Vermont Foundry Co.

National Labor Relations Board - Board Decisions

Feb 10, 1989

292 N.L.R.B. 1003 (N.L.R.B. 1989)

VERMONT FOUNDRY CO
Vermont Foundry Co, a Division of Mahoney
Foundries , Inc and International Union , United
Automobile, Aerospace and Agricultural Imple-
ment Workers of America (UAW) and its Local
844 Cases 33-CA-8027 and 33-CA-8065
February 10, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On March 31, 1988, Administrative Law Judge
Arline Pacht issued the attached decision The Re-
spondent filed exceptions and a supporting brief,'
and the General Counsel filed limited exceptions
and a brief in support of the administrative law
judge's decision
The National Labor Relations Board has delegat-
ed 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 briefs and has
decided to affirm the judge's rulings, findings,2 and
conclusions and to adopt the recommended Order
as modified 3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
' 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 We correct several inadvertent errors made by the judge In the sec
torn of the decision titled The Trainee Program the second sentence in
the first paragraph should read Claiming that the region suffered from a
shortage of experienced personnel Additionally in the section of
the decision titled The Alleged Discriminatory Refusals to Hire with
respect to Chris Hagie all references to machinist(s) and mechanics
should be changed to maintenance man/men
We find contrary to the judge that the Respondent did not violate
Sec 8(a)(1) of the Act through a statement made by Supervisor Harold
Collins to employee Phyllis Elgin because at the time that statement was
made Collins was not employed by and under the circumstances here not
an agent of the Respondent Because similar statements were made by
Plant Superintendent Curths and Foreman Bob Hams after the Respond
ent s purchase of the business however we find no need for any change
in the Order We also find that even without considering Collins state
ment there is sufficient evidence of unlawful motivation in the Respond
ent s refusal to hire the six union officers
In agreeing with the judge s finding that the Respondent is a successor
and that its bargaining obligation arose on April 6 1987 we rely also on
the fact that the trainees were not integrated into the Respondents work
force In this regard the Respondent guaranteed the trainees only 4 to 5
hours of work per week accompanied by assurances that the training
would aid them in seeking employment elsewhere Further those trainees
who remained at the foundry and acquired 40 hours of work per week by
September 27 1987 were still classified and paid as trainees rather than
as regular full time employees
3 We find merit in the General Counsels exception that the judges
remedy and Order should not have limited the discnminatees reinstate
ment rights to the discharge where necessary of persons who were
hired as trainees but rather should have included any and all persons
hired to fill positions for which the discnminatees would have been
hired on or after April 6 1987 but for the Respondents unlawful dis
cnmtnatton
1003
judge as modified below and orders that the Re-
spondent, Vermont Foundry Co, a Division of
Mahoney Foundries, Inc, Vermont, Illinois, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Order as modified
1 Substitute the following for paragraph 2(a)
"(a) Offer immediate and full employment to
Chris Hagie, Phyllis Elgin, Scott Parry, Troy
Hunter, Steve Kinne, and Ted Richey, without
prejudice to their seniority and other rights and
privileges, in those positions for which they would
have been hired on and after April 6, 1987, but for
the Respondent's unlawful discrimination or, if
those positions no longer exist, to substantially
equivalent positions, dismissing if necessary, any
and all persons hired to fill such positions In addi
tion, make them whole for any loss of pay they
may have suffered by reason of the discrimination
practiced against them in the manner described in
the remedy section of the judge's decision "
2 Substitute the attached notice for that of the
administrative 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 ordered us to post and abide by this notice
WE WILL NOT refuse to recognize or bargain in
good faith with the International Union, United
Automobile, Aerospace and Agricultural Imple
ment Workers of America and its Local 844, as the
exclusive collective-bargaining representatives of
our employees in the following unit
All production and maintenance employees at
Employer's plant at Vermont, Illinois, includ-
ing plant clericals and truck drivers excluding
all office clerical employees, confidential em-
ployees, professional employees, guards, work-
ing foremen and all supervisors as defined in
the Act
WE WILL NOT refuse to hire or otherwise dis-
criminate against employees in their hire or tenure
of employment because they are officers of and ac-
tivists in the Union or any other labor organization
WE WILL NOT make statements through our su-
pervisors that indicate we will not recognize or
bargain with the Union as the exclusive bargaining
representative of employees in the Vermont
Foundry nor will we state that the Union causes
292 NLRB No 108
1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
problems or that union officers or activists will not
be hired
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees or appli-
cants for employment because they engage in
Union or protected concerted activity
WE WILL meet and bargain in good faith with
the Union over wages, hours of work, and all other
terms and conditions of employment for the em-
ployees in the unit described above and, if agree
ment is reached, WE WILL embody it in a signed
contract
WE WILL offer immediate and full employment
to Chris Hagie, Phyllis Elgin, Scott Parry, Troy
Hunter, Steve Kinne, and Ted Richey without
prejudice to their seniority and other rights and
privileges, in positions for which they would have
been hired on and after April 6, 1987, but for our
unlawful discrimination or, if those positions no
longer exist, to substantially equivalent positions,
dismissing if necessary, any persons hired to fill
those positions In addition, we will make them
whole for any loss of earnings they may have suf
fered by reason of our failure to hire them about
April 6, 1987, with interest
VERMONT FOUNDRY CO, A DIVISION
OF MAHONEY FOUNDRIES, INC
Will Vance Esq for the General Counsel
James B McCabe Esq, of Rolling Meadows Illinois for
the Respondent
DECISION
STATEMENT OF THE CASE
ARLINE PACHT Administrative Law Judge On
charges filed by International Union, United Automobile
Aerospace and Agricultural Implement Workers of
America (UAW) and its Local 844 (the Union) on April
29 and June 19 as amended on August 4 1987, a con
solidated complaint issued on August 13, 1987 alleging
that the Respondent violated Section 8(a)(5) and (1) by
refusing to recognize and bargain with the Union as the
exclusive collective bargaining representative of its em
ployees Section 8(a)(3) and (1) of the Act by refusing to
hire employees who were union officers, and Section
8(a)(1) by making statements to applicants for employ
ment, which tended to interfere with restrain, and
coerce them in the exercise of rights guaranteed by Sec
tion 7 of the National Labor Relations Act (the Act)
The Respondent filed a timely answer on August 26
19871
On the entire record including my observation of the
witnesses' demeanor and consideration of the parties'
postheanng briefs I make the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent, an Indiana corporation with an office
and place of business in Vermont, Illinois manufactures
brass and aluminum castings During the past 12 months,
a period representative of all times material, Respondent
sold and shipped from its Vermont Foundry finished
products valued in excess of $50,000 directly to points
outside the State of Illinois During the same 12 month
period Respondent purchased and received at its found
ry goods and materials valued in excess of $50,000 that
