Nephi Rubber Products Corp.

National Labor Relations Board - Board Decisions

May 29, 1991

303 N.L.R.B. 151 (N.L.R.B. 1991)

151
303 NLRB No. 19
NEPHI RUBBER PRODUCTS CORP.
1 The Respondent has requested oral argument. The request is denied as the
record, exceptions, and briefs adequately present the issues and the positions
of the parties.
2 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
3 In adopting the judge’s dismissal of the 8(a)(1) allegation, we find it un-
necessary to pass on whether Sec. 7 of the Act protected the activities of the
individual Charging Parties in support of the ESOP prior to their efforts in
October 1985 to prevent the Respondent from purchasing the Bastian plant.
4 The judge’s decision sets contract expiration variously as the spring of
1984 and August 1984. The record supports the latter date.
5 207 NLRB 208 (1973).
Nephi Rubber Products Corp., a Cypher-Jones
Company and Jerry D. Steele and Kim W. Hall
and Keith Steele and Marlynn Buckley and
Carl Calderwood and United Rubber, Cork,
Linoleum and Plastic Workers of America,
Local Union No. 948, AFL–CIO. Cases 27–CA–
9671–2, 27–CA–9671–3, 27–CA–9671–4, 27–
CA–9671–5, 27–CA–9671–6, and 27–CA–9674
May 29, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT, DEVANEY, AND OVIATT
On February 7, 1990, Administrative Law Judge Jay
R. Pollack issued the attached decision. The Respond-
ent and the General Counsel filed exceptions, support-
ing briefs, and answering briefs.1
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions only to the extent consistent with this Deci-
sion and Order and to adopt the recommended Order
as modified.
The judge found that the Respondent was not a suc-
cessor to Bastian Industries and, thus, did not violate
Section 8(a)(5) and (1) by refusing to recognize or bar-
gain with the Union that had represented Bastian’s em-
ployees. The judge also found that the attempt of
Charging Parties Jerry Steele, Kim Hall, Keith Steele,
Marlynn Buckley, and Carl Calderwood to prevent the
Respondent from purchasing Bastian Industries’ plant
and to substitute an employee stock ownership plan
(ESOP) as the purchaser was not protected by Section
7 of the Act. The judge, therefore, concluded that the
Respondent did not violate Section 8(a)(1) by delaying
or postponing hiring of these individuals because of
their attempt to prevent the Respondent from purchas-
ing the plant. The judge further concluded, however,
that the Respondent’s subsequent refusal to consider
these individuals for employment because they filed
unfair labor practice charges violated Section 8(a)(4)
and (1). We reverse the judge’s dismissal of the
8(a)(5) allegation, but adopt his decision in all other
respects.3
For some years prior to 1984, the Union represented
the production and maintenance employees of Bastian
Industries’ rubber hose manufacturing plant in Nephi,
Utah. In August 1984, Bastian’s contract with the
Union expired and Bastian closed the plant, laying off
92 employees.4 In October 1984, Bastian filed a peti-
tion for reorganization under Chapter 11 of the Federal
Bankruptcy Code. There was much community interest
in reopening the plant, as it was the town’s largest em-
ployer. Over the next year, a number of different rub-
ber companies considered purchasing the plant, and a
group of employees and supervisors, with the coopera-
tion of the Union, pursued forming an ESOP to pur-
chase and operate the plant. If no purchaser could be
found, it appeared that the assets of the plant might be
sold at auction. Finally, in October 1985, the Respond-
ent, formed by two former Bastian customers, won the
bankruptcy court’s approval to purchase the plant.
Beginning in late October, the Respondent began
hiring former Bastian employees and supervisors. The
Respondent hired as its plant manager Bastian’s plant
manager and hired as controller Bastian’s treasurer.
The Respondent began plant operation in November
1985 and production began in January 1986. On April
9, 1986, when the Union requested that the Respond-
ent recognize and bargain with it as the representative
of the Respondent’s employees, the Respondent had a
work force of 53 employees, 50 of whom were former
Bastian employees. By the end of 1986, the Respond-
ent employed 63 employees, 58 of whom were former
Bastian employees. The Respondent did not respond to
the Union’s recognition request.
In addressing whether the Respondent was a succes-
sor to Bastian, the judge rejected the Respondent’s
contention that it had started a completely new busi-
ness in a changed form from that of Bastian. Noting
that under Valley Nitrogen Producers,5 ‘‘where a new
employer ‘uses substantially the same facility and the
same work force to produce the same basic products
for the same customers in the same geographic area’
it will be regarded as a successor,’’ the judge found:
Respondent has substantially continued the same
operations at the same plant. A large majority of
its employees were doing the same jobs under the
same supervisors as they did when Bastian owned
the plant. Respondent was using the same machin-
ery, equipment, and methods of production and
manufacturing the same products at the time of
the Union’s demand for recognition. The changes
in Respondent’s operation took place over time,
but mostly after the recognitional demand.
152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 204 NLRB 814, 821 (1973). That decision articulates those criteria as fol-
lows:
(1) Whether there has been a substantial continuity of the same oper-
ations; (2) whether the new employer uses the same plant; (3) whether
he has the same or substantially the same work force; (4) whether the
same jobs exist under the same working conditions; (5) whether he em-
ploys the same supervisors; (6) whether he uses the same machinery,
equipment, and methods of production; and (7) whether he manufactures
the same product or offers the same services.
7 482 U.S. 27 (1987).
8 Id. at 43, quoting Golden State Bottling Co. v. NLRB, 414 U.S. 168, 184
(1973).
9 Food & Commercial Workers Local 152 (Spencer Foods) v. NLRB, 768
F.2d 1463, 1470 (D.C. Cir. 1985), quoting NLRB v. Jeffries Lithograph Co.,
752 F.2d 459, 464 (9th Cir. 1985), quoting Premium Foods v. NLRB, 709 F.2d
623, 627 (9th Cir. 1983). The court’s decision in Spencer Foods, which re-
versed the Board’s dismissal of the 8(a)(5) allegation in that case, subsequently
was endorsed by the Board. See Sterling Processing Corp., 291 NLRB 208,
210 fn. 9 (1988).
10 Derby Refining Co., 292 NLRB 1015 (1989), enfd. sub nom. Coastal
Derby Refining Co. v. NLRB, 915 F.2d 1448 (10th Cir. 1990).
11 We also note that, before Bastian closed the plant, all the unit employees
were union members, even though the plant is located in a ‘‘right-to-work’’
State.
