Morton Metal Works

National Labor Relations Board - Board Decisions

Jan 22, 1993

310 N.L.R.B. 195 (N.L.R.B. 1993)

195
310 NLRB No. 29
MORTON METAL WORKS
1 Any additional amounts owed into the benefit funds in order to
satisfy the Board’s ‘‘make-whole’’ remedy shall be determined in
accordance with the procedure set forth in Merryweather Optical
Co., 240 NLRB 1213, 1216 fn. 7 (1979).
Morton Metal Works, Inc. and Sheet Metal Work-
ers’ International Association, Local 24, AFL–
CIO. Case 9–CA–28911
January 22, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On July 23, 1992, Administrative Law Judge Rich-
ard H. Beddow Jr. issued the attached decision. The
General Counsel filed limited exceptions and a sup-
porting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions, to amend the remedy, and to adopt the rec-
ommended Order, as modified and set forth in full
below.
AMENDED REMEDY
The General Counsel excepts to the judge’s failure
to provide a complete reinstatement and make-whole
remedy for the Respondent’s unlawful refusal to recall
or hire employees because of their union membership.
We find merit in the General Counsel’s exceptions,
and shall modify the remedy and recommended Order
accordingly.
Contrary to the judge’s suggestion, the General
Counsel was not required to request specifically a rein-
statement and make-whole remedy for a violation of
Section 8(a)(3). It is well established that both named
and unnamed discriminatees are entitled to a reinstate-
ment and make-whole remedy in a situation, as here,
where the General Counsel has alleged and proven dis-
crimination against a defined and easily identified class
of employees. Iron Workers Local 433 (Reynolds Elec-
trical), 298 NLRB 35, 36 (1990).
Here, the complaint alleged that beginning in August
1991 the Respondent terminated the employment of, or
stopped using on its various jobs, all employees who
were members of the Union. In addition, at the hear-
ing, counsel for the General Counsel stated that her in-
tention was to leave to the compliance stage of the
proceeding both the identification of the specific indi-
viduals who would be entitled to backpay and the
amount of backpay to which they would be entitled.
Thus, the Respondent clearly was on notice that the
General Counsel was seeking a make-whole remedy
for all employees who were unlawfully denied employ-
ment by the Respondent. The record shows, and the
judge found, that the Respondent had an established
practice of recalling directly certain employees by
name, and at other times the Respondent contacted the
Union and requested referral of employees through the
Union’s hiring hall. Accordingly, the judge has found
discrimination against a defined and easily identified
class of employees—those named by the judge as indi-
viduals who would have been directly recalled by the
Respondent and also those as yet unidentified employ-
ees who would have been referred to the Respondent
through the Union’s hiring hall during the material
time period. The identification of which employees are
in this class is left to the compliance stage.
We shall also modify the judge’s remedy and rec-
ommended Order to provide a make-whole remedy for
the Respondent’s violations of Section 8(a)(5).
Accordingly, having found that the Respondent has
discriminated against a defined and easily identified
class of employees, we shall order the Respondent to
offer recall to any employees who would have been
hired through the Union’s hiring hall, or who would
have been specifically recalled by name by the Re-
spondent, and make whole those employees for any
loss of wages and other benefits they may have suf-
fered as a result of the Respondent’s discrimination
against them. Backpay shall be computed in the man-
ner prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as provided in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
In addition, because the Respondent violated Section
8(a)(5) and (1) of the Act by failing to execute the col-
lective-bargaining agreement with the Union, and by
unilaterally repudiating the agreement, we shall require
the Respondent to execute the collective-bargaining
agreement, to abide by its terms and conditions, and to
make unit employees whole for any losses they in-
curred as a result of the Respondent’s unlawful con-
duct, in the manner set forth in Ogle Protection Serv-
ice, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th
Cir. 1971). The Respondent shall also make all con-
tractually required payments to the fringe benefit
funds1 and reimburse its employees for any losses at-
tributable to its failure to make those payments, as set
forth in Kraft Plumbing & Heating, 252 NLRB 891 fn.
