Barbers Iron Foundry

National Labor Relations Board - Board Decisions

Jan 8, 1960

126 N.L.R.B. 30 (N.L.R.B. 1960)

30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ferazani was the only witness for the General Counsel who testified as to the
Company's practice in the hiring of new employees I find that his testimony does
not disclose that the Respondent maintained and enforced any illegal practice or
oral agreement with the Company in this respect, as alleged in the complaint
[Recommendations omitted from publication ]
Rudy Barber, Louis B. Barber and Robert Hamlyn , Co-Partners,
d/b/a Barbers Iron Foundry and International Molders and
Foundry Workers Union of North America, AFL-CIO. Case
No 4-CA-1649.. January 8, 1960
DECISION AND ORDER
On April 15, 1958, Trial Examiner Louis Plost issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto Thereafter, the Charging
Party and the General Counsel filed exceptions to the Intermediate
Report and briefs in support thereof
On January 12, 1959, the Board ordered that the record be re-
opened and the case be remanded for further hearing Thereafter,
the parties entered into a stipulation setting forth certain facts and
waived their rights to a supplemental Intermediate Report The
General Counsel's motion, that the Board accept the stipulation and
close the record, is hereby granted
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and briefs, the stipulation, and
the entire record in this case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner with the fol-
lowing additions and modifications.
Tim UNFAIR LABOR PRACTICE FINDINGS
1 The Trial Examiner found that the Respondent threatened its
employees in violation of Section 8 (a) (1) , temporarily locked out its
employees from November 21 to 25, 1957, in violation of Section
8(a) (3), discriminatorily discharged employee Henry Hayes in
violation of Section 8 (a) (3) , and refused to bargain collectively
with the union in violation of Section 8(a) (5) No exceptions were
taken to these findings Accordingly, we adopt them pro forma.
2 The Trial Examiner further found that the Respondent dis-
criminatorily discharged its employees in violation of Section
126 NLRB No 5
BARBERS IRON FOUNDRY 31
8(a) (3) of the Act by closing its plant on November 27, 1957. He
concluded that the plant closing was only temporary because "until
final liquidation, the closing, no matter of what duration, must be
presumed to be temporary." Nevertheless, he did not recommend
the payment of back pay to the discharged employees, contrary to
Board policy which provides for reinstatement with back pay in
cases of discriminatory, temporary lockouts.
Because of this inconsistency and the speculative finding of the
Trial Examiner with respect to the nature of the plant closing, the
Board remanded the case to the Trial Examiner in order to obtain
additional evidence in that respect. The stipulation of the parties,
entered into pursuant to that Board order, shows the following facts :
Subsequent to the plant closing, the Respondent attempted in various
ways to sell its plant. It listed the plant for sale with the South
Jersey Development Council, placed an advertisement in the Foundry
Supply Magazine, a trade journal, enlisted the services of the
Chamber of Commerce of Bridgeton, New Jersey, in its efforts, and
listed the property with David W. Blew, a real estate broker. The
stipulation further shows that the Respondent has made no pur-
chases of materials and equipment since the plant closing, and has
commenced liquidation of its assets by selling its materials and equip-
ment whenever a reasonable price was obtainable.'
These undisputed facts show a consistent pattern of action on the
part of the Respondent which supports its contention that the
Respondent on November 27, 1957, did not intend to reopen its
plant. Accordingly, we find, contrary to the Trial Examiner, that
the plant closing on November 27, 1957, was a permanent discon-
tinuance of the Respondent's business operations as of that date.
There remains the question whether such plant closing, although
permanent, was violative of Section 8(a) (3) of the Act. In this
regard, the record establishes that the Union won a Board-conducted
consent election on November 13, 1957, and 2 days later sent contract
proposals to the Respondent. In addition to refusing to bargain with
the Union, the Respondent temporarily locked out all its employees
from November 21 to 25, discriminatorily discharged Henry Hayes on
November 25, and warned the employees that if they wanted to keep
their jobs they had better make up their minds about the Union by
Wednesday, November 27. Notwithstanding the Respondent's
threats and discriminatory acts which tended to discourage their
union activity, the employees did not surrender their right to bargain
collectively by repudiating their duly chosen bargaining agent. On
November 27,1957, the plant closed permanently.
1 Subsequent to the plant closing, Partner Louis Barber died of heart failure. It is
undisputed that Louis Barber was in sole charge of the production operations and in over-
all charge of the administration and operation of the business The other two partners
had full-time jobs elsewhere, although one of them , Robert Iiamlyn, assisted in book-
keeping and other nonproduction operations.
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In rejecting the Respondent's claim that only economic considera-
tions prompted the plant closing, the Trial Examiner found that the
decision to close the plant was not made until after the advent of the
Union, and that, although various reasons may have entered into the
final decision to close the plant, there can be no doubt but that the
actual closing was discriminatorily motivated .2
Accordingly, on the basis of the entire record, we find, in agreement
with the Trial Examiner, that the Respondent discriminated in regard
to its employees' tenure of employment by closing its plant-thereby
discharging the employees-and that, because the plant closing was
the direct result of the employees' selection of the Charging Union as
their collective-bargaining representative, the Respondent's plant
closing discouraged the employees' continued membership in the
Union. As the permanent plant closing was discriminatorily moti-
vated, we find that the Respondent thereby violated Section 8(a) (3)
of the Act .3 We do not agree with our dissenting colleague, Member
Rodgers, that a discriminatory plant closing is not a violation where,
as here, it is shown to be permanent. In our opinion, the fact that the
plant closing was also permanent does not make it any 'less
discriminatory.
THE REMEDY
In his exceptions, the General Counsel concedes that immediate
reinstatement cannot be ordered under the circumstances of this case.
However, both the General Counsel and the Charging Party urge the
Board to fashion a remedy which would result in each employee
receiving monetary compensation for his loss of employment. Specifi-
cally, the General Counsel requests the Board to order the Respondent
to pay each employee "a sum of money equal to that which he normally
-would have earned as wages from the date of the discrimination, for
such period as may be found appropriate by the Board." 4
It is well settled that a discriminatorily discharged employee is
entitled to back pay from the date of the unlawful discharge to the
date upon which he is offered immediate reinstatement to his former
or substantially equivalent position. The right to back pay during the
2 The Board has found that the permanent closing of part of an employer 's operations
is a violation of Section 8(a) (3) where the motivating cause of the closing was opposition
to the union, even though economic reasons may have been an additional motive See
Missouri Transit Company, 116 NLRB 587, 590, enfd 250 F. 2d 261 (CA. 8).
3 Wallxek & Schwalm Company , 95 NLRB 1262 , enfd 198 F . 2d 477 ( CA. 3) ; A M.
Andrews Company , 112 NLRB 626, 628 , enfd. 236 F . 2d 44 (C A 9) ; see Industrial
Fabricating Inc, et at , 119 NLRB 162 ; Missouri Transit Company, supra
4 In this regard , the General Counsel suggests alternative methods of fixing back pay
He would have back pay begin with the date of the discriminatory plant closing and
terminate ( a) when the Respondent notifies its employees of the creation of a preferential
hiring list , ( b) when the employees obtain substantially equivalent employment else-
where, (e) v.uen the hip i_ n ..Lai=Y t._e pl_,nt i,_ nc.,-
discriminatory reasons, or (d) after a reasonable period fixed by the Board, for example,
6 months The Trial Examiner considered the foregoing alternatives and rejected them
as being punitive
BARBERS IRON FOUNDRY 33
foregoing period is based on the theory that, but for the unlawful
discharge, the discriminatee would have earned his normal wages dur-
ing this period.
However, where it is shown that a discriminatee would not have
earned wages during the back-pay period, or a portion thereof, the
Board will modify its back-pay order accordingly. Thus, the Board
has not ordered payment of wages for that portion of the back-pay
period during which the plant was shut down.-' Similarly, the Board
has cut off back pay on the date upon which a discriminatee refused
reinstatement 6 or was laid off, either because of a reduction in force,7
or because of participation in an unprotected strikes Finally, the
Board has declined to order back pay beyond the date of a permanent
cessation of business operations.9
In the present case, there was a temporary closing beginning on
November 21, followed by a plant reopening on November 25, and
finally, a permanent plant closing on November 27, 1957. Under all
the circumstances, we conclude that, although the discriminatees are
entitled to back pay for the period of the temporary closing, they are
not entitled to any monetary compensation for the period subsequent
to the permanent cessation of business operations on November 27,
1957.