We disagree with the judge’s finding concerning absence of union represen-
tation during the hiatus. During this period, union funds and much of the ener-
gies of the Union’s president were devoted to supporting formation of the
ESOP and its effort to reopen the plant. The record reflects that, during this
period, union representatives also met with employees, filed required reports,
sent newsletters to employees, telephoned and wrote letters to employees, and
pursued the issue of Bastian’s pension obligations to the employees. Although
there may have been less union activity during this period than there had been
when the plant was in operation, there was continued union representation.
12 482 U.S. at 45, citing NLRB v. Band-Age, Inc., 534 F.2d 1, 5 (1st Cir.
1976), cert. denied 429 U.S. 921 (1976), in which the court of appeals stated:
While the Board has sometimes relied on a substantial hiatus between the
termination of the predecessor’s operations and the commencement of the
new employer’s operations in finding no successor obligation to bargain,
it has done so only where the hiatus in operations is ‘‘one of many fac-
tors pointing to such a substantial transformation in the nature of the
predecessor’s operations that a real question was presented, by the com-
bination of circumstances, as to the employees’ desire with regard to rep-
resentation.’’ United Maintenance & Manufacturing Co., 214 NLRB 529,
532 (1974).
Thus, the judge found that the Respondent had met all
the traditional criteria for successorship set forth in
Border Steel Rolling Mills.6 Nevertheless, because of
Bastian’s bankruptcy and the 16-month hiatus in plant
operation and representation by the Union, during
which the plant’s future was uncertain, the judge found
an absence of continuity between the Respondent and
Bastian, and, therefore, declined to find that the Re-
spondent was a successor to Bastian.
We do not agree that Bastian’s bankruptcy and the
16-month hiatus warrant finding the Respondent not to
be a successor. In its review of the principles govern-
ing successorship in Fall River Dyeing Corp. v.
NLRB,7 the Supreme Court stated: ‘‘In conducting the
analysis, the Board keeps in mind the question whether
‘those employees who have been retained will under-
standably view their job situations as essentially
unaltered.’’’8 The District of Columbia Circuit Court
of Appeals likewise has explained:
In determining whether the requisite ‘‘substantial
continuity of the employing industry’’ exists,
courts and the Board typically look to a variety of
factors. . . . However, we have also made clear
that
[t]he essential inquiry is whether operations as
they impinge on union members, remain essen-
tially the same after the transfer of ownership.
[Citation omitted.]
The focus of the analysis, in other words, is not
on the continuity of the business structure in gen-
eral, but rather on the particular operations of the
business as they affect the members of the rel-
evant bargaining unit. As recently noted by the
Ninth Circuit Court of Appeals, ‘‘the touchstone
remains whether there was an ‘essential change in
the business that would have affected employee
attitudes toward representation.’’’9
The Board has articulated the same concept: ‘‘In the
successorship situation the events must be viewed from
the employees’ perspective, i.e., whether their job situ-
ation has so changed that they would change their atti-
tudes about being represented.’’10
In considering the present case with this concept in
mind, we find that the job situation of the former
Bastian employees who were retained by the Respond-
ent was not so altered that it would have changed the
employees’ attitudes about union representation. In-
deed, what is striking about the employees’ job situa-
tion is how little it had changed. As set forth above,
the judge found that the Respondent substantially con-
tinued Bastian’s former operations at Bastian’s former
plant. At the time the Union requested recognition, vir-
tually all the Respondent’s employees were former
Bastian employees. The employees were performing
the same jobs under the same supervisors as when they
had worked for Bastian, and the Respondent was using
the same machinery and production methods and mak-
ing the same products as Bastian had. As the employ-
ees’ job situation at the time the Union requested rec-
ognition was essentially unaltered from their job situa-
tion when Bastian operated the plant, we find no basis
for concluding that their attitudes toward representation
would have changed.11
Nor does the 16-month hiatus in plant operation re-
quire a different result. As the Supreme Court stated
in Fall River: ‘‘[S]uch a hiatus is only one factor in
the ‘substantial continuity’ calculus and thus is rel-
evant only when there are other indicia of discontinu-
ity.’’12 In Fall River, the Court found the 7-month hia-
tus between Sterlingwale Corp.’s demise and Fall Riv-
er’s startup not determinative of whether Fall River
was a successor. In upholding the Board’s finding that
Fall River was Sterlingwale’s successor, the Court
found it particularly significant that, from the employ-
ees’ perspective, their jobs did not change, because
Fall River used the same production processes and job
classifications as Sterlingwale and the employees
153NEPHI RUBBER PRODUCTS CORP.
13 There was uncertainty during the hiatus period in Fall River as well, but
in Fall River, as in this case, efforts toward a reopened plant continued
throughout. Moreover, as noted above (fn. 11), the Union remained involved.
Under all the circumstances, the hiatus simply was not sufficient to obliterate
the employees’ perception of their jobs in the reopened plant as essentially un-
changed from their jobs with Bastian.
14 Coastal Derby Refining Co. v. NLRB, 915 F.2d 1448, 1453 (10th Cir.
1990). We find the cases on which the judge relied in declining to find
successorship, all of which involved bankruptcies and hiatus periods, to be dis-
tinguishable from the present case. In Blazer Industries, 236 NLRB 103
(1978), successorship was not found where, inter alia, the respondent’s plant
was 12 to 16 miles away from the asserted predecessor’s former plant and the
union told the respondent that it did not represent the respondent’s employees.
In Cagle’s, Inc., 218 NLRB 603 (1975), numerous factors in addition to a 1-
year hiatus showed lack of continuity, including that the respondent had more
new than old supervisory personnel, different equipment producing different
and fewer products for different customers, and almost as many new employ-
ees as employees of the asserted predecessor. In Gladding Corp., 192 NLRB
200 (1971), before the predecessor closed, its operations were taken over by
the Small Business Administration; when it closed, it surrendered its premises
to its landlord; and the alleged successor was part of a multiplant, integrated
enterprise, and had only one customer in common with the alleged prede-
cessor, obtaining other customers from unrelated sources.
worked on the same machines and, for the most part,
under the same supervisors as they had when em-
ployed by Sterlingwale. These facts are quite analo-
gous to those in the present case.
Although we agree with the judge that the 16-month
hiatus in plant operation and Bastian’s bankruptcy in-
dicate instability, we find that the instability and uncer-
tainty during the period before the Respondent re-
opened the plant do not negate our finding that, once
the plant reopened and employees were put back to
work, they found their job situation basically the same
as before.13 Nothing about Bastian’s bankruptcy or the
hiatus period itself indicates that, once rehired, the em-
ployees would no longer desire union representation.
