texas, facility from points and places located outside the State of Texas. As conceded by the Respondent and based upon the foregoing, it is concluded and found that: (I) Fabsteel Company of Louisiana, the Respondent, is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. (2) Mosher Steel Company is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, AFL-CIO, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. I11. THE UNFAIR LABOR PRACTICE ISSUE A. Background and Setting2 Pursuant to a Stipulation for Certification Upon Consent Election, a secret-ballot election was conducted on August 30, 1973, among the employees in the stipulated unit described below. The tally of ballots furnished the parties showed that of approximately 980 eligible voters, 912 cast valid ballots, of which 511 were for and 378 against the Petitioner.3 There were 23 challenged ballots, which were insufficient to affect the results of the election. On January 18, 1974, the Board found the stipulated unit to be an appropriate bargaining unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. The stipulated and found appropriate collective-bargain- ing unit was as follows: Included: A companywide unit of the employees at all of the Employer's seven plants, at 3910 Washington Case 23-RC-3989 in the Mosher Steel Company case reported at 208 NLRB 522 (1974). 3 The Employer was Mosher Steel Company; the Petitioner was the United Steelworkers of America, AFL-CIO. 373 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and 6422 Esperson Street, Houston, Texas; San Antonio, Dallas, Lubbock, and Tyler, Texas; and Shreveport, Louisiana; described as follows: All pro- duction and maintenance employees, including lead- men, truckdrivers, janitors, and all plant clericals. Excluded: All office clerical employees, draftsmen, inside and outside salesmen, watchmen, guards, profes- sional employees, and supervisors as defined in the Act. On January 18, 1974, the Board found, as indicated above, that the Petitioner had received a majority of the valid ballots cast in said election and that the Petitioner should be certified as the exclusive collective-bargaining representative of the employees in the unit found appropri- ate. On January 18, 1974, the Board certified the Petitioner, United Steelworkers of America, AFL-CIO, as the exclu- sive representative of the employees of the Employer, Mosher Steel Company, in the appropriate bargaining unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, or other conditions of employment. Thereafter, the Union, United Steelworkers of America, AFL-CIO, made a bargaining request on February 7, 1974. Following this, the Union and Mosher Steel Company had some bargaining sessions between March 6 and December 10, 1974. A strike by a substantial number of employees at the seven plants involved in the appropriate unit commenced on July 22, 1974, and concluded, at least for the Mosher Steel Company Shreveport employees, on or about May 12, 1975. Said strike was an unfair labor practice strike, caused and prolonged by unfair labor practices committed by Mosher Steel Company. Just prior to July 22, 1974, Mosher Steel Company had approximately 67 employees in bargaining unit positions at its Shreveport plant. On July 22, 1974, approximately 65 of the 67 Shreveport employees, part of the seven-plant bargaining unit, went on strike. During the strike period (July 22, 1974, to May 12, 1975) Mosher Steel Company hired approximately 30 new employees. During the strike period, 21 or more employees who had gone out on strike from the Shreveport plant quit the strike and returned to work at the plant. On April 23, 1975, Administrative Law Judge Samuel M. Singer issued his Decision in Mosher Steel Company - Cases 23-CA-5165, 23-CA-5258 (formerly 16-CA-5699), and 23-CA-5282 (formerly 15-CA-5357). Administrative Law Judge Singer found that Mosher Steel Company had violated Section 8(a)(1) of the Act by certain conduct, had violated Section 8(a)(5) and (1) of the Act by refusing to bargain collectively, and that the strike by Mosher Steel Company employees commencing on July 22, 1974, was an unfair labor practice strike, caused and prolonged by Mosher Steel Company's unfair labor practices. Adminis- 4 I officially note that the question of such misconduct's beanng on the five individual unfair labor practice strikers' right to reinstatement was litigated in a proceeding before Administrative Law Judge Jalette. The Board in Mosher Steel Company, 226 NLRB 1163, found that Mosher Steel Shreveport unfair labor practice stnkers Robert Wilkerson, Charles Stiles, and Benny Harris engaged in striker misconduct justifying a refusal to reinstate such employees. The conduct of Mosher Steel Company Shreve- trative Law Judge Singer's recommended order included appropriate remedial action relating in part to requirement to bargain with the Union and to reinstatement of unfair labor practice strikers upon unconditional application for reinstatement. As has been indicated, the unfair labor practice strike which commenced on July 22, 1974, concluded (at least for the Mosher Steel Company, Shreveport employees) on or about May 12, 1975. On or about May 12, 1975, unconditional offers were made to Mosher Steel Company for the Mosher Steel Company Shreveport unfair labor practice strikers to return to work. The record reveals that between May 12, 1975, and December 31, 1975, seven of Mosher Steel Company Shreveport unfair labor practice strikers were returned to work. Five of the Mosher Steel Company Shreveport unfair labor practice strikers were refused reinstatement on the alleged ground of miscon- duct. 4 The litigation of such issues in Mosher Steel Company, 226 NLRB 1163 (1976), requires a finding that Roosevelt Washington and Lee Taylor, two of such five unfair labor practice strikers, were entitled to reinstatement after the offers to return to work on May 12, 1975. On September 16, 1975, the Board issued its Decision in Mosher Steel Company, 220 NLRB 336, adopting in major part Administrative Law Judge Singer's Decision issued on April 23, 1975. The Board found that Mosher Steel Company had engaged in conduct violative of Section 8(a)(5) and (1) of the Act. The Board also found that the strike by Mosher Steel Company employees commencing on July 22, 1974, was an unfair labor practice strike, caused and prolonged by unfair labor practices of Mosher Steel Company. The Board issued an appropriate remedial order requiring Mosher Steel Company to bargain with the Union and to reinstate the unfair labor practice strikers upon unconditional application for reinstatement. The Board's Decision and Order referred to above was enforced by Judgment of the Fifth Circuit, United States Court of Appeals on June 7, 1976. B. Agreement, Sale - Purchase, December 10, 1975 On December 10, 1975, Mosher Steel Company of Louisiana, Inc. (a Louisiana corporation), Mosher Steel Company, Inc. (a Texas corporation), the Fabsteel Compa- ny of Louisiana (a Louisiana corporation), and the Fabsteel Company (a Delaware corporation) entered into an agreement relating to the sale by Mosher Steel Company of Louisiana to the Fabsteel Company of Louisiana of certain assets, real estate, buildings, struc- tures, machinery and equipment, tangible personal proper- ty, raw material and inventory, located in Shreveport, Louisiana. Said agreement was written in terms of "certain assets," certain real property, excluded certain trailers, and indicat- ed certain limitations on inventory or raw materials port unfair labor practice strikers Roosevelt Washington and Lee Taylor was found in effect to be of such a nature as not to impair their rights to reinstatement as unfair labor practice strikers, and it was found that the refusal to reinstate Washington and Taylor violated Sec. 8(aX3) and (1) of the Act. Appropriate remedial order of reinstatement and backpay was issued in said Decision on November 24, 1976. 