Fabsteel Co., of Louisana

National Labor Relations Board - Board Decisions

Aug 15, 1977

231 N.L.R.B. 372 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fabsteel Company of Louisiana and United Steel-
workers of America, AFL-CIO. Case 23-CA-6008
(formerly 15-CA-6059)
August 15, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On April 8, 1977, Administrative Law Judge Jerry
B. Stone issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief supporting the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order,' as modified
herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Fabsteel Company of Louisiana, Shreveport,
Louisiana, its officers, agents, successors, and as-
signs, shall take the action set forth in the said
recommended Order, as modified herein:
I. Delete the following from paragraphs l(a) and
(c):
"Except to the extent permitted by the proviso to
Section 8(a)(3) of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
i Since Louisiana is a right-to-work State, we shall delete references to
the proviso to Sec. 8(aX3) from the recommended Order and notice.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to reinstate or otherwise
discriminate against our employees in regard to
hire or tenure of employment or any term or
231 NLRB No. 50
condition of employment because of their union
or protected concerted activity, including their
engaging in an unfair labor practice strike.
WE WILL NOT refuse to recognize or bargain
with the Union as the exclusive bargaining
representative of our employees in the below
appropriate bargaining unit.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights guaranteed in Section 7 of the Act.
WE WILL offer to the employees named below
immediate and full reinstatement to their former
positions or, if such positions no longer exist, to
substantially equivalent ones, without prejudice
to their seniority or other rights previously
enjoyed, except Rufus Walls and John M.
Patterson who have now been reinstated, and
make whole each of the employees named below,
including Walls and John M. Patterson, for any
loss of pay or other benefits suffered as a result of
the failure to reinstate such unfair labor practice
strikers on January 1, 1976, and as to Patterson
and Walls, provide backpay from January 1,
1976, to date of reinstatement, plus 6 percent
interest per annum in accordance with Isis
Plumbing & Heating Co., 138 NLRB 716.
George W. Brown
James Cheatham
L. D. Coleman
Herman Gilliam
Mertin Harton, Jr.
Claudia V. Johnson
Larry D. McDonald
Edward C. McLean
Latham Montgomery
Herman L. Patterson
John M. Patterson
Clyde Pennywell
Joe N. Peyton
John S. Pouncy, Jr.
Cleo Pratt
Robert C. Procell
Lee G. Taylor
Rickey C. Taylor
Charles H. Thomas
Rufus Walls
Roosevelt Washington
Donald G. Woodward
WE WILL upon request, bargain collectively
with United Steelworkers of America, AFL-CIO,
as the exclusive bargaining representative of the
employees in the appropriate collective-bargain-
ing unit and, if an understanding is reached,
embody such understanding in a signed agree-
ment. The appropriate collective-bargaining unit
is:
All production and maintenance employees,
including leadmen, truckdrivers, janitors,
and plant clericals employed at Respon-
dent's Shreveport, Louisiana, plant, exclud-
ing guards, watchmen and supervisors as
defined in the Act.
372
FABSTEEL COMPANY OF LOUISIANA
All our employees are free to become or remain, or
refrain from becoming or remaining, members of any
labor organization.
FABSTEEL COMPANY OF
LOUISIANA
DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Administrative Law Judge: This
proceeding, under Section 10(b) of the National Labor
Relations Act, as amended, was heard pursuant to due
notice on October 19 and 20, 1976, at Shreveport,
Louisiana.
The charge was filed on April 1, 1976, in Region 15 of the
National Labor Relations Board (New Orleans), and was
docketed as Case 15-CA6059. Thereafter, on April 13,
1976, said charge and case was transferred to Region 23
(Houston, Texas) and renumbered and docketed as Case
23-CA6008. The complaint in this matter was issued on
August 18, 1976.
The issues presented by the pleadings and statements of
counsel concern whether the Respondent (I) is a successor
to Mosher Steel Company; (2) has, since on or about
January 5, 1976, violated Section 8(aX5) and (1) of the Act
by refusing to recognize and bargain with the Union with
respect to an appropriate bargaining unit limited to certain
described classifications of Respondent's employees; and
(3) has violated Section 8(a)(3) and (1) of the Act by
refusing, since on or about January 5, 1976, to "reinstate"
certain named employees who had participated in an
unfair labor practice strike against Mosher Steel Company.
All parties were afforded full opportunity to participate
in the proceeding. Briefs have been filed by the General
Counsel and the Respondent and have been considered.
Upon the entire record in the case and from my
observation of witnesses, I hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Fabsteel Company of Louisiana, the Respondent, is and
has been at all times material herein a corporation duly
organized under and existing by virtue of the laws of the
State of Louisiana, having its principal office and place of
business in Shreveport, Louisiana, where it is engaged in
the business of fabrication of structural steel products.
Mosher Steel Company is, and has been at all times
material herein, a corporation duly organized under and
existing by virtue of the laws of the State of Texas, having
its principal office and place of business in Houston, Texas,
where it is engaged in the business of fabricating structural
steel products. Prior to January 1, 1976, Mosher Steel
The facts are based upon the pleadings and admissions therein.
2 The facts are based upon the pleadings and admissions therein, upon
stipulations, and upon official notice of the facts, concluding findings, and
Decision and Order of the Board in Mosher Steel Company, 220 NLRB 336
(1975). and in the Board's Decision and Certification of Representative in
Company also owned and operated a facility in Shreveport,
Louisiana, where steel products were manufactured.
During the calendar year of 1976, which period is
representative of all times material herein, Respondent, in
the performance of its business as described above,
purchased goods and materials valued in excess of $50,000,
which goods and materials were shipped directly to
Respondent's Shreveport, Louisiana, plant from points and
places located outside the State of Louisiana. During the
same period of time, Respondent sold materials valued in
excess of $50,000 to customers located at points and places
outside the State of Louisiana, which materials were
shipped directly from Respondent's Shreveport, Louisiana,
plant to said customers.
During the past calendar year, which period is represen-
tative of all times material herein, Mosher Steel Company,
in its performance of its business as described above,
purchased goods and materials valued in excess of $50,000
which were shipped directly to Respondent's Houston,
Texas, facility from points and places located outside the
State of Texas.
As conceded by the Respondent and based upon the
foregoing, it is concluded and found that:
(I) Fabsteel Company of Louisiana, the Respondent, is,
and has been at all times material herein, an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
(2) Mosher Steel Company is, and has been at all times
material herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, AFL-CIO, is, and has
been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
I11. THE UNFAIR LABOR PRACTICE ISSUE
A. Background and Setting2
Pursuant to a Stipulation for Certification Upon Consent
Election, a secret-ballot election was conducted on August
30, 1973, among the employees in the stipulated unit
described below. The tally of ballots furnished the parties
showed that of approximately 980 eligible voters, 912 cast
valid ballots, of which 511 were for and 378 against the
Petitioner.3 There were 23 challenged ballots, which were
insufficient to affect the results of the election.
