Hunt Oil Co.

National Labor Relations Board - Board Decisions

May 4, 1967

164 N.L.R.B. 325 (N.L.R.B. 1967)

HLH PRODUCTS
HLH Products , Division of Hunt Oil Co. and
Audrey Rutledge . Case 25-CA-2366.
May 4,1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On November 21, 1966, Trial Examiner Melvin
Pollack issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. Thereafter, Respondent filed exceptions to
the Decision and a supporting brief, and the General
Counsel filed a brief in support of the 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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, with the following modifications.'
325
another section simply because that section was not specifically
alleged See N.L R B v Pecheur Lozenge Co , 209 F 2d 393, 402
(C A 2), American Newspaper Publishers Association v N L R B,
193 F 2d 782 , 800 (C A. 7), cert . denied 344 U S 812 An
affirmative order would in any event be required here to restore
the status quo ante and to remedy the 8 (a)(1) and (3) violations we
have found because the Respondent 's conduct clearly evinces a
rejection of its duty to bargain collectively as evidenced by the
flagrant 8(a)(1) and (3) conduct which we have found See Aero
Corporation , 149 NLRB 1283 , fn 3, enfd . 363 F.2d 702 (C A D C.)
2 Substitute the word employees for that of employers in the
second paragraph of the notice attached to the Trial Examiner's
Decision
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MELVIN POLLACK, Trial Examiner: This proceeding was
heard in Muncie, Indiana, on June 6, 7, and 8, 1966, by
Trial Examiner Melvin Pollack on the complaint of the
General Counsel and the answer of HLH Products,
Division of Hunt Oil Co., herein called Respondent.'
Respondent closed down its Muncie plant on February 4,
1965, and resumed operations about August 1, 1965. The
principal questions presented are whether upon resuming
operations, Respondent (1) unlawfully refused to bargain
with a certified union and (2) discriminatorily failed to
recall and reemploy 65 employees in the bargaining unit.2
All parties appeared and were afforded full opportunity to
be heard and to examine and cross-examine witnesses.
Briefs have been received from General Counsel and
Respondent.
Upon the entire record in the case, the briefs, and my
observation of the witnesses, I make the following:
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, HLH Products,
Division of Hunt Oil Co., Muncie, Indiana, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order.2
' Respondent contends that the 8(a)(5) allegation should be
dismissed because no refusal to bargain by the Respondent
occurred within 6 months of the April 19 amended charge
specifying an 8(aX5). However, the original charge alleging 8(a)(1)
and (3) was filed sn November 2, 1965, and within the 10(b) period
the Respondent 's July-August discriminatory recall policy
occurred. This activity in itself constituted a violation not only of
Section 8(a)(1) and (3) as alleged and as found by the Trial
Examiner, but also, by its very nature, a refusal to bargain.
Respondent by this unlawful discrimination made clear that it
sought to avoid its bargaining obligation. Therefore, we find it
unnecessary to rely upon the continuing nature of the Union's
demand, as the Trial Examiner did by considering the
Respondent's October hiring policy in itself a rejection of
bargaining, and we base our 8(a)(5) finding and order on the
Respondent's 8(a)(1) and (3) activity which, as the Trial Examiner
found, was aimed at keeping this certified Union out of the plant
The Board is no prevented from considering and deciding that
conduct violative of one section of the Act is also violative of
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT
Respondent , a Delaware corporation , is engaged in the
processing and canning of food products at plants in
several States , including a plant in Muncie , Indiana.
Respondent 's annual interstate sales and purchases each
exceed $50 ,000. I find , as Respondent admits, that it is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 135, International Brotherhood of Te amsters,
Chauffeurs, Warehousemen and Helpers of America,
herein called the Uriion, is a labor organization within the
meaning of Section 2(5) of the Act.