were transported directly from States other than Illinois
On these facts, the complaint alleges, the Respondent
concedes and I find that the Respondent engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act
The Union is now, and has been at all times material, a
labor organization within the meaning of Section 2(5) of
the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A Background
Prior to Respondents acquisition of the Vermont
Foundry the facility was owned and operated by MCC
Clayton Mark Foundry which produced brass and alu
minum castings For many years, the labor force at the
foundry was represented by the UAW and its Local 844
To be precise the International Union was certified as
the collective bargaining representative on April 6, 1984,
for a unit including
All production and maintenance employees at the
Employers plant at Vermont, Illinois, including
plant clericals and truck drivers excluding all office
clerical employees confidential employees profes
sional employees guards working foremen and all
supervisors as defined in the Act 2
Shortly thereafter Local 844 was chartered pursuant
to the International Union s constitution International
representatives continued to work with Local officials
particularly assisting them during collective bargaining
negotiations Successive collective bargaining agreements
were executed with the most recent contract covering
the years 1985 to April 30 1988 By the terms of this
agreement the predecessor, MCC Clayton Mark Found
ry (Clayton Mark or the predecessor), specifically recog
nized both the International and its Local 844 as the em
ployees authorized bargaining representatives
When the sale of the foundry to Respondent became
imminent Assistant Director Paul Korman for Region 4
of the International together with officers of the Local,
negotiated a contract with the predecessor terminating
the collective bargaining agreement and providing bene
fits for the employees At this point in time the number
of unit employees totaled 72 However, because the
2 The Respondent admitted that the unit description was appropriate
i Hereinafter all dates will refer to 1987 unless otherwise noted with the caveat that it employs no one as a working foreman
VERMONT FOUNDRY CO
foundry's operations were seasonal with the low point
for the labor force traditionally occurring during the
winter months only 48 employees were on active duty
while 24 employees were still on layoff with a reasonable
expectation of recall
B The Respondents Takeover
In late March, just before the sale was consummated
on April 2, the employees met as a group with the new
owner, John Mahoney During this meeting, an employ
ee and vice president of the Union, Phyllis Elgin, asked
Mahoney whether he intended to hire new personnel
Mahoney assured the audience that he would leave
things just as they were Respondent also made a coin
mitment to hire local residents in return for the village
council's agreement to extend the term of economic
bonds covering the foundry's operations 3
The hiring process, which began as soon as the sale
was concluded was directed solely by Robert Ditton,
who at the time served as a paid consultant to the Re
spondent 4 Ditton testified that even prior to Respond
ent s purchase of the foundry he and Mahoney formulat
ed a two part employment plan The first step in the plan
entailed hiring experienced personnel to fill a preestab
lished number of positions in each of the foundry's de
partments so that operations could resume immediately
Accordingly, Respondent advertised in local newspapers
that it would accept applications for vacancies on April
2 and 3 In those few days, over 1000 persons, including
all the former foundry employees, submitted application
forms to Respondents agents Over the next several
days Ditton made his hiring decisions after reviewing
the applications and consulting with Plant Superintend
ent Lionel Curths Curths who lived in Vermont and
had served as superintendent at the foundry for 30 years,
was well equipped to answer Ditton's questions about
the work history of the former employees Ditton did
not seek Curths' recommendations Rather, he asked
Curths for his assessment of an applicant's experience
competence, and industry In addition to these specific
inquiries he also asked Curths to provide him with a list
of the Local 844 officers
Over the next several days Respondent offered posi
tions to 42 experienced employees 39 of whom had
worked for the predecessor and belonged to the Union
Thirty of the thirty nine were on actual duty just prior
to the sale while the remaining nine were on layoff
status 5 The newly hired employees received an intro
ductory form letter that set forth their wage rates and
stated Respondent would give favorable consideration
to any applicant that does have foundry expert
ence
On April 6, 4 days after the sale this core group of
seasoned employees started work on the midnight shift,
the only shift that the predecessor and the Respondent
maintained For the most part, they returned to the same
3 Vermont has a total population of 850
* At the time of the hearing Ditton was operations manager for Re
spondent s Indiana plant
5 A 43d employee Anna Barger worked for the Respondent for only
I week Consequently I do not count on her as one of the permanent
full time employees
1005
jobs they had held under their previous employer The
predecessors job classification system, departmental
structure and supervisory hierarchy remained intact
In fact except for a change in corporate ownership,
the foundry functioned just as it had in the past Re
spondent continued to produce metal castings using in
ventory and equipment purchased from its predecessor
It assumed the predecessor's customer list as part of its
purchase agreement Ditton asserted that Respondent
was so successful in obtaining new orders that within
several months after operations began new accounts con
stituted 60 percent of Respondents business His estimate
of the ratio between new and old clients was vastly in
flated, as General Counsels Exhibit 19 shows that at the
time of trial only 14 or 15 percent of Repsondent s 88
customers were new
C The Trainee Program
Ditton further testified that the second part of his em
ployment strategy was to initiate a training program in
order to develop a pool of part time employees who
would be available for employment or layoff according
to seasonal fluctuations in the foundry's operations
Claiming that the region suffered from a shortage of in
experienced personnel (apparently forgetting that a
number of the predecessors employees had not been of
fered employment) Ditton stated that he sought wholly
inexperienced employees for the training program who
would work a minimum of 4 hours a week at $5 50 an
hour with no fringe benefits, and who would be permit
ted to adjust the number of total hours worked to ac
commodate regular full time employment schedules else
where They would be assigned to various jobs through
out the foundry (with the exception of the highly skilled
maintenance and pattern making work) under the tute
lage of the seasoned full time employees
Ditton selected 42 trainees from the applications sub
mitted in early April Giving Plant Superintendent
Curths no more than a day or two notice that the train
ing program would commence Ditton added the 42
trainees to Respondents payroll as of April 22 He told
the trainees that the training period would be for an in
definite length of time and that they could not expect
regular full time employment Instead they would be
equipped with job skills they might use elsewhere De
spite these caveats Ditton said that some four or five
trainees eventually were added to the Respondents per
manent roster In fact Respondent's timecards indicate
that after several months of part time training eight
trainees were gradually added to Respondent's payroll
on a permanent full time basis 6 Ditton further stated
that Respondent subsequently offered full time positions
to another four or five of the former Clayton Mark em