In reaching this conclusion, we are not unmindful of the hardships
imposed upon these employees by the Respondent's decision to go out
of business rather than deal with the Union. We do not condone such
conduct, but at the same time, we do not agree with the General Coun-
sel's suggestion 10 that an employer who permanently closes his plant
and discontinues business operations should be ordered to continue
paying wages to its employees, either for a definite period of time
arbitrarily fixed by this Board (for example, 6 months), or for an
indefinite period of time, the duration of which is contingent upon
the employees obtaining substantially equivalent employment else-
where.
As the Respondent has permanently discontinued its business opera-
tions, we shall not order immediate reinstatement for the discrim-
inatees whose names appear in Appendix A attached hereto." In-
stead, we shall order the Respondent to create a preferential hiring
5 Frank P. Slater, d/b/a Acme Equipment Company, 102 NLRB 153.
0 Alexander Manufacturing Company, 110 NLRB 1457, 1459.
4 E V Prentice Maclaine Worl s. Inc, 120 NLRB 417, 418; J C Boespflug Construction.
Co , 113 NLRB 330, 336, Westinghouse Electric Corporation , 77 NLRB 1058, 1061
8 Mid-West Metallic Products Inc . 121 NLRB 1317.
9 A. If Andrews Company , 112 NLRB 626, 630, Colonial Fashions . Incorporated, 110
NLRB 1197, 1204, Reynolds Corporation, 74 NLRB 1622, Randolph Corporation, 89
NLRB 1490, 1495, Cleveland-Cliffs Iron Company, 30 NLRB 1093, 1115, enfd 133 F. 2d
295, 302 (CA. 6).
-a `co:ncte 4
Colonial Fashions , Incorporated, supra; Randolph Corporation , supra ; Cleveland-
Cliffs Iron Company, supra, footnote 10.
554461-60-vol. 126-4
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
list, notify its employees of said list, and, in the event it resumes opera-
tion of its foundry business , to offer the discriminatees immediate re-
instatement to their former or substantially equivalent positions with-
out prejudice to their seniority and other rights and privileges
previously enjoyed.
We also expressly reserve the right to modify the back-pay and re-
instatement provisions of this Decision and Order if made necessary
by a change of conditions in the future, and to make such supplements
thereto as may hereafter become necessary in order to define or clarify
their application to a specific set of circumstances not now apparent.12
ORDER
Upon the entire record in this case , and pursuant to Section 10(c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent , Rudy Barber, Louis R.
Barber, and Robert Hamlyn, Co-Partners , d/b/a Barbers Iron
Foundry, Bridgeton , New Jersey , its officers , agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Molders
and Foundry Workers Union of North America, AFL-CIO, as the ex-
clusive representative of all the employees in the appropriate unit con-
sisting of all production and maintenance employees of the Em-
ployer's Bridgeton , New Jersey , plant, excluding office clerical
employees , guards, and supervisors as defined in the Act.
(b) Threatening employees with loss of employment if they do
not renounce the Union as their collective -bargaining representative.
(c) Discouraging membership in International Molders and
Foundry Workers Union of North America, AFL-CIO, or in any
other labor organization of its employees, by discriminating in any
manner in respect to their hire or tenure of employment, or any term
or condition of employment.
(d) Discouraging membership in the above -named labor organiza-
tion or any other labor organization by discharging employees for
their union activities.
(e) In any other manner interfering with, restraining , or coercing
its employees in the exercise of the right to self-organization , to form
labor organizations , to join or assist International Molders and
Foundry Workers Union of America, AFL-CIO, or any other labor
organization , or bargain collectively through representatives of their
own choosing , and to engage in other concerted activities for the pur-
poses of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities , except to the extent that such
12Bermuda Knitwear Corporation , 120 NLRB 332.
BARBERS IRON FOUNDRY 35
right may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized in
,Section 8 (a) (3) of the Act, as modified by the Labor Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) If and when the Respondent resumes its foundry operations,
bargain collectively, upon request, with International Molders and
Foundry Workers Union of North America, AFL-CIO, as the
,exclusive representative of all employees in the appropriate unit
here found, and embody any understanding reached in a signed
agreement.
(b) Make whole those individuals whose names appear listed on
Appendix A of this Order and make whole Henry Hayes for any
loss they may have suffered by reason of the discrimination against
them in the manner set forth herein and in the section of the Inter-
mediate Report entitled "The Remedy."
(c) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social-security pay-
ment records, timecards, personnel records and reports, and all other
records necessary for determination of the amount of back pay due
under the terms of this Order.
(d) Create a preferential hiring list containing the names of
all those individuals listed in Appendix A of this Order as being
entitled to reinstatement if and when the Respondent resumes its
foundry operations, such reinstatement rights arising from the lay-
off of the listed individuals on November 27, 1957, and further, the
Respondent shall include the name of Henry Hayes in such prefer-
ential list. The Respondent shall notify the Union and all said
listed employees of the establishment of said list and its content
and shall offer all said individuals full reinstatement of their former
,or substantially equivalent positions without prejudice to their
seniority or other rights and privileges previously enjoyed if and when
the Respondent resumes its foundry operations, all as set forth in the
.section entitled "The Remedy."
(e) Inasmuch as the posting of a notice as customarily required
would result in a notice posted in a plant not operating and there-
fore be inadequate to inform affected parties, the Respondent shall
mail an exact copy of the notice attached hereto marked "Appendix
B713 to the Union and to each of the listed employees. Copies of
,said notice, to be furnished by the Regional Director for the
Fourth Region, shall, after being duly signed by an authorized
"In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative of the Respondent, be mailed immediately after
receipt thereof.
(f) Notify the Regional Director for the Fourth Region in
writing, within 10 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the Board reserves to itself the right
to modify the back-pay and reinstatement provisions of this Order,
if made necessary by circumstances not now apparent.
MEMBERS JEN KIN S and FANNING, dissenting in part:
We fully agree that the Respondent violated the Act in the man-
ner described in the main opinion. However, the remedy that our
colleagues have adopted in this case is woefully inadequate, and
we must respectfully dissent therefrom.
It has been found that the Respondent closed its plant on
November 27, 1957, and thereby discharged its employees, because
the employees selected the Charging Union as their bargaining rep-
resentative. To remedy this violation of the Act, the majority is
ordering Respondent to place the discriminatees on a preferential
hiring list and offer them work if and when it resumes operations.
It must be obvious, however, that this requirement cannot effec-
tively remedy the Respondent's illegal conduct which is so serious
in nature and extent. By its illegal action, the Respondent has
penalized its employees for exercising a right guaranteed by Fed-
eral law. The penalty which it imposed upon the employees-loss
of work and pay-was a severe one. So far as this Order is con-
cerned, the employees' plight can continue unremedied. Under Its
provisions, the Respondent is excused from all liability for the loss
of pay suffered by the employees as a result of the discrimination
against them. Manifestly, such an order does not effectuate the
policies of the Act.
If the Act has been violated, it is incumbent upon the Board to so
find. And if a violation has occurred, Section 10(c) directs the Board
to issue an order requiring the violator to cease and desist from its
unfair labor practices "and to take such affirmative action including
reinstatement of employees iyith or without back pay as will effectuate
the policies of the Act."" In performing this statutory obligation in
discrimination cases, the Board normally issues a cease-and-desist
order, requires reinstatement of the discriminatees in substantially
equivalent employment, and awards back pay to the date on which
such reinstatement is offered. Only a slight modification of the
Board's usual order is required to fit the facts of this discrimination
case. Because we are satisfied that the Respondent's business could
not be conducted without Louis Barber and thus would have been
shut down when Barber died on June 26, 1958, for nondiscriminatory
BARBERS IRON FOUNDRY 37
Treasons, we would not enter any order of reinstatement of the discrinu-
natees. However, no impediment exists to an award of back pay to
the discriminatees until such time as they secured employment substan-
tially equivalent to what was illegally taken from them, excluding
those periods when, for nondiscriminatory reasons, they would have
had no earnings, but in no event to exceed the date of Louis Barber's
death. Such an order would be in substantial accord with Board
precedent. It would bring about "a restoration of the situation, as
nearly as possible, to that which would have obtained but for the
illegal discrimination.," 14 It would not "permit an employer to profit
,by his own unlawful conduct" and would discourage the commission
of similar unfair labor practices in the future.15 By such an order,
the Board would be performing its statutory duty effectively.
The majority gives no good reason for permitting Respondent to go
scot-free insofar as the violation under discussion is concerned. They
point to the Board's practice of deleting from a back-pay order the
period when a discriminatee would not have earned wages from the
respondent. But this policy, as is manifest from the very cases cited
by our colleagues in this connection, cannot be applied to the present
case. In each of the cited cases the discriminatees lost back-pay
rights because of intervening circumstances which were not attributa-
ble to the unlawful activity of the respondent, such as a reduction-in-
force or a plant closing for legitimate business reasons. In this case,
the locked-out employees have lost wages because of the unfair labor
practice itself.
