Frank E. Nash Fence Co.

FRANK E. NASH FENCE COMPANY Frank E. Nash d/b/a Frank E. Nash Fence Company and Shopmen's Local Union No. 455, International Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO. Case 2-CA-14236 May 14, 1979 DECISION AND ORDER By CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On November 29, 1976, Administrative Law Judge Morton D. Friedman issued the attached Decision in this proceeding. On December 21. 1976, Respondent filed exceptions to the Decision of the Administrative Law Judge. On January 17, 1977, the General Coun- sel filed a motion to strike the exceptions of Respon- dent, submitting, in substance, that Respondent's ex- ceptions were materially defective; that Respondent failed to serve a copy promptly on the General Coun- sel as required by Section 102.460j) of the Board's Rules and Regulations; and, therefore, that the ex- ceptions should be stricken from the record. On Janu- ary 24, 1977, Respondent filed a reply to the General Counsel's motion conceding that it had not served the General Counsel but arguing that it was not required to do so by the Board's Rules: Respondent requested that the motion be denied. On January 27. 1977. the Board, by Order of the Executive Secretary. granted the General Counsel's motion, ordered that Respon- dent's exceptions be stricken, and affirmed the Deci- sion of the Administrative Law Judge. On January 27, 1978, a judge of the United States Court of Ap- peals for the Second Circuit granted the General Counsel's motion to withdraw application for en- forcement. 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 has decided to affirm the rulings, findings, and conclu- sions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. m Respondent alleges. among other things. that counsel for he General Counsel has hounded and persecuted Frank E. Nash: has a "secret connec- tion with the Union": has "withheld the truth about the respondent": has "distorted the facts and obstructed justice": has "gone out of his a) to prosecute this case:" and has "knowingy and deceitfull oserstepped his authorityi' Respondent has offered nothing which would in an) way serve to substantiate the charges it has made, and our eamination of the record evidence convinces us that these charges are totally without substance. Ac- cordingly. we reject them. AMENDIDI RMI DY In his "Remedy" the Administrative l.aw J udg: in- advertently states that the strikers accrued thie rihlts of unfair labor practice strikers on Jul \i 1 197. In fact, the strike became an unfair labor practice sirike on October 22, 1975. Therefore. Respondent will he ordered. upon application, to offer those striking em- ployees reinstatement to their frmer or substanlalll ) equivalent positions, without prejudice to their se- niority or other rights and privileges previousli, en- joy'ed, as follows: I. Striking employees whose jobs were not filled hby permanent placements on or betfore October 21. 1975, are, upon application, to be offered immediate rein- statement, dismissing persons hired on or after dhat date, if necessary, to make room for them. 2. Striking employees whose jobs were filled hb permanent replacements on or before October 21. 1975, are, upon application, to be offered reinstate- ment upon departure of their replacements. In the event that Respondent does not reinstate the striking employees in the manner set forth above within 5 days from the date reinstatement is re- quested, 2 backpay shall commence \N ith interest in ac- cordance with F. 1'. Woo/worih (Compantl. 9() N IRB 289 (1950). and Florida Steel Corporation. 231 N .RB 651 (1977)?) from the date of application. ORDER Pursuant to Section I)(c) of' the National abhor Relations Act. as amended, the National Labor Rela- tions Board adopts as it ()rder the recommended Or- der of the Administrative Law Judge. as modified e- low, and hereby orders that the Respondent, Frank E. Nash. d/b/a Frank E. Nash Fence Company. Mount Vernon, New York, its officers. agents. succes- sors, and assigns. shall take the action set forth in Ihe said recommended Order, as so modified: I. Substitute the following for paragraph 2(b): "(b) Upon application. reinstate the unfair labor practice strikers and make them whole for any loss of earnings that the) may have incurred in the maniner 2 While Chairman Fanning and Member Jenkins recognie liall he ic ile allowing an emplo)er 5 days to reinstae strikers s crrclt Board i.,si. tie nonetheless adhere to their posiltin stated in Drug Par A ,gc Cnipl',, 1:.i, 228 NLRB 108. 1 19 (1977). Sec als o 0 d F It/i,c, Ptrtdu~ci ( ,tni, .. ! 9 NLRB 1013, In. 3 1978), and 'iop r! ,r . Shiplding i,in/ DO D nr,. C rmpontv. 236 NLRB 1637 fn 3 (1978) See. genera;ll>. Iri Pthimg thr,wa (,. 