ployees Here, too Ditton was wrong, for Respondent
subsequently added to its permanent staff only two of the
predecessors employees, Geraldine Hanson and Pat
Haney
6 The following trainees assumed full time positions on the dates listed
below
Continued
1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
At the hearing, Ditton expressed satisfaction with the
training program, indicating that it had achieved its goal
of developing a cadre of part time foundry workers He
claimed that only 10 of the original 42 trainees had
dropped out of the program and that they had been re
placed, thereby implying that the number of trainees
continuing in the program remained relatively constant
Ditton was mistaken The record shows that only 8 of
the initial 42 trainees who began work on April 22 re
mained in the trainee program by the end of the summer
Even more important is the fact that the training pro
gram included 42 employees for only the first week of its
existence Thereafter the total number of participants in
the program steadily dwindled, although this was osten
sibly the foundry s peak season Thus, for the pay period
ending April 27, the number of trainees dropped to 39, a
week later there were only 37 In June, the number of
trainees hovered at 31 Over the summer months, the
number declined even more radically, dropping to a low
of 17 By the end of September, the number of trainees
reached a plateau of 23 or 24, half of whom had been
hired within the past month 7
D The Union Requests Recognition
By letter dated April 6, the day the foundry opened
under new management UAW International Representa
tive Korman wrote to Mahoney requesting recognition
In response, Dick Hanson, president of the Vermont
Foundry, telephoned another UAW official advising him
to contact Respondents attorney Accordingly, by letter
dated April 10, the Union wrote to counsel James
Date of
Trainees Job Title Permanent
Hire
Daniel Lotz Metal Processor June 21
David Gossage Squeeze Molder July 19
George Cleavinger Shakeout July 19
William McKinley Coremaker July 19
Brian Dean Grinder July 26
(terminated
Sept)
William Moulton Shakeout Metal Processor July 26
Donald Parsano Metal Processor August 19
Richard Luder Cleanup September 27
7 The following data is derived from Respondents timecards received
into evidence as R Exh 2
Number of Trainees Payroll Period
39 April 27
37 May 10
37 May 17
31 June 7
31 June 21
31 July 5
20 July 19
17 July 26
23 August 9
23 September 13
24 September 27
McCabe and again urged Respondent, as a successor to
recognize the International Union and Local 844 as the
certified collective bargaining representatives of the
`vast majority of employees "
In reply McCabe expressed confusion about the basis
for the Union's claim , but agreed to investigate its con
tention that Respondent was a successor The Union sent
still a third letter to McCabe on April 16 rearticulating
its demand for recognition based on Respondents status
as a successor employer
On April 22, the very day that Respondent added 42
part time trainees to its payroll, McCabe advised the
UAW that the Company was rejecting its demand for
recognition and bargaining on two grounds first, because
the Local and not the International Union represented its
employees and second, it was not a successor since union
members did not constitute a majority of its current
work force
E Allegations of Independent 8(a)(1) Violations
As noted previously , Respondent retained all the pred
ecessor s supervisory staff In the weeks just before the
takeover and in subsequent months, some of the supervi
sors made uncontroverted comments to several former
employees who had not obtained jobs after the takeover
which suggested that the Respondent was strongly op
posed to union organization and especially resistant to
hiring union officers
Phyllis Elgin , the union vice president , testified as to
the earliest of such conversations that occurred sometime
in late March just before the sale became final Follow
ing a coffeebreak taken with other foremen, Harold Col
lins, an admitted supervisor , returned to the shop floor
and told her during one of their frequent conversations,
"Well, Phyllis, I don t think you are going to have a job,
you're a Union officer and no Union officer will be
hired "
In early May, Scott Parry , a steward and recording
secretary for the Local stopped by the home of his
neighbor , Plant Superintendent Curths While helping
Curths with yardwork because he had a heart condition,
Parry asked if he thought the Union might succeed in
getting back into the foundry Curths who testified in
the instant proceeding but did not deny the remarks at
tributed to him, answered No, Mr Mahoney really
don t want the Union in' (sic) Curths continued that
Mahoney felt the Union was time consuming , trouble
some costs too much money that Mahoney had a non
union plant in Indiana , and that he wanted the Vermont
Foundry to be nonunion also
Troy Hunter , another union steward testified about
several revealing conversations he had with another fore
man, Bob Harris, his neighbor and friend of 15 years
Hunter recalled that on one occasion while visiting
Harris at his home , Hunter suggested that Respondent
had not hired him because of his union position and be
cause he had filed a workmen s compensation claim
Harris confirmed Hunter s suspicions and then volun
teered that Respondent had rejected Phyllis Elgin be
cause she stood up for her rights and the rights of other
members of the Local Harris added that Respondent
VERMONT FOUNDRY CO
had failed to employ the current president of the Local,
Chns Hagie, for the same reason
Hunter s second conversation with Harris on June 26
was much like the first On this occasion, with his son
and daughter in law present, Hams said that Respondent
failed to employ Ted Richey and Steve Kmne because of
their union affiliations Kinne had been the immediate
past president of Local 844 while Richey had served two
3 year terms as the Union's vice president Harris re
marked sympathetically that Mahoney had done the
former employees wrong and that the Company was
probably losing money on the nonproductive trainees
F The Alleged Discriminatory Refusals to Hire
The complaint alleges that the Respondent unlawfully
refused to hire four current union officers, namely, Chris
Hagie, Local 844 s president, Phyllis Elgin, vice presi
dent, Scott Parry, recording secretary and steward, and
Troy Hunter, another steward In addition, two others,
Steve Kinne and Ted Richey, who served as the immedi
ate past president and vice president of the Local, were
not hired The circumstances attending Respondent's de
cision to bypass these six individuals are set forth below
1 Chris Hagie
Under the predecessor, Chns Hagie was one of four
skilled maintenance men responsible for repairing the
various machines and equipment used throughout the
foundry Hagie, who had 7 years' seniority, 4 of those
years in maintenance, was the most junior of the machin
ists and the only one not offered employment by the Re
spondent To avoid a seasonal layoff in December 1986,
Hagie exercised a contractual right to transfer to a metal
processors position, which he continued to hold until
the takeover Prior to his assignment as a machinists,
Hagie was classified as a general foundry worker Hagie
expressed a particular interest in maintenance work on
his employment applicaton, but indicated he also would
accept a position as a metal processor, machine operator,
or any other available position
The three mechanics whom Respondent retained each
previously held union office Specifically, machinists Phil
Haney Jr, was a committeeman with responsibility for
processing grievances at the second step, his father and
fellow machinist, Phil Haney Sr, was a Local 844 vice
president many years ago, and a third machinist Gerald
Hanson, had served for just several months as a commit
teeman some 7 years ago
Ditton explained that only three machinist positions
were available and they were filled by persons with
greater seniority 8 However, he maintained that he did