' The charge herein was filed on November 2, 1965, and an
amended charge was filed on April 19, 1966 A complaint alleging
violations of Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended, at Respondent' s Muncie plant issued on the
original charge on December 30, 1965 An amendment to the
complaint based on the amended charge issued on May 3, 1966,
alleging a violation of Section 8(a)(5) of the Act A list of alleged
discrimnatees attached to the complaint was amended at the
hearing.
2 The alleged discrimmatees are hereinafter sometimes
referred to as the complainants
164 NLRB No. 61
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Sequence of Events
Respondent purchased its plant at Muncie, Indiana,
from William Butterfield in December 1961 and retained
Butterfield as plant manager. Respondent's production,
maintenance, and warehouse employees were then
represented by the Union. On September 7, 1962,
Butterfield, in behalf of Respondent, executed a
collective-bargaining contract with the Union. The
contract expired on March 31, 1964. Sometime thereafter,
Butterfield and several employees met at a restaurant
during working hours and discussed voting the Union out.
Butterfield at this time was no longer plant manager but
worked as a "troubleshooter" for Respondent's president,
Harold L. Hunt, and frequently appeared at the Muncie
plant.3 Foreman Jim Reynolds, who had set up the meeting
in the restaurant at Butterfield's request, subsequently
used a company car to drive employee Bob Everhart to the
Board's office in Indianapolis, where Everhart filed a
petition for decertification of the Union. An election on
this petition was scheduled for July 17, 1964.
Butterfield visited many employees at their homes
before the election and urged them to vote against the
Union if they wanted to keep their jobs. For example, he
told A. V. Harry that Hunt would not let other people run
his business and would shut the plant down if the Union
won the election, told Mary O'Neal that he could
"guarantee" her work if the Union was voted out but could
also "guarantee" that she would be out of a job "in less
than a year" if the Union won the election, told Thelma
Little that her job depended on getting the Union out, and
told Norma Benedict that "Mr. Hunt ... had no use for a
union" and that the employees surely would be without a
job if the Union won the election because Mr. Hunt "would
close the plant before he would recognize a union."
Butterfield also campaigned against the Union at the
plant. He told employees Willard Reynolds, Scott, and
Wright that Hunt would "close the doors" if the Union was
not voted out. On the day before the election, production
was halted at the plant so that Butterfield could address
some 20 women employees. Butterfield included in his
remarks a warning that President Hunt would close the
plant within 6 months to a year if the Union won the
election.4
The election was held as scheduled, the Union won by a
vote of 65 to 25, and was certified on July 27, 1964, as the
bargaining agent of the production, maintenance, and
warehouse employees at the Muncie plant, including
garage employees, janitors, inspectors, and local
truckdrivers.
Respondent and the Union began bargaining on
August 11, 1964, and seemingly agreed on a new contract
3 The record does not disclose Butterfield's precise
relationship to Respondent.
4 A person called the "chicken woman" by the employees, who
had been sent to the Muncie plant by President Hunt, similarly
warned Norma Benedict that failure to vote the Union out would
mean that Hunt would close the plant within 6 months A week or
so before the election, the "chicken woman" asked Audrey
Rutledge (the Charging Party in this proceeding) to become a
supervisor Rutledge refused A few days later, the "chicken
woman" told Williard Reynolds that the Union would probably
lose the election "if they could put Audrey out of the way " Zelpha
Gibson testified that the "chicken woman" asked her to name
employees who "would be safe to go to and talk to concerning
which was approved by the union membership on
September 18, 1964. However, at a meeting on October 1,
1964, Plant Manager Peter J. Lux5 and Business Agent
Virgil Barber presented different versions of the contract.
Each man insisted that his version was the one previously
negotiated and refused to sign the contract presented by
the other.6
On February 4, 1965, Respondent closed the Muncie
plant.' Three to five truckloads of potatoes in the
warehouse and some machinery were shipped to
Respondent's plant at Alma, Arkansas. Other inventory on
hand and quality control equipment were shipped to
Respondent's Plum Tree plant, which is about 40 miles
from the Muncie plant.