374 FABSTEEL COMPANY OF LOUISIANA purchased. Said agreement contained clauses relating to purchaser's agreement to furnish labor to complete work in progress. Said agreement also provided for "closing" and transfer of documents and payments on December 31, 1976. Said agreement contained provisions relating to obligations as to pending labor related disputes and litigation. On the same day the Fabsteel Company of Louisiana and the Fabsteel Company, Inc., transmitted a letter to Mosher Steel Company and Mosher Steel Company of Louisiana, Inc., reflecting further understand- ing and agreement in respect to the possible reinstatement of certain former employees of Mosher Steel Company of Louisiana, Inc. C. Events, December 16-31, 1975 On December 16, 1975, Chris Dixie, attorney for the Union, met with Larry M. Lesh, attorney for Mosher Steel Company. It is clear that Dixie and Lesh discussed the pending sale of the Mosher Steel Company Shreveport plant and that Dixie requested information as to the agreement of sale. On December 17, 1975, James P. Wolfe, a law partner of Dixie, transmitted a letter to President Fletcher Thorne- Thomsen of Fabsteel, Inc. Wolfe indicated that the United Steelworkers of America, AFL-CIO, had been advised that Fabsteel or a new corporation was in the process of purchasing Mosher Steel Company's Shreveport facility, that the expected termination of Mosher's operations was to be on December 31, 1975, and the anticipated com- mencement of operation by Fabsteel's affiliated company was to be on January 1, 1976. Wolfe's letter referred to an understanding that Mosher Steel Company had advised the purchasers of the pending unfair labor practice proceed- ings and findings by the National Labor Relations Board. Wolfe's letter summarized the Board's findings relating to refusal to bargain, to an unfair labor strike, and to unfair labor practice strikers' rights to reinstatement. Wolfe requested that the purchaser recognize the Union for the production and maintenance employees at the Shreveport plant operation, and that the purchaser promptly reinstate all of the striking employees entitled to reinstatement under the current Board order whom Mosher had failed to reinstate as of the date of the letter. Wolfe's letter referred to an attachment setting forth the names of such employ- ees. Wolfe's letter also set forth a description of the appropriate bargaining unit for which recognition as bargaining agent was being made. Wolfe's letter indicated that the strikers would make application in the manner requested. On December 23, 1975, Larry Lesh, attorney for Mosher Steel Company, by letter, advised Chris Dixie, attorney for the Union, of certain provisions in the December 10, 1975, agreement of sale-purchase between Mosher Steel Compa- ny and the Fabsteel Company previously referred to. Enclosed with Lesh's letter was an Exhibit P containing description of pending labor related disputes and litigation. Said exhibit referred to Case 23-CA-5360. Said case is the one disposed in the National Labor Relations Board I The exhibit setting forth the names of such employees listed 60 employees. Testimonial evidence revealed, however, that such list included four persons who appear to be supervisors. (B. Johnston. L. Johnson, Pugh, Decision reported at 226 NLRB 1163. Said exhibit also referred to Cases 23-CA-5165, 23-CA-5258, and 23-CA- 5282 as being on appeal to the United States Fifth Circuit Court of Appeals. Said Board Decision is reported at 220 NLRB 336 and was enforced by Judgment of the United States Fifth Circuit Court of Appeals, 532 F.2d 1374 (1976). D. The Successorship The facts are clear that the Fabsteel Company of Louisiana, on December 31, 1975, purchased, pursuant to prior agreement of December 10, 1975, in substantial effect the real property, physical assets, machinery, equipment, and inventory of Mosher Steel's Shreveport plant. The wording of the agreement to purchase refers in parts to certain real property and certain assets. The facts relating to the agreement and to the commencement of work with the same work force persuade that in substantial effect Mosher Steel's Shreveport plant was sold to and acquired by the Fabsteel Company of Louisiana on December 31, 1975. The General Counsel alleges and contends and the Respondent denies that accounts receivable, trade assets, and goodwill of Mosher Steel Company were purchased by the Fabsteel Company of Louisiana. In my opinion, the evidence does not support the General Counsel's conten- tions. First, as to accounts receivable, there is no evidence that the Fabsteel Company of Louisiana purchased accounts receivable from Mosher Steel Company. Rather, the parties entered into a business agreement wherein the Fabsteel Company was to furnish labor to finish work in progress for Mosher Steel Company. Perhaps the details as to compensation might reveal an arrangement warranting a conclusion that such arrangement in effect was a sale and purchase of accounts receivable disguised as another relationship. Such details have not been presented. Thus, the evidence is insufficient to reveal that accounts receiv- able were sold and purchased. Regardless of whether accounts receivable were sold and purchased, continued work by employees on work in progress tends to support a finding of successorship status. There is no evidence to reveal that the Fabsteel Company of Louisiana purchased "trade assets" and "goodwill" from Mosher Steel Company. Statements by the General Counsel at the hearing revealed that in effect his contentions are that "trade assets" and "goodwill" are the same. The agreement to purchase did not refer to "goodwill" or "trade assets," does not refer to agreement by Mosher Steel not to compete, and the name of the Fabsteel Company of Louisiana does not indicate a reliance or free ride upon the reputation of Mosher Steel Company. On December 31, 1975, Mosher Steel's Shreveport plant employee complement consisted of 56 nonsupervisory employees.5 On December 31, 1975, Mosher Steel Compa- ny ceased operation of the Shreveport plant and terminat- ed all employees and supervisors. The Fabsteel Company of Louisiana took applications from all the employees and and Settle). Whether several of these were leadmen and perhaps nonsupervi- sory is not clear. 