not consider applicants solely for the position they held
just prior to the takeover, but also determined if other
positions were available for them Although Hagie had
experience as a metal processor Ditton maintained that
he did not hire him for that position because he filled
those jobs with three other men who had greater seniori
ty in such work In fact General Counsel's Exhibit 14
8 One of the three Gerald Hanson had less plantwide seniority than
Hagie but was the only maclunst to specialize in electrical work
1007
shows that two of the three employees whom Ditton
hired as metal processors, Monte Easly and David
Hezlip, had less seniority than Hagie and neither of them
was classified as a metal processor prior to Respondent s
acquisition of the foundry Moreover, Ditton failed to
explain why a trainee , Daniel Lotz, became a full time
metal processor on June 21 after only 2 months' expert
ence, in the preference to Hagie who worked as a metal
processor for 4 months just before the sale and had a
working knowledge of all the machinery in the foundry
by virtue of his position in maintenance
2 Phyllis Elgin
Phyllis Elgin, Local 844s current vice president, pre
viously held several other union positions Elgin was
more than an officer of the Local she was an outspoken
union advocate For example, after Mahoney issued a
letter to all the foundry employees suggesting that they
could not rely on the Union for their well being, Elgin
responded with a letter defending the Union s contribu
tions to the employees rights and to the survival of the
foundry
Elgin had served as an inspector for 10 of her 15 years
with the foundry At the time of the sale, she was the
most senior inspector, having trained the other two full
time inspectors and one part time inspector Elgin ex
pressed a preference for an inspector's position on her
employment application, but indicated that she would
accept any other position, listing those she had worked
in the past, including grinder and cutoff operator
Ditton claimed he did not hire Elgin because he
learned from Curths that she had suffered back problems
that prevented her from lifting In rebutting Ditton's tes
timony, Elgin stated without dispute that she had no
physical limitations at the present time , had suffered no
serious back injuries in the past 5 years, and had not re
ceived workmen s compensation for any injury incurred
at work She acknowledged experiencing back pain on
prior occasions and that her son Scott Parry had lifted
heavy objects for her However, he helped other inspec
tors in the same way Curths testified that he told Ditton
that Elgin had periods in the past when she found it dif
ficult to perform her job, but that she was a good and
dependable worker
Ditton s concern about Elgin s past ailment did not
deter him from hiring trainees who had presently exist
ing physical impairments For example, the record shows
that James Stambaugh was hired as a trainee on April 22,
although the medical report attached to his application
stated that he had a hernia occasional chest pains, and
dizzy spells that precluded him from heavy lifting An
other trainee, Karen Bobston, who also suffered from a
hernia, was hired as a trainee , as was Roger Young who
has a bullet hole in his lung and was limited in what he
could lift Still another trainee, Mark Lund had a history
of headaches and nose bleeds as well as a sensitivity to
dust Moreover Respondent retained Superintendent
Curths even though he had a heart condition
It is true that Respondent hired only three of the four
former inspectors, converting one part time position to
full time However by July 26, the timecards show that
1008 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
new trainee Worthington was spending almost 40 hours a
week as an inspector
3 Troy Hunter
Troy Hunter was employed by the predecessor for 6
years first as a shakeout operator then in grinding, pro
duction molding, and more recently in metal processing
He opted for a contractual layoff in December 1986 but
was assured that he would be recalled Hunter served as
union steward from early 1985 to his layoff in 1986,
taking an active role in resolving grievances Ditton ex
plained that Hunter was not hired because applicants
with greater metal processing experience filled the avail
able positions However, Ditton did not explain why
trainee George Cleavinger became a full time shakeout
operator on July 19 or why trainee Donald Parsano
became a metal processor on August 19, rather than of
fering these positions to Hunter who had more experi
ence in such work than either of them
4 Scott Parry
Scott Parry, the Local s recording secretary and a
shop steward, worked as a material handler from 1983
until a seasonal layoff in December 1986 Before his last
position he had worked as a metal processor, coremaker
wheelabrator operator, and grinder He, too indicated
on his employment application that he would accept any
position offered Respondent did not fill a full time mate
nal handlers slot Instead Doug Keeple who was hired
principally as an inspector took on Parry s material han
dling duties Ditton testified that he questioned Parry s
integrity because he was led to believe that he may have
filed a false workmen s compensation claim for an injury
that actually occurred at home rather than on the job
When the General Counsel questioned Curths about the
information he supplied to Ditton the superintendent
said that he merely informed Ditton that Parry had been
injured at home and on returning to work had received
another injury for which he claimed workmen's compen
cation Curths did not suggest that the claim was fraudu
lent
5 Ted Richey
Ted Richey, the immediate past vice president of
Local 844 and a vice president from 1976 to 1979, par
ticipated in negotiations for the latest collective bargain
ing agreement and was actively involved in processing
grievances Prior to the sale of the foundry Richey had
12 years seniority working in the past 3 years as a
cutoff operator His employment application showed,
however that he had a wide range of experience
throughout the foundry as a coremaker shakeout opera
tor aluminum moulder and metal processor Although
he preferred a cutoff position, he also expressed a will
ingness to serve as a ballmill operator a squeeze molder
and even as a janitor In its brief, Respondent stated that
it hired only one cutoff operator who had far more se
niority than did Richey and did not fill a ballmill opera
tor s position However when permanent positions
became available for a squeeze molder a metal proces
sor and a cleanup man, those jobs went to trainees
6 Steve Kinne
Steve Kinne, immediate past president of Local 844,
like Richey, was performing cutoff work at the time of
the takeover During his 7 years with the predecessor he
also had obtained broad experience in moulding, shake
out, and metal processing, and indicated his willingness
to accept any available position Kinne too was actively
involved at the final step of the grievance procedure and
participated in negotiations leading to the last collective
bargaining agreement with the predecessor
Discussion and Concluding Findings
The issues
The issues to be resolved in this case, as framed by the
complaint and the answer are
1 Whether Respondent unlawfully refused to recog
nize and bargain with the Union on or about April 6
and/or 10, 1987
2 Whether Respondent improperly refused to hire six
applicants for employment because they held union
office
3 Whether certain statements made by Respondent s
supervisors are unlawful
For the reasons set forth below, I conclude that the
Respondent is a successor within the meaning of the Act
and, as such, is required to recognize and bargain with
the Union I further find that the Respondent is liable for
the statements made by its supervisors and that it unlaw
fully refused to employ the six union officers named in
the complaint
1 The Respondent is a successor
Under well settled principles, a new employer is a suc
cessor to the old and obligated to recognize and bargain
with a union that represented its predecessors employees