In March 1965 a group of businessmen in the Muncie
area and also the American Maize Company showed
interest in the purchase of the Muncie plant. No sale was
effected, however, and Respondent took steps looking
toward a reopening of the plant for the tomato season
beginning about the first of August. Keith Sparks,
Respondent's former farm manager, who had been laid off
on March 5, was recalled about March 20 and reported on
April 1, 1965. Sparks purchased tomato crops and made
arrangements for their harvesting. On May 15, 1965, Plant
Manager John C. Volz of the Plum Tree plant replaced
Peter Lux as plant manager of the Muncie plant. At this
time, maintenance employees were preparing the plant for
the coming season. On July 15, President Hunt instructed
Volz to recruit labor for the processing of tomatoes. It had
been Respondent's practice to recall laid-off employees by
post card or telephone. Volz did not follow this practice,
however, but supplied the Indiana Employment Security
Division with a list of employees compiled from
Respondent's records. Pursuant to arrangements with
Respondent, the Division sent these employees letters
advising them that Respondent needed men and women to
process tomatoes and inviting them to register with the
Division on July 22 and 23, 1965. The Division also
advertised for cannery workers by newspaper and over the
radio. Persons who responded to the letters and
advertisements were registered for referral to food
processing plants. The Division thereafter filled requests
for seasonal cannery workers from Respondent and other
food processors by telephone calls to persons selected at
random from a file of flagged cards.
By letter dated July 23, 1965, Business Representative
Barber of the Union requested Respondent to recall
employees "in their seniority order" and "to meet with our
representatives to negotiate a new contract." Respondent
replied on July 27 that operations at the plant would
probably be "temporary and seasonal," that its contract
with the Union had expired, and that it believed "former
employees of our Muncie plant have better employment
than we can provide." On August 2, Barber answered that
voting the union out "
Lux was manager of the Muncie plant from July 31, 1964, until
May 15, 1965
6 Lux reiterated in letters to Barber dated October 1 and 8,
1964, his position that the contract presented by Barber contained
extensive changes from the contract submitted by Respondent
and allegedly accepted by the Union Barber did not reply to these
letters.
' Employee Russell Pollard testified that Plant Manager Lux
and Foreman Albert Glass told him the plant was being shut down
because of the Union Lux and Glass denied making any such
remark to Pollard I credit Pollard Infra, fn 9
HLH PRODUCTS
Respondent's "former" employees "regardless of ... how
you may describe them" had "first right" to jobs in the
reopened plant, that these employees "DO CLAIM SUCH
JOBS," that the Union's letter was a "NOTICE AS TO
SUCH CLAIM," that " in most instances" it was not true
that the employees had better jobs than Respondent could
provide, and that, as the certified bargaining agent of the
Muncie plant employees, the Union "would like to sit
down with you and work out the problems as to the re-hire
of said former employees as well as the terms of a current
collective-bargaining agreement ." Respondent rejected
the Union's demands on August 9, stating "we believe that
representations in our previous letter to you of July 27,
1965, are true and correct." On August 24, Respondent
again rejected the Union's position as reaffirmed in a letter
dated August 18.
Meanwhile, Volz left the Muncie plant on July 28, 1965,
to resume his position as manager of the Plum Tree plant.
Plant Manager Chester Miller from Respondent' s plant in
Sanford, Florida, took over as acting manager of the
Muncie plant. At this time, in addition to maintenance
personnel, Respondent's employees included two office
girls, quality control personnel Melvin Fields and Stella
Bell," and Foremen Himes, Albert Glass, and Strunk.
Toward the end of July, Miller put Fields in charge of
hiring plant personnel. Fields, who succeeded Miller as
plant manager about August 14, interviewed some 700
applicants for employment during the 1965 tomato pack
and hired about 600 of them. Hourly paid employees filled
out applications for employment. Persons hired as
"peelers"-a category of employment not included in the
Union's certification-were not required to fill out
applications. Fields hired almost exclusively persons
referred by the Indiana Employment Security Division.
Some of these persons worked for only a single day or part
of a day.
