Limpco Mfg. Inc.

National Labor Relations Board - Board Decisions

Aug 18, 1976

225 N.L.R.B. 987 (N.L.R.B. 1976)

LIMPCO MFG. AND/OR CAST PRODUCTS 987
Limpco Mfg . Inc., and/or Cast Products, Inc. and
United Electrical , Radio and Machine Workers of
America Local 623. Case 6-CA-8706
and has decided to affirm the rulings, findings, and
conclusions I of the Administrative Law Judge and
to adopt his recommended Order.
August 18, 1976
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND WALTHER
On April 28, 1976, Administrative Law Judge
Julius Cohn issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
1 At the hearing, Respondent's counsel requested a I-month postpone-
ment to allow Joseph Stein, Limpco's president at the time of the alleged
unfair labor practices, to testify The Administrative Law Judge correctly
denied the motion to postpone for the reasons set forth in In 2 of his
Decision Respondent' s counsel then left the hearing and by telegram to the
Board requested permission to appeal the Administrative Law Judge's deni-
al of its motion to postpone Before leaving the hearing, Respondent's coun-
sel neither requested permission from the Administrative Law Judge to sub-
mit an affidavit from Stein nor made an offer of proof as to what Joseph
Stein would testify in its request for permission to appeal the Administra-
tive Law Judge's denial of its motion, Respondent's counsel, in the alterna-
tive, requested that it be allowed to submit a written statement from Joseph
Stein The Board, by telegram of February 26, 1976, denied Respondent's
request for permission to appeal the Administrative Law Judge' s ruling In
so doing the Board neglected to mention the Respondent's alternative re-
quest
With regard to the request to submit a written statement , we first note
that such request was not properly before the Board under Sec 102 26 of the
Board's Rules and Regulations since Respondent's counsel did not attempt
to put a statement from Joseph Stein into evidence at the hearing In fact,
Respondent counsel's request does not make it clear as to whether he was
requesting permission to submit an affidavit or to take a deposition We
assume , however, that Respondent's counsel intended to file an affidavit
since he contends that Joseph Stein was "seriously ill" and could not testify,
such illness would presumably also prohibit the taking of a deposition
Assuming that Respondent's counsel was referring to an affidavit, and the
request was properly before us, we would deny such request Except in rare
cases, the Board's established policy is not to accept affidavits of allegedly
unavailable witnesses because affidavits afford no opportunity to cross-ex-
amine or evaluate demeanor Thus, the Board has allowed affidavits gener-
ally only when the witness was either deceased or so seriously ill that the
taking of oral testimony posed a threat to the witness' health (see, e g , West
Texas Utilities Company, Inc, 94 NLRB 1638 (1951), enfd 195 F 2d 519
(CA 5, 1952)
In this connection, we are constrained to note our concurrence in the
Administrative Law Judge's difficulties with some of the statements and
representations of Respondent's counsel As Just one example, in his brief to
the Board, he states that Joseph Stein is "seriously ill" and his illness is
documented by "medical records " These so-called medical records consist
of a letter from a Pennsylvania doctor dated February 4, 1976, when Stein
was allegedly in Florida, addressed "To Whom it May Concern," and stat-
ing that Stein "has not been in good health because of anxieties of [sic] his
wife's illness " The second "medical record," an undated letter from a Flori-
da doctor, does not mention Mr Stein's health but states only that Mrs
Stein "needs [Mr Stein's] constant attention "
In conclusion, we find Respondent's exceptions without merit, reaffirm
our earlier decision on appeal, and specifically deny Respondent's request
to submit a written statement from Joseph Stein
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Limpco Mfg. Inc., and/
or Cast Products, Inc., Greensburg, Pennsylvania,
their officers, agents, successors, and assigns, shall
take the action set forth in said recommended Order.
DECISION
STATEMENT OF THE CASE
JULIUS COHN, Administrative Law Judge: This case was
heard at Pittsburgh, Pennsylvania, on February 25, 1976.