2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981). All pay-
ments to employees shall be with interest as provided
in New Horizons, supra.
ORDER
The National Labor Relations Board orders that the
Respondent, Morton Metal Works, Inc., Stoutsville,
Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Telling employees it will go nonunion.
196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(b) Failing and refusing to recall or hire employees
because of their union sympathies and membership.
(c) Failing and refusing to execute the successor
agreement effective June 1, 1991, between the Sheet
Metal Workers’ International Association, Local 24,
AFL–CIO and the Sheet Metal Contractors of Central
Ohio.
(d) Unilaterally repudiating the terms and conditions
of the successor agreement effective June 1, 1991, and
its Industrial Addendum.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Execute, reinstate, and abide by the terms and
conditions of employment of the applicable collective-
bargaining agreement effective June 1, 1991, and its
Industrial Addendum, including making all required
fringe benefit fund payments, in the manner set forth
in the amended remedy section of this decision.
(b) Make unit employees whole for any losses they
incurred as a result of the Respondent’s unlawful fail-
ure to execute and repudiate the collective-bargaining
agreement, in the manner set forth in the amended
remedy of this decision.
(c) Offer recall to former employees Mark Huddy,
Bob Shorthand, Bob Hawk, Carl Huddy, Pat Donahue,
Ron Copley, Jimmy Moore, David Priestly, and Huey
Goeble, and similarly situated employees who would
have been hired through the Union’s hiring hall, or
who would have been specifically recalled by the Re-
spondent, and make them whole for any loss of earn-
ings and other benefits suffered as a result of the Re-
spondent’s discrimination against them, in the manner
set forth in the amended remedy section of this deci-
sion.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Post at its Stoutsville, Ohio facility and all its
jobsites in Ohio, copies of the attached notice marked
‘‘Appendix.’’2 Copies of the notice, on forms provided
by the Regional Director for Region 9, after being
signed by the Respondent’s authorized representative,
shall be posted by Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT tell employees we are going to go
nonunion.
WE WILL NOT fail to hire or recall employees be-
cause of their union sympathies and membership.
WE WILL NOT repudiate our collective-bargaining
agreement with the Sheet Metal Workers’ International
Association, Local 24, AFL–CIO by failing and refus-
ing to execute the successor agreement effective June
1, 1991, between the Union and Sheet Metal Contrac-
tors of Central Ohio and the new Industrial Addendum
or by failing and refusing to follow its terms and con-
ditions.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL execute, reinstate, and abide by the terms
and conditions of employment of the applicable collec-
tive-bargaining agreement effective June 1, 1991, and
its Industrial Addendum, including making all required
fringe benefit payments.
WE WILL make unit employees whole for any losses
they incurred as a result of our unlawful failure to exe-
cute and repudiate the collective-bargaining agreement.
WE WILL offer recall to former employees Mark
Huddy, Bob Shorthand, Bob Hawk, Carl Huddy, Pat
Donahue, Ron Copley, Jimmy Moore, David Priestly,
and Huey Goeble, and similarly situated employees
who would have been hired through the Union’s hiring
hall, or who would have been specifically recalled by
197MORTON METAL WORKS
1 All following dates will be in 1991 unless otherwise indicated.
2 The General Counsel’s unopposed motion to correct transcript,
dated April 21, 1992, is granted and received into the record as G.C.
Exh. 12.
the Respondent, and WE WILL make them whole for
any loss of earnings and other benefits suffered as a
result of our discrimination against them.
MORTON METAL WORKS
Deborah Jacobson, Esq., for the General Counsel.
John L. Rybolt (Blankenship & Associates), of Greenwood,
Indiana, for the Respondent.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW, JR., Administrative Law Judge.