375 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervisors working for Mosher Steel Company at Shreve- port, Louisiana, on December 31, 1975, hired all such employees and supervisors, paid such employees for 2 days of holidays (apparently January I and 2, 1976), and commenced operation with the same employee comple- ment on January 5, 1976. All such employees, including management, were given credit for prior service with Mosher Steel Company, and the employees were assigned the same employee employment number as used at Mosher Steel Company in Shreveport, Louisiana. Employees hired by Mosher Steel Company after January 5, 1976, whether previously employed by Mosher Steel Company or not, were treated as new hires and given new assigned numbers. 6 The facts relating to the operations of Mosher Steel Company at Shreveport prior to December 31, 1975, and to the operations of the Fabsteel Company of Louisiana at Shreveport on January 5, 1976, and thereafter reveal that the employee complement continued substantially doing the same work with the same equipment. Some testimony was presented that some newer equipment was purchased, installed, and used after January 5, 1976, and that such equipment was more efficient. Such type of change, however, is not of a substantial nature as regards the question of successorship. In December 1975, Mosher Steel Company had a bargaining obligation as regards its production and maintenance employees because of the certification of the seven-plant Mosher Steel Unit in 1974 and because of the Board's order in the case reported at 220 NLRB 336. As noted before, Mosher Steel Company of Louisiana and the Fabsteel Company of Louisiana entered into an agreement of purchase-sale of the Shreveport plant. Such agreement also contained clauses relating to continuation of the current pay scales for management and employees. The Fabsteel Company of Louisiana Shreveport plant employees after January 5, 1976, continued to be paid the wage scales utilized at the Mosher Steel Company of Louisiana prior to December 31, 1975. A comparison of other fringe benefits enjoyed by Mosher Steel's Shreveport employees as compared to the Fabsteel Shreveport employees reveals the following. The Fabsteel Company instituted a health insurance program with greater benefits than the program used by Mosher. Mosher paid the employees' share of such insurance but the employees paid for coverage for dependents. Both the Fabsteel Company and the employees paid a percentage of both employee and family coverage after January 1, 1976. Thus, the Fabsteel employees had to pay a percentage of their own insurance coverage wherein before (at Mosher) they had paid nothing for such coverage at Mosher. Further, the Fabsteel employees paid a percentage of the family coverage wherein before (at Mosher) they had had to pay the total costs for such coverage. Mosher Steel's employees had been covered by a retirement plan. When the Fabsteel Company acquired the Shreveport plant, such plan was terminated and a new 6 I note however that clock no. 8993 was assigned to James M. Jordan as of 12/31/75, that an employee named R.S. Varnell first appears on the records in this case in records for August 1976, with a clock no. 8991. different plan in effect at another Fabsteel plant was implemented. Mosher Steers employees had received 7 paid holidays per year whereas the Fabsteel Company Shreveport employees were employed on the basis of 10 paid holidays per year. Mosher employees' vacation plan involved 1- week vacation after I year, 2 weeks after 5 years, and 3 weeks after 15 years. The Fabsteel Company Shreveport vacation policy instituted involved l-week vacation after 1 year, 2 weeks after 2 years, 3 weeks after 8 years, and 4 weeks after 18 years. After the sale of the Shreveport plant, Mosher ceased participating in the market in the area. Some of Mosher's customers became customers of the Fabsteel Company after January 1, 1976. The Fabsteel Company has partici- pated in a wider marketing area for the Shreveport plant than had been used by Mosher before the December 31, 1975, sale of the Shreveport plant. There are also some differences in the handling of invoicing and related matters between the Mosher Steel Shreveport operation and the Fabsteel Shreveport opera- tion. Thus, Mosher handled invoicing and collection and personnel records from its office in Houston, Texas. Fabsteel handles invoicing and collections and personnel records on a local basis at the Shreveport office. Mosher had an organizational set up of separate departments at the Shreveport operation. Fabsteel, since the acquisition of the Shreveport plant from Mosher, has combined all depart- ments into one department. Fabsteel Company utilizes a broader based method of estimating, casting, and pricing products as compared to a more broken down method utilized by Mosher in its operations. Mosher Steel Company's Shreveport plant was one of a number of plants operated by Mosher. Mosher's smaller plants, such as its Shreveport plant, were involved in production for commercial work. After the sale of Mosher's Shreveport plant, Mosher continued work in other plants mainly of an industrial work nature. The Fabsteel Company of Louisiana is similarly one of several plants of the Fabsteel Company apparently set up as different corporations. The Fabsteel Company of Louisi- ana has continued doing the commercial work as did Mosher. The Fabsteel Company also commenced doing industrial work (Petro chemical and chemical customers) mainly for the Fabsteel Company at Waskom. The volume of such work was at first 90 percent of such work for the Waskom plant, and later such percentage decreased to 50 percent for Waskom, apparently as local customers were picked up. Both Mosher's Shreveport plant and the Fabsteel's Shreveport plant have had temporary exchanges of em- ployees with other plants in related or affiliated corpora- tions of their parent corporations. Some work produced at the Fabsteel Company of Louisiana is processed at Shreveport and at the Fabsteel's Waskom plant. The Fabsteel Company of Louisiana has operated with basically the same employee complement and the same Perhaps Varnell was not in the bargaining unit and therefore not included in the earlier records. 