138 N RB 716 (1962 242 NLRB No. 42 DE('ISIONS OF NATIONAL LABOR RELATIONS BOAR[) set forth in the section of this D)ecision entitled 'The Remedy.' " DECI'lSION STAI E MENI O 1L CASI MORTON D. FRIEDI)MAN, Administrative Law Judge: This case was heard on September 13, 1976. at New York City, upon a complaint dated May 27, 1976, which complaint was based upon a charge filed on April 22, 1976, by Shop- men's Local Union No. 455, International Association of Bridge, Structural and Ornamental Ironworkers, AFL CIO, herein called the Union. The complaint alleges, in substance, that Respondent, Frank E. Nash, d/b/a by Frank E. Nash Fence Company, herein called Respondent has refused and is refusing to meet and bargain with the Union, and that a strike of Respondent's employees has been prolonged by the aforesaid unfair labor practices and has become an unfair labor practice strike: that all of the foregoing constitute violations of Section 8(a)(5) and ( I ) of the National Labor Relations Act, herein called the Act. Respondent's answer denies the Board's jurisdiction over both Respondent and the subject matter and denies the commission of any unfair labor practices. Although Re- spondent filed an answer to the complaint, he failed to ap- pear at the hearing either in person or through counsel. Counsel for Respondent notified counsel for the General Counsel, in writing, that he would not appear, not only because the Board had no jurisdiction over either Respon- dent or the subject matter of this proceeding, but also be- cause Respondent has discontinued that part of his business which required the employment of members of the Union. Upon my observation of the witnesses, and upon the en- tire record in the case, including the oral summarization of counsel for the General Counsel, I make the following: FINDIN(iS OF FA('I spondent performed, during the aforesaid period and at earlier times, fencing construction work as a subcontractor and as a prime contractor on construction sites in the State of Connecticut as well as in the State of New York. In addition. Respondent performed subcontract work erecting fences for Rossi ('onstruction CompanV (the enclosing of a baseball field and tennis court), and similar work for Labri- ola Company. (the enclosing of tennis courts). Respondent also erected fences for Consolidated Edison Company, Bell Telephone Company. and the Cities of Yonkers and Mount Vernon, New York. Therefore. it is determined from the foregoing that Respondent's business is not a retail husi- ness, and that the Board's jurisdictional standard for nonre- tail businesses is thereby satisfied by the $50.000 of supplies and materials purchased by Respondent from outside the State of New York during the representative period. In addition. Respondent's failure to supply the records required by the subpena issued by counsel for the General Counsel for the purpose of determining jurisdiction permits an inference that the Board can assert jurisdiction over Re- spondent, inasmuch as the Board does have legal jurisdic- tion by reason of the fact that such legal jurisdiction is proved by Respondent's performing work in States other than the State of New York. The establishment by the Board of jurisdictional standards in no way precludes the Board from asserting its statutory authority in a case such as the instant one where legal jurisdiction is proven, and it will effectuate the policies of the Act to assert such jurisdic- tion.' Accordingly, I find and conclude that Respondent is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 1I. HIll iEABOR ()R(ANIZAHI )N IN¢)I.OLVED It is admitted, and I find, that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act. III. Ie UNFAIR ABO(R PRA(II(IS I. THE BUSINESS OF RESPONDENT Respondent has been engaged in, and is possibly, as here- inafter related, still engaging in the business of furnishing fencing material and the construction and erecting of fences, maintaining his plant and principal place of busi- ness in the city of Mount Vernon, New York. As noted above, Respondent's answer denies jurisdiction. At the hearing herein, counsel for the General Counsel noted for the record that a subpena had been issued for Respondent's books and records, but that the Respondent had not only failed to appear at the hearing but also had failed to respond to the said subpena. The complaint al- leges, and Respondent admits in his answer, that during the 12-month period immediately preceding the issuance of the complaint herein, a representative period, Respondent pur- chased and caused to be transported and delivered to its plant and facility at Mount Vernon, New York, fencing supplies, tools, and other goods and materials of a value in excess of $50,000 directly from suppliers located in States other than the State of New York. At the hearing Respon- dent's employee, David Allen, credibly testified that Re- A. The rFacts The Union and Respondent have had a bargaining rela- tionship since at least 1958, during which time the Union has been and is the collective-bargaining representative of all production employees, helpers, and leadmen employed by Respondent at its Mount Vernon, New York, plant, ex- cluding all other employees, salesmen, foremen, and super- visors as defined in Section 2(11) of the Act. I find that the foregoing consitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. Over the period of years since 1958, Respondent and the Union, as exclusive bargaining representative, have negoti- ated successive collective-bargaining agreements covering wages, hours, and other terms and conditions of employ- ment for the employees in the above-described unit. The most recent of such collective-bargaining agreements ex- I Tropicana Products. Inc., 122 NLRB 121. 