This matter was heard in Columbus, Ohio, on February 18,
1992. Subsequently, briefs were filed by General Counsel
and the Respondent. The proceeding is based upon a charge
filed September 11, 1991,1 as amended, by Sheet Metal
Workers International Association Local 24, AFL–CIO. The
Regional Director’s complaint dated October 25, 1991, al-
leges that Respondent, Morton Metal Works, Inc., of
Stoutsville, Ohio, violated Section 8(a)(1), (3), and (5) of the
National Labor Relations Act by telling an employee it was
going nonunion, refusing to employ union members on and
after August 1991, and by repudiating its collective-bar-
gaining agreement with the Union and refusing to execute a
contract it had agreed to sign.
Upon a review of the entire record2 in this case and from
my observation of the witnesses and their demeanor, I make
the following
FINDINGS OF FACTS
I. JURISDICTION
Respondent is engaged in performing sheet metal work
and repair and maintenance services out of its Stoutsville,
Ohio facility, and its primary customer is Kal Kan Foods,
Inc. It admits that it annually provides services valued in ex-
cess of $50,000 for Kal Kan Foods, Inc.; and that during the
past 12 months, Kal Kan Foods, Inc. sold and shipped from
its Ohio facilities products valued in excess of $50,000 di-
rectly to customers located outside the State of Ohio.
Respondent, however, asserts that the Board should exer-
cise its discretion and apply the $500,000 gross volume
standard applied to retail concerns because Respondent’s cur-
rent participation in the service industry is the equivalent of
a retail concern. It also argues that there is no showing that
any labor strife would cause a substantial interruption of
interstate commerce and that the effect on commerce is too
De Minimus to warrant an exercise of jurisdiction.
As pointed out in the General Counsel’s brief, the
$500,000 standard is applicable only to retail enterprises, see
Carolina Supplies & Cement Co., 122 NLRB 88 (1959). The
distinction between retail and wholesale enterprises is based
on the identity of the purchaser of the employer’s product or
service: retail sales are only those to a purchaser of the em-
ployer’s product or service: retail sales are only those to a
purchaser who desires ‘‘to satisfy his own personal wants or
those of his family or friends,’’ while wholesale sales con-
stitute sales ‘‘to trading establishments of all kinds, to insti-
tutions, industrial, commercial and professional users, and
sales to government bodies.’’ Bussey-Williams Tire Co., 122
NLRB 1146, 1147 (1959); Taylor Baking Co., 143 NLRB
566 (1963). Respondent performs most of its work for Kal
Kan Foods, an industrial commercial entity, not a retail en-
terprise. Otherwise, there is no showing of special cir-
cumstances that would place the Respondent in some unique
category that would warrant a discretionary exclusion from
jurisdiction. To the contrary, the record (as discussed below),
shows that Respondent previously has executed an 8(f) con-
tract with the Union (as well as an industrial addendum),
which represents, that it is a member of the construction in-
dustry (and has agreed with terms and conditions of the
Union’s bargaining agreement with the Sheet Metal Contrac-
tors of Central Ohio), and, under these circumstances there
is no basis to refute the Board’s use of the $50,000 jurisdic-
tional standard based on the speculation that Respondent’s
labor affairs would be de minimus or would not affect inter-
state commerce.
Accordingly, I find that at all times material Respondent
has been an employer engaged in operations affecting com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent was formed by Orville LeMaster and his
wife Edith in 1990. Although she is listed as president and
signs documents in this roll, she otherwise has another full-
time job and Orville is the primary day-to-day manager of
the business. Prior to starting his own business he was a
member of the Sheet Metal Workers Union for 27 years. Re-
spondent’s primary source of work is Kal Kan for which it
provides a maintenance service on machines and conveyors.
It also performs some fabrication work (estimated to be val-
ued at $30,000 a year) which would occur most often on an
apparent sporadic or seasonal basis near several major holi-
days when the plant has scheduled annual shutdowns.
These jobs, with a crew of several workers, can last 10 to
14 days. On other occasions Respondent may be required to
perform a 1-day job which would utilize the service of four
to six workers.