when there is substantial continuity between the two en
terprises and when the predecessors former employees
constitute a majority of the new employers work force
See Fall River Dyeing Corp v NLRB, 482 U S 27, 43
(1987) In making this determination the Board considers
various factors including
[W]hether the business of both employers is essen
tially the same whether the employees of the new
company are doing the same jobs in the same work
ing conditions under the same supervisors and
whether the new entity has the same production
process produces the same products and basically
has the same body of customers
The core question underlying this analysis is whether
those employees who have been retained will under
standably view their job situations as essentially unal
tered Golden State Bottling Co v NLRB 414 U S 168
184 (1973)
As described in the fact statement above the Respond
ent purchased an ongoing business and continued the
foundry s operations without change or interruption
Thus Respondent acquired all the predecessors assets-
the foundry structure, together with its equipment in
VERMONT FOUNDRY CO
ventory, and customer list A few machines were added,
but they supplemented rather than substituted for exist
mg stock Respondent was in a position to quickly begin
operating the foundry just a few days after the sale was
concluded, using the same processes to produce the same
metal castings as were fabricated in the past Relying on
Ditton s testimony Respondent claimed that within a
short period of time the majority of its customers were
new However, its own customer list proved that this
claim was unfounded
Respondent admittedly took over the foundry intend
mg to continue production with as little disruption as
possible As a practical matter Respondent could not
have achieved its goal without relying on experienced
personnel from the very outset Thus, it began with a
core crew of 42 persons, 39 of whom had worked for the
predecessor For the most part, these holdovers found
themselves within the same department, using the same
skills to perform the same jobs for the same supervisors
as they had in the past Thus, all the indicia necessary to
demonstrate continuity of operations and employment
conditions between the predecessor and the Respondent
are present here
Having concluded that the Respondent continued the
operations of its predecessor essentially unchanged, the
remaining determinant of its obligation to bargain with
the incumbent Union turns on whether the predecessor s
employees formed a majority of its work force See
Spruce Up Corp, 209 NLRB 194 196 (1974), enfd 529
F 2d 516 (4th Cir 1975) As a general rule, the relevant
measuring day to determine if the Company employed a
majority of union members is the initial date it began op
erating See , e g NLRB v Burns Security Services, 406
U S 272 (1972), NLRB v Houston Distribution Services,
573 F 2d 260 266 (5th Cir 1978) Thus, the Supreme
Court found in the Burns case that a successors obliga
tion to bargain with the union arose on the day that it
began to provide guard services at a plant with a work
force of 42 employees, 27 of whom performed the same
task for the previous employer 406 US at 278-279
However, in some cases when an employer starts with a
few employees and requires a startup period gradually
assemble a work force and reconstruct an operation, the
Supreme Court has indorsed the Board s substantial and
representative complement rule for fixing the moment
when the determination as to the composition of the suc
cessor's work force is to be made' Fall River Dyeing
Corp supra at 47 In deciding when a substantial and
representative complement exists in a particular employ
ee transition period, the key question is whether the job
classifications designated for the operation were filled or
substantially filled and whether the operation was in
normal or substantially normal production ' Id at 49
In the present case the General Counsel submits that
the Respondents bargaining obligation arose on April 6,
or at the latest on April 10 1987, when it perfected its
demand for recognition and the foundry was in full oper
ation The Respondent claims however, that it began op
erating on April 6 with only a startup crew that did not
reflect its full staffing needs Therefore it asserts that the
appropriate time to examine its regular operation was on
April 22 when it commenced a training program with 42
1009
part time employees I find merit in the General Coun
sel s position
The record leaves no doubt that when Respondent
opened the foundry on April 6 its was prepared to con
duct business as usual Forty two permanent, experienced
employees were in place during its first week of oper
ations just six less than the number on hand prior to the
sale With only a few exceptions every job classification
in every department that existed before the foundry was
sold was filled by the week of April 6 Thus from the
outset Respondent was in normal or substantially
normal production Fall River Dyeing Corp supra at 49
Here, unlike the situation in the Fall River case Re
spondent did not acquire a defunct business nor start pro
duction after a 9 month hiatus with a handful of employ
ees and a preestablished plan to steadily expand its oper
ations by adding permanent employees to its full time
roster
The Respondent contends that its bargaining obliga
tion should not be determined nor its representative com
plement measured until April 22, when it hired 42 part
time, inexperienced trainees who it claims, must be in
cluded within an appropriate unit Because they were not
previously employed by the predecessor and thus were
not represented by the Union, Respondent asserts that
their numbers defeat the Union s claim to represent a ma
jority of employees in the unit Respondents argument
fails for the following reasons
First Respondents claim that it planned from the
outset to enlarge its work force by adding 42 trainees to
its regular work complement finds no support in the
record To the contrary, all of Respondents preliminary
employment efforts were focused on seeking experienced
employees Mahoney s remarks to Mark Clayton employ
ees in late March gave them every reason to believe that
they would be employed by the new owner Similarly,
Respondents pledge to Vermont officials indicated that
the predecessor's work force would be rehired If Re
spondent had planned to expand its work force with a
large number of trainees even before the foundry
opened then surely the plant superintendent would have
been among the first to know Yet Curths stated without
controversion that he had no advance knowledge that
there would be an influx of 42 new part time employees
who had never before worked in a foundry The intro
duct on of these many inexperienced employees into the
foundry without any involvement of the plant superin
tendent had to be counterproductive and reveals how
hastily conceived and hastily implemented the training
program was It certainly raises grave doubt whether the
training program was implemented on April 22 as a func
tion of sound business judgment
By Respondents admission and design, the trainees
were not intended to be a part of the nucleus of the
foundry's work force Instead, they were hired on a part
time basis and advised that they could have no expecta
tion of permanent employment The Respondent specifi
cally sought out inexperienced people and hired them for
abbreviated work periods so that they could be em
ployed or laid off at will as business needs dictated
Thus there was nothing normal or even substantially
1010 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
normal about this group of novices who served Respond
ent s accordian like needs By no stretch of the imagina
tion could such trainees be considered integral members
of a stable, representative complement
Even if I were to assume that the training program
was initiated as part of Respondent's preconceived em
ployment strategy it would be inappropriate to assess
the dimensions of the bargaining unit as of April 22 The
record clearly shows that the number of trainees rose to