A number of "old hands" unsuccessfully applied for
work at the plant. Jackie Robinson asked Plant Manager
Volz 3 or 4 weeks before the tomato pack began if he had
"a chance of getting a job" and Volz replied that he "didn't
see how [Respondent] could get out of" calling "the old
employees back." Robinson returned to the plant in
August and asked Fields for part-time work. Fields said all
jobs were filled. Russell Pollard, a laborer at the Muncie
plant for 10 years, asked Fields for part -time work before
the tomato pack began. Fields referred Pollard to the plant
manager -then Chester Miller-who was in the cafeteria.
Miller first questioned Pollard about his union
membership and then said, "we just don't want union
members in the plant." As Pollard was leaving the plant,
he ran into Albert and Paul Glass and was told that
Respondent did not want union men in the plant and that
he should get out before he was "chased out."9 About
August 1, Rex Hart, a shipping department employee,
' Following the February 2, 1965, shutdown, Fields was
transferred from the Muncie plant to the Sanford plant He
reported back to the Muncie plant on July 12, 1965 Bell was
recalled sometime thereafter by Fields
9 Pollard was confused about dates and did not recall Miller's
name or whether Miller came from Texas or Florida The record
shows, however , that Miller was the acting plant manager just
before the tomato season started As Pollard described his
conversation with Miller and the Glasses with particularity and
impressed me as a reliable witness, I credit his testimony
concerning these conversations
10 Gibson and her husband, Melvin, testified that Supervisor
Himes told them about 2 weeks before the start of the tomato
327
asked Fields for work. Fields referred him to Supervisor
Himes who said he needed help. Fields, however, did not
hire Hart, saying that he did not want union trouble on his
hands. Zelpha Gibson, a relief girl, spoke to Fields over the
telephone early in August and was told "We're all filled
up."10 Willard Reynolds, a garage mechanic, who was
interested in part-time work, asked Fields in mid-August
who was going to keep up the towmotor and trucks but
received no answer. Mary O'Neal, who had worked on
both tomatoes and potatoes, asked Fields for work four
times between August and Labor Day. She told Fields on
Labor Day that "two girls ... was going to quit." Fields
promised to put her to work if the girls quit. At least one
girl, Betty Cook, quit but Fields did not recall O'Neal.
Thelma Little, a potato sorter, similarly applied for work
several times but was told each time that no work was
available. On September 16, Audrey Rutledge, Dean
Bowles, and Anna Cowley asked Fields for work. Fields
said they were "full up." Rutledge referred to a newspaper
article about Respondent's employment of "welfare
people" but Fields replied that "the paper was playing it
up too big." Wilma and Allen Gates, and Pearl Holt also
vainly sought work in the plant. Fields told Holt in
November and again in December that new equipment
was coming into the plant and more help might be needed
after the first of the year.
Respondent began to process potatoes on October 18,
1965, selecting for this work employees who had worked
on tomatoes. Plant Manager Fields told the employees that
they were going to get a wage increase because the Muncie
plant "was keeping its head above water and Mr. Hunt felt
that they should all have a raise." The employees were
given a raise of 12 cents an hour. Respondent also
recognized seniority for shift assignments and vacations,
using the original date of hire for the "old hands"
employed after the reopening of the plant.