The charge in this proceeding was filed and served October
16, 1975,1 an amended charge was filed on December 15,
and served on December 17 simultaneously with the com-
plaint herein issued by the Regional Director for Region 6.
The complaint alleges that Limpco Mfg. Inc., and/or Cast
Products, Inc., herein called the Respondent or Company,
violated Section 8(a)(1), (3), and (5) by its refusal to bar-
gain with United Electrical, Radio and Machine Workers
of America, Local 623, herein called the Union, and by
discriminatorily terminating the employment of three of its
employees on June 17, As to the violation of Section
8(a)(5), it is alleged that Respondent unilaterally changed
wages and conditions of employment, withdrew recogni-
tion from the Union, refused to apply the collective-bar-
gaining agreement to its foundry employees and bargained
directly with them rather than through the Union. The Re-
spondent filed an answer denying the commission of unfair
labor practices.
Issues
Whether Limpco and Cast Products constitute a single-
integrated employer
Whether Respondent unlawfully unilaterally changed
conditions of employment.
Whether Respondent withdrew recognition from the
Union as the exclusive bargaining representative of its
foundary employees
Whether Respondent unlawfully failed and refused to
apply to the foundry employees the collective-bargaining
agreement between it and the Union effective April 4.
Whether Respondent on June 1 unlawfully bypassed the
Union and bargained directly with its foundry employees
concerning wages and other terms and conditions of em-
ployment
1 Unless otherwise noted, all dates will refer to 1975
225 NLRB No. 148
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Whether Respondent discriminatorily terminated the
employment of Daniel Sprockett, Edward Collier III, and
Ernest Constantine on or about June 17.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs? The General
Counsel submitted a brief which has been carefully consid-
ered.'
Upon the entire record of the case and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Limpco Mfg. Inc., is a Pennsylvania corporation with a
principal office and place of business located in Greens-
burg, Pennsylvania, where it is engaged in the business of
manufacture and sale of clutches and brakes for industrial
vehicles. During the past 12 months preceding the issuance
of a complaint herein in the course and conduct of its busi-
ness operation, Respondent sold and distributed from its
Greensburg, Pennsylvania, facility products valued in ex-
cess of $50,000 which were shipped directly to States of the
United States other than Pennsylvania. The complaint al-
leges, the answer admits, and I find that Respondent is a
Company engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. Respondent has denied,
however, that Cast Products, Inc., which has been engaged
since June 1, 1975, in providing molds to Limpco is and
has been a single integrated enterprise with Limpco. For
the reasons hereinafter set forth I find that Limpco Mfg.
Inc., and Cast Products, Inc., have been a single-integrated
enterprise and a joint employer.
2 Before the opening of the hearing Respondent had requested , by letter
dated February 11, 1976, that the Regional Director postpone the hearing
for a period of more than 2 months because of the unavailability of Joseph
Stein , president of Respondent , due to "poor health " Attached to the letter
was a note from a doctor dated "February 4, 1976," to the effect that Mrs
Stein had recently suffered a heart attack and that Mr Stein "has not been
in good health because of his anxieties of his wife's illness " The Regional
Director denied the request for postponement and Respondent filed a "Peti-
tion for Allowance of Appeal" with the Board On February 23, 1976, the
Board denied Respondent leave to appeal Thereafter at the hearing Re-
spondent moved for a postponement of the hearing for a period of 2 months
based upon the same statement and doctor 's certificate Respondent's coun-
sel, conceding that the principal issue in this matter is the question as to
whether Limpco and Cast Products are a single-integrated enterprise or a
joint employer , nevertheless stated that he would be unable to prepare for a
hearing or proceed in any manner without the presence of Joseph Stein He
insisted that a postponement of 2 months , which he later reduced to I
month , was essential in order for him to conduct a defense in this case,
because Joseph Stein was the only one in possession of facts relating to the
sale of the foundry to Cast Products When I denied a postponement for
either of those periods of time but indicated I might be amenable to a
request for a shorter continuance , counsel refused to take advantage of such
offer and requested that he be excused from the hearing
The doctor's certificate does not describe any specific illness which would
disable Joseph Stein and prevent his appearance No other adequate reason