On January 18, 1974, the Board found the stipulated unit
to be an appropriate bargaining unit for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
The stipulated and found appropriate collective-bargain-
ing unit was as follows:
Included: A companywide unit of the employees at all
of the Employer's seven plants, at 3910 Washington
Case 23-RC-3989 in the Mosher Steel Company case reported at 208 NLRB
522 (1974).
3 The Employer was Mosher Steel Company; the Petitioner was the
United Steelworkers of America, AFL-CIO.
373
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and 6422 Esperson Street, Houston, Texas; San
Antonio, Dallas, Lubbock, and Tyler, Texas; and
Shreveport, Louisiana; described as follows: All pro-
duction and maintenance employees, including lead-
men, truckdrivers, janitors, and all plant clericals.
Excluded: All office clerical employees, draftsmen,
inside and outside salesmen, watchmen, guards, profes-
sional employees, and supervisors as defined in the Act.
On January 18, 1974, the Board found, as indicated
above, that the Petitioner had received a majority of the
valid ballots cast in said election and that the Petitioner
should be certified as the exclusive collective-bargaining
representative of the employees in the unit found appropri-
ate.
On January 18, 1974, the Board certified the Petitioner,
United Steelworkers of America, AFL-CIO, as the exclu-
sive representative of the employees of the Employer,
Mosher Steel Company, in the appropriate bargaining unit
for the purposes of collective bargaining with respect to
rates of pay, wages, hours of employment, or other
conditions of employment.
Thereafter, the Union, United Steelworkers of America,
AFL-CIO, made a bargaining request on February 7, 1974.
Following this, the Union and Mosher Steel Company had
some bargaining sessions between March 6 and December
10, 1974.
A strike by a substantial number of employees at the
seven plants involved in the appropriate unit commenced
on July 22, 1974, and concluded, at least for the Mosher
Steel Company Shreveport employees, on or about May 12,
1975. Said strike was an unfair labor practice strike, caused
and prolonged by unfair labor practices committed by
Mosher Steel Company.
Just prior to July 22, 1974, Mosher Steel Company had
approximately 67 employees in bargaining unit positions at
its Shreveport plant. On July 22, 1974, approximately 65 of
the 67 Shreveport employees, part of the seven-plant
bargaining unit, went on strike. During the strike period
(July 22, 1974, to May 12, 1975) Mosher Steel Company
hired approximately 30 new employees. During the strike
period, 21 or more employees who had gone out on strike
from the Shreveport plant quit the strike and returned to
work at the plant.
On April 23, 1975, Administrative Law Judge Samuel M.
Singer issued his Decision in Mosher Steel Company -
Cases 23-CA-5165, 23-CA-5258 (formerly 16-CA-5699),
and 23-CA-5282 (formerly 15-CA-5357). Administrative
Law Judge Singer found that Mosher Steel Company had
violated Section 8(a)(1) of the Act by certain conduct, had
violated Section 8(a)(5) and (1) of the Act by refusing to
bargain collectively, and that the strike by Mosher Steel
Company employees commencing on July 22, 1974, was an
unfair labor practice strike, caused and prolonged by
Mosher Steel Company's unfair labor practices. Adminis-
4 I officially note that the question of such misconduct's beanng on the
five individual unfair labor practice strikers' right to reinstatement was
litigated in a proceeding before Administrative Law Judge Jalette. The
Board in Mosher Steel Company, 226 NLRB 1163, found that Mosher Steel
Shreveport unfair labor practice stnkers Robert Wilkerson, Charles Stiles,
and Benny Harris engaged in striker misconduct justifying a refusal to
reinstate such employees. The conduct of Mosher Steel Company Shreve-
trative Law Judge Singer's recommended order included
appropriate remedial action relating in part to requirement
to bargain with the Union and to reinstatement of unfair
labor practice strikers upon unconditional application for
reinstatement.
As has been indicated, the unfair labor practice strike
which commenced on July 22, 1974, concluded (at least for
the Mosher Steel Company, Shreveport employees) on or
about May 12, 1975. On or about May 12, 1975,
unconditional offers were made to Mosher Steel Company
for the Mosher Steel Company Shreveport unfair labor
practice strikers to return to work. The record reveals that
between May 12, 1975, and December 31, 1975, seven of
Mosher Steel Company Shreveport unfair labor practice
strikers were returned to work. Five of the Mosher Steel
Company Shreveport unfair labor practice strikers were
refused reinstatement on the alleged ground of miscon-
duct. 4 The litigation of such issues in Mosher Steel
Company, 226 NLRB 1163 (1976), requires a finding that
Roosevelt Washington and Lee Taylor, two of such five
unfair labor practice strikers, were entitled to reinstatement
after the offers to return to work on May 12, 1975.
On September 16, 1975, the Board issued its Decision in
Mosher Steel Company, 220 NLRB 336, adopting in major
part Administrative Law Judge Singer's Decision issued on
April 23, 1975. The Board found that Mosher Steel
Company had engaged in conduct violative of Section
8(a)(5) and (1) of the Act. The Board also found that the
strike by Mosher Steel Company employees commencing
on July 22, 1974, was an unfair labor practice strike, caused
and prolonged by unfair labor practices of Mosher Steel
Company. The Board issued an appropriate remedial order
requiring Mosher Steel Company to bargain with the
Union and to reinstate the unfair labor practice strikers
upon unconditional application for reinstatement. The
Board's Decision and Order referred to above was enforced
by Judgment of the Fifth Circuit, United States Court of
Appeals on June 7, 1976.
B. Agreement, Sale - Purchase, December 10, 1975
On December 10, 1975, Mosher Steel Company of
Louisiana, Inc. (a Louisiana corporation), Mosher Steel
Company, Inc. (a Texas corporation), the Fabsteel Compa-
ny of Louisiana (a Louisiana corporation), and the
Fabsteel Company (a Delaware corporation) entered into
an agreement relating to the sale by Mosher Steel
Company of Louisiana to the Fabsteel Company of
Louisiana of certain assets, real estate, buildings, struc-
tures, machinery and equipment, tangible personal proper-
ty, raw material and inventory, located in Shreveport,
Louisiana.
Said agreement was written in terms of "certain assets,"
certain real property, excluded certain trailers, and indicat-
ed certain limitations on inventory or raw materials
port unfair labor practice strikers Roosevelt Washington and Lee Taylor
was found in effect to be of such a nature as not to impair their rights to
reinstatement as unfair labor practice strikers, and it was found that the
refusal to reinstate Washington and Taylor violated Sec. 8(aX3) and (1) of
the Act. Appropriate remedial order of reinstatement and backpay was
issued in said Decision on November 24, 1976.
374
FABSTEEL COMPANY OF LOUISIANA
purchased. Said agreement contained clauses relating to
purchaser's agreement to furnish labor to complete work in
progress. Said agreement also provided for "closing" and
transfer of documents and payments on December 31,
1976. Said agreement contained provisions relating to
obligations as to pending labor related disputes and
litigation. On the same day the Fabsteel Company of
Louisiana and the Fabsteel Company, Inc., transmitted a
letter to Mosher Steel Company and Mosher Steel
Company of Louisiana, Inc., reflecting further understand-
ing and agreement in respect to the possible reinstatement
of certain former employees of Mosher Steel Company of
Louisiana, Inc.