In summary, we would expand the Order entered herein by award-
ing back pay to the ciscriminatees for loss of earnings resulting from
the discrimination against them until such time as they obtained sub-
stantially equivalent employment with other employers,'6 but in no
event to exceed the date of Louis Barber's death, and, of course, apply-
ing the customary rules as to mitigation of back-pay liability.
MEMBER RODGERS, dissenting in part :
I cannot agree with my colleagues that the Respondent violated the
Act when it permanently closed down its plant and went out of busi-
ness. In this respect, I do not believe that the motivation for the
Respondent's actions is material. There is nothing contained in the
Act which limits an employer's right to go out of business at such
time and under such circumstances as he chooses, regardless of the
14 Phelps Dodge Corp v N L R B, 313 US 177, 194
15Jack Lewis and Joe Levitan, d/b/a California Footwear Company , 114 NLRB 765,
769; National Licorice Company v. N L.R B., 309 US 350, 364.
'"Pursuant to Boald practice , we would also reimburse the employees for expenses
justifiably incurred in seeking such employment.
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reasons therefor. As stated by the court of appeals in N.L.R.B. v.
New Madrid Manufacturing Company and Jones Manufacturing
Company: 17
But none of this can be taken to mean that an employer does not
have the absolute right, at all times, to permanently close and go
out of business, or to actually dispose of his business to another,
for whatever reason he may choose, whether union animosity or
anything else, and without his being thereby left subject to a
remedial liability under the Labor Management Relations Act for
such unfair labor practices as he may have committed in the en-
terprise, except up to the time that such actual and permanent
closing or true and bona fide change in ownership has occurred.
No one can be required to stay in private business, and no one
can be prevented from permanently closing or abdicatingly selling
such a business. And the Act affords no basis on which to order
a person to reinstate employees in a business which he has, with
plain finality, put out of existence, or which he has actually dis-
posed of to another, and as to which he neither in law nor in fact
possesses any power over the operations of his successor, either
of management right in general or of labor-relations control in
particular. Cf. Southport Petroleum Co. v. N.L.R.B., 315 U.S.
100, 106, 62 S. Ct. 452, 456, 86 L. Ed. 718, 726. No more, in our
opinion, can the Act be said to contain any basis to assess remedial
back-pay against such a person, beyond the date of his permanent
closing or abdicting sale of the enterprise. [Emphasis supplied.]
In view of the fact that the Respondent permanently closed its plant
and went out of business, the foregoing principles are applicable.
Accordingly, I would dismiss the complaint insofar as it relates to
the Respondent's action in that regard.
Inasmuch as I would not find that the Respondent violated the
Act when it closed down its plant, it follows that I would not issue
a remedial order with regard thereto. In this respect, I agree with
Chairman Leedom and Member Bean to the extent that they deny
back pay to the employees for any period subsequent to the permanent
closing of the plant. Moreover, for like reason, and because Louis
Barber, the partner without whom the Respondent could not have
operated, is now dead, neither would .I order the Respondent to bar-
gain. To order a partnership to bargain, which has been dissolved not
only by closing down its business but also by the death of its leading
partner, seems to me to be an exercise in futility. Nothing (in this
world) could be more futile than ordering a dead man to bargain.
17 215 F. 2d 908 , 913-914 (C.A. 8).
BARBERS IRON FOUNDRY
APPENDIX A
39
ALL EMPLOYEES OF BARBERS IRON FOUNDRY LAID OFF ON NOVEMBER 21,
1957, AND LAID OFF ON NOVEMBER 27, 1957
THE NAME OF HENRY HAYES, DISCHARGED NOVEMBER 25, 1957,
BEING INCLUDED
J. Lukas G. Strauch J. Butts
C. Seeny J. Thompson C. Washington
N. Durham Boyd Moseley B. Bennett
R. Cooney N. Brown H. Hannah
A. Ellis J. Willis D. Campbell
W. Leone W. Robinson J. Wade
A. Pierce A. Hughes L. Irmler
0. Lingo L. Williams J. MacDonald
A. Walker C. Williams G. Crawford
A. Brown E. Tucker W. Hester
J. Walker B. Crowell Henry Hayes
J. Hayes
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL, if and when we resume foundry operations, upon
request, bargain collectively with International Molders and
Foundry Workers Union of North America, AFL-CIO, as the
exclusive representative of all our employees in the unit described
below, with respect to rates of pay, wages, hours of employment,
or other conditions of employment, and if an understanding is
reached, embody such understanding in a signed agreement. The
bargaining unit is:
All production and maintenance employees in our Bridge-
ton, New Jersey, plant, excluding office clerical employees,
guards, and supervisors as defined in the Act.
WE WILL NOT threaten our employees with loss of employment
if they do not renounce the Union as their bargaining representa-
tive.
WE WILL NOT discourage membership in International Molders
and Foundry Workers Union of North America, AFL-CIO, or
any other labor organization of our employees, by discriminating
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in any manner in regard to their hire , tenure of employment, or
any term or condition of employment.
WE WILL NOT discourage membership in the above -named labor
organization or any other labor organization by discharging em-
ployees for their union activities.
WE WILL make whole the following named employees for the
discrimination practiced against them by their layoff from work
from November 21 to 25,1957:
J. Lukas G. Strauch J. Butts
C. Seeny J. Thompson C. Washington
N. Durham Boyd Moseley B. Bennett
R. Cooney N . Brown H . Hannah
A. Ellis J. Willis D. Campbell
W. Leone W. Robinson J. Wade
A. Pierce A. Hughes L. Irmler
0. Lingo L. Williams J. MacDonald
A. Walker C. Williams G. Crawford
A. Brown E. Tucker W. Hester
J. Walker B. Crowell Henry Hayes
J. Hayes
WE WILL offer the named employees immediate and full rein-
statement to their former or substantially equivalent positions
without prejudice to their seniority or other rights and privileges
if and when we resume foundry operations.
WE WILL make whole Henry Hayes for the discrimination
practiced against him by his discharge on November 25, 1957.
Henry Hayes is also included among those to be made whole for
the discrimination of November 27, 1957, in the manner provided
therefor.
AVE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to form, join, or assist any labor organization , to bargain
collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection , and to refrain from
any or all such activities , except to the extent that such right may
be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Sec-
tion 8(a) (3) of the National Labor Relations Act, as modified
by the Labor Management Reporting and Disclosure Act of 1959.
All our employees are free to become, remain , or refrain from be-
coming members of the above -named Union or any other labor organi-
zation, except to the extent that this right may be affected by an agree-
BARBERS IRON FOUNDRY 41
ment in conformity with Section 8(a) (3) of the Act, as modified
by the Labor Management Reporting and Disclosure Act of 1959.
RUDY BARBER, Louis B. BARBER, AND
ROBERT HAMLYN, CO-PARTNERS,
D/B/A BARBERS IRON FOUNDRY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
INTERMEDIATE REPORT
STATEMENT OF THE CASE
It having been charged by International Molders and Foundry Workers Union of
North America, AFL-CIO (Union) that Rudy Barber. Louis B. Barber, and Robert
Hamlyn, Co-Partners, d/b/a Barbers Iron Foundry (Respondent) have been en-
gaging in and are engaging in unfair labor practices affecting commerce, as set forth
and defined in the National Labor Relations Act, as amended, 61 Stat. 136, herein
called the Act, the General Counsel of the National Labor Relations Board (Board),
on behalf of the Board, by the Regional Director for the Fourth Region, issued a
complaint and notice of hearing, pursuant to Section 10(b) of the Act and Section
102.15 of the Board's Rules and Regulations, Series 6, as amended. The complaint
and notice of hearing were duly served.'
With respect to the unfair labor practices the complaint alleged, in substance,
that: On November 21 and 26, 1957, the Respondent refused, and at all times there-
after has refused, to bargain with the Union as the representative of certain of its
employees for whom the Union has been duly certified by the Board; Respondent
discharged and laid off certain employees and has refused to reinstate them because
they joined or assisted the Union and/or engaged in concerted activities for the
purposes of collective bargaining or other mutual aid or protection; and the Re-
spondent engaged in other conduct violative of Section 8(a)(1) of the Act.
The Respondent denied in its answer that it has engaged in any of the alleged
unfair labor practices, averred that the layoff and termination of employment was
caused by the closing of its business, and admits the allegation as to the appropriate
unit and the Board's certification thereof.