was advanced by counsel for the inability of Respondent to proceed with
this hearing The absence and whereabouts of Michael Stein , vice president
of Respondent and son of Joseph , was unexplained Despite the contention
of counsel that Michael Stein was not knowledgeable concerning the issues
in this case , the evidence , as subsequently adduced , indicates that he was
quite involved in all facets of the operation It would appear that the mode
of operations and integration of the foundry with the plant would be deter-
minative as to the single employer issue rather than a knowledge of the
details of the purported transaction of sale of the foundry , subjects which
could be described by other witnesses such as Michael Stein and the fore-
man Moreover , Respondent 's counsel failed to explain why Respondent
was unable to prepare any defense in this matter after the complaint had
been outstanding for more than 2 months prior to the hearing and was
based upon a charge filed more than 4 months before the hearing It is
noted that this was considerably before the Steins felt it necessary to leave
for Florida in January 1976 It is clear therefore that Respondent had ade-
quate notice and time within which to prepare for the hearing Pure Chem
Corporation , 192 NLRB 681 (1971 ) Finally, assuming that Joseph Stein was
an essential witness and actually was incapacitated, Respondent made no
application to take his deposition as provided in Sec 102 30 of the Board's
Rules and Regulations , Series 8 , as amended , and presented no reason why
such application was not made House of Adler, 206 NLRB 228 (1973) In
view of all the circumstances , the request by Respondent for a continuance
of 2 months or, at the minimum , I month , was denied
3 Following the close of the hearing , an extension of time within which to
file briefs was granted at the request of Respondent However , indicative of
its attitude in this matter , no brief was received
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Single Employer Issue
The Respondent has been engaged in the manufacture
and sale of clutches and clutch parts at its facilities in
Greensburg, Pennsylvania. At that location its operations
were conducted in three adjacent buildings consisting of an
assembly plant, a machine shop, and a foundry. The Re-
spondent has had collective-bargaining relationships with
the Union for about 12 years, and, in 1973 when the found-
ry was established, Respondent and the Union agreed to
apply the then current contract to the foundry and negoti-
ated job descriptions, classifications, and wage rates for
foundry employees. The current contract covers the period
from April 4, 1975, through April 3, 1978, the prior con-
tract having expired on January 20 followed by a strike
until April 4 During the negotiations, both before and af-
ter the strike, Respondent sought to negotiate what it
termed a new concept in which all employees in the found-
ry would rotate and learn all the jobs in the foundry and
when they became qualified at every job, all would be paid
at a top rate. If an employee was unable to qualify for all
the foundry jobs, he would be paid at the rates of the high-
est paying job for which he had become qualified. In addi-
tion, the Company wanted a separate seniority list for the
foundry. The Union rejected this proposal and the Compa-
ny eventually withdrew it, having executed on May 27 the
new agreement effective from April 4 4
However, even prior to the final execution of the con-
tract, Respondent had indicated that it was not going to
abandon its efforts to obtain different arrangements for the
The contract unit which I find to be appropriate is All production and
maintenance employees and plant clerical employees employed by Respon-
dent at its Greensburg, Pennsylvania, plant, excluding office clerical em-
ployees, professional employees, guards, engineers, and supervisors as de-
fined in the Act
LIMPCO MFG. AND/OR CAST PRODUCTS 989
foundry employees. On May 15 at a meeting attended by
Joseph Stein, president, Michael Stein, vice president, and
Ron Baldasseroni and Daniel Quinn, field representative
and chief steward, respectively, of the Union, Joseph Stein
stated that he was going to incorporate the foundry into a
new company for which he wanted to negotiate a separate
agreement. The new agreement would include the "new
concept" which the Steins proposed during the strike nego-
tiations. Although the Union again declined this offer, it
was repeated on May 27 the date on which the current
bargaining agreement was actually signed. On June 1 Re-
spondent announced to the union representative that a new
corporation, Cast Products, Inc., had been formed and that
Victor Czajkowski, the foundry manager, was the president
of the new corporation. Prior thereto, on May 19, Joseph
Stein had informed the union representatives that he would
be principal stockholder of the new corporation to be
formed, but that he would not take an active part in the
day-to-day operation of the foundry.