376 FABSTEEL COMPANY OF LOUISIANA supervision after January 1, 1976, as had Mosher before December 31, 1975. Thurman occupied the same position as general manager at the plant for both corporations. Thurman credibly testified to the effect that he had not engaged in labor negotiations for Mosher with the Union and that at Fabsteel he had not been given labor relations responsibilities. Thurman also credibly testified to the effect that the line of authority from him to top manage- ment for Fabsteel was from him to President Thorne- Thomsen, that Thorne-Thomsen came over to Shreveport frequently from Waskom, and that Vice President Burnley (engineering) was over daily from Waskom to render staff assistance. Whether this is different or not in effect from the line of command or assistance rendered when he was Mosher's general manager is not revealed. Thurman's testimony as to job openings reveals in effect that the same job classifications, duties of employees, and work in Fabsteel's operation essentially continued as had been in Mosher's operation. As has been previously noted, the production and maintenance employees at Mosher's Steel Shreveport plant were part of an overall seven-plant Mosher Steel bargain- ing unit. Such bargaining unit as described in specifics for the seven-plant unit has been found to be an appropriate bargaining unit. The number of employees at the Shreve- port location on December 31, 1975, and on January I and 5, 1976, numbered 56 or 58.7 A unit of employees of 56 or 58 in number paralleling the description of the larger seven-plant unit is also an appropriate bargaining unit. The same reasoning relating to community of interest would apply, and the evidence of the appropriateness of the larger unit would constitute a preponderance of evidence requir- ing a finding that the smaller unit with similar classification description be appropriate for bargaining. In the background of significant geographical dispersion of the seven-plant Mosher unit, the facts reveal a sufficient identity of the Shreveport employees as a separate group to warrant a separate employee complement from a structure viewpoint. Considering all of the foregoing, I am persuaded and conclude that the Fabsteel Company of Louisiana on January 1, 1976, constituted a successor to the Mosher Steel Company of Louisiana as the enterprise operating the Shreveport plant involved herein. Thus, the facts reveal that substantially the same employees and supervisors continued after the change in ownership on December 31, 1975. Such employees have continued doing substantially the same work on the same equipment at the same location. Essentially, what has happened is that the Fabsteel Company has continued the same work of a commercial nature but added work of an industrial nature. Although the products for the industrial nature work involves some differences, such work is basically the same. I do not find that the changes in fringe benefits basically affect the question of the continuation of the employing enterprise. Such benefits do not appear to have been substantially changed. Further, bookkeeping and other changes have 7 The facts indicate that B. Johnson and George Pugh. Jr., were supervisors at the time of the sale of the plant on December 31. 1975, and when Fabsteel commenced operation. This being so, the number of employees in the complement was 56. If, however, Johnson and Pugh were merely leadmen and nonsupervisory, the number of employees would be 58. little bearing on a realistic evaluation of continuation or lack of continuation of an enterprise. The overall structures of Mosher and of Fabsteel appear substantially similar. The employee unit complement continued the same at Fabsteel as at Mosher. The fact that the certified bargain- ing unit at Mosher involved a seven-plant unit is not significant in evaluating structural change or lack thereof when it is clear that a single-plant unit is also appropriate. Rather the seven-plant unit is essentially similar in nature to a situation of multiplant or multiemployer bargaining in an agreed merger of single units into one bargaining unit or as part of multiunit bargaining. In sum, the facts reveal that the Fabsteel Company of Louisiana is a successor employer to the Mosher Steel Company as employer of the Shreveport plant involved herein. E. The Refisal To Bargain I. The General Counsel alleges that all production and maintenance employees, including leadmen, truckdrivers, janitors, and plant clericals employed at Respondent's Shreveport, Louisiana, plant, excluding guards, watchmen, and supervisors as defined in the Act, constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. The Respondent admits in effect that a unit of all production and maintenance employees at the Shreveport plant is appropriate but denied, because there might be issues relating to specific inclusion of various classifications, the remainder of the allegations. The matter of appropriateness of the alleged appropriate bargaining unit has been discussed in the "successorship" section herein. No specific evidence as to specific inclusion or exclusion of classifications has been presented. In effect, the facts reveal that a described appropriate bargaining unit, of the described classifications included in this alleged appropriate bargaining unit but relating to a seven-plant Mosher Steel unit, was stipulated to be appropriate and was so found by the Board on January 18, 1974. Further, such unit was certified as the appropriate unit on January 18, 1974. As indicated beforehand, the community of interest of the employees as to inclusions and exclusions from such seven-plant unit similarly persuade that the same inclusions and exclusions would prevail for a single- plant unit. Accordingly, I conclude and find that the alleged appropriate bargaining unit constitutes a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act.8 2. The pleadings establish and I so find that the Union (United Steelworkers of America, AFL-CIO), on or about December 17, 1975, requested and continued to request the Respondent to bargain collectively with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment as the exclusive collective- bargaining representative of all the employees of the Respondent in the single-plant unit described above. a I note that office clericals were specifically excluded from the stipulated seven-plant unit, that "office clericals" are not included in the alleged single- plant unit as being included, and that "office clericals" are not specifically excluded from such single-plant unit. 377 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The pleadings also establish and I so find that - commencing on or about January 5, 1976, and at all times thereafter, the Respondent did refuse and continues to refuse to recognize the Union and to bargain collectively with the Union as the exclusive collective-bargaining representative of all the employees in the single-plant unit described above with respect to wages, hours, and working conditions and other terms and conditions of employment for the employees in said unit. 3. As indicated above, it is clear that the Respondent has refused to bargain with the Union as to wages, terms, and conditions of employment covering the employees in the appropriate bargaining unit. I note that attorney Ramsey, for the Respondent, replied to Wolfe's December 17, 1975, request for recognition and bargaining on January 5, 1976. Ramsey's letter indicated an awareness of the unfair labor practice claims, set forth the Respondent's contention that it was not a "successor," set forth the Respondent's contention that it did not believe the Union to represent a majority in any unit appropriate for bargaining, and suggested that the Union file a representa- tion petition. On March 22, 1976, attorney Dixie, for the Union, spoke to attorney Ramsey, for the Respondent, and offered to prove the Union's majority status by a card check. Dixie offered such proof related to a majority of the employees working, as well as related to a count of those working and of unreinstated strikers. Ramsey stated that he would check with his client, the Respondent, and call back if the Respondent were willing to agree to a card check for majority status determination. Dixie received no further communication on this point. 