C. Events, December 16-31, 1975
On December 16, 1975, Chris Dixie, attorney for the
Union, met with Larry M. Lesh, attorney for Mosher Steel
Company. It is clear that Dixie and Lesh discussed the
pending sale of the Mosher Steel Company Shreveport
plant and that Dixie requested information as to the
agreement of sale.
On December 17, 1975, James P. Wolfe, a law partner of
Dixie, transmitted a letter to President Fletcher Thorne-
Thomsen of Fabsteel, Inc. Wolfe indicated that the United
Steelworkers of America, AFL-CIO, had been advised that
Fabsteel or a new corporation was in the process of
purchasing Mosher Steel Company's Shreveport facility,
that the expected termination of Mosher's operations was
to be on December 31, 1975, and the anticipated com-
mencement of operation by Fabsteel's affiliated company
was to be on January 1, 1976. Wolfe's letter referred to an
understanding that Mosher Steel Company had advised the
purchasers of the pending unfair labor practice proceed-
ings and findings by the National Labor Relations Board.
Wolfe's letter summarized the Board's findings relating to
refusal to bargain, to an unfair labor strike, and to unfair
labor practice strikers' rights to reinstatement. Wolfe
requested that the purchaser recognize the Union for the
production and maintenance employees at the Shreveport
plant operation, and that the purchaser promptly reinstate
all of the striking employees entitled to reinstatement
under the current Board order whom Mosher had failed to
reinstate as of the date of the letter. Wolfe's letter referred
to an attachment setting forth the names of such employ-
ees. Wolfe's letter also set forth a description of the
appropriate bargaining unit for which recognition as
bargaining agent was being made. Wolfe's letter indicated
that the strikers would make application in the manner
requested.
On December 23, 1975, Larry Lesh, attorney for Mosher
Steel Company, by letter, advised Chris Dixie, attorney for
the Union, of certain provisions in the December 10, 1975,
agreement of sale-purchase between Mosher Steel Compa-
ny and the Fabsteel Company previously referred to.
Enclosed with Lesh's letter was an Exhibit P containing
description of pending labor related disputes and litigation.
Said exhibit referred to Case 23-CA-5360. Said case is the
one disposed in the National Labor Relations Board
I The exhibit setting forth the names of such employees listed 60
employees. Testimonial evidence revealed, however, that such list included
four persons who appear to be supervisors. (B. Johnston. L. Johnson, Pugh,
Decision reported at 226 NLRB 1163. Said exhibit also
referred to Cases 23-CA-5165, 23-CA-5258, and 23-CA-
5282 as being on appeal to the United States Fifth Circuit
Court of Appeals. Said Board Decision is reported at 220
NLRB 336 and was enforced by Judgment of the United
States Fifth Circuit Court of Appeals, 532 F.2d 1374
(1976).
D. The Successorship
The facts are clear that the Fabsteel Company of
Louisiana, on December 31, 1975, purchased, pursuant to
prior agreement of December 10, 1975, in substantial effect
the real property, physical assets, machinery, equipment,
and inventory of Mosher Steel's Shreveport plant. The
wording of the agreement to purchase refers in parts to
certain real property and certain assets. The facts relating
to the agreement and to the commencement of work with
the same work force persuade that in substantial effect
Mosher Steel's Shreveport plant was sold to and acquired
by the Fabsteel Company of Louisiana on December 31,
1975.
The General Counsel alleges and contends and the
Respondent denies that accounts receivable, trade assets,
and goodwill of Mosher Steel Company were purchased by
the Fabsteel Company of Louisiana. In my opinion, the
evidence does not support the General Counsel's conten-
tions. First, as to accounts receivable, there is no evidence
that the Fabsteel Company of Louisiana purchased
accounts receivable from Mosher Steel Company. Rather,
the parties entered into a business agreement wherein the
Fabsteel Company was to furnish labor to finish work in
progress for Mosher Steel Company. Perhaps the details as
to compensation might reveal an arrangement warranting a
conclusion that such arrangement in effect was a sale and
purchase of accounts receivable disguised as another
relationship. Such details have not been presented. Thus,
the evidence is insufficient to reveal that accounts receiv-
able were sold and purchased. Regardless of whether
accounts receivable were sold and purchased, continued
work by employees on work in progress tends to support a
finding of successorship status.
There is no evidence to reveal that the Fabsteel
Company of Louisiana purchased "trade assets" and
"goodwill" from Mosher Steel Company. Statements by
the General Counsel at the hearing revealed that in effect
his contentions are that "trade assets" and "goodwill" are
the same. The agreement to purchase did not refer to
"goodwill" or "trade assets," does not refer to agreement
by Mosher Steel not to compete, and the name of the
Fabsteel Company of Louisiana does not indicate a
reliance or free ride upon the reputation of Mosher Steel
Company.
On December 31, 1975, Mosher Steel's Shreveport plant
employee complement consisted of 56 nonsupervisory
employees.5 On December 31, 1975, Mosher Steel Compa-
ny ceased operation of the Shreveport plant and terminat-
ed all employees and supervisors. The Fabsteel Company
of Louisiana took applications from all the employees and
and Settle). Whether several of these were leadmen and perhaps nonsupervi-
sory is not clear.
375
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisors working for Mosher Steel Company at Shreve-
port, Louisiana, on December 31, 1975, hired all such
employees and supervisors, paid such employees for 2 days
of holidays (apparently January I and 2, 1976), and
commenced operation with the same employee comple-
ment on January 5, 1976. All such employees, including
management, were given credit for prior service with
Mosher Steel Company, and the employees were assigned
the same employee employment number as used at Mosher
Steel Company in Shreveport, Louisiana. Employees hired
by Mosher Steel Company after January 5, 1976, whether
previously employed by Mosher Steel Company or not,
were treated as new hires and given new assigned
numbers. 6
The facts relating to the operations of Mosher Steel
Company at Shreveport prior to December 31, 1975, and to
the operations of the Fabsteel Company of Louisiana at
Shreveport on January 5, 1976, and thereafter reveal that
the employee complement continued substantially doing
the same work with the same equipment. Some testimony
was presented that some newer equipment was purchased,
installed, and used after January 5, 1976, and that such
equipment was more efficient. Such type of change,
however, is not of a substantial nature as regards the
question of successorship.
In December 1975, Mosher Steel Company had a
bargaining obligation as regards its production and
maintenance employees because of the certification of the
seven-plant Mosher Steel Unit in 1974 and because of the
Board's order in the case reported at 220 NLRB 336. As
noted before, Mosher Steel Company of Louisiana and the
Fabsteel Company of Louisiana entered into an agreement
of purchase-sale of the Shreveport plant. Such agreement
also contained clauses relating to continuation of the
current pay scales for management and employees.