123 (1958): Quailr Mtehl Inc., e al. 194 NLRB 1035-38 (19721 234 E RANK . NASH tI N(E ()OM'ANY pired on June 30(). 1975. Approximilatel 2 months het're tlhe expiration date, John Sleilnhalser, the I nioln's business agent. who has been assigned to service the emploNces in Respondent's shop or approxilmatelN 6 years. attempted to arrive at a mutuall convenient da fior the purposes of negotiating a renewal of tile then expiring contract. he first contact W;as made hs Steinhlaulser tdirectls to Nash in the earlx part of Ma 1'J75 h\ ai visit hb Steinlhauser to Nash at the latter's oftlice. At that time Nash referred Stein- hauser to the Respondent's counsel, (iar J1. urs. ho maintained his law oflice in Mount Vernon. New York. According to the credited and uncontra\erted testimon of Steinhaluser. lFurs referrcd StehilIuser h;ack to Nash: and thereafter some 1() to I5 times between Max I and unc 26. Nash made attempts to set up a negotiating meeting be- tween himself. urs, and Nash. hut to use Steinh;auser's words, he was passed "like a hall. back and iforth herween them." Finalls, a meeting was set up or June 30(). the last effective date of the then expiring hargaining agreement. The meeting was held as scheduled at Furs's oflice. Pre- sent for Respondent were t'ur\ and Nash and ior the Ilnion Steinha;ser and the cimplo ees' negotiating colmmit- tee. he meting , as unproducti\e. Respondent offlred onl a renea;ll of the expiring agrcement \xith no increase in wages or fringe benefits. The union representatitie re- quested at least some additional contribhution to the s, elfire and pension und due to the inflation. ovever. Respon- dent refused to move rom his position. Ihereupon Steinm- hauser, on behalf of the Ulnion. offered to negotiate during business hours. Saturdas, Sunda,s. and holidass. it' neces- sary. Respondent adam;lntl' refused to meet at ailn time other than what Vwas convenient for Fur, and Nash. The next morning, Jul I. Respondent's emploNees slho were members of' the I nion met with Steinhauser bef'ore commencing work at Respondent's premises: and a strike vote was taken. resulting in Respondent's emplo ees going out on strike. Thereatfter. approximltalel II mncetings over the next several months were held between the Ilnion's rep- resentatives and Respondent's representatives Nash and Fur!. On August 6, at a meeting in ur's office. Respon- dent offered a 6 percent package consering all items. I he Union countered hb lowering its demands to a; 10 percent package a reduction of 50 percent from its otrmer position. Respondent rejected this offer. The following morning. Steinhauser b telephone. requested of Fury a further ap- pointment. Fury replied that the Iinion ould haxe to , ai until September inasmuch as Fury was going n vacation until that time and Furs would not permit Respondent's representatives to meet with Nash unless ur\ as present. Therefore. the next meeting was ot held until Furs's return from vacation on September 4. At that ime Respon- dent withdrew and rescinded all of its previous offers and reinstated its original position submitted at the June 30 meeting, which was merels an offer to renev the expiring contract without changes. After the September 4 meeting, two more meetings were held, one on September 30 and one on October 7. At nei- ther meeting was an progress made. After the Octoher 7 meeting. Respondent. either b ' Furs or bs Nash has re- fused consistently to respond to the nion's request for fur- ther meetings. As a result of' this ftilure to respond. Stein- hauser requested of the New York Stlate Mediation Ser ice that a mediator he assigned to attempt to get the parties together. ilo\Ae er. after 2 weeks of effort on his part, the medi;ator notitied Steinhauser that Respondent ould not meet rith the U nion. In addition to all t the oregoing. at one oft the meetings held in approximatels the middle of Jul\ 1975. Respondent stated latl\ that it could not afford an\ increase in wages or fringe benefits inasmuch as Respondent \\ as losing mone's and was roke. Steinhauser then requested that alln account- aint selected h the Ulnion he permitted to examine Respon- dent's hooks in order to determine hether this claim ,Aas in ict. \,,ell founded. I-ur immediatels beca me allgr\ and reflused permission for ex.aminat;ion of Respondent's hooks. In conniection therewith, although in tile past Respondent had often told nion Representative Steinhauser thait the Ilnion as putting Respondent out of business with its de- mands. Respondent ne er. even during the 1975 meetings. stated f;latl that Respondent was definitels going out olf the ftencing construction business. However. sometime after the last meeting held on October 7 during one of the telephone calls to urs hb Steinhauser. duriulg 'hich the ltter ' as attemplting to arrange urthr rther eetings. Fiur\ intiorined Steinhlluser l hal "Nash had had it, ald lie i s nlo\ phasing out. Ilo ever. since thlt date Steinlhaluser and Respondent's emplosee. D)avid Allen. have often passed Respondent's premises aid plant in Mount Vernon and have obser ed large stockpiles