On June 1, 1990, Respondent became signatory to a col-
lective-bargaining agreement between Sheet Metal Workers
Local 24, and the Sheet Metal Contractors of Central Ohio,
an agreement that was effective until May 31, 1991. It also
signed an Industrial Addendum. From time to time thereafter,
Orville LeMaster contacted the Union’s Business Representa-
tive David Booth to request referral of employees to a job
at Kal Kan as well as other jobsites. LeMaster testified that
he paid the wages and benefit contributions that were called
for in that agreement, and that when a new agreement went
into effect, June 1, 1991, which called for an increase in the
basic wage rate for journeymen per hour (from $17.51), he
began to pay the new rate. At that time Respondent also in-
creased the contribution rates to the health and welfare and
pension funds and sent remittance reports to the Union’s ben-
efit funds, indicating who worked, how many hours they
worked, and how much was owed to the benefit funds.
198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The resolution also specifically referred to ‘‘maintenance jobs in
plants’’ and to ‘‘maintenance work, or chain work, or conveyor
work’’ indicating that this was the type of work regularly performed
by union referrals and was not the type of work that would be out-
side the jurisdiction of the Union, as somewhat implied in Respond-
ent’s brief.
After each Kal Kan job was completed, employees would
be laid off by Respondent and report back to the union hall.
Sometimes Respondent would recall specific employees (four
to six employees were identified by name), directly when it
had its next holiday need for workers and otherwise workers
would be requested from the union hall.
Mark Huddy testified that he first worked at the Kal Kan
jobsite for another company whose foreman at the time was
Orville LeMaster. Thereafter he was referred to Respondent
for a Kal Kan assignment, on a union referral. He was given
a layoff slip at the end of the jobs for Respondent, but subse-
quently worked several more Kal Kan so called ‘‘shutdown’’
jobs some of which were direct calls from LeMaster and
some of which were union referrals.
During the course of the collective-bargaining agreement
LeMaster requested a special agreement for Kal Kan and
other jobsites he was bidding on. This was agreed to by the
Union on February 4, 1991, in resolution 78, which, among
other things, provided that at Kal Kan it could have a ratio
of one journeyman to one industrial and one industrial train-
ee (at $7 an hour plus benefits for the first year).3
On or about May 1, and prior to the expiration of the then
current agreement, Union Representative Booth called
LeMaster to discuss negotiation for entering into a new
agreement. He told LeMaster that the Union had begun nego-
tiations with the Employer Association, and asked if
LeMaster had delegated bargaining authority to the Associa-
tion. LeMaster had not done so but stated that he would pre-
fer to just sign what they signed and that he did not want
to sit down and negotiate.’’ Booth assured LeMaster that if
he agreed to sign whatever contract was reached with the
Employer Association, and to pay any increase retroactively
to June 1, the Union would not pull his employees out on
strike. LeMaster agreed, and Booth requested him to confirm
their agreement in writing. By letter dated May 7, signed by
Edith LeMaster as Respondent’s president, the Respondent
sent the following statement:
RE: Contractors’ Association Agreement
Dear Mr. Booth:
Please be advised that Morton Metal Works, Inc.
agrees to abide by the Contractors’ Association during
negotiations. We also agree to pay retroactive wages in
the event of a strike.
The Union and the Employer Association reached agree-
ment on a new contract prior to May 31 and the Union noti-
fied all contractors of the economic terms which had been
agreed upon. As noted above the Respondent began paying
these increased wages and benefits on June 1, and it sub-
mitted benefit contribution reports for June.
On July 1, Booth sent LeMaster a new industrial adden-
dum to execute and return. On some unknown date, Union
President Orin Sheumaker sent LeMaster a new letter of as-
sent to the multiemployer agreement. LeMaster did not sign
either document. On or about July 8, Booth called LeMaster,
told him that the Union had not yet received his letter of as-
sent, and asked him to send it. LeMaster ‘‘said he would.
That he was looking into it.’’