Under the circumstances presented here, the hiatus, al-
though 16 months in duration, was not ‘‘of such length
as to call into question the likelihood that former
[Bastian] employees viewed their current jobs as essen-
tially unchanged.’’14
Accordingly, having concluded that, from the em-
ployees’ perspective, there was substantial continuity
between the Respondent and Bastian, and, as the
record shows that at the time the Union requested rec-
ognition the Respondent employed a substantial and
representative complement of unit employees, we con-
clude that the Respondent violated Section 8(a)(5) and
(1) of the Act by failing to recognize and bargain with
the Union.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Nephi
Rubber Products Corp., a Cypher-Jones Company,
Nephi, Utah, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Insert the following as paragraph 1(b) and reletter
the subsequent paragraph.
‘‘(b) Refusing to recognize and bargain collectively
with United Rubber, Cork, Linoleum and Plastic
Workers of America, Local Union No. 948, AFL–CIO
as the exclusive bargaining representative of the em-
ployees in the appropriate unit.’’
2. Insert the following as paragraph 2(d) and reletter
the subsequent paragraphs.
‘‘(d) On request, recognize and bargain with the
Union as the exclusive representative of the employees
in the following appropriate unit concerning terms and
conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:
‘‘All production and maintenance employees em-
ployed by Respondent at its Nephi, Utah facility
but excluding superintendents, general foremen,
foremen, assistant foremen, trainee-foremen, engi-
neers, timekeepers, office employees, and all
guards, professional employees, all other salaried
employees not engaged in production and/or
maintenance work and supervisors as defined in
the Act.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
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.
WE WILL NOT refuse to hire prospective employees
because they filed charges with the NLRB or gave tes-
timony under the Act.
WE WILL NOT refuse to recognize and bargain with
United Rubber, Cork, Linoleum and Plastic Workers of
America, Local Union No. 948, AFL–CIO as the ex-
clusive bargaining representative of the employees in
the bargaining unit.
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 offer Jerry Steele, Keith Steele, Marlynn
Buckley, Carl Calderwood, and Kim Hall immediate
and full reinstatement to the positions that they would
have occupied if they had not been unlawfully denied
employment, dismissing, if necessary, anyone who
may have been hired or assigned to perform the work
that they would have been performing or, if those posi-
tions no longer exist, to substantially equivalent posi-
154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The petition was filed in Indiana on July 28, 1989.
2 Bastian Industries operated the plant from 1973 to 1985.
tions, without prejudice to their seniority or other
rights and privileges, and make them whole for any
loss of pay they may have suffered as a result of the
unlawful denial of employment to them, with interest.
WE WILL remove from their files any reference to
the unlawful refusal to employ the above employees
and notify them in writing that this has been done.
WE WILL, on request, bargain with the Union and
put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the bargaining unit:
All production and maintenance employees em-
ployed by us at our Nephi, Utah facility but ex-
cluding superintendents, general foremen, fore-
men, assistant foremen, trainee-foremen, engi-
neers, timekeepers, office employees, and all
guards, professional employees, all other salaried
employees not engaged in production and/or
maintenance work and supervisors as defined in
the Act.
NEPHI RUBBER PRODUCTS CORP., A CY-
PHER-JONES COMPANY
Albert A. Metz, Esq. and Michael W. Josserand, Esq., for the
General Counsel.
Thomas D. MacMullan, Esq., of Pittsburgh, Pennsylvania, for
Respondent.
Jerry D. Steele, of Nephi, Utah, for the Union.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
case in trial at Provo, Utah, on May 2, July 18–20, and Au-
gust 1, 1989. On May 2, 1986, Jerry D. Steele, Kim W. Hall,
Keith Steele, Marlynn Buckley, and Carl Calderwood filed
charges in Cases 27–CA–9671–2 through 27–CA–9671–6,
respectively, alleging that Nephi Rubber Products Corp., a
Cypher-Jones Company (Respondent) committed certain vio-
lations of Section 8(a)(3) and (1) of the National Labor Rela-
tions Act (29 U.S.C. § 151 et seq. (the Act)). All five of
these charges were amended on March 30, 1987, and again
on March 15, 1989. On May 5, 1986, United Rubber Work-
ers Local Union No. 948 (the Union) filed a charge in Case
27–CA–9674 alleging that Respondent violated Section
8(a)(5) and (1) of the Act. On January 12, 1989, the Re-
gional Director for Region 27 of the National Labor Rela-
tions Board issued a consolidated complaint and notice of
hearing against Respondent, alleging that Respondent vio-
lated Section 8(a)(5) and (1) of the Act. On April 6, 1989,
the Regional Director issued an amended consolidated com-
plaint against Respondent alleging that Respondent violated
Section 8(a)(4) and (1) by refusing to rehire employees Jerry
D. Steele, Kim W. Hall, Keith Steele, Marlynn Buckley, and
Carl Calderwood, because of their support for and activities
on behalf of an employee-sponsored Employee Stock Owner-
ship Plan and because the employees filed charges with the
Board in the instant cases. The complaint further alleges that
Respondent violated Section 8(a)(5) and (1) of the Act by
failing to recognize and bargain with the Union as a succes-
sor employer. Respondent filed a timely answer to the com-
plaint, denying all wrongdoing. Further, Respondent contends
that the allegations of 8(a)(4) misconduct are time-barred by
Section 10(b) of the Act.
On the last day of trial, Respondent’s counsel informed the
judge that Respondent had filed a petition for reorganization
under Chapter 11 and moved that the instant case be stayed.
That motion was denied.1 Thereafter, Respondent was grant-
ed two extensions of time to file its posttrial brief. Briefs
were filed on December 1, 1989.
The parties have been afforded full opportunity to appear,
to introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. On the entire record, from my
observation of the demeanor of the witnesses, and having
considered the posthearing briefs of the parties, I make the
following
FINDINGS OF FACT AND CONCLUSIONS
I. JURISDICTION
Respondent, a Utah corporation with a principal place of
business in Nephi, Utah, has been engaged in the manufac-
ture of hose products, hose assemblies, couplings, and related
products. During the 12 months prior to issuance of the com-
plaint, Respondent sold and shipped goods and materials val-
ued in excess of $50,000 directly to customers located out-
side the State of Utah. Accordingly, I find that Respondent
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union has represented employees at the manufactur-
ing plant in Nephi, acquired by Respondent in October 1985,
since 1972. In the spring of 1984, the Union’s contract with
Bastian Industries, then the owner of the plant, expired.2
Prior to agreement on a replacement collective-bargaining
contract, the plant closed in August 1984. Thereafter, Bastian
Industries filed for protection under Chapter 11 of the Fed-
eral Bankruptcy Code in October 1984. In October 1985 Re-
spondent purchased some of the assets of Bastian Industries
through the Bankruptcy Court. In November 1985, Respond-
ent began to hire the former employees of the manufacturing
plant and commenced operation of the facility.