Pursuant to notice a hearing was held before Louis Plost, the duly designated
Trial Examiner, at Bridgeton, New Jersey, on February 26 and 27, 1958. The Gen-
eral Counsel, the Respondent, and the Charging Party were represented by counsel,
herein referred to in the names of their principals. The parties participated in the
hearing, and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, to introduce evidence bearing upon the issues, to argue orally,
and to file briefs and/or proposed findings of fact and conclusions of law with the
Trial Examiner. At the opening of the hearing the Trial Examiner granted unop-
posed motions by the General Counsel to amend the complaint in order to correct
an inadvertent error and to add the name of one of the Respondent's partners. Mo-
tions by the Respondent to amend the answer to properly meet the changes were
likewise granted.
At the close of the hearing the General Counsel moved to conform the pleading
to the proof with respect to names, spellings, and like matters, not substantive. The
motion was not opposed and was granted. A date was set for the filing of briefs
with the Trial Examiner No oral argument was made. Briefs have been received
from the Respondent and the General Counsel.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
'A copy of the charge filed by the Union was served on the Respondent by registered
mail dated December 3, 1957 ; a copy of the amended charge filed by the Union was served
on the Respondent by registered mail dated December 28, 1957 ; and a copy of the second
amended charge filed by the Union was served on the Respondent by registered mail
dated January 13, 1958.
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The parties are in agreement that Rudy Barber,2 Louis B. Barber, and Robert
Hamlyn, are copartners, doing business as Barbers Iron Foundry. The Respondent
herein has its principal offices and plant in Bridgeton, New Jersey, where it is en-
gaged in the manufacture and sale of soil pipe fittings. During the 12-month period
preceding the date of the occurrence of the events alleged herein, the Respondent
sold and shipped more than $50,000 worth of such fittings from its plant to cus-
tomers located outside the State of New Jersey.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated that International Molders and Foundry Workers Union of
North America, AFL-CIO, is a labor organization within the meaning of Section
2(5) of the Act. The Union admits employees of the Respondent to membership.
III. THE UNFAIR LABOR PRACTICES
1. The appropriate unit and the Union's majority therein
The parties are in agreement that all production and maintenance employees of
the Respondent, excluding office clerical employees and supervisors as defined by the
Act, constitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
Pursuant to an agreement for consent election executed by the Respondent and
the Union, a majority of the employees in the unit described above, on November 13,
1957, by a secret-ballot election conducted under the supervision of the Regional
Director of the Fourth Region of the Board in Case No. 4-RC-3471, designated and
selected the Union as their representative for the purposes of collective bargaining;
and on November 21, 1957, said Regional Director, as agent for the Board, certified
that the Union had been so designated and selected by a majority of the employees
in the unit set forth above.
The Trial Examiner therefore finds that at all times since November 13, 1957, the
Union has been the representative for the purposes of collective bargaining of all
the employees in said unit above described for the purposes of collective bargain-
ing in respect to rates of pay, wages, hours of employment, or other conditions of
employment.
2. The refusal to bargain and the discrimination in employment (8(a)(5) and (3))
The Trial Examiner believes that the facts disclosed by the record cannot be
clearly understood without some knowledge of the individuals comprising the part-
nership as shown by their testimony with respect to the parts they played in the
operation of the plant.
Rudy and Louis Barber are brothers, Hamlyn is their brother-in-law.
Louis Barber did not testify. A statement dated January 31, 1958, issued by a
local doctor stating that "Louis Barber is suffering from acute congestive heart
failure" and a second statement by the same physician dated February 24, 1958, that
Louis Barber's "physical condition is such that I have forbidden him to appear in
any Court room" were read into the record to explain Louis Barber's absence.
Rudy Barber and Hamlyn testified that Louis Barber was the only partner who
understood the management of a foundry and was capable of operating the Re-
spondent's plant.
Rudy Barber testified that his brother had been ill for some time and had been
hospitalized about Christmas 1957. He testified:
My brother had been sick for two months before that place was ever closed
down [November 27, 19571, and I have personally seen him spewing, and he
looked like the devil, and I think if it was brought up before the men that
worked out there, I think they would substantiate that, that he was a sick man
then.
Rudy Barber further testified that he operates a welding shop , and that over
a 2-year period, which included the construction of the plant in 1956, and its
operation from September 1956 to November 27, 1957, he furnished material
and services to the Respondent partnership in the amount of $10 ,430.65 , of which
2 Rudy Barber 's name Is Rudolph but he is called "Rudy" in the record.
BARBERS IRON FOUNDRY 43
$4,000 represented material furnished, the balance being labor, part of which was
"done at night after work"; that he was never reimbursed, in fact, never billed the
partnership, and that the account is not shown in the financial statement of the
Respondent introduced in evidence. Rudy Barber drew no compensation what-
ever from the Respondent. He is the principal investor in the business.
Partner Robert Hamlyn testified that he is, and at all times material herein
has been, a member of the local fire department on duty a full 40-hour week
but that in addition to his fireman's job, he worked 12 to 14 hours every day
at the Respondent's plant, including every Saturday and Sunday. He testified:
Q. (By Mr. Topol.) So, you had a full-time job, forty hours a week. Is
that correct?
A. That's correct.
Q. And you did this work in your spare time?
A. Well, if you call twelve or fourteen hours a day spare time, well, yes.
Q. Well, eight and fourteen are twenty-two. That is a hard day. Are
you telling us that you worked twenty-two hours in a given day?
A. If I told you how many hours I worked out there, that's what I worked,
and I got people that will testify to that effect, if you want.
November 21, 1957: John McAvoy, an international representative of the
Union, testified that: After the November 13 election, herein referred to, he
mailed formal contract proposals to the Respondent; about 7:15 a.m. of No-
vember 21, he received a telephone call from Louis Barber who asked him to
come to the Respondent's plant; he and Union Representative Charles Boyd
arrived at the plant about 1 p.m., and went to the plant's pattern shop where
they met Louis Barber; the pattern shop as well as the yard contained employees
who were standing around apparently not at work:
Just about that time, Rudy Barber, who I was never introduced to, came out
like a wild man, throwing his hands in the air, cursing, and running over
to us about the Union coming down there.
Rudy Barber using foul, obscene language liberally laced with curses, finally-
started complaining of the money they had already owed out, and that he
was not going to go in debt for the proposals, repeating so many times that
he would close the plant down before he would let the Union come in
there.
Barber finally stated, "I am not signing no contract." McAvoy testified that
following this the two union representatives went into the yard, being followed
shortly by Rudy Barber who offered to "lick" Boyd.
On cross-examination McAvoy testified that Rudy Barber, during the conver-
sation, stated that the Respondent was "in bad shape financially," needed to
borrow $25,000, was $73,000 in debt, and offered to let them examine the
Respondent's books.
Union Representative Charles Boyd corroborated McAvoy but went into greater
detail regarding the language used by Barber. He testified that he and McAvoy
greeted Hamlyn upon entering the pattern shop; Barber entered and McAvoy
said "we are here to see if we can't work out an agreement," and-
Now, at this point, Mr. Rudy Barber says,. "There won't be any damned
agreement in this place. Now, let's get this straight right now."
Boyd testified that having been told by some of the men standing around the
room that they had been told not to go to work-
I said to Rudy, Mr. Rudy Barber, "Why did you send the men home this
morning?"
He says "Why?" He says, "I will tell you why:
"I sent them home to give them a chance to make up their minds whether
or not they want their job or whether or not they want you guys.
"I want them here to give me the answer today. I want to know if these
fellows want their jobs or if they want to have a union , and I want to know
this today."
According to Boyd, after some further futile talk:
Mr. Rudy Barber again spoke up, and he said, "I am not discussing any-
thing; I am not giving you fellows a penny."
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rudy Barber testified that the Respondent telephoned McAvoy asking him
to come to the plant. He did not deny the testimony of two union representa-
tives. He testified:
I said, "I want a little understanding," so Mr. Boyd speaks up and says,
"These fellows are not ready to negotiate."
I says, "No," I says, "We are not ready to negotiate. We have got to
find out where we stand."
I said, "This place has lost money," and every time I mentioned the word
"money" it was, "That's your business. That doesn't concern us."
I said, "Is there anything stopping us from going out of business, selling
what stock we have, selling our machinery and stuff, and try to come out
of it,"
Mr. McAvoy and Mr. Boyd both said , "There's nothing we can do if you
want to go out of business."
I said, "That is it. We are going to close this place and sell what we can
to pay our creditors."
Rudy Barber further testified:
Q. (By the Trial Examiner.) Now, wait a minute Their testimony
then is that you answered them all through this conversation with curse
words and foul language, and disparaged the Union, calling them names, and
calling the Union names, and all that.