Meanwhile, Mark Huddy had been called directly by
LeMaster to work the Kal Kan July 4th ‘‘shutdown.’’ Prior
to July 13, when the job was completed in a conversation
in the breakroom LeMaster indicated to Huddy and two other
employees that he wasn’t happy the way things were going
or happy with the Union.
On July 18, Booth went to Respondent’s offices. LeMaster
told Booth that ‘‘he didn’t think he was going to sign it and
that his ‘‘attorney’’ told him he didn’t have to be signatory
. . . he thought it would be better financially if he didn’t.’’
Thereafter, around August 1, Respondent ceased paying its
employees the contractual wages and benefits. Respondent
also admittedly ceased employing any union members.
Although prior to August 1, Respondent had recalled em-
ployees as needed, Respondent has since that time ceased re-
calling those employees who were union members. Specifi-
cally, Mark Huddy called Orville LeMaster just before Labor
Day and asked if he would be called to work the expected
Labor Day shutdown at Kal Kan. LeMaster said he
‘‘wouldn’t be able to use us anymore.’’ When Huddy asked
‘‘why?,’’ LeMaster replied, ‘‘well, it’s sad, but I went non-
union.’’
III. DISCUSSION
Mark Huddy’s testimony that just before Labor Day,
LeMaster told him that Respondent could not use ‘‘us’’ any-
more, because he ‘‘went nonunion,’’ is uncontradicted. This
statement, clearly conveys that Huddy’s employment oppor-
tunities are dependent on his lack of membership in the
Union and it is consistent with LeMaster’s own testimony
that he is not currently employing any member of the Union
and has not called or recalled any union members since
around the August 1, 1991.
Section 8(a)(3) of the Act makes it an unfair labor practice
for an employer to discriminate against an employee ‘‘in re-
gard to hire or tenure of employment or any term or condi-
tions of employment to encourage or discourage membership
in any labor organization.’’ Thus, an employer violates Sec-
tion 8(a)(3) and (1) when it fails to hire, or recall employees
because of their union sympathies or membership. Here, the
General Counsel has presented sufficient evidence to support
an inference that the employees union memberships were a
motivating factor in the employer’s decision not to hire or
recall union employees. The record shows that Respondent
has clearly and unequivocally voiced its unhappiness with
the Union and it verbally had repudiated its agreement to
continue as a signatory to the Employer’s Association new
contract, an action which is found herein to be conduct that
violates Section 8(a)(5) of the Act.
Under these circumstances, I find that General Counsel has
met his initial burden by presenting a prima facie showing,
sufficient to support an inference that an employee’s union
membership was a motivating factor in Respondent’s deci-
sion regarding the hire and recall of employees.
The Respondent fails to rebut or otherwise offer any de-
fense regarding this allegation and, under the circumstances,
I find that the record shows that Respondent failed and re-
fused to hire or recall employees because of their member-
ship in the Union, conduct which shows that Respondent dis-
199MORTON METAL WORKS
criminated in regard to the hire, tenure, terms or condition
of employment of its employees, thereby discouraging mem-
bership in a labor organization, and I conclude that Respond-
ent has been engaging in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act, as alleged.
During May 1991, when the Respondent’s contract with
the Union was about to expire, Respondent agreed with the
Union to sign whatever contract the Union eventually
reached with the Employer Association. This was confirmed
in Edith LeMaster’s letter of May 7, which states that Re-
spondent ‘‘agrees to abide by the agreement reached by the
Contractors Association.’’
At the hearing and on brief the Respondent’s representa-
tive speculates that the signature page on the ‘‘industrial’’ or
‘‘B’’ addendum contract is a fabrication or merely a copy of
the signature page on the ‘‘contractors’’ or ‘‘A’’ contract.
Both signature pages are on a identical preprinted form, how-
ever, an examination of the different signature pages clearly
shows some difference in the spacing of words and the shap-
ing of some letters and I conclude that the ‘‘B’’ contract sig-
nature is not a fabrication or a mere photo copy of the ‘‘A’’
contract signature page.