Other than the change in working conditions of the em-
ployees, as hereinafter discussed, the formation of the new
corporation made no change in operation. The foundry
had in the past and continued to provide castings which
were sent over to the machine shop and assembly plant for
further work. Czajkowski, regardless of title, continued to
manage the foundry operation and Wallace Smith carried
on as foundry foreman. As will later be described, Joseph
Stein met with union representatives, stewards, and em-
ployees at various times after June 1 concerning foundry
matters. On June 12 Wallace Smith, the foreman re-
sponded to a union grievance on Limpco stationery It is
noted that in his denial of the Union's grievance Smith
stated that the three employees involved in the grievance
were working in the foundry under temporary assignment
and further states that these employees will be restored to
their regular jobs in seniority order when they are called
back from layoff. Indeed, one of the employees working in
the foundry after June 1, Keilback, was transferred to the
assembly plant on July 1. Moreover, foundry employees
after July 1 were often observed working in the assembly
plant and using the equipment there for the foundry opera-
tions In addition CzaJkowski and Smith constantly met
with both Steins in their offices in the plant. Finally, Sally
Stein, wife of Joseph, was secretary-treasurer of Limpco
and signed the weekly paychecks of all employees. She
continued to sign the paychecks of the foundry employees
through June 19. Witnesses who had been employed at the
foundry during this period stated that they still received
Limpco checks after June 1, until their final one which was
a Cast Products check, also signed by Sally Stein.
As it is clear that the Steins continued to control all
operations, including the foundry, after June 1 and there
was no change, I find that Limpco and Cast Products had
at all times material herein been a single-integrated enter-
prise.
B. The Alleged Violations of Section 8(a)(5) of the Act.
As indicated above, the Steins had expressed a desire to
make changes in the foundry even before the expiration of
during the strike negotiations. These efforts were renewed
after the strike settlement and before the new contract was
executed on May 27. Thus, at a meeting on May 15, Joseph
Stein told Baldasseroni and Quinn that he was going to
form a new corporation and wanted a new contract which
would incorporate the "concept" Stein wanted to institute
in the foundry. At a meeting held on May 19 for the pur-
pose of delivering the final draft of the contract to Stein, he
informed the union representatives that the foundry was to
be incorporated under the name of Cast Products and that
he, Joe Stein, would be the major stockholder although he
would not be active.5 Another meeting was held on May 27
for the formal signing of the contract, at which Joseph
Stein changed his position somewhat and told the union
representatives that he did not want a new contract for the
foundry but rather wished to incorporate the new concept
with classifications and rates in accordance with the pro-
posal he had made during the strike negotiations. In addi-
tion, he wanted a separate seniority list for the foundry.
The union people again rejected this proposal.
On June 1 Joseph Stein called Baldasseroni and Quinn
to a meeting and informed them that the foundry was now
incorporated as Cast Products and had been divorced from
Limpco and that he, Stein, had nothing to do with the
foundry. Baldasseroni asked Stein whether he was saying
that the Union is not to be recognized in the foundry. Stein
replied that he had nothing to do with the foundry but, as
he understood it, the Union was not going to be recog-
nized.
Later that day, June 1, Joseph Stein and Czajkowski
called the four employees then working in the foundry to a
meeting. The employees were Robert Keilback, Daniel
Sprockett, Edward Collier, and Ernest Constantine who
had been assigned to the foundry since approximately May
1. Respondent at that time began to implement its new
concept. Constantine had been recalled in May as a strip-
per and stocker at a Class 4 rate, less than as provided in
the contract. He was also assigned different Jobs including
that of a molder (a Class 12 job) at the Class 4 rate Simi-
larly, Keilback who had returned from sick leave in mid-
May was reduced from his usual Class 15 to Class 13, and
after June 1 received a Class 7 rate. Sprockett also was paid
at a Class 4 rate while switching from job to job in the
foundry.