Do you deny that?
A. I did use curse words, but only after they would not try to give me a
civil answer to a civil question.
On redirect examination he testified:
Q. (By Mr. Salvo.) Mr. Barber, you have been asked whether or not
you used some pretty strong language in your conversations with these
Union people.
Did you use any stronger language than you ordinarily use from day
to day?
A No. I work around a rough bunch of people. I am a welder by
trade.
I do most of my work for farmers, junk yards. I talk that way every
day.
I believe I could talk better now if I could use the same tone, here.
TRIAL EXAMINER: Well, let's lust leave the explanation in the record.
Henry Hayes, employed by the Respondent as a laborer, testified that "a few
minutes before 7 o'clock" the morning of Thursday, November 21, 1957, he
and another employee standing in the yard before worktune were approached by
Rudy Barber who told them, "Boys don't do nothing"; later the employees were
called into the pattern shop by Rudy Barber who spoke to them; he could not
completely recall Barber's remarks except that-
Well, what he did say was, he done a lot of cussing. I wouldn't like to use
them kind of words, because-well, our church don't allow it, and I don't
like to use them, that's all.
and that-
No, he didn't say anything about working, no more than he did say this much
about-he said that there wasn't no more work that day.
Hayes testified that the plant did not operate on Thursday nor the following day;
on the following day he was in a group of employees who had reported and one of
them-
Albert Walker asked him why did we have to stop work while him and the
Union talked things over?
TRIAL EXAMINER: He asked that of whom?
WITNESS: Albert asked that to Mr. Lou Barber.
TRIAL EXAMINER: All right.
WITNESS: And he said I don't know of any-he said, "We will get together,"
so him and Albert, they talked and talked and I left.
The plant resumed full operation on Monday, November 25.
BARBERS IRON FOUNDRY 45
John Hayes, a molder , testified that on the morning of November 21:
That morning, when I got to work , we hadn 't worked too long before Rudy
Barber came along and told each individual molder not to make any more
molds.
At that time , no one knew what it was all about, but he said to each individual
not to make any more molds , and the shop quit working approximately forty-
five minutes.
Hayes, who is a brother of Henry Hayes, further testified that after the employees
had been assembled in the pattern shop-
Rudy Barber said that, "You fellows brought the Union into this place, and
it is up to you fellows to get it out if you still want to work," and he called
us names, curse words, he did.
The testimony of John Hayes and Henry Hayes was not denied.
Rudy Barber testified:
So, that next morning, I went out and I walked up to each man, and I says,
"Stop working . Don't make any more molds."
I went out in the yard and told them the same thing , no more work. Some
of them asked me why, so I says, "Well , we have got to get something straight-
ened out."
I says, "We don 't know what we are going to do," so in the meantime, Robert
Hamlyn called the Union officials and asked Mr. Boyd and Mr. McAvoy to
come down.
The Respondent read into the record the names of all the employees who were
denied work on November 21 and 22, and recalled on November 25. The names
are listed in Appendix A.
Conclusion as to November 21
On the entire record, the evidence considered as a whole, it is clear that the
Respondent refused on November 21, 1957, to bargain with the Union , as required
by the Act , and further that on November 21, the Respondent locked out its
employees because of their membership in the Union , the Respondent 's conduct
being a maneuver to escape negotiation with the Union by causing desertion of its
members.
The Trial Examiner finds the Respondent 's conduct , as set forth above, to be
violative of the Act , more particularly Section 8 ( a)(3) and (5) thereof.
November 25: Henry Hayes, who as found herein was locked out on November
21, returned to work November 25, at which time the entire plant resumed operations.
Hayes testified , entirely without contradiction , that shortly after beginning work
he remarked to a fellow employee , "There's lots of things around here we need we
don't get." Hayes further testified:
Rudy Barber was up on top of this winch up there which hoists the bucket up,
and he says to me, "why in the hell don ' t you go where you can get these
things?"
I says to him, I says, "Rudy ," I said, "You come on down ," I said, "We took
your cussing Thursday in the office," I said, "But you are talking to me, and
I am not going to take your cussing "
So, he come on down, sticks the pail on his arm, and walked out.3
According to Hayes , "about half an hour later " Louis Barber called him and he
walked to the pattern shop with Louis Barber, there met Hamlyn and Rudy Barber.
He further testified:
And I said to Lou , I said, "Well, what are you going to lay me off for?"
Rudy Barber said, "You are the guy that started this mess."
I said, "All of us voted for the Union , as far as that goes."
Then, I turns to Lou Barber and says, "Give me a lay-off slip so that I
can draw my unemployment."
Rudy Barber said to Lou, he said, "He don 't need no lay-off slips." He said,
"He is fired."
Later in the day, Hayes was paid off , having waited at the plant for the check.
3 The belligerent Mr Hayes is the same witness who refused to repeat Rudy Barber's
language because "our church don 't allow it"
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hayes' testimony was undenied. On the entire record the Trial Examiner finds
that Henry Hayes was discharged by the Respondent on November 25, 1957,
because of his membership in and his activities on behalf of the Union. The Trial
Examiner finds that by its discharge of Henry Hayes, the Respondent engaged in
conduct violative of the Act, more particularly Section 8(a)(3) thereof.
Other events, November 25: James L. Butts testified that he was one of those
locked out on November 21 and returned to work November 25. In the morning
of November 25, the employees were all called to the office and "after he had
gathered them in, all in the office," Hamlyn spoke to them saying: "Just a moment,"
he said, "I just want to tell you guys one thing." He said, "We are going to give
you guys to Wednesday to make up your mind to do what you want to do." Fol-
lowing this statement, Hamlyn said, "You can go to work then."
Butts was corroborated by John Hayes, who also testified that no reason for the
termination was given the employees, they were merely told "not to come to work
any more."
November 26, 1957: Union Representative McAvoy testified that on November
26 (Tuesday), he, together with Union Representative Boyd and Union International
Vice President Studenroth, again called at the plant and sometime in the afternoon
they, together with a committee of employees, met with the three partners. McAvoy
testified:
Mr. Studenroth handled the meeting, or did more talking than any one of us.
He told Rudy that these people down here had the right to join a Union, that
they had won an election held by the Government, and that they should sit down
and try to work out some kind of a contract.
Rudy said, " I don't give a God damn who comes in, who says the Union is
supposed to come in here. We are not sitting down and writing a contract
with any union."
After considerable conversation during which Studenroth attempted to explain the
Union's position and the rights of the employees-
Rudy Barber said , "If these people have any trouble, they can see me. I am
the boss. I own this place.
"The Union don't give no God damn money. I pay them. I am the boss,
and no God damn Union is coming in here and telling me how to run my
business.
"I will close it down and start this warehouse."
Mr. Studenroth again let Rudy know that these people had the right to join
a union.
Rudy said he didn't care what they joined, that be wasn't signing with nobody,
or no contract.
According to McAvoy:
Now, just as we left the shop, Rudy stated again that before the Union
would come in there, he would close the God damn doors and make a warehouse
out of it.
On cross-examination McAvoy testified that Rudy Barber had asked if the Re-
spondent did not have a right to close its plant and that "we told them they had
a right to shut down their plant, or to do whatever they see fit to do with it." He
further testified that the Respondent had referred to its poor financial condition and
the fact that its operation made no profit.
Union Representative Charles Boyd testified , without contradiction , that during
the November 26 meeting, above referred to, Rudy Barber addressed Albert Walker,,
one of the members of the Employee Committee , saying:
"Let me tell you one thing," he says, "if you fellows want to work for me,
you better make up your God damned minds by Wednesday."
He says, "Make up your God damned mind by Wednesday if you want your
job here or not," and Rudy Barber says, "I don 't have to operate this plant. I
have a warehouse right in front of this place that don't cost me nothing to
operate.
"I rent the warehouse out. I don 't have to bother with pit, and I collect my
rent every month . There 's nothing to stop me from doing the same thing with
this Foundry.
"So, you go back and tell the men if they want their jobs , make up their minds
by Wednesday , because we are going to sell the plant."
BARBERS IRON FOUNDRY 47
Partner Robert Hamlyn testified that at the November 26 meeting Rudy Barber
said , "We have the right to close our plant ," but at no time did the Respondent tell
the Union 's representatives that they had in fact decided to close the plant on the
next day, November 27, his volunteered explanation being:
Well, we didn 't feel that we had to, but at the same time , we didn ' t want to
do something that would get us in a lot of trouble.