The Fabsteel Company of Louisiana Shreveport plant
employees after January 5, 1976, continued to be paid the
wage scales utilized at the Mosher Steel Company of
Louisiana prior to December 31, 1975.
A comparison of other fringe benefits enjoyed by Mosher
Steel's Shreveport employees as compared to the Fabsteel
Shreveport employees reveals the following. The Fabsteel
Company instituted a health insurance program with
greater benefits than the program used by Mosher. Mosher
paid the employees' share of such insurance but the
employees paid for coverage for dependents. Both the
Fabsteel Company and the employees paid a percentage of
both employee and family coverage after January 1, 1976.
Thus, the Fabsteel employees had to pay a percentage of
their own insurance coverage wherein before (at Mosher)
they had paid nothing for such coverage at Mosher.
Further, the Fabsteel employees paid a percentage of the
family coverage wherein before (at Mosher) they had had
to pay the total costs for such coverage.
Mosher Steel's employees had been covered by a
retirement plan. When the Fabsteel Company acquired the
Shreveport plant, such plan was terminated and a new
6 I note however that clock no. 8993 was assigned to James M. Jordan as
of 12/31/75, that an employee named R.S. Varnell first appears on the
records in this case in records for August 1976, with a clock no. 8991.
different plan in effect at another Fabsteel plant was
implemented.
Mosher Steers employees had received 7 paid holidays
per year whereas the Fabsteel Company Shreveport
employees were employed on the basis of 10 paid holidays
per year. Mosher employees' vacation plan involved 1-
week vacation after I year, 2 weeks after 5 years, and 3
weeks after 15 years. The Fabsteel Company Shreveport
vacation policy instituted involved l-week vacation after 1
year, 2 weeks after 2 years, 3 weeks after 8 years, and 4
weeks after 18 years.
After the sale of the Shreveport plant, Mosher ceased
participating in the market in the area. Some of Mosher's
customers became customers of the Fabsteel Company
after January 1, 1976. The Fabsteel Company has partici-
pated in a wider marketing area for the Shreveport plant
than had been used by Mosher before the December 31,
1975, sale of the Shreveport plant.
There are also some differences in the handling of
invoicing and related matters between the Mosher Steel
Shreveport operation and the Fabsteel Shreveport opera-
tion. Thus, Mosher handled invoicing and collection and
personnel records from its office in Houston, Texas.
Fabsteel handles invoicing and collections and personnel
records on a local basis at the Shreveport office. Mosher
had an organizational set up of separate departments at the
Shreveport operation. Fabsteel, since the acquisition of the
Shreveport plant from Mosher, has combined all depart-
ments into one department.
Fabsteel Company utilizes a broader based method of
estimating, casting, and pricing products as compared to a
more broken down method utilized by Mosher in its
operations.
Mosher Steel Company's Shreveport plant was one of a
number of plants operated by Mosher. Mosher's smaller
plants, such as its Shreveport plant, were involved in
production for commercial work. After the sale of
Mosher's Shreveport plant, Mosher continued work in
other plants mainly of an industrial work nature. The
Fabsteel Company of Louisiana is similarly one of several
plants of the Fabsteel Company apparently set up as
different corporations. The Fabsteel Company of Louisi-
ana has continued doing the commercial work as did
Mosher. The Fabsteel Company also commenced doing
industrial work (Petro chemical and chemical customers)
mainly for the Fabsteel Company at Waskom. The volume
of such work was at first 90 percent of such work for the
Waskom plant, and later such percentage decreased to 50
percent for Waskom, apparently as local customers were
picked up.
Both Mosher's Shreveport plant and the Fabsteel's
Shreveport plant have had temporary exchanges of em-
ployees with other plants in related or affiliated corpora-
tions of their parent corporations. Some work produced at
the Fabsteel Company of Louisiana is processed at
Shreveport and at the Fabsteel's Waskom plant.
The Fabsteel Company of Louisiana has operated with
basically the same employee complement and the same
Perhaps Varnell was not in the bargaining unit and therefore not included in
the earlier records.
376
FABSTEEL COMPANY OF LOUISIANA
supervision after January 1, 1976, as had Mosher before
December 31, 1975. Thurman occupied the same position
as general manager at the plant for both corporations.
Thurman credibly testified to the effect that he had not
engaged in labor negotiations for Mosher with the Union
and that at Fabsteel he had not been given labor relations
responsibilities. Thurman also credibly testified to the
effect that the line of authority from him to top manage-
ment for Fabsteel was from him to President Thorne-
Thomsen, that Thorne-Thomsen came over to Shreveport
frequently from Waskom, and that Vice President Burnley
(engineering) was over daily from Waskom to render staff
assistance. Whether this is different or not in effect from
the line of command or assistance rendered when he was
Mosher's general manager is not revealed.
Thurman's testimony as to job openings reveals in effect
that the same job classifications, duties of employees, and
work in Fabsteel's operation essentially continued as had
been in Mosher's operation.
As has been previously noted, the production and
maintenance employees at Mosher's Steel Shreveport plant
were part of an overall seven-plant Mosher Steel bargain-
ing unit. Such bargaining unit as described in specifics for
the seven-plant unit has been found to be an appropriate
bargaining unit. The number of employees at the Shreve-
port location on December 31, 1975, and on January I and
5, 1976, numbered 56 or 58.7 A unit of employees of 56 or
58 in number paralleling the description of the larger
seven-plant unit is also an appropriate bargaining unit. The
same reasoning relating to community of interest would
apply, and the evidence of the appropriateness of the larger
unit would constitute a preponderance of evidence requir-
ing a finding that the smaller unit with similar classification
description be appropriate for bargaining.
In the background of significant geographical dispersion
of the seven-plant Mosher unit, the facts reveal a sufficient
identity of the Shreveport employees as a separate group to
warrant a separate employee complement from a structure
viewpoint.
Considering all of the foregoing, I am persuaded and
conclude that the Fabsteel Company of Louisiana on
January 1, 1976, constituted a successor to the Mosher
Steel Company of Louisiana as the enterprise operating the
Shreveport plant involved herein. Thus, the facts reveal
that substantially the same employees and supervisors
continued after the change in ownership on December 31,
1975. Such employees have continued doing substantially
the same work on the same equipment at the same location.
Essentially, what has happened is that the Fabsteel
Company has continued the same work of a commercial
nature but added work of an industrial nature. Although
the products for the industrial nature work involves some
differences, such work is basically the same. I do not find
that the changes in fringe benefits basically affect the
question of the continuation of the employing enterprise.
Such benefits do not appear to have been substantially
changed. Further, bookkeeping and other changes have
7 The facts indicate that B. Johnson and George Pugh. Jr., were
supervisors at the time of the sale of the plant on December 31. 1975, and
when Fabsteel commenced operation. This being so, the number of
employees in the complement was 56. If, however, Johnson and Pugh were
merely leadmen and nonsupervisory, the number of employees would be 58.
little bearing on a realistic evaluation of continuation or
lack of continuation of an enterprise. The overall structures
of Mosher and of Fabsteel appear substantially similar.