These employees testified they had been previously told
by Joseph Stein at a meeting in mid-May that Cast Prod-
ucts was being formed and that CzaJkowski would be the
president of that Company and would restructure the
foundry with respect to job classifications and wages. Czaj-
kowski told them at that time he wanted them to work with
him on that basis. Now, at the June 1 meeting, Joseph Stein
told them that the foundry had been incorporated, that it
was no longer an arm of Limpco, and they wanted the
cooperation of the employees. Czajkowski stated that he
was the president and he outlined for them the new pro-
gression scale for job rates. One of the employees, Con-
stantine, asked about the Union contract and Czajkowski
replied that the contract would be valid except for Job de-
5 All of the facts set forth herein are based on the uncontradicted teshmo-
the prior collective-bargaining agreement in January and ny of the General Counsel's witnesses, all of whom testified credibly
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
scriptions and rates but they would have the same protec-
tion and coverage. Another employee asked about the sta-
tus of the Union and Czajkowski stated that they no longer
belonged to the UE Local at Limpco because the foundry
was no longer part of Limpco. He told them that they
could have their own shop steward and their own contract
if they wanted it. Czajkowski also told the employees that
he wanted them all to begin at a rate which was equivalent
to the bottom of Class 4 under the union contract and that
everybody would get the same rate on a 90-day basis and
gradually progress up through the various jobs and classifi-
cations until everyone would be getting a top rate. Employ-
ee Collier said that he thought the rate was not high
enough because some of the employees already had consid-
erable foundry experience. Stein then remarked that if the
employees cooperated they might be able to give them a
Class 6 rather than a Class 4 rate and Czajkowski said he
would check this out. The employees then told Stein and
Czajkowski that they wanted to discuss this matter with
their union. That evening in the parking lot of the premises
the employees met with Quinn and it was determined that
they would file a grievance on this matter. The following
day a grievance signed by the employees involved was
filed. Thereafter, when Michael Stein returned the griev-
ance on the ground that it did not follow contract proce-
dures, a new grievance dated June 10 and signed by Quinn
in the name of the Union was filed.
It is clear from the above that Respondent has violated
Section 8(a)(5) of the Act in several respects. Even before it
announced the formation of the new corporation, Respon-
dent had actually instituted its new plan or "concept," as it
was called, in the foundry at approximately May 1. Kell-
back, Constantine, and Sprockett were all rotated in vari-
ous jobs and received lower wage rates than were provided
in the collective-bargaining agreement for the type of work
they were performing. By implementing this plan without
prior notice or consultation with the Union, despite its re-
jection during the negotiations, and after Respondent had
withdrawn it and signed a strike settlement agreement on
April 4, the Respondent engaged in a per se violation of
Section 8(a)(5) of the Act.' Of course Respondent contin-
ued this course of conduct after its announcement to union
representatives that it had severed the foundry from Limp-
co on June 1
Respondent further violated Section 8(a)(5) of the Act
by withdrawing recognition from the Union as to the
foundry on June 1 when it announced the formal incorpo-
ration of Cast Products Inc., and the transfer of the found-
ry to that corporation. It has already been found that the
two corporations comprise a single entity for the purposes
of collective bargaining. None of the usual reasons for
withdrawal of recognition, such as loss of majority, was
advanced by Respondent for its action. The plain fact is
that Respondent did not succeed in negotiating a change of
operations for the foundry and just decided that it could
divest itself of responsibility by going through the motions
of a dummy sale to a new corporation. Indeed, Respondent
6 N L R B v Benne Katz d/b/a Williamsburg Steel Products Co 369 U S
678 (1962), Guerdon Industries Inc, Armor Mobile Homes Division, 218
NLRB 658 (1975)
withdrew recognition just several days after it fomally exe-
cuted the new collective-bargaining agreement on May 27
which by its terms was effective from April 4. Accordingly,
I find that Respondent has violated Section 8(a)(5) by
withdrawing recognition for the foundry employees from
the Union on June 1.'