Between the time of the bankruptcy in 1984 and Respond-
ent’s purchase in October 1985, the employees, the city of
Nephi, and the county of Joab were exploring various ways
to reopen the plant. The plant had been the largest employer
in this small town. With the aid of some professors at
Brigham Young University, the employees explored the pos-
sibility of purchasing and operating the plant as an Employee
Stock Ownership Plan (ESOP). Concurrent with the discus-
sions of an ESOP, there were efforts to find an outside pur-
chaser. Robert Cypher, the owner of one of Bastian’s major
customers, contacted Terry and Keith Jones, the principals of
another major customer, with the idea of forming a joint ven-
155NEPHI RUBBER PRODUCTS CORP.
ture to purchase the plant and continue the source of rubber
hose to their companies. By October 1985, the candidates for
acquisition of the plant had narrowed down to the ESOP and
Respondent, the Company formed by Cypher and the
Joneses. However, there also remained the possibility that the
assets would be auctioned off separately with the result that
the plant would not reopen. As indicated above, Respondent
was able to reopen the facility in November 1985 and to hire
back almost all of the former employees.
Against this background, the complaint alleges that Re-
spondent refused to hire Jerry and Keith Steele, Kim Hall,
Marlynn Buckley, and Carl Calderwood, all former employ-
ees of the plant, because of their activities in support of the
ESOP. Further, the General Counsel claims that Respondent
refused to hire the employees because they filed charges with
the Board in violation of Section 8(a)(4) of the Act. The
8(a)(4) allegations were not included in the case until March
1989. Therefore, Respondent contends that these allegations
are time-barred by Section 10(b) of the Act.
The complaint further alleges that Respondent was a suc-
cessor employer to Bastian Industries and as such was obli-
gated to recognize and bargain with the Union as the exclu-
sive representative of the production and maintenance em-
ployees. Respondent denies that it is a successor employer
and further contends that the Union was defunct at the time
a request to bargain was made.
B. The 10(b) Issue
As indicated above the complaint alleges that after the em-
ployees filed charges with the Board in March 1986, Re-
spondent refused to hire them in violation of Section 8(a)(4)
of the Act. The original charges, filed in May 1986, alleged
that Respondent failed to hire the alleged discriminatees be-
cause of their activities on behalf of the ESOP. The first con-
solidated complaint issued in January 1989 alleged that the
five employees were not hired because of their activities on
behalf of the ESOP. It was not until after the complaint
issued that the charges were amended in March 1989 to in-
clude the allegations of an 8(a)(4) violation. Thereafter, the
complaint was amended to add the claim that Respondent
failed to hire the employees in violation of Section 8(a)(4)
because they had filed charges with the Board.
As stated earlier, Respondent contends that the amended
charges are time-barred by the 6-month statute of limitations
in Section 10(b).
Section 10 (b) provides in pertinent part:
that no complaint shall issue based upon any unfair
labor practice occurring more than six months prior to
the filing of the charge with the Board and the service
of a copy thereof upon the person against whom such
charge is made. . . . Any such complaint may be
amended by the member, agent, or agency conducting
the hearing or the Board in its discretion at any time
prior to the issuance of an order based thereon.
The principles governing this case were set forth by the
Supreme Court in NLRB v. Fant Milling Co., 360 U.S. 301
(1959). The Court held that a charge is not a pleading but
merely the first document which activates the Board’s inves-
tigatory process. The responsibility of making the investiga-
tion and in framing the complaint is with the General Coun-
sel. Once the charge is filed, the General Counsel is left free
to make a full inquiry and is not confined to the specific al-
legations of the charge. The Court held:
[W]e hold only that the Board is not precluded from
‘‘dealing adequately with unfair labor practices which
are related to those alleged in the charge and which
grow out of them while the proceeding is pending be-
fore the Board.’’ National Licorice Co. v. NLRB, 309
U.S. 350, at 369. [360 U.S. at 309.]
The critical issue is whether the amended charges are re-
lated to the unfair labor practices of the original charges and
grew out of them while the proceeding was pending before
the General Counsel. The question of whether a matter is
sufficiently related to the charge has been interpreted to
allow the relation back of amendments alleging acts that are
part of the same general course of conduct as the acts alleged
in the charge and within the same timeframe. See Eastern
Maine Medical Center v. NLRB, 658 F.2d 1 (1st Cir. 1981);
Rock Hill Telephone Co. v. NLRB, 605 F.2d 139, 142 (4th
Cir. 1979); NLRB v. Central Power & Light Co., 425 F.2d
1318, 1321 (5th Cir. 1970).
In Kelly-Goodwin Hardwood Co., 269 NLRB 33 (1984),
the Board held that an amended charge filed more than 6
months after the incident could properly allege a violation of
Section 8(a)(3), although the original charge had alleged only
violations of Section 8(a)(5) and (1). The Board held:
It is well settled that the timely filing of a charge
tolls the time limitation of Section 10(b) as to matters
subsequently alleged in an amended charge which are
similar to, and arise out of the same course of conduct,
as those alleged in the timely filed charge. Amended
charges containing such allegations, if filed outside the
6-month 10(b) period, are deemed, for 10(b) purposes
to relate back to the original charge. This practice is
wholly consistent with the statutory scheme, which es-
tablishes the charge merely as a vehicle for setting in
motion the Board’s investigatory machinery and, addi-
tionally, affords the Board leeway to issue a complaint
on grounds other than those specifically set forth in the
charge. [Id. at 36–37.]
In a recent case, Nickles Bakery of Indiana, 296 NLRB
927 (1989), dealing with the catchall ‘‘other acts’’ language
of the preprinted charge forms, the Board held that all com-
plaint allegations, including allegations of Section 8(a)(1),
must be factually related to the allegations in the underlying
charge. The Board reaffirmed the closely related test set forth
in Redd-I, Inc., 290 NLRB 1115 (1988). First, the Board will
look at whether the otherwise untimely allegations involve
the same legal theory as the allegations in the pending timely
charge. However, it is not necessary that the same sections
of the Act be invoked. Second, the Board will look at wheth-
er the otherwise untimely allegations arise from the same
factual circumstances or sequence of events as the pending
charge. Finally, the Board will look at whether a respondent
would raise similar defenses to both allegations.
Applying these principles to the instant case, the new alle-
gations are closely related to and grow out of the original
charges. Both allegations focus on the same set of facts. It
is the failure to hire the same five employees, during the
156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
same continuing time period, which is at issue in both the
original charges and in the amendments. The amendments
only add another unlawful motive, based on Respondent’s
admissions, for the conduct at issue in the timely charges.