a high of 42 for only 1 week Thereafter their number
fell quickly, fluctuating generally between 20 and 31
over the next few months, at a time when the work of
the foundry traditionally was at its peak
It is clear that at no time did Respondent need 42 new
part time trainees and could not use such an excessive
number in its operations The truth is that Respondent
relied on permanent, experienced employees to run the
foundry without interruption and supplemented this
stable core with part time inexperienced employees on
as need basis How many of this latter group would be
needed from week to week or how many of them might
become permanent was never certain While the training
program was undergoing a shakeout period, the size of
Respondents permanent work force remained constant
with 39 of 42 emloyees belonging to the Union Thus at
all relevant times, the Union continued to represent a
majority of employees in the appropriate unit In these
circumstances, the bargaining rights of a substantial ma
jority of Respondents employees should not depend on
the vagaries of its training experiment The permanent
full time employees formed a representative complement
from the outset Accordingly, the Respondent should
have recognized and bargained with the Union as re
quested on April 6 or 10 at the latest
The Respondent claimed that the UAW s demand for
recognition was invalid because it was not made on
behalf of the Local, the entity to which the unit employ
ees belonged Respondents argument is disingenuous
The evidence in this case clearly shows that the Inter
national Union was certified by the Board as the collec
tive bargaining representative for the foundry s produc
tion and maintenance workers in 1964 Shortly thereaf
ter, in accordance with the UAW constitution, Local 844
was chartered That charter has never been revoked
Thus the legal entitlement of both entities the Interna
tional and the Local to represent the Vermont Foundry
bargaining unit is beyond question
Respondent further argues that the International
Union s constitution requires that the Local authorize the
UAW to act on its behalf and that such authorization
was not granted in this case Even if I were to assume
that Respondent had standing to question the Union s in
ternal affairs, its reading of the UAW constitution is in
correct The relevant passage of that document, article
19 section 3 merely provides that the UAW may not
negotiate the terms of a collective bargaining agreement
without first obtaining the approval of the affected local
This language has no bearing on the Union s legitimate
demand for recognition
Moreover, when Respondent purchased the foundry it
knew or should have known that the predecessors em
ployees were represented by the International and Local
844 During the months that Respondent negotiated for
the sale its agents surely knew of the predecessors col
lective bargaining agreement that stated on its cover and
in the recognition clause that the contract applied to
both the International Union and its Local 844 (See Jt
Exh 2) Further, this contract was signed by representa
tives of the International and the Local as well as by
Dick Hanson, who before becoming president of the
Vermont Foundry, served as the predecessors vice
president In light of the relationship between these offi
ciais, Respondent cannot honestly disclaim knowledge of
the relationship between the International and Local
8449
The Respondent Violated Section 8(a)(3) and (1) of
the Act by Failing to Hire Union Officers
An employer who purchases the assets of a business is
free to hire or not hire some or all the employees of the
predecessor However, an employer who declines to hire
the predecessors employees because they are members
of a union commits an 8(a)(3) unfair labor practice
Howard Johnson Co v Detroit Local Joint Executive
Board, 417 U S 249 (1974), NLRB v Burns Security Serv
ices, supra
In the present case, the General Counsel submits that
the Respondent refused to hire four of the current and
two of the former Local 844 officials out of antipathy for
their union activity and in order to erode support for the
Union among other employees In defense, the Respond
ent contends that it had specific, legitimate reasons for
failing to employ each of the union officials named as
discriminatees in the complaint and that it took a number
of other actions that demonstrate it harbored no bias
against union members
Where, as here, both permissible and impermissible
reasons are offered to explain an employers actions a
search for the true reason requires analysis in accordance
with Wright Line 251 NLRB 1083 (1980), enfd 662 F 2d
899 (1st Cir 1981) cert denied 455 U S 989 (1982) ap
proved in NLRB v Transportation Management Corp
462 US 393 (1983) 10 Under Wright Line the General
Counsel bears the burden of proving by a preponderance
of the evidence that the affected employee (or in this
case, applicant) was engaged in protected activity that
the employer was aware of the activity and that antiun
ion animus was the motivating cause of the employer s
adverse action (or inaction) Faced with evidence suffi
cient to establish a prima facie case, the employer then
must prove that it would have engaged in the same con
duct even in the absence of union activity Under these
standards, I conclude that the General Counsel has suc
cessfully established a prima facie case that six individ
uals named in the complaint were victims of discnmma
9 Respondents citation of Pacific Southwest Container 283 NLRB 79
(1987) is equally inappropriate for that case involving a unions fai lure
to disclose to employees prior to a representation election that it had
merged with another union thereby altering its size and geographic base
is wholly inapposite to the facts of the present case
is The Wright Line burden shifting analysis was applied to alleged dis
crimmatory refusals to hire in Sewell Allen Big Star No 52 280 NLRB
1244 1254 (1986)
VERMONT FOUNDRY CO
tory hiring practices and that Respondent did not over
come that showing with credible evidence
The record shows that each of the six alleged discri
minatees had considerable foundry experience, having
served the predecessor for as long as 14 years in the case
of Phyllis Elgin and no less than 3 years in Troy Hun
ter s case Each of them had applied for employment in
dicating that they were willing to accept any of a variety
of jobs, none of them had blemishes on his or her work
record They differed from their former fellow workers
who were hired by Respondent in one major way each
of them either was serving or had in the recent past
served a term as a union officer Moreover, each of them
had held positions that made them highly visible not
only among their peers, but also to management Thus,
both Hagie , as union president, and Phyllis Elgin, as vice
president were involved in negotiating the termination
agreement between the predecessor and the Local Elgin
also had served as an officer in a previous administration
and had a well earned reputation as an activist Scott
Parry, Elgin s son, and Troy Hunter served as union
stewards and were particularly active in processing
grievances Kinne and Richey also held prominent union
posts just prior to the current term, had been actively in
volved in processing an especially large number of gnev
ances at the third step, and had participated in negotia
tions for the last collective bargaining agreement with
the predecessor
Ditton, the person solely responsible for Respondent s
hiring decisions, certainly knew the identity of the union
officers It is important to note that he did not obtain this
information inadvertently or casually as he attempted to
imply Rather, he purposely extracted it from Curths
who at Ditton s request furnished him with a list of the
union officials Ditton s pursuit of such information is
evidence of a discriminatory intent See Sousa & Sons
Inc 210 NLRB 982 (1974)
Uncontroverted admissions made by a few of Re
spondent s supervisors provide additional proof of Re
spondent s antiunion bias Thus, Superintendent Curths