As a result of its unilateral changes of job classifications
and wage rates and other contractual provisions in the
foundry during May and thereafter, and by its withdrawal
of recognition on June 1, Respondent was refusing to apply
the terms and conditions of the contract executed May 27
to the foundry employees. By such refusal Respondent fur-
ther violated Section 8(a)(5) of the Act.
It has long been established that it is the duty of an
employer to bargain solely with the statutory representa-
tive and no other person or group.' Respondent acted in
derogation of this principle when, on June 1, it called a
meeting of the foundry employees and, as related above,
discussed the various job classifications and wage rates
with them. In this connection it is particularly noted that,
when one of the employees indicated that he felt that the
wage rate proposed was too low, Joseph Stein stated that
perhaps they could be paid at a higher level and Czajkow-
ski stated that he would look into it. This bypassing of the
Union and dealing on these matters directly with the em-
ployees further violated Section 8(a)(5) of the Act.9
C. The Alleged Violations of Section 8(a)(3) of the Act
On June 17, Respondent laid off Constantine, Sprockett,
and Collier and thereafter on July 1 Keilback was transfer-
red to the assembly plant. The General Counsel contends
that the layoff of the three employees and the transfer of
the fourth were discriminatorily motivated.
It will be recalled that on June 2, the morning after the
employees met with Joseph Stein and Czajkowski, the em-
ployees filed a grievance which was signed by each of
them. That morning Joseph Stein called them in and want-
ed to know why they were harassing him with all the griev-
ances. The employees, according to Sprockett, said that
they wanted him to adhere to the Limpco contract. Stein
said that they should forget about the contract as they were
no longer part of the UE, and then began to use abusive
language regarding Baldasseroni and Quinn. Constantine
testified that Stein said he wanted them to cooperate but
the employees said they had to do what their Union told
them to do. Stein stated they were no longer part of the
Union and "to hell with goddamn Baldasseroni and god-
damn Quinn, they had nothing to do with this. This is not
Limpco, this was Cast Products." About June 10 Joseph
t It appears that the Union, through an inadvertent error failed to include
the foundry in the unit description in the April 4 contract However, the
parties considered themselves bound by the 1973 job classifications and
wage rates negotiated in writing for the foundry employees It is apparent ,
throughout the negotiations of the parties both before and after the January
20 strike, and during further meetings in May, as well as discussion over the
recall of employees not only after the strike but also subsequent layoffs, and
in the handling of grievances relating to foundry employees, that the found-
ry employees were included in the contract unit I so find
8 Medo Photo Supply Corporation v N L R B, 321 U S 678 (1944)
9 Spriggs Distributing Company, 219 NLRB 1046 (1975)
LIMPCO MFG. AND/OR CAST PRODUCTS
Stein and Czajkowski called the four employees to a meet-
ing. They told the employees that there had been a cancel-
lation of orders, there was no longer enough work to sup-
port them, and effective that day they were to be laid off.
The employees then protested that they had to have a
week's notice and Czajkowski said he would give them the
notice and post it on the bulletin board. Later he called in
Keilback who was the steward and gave him a notice in
writing.10 In any case Constantine, Sprockett, and Collier
were laid off on June 17 and until July 1, Keilback was the
only remaining employee in the foundry apart from super-
vision.
Despite its claim of lack of work Respondent hired addi-
tional foundry employees shortly after June 1. On that date
Keilback was transferred to the assembly plant while Fore-
man Smith and Czajkowski worked alone in the foundry.
In a few weeks other nonunion employees were hired and
continued to work in the foundry. In July, Keilback, now
working in the assembly plant, was told by both Smith and
Czaikowski that he could return to work in the foundry if
he quit Limpco completely and came back to the foundry
as a nonunion employee.