Respondent would have to come forth and explain its reasons
for not hiring the alleged discriminatees in any event. The
timely charges should have resulted in Respondent preserv-
ing such evidence. The amendments could not have been in-
cluded in the original charges because by their very nature
they could not arise until after charges were filed by the em-
ployees. Further both the original charges and amendments
were in the nature of continuing violations, i.e., the continu-
ing refusal to hire these employees as positions became
available. It seems clear that the original timely charges
would support the amendment to the complaint with or with-
out the amended charges. Pergament United Sales, 296
NLRB 333 (1989). Accordingly, I find that the 8(a)(4) alle-
gations are not barred by Section 10(b) of the Act.
C. The Successorship Issue
Bastian Industries manufactured rubber hose and related
products at the Nephi facility until August 1984. The facility
was closed and in October a petition for reorganization under
Chapter 11 was filed. In October 1985, Respondent pur-
chased the plant, the equipment and real estate from the
Bankruptcy Court. Respondent hired Roger Jorgenson,
Bastian’s plant manager, as its plant manager and Blair
Painter, Bastian’s treasurer, as its controller. Respondent then
hired former supervisors and former employees of Bastian
beginning in late October. The plant was opened in Decem-
ber 1985 and limited production started in January 1986.
During its startup period, most of Respondent’s production
was sold to the companies owned by Cypher and the
Joneses. Thereafter sales were made to former customers of
Bastian. With time, Respondent changed the direction of its
marketing and increased the number of its customers and
made changes to its product line. By 1989, Respondent had
made substantial changes in financing, marketing, product
lines, and customers. In addition Respondent had purchased
a California company which made a related hose product and
had transferred equipment and employees to the Nephi plant.
The former Bastian employees filed job applications with
the Utah job service and were notified directly by Respond-
ent of their hire. At the time the Union requested recognition
in April 1986, Respondent had a work force of 53 employ-
ees, 50 of whom were former Bastian employees. By the end
of 1986 Respondent employed 63 employees, 58 of whom
were former Bastian employees. At the time of the hearing,
Respondent employed approximately 160 employees. Bastian
employed as many as 200 employees at the plant. However,
in the month prior to the plant closing, Bastian employed
only 80 employees.
General Counsel contends that Respondent has operated
the business of Bastian in basically unchanged form, and has
as a majority of its employees, individuals who were pre-
viously employees of Bastian. Respondent admits that a ma-
jority of its employees were previously employed by Bastian.
Respondent contends it started up a completely new business
in changed form, using the assets purchased from the bank-
rupt estate together with other assets purchased elsewhere.
In NLRB v. Burns Security Services, 406 U.S. 272 (1972),
the Supreme Court stated (406 U.S. at 281):
where the bargaining unit remains unchanged and a ma-
jority of the employees hired by the new employer are
represented by a recently certified bargaining agent
there is little basis for faulting the Board’s implementa-
tion of the express mandates of Sec. 8(a)(5) and Sec.
9(a) by ordering the employer to bargain with the in-
cumbent union.
The Board has held where a new employer ‘‘uses substan-
tially the same facility and same work force to produce the
same basic products for the same customers in the same geo-
graphic area’’ it will be regarded as a successor. Valley Ni-
trogen Purchasers, 207 NLRB 208 (1973). The Board has
utilized the following criteria:
Whether there has been a substantial continuity of the
same operations; (2) whether the new employer utilizes
the same plant; (3) whether the new employer has the
same or substantially the same work force; (4) whether
the same jobs exist under the same working conditions;
(5) whether the new employer employs the same super-
visors; (6) whether the new employer uses the same
machinery, equipment and methods of production; and
(7) whether the new employer manufactures the same
product or offers the same services. Border Steel Roll-
ing Mills, Inc., 204 NLRB 814 (1973).
In the instant case, Respondent meets all the Border Steel
criteria for the finding of successorship. Respondent has sub-
stantially continued the same operations at the same plant. A
large majority of its employees were doing the same jobs
under the same supervisors as they did when Bastian owned
the plant. Respondent was using the same machinery, equip-
ment, and methods of production and manufacturing the
same products at the time of the Union’s demand for rec-
ognition. The changes in Respondent’s operation took place
over time, but mostly after the recognitional demand. The
question presented is whether the hiatus, from the closing in
August 1984 to the reopening in December 1985, coupled
with the bankruptcy proceeding negates a finding of continu-
ity.
In Gladding Corp., 192 NLRB 200 (1971), the Board
found that the Respondent was not a successor based on a
bankruptcy, subsequent control by a government agency and
a hiatus of over 2 months before the alleged successor took
over the operation of the manufacturing plant. In Cagle’s
Inc., 218 NLRB 603 (1975), the Board found no
successorship based upon, inter alia, a bankruptcy and a hia-
tus of almost a year. In Blazer Industries, 236 NLRB 103
(1978), the Board found no successorship based on, inter
alia, a bankruptcy and a hiatus of more than a year.
In Fall River Dyeing Corp. v. NLRB, 482 U.S. 27 (1987),
the Supreme Court upheld a Board finding of successorship
despite a hiatus of 7 months between the predecessor’s de-
mise and the successor’s startup. The Court affirmed the
Board’s approach in determining the successorship question
based upon a totality of circumstances. The Court found that
the hiatus was only one factor in determining ‘‘substantial
continuity’’ and relevant only where there are other indicia
of discontinuity. There the Court found all the other factors
suggested ‘‘substantial continuity’’ between the companies
despite the 7-month hiatus. The Court noted that the hiatus
may have been less than 7 months because the predecessor
157NEPHI RUBBER PRODUCTS CORP.
3 I find Sterling Processing Corp., 291 NLRB 208 (1988), and El Torito-
La Fiesta Restaurants, 295 NLRB 493 (1989), cited by the General Counsel
to be inapposite. Those cases involved hiatuses of over a year but involved
a reopening by the same employer that had been signatory to the union con-
tract.
In Sterling Processing the Board stated that it ‘‘was not deciding whether
a 19-month hiatus would warrant not imposing a bargaining obligation on an
employer that was a different corporate entity from its putative predecessor.’’
291 NLRB 208, 210 fn. 10. In that case the respondent employer had shut
down its operations during the term of the collective-bargaining agreement and
reopened after the agreement had automatically renewed. Further, the Board
found substantial contact between the union and employer during the hiatus.
In El Torito-La Fiesta the temporary shutdown and reopening both occurred
during the term of the collective-bargaining agreement. The Board applied its
contract bar rule and required the employer to honor its existing contract after
the reopening.