The Respondent 's Contention
The Respondent contends that its sole reason for closing the plant was economic
difficulty which had brought it to this decision some time before. In support of its
contention the Respondent introduced a financial statement 4 for the period January
through November 1957, which covered only specific items in "final " figures with
no "breakdown ." The Respondent also introduced a balance sheet .5 The informa-
tion from which the balance sheet is derived is of course entirely in the control of
the Respondent , the figures are "final figures" and not sufficiently detailed to have
any real meaning. In the opinion of the Trial Examiner , any probative value the
balance sheet may have was considerably diluted by the following testimony of
Partner Robert Hamlyn:
Q. (By Trial Examiner .) When was the first discussion you had among
yourselves regarding closing the plant, after the Consent Election was held?
Mr. SALVO. No after the sigmng of the Consent , and before the Election.
TRIAL EXAMINER . All right.
Q. (By Trial Examiner .) After you had agreed to a Consent Election.
That is the question.
A. I don 't recall the exact date.
Q. Well, give us approximately the time.
A. It was in the latter part of October, but it was in the Pattern Shop.
Hamlyn then continued:
So, I told Rudy I would get our accountant to make up a sheet for us and
see how we stand, just exactly everything we owed.
This, we proceeded to do.
He then testified that the "sheet," presumably the balance sheet herein referred to,
was not received by the Respondent until after the plant was closed.
The exhibit introduced as the balance sheet is not authenticated or even signed
by the accountant who prepared it.
The Respondent ' s Exhibits
The Trial Examiner has no intention of belaboring the Respondent's Exhibits
Nos. 1 , 2, and 3, but must do more in all fairness than to merely point out that they
consist of "final figures" only. The Trial Examiner makes no pretense of being
an accountant but in his opinion when the exhibits are asked "to speak for them-
selves" they shout aloud certain disturbing information . For instance, it must be
remembered the Respondent testified that the balance sheet, although dated January
1, 1958, goes only to the shutdown of November 27, 1957, and that the balance
sheet (Exhibit No . 2) shows a net loss of $708.16 for the year 1957.
On its first page, the balance sheet, showing "Assets and Liabilities ," shows an
excess of $3,200 in assets over liabilities . The "Partnership Capital Accounts"
appears to be made up of this difference rather than of any actual capital investment.
The "Profit and Loss" statement of the balance sheet (page 2), shows total sales
of $249,000 (round figures are being used ) and shows cost of goods sold as $228,600
and sales expense of $21,000. This creates the $700 loss .) Included in the cost
of manufacture is $3,400 for "partners salaries." It seems to the Trial Examiner
that a partner cannot take any distribution even as salary until after profits are
determined . If this is so then the entire cost of goods sold is less than $228,600 and
the entire profit and loss for the period is not correctly set out.
In "Current Liabilities " ( page 1) the balance sheet lists:
Notes Payable--------------------------------------------------- $27,600
Loans payable- -------------------------------------------------- 6,500
4 Respondent 's Exhibit No. 1.
5 Respondent 's Exhibit No 2
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As there is no breakdown or other explanation, the Trial Examiner must ask:
Do the notes and loans represent in whole or in part loans to the partnership by the
partners?, do the notes evidence such loans?
If the answer is affirmative , then the loans and notes represent "capital," not
"liabilities."
Realistically ( again the Trial Examiner points out that he is not an accountant, not
even a "businessman," but is here merely commenting on a "balance sheet"), in any
event, it seems extraordinary that in a business with the relatively small earning poten-
tial of the Respondent's, there would actually be $27,600 of notes payable and $6,500
of loans payable outstanding which were to fall due during the year starting with
the balance sheet date , viz, 1958, as they must be classified properly as current lia-
bilities. If the due dates of these notes and loans, or part of them, do not fall
within 1958, then they have not been properly classified. If they are not truly
current liabilities , irrespective of whether or not they are held by the partners,
the firm's current 6 ratio would be improved thus:
Current assets (page 1) ------------------------------------------ $41,500
Current liabilities ($51,000-$34,000) ------------------------------ 17, 000
Excess of c.a. over c.l-------------------------------------- $24, 500
In such an eventuality, the notes and loans payable (assuming they had been is-
sued for a valuable consideration) would still be a charge on the firm's assets, sub-
ject to secured creditors' rights, but they would not have the overwhelming un-
favorable impact on the firm's current ratio which they do have as presently set up
on the balance sheet.
The balance sheet shows payables other than notes and loans totaling $17,500, of
which $16,600 are for accounts payable, i.e., amounts due to creditors on current
account. A discrepancy exists between this part of the balance sheet and Exhibit
No. 1, which shows, at the end of November (the last month of operations), that
accounts payable totaled $23,000 How did this difference arise?
The balance sheet shows:
"Cost of Goods Manufactured"------------------------------------ $92,000
Exhibit No. 1 shows-"Cost of Goods Manufactured" as-------------- 79, 000
Difference between No. 2 and No. 1-------------------------- $13, 000
Standing unexplained, this would mean that $13,000 more of raw materials went
into goods manufactured during 1957 than were purchased during that year. One
possible explanation is that $13,000 of raw materials were carried over from 1956
operations and were consumed in manufacturing operations during 1957 in addition
to $79,000 worth purchased in that year. It is not possible to determine whether
or not this is so, however, as the balance sheet's beginning inventory figure for 1957
($22,450) does not break down this account among raw materials, goods in process,
and finished goods inventories.
There is also a discrepancy in the "Fuel Purchases":
Exhibit No. I shows--------------------------------------------- $14,400
Exhibit No. 2 (cost of goods manufactured schedule) shows----------- 11, 800
Difference------------------------------------------------- $ 2,600
If the fuel account is (as seems probable from the schedule of "Cost of Goods
Manufactured") an expense account, this discrepancy seems to mean that of fuel
purchases of $14,400, only $11,800 were consumed by the manufacturing process
during 1957. The $2,600 difference should then, it seems to the Trial Examiner,
appear as a current asset (prepaid expense item) on January 1, 1958. Such an item
does not appear on Exhibit No. 2. There is a possibility that fuel not used in 1957
was thrown into the inventory account, but this, of course, cannot be learned from
the balance sheet as it stands. It is also possible that the $2,600 represents a short-
age which could have arisen in many different ways, ranging from theft to appiopria-
tion for personal use by persons in a position to do so.
The Trial Examiner may be entirely in error and it may well be his doubts would
entirely vanish were the exhibits detailed. However, as they stand, they seem to
cast more doubt than light.
6 See Ray A Foulke-Practical Financial Statement Analysis , McGraw Hill Book Co
2d ed , pp 173, 185-186
BARBERS IRON FOUNDRY 49
Regarding the Respondent's financial condition, which allegedly brought on the
closing of the plant, Rudy Barber testified that: The foundry had been a losing ven-
ture and had required capital which had been obtained by mortgaging other prop-
erty belonging to Hamlyn and himself; he had wanted to close the plant long before
it was closed; the Respondent had resolved to liquidate before the final meeting with
the Union; and some 2 months before the final meeting with the Union he had
offered to sell his interest to the employees.
During his testimony regarding the November 26 meeting with the Union's repre-
sentatives, Rudy Barber testified on direct examination:
Q. (By Mr. Salvo.) At that time [November 26], had you decided definitely
to close down?
A. As far as I was concerned, that plant was closed down the morning of the
21st, when I walked in there and sent them home. I didn't send them home; I
told them to stop working.
The Respondent then dropped this line of inquiry.
Barber further testified that in November the Respondent owed $20,000 for scrap
iron used in its manufacturing and that its supplier had cut off the Respondent's
credit.
In support of this contention the Respondent called David Kane who testified
that in November the Respondent owed him $20,919.06 for scrap iron and that after
having asked for payment numerous times he finally told the Respondent "a couple
of weeks" before the plant closed that when the account reached $20,000 he would
shut off the Respondent's credit and deliver no more scrap. However, he admitted
that scrap iron was delivered to the Respondent "the Monday before they closed"
(November 25). He further admitted that this iron was delivered on his order by
a dealer from whom he bought it specially to be delivered to the Respondent.
Kane testified he came to the plant on November 26 and found Hamlyn paying off
the men and that Hamlyn then told him the plant was being shut down.
The Respondent introduced a "Statement of Scrap Purchases" prepared by Kane .7
The statement in "final figures" only shows that in November the Respondent owed
Kane $20,919.06.
Neither the testimony of the witness, Kane, nor Respondent's Exhibit No 3 is
persuasive From his observation of the witness, as well as his testimony, the Trial
Examiner is convinced that Kane was not reliable and therefore does not credit his
testimony. In so doing the Trial Examiner also rejects similar testimony by the
Respondent regarding its indebtedness to Kane and Kane's curtailment of its credit..
Rudy Barber frankly admited that he did not know the amount of the Respondent's
indebtedness and made no pretense at understanding the balance sheet.