t tncing mIateria such s feticing \sire, piping. posts. luimber. wooden teilcilg. and other materials used in the construetionl of fences in Respondent's plant sard. I hese tockpiles halve disappeared and nev stockpiles have appeared. all oft hich would indicate that Respon- dent is still oper;ting. Nevertheless. hb letter to counsel for the (ieneral ( ounsel dated September 17, 1976. attornes Flur, sta ted thl t Respondent is no longer in the fence con- structlion bhusiness, aid is. in fact, seeking t sell the plant and good \ill o the business. Regarding the phaling out going otit ot business. or pos- sible sale of Rcpondcnt's business In ahbout N ovenmer or )ecenlhber 1]975. Sllluser asked lur ot1l tile telephone sornettie n Jil\ 197 t bargain aout the efiects of te so- cillied 'pllasiing out." Fur stated that he oulid get back 1at Steinhauser but nce er lid. Steinhauser also had asked Nash to bargain \ith reigard to this so-called "phasing out." bilut Nash had merceli reterred Steinhalluser back to ur . Vith regard to the material stockpiles obsers ed bhs Steinihauser and Allen in Respondenit's ard since June 3() 1975, Allen testified credibl\ that betore the strike and the v; lkout bh Respondent's enmplosees ho are members of the niion. onl,, approximatels 25 percent of Respondenit's t otal husi- ness consisted of the selling of fencing materials. hlo, es er. approximatel ! 75 percent of Respondent's business con- sisted of the construction (of feences. It i therefore reason- able to ilter that the large stockpiles of ftincing material observed since the strike began and tip to the date of the hearing herein hase been maintained for the purpose of the coIlstruiction of' feices hb Respondenti at least to some ex- tent. B. ( inicludiiig Fitlmys The Board. ith court approval. has long held that it is indic;ati\e f a iolation ft' had l!ith hen anll emploser fails 235 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to respond to a bargaining representative's repeated re- quests for bargaining meetings relative to negotiations for contract. Section 8(d) of the Act defines the duty to bargain, in part, as an obligation of emplovers and employees' repre- sentatives to meet at reasonable times. Accordingly, the Board has upon occasions too numerous to cite herein, held that undue delays in replying to requests for bargaining meetings constituted violations of the foregoing obligation. The refusal and delays on the part of Respondent to set up appointments during the month of May until the last week of June 1975. as set forth above, constitute background for a finding of later violations of Section 8(a)(5) and ( I) of the Act. In addition, the rescinding of all prior offers by Respon- dent's representatives at the September 4 meeting consti- tuted evidence that Respondent was not bargaining in good faith and had no intention of ever reaching an agreement with the Union. Furthermore, the failure and refusal of Re- spondent to permit examination of its books after it claimed that Respondent was losing money, was broke, and could not afford to meet any of the Union's demands constitutes further indication of' lack of good faith on the part of Re- spondent. 2 In light of all of the foregoing, Respondent's failure and refusal since October 22, 1975, despite repeated requests of the Union to meet and bargain, and the expression by Re- spondent that it was no longer willing to meet with the Union. constitute violations of Section 8(a)(5) and ( I ) of the Act. By reason of all the foregoing, it is concluded, and I find. that the strike which began on July I. 1975. even if only economic at the outset, was converted into an unfair labor practice strike by the activity of Respondent, here found to have been violative of Section 8(a)(5) and (I) of the Act. and the prolongation of such strike was a direct result of such unfair labor practices. Accordingly. I find and conclude that the activities of Respondent hereto set forth constitute violations of Section 8(a)(5) and (1) of the Act which would require the usual remedy. IV. 1HtF tiFti( I (OF Iltt Ni-AIR ABO()R PRA( II(TS UlPON ( ()OMM.UR(I The activities of Respondent. described in section I. above, occurring in connection with the unfair labor prac- tices above, have a close. intimate, and substantial relation- ship to trade. traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. CONCI USItINS 0I Lw,. I. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of' the Act. 2 I do not find that the original May and June 1975 delays in meeting for negotiations, the refusal to permit the Union's examination of Respondent's hooks, or the rescinding bh) Respondent of his offers at the September 4 meeting Ito be violative in and of themselves because these mailers occurred more than 6 months before the filing of the charge herein on April 22. 