4 Under such circumstances, the Union would be free to file for representa-
tion rights under Sec. 9 of the Act.
retained a skeleton crew and was seeking to resurrect the
business or find a buyer. The Court concluded that ‘‘viewed
from the employees’ perspective, therefore, the hiatus may
have been less than seven months.’’
Although in Burns, supra, the Court found a successorship
obligation to bargain based, inter alia, on the fact that the
Union was recently certified, the successorship doctrine is
equally applicable even if the union had not been recently
certified. Fall River, supra. In our case, the Union is entitled
to a rebuttable presumption of majority support based on its
collective-bargaining agreement which expired in August
1984. However, it should be noted that the Union had not
represented these employees, or any other employees, for a
period of more than 18 months prior to the demand for rec-
ognition. During the long hiatus the employees, along with
supervisors, local businessmen and politicians, sought to find
outside buyers or to facilitate a takeover of the plant by the
ESOP. It was clear that Bastian would not reopen the plant.
It was the local entities and not Bastian that was recruiting
prospective buyers in an effort to avoid an auction sale and
a permanent dismantling of the plant.
Prior to the plant closing there had been substantial layoffs
and sporadic production at the plant. After the bankruptcy
filing, for over 1 year the future of the plant was uncertain.
The plant was not operating during the bankruptcy. Even
after Respondent barely escaped the bankruptcy auction sale,
the opening of the plant was in doubt. The grant originally
destined for the ESOP had to be restructed to make Respond-
ent eligible. Thus, after Respondent’s initial hiring of em-
ployees, hiring and production were put on hold until the fi-
nancing was in place. There was a lag in acquiring customers
and procuring orders so that production at the beginning of
the startup was substantially for businesses owned by Re-
spondent’s principals. Thus, using the employees’ perspec-
tive, here unlike Fall River Dyeing the hiatus would seem to
be in excess of the 16 months of complete shutdown.
The Supreme Court’s decision did not overrule the prior
Board cases such as Cagle’s Inc., and Blazer Industries,
supra, which found that based upon a bankruptcy and a hia-
tus of over a year there was not a substantial continuity of
the employing industry. Here the bankruptcy, coupled with
the long hiatus in both the operation of the plant and rep-
resentation by the Union, suggests instability and discontinu-
ity rather than substantial continuity.3
Accordingly, I decline to find that Respondent was a suc-
cessor employer under the Burns doctrine.4 I shall rec-
ommend that the 8(a)(5) allegations of the complaint be dis-
missed.
D. The Failure to Rehire the Charging Parties
After Bastian closed the plant, the city of Nephi, the coun-
ty of Joab, and the Regional Development Agency sought to
attract purchasers for the plant. The employees with the aid
of professors from Brigham Young University formed an
Employee Stock Ownership Program (ESOP) to reorganize
and refinance the former Bastian-owned entity. The ESOP
group had as its members former management of the plant,
bargaining unit employees and members of city government.
The ESOP group held meetings, formed committees, raised
money, and sought loans and grants in an effort to buy and
reopen the plant. The ESOP planned that employees would
purchase shares in the corporation when called back to work.
The group worked on securing loans for employees to pur-
chase such shares.
The ESOP was able to secure a $700,000 HUD grant and
a $360,000 job training grant controlled by the City of
Nephi. These grants did not belong to the ESOP, but were
available to whatever entity opened and operated the plant.
After Respondent was able to purchase the facility from the
Bankruptcy Court, the funds were eventually made available
to Respondent.
ESOP did not obtain sufficient financing and the Bank-
ruptcy Court scheduled a liquidation auction to take place in
early October 1985. Bastian paid a deposit to the auctioneer
and all the equipment was tagged for sale. It was obvious to
both Respondent and the ESOP group that, if the equipment
was auctioned, reopening of the plant would be highly im-
probable. Respondent made a bid of $1.2 million but that bid
was opposed by the ESOP group and rejected by the Bank-
ruptcy Court. Four days prior to the scheduled auction, Re-
spondent raised its bid to the Bankruptcy Court. At a Bank-
ruptcy Court hearing held on October 4, 1985, the ESOP
group opposed Respondent’s bid and sought additional time
to purchase the plant itself. The Court rejected the ESOP’s
objections and approved a sale of assets to Respondent. Dur-
ing the pendency of the bankruptcy proceedings, and once
after the Court approved the sale, Respondent rejected the ef-
forts of the ESOP to participate as a partner in its venture.
Respondent hired supervisors and employees who had
been active in the ESOP activities. However, it did not offer
reemployment to the five charging parties even after vacan-
cies arose in their positions. Further, Respondent declined to
offer employment to the five charging parties even after it
had offered employment to all former employees and had
begun hiring employees without experience at this facility.
All five of the charging parties were active in ESOP ac-
tivities. However, more meaningful was that Marlynn Buck-
ley, Carl Calderwood, Keith Steele, and Jerry Steele were
present at the bankruptcy proceedings at which the ESOP op-
posed the Respondent’s offer to purchase the plant and
equipment. Buckley, Keith Steele, and Jerry Steele had been
identified in local newspaper stories as leaders in the ESOP’s
efforts to buy the plant. Jerry Steele was the union president,
was chairman of the ESOP corporation and headed the em-
ployees’ efforts to purchase the plant. While Kim Hall did
not attend the Bankruptcy Court proceedings, he did publicly
urge the Joab County Commissioners not to support Re-
spondent’s efforts to purchase the plant. Instead, Hall urged
158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The charges were filed with the Board’s regional office in Denver, Colo-
rado.
that the County support the ESOP’s bid as well as Respond-
ent’s. Hall was also active in the ESOP and a member of its
board of directors.
Jerry Steele testified that in January 1986, he had a con-
versation with Supervisor Ralph Wilson about the chances
for being hired at the plant. Steele testified that Wilson told
him that Wilson had attended a meeting at which Roger
Jorgensen indicated that none of the Steele family would be
employed because they were considered to be troublemakers.
Wilson was never asked if he made such a statement to
Steele and, therefore, never denied the statement attributed to
him by Steele.
Wilson testified that he had several conversations with
Jorgensen in which he recommended that Jerry Steele be re-
hired to his former job as tuber operator. Wilson testified
that Jerry Steele was an experienced tuber operator and a
good employee. On one occasion, the tuber operator who
was leaving also recommended Steele for the job. However,
Jorgensen never responded to Wilson’s recommendations
and, instead, inexperienced workers were hired. Wilson de-
nied that Jorgensen had told him that the Steeles would not
be rehired because they were troublemakers.