The employee unit complement continued the same at
Fabsteel as at Mosher. The fact that the certified bargain-
ing unit at Mosher involved a seven-plant unit is not
significant in evaluating structural change or lack thereof
when it is clear that a single-plant unit is also appropriate.
Rather the seven-plant unit is essentially similar in nature
to a situation of multiplant or multiemployer bargaining in
an agreed merger of single units into one bargaining unit or
as part of multiunit bargaining.
In sum, the facts reveal that the Fabsteel Company of
Louisiana is a successor employer to the Mosher Steel
Company as employer of the Shreveport plant involved
herein.
E. The Refisal To Bargain
I. The General Counsel alleges that all production and
maintenance employees, including leadmen, truckdrivers,
janitors, and plant clericals employed at Respondent's
Shreveport, Louisiana, plant, excluding guards, watchmen,
and supervisors as defined in the Act, constitute a unit
appropriate for collective bargaining within the meaning of
Section 9(b) of the Act. The Respondent admits in effect
that a unit of all production and maintenance employees at
the Shreveport plant is appropriate but denied, because
there might be issues relating to specific inclusion of
various classifications, the remainder of the allegations.
The matter of appropriateness of the alleged appropriate
bargaining unit has been discussed in the "successorship"
section herein. No specific evidence as to specific inclusion
or exclusion of classifications has been presented. In effect,
the facts reveal that a described appropriate bargaining
unit, of the described classifications included in this alleged
appropriate bargaining unit but relating to a seven-plant
Mosher Steel unit, was stipulated to be appropriate and
was so found by the Board on January 18, 1974. Further,
such unit was certified as the appropriate unit on January
18, 1974. As indicated beforehand, the community of
interest of the employees as to inclusions and exclusions
from such seven-plant unit similarly persuade that the
same inclusions and exclusions would prevail for a single-
plant unit. Accordingly, I conclude and find that the
alleged appropriate bargaining unit constitutes a unit
appropriate for collective bargaining within the meaning of
Section 9(b) of the Act.8
2. The pleadings establish and I so find that the Union
(United Steelworkers of America, AFL-CIO), on or about
December 17, 1975, requested and continued to request the
Respondent to bargain collectively with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment as the exclusive collective-
bargaining representative of all the employees of the
Respondent in the single-plant unit described above.
a I note that office clericals were specifically excluded from the stipulated
seven-plant unit, that "office clericals" are not included in the alleged single-
plant unit as being included, and that "office clericals" are not specifically
excluded from such single-plant unit.
377
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The pleadings also establish and I so find that -
commencing on or about January 5, 1976, and at all times
thereafter, the Respondent did refuse and continues to
refuse to recognize the Union and to bargain collectively
with the Union as the exclusive collective-bargaining
representative of all the employees in the single-plant unit
described above with respect to wages, hours, and working
conditions and other terms and conditions of employment
for the employees in said unit.
3. As indicated above, it is clear that the Respondent
has refused to bargain with the Union as to wages, terms,
and conditions of employment covering the employees in
the appropriate bargaining unit. I note that attorney
Ramsey, for the Respondent, replied to Wolfe's December
17, 1975, request for recognition and bargaining on
January 5, 1976. Ramsey's letter indicated an awareness of
the unfair labor practice claims, set forth the Respondent's
contention that it was not a "successor," set forth the
Respondent's contention that it did not believe the Union
to represent a majority in any unit appropriate for
bargaining, and suggested that the Union file a representa-
tion petition.
On March 22, 1976, attorney Dixie, for the Union, spoke
to attorney Ramsey, for the Respondent, and offered to
prove the Union's majority status by a card check. Dixie
offered such proof related to a majority of the employees
working, as well as related to a count of those working and
of unreinstated strikers. Ramsey stated that he would
check with his client, the Respondent, and call back if the
Respondent were willing to agree to a card check for
majority status determination. Dixie received no further
communication on this point.
4. The facts reveal the following with respect to the
employees in the appropriate bargaining unit as of January
5, 1976. There were 56 nonsupervisory employees in the
Mosher Steel Company unit at the Shreveport plant on
December 31, 1975. Respondent's unit on January 1 and 5,
1976, had 56 nonsupervisory employees, the same employ-
ees who had been working for Mosher Steel at Shreveport
on December 31, 1975. Of these 56 employees, the
following may be noted. Twenty-one of Respondent's
nonsupervisory employees were employees who had been
striking employees at Mosher Steel Company's Shreveport
plant and had returned to work before the cessation of the
strike on May 12, 1975. Seven of Respondent's nonsupervi-
sory employees were employees who had been striking
employers at Mosher Steel's Shreveport plant and who
were reinstated to their jobs between May 12 and
December 31, 1975. Twenty-eight of Respondent's employ-
ees on January I and 5, 1976, were employees who were
either hired after the strike commenced on July 22, 1974, or
had not gone out on strike. The record indicates that the
number of employees who had not gone out on strike was
around two. As of December 31, 1975, there were 22 unfair
labor practice strikers entitled to reinstatement by Mosher
Steel Company at the Shreveport plant. As of January 1
4 The records relating to employees, their clock numbers and status on
Mosher Steel's payrolls, and the facts in Mosher Steel Company, 220 NLRB
336. in composite effect form the basis for the above numerical findings as
to employees working on December 31, 1975, and on January I and 5, 1976.
The facts. findings, and order in Mosher Steel Company, 220 NLRB 336, the
evidence in this case as to certain terminations and quits, and the findings,
and 5, 1976, there were 22 unfair labor practice strikers
entitled to reinstatement by the Respondent. 9
Contentions, Conclusions
The General Counsel contends that the Respondent was
obligated to bargain with the Union because (1) under the
theory of Golden State Bottling'o the Respondent was
obligated as a successor to remedy Mosher's unfair labor
practices relating to refusal to bargain and to the
reinstatement of unfair labor practice strikers and (2) under
the Burns doctrine" the Respondent was obligated to
bargain as a successor because such obligation had
devolved upon the "successor."
The Respondent contends in effect that it is not a
successor, that for there to be a successor there has to be a
termination of the predecessor, that the one-plant unit was
not the certified unit, that there is a question of majority
status, that an employer is free as a successor to hire
employees it wishes to hire, that the Respondent had an
objective basis for doubt of the Union's majority status,
and that the Respondent and Mosher could decide upon
Mosher's remedying the unfair labor practices.
Considering all of the evidence and the contentions of
the parties, I am persuaded, conclude, and find that the
Respondent was a successor having the obligation to
remedy Mosher Steel's bargaining obligation and other
unfair labor practices as they affected the Shreveport plant
unit and under the circumstances, as a successor, to
bargain with the Union as to the Shreveport plant
complement.