made no effort to conceal the new owner s hostility to
the Union or his desire to keep the Union out of the fa
cility It is significant that although Curths was called as
a witness by Respondent he was not asked to refute or
explain the damaging remarks attributed to him by the
General Counsels witness Therefore I can draw only
one conclusion that Curths indeed made the damaging
statements regarding Respondents expressed antiunion
disposition The inference also follows that Curths a
highly placed official in Respondents hierarchy would
not blithely attribute statements to his employer that had
no foundation
Supervisors Collins and Harris made other damaging
admissions indicating that Hagie , Elgin, Hunter, Richey,
and Kinne were not hired precisely because they held
union office Rather than denying that such statements
were made, the Respondent argued in its brief that the
statements had limited value because they came either
before or long after the Respondent had purchased the
foundry and were made by persons who had no responsi
bility for the hiring process These arguments are unper
suasive The foundry is a small facility with only a hand
1011
ful of supervisors They were not remote from those
with ultimate responsibility for employment decisions In
any event whether these particular supervisors were im
mediately involved in hiring decisions is far less impor
tant than the fact that they conveyed information on
behalf of the Respondent Certainly, the applicants rea
sonably could believe that Curths, Harris, and Collins
spoke authoritatively for the Respondent See American
Press, 280 NLRB 937, 951 (1986) Thus, the Respondent
is liable for violating Section 8(a)(1) of the Act by imply
ing, through comments of its supervisors, that the named
applicants for employment were not hired because of
their union affiliations See J D Landscaping Corp, 281
NLRB 9 10 (1986) Mason City Dressed Beef, 231 NLRB
735, 749 (1977) enfd in part 590 F 2d 688 (8th Cir
1978)
The Respondent correctly observed that an employer
may hire or not hire for good or bad cause, or no cause
at all, as long as its hiring decisions are not driven by an
antiunion purpose As proof that its motives were
benign, Respondent pointed out that it hired 39 of its
predecessors employees, all of whom were members of
the Union However, this fact alone is not enough to
overcome unrefuted statements made by Respondent s
supervisors that specific applicants were denied employ
ment because they held union office See J D Landscap
ing, supra at 10 Having taken over an ongoing business
it is apparent that Respondent needed experienced per
sonnel to operate without interruption as it intended Be
cause the predecessors employees provided the only
source of such trained labor, the Respondent had no
choice other than to hire enough Clayton Mark employ
ees to run the foundry after hiring 39 union members for
its permanent work force, Respondent added just enough
part time trainees for the first week of the training pro
gram to defeat the Union's majority I have little doubt
that Respondent was aware of the effect that adding 42
new trainees would have, for its April 22 letter, rejecting
the Union's bargaining demand was based on an alleged
lack of support by a majority of employees Obviously
Respondent carefully counted who did and did not
belong to the Union In these circumstances the fact that
Respondent hired 39 union members does not demon
strate a nondiscriminatory intent
Respondent also argued that if it had intended to dis
criminate against applicants for employment because of
their union positions it would not have hired some cur
rent and past union officers It is true that Respondent
hired two current officers Ed Wys and Joe Haney Jr
financial secretary and committeeman respectively
However Wys, a patternmaker, and Haney, a machinist,
held highly skilled jobs for which there were no replace
ments Thus, Respondent had no alternative but to hire
them
Apart from Hagie , Elgin Parry, and Hunter, the only
other current officers whom Respondent failed to hire
suffered from legitimate health problems and held rather
obscure positions such as sergeant at arms, guide, and
committeeman i i
II Pat Haney a committee person was to poor health at the time of
the takeover but was employed by the Respondent after recovery
1012 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The other union officers whom Respondent hired held
positions that were neither recent nor prominent 12
Moreover, there is nothing in the record to suggest that
when Ditton made his hiring decisions he knew or was
told by Curths which employees had held posts with the
Union at remote periods of time
The reasons presented to justify Ditton s failure to
offer employment to the six union officers named in the
complaint were unconvincing and often contradicted by
probative evidence Union President Hagie was a case in
point
Ditton maintained that he would consider experienced
applicants for jobs other than the one they regularly
worked under the predecessor Yet, he apparently did
not consider Hagie for a metal processors job even
though he had been doing such work for 4 months prior
to the sale Instead, Ditton hired two men who, contrary
to his assertion, had less seniority and less experience as
metal processors than Hagie Ditton again overlooked
Hagie s experience when a position for a full time metal
processor became available during the early summer,
giving the job instead to a trainee with only 2 months
experience Such a choice defies sound business judg
ment and suggests that Respondents real reason for by
passing Hagie was because of his union position See
NLRB v Houston Distribution Services, supra 573 F 2d
266 267 (5th Cir 1978)
Ditton s proffered reasons for failing to hire Elgin
were equally spurious He claimed that he believed she
might injure herself because of her bad back However
he had no such fears when he hired a number of trainees
with current medical impairments In contrast to trainees
whose disabilities were plainly revealed on their employ
ment applications, Elgin s back problems had occurred in
the past Ditton obviously was grasping at straws when
he attempted to justify his failure to hire Elgin, an expe
nenced inspector who had 10 years on the job and 14
years in the foundry on the mere possibility of future
injury Respondent also indicated that it hired only three
inspectors and had no need for Elgin who would have
been the fourth However by the summers end a rela
tively new trainee Worthington was working as an in
Spector for almost 40 hours a week controverting Re
spondent s contention
Ditton rationalized his decision to bypass Hunter
Parry, Kinne and Richey with the excuse that other ap
plicants with greater experience were hired for the post
tions they sought But he gave no explanation for his
failure to give preference to these trained employees
when other positions arose for which they had registered
interest , turning instead to inexperienced trainees Thus
Respondents timecards reveal that in several months fol
lowing its takeover eight full time permanent positions
opened up in the foundry all of which could have been
filled by the far more qualified union officers than by
trainees Thus trainees were given jobs as a squeeze
molder and cleanup person while Richey, who had 12
12 For example Sharon Dodd served as the Locals secretary for 1
year terms in 1979 and 1985 Joe Haney Sr a maintenance employee
was a vice president a number of years ago Gerald Hanson an electrical
maintenance employee resigned after serving as a committeeman 7 years
ago
years seniority and had indicated his availability for both
positions was ignored Respondent also filled several
metal processing jobs with trainees rather than turning to
Hunter, who was experienced in such work Respondent
claims that its sole motivation for initiating the training
program was to prepare a group of employees who
would be experienced to work in a foundry If this was
true, then as a matter of sound business practice Elgin,
with 15 years experience, Richey with 12 years Hagie