4. The facts reveal the following with respect to the employees in the appropriate bargaining unit as of January 5, 1976. There were 56 nonsupervisory employees in the Mosher Steel Company unit at the Shreveport plant on December 31, 1975. Respondent's unit on January 1 and 5, 1976, had 56 nonsupervisory employees, the same employ- ees who had been working for Mosher Steel at Shreveport on December 31, 1975. Of these 56 employees, the following may be noted. Twenty-one of Respondent's nonsupervisory employees were employees who had been striking employees at Mosher Steel Company's Shreveport plant and had returned to work before the cessation of the strike on May 12, 1975. Seven of Respondent's nonsupervi- sory employees were employees who had been striking employers at Mosher Steel's Shreveport plant and who were reinstated to their jobs between May 12 and December 31, 1975. Twenty-eight of Respondent's employ- ees on January I and 5, 1976, were employees who were either hired after the strike commenced on July 22, 1974, or had not gone out on strike. The record indicates that the number of employees who had not gone out on strike was around two. As of December 31, 1975, there were 22 unfair labor practice strikers entitled to reinstatement by Mosher Steel Company at the Shreveport plant. As of January 1 4 The records relating to employees, their clock numbers and status on Mosher Steel's payrolls, and the facts in Mosher Steel Company, 220 NLRB 336. in composite effect form the basis for the above numerical findings as to employees working on December 31, 1975, and on January I and 5, 1976. The facts. findings, and order in Mosher Steel Company, 220 NLRB 336, the evidence in this case as to certain terminations and quits, and the findings, and 5, 1976, there were 22 unfair labor practice strikers entitled to reinstatement by the Respondent. 9 Contentions, Conclusions The General Counsel contends that the Respondent was obligated to bargain with the Union because (1) under the theory of Golden State Bottling'o the Respondent was obligated as a successor to remedy Mosher's unfair labor practices relating to refusal to bargain and to the reinstatement of unfair labor practice strikers and (2) under the Burns doctrine" the Respondent was obligated to bargain as a successor because such obligation had devolved upon the "successor." The Respondent contends in effect that it is not a successor, that for there to be a successor there has to be a termination of the predecessor, that the one-plant unit was not the certified unit, that there is a question of majority status, that an employer is free as a successor to hire employees it wishes to hire, that the Respondent had an objective basis for doubt of the Union's majority status, and that the Respondent and Mosher could decide upon Mosher's remedying the unfair labor practices. Considering all of the evidence and the contentions of the parties, I am persuaded, conclude, and find that the Respondent was a successor having the obligation to remedy Mosher Steel's bargaining obligation and other unfair labor practices as they affected the Shreveport plant unit and under the circumstances, as a successor, to bargain with the Union as to the Shreveport plant complement. Under the Burns doctrine, one of the factors for consideration as to a respondent's obligation to bargain as a "successor" is whether there is a question as to majority status regarding the Union. In this case, the certified bargaining unit covered seven plants geographically sepa- rated. Normally slight increases or decreases of employees in a bargaining unit are presumed not to affect the majority status of the representative. It would appear that the presumption of majority accorded a representative as to an overall unit of plants would be a presumption of equal distribution throughout the whole unit and that the presumption would apply equally as to the individual plants involved. Absent some evidence of employee dissatisfaction or change, such presumption would con- tinue to constitute evidence of a majority status throughout the unit was well as in the separate parts of the overall unit. In the instant case, the facts reveal that 65 of 67 employees in the Shreveport plant part of the overall seven- plant unit went out on strike on July 22, 1974; 21 of such employees returned to work for Mosher prior to May 12, 1975, and 7 other of such employees returned to work before December 31, 1975. Twenty-two of such employees who were unreinstated unfair labor practice strikers and entitled to reinstatement had not been reinstated as of the time the Respondent commenced operations on January 1 facts, and order in Mosher Steel Coopany, 226 NLRB 1163, in composite effect with the records in this case, form the basis for the findings as to the 22 unreinstated strikers. io Golden State Bottling Company v. N.LR.B., 414 U.S. 168 (1973). n1 N.LR.B. v. Burns International Security Services, Inc., 406 U.S. 272 (1972). 378 FABSTEEL COMPANY OF LOUISIANA and 5, 1976. As to the unfair labor practices and obligations regarding refusal to bargain and to reinstate- ment of unfair labor practice strikers, the Respondent was clearly on notice. In addition to the above, the Respondent had employed some 28 employees who had not been strikers or who had been hired during the strike against Mosher Steel. Thus, the bargaining unit of employees consisted of 78 employees. Of such employees, 56 were actually employed and 22 of such employees had a status of entitlement to reinstatement as unfair labor practice strikers. It is clear, considering the question of presumption flowing from the January 18, 1974, certification and from the evidence of employee support for the Union by virtue of 65 out of 67 employees going on strike on July 22, 1974, the evidence that 28 of such employees were actually employed on January 1 and 5, 1976, and that 22 of such employees were unreinstated unfair labor practice strikers entitled to reinstatement, that the Union enjoyed majority status on December 17 and 31, 1975, and on January 1, 1976, and thereafter. The Respondent contends that there cannot be a successor unless the predecessor has been terminated. I reject such contention. The question as to successorship relates to a continuation of the employing enterprise and whether or not there are not substantial changes affecting the employee relationship. 