The certified bargaining unit included about 100
employees when the Muncie plant was shut down on
February 2, 1965. Some 60 of these employees were not
reemployed after the plant reopened in the summer of
1965.11
B. Analysis and Conclusions
1. The discrimination in hiring
A seniority list of employees represented by the Union,
posted at the Muncie plant on January 15, 1965, shows
that, of 101 employees on the list, 39 started to work at the
plant before Respondent purchased it from William
Butterfield in December 1961, that 29 employees started
work in 1962, that 23 employees started work in 1963, and
that only 10 employees started work in 1964 or 1965. The
years of service put in by these employees, and the
testimony of complainants at the hearing that their work
pack that the plant would operate if the Union was kept quiet but
would be closed down if "they got the Union started back up
again ." Casio Cooper , a towmotor operator , ascribed similar
remarks to Himes and Supervisor Albert Glass Himes and Glass
admit conversations at the plant with these employees but deny
making any antiunion remarks. I consider the Gibsons and
Cooper trustworthy witnesses and credit their testimony
" The complaint as amended at the hearing alleges
discrimination against 65 employees Five of these employees
worked in the reopened plant Priscilla Duncan, Ann
Throckmorton, A. V Harry, and Gertie Burke were hired for the
tomato pack but not for the potato pack Bravel Dobbs was not
reemployed until March 26,, 1966
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had not been criticized, indicate that they constituted a
competent work force. It had been Respondent's practice
before the February 1965 shutdown to recall laid-off
employees by telephone or post card. As "seasoned men
are better than greenhands," 12 it seems that Respondent
would have adhered to this practice and recalled its old
employees when it reopened the Muncie plant. As full-
scale processing operations did not begin until
approximately 1 month after President Hunt directed
Plant Manager Volz on July 15, 1965, to recruit labor to
process the 1965 tomato crop, Respondent had ample time
to ascertain how many old employees were interested in
returning to work at the Muncie plant. The recall of these
employees were entirely compatible with Respondent's
arrangements with the Indiana Employment Security
Division to obtain plant personnel, for the Division sent
applicants to the Muncie plant only upon request.
Respondent, however, merely sent a list of 1964 employees
to the Division without any instructions to accord them
priority of referral, and thereafter refused to bargain with
the Union over their recall. Even though many persons
referred by the Division worked a day or less, Respondent
did not hire old, reliable employees who appeared at the
plant seeking work. Indeed, antiunion statements were
made to several of them, including Russell Pollard, Rex
Hart, Zelpha and Melvin Gibson, and Castro Cooper.13
I find from the foregoing circumstances, evaluated
against Respondent's sponsorship of a decertification
petition and its threats before the July 1964 election to
close the Muncie plant if the Union won the election,'" that
Respondent failed to recall and reemploy the workers
employed before the shutdown of February 2, 1965,
because it knew that most of them were union supporters
and it wanted to keep the Union out of the plant.
The General Counsel urges, as further background
evidence of antiunion motivation in Respondent's hiring
procedure, that Respondent reneged on a negotiated
contract and that it "feigned" a permanent shutdown of
the Muncie plant on February 2, 1965, as a step towards
eliminating the Union and its supporters from the plant.
Respondent argues that events after the election refute
any inference of antiunion discrimination in hiring, that it
bargained in good faith with the Union and that it was the
Union which frustrated bargaining by reneging on a
negotiated contract, and that it closed the Muncie plant
because it was losing money and reopened it only to make
it more attractive to prospective purchasers.
At their meeting on October 1, 1964, Plant Manager Lux
and Business Agent Barker presented different versions of
the contract allegedly negotiated and failed to sign a
contract because each man insisted that his version of the
contract was correct. The record does not warrant a
determination that either party acted in bad faith, for it
fails to show whether the parties actually reached
agreement on a contract or only mistakenly believed they
had done so. I therefore assume for purpose of analysis
that both Respondent and the Union acted in good faith, in
presenting their different versions of the contract for
12 N.L.R B v Remington Rand, Inc, 94 F.2d 862, 872 (C A 2).
13 I find, as alleged in the complaint, that Respondent violated
Section 8(a)(1) of the Act by Chester Miller's interrogation of
Pollard about his union affiliation, and by Albert Glass' statement
to Cooper that the plant would operate only if the Union was kept
out.
14 Butterfield described himself as a "troubleshooter" for
President Hunt and the record shows that Hunt instructed a
truckdriver from the Muncie plant to take the "chicken woman"
signature. Respondent's willingness to sign a contract
significantly different from one acceptable to the Union'15
however, hardly compels an inference that it had
abandoned its opposition to the Union. Indeed, as found
below, Respondent, upon reopening the plant, unlawfully
refused to resume bargaining with the Union.