1976: but I consider them merely as background to Respondent's predisposition not to meet and bargain in good faith as required by Sec. 8(d) of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. All production employees, helpers, and leadmen em- ployed by Respondent at its Mount Vernon, New York. plant, excluding all other employees, salesmen, guards, and supervisors as defined in the Act. constitute a unit appropri- ate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Union is the exclusive collective-bargaining rep- resentative of Respondent's employees in the unit described above fbr the purposes of collective bargaining with regard to wages, hours, and other terms and conditions of employ- ment. 5. By failing and refusing to meet at reasonable times upon the request of the Union on and after October 22. 1975. Respondent has violated and is violating Section 8(a)(5) and (1) of the Act. 6. The strike which began on July I. 1975, and which was prolonged by Respondent's unfair labor practices. is an unfair labor practice strike, and Respondent's employees who went out on strike and continue to strike were and are unfair labor practice strikers. Till RtnlM )Y It having been found. as set forth above, that Respondent has engaged in certain unfair labor practices. it will be rec- ommended that it cease and desist therefrom and take cer- tain affirmative action, set forth below. designed to effectu- ate the policies of the Act. It having been found that Respondent has failed and re- fused to bargain with the Union in good faith as required by Section 8(a)( ) and Section 8(d) of the Act, it will be ordered that Respondent cease and desist therefrom and bargain with the Union at reasonable times at the Union's request. Inasmuch as Respondent's answer raises the issue of whether Respondent has phased out and discontinued the fence construction portion of his business, in the event that it is determined that this allegation of Respondent's answer is in fact true, it will be ordered. as an alternative. that Respondent bargain with the Union with respect to the ef- fects of the alleged phase out and discontinuance. It having been found that the strikers who went out on strike on July I, 1975. and thereafter are unfair labor prac- tice strikers, it will be recommended that Respondent offer them immediate and full reinstatement to their former or substantially equivalent positions upon unconditional ap- plication by them for reinstatement, dismissing if necessary any persons hired on or after July I. 1975. In this regard. Respondent shall make whole each of the said strikers for any loss of earnings resulting from the refusal to reinstate any applying striker who is refused reinstatement within 5 days after the said striker's unconditional application for reinstatement. the loss of earnings to be computed on a quarterly basis in the manner described by the Board in F. W. Woolworth Comnpany 90 NLRB 289 (1950) and sis Plumbing & Heating Co.. 138 NLRB 716 (1962). In the event that Respondent has actually phased out and discon- tinued the fence construction portion of his business, it will be ordered that Respondent place the aforesaid unfair labor 236 FRANK E. NASH FENCE COMPANY strikers who express their desire to be reinstated on a pref- erential hiring list so that in the event Respondent at any time in the reasonable future decides to reinstate the fence construction aspect of its business, the aforesaid strikers shall become the first hired in accordance with the seniority that each of the said strikers enjoyed at the time the strike began on July 1, 1975. On the basis of the foregoing findings of fact and conclu- sions of law, upon the entire record, and pursuant to Sec- tion 10(b) of the Act, I hereby issue the following recom- mended:' ORDER The Respondent, Frank E. Nash, d/b/a Frank E. Nash Fence Company, Mount Vernon, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain at reasonable times, upon re- quest, with Shopmen's Local Union 455, International As- sociation of Bridge, Structural and Ornamental Ironwork- ers, AFL-CIO, with regard to wages, hours, and other working conditions of its employees in the unit herein de- scribed below: All production employees, helpers and leadmen, em- ployed at the Respondent's plant in Mount Vernon. New York, excluding all other employees, salesmen, guards, watchmen, and supervisors as defined in Sec- tion 2( 1) of the Act. In the event that Respondent has phased out and discon- tinued the fence construction division of its business, it is ordered that Respondent shall bargain with the aforesaid labor organization on behalf of the employees in the afore- said unit with regard to the effect of the phasing out and discontinuance of the fence construction division of Re- spondent's business. (b) Refusing to meet and bargain with the aforesaid Union with regard to any possible phasing out or discon- tinuance of the fence construction division of Respondent's business. (c) In any other manner interfering with, restraining, or coercing his employees in the exercise of their rights to form, join, assist, or be represented by Shopmen's Local Union 455, International Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO, or any other la- bor organization, to bargain collectively through represen- tatives of their own choosing, or to engage in other con- certed activity for the purpose of collective bargaining or mutual aid or protection, or to refrain from any or all such activity except that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment as authorized