Under the Burns doctrine, one of the factors for
consideration as to a respondent's obligation to bargain as
a "successor" is whether there is a question as to majority
status regarding the Union. In this case, the certified
bargaining unit covered seven plants geographically sepa-
rated. Normally slight increases or decreases of employees
in a bargaining unit are presumed not to affect the majority
status of the representative. It would appear that the
presumption of majority accorded a representative as to an
overall unit of plants would be a presumption of equal
distribution throughout the whole unit and that the
presumption would apply equally as to the individual
plants involved. Absent some evidence of employee
dissatisfaction or change, such presumption would con-
tinue to constitute evidence of a majority status throughout
the unit was well as in the separate parts of the overall unit.
In the instant case, the facts reveal that 65 of 67
employees in the Shreveport plant part of the overall seven-
plant unit went out on strike on July 22, 1974; 21 of such
employees returned to work for Mosher prior to May 12,
1975, and 7 other of such employees returned to work
before December 31, 1975. Twenty-two of such employees
who were unreinstated unfair labor practice strikers and
entitled to reinstatement had not been reinstated as of the
time the Respondent commenced operations on January 1
facts, and order in Mosher Steel Coopany, 226 NLRB 1163, in composite
effect with the records in this case, form the basis for the findings as to the
22 unreinstated strikers.
io Golden State Bottling Company v. N.LR.B., 414 U.S. 168 (1973).
n1 N.LR.B. v. Burns International Security Services, Inc., 406 U.S. 272
(1972).
378
FABSTEEL COMPANY OF LOUISIANA
and 5, 1976. As to the unfair labor practices and
obligations regarding refusal to bargain and to reinstate-
ment of unfair labor practice strikers, the Respondent was
clearly on notice. In addition to the above, the Respondent
had employed some 28 employees who had not been
strikers or who had been hired during the strike against
Mosher Steel.
Thus, the bargaining unit of employees consisted of 78
employees. Of such employees, 56 were actually employed
and 22 of such employees had a status of entitlement to
reinstatement as unfair labor practice strikers. It is clear,
considering the question of presumption flowing from the
January 18, 1974, certification and from the evidence of
employee support for the Union by virtue of 65 out of 67
employees going on strike on July 22, 1974, the evidence
that 28 of such employees were actually employed on
January 1 and 5, 1976, and that 22 of such employees were
unreinstated unfair labor practice strikers entitled to
reinstatement, that the Union enjoyed majority status on
December 17 and 31, 1975, and on January 1, 1976, and
thereafter.
The Respondent contends that there cannot be a
successor unless the predecessor has been terminated. I
reject such contention. The question as to successorship
relates to a continuation of the employing enterprise and
whether or not there are not substantial changes affecting
the employee relationship. 2 The Respondent contends
that as a successor it is free to hire the employees it wishes.
In a sense this is true. However, a respondent obligated to
remedy unfair labor practices of a predecessor in the
process of litigation, including the reinstatement of unfair
labor practice strikers, acts at its peril if it does not
reinstate such unfair labor practice strikers.13 Conceivably,
the Respondent might have hired a complement of
employees including former Mosher Steel Company
employees at Shreveport and including new employees,
and the composition of such employees might not have
comported to the requirements of Burns as to the tests
requiring successorship findings. I do not find it necessary
in this case to determine the question of the effect of the
unreinstated unfair labor practice strikers upon the Burns
test as to comparison of employees in the predecessor and
the successor excepting as to the question of majority
representation status. The Respondent in this case hired all
of the working employees at the predecessor. Having done
so, the only question remaining is the question of the effect
of changes upon "majority" status as to representation.'
As indicated above, it is clear that the Union enjoyed
majority status as the collective-bargaining representative
of the employees in the appropriate bargaining unit.15
12 The essence of the Respondent's argument as to termination of the
predecessor is contrary to the Board's and court's Decision in Dorrance J.
Benzchawel and Terrence D. Swinger, Copartners d/b/a Parknood IGA, el al.,
201 NLRB 905 (1973), and Zim's Foodliner Inc., d/b/a Zim's IGA Foodliner,
er al. v. N.LR.B., 495 F.2d 1131 (1974), enforcement of the Board's
Parkwood lGA decision.
1' It is noted that the Board's Decision in Mosher Steel Company, 220
NLRB 336. issued on September 16, 1975, prior to the Respondent's taking
over and operating the Shreveport plant.
14 Reinstatement of unfair labor practice strikers involves reinstatement
of such unfair labor practice strikers, discharging if necessary such
replacements as have been hired. Thus, the Respondent could have retained
The Respondent contends in effect that it had an
objective basis for doubting the Union's majority status in
the appropriate bargaining unit. Essentially, it appears that
the Respondent contends that the fragmentation of the 7
Mosher Steel unit and its purchase and operation of only I
of such 7 plants, plus the unit's composition of 28 of the
employees who were employed as of the beginning of the
strike and of 28 new or nonstriking employees, afforded it
an objective good-faith doubt as to the majority status of
the Union.
Considering the fact that the Shreveport plant comple-
ment for the Respondent was determined as of January 1
and 5, 1976, when attorney Ramsey rejected the Union's
request for bargaining, I am persuaded that the Respon-
dent did not have a good-faith doubt as to the Union's
majority status. Thus, it is clear that the Respondent was
aware of its obligation to reinstate unfair labor practice
strikers, that 28 of the 56 nonsupervisory employees
working had been strikers, and that it was obligated to
reinstate 22 unfair labor practice strikers. Considering this
along with the clear knowledge that there had been
determination of unfair labor practices by its predecessor, I
find that the evidence preponderates for a finding that the
Respondent did not have an objective good-faith doubt as
to the Union's majority status.' s
Considering all of the above, I conclude and find that,
under the Burns doctrine, the Respondent had an obliga-
tion on January I and 5, 1976, to bargain with the Union
regarding wages, terms, and conditions of employment of
employees in the appropriate bargaining unit. I conclude
and find, therefore, that Respondent's refusal to bargain
with the Union as to wages, terms, and conditions of
employment of employees in such appropriate collective-
bargaining unit constituted a refusal to bargain within the
meaning of Section 8(aXS) and (1) of the Act.' 7
Considering all of the foregoing, I am also persuaded
that the Respondent's obligation to remedy the refusal-to-
bargain obligations of the predecessor as such affected the
Shreveport plant employees warrants a finding of refusal to
bargain as regards such employees. I am persuaded that
essentially the same consideration of the refusal to bargain
under the Burns doctrine would apply under the Golden
State theory. Thus, in considering the problem of remedial
obligation, the question is one of practicability in measur-
ing the interests of the employees and of the employer and
determining an appropriate remedy. Thus, the Respondent
was faced with an obligation to remedy a refusal to bargain
by a predecessor as to a seven-plant unit when Respondent
had only acquired a one-plant unit. Such employees in
Respondent's one-plant unit were entitled to remedy of the
effects of the predecessor's refusal to bargain. It is clear
the replacement employees and reinstated the unfair labor practice strikers
for a total work complement of 78, or the Respondent could have
terminated such replacements as hired in order to reinstate the unfair labor
practice strikers in accordance with economic needs.