From the above facts, particularly the refusal of the em-
ployees to renounce their Union and go along with the new
type of operation instituted in the foundry by Respondent,
and noting the expressions of harassment by Joseph Stein
upon receipt of the union grievance, and the invective he
directed toward the union representatives, I conclude that
Collier, Sprockett, and Constantine were laid off and ter-
minated because of their adherence to their Union and
their efforts in seeking enforcement of the collective-bar-
gaining agreement. Moreover, I find that the contention of
Respondent to the effect that it did not have sufficient
orders was merely a pretext which was negated by the fact
that in July it operated the foundry with nonunion employ-
ees. This is further substantiated by the testimony of Keil-
back with regard to the offer made to him that he return to
work in the foundry as a nonunion employee. I find there-
fore that Respondent discriminatorily and unlawfully laid
off the three above-named employees and transferred Keil-
back from the foundry to the assembly plant in violation of
Section 8(a)(3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of Re-
spondent described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
to Characteristic of Respondent's dealings with the employees and the
Union, the notice referred to was in the form of a letter dated June 10. 1975,
written by Cast Products, signed by Czajkowski and addressed to the
Union, from which the Respondent purported to have withdrawn recogni-
tion on June I
V. THE REMEDY
991
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the policies of the Act
It has been found that Respondent unilaterally, and
without prior notice to, or negotiation with the Union, and
in contravention of its collective-bargaining agreement im-
plemented a new mode of operation in its foundry and
instituted new job classifications and wage rates. Further,
the Respondent withdrew recognition from and has re-
fused to bargain with the Union, the exclusive representa-
tive of its foundry employees who are included in the unit
found appropriate herein. In addition, Respondent has re-
fused to apply the terms and conditions of the collective-
bargaining agreement with the Union effective April 4,
1975, to its foundry employees. It will therefore be recom-
mended that Respondent cease and desist from unilaterally
changing conditions of employment and that Respondent
shall accord recognition to the Union as the exclusive rep-
resentative of its foundry employees and apply the terms of
the current collective-bargaining agreement to such em-
ployees It will also be recommended that Respondent
cease and desist from bargaining directly with employees
and thereby bypassing their collective-bargaining represen-
tative. I shall further recommend that Respondent make
whole its foundry employees for any losses they may have
sustained by reason of its unilateral changes in job classifi-
cations and pay rates and its failure to apply the terms and
conditions of the collective-bargaining agreement to its
foundry employees.
Having found that Respondent discriminatorily dis-
charged the employees set forth above, I shall recommend
that Respondent be ordered to offer immediate and full
reinstatement to Constantine, Sprockett, and Collier and
transfer Keilback to their former positions or, if those posi-
tions are no longer available, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and make each of them whole for any
loss of earnings or other monetary loss each may have suf-
fered as a result of the discrimination against them, less
interim earnings, if any, plus interest at 6 percent per an-
num. Any backpay due is to be determined in accordance
with the formulas set forth in F. W Woolworth Company,
90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
CONCLUSIONS OF LAW
I Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
Limpco Mfg. Inc., and/or Cast Products, Inc , at all times
material herein have been a single-integrated enterprise
constituting a joint employer.
2 The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By unilaterally changing conditions of employment,
withdrawing recognition from the Union as the exclusive
bargaining representative of its foundry employees, failing
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and refusing to apply the collective-bargaining agreement
to its foundry employees, and bargaining directly with the
foundry employees and bypassing the Union, Respondent
has violated Section 8(a)(5) and (1) of the Act.
4. By discriminatonly discharging employees Constan-
tine, Sprockett, and Collier and transferring employee
Keilback, Respondent engaged in unfair labor practices in
violation of Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER II
Respondent Limpco Mfg Inc., and/or Cast Products,
Inc., Greensburg, Pennsylvania, their officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Unilaterally and without prior notice to or consulta-
tion with the Union promulgating or instituting a new pro-
gram involving its foundry employees concerningjob clas-
sifications, job rates, and other terms and conditions of
employment.
(b) Withdrawing recognition and refusing to bargain
collectively with the Union with respect to rates of pay, job
classifications, and other terms and conditions of employ-
ment of its foundry employees.
(c) Refusing to apply the collective-bargaining agree-
ment dated May 27, 1975, effective April 4, 1975, to its
foundry employees.