Respondent's explanations for the closing and
reopening of the Muncie plant are unconvincing. President
Hunt allegedly closed the plant in February 1965 because
it was losing money, decided in March to contract for
tomatoes and ready the plant for the 1965 tomato pack so
that the plant could be more readily sold, and in June or
July issued instructions to run the pack because the plant
had not yet been sold. An "Income Statement" put into
evidence by Respondent shows losses for the combined
operations of the Muncie and Plum Tree plants in 1962
and 1963. Although Respondent claims that the losses are
entirely attributable to the potato operations at the Muncie
plant, it offered no documentary support for this claim. I
therefore find, as shown by the Income Statement, that
both plants were unprofitable. Nevertheless Respondent
closed only the Muncie plant. As to the selling of the plant,
the record shows no attempt by Respondent to find other
prospective purchasers after the unsuccessful March 1965
negotiations with a group of Muncie businessmen and the
American Maize Company. Respondent has not advertised
the plant for sale and the record shows that new
equipment was installed around January 1, 1966. In these
circumstances, and as the closing of the plant
approximately 6 months after the Union won a Board
election was preceded by antiunion threats predicting
such action and was followed upon reopening by a hiring
procedure which ignored the Union's bargaining rights and
eliminated a majority of employees who voted in the
election, I find, as alleged by the General Counsel, that
Respondent "feigned" a permanent closing of the plant on
February 4, 1965, as a device to get rid of the Union and its
supporters.
As Respondent denied the complainants priority of
employment for antiunion reasons, I find no merit in its
argument that the method it adopted to restaff its plant by
referral from the Indiana Employment Security Division
did not discriminate against union applicants. I also find
no merit in Respondent's argument that its hiring of 39 old
employees refutes any inference of discrimination against
the complainants. By refusing to bargain with the Union on
the reemployment of its old employees, and by making
their reemployment depend on referral by the
Division-which referral was highly uncertain because it
depended upon a random selection of cards-Respondent
impressed upon them the futility of union representation
and drastically weakened the Union's strength in the
plant.
Respondent argues that in any event no finding of
discrimination is permissible as to complainants who did
not indicate their interest in employment by registering
with the Indiana Employment Security Division or by
directly applying for work at the plant. I reject this
to the plant shortly before the election Respondent permitted
Butterfield and the "chicken woman" to carry on antiunion
activity at the plant. I therefore find that Respondent is
chargeable with their preelection conduct N.L R B. v Byrds-
Manufacturing Corporation, 324 F.2d 329, 332 (C A. 8), and the
cases there cited
15 Respondent's letter of October 8, 1964, to the Union alleges
that the contract presented by the Union on October 1 "contains
substantial and material changes which we cannot accept "
HLH PRODUCTS
argument for the Union's letters of July 23 and August 2,
1965, gave Respondent notice that the Union, as their
certified bargaining agent, was applying for work in behalf
of all employees in the bargaining unit . 16 N.L.R.B. v.
E. L. Dell, Jr., Trading as Waycross Machine Shop, 283
F.2d 733, 740 (C.A. 5). Moreover, as referral by the.
Division for work with Respondent turned on "the luck of
the draw" and Respondent refused employment to
complainants who applied for work at the plant, I find that
neither registration with the Division , nor an application
for work at the plant, is a prerequisite to a finding of
discrimination against any complainant . Cf. N.L.R.B. v.
Valley Die Cast Corp., 303 F.2d 64, 65-67 (C.A. 6).
2. The refusal to bargain with the Union
Respondent's refusal to bargain with the Union on and
after July 23, 1965, over the recall and reemployment of
employees in the certified bargaining unit was violative of
Section 8(a)(5) of the Act, as it occurred within the
certification year and was clearly motivated by a desire to
gain time to dissipate the Union's majority status by
bypassing the employees who voted in the 1964 election
and restaffing the plant through the Indiana Employment
Security Division. Ray Brooks v. N.L.R.B., 348 U.S. 96;
Frank Bros. Companyv. N.L.R.B., 321 U.S. 702.