15 The Union would have enjoyed majority status even if some of the
replacement employees had been discharged to make room for the
reinstatement of unfair labor practice strikers.
16 The Respondent's failure to respond to the Union's offer for a card
check re majority status is supportive of such finding under the circumstanc-
es of this case.
17 Cf. Parkwood IGA. supra.
379
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Respondent was obligated to tailor its remedy of
such action as regards the one-plant unit. The facts are
clear that the changes involved in acquisition of the one-
plant unit did not destroy the Union's majority status.
Considering the Respondent's remedial obligations as to
the unfair labor practices and in connection therewith the
lack of a good-faith doubt as to majority status, it is clear
that the Respondent was obligated to bargain with the
Union on January I and 5, 1976, because its obligation to
bargain was fixed by its obligation to remedy unfair labor
practices. In essence, the same considerations for a
bargaining obligation under the Burns theory and under
the Golden State theory are required in the factual context
of this case. In sum, I conclude and find that the
Respondent violated Section 8(aX5) and (1) of the Act
because of its admitted refusal to bargain with the Union
as to the appropriate bargaining unit because of its
obligation to remedy a refusal to bargain by the predeces-
sor.
F. The Refusal To Reinstate Unfair Labor Practice
Strikers
The General Counsel alleges and contends and the
Respondent denies that the Respondent discriminatorily
refused to reinstate 30 unreinstated unfair labor practice
strikers after it commenced operations on or about January
5, 1976.
The General Counsel has several theories of violative
conduct. One contention is that the Respondent had an
obligation to reinstate unfair labor practice strikers and did
not do so. Another is that the Respondent engaged in
actual discriminatory consideration of employees for hire
and did not hire such alleged 30 employees because they
had engaged in an unfair labor practice strike. Another
contention is that the Respondent adversely considered
such employees for hire on an individual basis and on a
discriminatory basis because of their striking activity.
As to the 30 alleged employees contended to have been
discriminated against, the facts reveal that there were only
22 unreinstated unfair labor practice strikers entitled to
reinstatement by the Respondent when the Respondent
commenced operations on January I and 5, 1976. Such 22
unfair labor practice strikers entitled to reinstatement by
the Respondent pursuant to its obligation to remedy the
predecessor's unfair labor practices and to reinstate unfair
labor practice strikers were as follows: George W. Brown,
James Cheatham, L. D. Coleman, Herman Gilliam, Mertin
Horton, Jr., Claudia V. Johnson, Larry D. McDonald,
Edward C. McLean, Latham Montgomery, Herman L.
Patterson, John M. Patterson, Clyde Pennywell, Joe N.
Peyton, John A. Pouncy, Jr., Cleo Pratt, Robert C. Procell,
Lee G. Taylor, Rickey C. Taylor, Charles H. Thomas,
Rufus Walls, Roosevelt Washington, and Donald G.
Woodward.
The General Counsel had alleged that the Respondent
had discriminatorily refused to hire eight other employees
who had been unfair labor practice strikers. The facts
reveal that these eight employees had (with respect to the
"R Mosher Steel Company, 226 NLRB 1163.
19 See M. J. McCarthy Motor Sales Co., 147 NLRB 605 (1964), and cases
cited therein.
predecessor) quit, been reinstated, refused reinstatement,
or were disqualified for reinstatement by conduct on the
picket line during the unfair labor practice strike against
the predecessor - Mosher Steel Company. Thus, in 1974
or 1975, David O. Anderson, Jerry L. Stallings, and Joseph
Tuminello had all quit employment at Mosher Steel
Company. Johnny L. Roberson had refused reinstatement
in 1975. Employees Benny L. Harris, Charles E. Stiles, and
Robert Wilkerson had engaged in misconduct during the
unfair labor practice strike against Mosher Steel Company
and were not entitled to reinstatement as unfair labor
practice strikers.18 Employee Robert W. Jones had been
reinstated and was working on January I and 5, 1976.
Lee G. Taylor and Roosevelt Washington were 2 of the
22 unfair labor practice strikers entitled to reinstatement by
the predecessor before December 31, 1975, and by the
Respondent pursuant to its remedial obligations. The
Respondent's contended reason for refusal to reinstate or
hire these two, Taylor and Washington, was alleged
misconduct on the picket line during the unfair labor
practice strike against the predecessor. In Mosher Steel
Company, supra, 1163, it was found that such employees
had not engaged in disqualifying misconduct and were
entitled to reinstatement and backpay. The Respondent
was on notice of such unfair labor practice proceedings at
the time of purchase of the Shreveport plant. The
Respondent's failure of reinstatement of such employees
was one of acting at its peril, and the determination has
been contrary to its contentions.
The facts are clear that unconditional offers to return to
work were made to Mosher Steel Company on May 12,
1975, by the unfair labor practice strikers. The facts are
also clear that the Board's Decision in Mosher Steel
Company, 220 NLRB 336, included (a) findings that the
strike from July 22, 1974, to May 12, 1975, was an unfair
labor practice strike, and (b) an order relating to reinstate-
ment and backpay for unfair labor practice strikers,
including the 22 unreinstated unfair labor practice strikers
referred to herein. Said Board Decision issued on Septem-
ber 16, 1975. The facts are clear that the Respondent was
aware of the pending unfair labor practice cases.
The Respondent contends in effect that agreements were
made by it with Mosher Steel Company whereby question
of remedy concerning reinstatement of unfair labor
practice strikers would be taken care of by actions by
Mosher Steel. Further evidence was offered and received to
the effect that, in 1976, Mosher Steel offered certain of the
unreinstated unfair labor practice strikers jobs at other
Mosher Steel plants, with moving expenses. Certain of such
employees accepted such reinstatement but advised the
Respondent, Fabsteel, that they desired reinstatement at
the Shreveport plant. First, parties cannot by private
agreements undermine the responsibilities to comply with
the National Labor Relations Act or remedial orders of the
Board. Secondly, offer of jobs away from the employing
enterprise which is continuing does not constitute an offer
of reinstatement which effectuates the purposes of the
Act.19
380
FABSTEEL COMPANY OF LOUISIANA
The facts are clear that attorney Wolfe, for the Union, on
December 17, 1975, reiterated a request to the Respondent
for reinstatement of such unreinstated unfair labor practice
strikers.20
The right of reinstatement pursuant to an adjudicatory
order is a continuing one. It is clear that the Respondent
was on notice of such obligation of reinstatement. As soon
as the Respondent became a successor, which it did on
January 1, 1976, such knowledge and obligation blended,
and the failure to reinstate such unreinstated unfair labor
practice strikers constituted conduct violative of Section
8(a)(3) and (1) of the Act.
The General Counsel, as indicated, argued a number of
theories in support of his contention of violative conduct in
refusal to reinstate the unreinstated unfair labor practice
strikers. One theory is that the Respondent actually
considered on a discriminatory basis the selection of the
employees for hire. Thus, the General Counsel contends
that the Respondent discriminatorily considered and
refused to reinstate the unfair labor practice strikers
because of their striking activity. I am not persuaded that
the facts support this contention excepting with respect to
employees Taylor and Washington. The violative conduct
found herein is based simply upon the inherent effect of
discrimination flowing from the refusal to reinstate unfair
labor practice strikers who are entitled to reinstatement
and who have made offers to return to work.