(d) Disregarding the Union and bargaining directly with
its foundry employees in derogation of their bargaining
representative.
(e) Discouraging membership in, or activities on behalf
of United Electrical, Radio and Machine Workers of
America, Local 623, or any other labor organization by
discharging employees, transferring employees, or other-
wise discriminating against them in any manner with re-
gard to their hire, tenure of employment, or any term or
conditions of employment because of their union activities.
(f) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights guar-
anteed by Section 7 of the Act, except to the extent that
such right is affected by the proviso of Section 8(a)(3) of
the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes and policies of the Act.
(a) Bargain collectively, upon request, with the above-
named Union as the exclusive representative of the em-
ployees in the appropriate unit.
(b) Recognize the Union as the exclusive bargaining
representative of the foundry employees and apply the col-
lective-bargaining agreement mentioned above to said
foundry employees.
(c) Make whole the foundry employees for any loss of
pay or other loss of benefits they may have sustained by
reason of Respondent's unilateral changes and its failure to
apply the collective-bargaining agreement to said foundry
employees since approximately May 1, 1975.
(d) Offer Ernest Constantine, Daniel Sprockett, and Ed-
ward Collier immediate and full reinstatement and transfer
Keilback to their former positions or, if those fobs no lon-
ger exist, to substantially equivalent positions, without
prejudice to their seniority or other rights previously en-
joyed, and make them whole for any loss of pay due to the
violations against them in accordance with the manner set
forth in the section of this Decision entitled "The Reme-
dy"
(e) Preserve and, upon 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 neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order.
(f) Post at its Greensburg, Pennsylvania, plant copies of
the attached notice marked "Appendix." 12 Copies of said
notice, on forms provided by the Regional Director for
Region 6, after being duly signed by the Respondent's rep-
resentative, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily placed. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material
(g) Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
12 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had a chance to give
evidence it has been found that we have violated the Na-
tional Labor Relations Act in certain respects. To correct
and remedy these violations we have been directed to take
certain actions and to post this notice
WE WILL NOT unilaterally and without notice to or
consultation with United Electrical, Radio and Ma-
chine Workers of America, Local 623, promulgate or
institute new fob classifications and pay rates involv-
ing our foundry employees represented for collective
bargaining by that labor organization.
WE WILL recognize United Electrical, Radio and
Machine Workers Union of America, Local 623, and,
LIMPCO MFG AND/OR CAST PRODUCTS 993
upon request, bargain with it as the exclusive represen-
tative of our foundry employees and all employees in
the appropriate unit described below:
All production and maintenance employees and
plant clerical employees employed by Respondent
at its Greensburg, Pennsylvania plant, excluding of-
fice clerical employees, professional employees,
guards, engineers and supervisors as defined in the
Act.
WE WILL apply our collective-bargaining agreement
with the Union dated May 27, 1975, effective April 4,
1975, through April 3, 1978, to our foundry employ-
ees.
WE WILL NOT disregard the Union and bargain di-
rectly with our foundry employees in derogation of
their bargaining representative.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights guaranteed in Section 7 of the Act
WE WILL NOT discourage membership in or activities
on behalf of United Electrical, Radio and Machine
Workers of America, Local 623, or any other labor
organization by discharging or otherwise discriminat-
ing against employees in any manner with regard to
their rates of pay, wages, hours of employment, hire,
tenure of employment, or any term or condition of
employment.
WE WILL offer Ernest Constantine, Daniel Sprockett,
and Edward Collier immediate reinstatement to their
former jobs or, if those jobs no longer exist, to a sub-
stantially equivalent job, without prejudice to their se-
niority or other rights, and WE WILL make them whole
for any loss of pay or any benefits they may have
suffered by reason of our discrimination against them
WE WILL offer Robert Keilback a transfer to his for-
mer position in the foundry or, if such job no longer
exists, to a substantially equivalentjob, and make him
whole for any loss of pay or benefits he may have
suffered by reason of our discrimination against him.
LIMpco MFG INC., AND/OR CAST PRODUCTS INC.