Respondent contends, however, that Section 10(b) of the
Act" precludes such a finding because the record
contains no evidence of events within the Section 10(b)
cutoff date-October 19, 1965-showing a refusal to
bargain with the Union. Respondent overlooks its
continued disregard of the Union in its hiring after
October 19. Having been thrice turned down by
Respondent, the Union was not obliged to make further
useless demands for bargaining over the recall of
employees. This is therefore not "a case of mere company
inaction for 6 months following a refusal to bargain" but
one where Respondent's "determination to refuse to
recognize and bargain was actively implemented [after
October 19] by its efforts to undermine the Union."
N.L.R.B. v. Aero Corporation, 363 F.2d 702, 706
(C.A.D.C.). Respondent argues in its brief that a theory of
"continuing violation" is barred by Machinists Local 1424
v. N.L.R.B., 362 U.S. 41. But as stated in the Aero
Corporation case,supra:
That decision cannot be viewed so broadly. When
within the six-month period there has been active
conduct, as contrasted with mere passive inaction
following an old offense, it is open to the Board to
refer to previous acts "to shed light on the true
character of matters occurring within the limitations
period." 362 U.S. at 416. In effect what was involved
here was a basic Company approach started more
than six months prior to the charge, but carried
forward by more recent actions. The Board in effect
viewed the actions within the six-month period as
reiterations by deed of the underlying refusal to
bargain and hence as establishing a violation of
Section 8(a)(5). We think this was within its authority
under the Act.
18 I have found that the plant was shut down temporarily on
February 4, 1965, as an antiunion stratagem . The workers in the
certified bargaining unit therefore retained their status as
employees of Respondent . I would reach the same result even if
the shutdown was intended to be permanent , for Respondent
changed its mind within 2 months, purchased tomato crops, and
IV. CONCLUSIONS OF LAW
329
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(3) and (1) of the Act
by refusing to recall and reemploy 65 employees about
August 1, 1965, because of their union activty.
4. Respondent violated Section 8(a)(5) and (1) of the Act
by refusing to bargain with the Union on and after July 23,
1965.
5. Respondent violated Section 8(a)(1) of the Act by
coercively interrogating employees about their union
activity and by threatening to discontinue operations
rather than to operate a unionized plant.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
V. THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
It has been found that Respondent refused employment
to the 65 complainants because of their union activities or
sympathies. I shall therefore recommend that Respondent
offer them immediate and full reinstatement to their
former or substantially equivalent positions at the Muncie
plant, without prejudice to their seniority or other rights
and privileges, dismissing if necessary all, persons not
employed by Respondent on February 4, 1965. If there is
not then sufficient work available for the remaining
employees including those offered reinstatment, all
available positions shall be distributed among them
without discrimination because of their union activity or
sympathy, in accordance with such system of seniority or
other nondiscriminatory practice heretofore applied by
Respondent in the conduct of its business. All such
employees for whom jobs are not available after such
distribution shall be placed on a nondiscriminatory
preferential hiring list. I shall further recommend that
Respondent make the complainants whole for any loss of
pay suffered because of the discrimination against them.
The loss of pay under the order recommended shall be
computed in the manner set forth inF. W. Woolworth Co.,
90 NLRB 289, with interest added thereto in the manner
set forth in Isis Plumbing & Heating Company, 138 NLRB
716.
I shall further recommend that Respondent bargain with
the Union upon its request.
As the unfair labor practices of Respondent found
herein go to the heart of the Act, it will be recommended
that Respondent cease and desist from infringing in any
manner upon the rights guaranteed in Section 7 of the Act.