Partner Hamlyn testified that he was in charge of the Respondent's books. How-
ever, his testimony with respect to the Respondent's balance sheet impressed the
Trial Examiner that Hamlyn was unfamiliar with its contents and did not fully grasp
its meaning. Hamlyn testified:
Q. (By Mr. Salvo.) And what was your reason for stopping the operation
of this Foundry?
A. The only reason for stopping it was just financially, we weren't making
any money. We were going in the hole every month
We kept going further and further in the hole. Our orders had dropped off
considerable in the last two months.
Hamlyn further testified, "Rudy wanted to close all the time," and:
Q. (By Mr. Salvo.) When did you and your partners first consider the ques-
tion of closing this operation?
A. Well, that went back to around-oh, I believe it was either January or
February, because we were in-
Q. Of what year?'
A. 1957, and we were going in the hole quite a bit then.
He then testified that the firm decision to close the plant was made November 21,
"at which time we were going to sell it," that at the time of the last meeting with the
Union's representatives November 26, the firm decision to close the plant had been
made; however, he admitted that the Union's representatives were not told this.,
He testified that the plant was closed November 27, and that the Respondent has
no intention to reopen and is actively seeking to sell it.
l Respondent 's Exhibit No 3
554461-60-vol. 126-5
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to Hamlyn's testimony, it is of interest to note that although in
order to substantiate the Respondent's claim of its poor financial condiion, both
Hamlyn and Barber testified that Kane, their supplier of raw material, had warned
them their credit would be cut off when the account reached $20,000, the Respondent
accepted merchandise from Kane after it had decided to close the plant, bringing the
account to $20,919.06, and this at a time when it was allegedly unable to meet the
account. Of course the Trial Examiner draws no inference from the above observa-
tion other than that the Respondent's failure to notify Kane it was about to close the
plant, leaving Kane (according to his testimony) to ask, "How about-where do I
stand with my money here?" was merely an oversight on the Respondent's part
quite similar to its failure to notify the Union's representatives on November 26.
The Respondent began manufacturing September 1956, closed November 27, 1957.
It had been in business less than a year.
Conclusion
The Trial Examiner is not persuaded by the Respondent's testimony, including
the exhibits hereinabove referred to, that only economic considerations prompted
the closing of its plant. The following undisputed facts weigh heavily against the
Respondent's contention. The Respondent told its employees before its final "meet-
ing" with the Union's representative:
Fellows-I give you until Wednesday to make up your mind whether you
want-what you are going to do.
The meaning is plain. The Wednesday referred to is the day before Thanksgiving
Day, when the plant was closed. The Respondent did not tell the Union's repre-
sentatives on November 26 that it had decided to close; the Respondent received raw
material on November 25.
Accepting the Respondent's exhibits and testimony at par value, the most that
can be inferred is that the Respondent was engaged in a marginal operation; how-
ever, other facts which throw light crept into the record. Although not stressed
by either the Respondent or the General Counsel, this testimony so impressed the
Trial Examiner as to, in his opinion, not only warrant, but require, consideration.
Both Rudy Barber and Hamlyn testified they did not understand the foundry
business.
Rudy Barber testified that only Louis Barber operated, and of the three partners
was capable of operating, the foundry, and further testified that Louis Barber was
a sick man, hospitalized before Christmas 1957.
A statement from a physician regarding Louis Barber's physical condition was
introduced. The statement reads:
This is to certify that Louis Barber is under my professional care, and has
been for several weeks.
He is suffering from acute congestive heart failure and his physical condi-
tion is such that he will be unable ,to pursue the type of physical labor which
he did in the past.
Rudy Barber further testified , "in the wintertime things slow up," explaining:
In my knowledge, the cold months of the year is our worst months.
Granted that the Respondent's is a marginal operation; that only one of the part-
ners, incapacitated , is capable of operating the plant; and that the winter season
"when things slow up" was just around the comer at Thanksgiving time, it may be
reasonably inferred that the Respondent had reasons other than the advent of the
Union for closing its plant, although the advent of the Union served to bring all
these reasons into play.
Moreover, had the Respondent been operating a highly profitable business which
it chose to liquidate rather than operate under a union contract, it could not be
ordered to resume business ; the law could no more reach the three partners than if
they decided to, and did, "cut off their noses to spite their faces," the Trial Examiner
assuming them to be compos mentis and not liable for military service.
However, the Trial Examiner is mindful of the fact that the Respondent did not
liquidate its business, it did not go out of business, it merely closed. Until final liqui-
dation, the closing, no matter of what duration, must be presumed to be temporary.
The summer season will undoubtedly come again, Louis Barber may completely
recover, and a loss of $708.16 on $248,899 .80 of sales during the first year of
operation may not seem at all to be pointing to an impossible future.
BARBERS IRON FOUNDRY 51
Under all the circumstances in the case and from all the evidence in the record,
the Trial Examiner is persuaded that: ( a) The Respondent has not liquidated its
business and is still in business although its operations are suspended ; (b) the closing
of the plant was "triggered " by the advent of the Union ; (c) the Respondent in viola-
tion of the provisions of the Act from November 21 to 25, 1957, locked out its
employees whose names appear listed in Appendix A; (d) on November 25, 1957,
the Respondent illegally discharged Henry Hayes; (e) at all times since November
21, 1957, the Respondent has refused to bargain with the Union as the legal
representative of an appropriate unit of the Respondent 's employees ; (f) because
the Respondent closed its plant for various reasons , among them the fact that the
employees were represented by the Union, the termination of its employees on
November 27 who are also listed in Appendix A was also an unfair labor practice
violative of Section 8(a)(3) of the Act.
Additional Interference , Restraint , and Coercion
The Trial Examiner has found that Rudy Barber, on November 21, told his assem-
bled employees that they had brought the Union "into this place" and it was up to
them to get it out if they wanted to work; and that on November 25, Rudy Barber
told employee Albert Walker in the presence of other employees , "If you fellows want
to work for me you better make up your God damned minds by Wednesday." This
statement was made during the Union 's request for contract negotiations . The plant
was closed Thursday.
Robert Hamlyn on November 25 also told the assembled employees they had
until Wednesday "to make your mind to do what you want to do."
The Trial Examiner finds the above remarks of Barber and Hamlyn to be coercive,
and thereby the Respondent has engaged in conduct violative of Section 8(a)(1)
of the Act.
W. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent , set forth in section III , above, occurring in
connection with its operations described in section I, above, have a close , intimate,
and substantial relation to trade, traffic , and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, it is
incumbent on the Trial Examiner to recommend a remedy which will effectuate the
policies of the Act, by establishing the status quo. As has been often pointed out,
the Act is concerned only with the public interest and not with private rights. The
Act does not invest the Board with punitive power and to recommend action which
smacks of the punitive would be presumptuous on the part of the Trial Examiner.
As to the violations of Section 8(a)(1) of the Act, both independent and deriva-
tive, as found herein ; the violations of Section 8(a)(5) which arise from the Re-
spondent 's refusal to bargain with the Union on November 21, and again on Novem-
ber 26; and the violations of Section 8(a)(3) of the Act which arise from the
Respondent 's lockout of its employees on November 21 to 25, the Trial Examiner
will recommend the customary remedy as follows:
Having found that the Respondent has engaged in unfair labor practices, the
Trial Examiner will recommend that it cease and desist therefrom, and take certain
affirmative action which will effectuate the policies of the Act.
It has been found that the Respondent refused to bargain collectively with the
duly designated representative of its employees . It will therefore be recommended
that it cease and desist therefrom. It will further be recommended that the Respond-
ent bargain collectively, upon request , with the Union as the exclusive representa-
tive of its employees in the appropriate unit herein found.
Since it has been found that the Respondent has discriminated in regard to
the hire and tenure of employment of certain named employees because of their
membership in and activities on behalf of the Union, by locking them out of
employment from November 21 to 25, 1957, it will therefore be recommended
that the Respondent make whole each of them for any loss of pay he may have
suffered by reason of the discrimination against him by payment to each of them
of a sum of money equal to that which he would normally have earned as wages
from the date of the discrimination , November 21, 1957, to the date of the
Respondent 's reopening , November 25, 1957, less his net earnings during such
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period.8 The back pay shall be computed in the manner established by the
Board,9 and the Respondent shall make available to the Board its payroll and
other records to facilitate the checking of amounts due.
Since it has been found that the Respondent discriminatorily discharged Henry
Hayes on November 25, 1957, it will therefore be recommended that in addition
to being made whole for the discrimination practiced against Hayes by reason of
the lockout, the Respondent also make Hayes whole for the period of November
25 to 27, 1957, and further as hereinafter recommended.