and Kinne with 7 years, and Parry and Hunter, with 3
years each, should have been prime candidates for em
ployment if not in early April then certainly when
other positions became available later on Yet, Respond
ent offered no explanation for is subsequent failure to
offer positions to these qualified applicants rather than to
individuals with only several months part time training
Consequently I conclude that Respondent has failed to
overcome the General Counsel's case in chief, and failed
to establish that it would not have hired the six union of
ficers even in the absence of their union activity Re
spondent not only discriminated against the six individ
uals involved, its conduct also signaled the balance of the
work force that union activism was unacceptable and
dangerous to their economic well being Accordingly, I
find that by refusing to offer employment to Hagie,
Elgin Hunter, Parry Kinne and Richey, Respondent
violated Section 8(a)(3) and (1) of the Act
CONCLUSIONS OF LAW
1 The Respondent, Vermont Foundry Co, a Division
of Mahoney Foundries Inc is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act
2 International Union, United Automobile Aerospace
and Agricultural Implement Workers of America
(UAW) and its Local 844 are labor organizations within
the meaning of Section 2(5) of the Act
3 The following employees of Respondent constitute a
unit apppropriate for the purposes of collective bargain
mg within the meaning of Section 9(b) of the Act
All production and maintenance employees at Em
ployer s plant at Vermont Illinois, including plant
clericals and truck drivers excluding all office cleri
cal employees confidential employees professional
employees guards working foremen and all super
visors as defined in the Act
4 At all times material, the Union has been the exclu
sive collective bargaining representative of the employ
ees in the unit described above
5 Respondent is a legal successor for labor relations
purposes to the MCC Clayton Mark Foundry in the op
eration of its foundry business in Vermont Illinois
6 Since on or about April 6, 1987, and at all times
thereafter Respondent has failed and refused to recog
nize and bargain collectively in good faith with the
Union as the exclusive representative of its employees in
the above described unit, and therefore has engaged in,
and is engaging in, unfair labor practices affecting com
merce within the meaning of Section 8(a)(5) and (1) of
the Act
VERMONT FOUNDRY CO 1013
7 Respondent has violated Section 8(a)(3) and (1) of
the Act by refusing to employ Chris Hagie, Phyllis
Elgin, Scott Parry, Troy Hunter Steve Kinne and Ted
Richey because they held union office and worked ac
tively on behalf of the Union
8 Respondent has violated Section 8(a)(1) of the Act
through statements made by Plant Superintendent Curths
and Supervisors Collins and Harris that the Respondent
would not permit the Union to represent employees at its
facility and that certain applicants were not employed
because they held union office
9 The aforementioned unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act
REMEDY
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1), (3),
and (5) of the Act, I shall recommend that the Respond
ent cease and desist therefrom and take certain affirma
tive actions designed to effectuate the policies of the
Act Accordingly, I recommend that the Respondent be
required to offer applicants for employment, Chris
Hagie, Phyllis Elgin, Troy Hunter, Scott Parry, Steve
Kinne, and Ted Richey, employment to the jobs that
they held prior to Respondent's acquisition of the found
ry or, if those jobs no longer exist, to substantially equiv
alent positions, without prejudice to their seniority or
other rights and privileges previously enjoyed discharg
ing, if necessary any persons who were hired as trainees
to make room for them, and make them whole for any
loss of earnings that they may have suffered due to the
discrimination against them from April 6, 1987, until a
proper offer of reinstatement is made, less interim earn
rags as prescribed in F W Woolworth Co, 90 NLRB 289
(1950), with interest thereon to be computed in the
manner prescribed in New Horizons for the Retarded 283
NLRB 1173 (1987) 13
Further, I shall recommend that the Respondent be re
quired to recognize and bargain with the International
Union, United Automobile Aerospace and Agricultural
Implement Workers of America (UAW) and its Local
844 and if agreement is reached to reduce the agree
ment to a written contract
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed14
ORDER
The Respondent Vermont Foundry Co, a Division of
Mahoney Foundries, Inc Vermont Illinois its officers,
agents successors and assigns, shall
1 Cease and desist from
(a) Refusing to recognize and bargain collectively with
the International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America
(UAW) and its Local 844 as the exclusive collective bar
gaining representatives of all employees in the following
unit
All production and maintenance employees at Em
ployer s plant at Vermont Illinois including plant
clericals and truck drivers excluding all office clen
cal employees confidential employees, professional
employees guards working foremen and all super
visors as defined in the Act
(b) Refusing to hire or otherwise discriminate against
employees in their hire or tenure of employment because
they are officers of and activists in the Union or any
other labor organization
(c) Making statements that advise applicants for em
ployment or employees that the Union will not be recog
nized as their exclusive collective bargaining representa
tive or that they will be denied employment with the Re
spondent because they hold union office or actively sup
port a union
(d) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar
anteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer immediate and full employment to Chris
Hagie, Phyllis Elgin Scott Parry, Troy Hunter, Stever
Kinne, and Ted Richey, without prejudice to their se
nionty and other rights and privileges discharging if
necessary employees hired originally as part time trainees
in order to make room for them In addition make
whole the six aforementioned individuals for any loss of
pay they may have suffered by reason of the discrimina
tion practiced against them in the manner described in
the remedy section of this decision
(b) Recognize and on request bargain collectively
with the International Union, United Automobile Aero
space and Agricultural Implement Workers of America
UAW and its Local 844 as the exclusive collective bar
gaining representatives of employees described in para
graph 1(a) above and if an agreement is reached
embody the agreement in an executed written contract
(c) Preserve and, on request make available to the
Board or its agents for examination and copying all pay
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order 15
13 Under New Horizons interest is computed at the short term Federal
rate for the underpayment of taxes as set out in the 1986 amendment to
26USC §6621
14 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations 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 pur
poses
11 The General Counsel has requested that a visitatonal clause be in
cluded in the Order However in Cherokee Marine Terminal 287 NLRB
1080 (1988) the Board held that request for visitatonal rights should be
granted only where the specific facts of the case so warrant I find no
special circumstances in this case that suggest extraordinary relief is re
quired Accordingly the General Counsels request for a visitatonal
clause is denied
1014 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(d) Post at its Vermont, Illinois facility copies of the
attached notice marked "Appendix."16 Copies of the
notice, on forms provided by the Regional Director for
Region 33, after being signed by the Respondent's au-
16 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 Nation-
al 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."
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.