As to Taylor and Washington, the facts reveal that the
Respondent refused to consider them for some job
openings because of alleged misconduct as strikers. In
Mosher Steel Company, 226 NLRB 1163, it was found that
Taylor and Washington had not engaged in disqualifying
misconduct during the strike. Under such circumstances,
the Respondent's conduct in refusing to consider Taylor
and Washington for employment constituted conduct
violative of Section 8(aX3XI) of the Act.2'
The General Counsel also contended that the Respon-
dent discriminatorily considered the unreinstated strikers
for job openings after it commenced operation on January
I and 5, 1976. Excepting for the fact that the unreinstated
unfair labor practice strikers were entitled to reinstatement,
I do not find that the evidence presented reveals discrimi-
nation as to the selection of employees for job openings.
The reasons given for the individual selection of new
employees appeared plausible.
In sum, I conclude and find that the Respondent's failure
and refusal to reinstate on January I, 1976, the 22
unreinstated unfair labor practice strikers constituted
conduct violative of Section 8(a)3) and (I) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
20 Evidence of conversation between Wimberly and Thurman was
introduced relating to offer to return to work in late December 1975 and
early January 1976. I found Thurman to appear the more credible witness
and credit his version of facts over Wimberly's.
21 Mosher Steel Componvy, 226 NLRB 1163; N.L.R.B. v. Burnup & Sims,
Inc., 379 U.S. 21 (1964).
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, it will be recommended that the Respon-
dent cease and desist therefrom and take certain affirma-
tive action to effectuate the policies of the Act.
The Respondent's refusal to recognize and bargain with
the Union in violation of Section 8(aXS5) and (1) of the Act
shall be remedied by an order requiring it to bargain, upon
request, with the Union, as regards wages, hours, terms,
and working conditions of employment of the employees in
the appropriate single-plant unit found herein, and to
embody any understanding reached in a signed agreement.
The Respondent's failure and refusal to reinstate the 22
unreinstated unfair labor practice strikers, in violation of
Section 8(aX3) and (1) of the Act, shall be remedied by an
order requiring reinstatement and backpay to the 22
referred-to unreinstated unfair labor practice strikers,
excepting for Patterson and Walls who have now been
reinstated, and as to Patterson and Walls, requiring that
they receive backpay from January 1, 1976, to date of
reinstatement.22
Backpay due to the discriminatees in this proceeding
shall be computed on a quarterly basis as prescribed in F.
W. Woolworth Cormpany, 90 NLRB 289 (1950), with 6 per-
cent interest thereon in accordance with Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that the
Respondent cease and desist from in any other manner
interfering with, restraining, and coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Fabsteel Company of Louisiana, the Respon-
dent, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and is a
successor employer to the Mosher Steel Company as
regards the Shreveport plant employees who formerly
worked for Mosher Steel Company at Shreveport, Louisi-
ana.
2. United Steelworkers of America, AFL-CIO, is, and
has been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees, includ-
ing leadmen, truckdrivers, janitors, and all plant clericals
employed at Respondent's Shreveport, Louisiana, plant,
excluding guards, watchmen, and supervisors as defined in
the Act, constitute a unit appropriate for collective
bargaining within the meaning of Section 9(b) of the Act.
22 The question of Respondent's backpay liability for the time prior to
January I, 1976, is not presented and apparently left for resolution in the
compliance stage of Mosher Steel Company, 220 NLRB 336.
381
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. At all times since January 1, 1976, and continuing to
date, the Union has been the representative for the
purposes of collective bargaining of the employees of the
unit described above, and, by virtue of Section 9(a) of the
Act, has been, and is now, the exclusive representative of
all the employees in said unit for the purpose of collective
bargaining with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment.
5. The Respondent, since on or about January 1, 1976,
and at all times thereafter, has refused and continues to
refuse to recognize and bargain with the Union as the
exclusive collective-bargaining representative of all the
employees in the unit described above with respect to
wages, hours, and working conditions and other terms and
conditions of employment for the employees in said unit in
violation of Section 8(a)(5) and (I) of the Act.
6. The Respondent, on or about January I, 1976,
discriminated against unreinstated unfair labor practice
strikers by refusing to reinstate such unfair labor practice
strikers in violation of Section 8(a)(3) and (1) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 23
The Respondent, the Fabsteel Company of Louisiana,
Shreveport, Louisiana, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to reinstate or otherwise discriminating
against employees in regard to hire or tenure of employ-
ment, or any term or condition of employment because of
their union or protected concerted activities, including
their engaging in an unfair labor practice strike, except to
the extent permitted by the proviso to Section 8(a)(3) of the
Act.
(b) Refusing to recognize or bargain with the Union as
exclusive collective-bargaining representative of all the
employees in the appropriate collective-bargaining unit set
out below as to wages, hours, terms, and conditions of
employment of such employees.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act, except to the extent permitted
by the proviso to Section 8(a)(3) of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer to the employees named below, excepting for
Walls and John M. Patterson, immediate and full reinstate-
ment to the former position held by each or, if such
23 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
position is no longer existing, to a substantially equivalent
position, without prejudice to their seniority or other rights
previously enjoyed, and make whole each of the employees
named below, including Walls and John M. Patterson, for
any loss of pay or other benefits suffered as a result of the
failure to reinstate such unfair labor practice strikers on
January 1, 1976, in the manner described above in the
section entitled "The Remedy."
George W. Brown
James Cheatham
L. D. Coleman
Herman Gilliam
Mertin Horton, Jr.
Claudia V. Johnson
Larry D. McDonald
Edward C. McLean
Latham Montgomery
Herman L. Patterson
John M. Patterson
Clyde Pennywell
Joe N. Peyton
John A. Pouncy, Jr.
Cleo Pratt
Robert C. Procell
Lee G. Taylor
Rickey C. Taylor
Charles H. Thomas
Rufus Walls
Roosevelt Washington
Donald G. Woodward
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(c) Upon request, bargain collectively with United
Steelworkers of America, AFL-CIO, as the exclusive
bargaining representative of the employees in the appropri-
ate collective-bargaining unit and, if an understanding is
reached, embody such understanding in a signed agree-
ment. The appropriate collective-bargaining unit is:
All production and maintenance employees, including
leadmen, truckdrivers, janitors and plant clericals
employed at Respondent's Shreveport, Louisiana,
plant, excluding guards, watchmen, and supervisors as
defined in the Act.
(d) Post at the Respondent's plant at Shreveport,
Louisiana, copies of the attached notice marked "Appen-
dix." 24 Copies of said notice, on forms provided by the
Regional Director for Region 23, after being duly signed by
Respondent's representatives, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by Respon-
dent for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
24 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
382