In the opinion of the Trial Examiner, the 8(a)(3) violation arising from the
layoff of employees as a result of the shutdown November 27 cannot be remedied
in the same manner as the other violations found.
The Trial Examiner has found that the Respondent cannot be said to have
actually quit business on November 27, 1957; the Trial Examiner rejected the
Respondent's contention that the sole reason of the shutdown was the Respondent's
poor financial condition and here again states to the point of redundancy that
were the Respondent's contention as to the economics involved completely cor-
rect, still the controlling question to be answered here is whether the alleged
financial condition or a discriminatory motive really prompted the shutdown.
The Respondent may rightfully cite an economic ground for a shutdown but it
becomes quite a different matter if action for these reasons was "triggered" by
a discriminatory motive. The Trial Examiner has found the discriminatory
motive to be present and, moreover, has found that it has not been conclusively
shown that the Respondent has finally quit business. On these findings the
layoff of employees on November 27 was clearly in violation of Section 8(a)(3)
of the Act and the discriminatees created thereby are entitled to reinstatement.
The question is when, and the corollary question arises: are they entitled to
back pay and for what period?
As found herein the plant shut down November 27, and had not been re-
opened at the time of the hearing. The Respondent contended that it would
never be reopened.
In his brief the General Counsel urges:
As stated above, it is submitted that Respondents should be ordered to
forthwith notify the employees who have been locked out, that, if Respond-
ents resume their foundry, they will be offered reinstatement and, of course,
to actually offer such reimbursement in that event.
An adequate method of reimbursing the employees locked out on
November 27 for the loss of pay from that date presents greater difficulty.
It is submitted that Respondent be ordered to make such employees whole
by paying back pay from the time of the complete shut-down on November
27, 1957, to the time of the notification urged above. This would constitute
a fair and reasonable cut-off point for the back pay period.
Should the Trial Examiner of the Board decline to adopt the back pay
remedy suggested above, it is submitted that an alternative proposal would
be to order Respondents to make the employees whole for a fixed reasonable
period, let us say, six months. Assuming that no other back pay formula
can be devised with a termination point similar to the Board's conventional
order, it is inconceivable that Respondents would be relieved of any respon-
sibility to reimburse these employees for loss of pay. Such a course would
place a premium upon using the most vicious and unconscionable of anti-
union tactics, namely the lock-out. The payment of back pay for a six
month period has much to commend itself as appropriate remedial action.
The employees would be given a cushion to soften the impact of Respond-
ents' illegal conduct upon them. This would give them a reasonable period
within which to adjust themselves to new employment. By the same token,
Respondents are not faced with the possibility of the back pay liability
running indefinitely. Although this proposal falls short of making the vic-
timized employees entirely whole, it would most certainly effectuate the
policies of the Act as against receiving no reimbursement whatever for loss
of pay.
The General Counsel cites cases he considers analogous, but which the Trial
Examiner does not. In his brief the General Counsel argues:
8 Crossett Lumber Company,.8 NLRB 440
9 F. TV Woolworth Company, 90 NLRB 289.
BARBERS IRON FOUNDRY 53
Although the framing of a remedial order for the unlawful shut-down
November 27 in this case presents novel problems, the salient consideration
is that some remedy must be found to compensate in some way the em-
ployees for their loss of earnings caused by this illegal conduct of Re-
spondents. They are the victims of a most flagrant violation of the Act.
If the status quo cannot be completely resolved and these employees made
whole for reasons over which the Board has no control, then some fair and
equitable formula for reimbursement should be found which would come as
close to full restoration as the circumstances of the case will permit.
Of course the General Counsel here urges the Board to remedy a private grievance
in a punitive manner.
Under all the circumstances in the case, the Trial Examiner does not agree with
the General Counsel; however, being persuaded that the employees laid off November
27 are still the Respondent's employees, entitled to reinstatement if and when
operations of the plant are resumed and furthermore as these employees were legally
represented by the Union with which the Respondent has been found obligated to
bargain, the Trial Examiner will recommend that the Respondent setup a preferential
hiring list, containing the names of the employees hereafter listed and so notify those
listed. If and when the Respondent resumes operations, the employees so listed
shall be tendered employment to their former or substantially equivalent positions.
Copies of the first and second notifications shall also be sent to the Union.
The employees to appear on the above hiring list shall be:
J. Lukas G. Strauch W. Hester
C. Seeny J. Thompson Henry Hayes
N. Durham Boyd Moseley J. Butts
R. Cooney N. Brown C. Washington
A. Ellis J. Willis B. Bennett
W. Leone W. Robinson H. Hannah
A. Pierce A. Hughes D. Campbell
0. Lingo L. Williams J. Wade
A. Walker C. Williams L. Irmler
A. Brown E. Tucker J. MacDonald
J. Walker B. Crowell G. Crawford
J. Hayes
The name of Henry Hayes, found herein to have been discriminatorily discharged,
is added to the list and he is to be offered the recommended relief as part of the
recommended order as to him.
In the opinion of the Trial Examiner the preventive purposes of the Act will be'
thwarted unless the recommendations herein are coextensive with the threat con-
tained in the violations of the Act as herein found. It will therefore be recom-
mended that the Respondent cease and desist from infringing in any manner upon
the employees' rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Rudy Barber, Louis B. Barber, and Robert Hamlyn, partners, doing business as
Barbers Iron Foundry, are engaged in commerce within the meaning of the Act.
2. International Molders and Foundry Workers Union of North America, AFL-
CIO, is a labor organization within the meaning of the Act.
3. On November 13, 1957, and at all times since, the Union aforesaid has been
the exclusive representative of all the employees in an appropriate unit of the
Respondent's employees for the purposes of collective bargaining within the mean-,
ing of Section 9(a) of the Act.
The unit of the Respondent's employees appropriate for collective bargaining is:
All production and maintenance employees of the Respondent excluding office
employees, and supervisors as defined in the Act.
4. By refusing on and after November 21 and again on November 26, 1957, to
bargain collectively with the aforesaid Union as the exclusive representative of the
employees in the aforesaid appropriate unit, the Respondent has engaged in and is
engaging in an unfair labor practice within the meaning of Section 8(a)(5) of the
Act.
5. By discriminating in regard to the hire and tenure of employment of the
employees on November 21 and 27, and who are listed in Appendix A, and by the
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge of Henry Hayes as herein found, the Respondent has discouraged member-
ship in a labor organization and thereby by such discrimination and by interfering
with , restraining , and coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act, as hereinabove found, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act,
and 8 (a) (1) thereof.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Alliance of Television Film Producers , Inc.; Desilu Produc-
tions; McCadden Corporation ; Lindsley Parsons Productions,
Inc.; Ziv Television Programs, Inc.; Hal Roach Studios;
Marterto Productions , Inc.; Flying A Productions , Inc.; Mark
VII, Music ; 1 and Revue Productions, Inc. and Musicians
Guild of America, Inc., Petitioner . Cases Nos. 21-RC-5513,
21-RC-5511, 21-RC-5514, 21-RC-5515, 21-RC-5516, 21-RC-5517,
21-RC-5518, ,21-RC-5519, 21-RC-5520, and 21-RC-5512. Janu-
ary 8, 1960
DECISION, ORDER, AND DIRECTION OF ELECTIONS
Upon separate petitions duly filed under Section 9(c) of the Na-
tional Labor Relations Act, hearings were held before William R.
Magruder, hearing officer.2 The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
Upon the entire record in these cases, the Board finds :
1. The Employers are engaged in commerce within the meaning
of the Act.
2. The labor organizations involved claim to represent certain
employees of the. Employer.'
3. The Intervenor contends that no questions concerning repre-
sentation exist herein because the musicians sought by Petitioner are
not a sufficiently identifiable group who enjoy stability in employ-
ment. For reasons given in Cavendish Record Manufacturing Com-
pany,' we find no merit in this contention.
Except as indicated below, we find questions affecting commerce
exist concerning the representation of employees of the Employer
within the meaning of Section 9(c) (1) and Section 2(6) and (7) of
the Act.
• i The name of the Employer in this case appears as amended at the hearing.
A consolidated hearing was held on all the cases except Revue Productions, Inc.,
Case No. 21-RC-5513. The latter case is consolidated with the others for decisional
purposes
3 American Federation of Musicians of the United States and Canada, AFL-CIO, inter-
vened in these cases on the basis of contractual interests . Its request for oral arugment
is denied as the record and briefs adequately present the issues and positions of the
parties.
4124 NLRB 1161. See also Independent Motion Picture Producers Association, Inc.,
123 NLRB 1942.
126 NLRB No. 1.