2 The Respondent contends that as a successor it is free to hire the employees it wishes. In a sense this is true. However, a respondent obligated to remedy unfair labor practices of a predecessor in the process of litigation, including the reinstatement of unfair labor practice strikers, acts at its peril if it does not reinstate such unfair labor practice strikers.13 Conceivably, the Respondent might have hired a complement of employees including former Mosher Steel Company employees at Shreveport and including new employees, and the composition of such employees might not have comported to the requirements of Burns as to the tests requiring successorship findings. I do not find it necessary in this case to determine the question of the effect of the unreinstated unfair labor practice strikers upon the Burns test as to comparison of employees in the predecessor and the successor excepting as to the question of majority representation status. The Respondent in this case hired all of the working employees at the predecessor. Having done so, the only question remaining is the question of the effect of changes upon "majority" status as to representation.' As indicated above, it is clear that the Union enjoyed majority status as the collective-bargaining representative of the employees in the appropriate bargaining unit.15 12 The essence of the Respondent's argument as to termination of the predecessor is contrary to the Board's and court's Decision in Dorrance J. Benzchawel and Terrence D. Swinger, Copartners d/b/a Parknood IGA, el al., 201 NLRB 905 (1973), and Zim's Foodliner Inc., d/b/a Zim's IGA Foodliner, er al. v. N.LR.B., 495 F.2d 1131 (1974), enforcement of the Board's Parkwood lGA decision. 1' It is noted that the Board's Decision in Mosher Steel Company, 220 NLRB 336. issued on September 16, 1975, prior to the Respondent's taking over and operating the Shreveport plant. 14 Reinstatement of unfair labor practice strikers involves reinstatement of such unfair labor practice strikers, discharging if necessary such replacements as have been hired. Thus, the Respondent could have retained The Respondent contends in effect that it had an objective basis for doubting the Union's majority status in the appropriate bargaining unit. Essentially, it appears that the Respondent contends that the fragmentation of the 7 Mosher Steel unit and its purchase and operation of only I of such 7 plants, plus the unit's composition of 28 of the employees who were employed as of the beginning of the strike and of 28 new or nonstriking employees, afforded it an objective good-faith doubt as to the majority status of the Union. Considering the fact that the Shreveport plant comple- ment for the Respondent was determined as of January 1 and 5, 1976, when attorney Ramsey rejected the Union's request for bargaining, I am persuaded that the Respon- dent did not have a good-faith doubt as to the Union's majority status. Thus, it is clear that the Respondent was aware of its obligation to reinstate unfair labor practice strikers, that 28 of the 56 nonsupervisory employees working had been strikers, and that it was obligated to reinstate 22 unfair labor practice strikers. Considering this along with the clear knowledge that there had been determination of unfair labor practices by its predecessor, I find that the evidence preponderates for a finding that the Respondent did not have an objective good-faith doubt as to the Union's majority status.' s Considering all of the above, I conclude and find that, under the Burns doctrine, the Respondent had an obliga- tion on January I and 5, 1976, to bargain with the Union regarding wages, terms, and conditions of employment of employees in the appropriate bargaining unit. I conclude and find, therefore, that Respondent's refusal to bargain with the Union as to wages, terms, and conditions of employment of employees in such appropriate collective- bargaining unit constituted a refusal to bargain within the meaning of Section 8(aXS) and (1) of the Act.' 7 Considering all of the foregoing, I am also persuaded that the Respondent's obligation to remedy the refusal-to- bargain obligations of the predecessor as such affected the Shreveport plant employees warrants a finding of refusal to bargain as regards such employees. I am persuaded that essentially the same consideration of the refusal to bargain under the Burns doctrine would apply under the Golden State theory. Thus, in considering the problem of remedial obligation, the question is one of practicability in measur- ing the interests of the employees and of the employer and determining an appropriate remedy. Thus, the Respondent was faced with an obligation to remedy a refusal to bargain by a predecessor as to a seven-plant unit when Respondent had only acquired a one-plant unit. Such employees in Respondent's one-plant unit were entitled to remedy of the effects of the predecessor's refusal to bargain. It is clear the replacement employees and reinstated the unfair labor practice strikers for a total work complement of 78, or the Respondent could have terminated such replacements as hired in order to reinstate the unfair labor practice strikers in accordance with economic needs. 15 The Union would have enjoyed majority status even if some of the replacement employees had been discharged to make room for the reinstatement of unfair labor practice strikers. 16 The Respondent's failure to respond to the Union's offer for a card check re majority status is supportive of such finding under the circumstanc- es of this case. 17 Cf. Parkwood IGA. supra. 379 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Respondent was obligated to tailor its remedy of such action as regards the one-plant unit. The facts are clear that the changes involved in acquisition of the one- plant unit did not destroy the Union's majority status. Considering the Respondent's remedial obligations as to the unfair labor practices and in connection therewith the lack of a good-faith doubt as to majority status, it is clear that the Respondent was obligated to bargain with the Union on January I and 5, 1976, because its obligation to bargain was fixed by its obligation to remedy unfair labor practices. In essence, the same considerations for a bargaining obligation under the Burns theory and under the Golden State theory are required in the factual context of this case. In sum, I conclude and find that the Respondent violated Section 8(aX5) and (1) of the Act because of its admitted refusal to bargain with the Union as to the appropriate bargaining unit because of its obligation to remedy a refusal to bargain by the predeces- sor. F. The Refusal To Reinstate Unfair Labor Practice Strikers The General Counsel alleges and contends and the Respondent denies that the Respondent discriminatorily refused to reinstate 30 unreinstated unfair labor practice strikers after it commenced operations on or about January 5, 1976. The General Counsel has several theories of violative conduct. One contention is that the Respondent had an obligation to reinstate unfair labor practice strikers and did not do so. Another is that the Respondent engaged in actual discriminatory consideration of employees for hire and did not hire such alleged 30 employees because they had engaged