Wilson could give no explanation for the failure to hire
Jerry Steele. Jorgensen merely stated that he never got
around to hiring Steele. However, he never reconciled that
testimony with the fact that he hired inexperienced people,
requiring 12 weeks of training, to perform this job rather
than the very experienced Steele. While denying that the
ESOP activities had anything to do with the failure to rehire
Steele and the other employees, Jorgensen admitted that after
the employees filed lawsuits (more correctly the NLRB
charges), he no longer considered them to have the proper
attitude and did not consider them for employment. Because
of their activities in Bankruptcy Court the employees were
considered too militant.
After Keith Steele applied for employment he was asked
by Plant Superintendent Nilan Pickering if he had any ani-
mosity toward Respondent because of his ESOP activities.
Steele answered that his attitude was good and that he only
wanted the plant to prosper.
During a break in the bankruptcy proceedings, Respond-
ent’s accountant/attorney asked Jerry Steele what it would
take to get Steele to stop opposing Respondent’s offer. Steele
answered that he represented all the employees and was not
interested in anything the accountant had to offer. The ac-
countant walked away.
In February 1989, Mayor Brad Park of the City of Nephi
gave an affidavit to the NLRB attorney preparing the case
for trial. In that affidavit Park stated:
I asked why the men (Charging Parties) were not being
hired back. Jorgensen told me that it was because of
what the men had said at the trial up in Salt Lake City
which involved the bankruptcy of Bastian Industries.
He said that Cypher and Jones would not let him hire
the men back because of that.
The affidavit further stated that Jorgensen said that maybe
there was some hope for them to be hired back until they
had filed suit against the company over in Denver.5 Park fur-
ther testified that he stopped his efforts to have the five em-
ployees hired after he learned that they had filed charges.
At the trial Mayor Park attempted to retract his statement
by testifying that Jorgensen did not make these remarks.
However, Park would not swear that his affidavit was untrue
and consistently became confused when questioned about the
alleged errors in the statement. Based on his demeanor and
contradictory testimony, I found Mayor Park to be an
untrustworthy witness. It was clear his friendship with
Jorgensen and the City’s interest in keeping the plant open
were more important to Park than testifying truthfully in this
proceeding. Park simply did not want to give testimony unfa-
vorable to Jorgensen or Respondent. However, Park could
not explain away his sworn affidavit. I find Park’s pretrial
statement more reliable than his confused and contradictory
testimony.
Mayor Park is a member of Respondent’s board of direc-
tors pursuant to the agreement by which Respondent ob-
tained the $700,000 HUD grant. The City of which he is
Mayor owns $700,000 in preferred stock of Respondent. The
City has a population of 3000, a large percentage of whom
work for Respondent. By virtue of Park’s position on Re-
spondent’s board of directors, I find his pretrial affidavit to
be an admission binding on Respondent under Rule 801
(d)(2)(D) of the Federal Rules of Evidence. As an admission
of a party, the statement by definition is not hearsay. Once
agency, and the making of the statement while the relation-
ship continues, are established, the statement is exempt from
the hearsay rule so long as it relates to matters within the
scope of the agency. The Rule does not require that Park
have personal knowledge of the facts underlying his state-
ment. Marlandt v. Wild Canid Survival Research & Center,
Inc., 588 F.2d 626 (8th Cir. 1978).
General Counsel argues that the thrust and purpose of the
employees’ activities were to reopen the plant and secure
employment for the former employees. While that may have
been the purpose at the commencement of the ESOP activi-
ties, the focus of attention should be on the activities which
took place in October 1985. At that time, Respondent was
attempting to purchase the assets of Bastian; the ESOP was
Respondent’s sole competitor. While the employees sought to
reopen the plant, the primary intent and meaning of their ac-
tivities were to become the owners of the plant to the exclu-
sion of Respondent. The evidence establishes no animus
against ESOP activities in general. Rather it was the ‘‘mili-
tancy’’ in October 1985, and the continuing effort that jeop-
ardized Respondent’s purchase, which caused the animus
against these employees. There was no apparent animus
against other employees and supervisors active in the ESOP
generally.
Section 7 of the Act provides that ‘‘employees shall have
the right . . . to engage in . . . concerted activities for the
purpose of collective bargaining or other mutual aid or pro-
tection.’’ The issue presented here is whether the activities
of the five employees on behalf of the ESOP were protected
under Section 7.
In Retail Clerks Local 770, 208 NLRB 356, 357 (1974),
the Board held that an employee has no protected right to
engage in activities designed solely for the purpose of influ-
encing or producing changes in the management hierarchy.
Further, in pursuing such an object, the employees are not
in any more favorable posture when these efforts are directed
159NEPHI RUBBER PRODUCTS CORP.
towards a group outside the internal organization itself, such
as the stockholders of a corporation.
The Board has thereafter held unprotected broad based ac-
tivities to effect a change in the top management of the em-
ployer. New York Chinatown Senior Citizens Coalition, 239
NLRB 614 (1978). Further, the Board has held that employ-
ees’ activities in an attempt to affect managerial policies are
not protected. Good Samaritan Hospital, 265 NLRB 618,
626 fns. 33 and 34 (1982). See also Lutheran Social Service
of Minnesota, 250 NLRB 35, 41–42 (1980).
I find the activity of the employees which caused Re-
spondent not to hire them was the attempt in October to pre-
vent Respondent’s purchase in bankruptcy and to substitute
the ESOP as the purchaser. I find that this activity is unpro-
tected under the Local 770 case and its progeny. The em-
ployees were in effect attempting to prevent Respondent’s
management from owning and operating the employing en-
tity. The employees were attempting the ultimate change in
the management hierarchy; they were attempting to substitute
themselves as management. While the employees had every
right to do so, they were not acting to improve their lot as
employees but rather as entrepreneurs. As such, their efforts
to prevent Respondent’s purchase of the assets and to pur-
chase the assets themselves related to a dispute outside the
objectives of the mutual aid or protection provisions of Sec-
tion 7 of the Act.
General Counsel argues that at the time of the refusal to
hire, the ESOP was no longer a threat to Respondent and
therefore could not not serve as a defense. I find that argu-
ment unpersuasive. If the activity was unprotected under
Local 770, it does not become protected by the passage of
time. While General Counsel is willing to forgive and forget,
the statute does not compel Respondent to do so.
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989, the Board an-
nounced the following causation test in all cases alleging
violations of Section 8(a)(3) or violations of Section 8(a)(1)
turning on employer motivation. First, the General Counsel
must make a prima facie showing sufficient to support the
inference that protected conduct was a ‘‘motivating factor’’
in the employer’s decision. Upon such a showing, the burden
shifts to the employer to demonstrate that the same action
would have taken place even in the absence of the protected
conduct. The United States Supreme Court approved and
adopted the Board’s Wright Line test in NLRB v. Transpor-
tation Corp., 462 U.S. 393, 399–403 (1983). I now apply the
Wright Line test to the 8(a)(4) allegations.