RECOMMENDED ORDER
HLH Products, Division of Hunt Oil Co., its officers,
agents, successors , and assigns , shall:
readied the plant for the tomato pack Cf NLRB. v
W C. Bachelder, Receiver for Hoosier Veneer Co., 120 F 2d 574,
578 (C.A. 7)
" Section 10 (b) provides in pertinent part that "no complaint
shall issue based upon any unfair labor practice occurring more
than 6 months prior to the filing of the charge "
330 DECISIONS OF NATIONAL
1. Cease and desist from:
(a) Unlawfully interrogating employees about their
union membership and activity or threatening them with
loss of employment because of such membership or
activity.
(b) Discouraging membership in the Union, or any other
labor organization, by unlawfully discriminating against
any of its employees in regard to their hire or tenure of
employment.
(c) Refusing to bargain with the Union as the exclusive
bargaining representative of its production, maintenance,
and warehouse employees, including garage employees,
janitors, inspectors, and local truckdrivers.
(d) In any other manner, interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Upon request, bargain collectively with the Union as
the exclusive representative of all the employees in the
certified bargaining unit.
(b) Offer the individuals listed in the attached notice
immediate reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority
or other rights and privileges, and make them whole for
any loss of earnings suffered by reason of the discrimina-
tion against them, as provided in "The Remedy" section
of this Decision.
(c) Notify the above individuals if serving in the Armed
Forces of the United States of their right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(d) 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.
(e) Post at its place of business and plant in Muncie,
Indiana, copies of the attached notice marked
"Appendix.""' Copies of said notice, to be furnished by
the Regional Director for Region 25, after being duly
signed by Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 25, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith. 19
ii In the event that this Recommended Order is adopted by the
Board , the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words " a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order."
19 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read- "Notify said
Regional Director , in writing , within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL bargain, upon request, with Local 135,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the
representative of our production, maintenance, and
warehouse employees, including garage employees,
janitors, inspectors, and local truckdrivers.
All our employees have the right to)oin or support a
labor union . WE WILL NOT in any manner interfere
with their exercise of this right. Specifically, we will
not question employees about their union
membership and activity or threaten them with loss of
employment because of such membership and
activity. WE WILL NOT discourage membership in
Local 135, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
or any other labor organization , by refusing to hire
employees because of their union activity or
sympathy or by discriminating in any other manner in
respect to their hire or tenure of employment.
WE WILL offer to the following employees
immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to
their seniority or other rights and privileges, and
make them whole for any loss of pay suffered as a
result of the discrimination against them.
Finley Barnett
Charles Beasley
Martha Bell
Norma Benedict
Kenneth Boles
Dean M.Bowles
Cletus Buck
Gertie Burke
Albert Clark
George Coffey
William Coil
Anna Conley
Castro Cooper
Clarence Cooper
Clifton Cooper
Flinton Cooper
O. D. Cooper
Junior Cope
Jett Davis
Charles Dearduff
Perry Delk
Bravel Dobbs
William Dodson
Priscilla Duncan
Margaret Earley
Pat Franklin
Allen Gates
LeRoy Gates
Wilma Gates
Henderson Gee
Virgil Gregory
A. V. Harry
Rex Hart
Joe Hicks
Arnold Hines
Pearl Holt
Dewey Howard
Oscar Huddleston
Ather Hurt
Thelma Little
Herbert Merrill
Ethel Metzger
Mary Mickel
Paul Millington
Ethel Neese
Mary O'Neill
Russell Pollard
Oma Jean Rains
Dorothy Reagan
James Reagan
James Reeder
Willard Reynolds
Bessie Roberts
Betty Robinson
Jackie Robinson
Walter Rowls
Audrey Rutledge
Mary Sams
Raymond Scott
Earl Stephens
HLH PRODUCTS 331
Jesse George
Zeipha Gibson
Billy Trasher
Anne Throckmorton
Noble Troutman
presently serving in the Armed Forces of the United States
of their right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge front the Armed Forces.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, ISTA Center,
150 West Market Street, Indianapolis, Indiana 46204,
HLH PRODUCTS, DIVISION
OF HUNT OIL CO.,
(Employer)
Dated By
(Representative ) (Title)
Note: We will notify the above- named employees , if Telephone 633-8921.