in an unfair labor practice strike. Another contention is that the Respondent adversely considered such employees for hire on an individual basis and on a discriminatory basis because of their striking activity. As to the 30 alleged employees contended to have been discriminated against, the facts reveal that there were only 22 unreinstated unfair labor practice strikers entitled to reinstatement by the Respondent when the Respondent commenced operations on January I and 5, 1976. Such 22 unfair labor practice strikers entitled to reinstatement by the Respondent pursuant to its obligation to remedy the predecessor's unfair labor practices and to reinstate unfair labor practice strikers were as follows: George W. Brown, James Cheatham, L. D. Coleman, Herman Gilliam, Mertin Horton, Jr., Claudia V. Johnson, Larry D. McDonald, Edward C. McLean, Latham Montgomery, Herman L. Patterson, John M. Patterson, Clyde Pennywell, Joe N. Peyton, John A. Pouncy, Jr., Cleo Pratt, Robert C. Procell, Lee G. Taylor, Rickey C. Taylor, Charles H. Thomas, Rufus Walls, Roosevelt Washington, and Donald G. Woodward. The General Counsel had alleged that the Respondent had discriminatorily refused to hire eight other employees who had been unfair labor practice strikers. The facts reveal that these eight employees had (with respect to the "R Mosher Steel Company, 226 NLRB 1163. 19 See M. J. McCarthy Motor Sales Co., 147 NLRB 605 (1964), and cases cited therein. predecessor) quit, been reinstated, refused reinstatement, or were disqualified for reinstatement by conduct on the picket line during the unfair labor practice strike against the predecessor - Mosher Steel Company. Thus, in 1974 or 1975, David O. Anderson, Jerry L. Stallings, and Joseph Tuminello had all quit employment at Mosher Steel Company. Johnny L. Roberson had refused reinstatement in 1975. Employees Benny L. Harris, Charles E. Stiles, and Robert Wilkerson had engaged in misconduct during the unfair labor practice strike against Mosher Steel Company and were not entitled to reinstatement as unfair labor practice strikers.18 Employee Robert W. Jones had been reinstated and was working on January I and 5, 1976. Lee G. Taylor and Roosevelt Washington were 2 of the 22 unfair labor practice strikers entitled to reinstatement by the predecessor before December 31, 1975, and by the Respondent pursuant to its remedial obligations. The Respondent's contended reason for refusal to reinstate or hire these two, Taylor and Washington, was alleged misconduct on the picket line during the unfair labor practice strike against the predecessor. In Mosher Steel Company, supra, 1163, it was found that such employees had not engaged in disqualifying misconduct and were entitled to reinstatement and backpay. The Respondent was on notice of such unfair labor practice proceedings at the time of purchase of the Shreveport plant. The Respondent's failure of reinstatement of such employees was one of acting at its peril, and the determination has been contrary to its contentions. The facts are clear that unconditional offers to return to work were made to Mosher Steel Company on May 12, 1975, by the unfair labor practice strikers. The facts are also clear that the Board's Decision in Mosher Steel Company, 220 NLRB 336, included (a) findings that the strike from July 22, 1974, to May 12, 1975, was an unfair labor practice strike, and (b) an order relating to reinstate- ment and backpay for unfair labor practice strikers, including the 22 unreinstated unfair labor practice strikers referred to herein. Said Board Decision issued on Septem- ber 16, 1975. The facts are clear that the Respondent was aware of the pending unfair labor practice cases. The Respondent contends in effect that agreements were made by it with Mosher Steel Company whereby question of remedy concerning reinstatement of unfair labor practice strikers would be taken care of by actions by Mosher Steel. Further evidence was offered and received to the effect that, in 1976, Mosher Steel offered certain of the unreinstated unfair labor practice strikers jobs at other Mosher Steel plants, with moving expenses. Certain of such employees accepted such reinstatement but advised the Respondent, Fabsteel, that they desired reinstatement at the Shreveport plant. First, parties cannot by private agreements undermine the responsibilities to comply with the National Labor Relations Act or remedial orders of the Board. Secondly, offer of jobs away from the employing enterprise which is continuing does not constitute an offer of reinstatement which effectuates the purposes of the Act.19 380 FABSTEEL COMPANY OF LOUISIANA The facts are clear that attorney Wolfe, for the Union, on December 17, 1975, reiterated a request to the Respondent for reinstatement of such unreinstated unfair labor practice strikers.20 The right of reinstatement pursuant to an adjudicatory order is a continuing one. It is clear that the Respondent was on notice of such obligation of reinstatement. As soon as the Respondent became a successor, which it did on January 1, 1976, such knowledge and obligation blended, and the failure to reinstate such unreinstated unfair labor practice strikers constituted conduct violative of Section 8(a)(3) and (1) of the Act. The General Counsel, as indicated, argued a number of theories in support of his contention of violative conduct in refusal to reinstate the unreinstated unfair labor practice strikers. One theory is that the Respondent actually considered on a discriminatory basis the selection of the employees for hire. Thus, the General Counsel contends that the Respondent discriminatorily considered and refused to reinstate the unfair labor practice strikers because of their striking activity. I am not persuaded that the facts support this contention excepting with respect to employees Taylor and Washington. The violative conduct found herein is based simply upon the inherent effect of discrimination flowing from the refusal to reinstate unfair labor practice strikers who are entitled to reinstatement and who have made offers to return to work. As to Taylor and Washington, the facts reveal that the Respondent refused to consider them for some job openings because of alleged misconduct as strikers. In Mosher Steel Company, 226 NLRB 1163, it was found that Taylor and Washington had not engaged in disqualifying misconduct during the strike. Under such circumstances, the Respondent's conduct in refusing to consider Taylor and Washington for employment constituted conduct violative of Section 8(aX3XI) of the Act.2' The General Counsel also contended that the Respon- dent discriminatorily considered the unreinstated strikers for job openings after it commenced operation on January I and 5, 1976. Excepting for the fact that the unreinstated unfair labor practice strikers were entitled to reinstatement, I do not find that the evidence presented reveals discrimi- nation as to the selection of employees for job openings. The reasons given for the individual selection of new employees appeared plausible. In sum, I conclude and find that