Edith LeMaster testified that she signed the ‘‘A’’ contract,
as well as certain other documents, but asserted that she
didn’t sign a ‘‘B’’ contract. She agreed that she signed more
than one document when Union Representative Booth came
to her house (Respondent’s office) apparently on June 1,
1990. Here, I conclude that she was confused about not sign-
ing a ‘‘B’’ contract and I find that the several subsequent
references to ‘‘industrial’’ work in the concessions of union
resolution 78 on February 4, 1991 (G.C. Exh. 7), for and on
the request of Orville LeMaster, indicate that Respondent
was aware of and in fact was operating, where appropriate,
under the terms of the addendum ‘‘B’’ contract.
In any event, the most significant document is the May 7,
1991 agreement to abide by the new agreement reached by
the Contractors Association. Not only did Respondent sign
this agreement, it thereafter paid the new wages called for
and it otherwise operated under the terms of the agreement
until July 18 when it suddenly announced that it would not
sign any documents.
The Respondent made no timely attempt to terminate the
contract when the old agreement expired May 31, but, in
fact, stated that it would agree to sign the new contract nego-
tiated by the Association and it then confirmed this intention
by letter. The Respondent may not unilaterally repudiate the
terms of this agreement prior to its expiration (or until its
unit employees lawfully replace or change their representa-
tive, an issue not raised in this proceeding). Here the em-
ployer has voluntarily recognized the Union and a valid pre-
sumption exist that the Union, in fact, represents a majority
of the employees in the unit. ‘‘This presumption is founded
on the supposition the employers normally will not know-
ingly violate the law.’’ Rogers I.G.A., Inc., 605 F.2d 1164,
1165 (10th Cir. 1979) (quoting NLRB v. Tahoe Nugget, Inc.,
584 F.2d 293, 303 (9th Cir. 1978), cert. denied 442 U.S. 921
(1979).
Under these circumstances, I find that the Respondent is
bound by the terms of the new Association agreement and
by its agreement to abide by its terms. As the Respondent
is prohibited from unilateral repudiation of the agreement, its
failure to execute the agreement tendered by the Union is a
violation of Section 8(a)(5) of the Act, as alleged. Likewise,
its midterm repudiation of the rights and obligations per-
mitted by Section 8(f) under the Association’s successor
agreement, is a violation of Section 8(a)(5) and (1) of the
Act.
CONCLUSIONS OF LAW
1. Respondent Morton Metal Works, Inc. 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. The Respondent was party to the 1987–1991 agreement
between the Union and Sheet Metal Contractors of Central
Ohio and their industrial addendum and agreed to be bound
by the successor agreement.
4. By failing and refusing to execute the successor agree-
ment and industrial addendum and by repudiating such
agreement on or about July 18, 1991, during midterm of the
contract, Respondent has violated Section 8(a)(5) and (1) of
the Act.
5. By telling an employee that it was ‘‘going nonunion’’
and thereafter discriminatorily failing to recall or hire that or
any other union member as an employee, because of their
union sympathies and membership, Respondent has violated
Section 8(a)(1) and (3) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices in violation of Section 8(a)(1), (3), and (5) of the
Act, it is recommended that the Respondent be ordered to
cease and desist therefrom and to take the affirmative action
described below which is designed to effectuate the policies
of the Act.
With respect to the necessary affirmative action, it is rec-
ommended that it be ordered to execute and abide by the
terms and conditions set forth in the collective-bargaining
agreement effective June 1, 1991, with Sheet Metal Workers
International Association Local 24, AFL–CIO. Although no
reinstatement or make-whole remedy has been specifically
requested, the Respondent otherwise will be specifically or-
dered to offer recall to the named former employee and oth-
erwise to hire employees in accordance with the hiring terms
of the bargain agreement.
Otherwise, it is not considered to be necessary that a broad
order be issued.
[Recommended Order omitted from publication.]