In the instant case, after the charges were filed, the em-
ployees lost whatever chance they had for employment by
Respondent. The testimony of Mayor Park and Plant Man-
ager Jorgensen establishes that there was a possibility that
the employees would be offered employment but the Mayor
ceased his efforts and Jorgensen determined not to hire the
employees after charges with the Board were filed.
As the Board stated in Big E’s Foodland, 242 NLRB 963,
968 (1979):
Essentially, the elements of a discriminatory refusal to
hire case are the employment application, the refusal to
hire each, a showing that each was expected to be a
union supporter or sympathizer, and further showings
that the employer knew or suspected such sympathy or
support, maintained an animus against it, and refused to
hire the applicant because of such animus.
For the following reasons, I find that General Counsel has
made a prima facie showing that Respondent discriminatorily
refused to hire the charging parties because they filed
charges with the Board. First, Plant Manager Jorgensen ad-
mitted that after the employees filed the charges they did not
have the proper attitudes for hire. He testified that he consid-
ered them for hire for a certain period of time but his out-
look and that of the owners changed after the charges were
filed. Second, Park, a member of the Board of Directors, ad-
mitted that Jorgensen told him that there was some hope for
the employees until they filed the charges. Park further ad-
mitted that his efforts to help the employees obtain employ-
ment ceased after he learned of the charges. Third, Jorgensen
could give no credible reason why these employees were not
hired. He stated that Respondent had not gotten around to
hiring the employees but failed to explain, other than the fil-
ing of the charges, why Respondent did not hire these em-
ployees after it had exhausted all the former employee appli-
cants and began hiring untrained applicants. Fourth, after Su-
pervisor Wilson recommended that Jerry Steele be hired,
Jorgensen would not respond and simply filled the position
with inexperienced employees. Absent discrimination, Wil-
son’s recommendations would have been followed. At the
very least, Wilson would have been given some explanation
as to why Steele was not being hired. Finally, all of the five
applicants were senior employees, among the last to be laid
off by these same supervisors under Bastian, and had good
work records.
The burden shifts to Respondent to establish that the same
action would have taken place in the absence of the employ-
ees’ protected conduct. Respondent has not given any credi-
ble reason for not hiring the Charging Parties. Despite Re-
spondent’s denials, the record supports a finding that the
Charging Parties were not hired because of their activities on
behalf of the ESOP. However, that finding does not conclude
our inquiry here. The testimony of Jorgensen and Park estab-
lishes that the employees were still being considered for em-
ployment and Park was attempting to help them until they
filed charges with the Board. After the filing of the charges,
Jorgensen’s attitude and that of the owners changed. Upon
learning of the charges, Park ceased and abandoned his at-
tempts to help secure employment for the Charging Parties.
Thus, Respondent’s admissions preclude a finding that the
employees would not have been hired absent the filing of the
charges. On this record I find Respondent delayed or post-
poned hiring the employees because of their ESOP activities
and thereafter unlawfully refused to consider the employees
for employment because they filed charges with the Board.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and that it take certain affirmative action to
effectuate the policies of the Act. Accordingly, Respondent
will be ordered to offer Jerry Steele, Kim Hall, Keith Steele,
Marlynn Buckley, and Carl Calderwood immediate reinstate-
ment to the positions from which they were unlawfully ex-
cluded from employment, dismissing, if necessary, anyone
who may have been hired or assigned to perform the work
160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Under New Horizons, interest is computed at the ‘‘short-term Federal rate’’
for the underpayment of taxes as set forth in the 1986 amendment to 26
U.S.C. § 6621. Interest accrued before January 1, 1987 (the effective date of
the amendment) shall be computed as in Florida Steel Corp., 231 NLRB 651
(1977).
7 All motions inconsistent with this recommended Order are denied. If no
exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Reg-
ulations, the findings, conclusions, and recommended Order shall, as provided
in Sec. 102.48 of the Rules, be adopted by the Board and all objections to
them shall be deemed waived for all purposes.
8 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 Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
they would have been performing if they had not been un-
lawfully denied employment, or if those positions no longer
exist, to substantially equivalent positions, without prejudice
to their seniority or other rights and privileges. Additionally
Respondent shall be required to make all five Charging Par-
ties whole for any loss of earnings they may have suffered
by reason of the discrimination against them, with backpay
to be computed on a quarterly basis, making deductions for
interim earnings, F. W. Woolworth Co., 90 NLRB 289
(1950), and with interest to be provided in the manner pre-
scribed in New Horizons for the Retarded, 283 NLRB 1173
(1987).6
CONCLUSIONS OF LAW
1. Respondent, Nephi Rubber Products Corp., a Cypher-
Jones Company, is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. By refusing to hire Jerry Steele, Keith Steele, Kim Hall,
Marlynn Buckley, and Carl Calderwood because they filed
charges with the Board, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(4) and (1)
of the Act.
3. The above unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
4. Except as found above, Respondent has not violated the
Act as alleged in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
ORDER
The Respondent, Nephi Rubber Products Corp., a Cypher-
Jones Company, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to hire employees because they filed charges
with the National Labor Relations Board.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of any rights guar-
anteed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Jerry Steele, Keith Steele, Marlynn Buckley, Carl
Calderwood, and Kim Hall immediate and full reinstatement
to the positions that they would have occupied if they had
not been unlawfully denied employment, dismissing, if nec-
essary, anyone who may have been hired or assigned to per-
form the work that they would have been performing, or if
those positions no longer exist, to a substantially equivalent
position, without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of pay
they may have suffered as a result of the unlawful denial of
employment to them, in the manner set forth above in the
remedy section entitled of this decision.
(b) Remove from their files any reference to the unlawful
refusal to employ the above employees and notify them in
writing that this has been done and that the refusal to hire
will not be used against them in any way.
(c) 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 deter-
mine the amount of backpay due under the terms of this
Order.
(d) Post at its plant in Nephi, Utah copies of the attached
notice marked ‘‘Appendix.’’8 Copies of said notice, on forms
provided by the Regional Director for Region 27, after being
signed by its authorized representative, shall be posted imme-
diately on receipt and maintained for 60 consecutive days
thereafter, in conspicuous places, including all places where
notice to employees are customarily posted. Reasonable steps
shall be taken by Respondent to ensure that said notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from this Order what steps Respondent has taken to comply.