the Respondent's failure and refusal to reinstate on January I, 1976, the 22 unreinstated unfair labor practice strikers constituted conduct violative of Section 8(a)3) and (I) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and 20 Evidence of conversation between Wimberly and Thurman was introduced relating to offer to return to work in late December 1975 and early January 1976. I found Thurman to appear the more credible witness and credit his version of facts over Wimberly's. 21 Mosher Steel Componvy, 226 NLRB 1163; N.L.R.B. v. Burnup & Sims, Inc., 379 U.S. 21 (1964). commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that the Respon- dent cease and desist therefrom and take certain affirma- tive action to effectuate the policies of the Act. The Respondent's refusal to recognize and bargain with the Union in violation of Section 8(aXS5) and (1) of the Act shall be remedied by an order requiring it to bargain, upon request, with the Union, as regards wages, hours, terms, and working conditions of employment of the employees in the appropriate single-plant unit found herein, and to embody any understanding reached in a signed agreement. The Respondent's failure and refusal to reinstate the 22 unreinstated unfair labor practice strikers, in violation of Section 8(aX3) and (1) of the Act, shall be remedied by an order requiring reinstatement and backpay to the 22 referred-to unreinstated unfair labor practice strikers, excepting for Patterson and Walls who have now been reinstated, and as to Patterson and Walls, requiring that they receive backpay from January 1, 1976, to date of reinstatement.22 Backpay due to the discriminatees in this proceeding shall be computed on a quarterly basis as prescribed in F. W. Woolworth Cormpany, 90 NLRB 289 (1950), with 6 per- cent interest thereon in accordance with Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Because of the character of the unfair labor practices herein found, the recommended Order will provide that the Respondent cease and desist from in any other manner interfering with, restraining, and coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Fabsteel Company of Louisiana, the Respon- dent, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and is a successor employer to the Mosher Steel Company as regards the Shreveport plant employees who formerly worked for Mosher Steel Company at Shreveport, Louisi- ana. 2. United Steelworkers of America, AFL-CIO, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, includ- ing leadmen, truckdrivers, janitors, and all plant clericals employed at Respondent's Shreveport, Louisiana, plant, excluding guards, watchmen, and supervisors as defined in the Act, constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. 22 The question of Respondent's backpay liability for the time prior to January I, 1976, is not presented and apparently left for resolution in the compliance stage of Mosher Steel Company, 220 NLRB 336. 381 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. At all times since January 1, 1976, and continuing to date, the Union has been the representative for the purposes of collective bargaining of the employees of the unit described above, and, by virtue of Section 9(a) of the Act, has been, and is now, the exclusive representative of all the employees in said unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment. 5. The Respondent, since on or about January 1, 1976, and at all times thereafter, has refused and continues to refuse to recognize and bargain with the Union as the exclusive collective-bargaining representative of all the employees in the unit described above with respect to wages, hours, and working conditions and other terms and conditions of employment for the employees in said unit in violation of Section 8(a)(5) and (I) of the Act. 6. The Respondent, on or about January I, 1976, discriminated against unreinstated unfair labor practice strikers by refusing to reinstate such unfair labor practice strikers in violation of Section 8(a)(3) and (1) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 23 The Respondent, the Fabsteel Company of Louisiana, Shreveport, Louisiana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to reinstate or otherwise discriminating against employees in regard to hire or tenure of employ- ment, or any term or condition of employment because of their union or protected concerted activities, including their engaging in an unfair labor practice strike, except to the extent permitted by the proviso to Section 8(a)(3) of the Act. (b) Refusing to recognize or bargain with the Union as exclusive collective-bargaining representative of all the employees in the appropriate collective-bargaining unit set out below as to wages, hours, terms, and conditions of employment of such employees. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act, except to the extent permitted by the proviso to Section 8(a)(3) of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to the employees named below, excepting for Walls and John M. Patterson, immediate and full reinstate- ment to the former position held by each or, if such 23 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. position is no longer existing, to a substantially equivalent position, without prejudice to their seniority or other rights previously enjoyed, and make whole each of the employees named below, including Walls and John M. Patterson, for any loss of pay or other benefits suffered as a result of the failure to reinstate such unfair labor practice strikers on January 1, 1976, in the manner described above in the section entitled "The Remedy." George W. Brown James Cheatham L. D. Coleman Herman Gilliam Mertin Horton, Jr. Claudia V. Johnson Larry D. McDonald Edward C. McLean Latham Montgomery Herman L. Patterson John M. Patterson Clyde Pennywell Joe N. Peyton John A. Pouncy, Jr. Cleo Pratt Robert C. Procell Lee G. Taylor Rickey C. Taylor Charles H. Thomas Rufus Walls Roosevelt Washington Donald G. Woodward (b) 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. (c) Upon request, bargain collectively with United Steelworkers of America, AFL-CIO, as the exclusive bargaining representative of the employees in the appropri- ate collective-bargaining unit and, if an understanding is reached, embody such understanding in a signed agree- ment. The appropriate collective-bargaining unit is: All production and maintenance employees, including leadmen, truckdrivers, janitors and plant clericals employed at Respondent's Shreveport, Louisiana, plant, excluding guards, watchmen, and supervisors as defined in the Act. (d) Post at the Respondent's plant at Shreveport, Louisiana, copies of the attached notice marked "Appen- dix." 24 Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly signed by Respondent's representatives, shall be posted by it immedi- ately upon receipt thereof, and be maintained by Respon- dent 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. (e) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 24 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." 382