under Section 8(a)(3) of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: 3In 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. (a) Upon request, bargain collectively with Shopmen's Local Union 455, International Association of Bridge. Structural and Ornamental Ironworkers, AFL-CIO, as ex- clusive bargaining representative of Respondent's employ- ees and the unit found appropriate above, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached with the aforesaid Union, embody such under- standing in a written agreement with the Union. In the event that Respondent has phased out, is phasing out, has discontinued, or is discontinuing the fence construction di- vision of its business, upon request, bargain collectively with the aforesaid Union with regard to the effects of the said phasing or discontinuance of the fence construction division of its business. (b) Offer full reinstatement to all strikers who went out on strike on July 1, 1975, or thereafter, within 5 days after said strikers make unconditional offer to return to work and make each striker whole for any failure to reinstate said striker for any loss suffered by said striker by Respondent's failure to reinstate the said strikers within the time limited for such reinstatement in the manner set forth in the por- tion of this Decision entitled "The Remedy." In the event that Respondent has phased out or discontinued the fence construction division of its business, Respondent shall place those strikers who desire to return to work and make an unconditional offer thereof as aforesaid, upon a preferential hiring list for rehiring by Respondent in the event that Re- spondent at an)' time reestablishes the fence construction division of its business. (c) Post at its plant at Mount Vernon, New York. at places where notices to employees are customarily posted, copies of said notice attached hereto marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by Respon- dent or his representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in conspicu- ous 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, de- faced, or covered by an) other material. (d) Notify the Regional Director for Region 2, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. ' In the event that this 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 WE WILL NOT refuse to bargain in good faith with Shopmen's Local Union No. 455, International Associ- 237 I)I('ISIONS O() NAI IONAL, LABOR RIl.AI IONS BOARD ation of Bridge. Structural and Ornamental Ironwork- ers. AIl. ('10. W'- Witl NOI in any other manner interfere with. restrain, or coerce our employees in the exercise of' their right to form, join, or assist or be represented hby Shopmen's Local Union No. 455, International Associ- ation of Bridge. Structural and Ornamental Ironwork- ers AFL (10. Wl will , upon request. bargain collectively with Shopmen's Local Union No. 455. International Associ- ation of Bridge. Structural and Ornamental Ironwork- ers. AlFI C10. as the exclusive bargaining representa- tive of our employees with respect to rates of pay, wages. hours of employment, and other terms and con- ditions of' employment, and if an understanding is reached with the said Union embody such under- standing in a signed agreement. The unit of our em- ployees for whom AWME Wti.l negotiate with the afore- said Union is as follows: All production employees, helpers and leadmen em- ployed at our Mount Vernon. New York. plant ex- cluding all salesmen, all other employees guards. watchmen, and supervisors as defined in Section 2(11) of the National Labor Relations Act. In connection with the aforesaid request to bargain and offer to bargain with the aforesaid Union, in the event that our fence construction division is phased out or closed down. \:\i vu iL bargain with the aloresaid Union with re- gard to the eflects of the said phasing out or closing dow n or discontinuance of the fence construction divi- sion of our business. Wi': 1 i1 reinstate all strikers who notify us that they unconditionally ofler to return to work within 5 days after we receive uch unconditional offer and '1 ti lI give to such strikers who make such offer and who we ftil to reinstate within the said 5 days, ull comipensation for each day beyond 5 days that we ftil to reinstate them. urther, in order to reinstate them to their iformer or equisalent position, \ II I . if ncces- sarp, discharge individuals who have replaced the said strikers. In the event that we have alread phased out or discontinued the lence construction division of our business. xk i II place all of the said strikers, who make unconditional ofer for reinstatment. upon a preerential hiring list so that in the event we reinstate the ence construction division of our business at any time in the future, the said strikers shall be given pref- erence in hiring in order of their seniority. All our employees are free to become or remain r re- frain from becoming or remaining members of the aforesaid l nion except to the extent that this right may be affected h) an agreement in conformil with Section 8(a)(3) of the National I.abor Relations Act, as amended. :FRANK i.. NASt I)/B/A FKRANK .. NASHI [IlN( : C(O MPANY 218