Petition — Fabsteel Co. v. National Labor Relations Board

Supreme Court brief1979

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MAY 17 \979

AK, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

No. ¢€8-17388

THE FABSTEEL COMPANY OF LOUISIANA,

Petitioner,

versus

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Andrew C. Partee

Walter W. Christy

Kullman, Lang, Inman & Bee

A Professional Corporation

Post Office Box 60118

New Orleans, LA 70160

Telephone: 504/524-4162

Counsel for the Fabsteel

Company of Louisiana

SCOFIELDS QUALITY PRINTERS, P. O. BOX 53096, N. O., LA. 70153 - 504/822-1611

TABLE OF CONTENTS

Page

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ee 2

a 2

ERE 2

a ee ae 4

Reasons For Granting The Writ ................. 8

The Decision Below Is In Conflict With The

I ee 8

Ry 15

TABLE OF AUTHORITIES

Golden State Bottling Co. v. NLRB, 414 U.S.

EE GU de eeheSHes eet Khdenerecceeces 9,10,12

Howard Johnson Co. v. Hotel Employees, 417

oT RS ey a er 9

Mosher Steel Co., 220 NLRB 336 ................ 5

Mosher Steel Co., 226 NLRB 1163 ............... 5

NLRB v. Burns International Security Serv-

iow, C6 T9.S:- BIE UIST E) kn cccaccccceses 8,9,10,14

Textile Workers v. Darlington Mfg. Co., 380

a Bae ess Siete aa ab ieee ioe eevee 12

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

No.

THE FABSTEEL COMPANY OF LOUISIANA,

Petitioner,

versus

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner, The Fabsteel Company of Louisiana,

prays that a writ of certiorari issue to review the judg-

ment of the United States Court of Appeals for the

Fifth Circuit entered in this case on February 1, 1979.

OPINIONS BELOW

The opinion of the Court of Appeals (Appendix 48a-

65a) is not yet officially reported. The National Labor

Relations Board’s decision and order is reported at 231

NLRB 372 (Appendix 46a-48a).

JURISDICTION

The judgment (Appendix 65a-66a) of the Court of

Appeals for the Fifth Circuit was entered on February

1, 1979. An extension of time to May 17, 1979 was

granted by this Court to permit the filing of this peti-

tion. This Court’s jurisdiction is invoked under 28

U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Did the National Labor Relations Board abuse its

authority in denying a successor employer the right to

select its own employees by requiring it to remedy a

predecessor’s unfair labor practices by hiring, at the

time of purchase, unreinstated unfair labor practice

strikers of its predecessor?

2. May the National Labor Relations Board alter

the composition of a bargaining unit lawfully hired by a

successor employer, thereby destroy an existing good

faith doubt of a union’s majority, and require bar-

gaining by the successor in the altered unit composed

exclusively of employees of the predecessor employer?

STATUTES INVOLVED

Sections 8(a)(1) and (5) of the National Labor

Relations Act, as amended (61 Stat. 140, 29 U.S.C. 158),

provide:

Sec. 8.(a) It shall be an unfair labor practice for

an employer —

(1) to interfere with, restrain, or coerce

employees in the exercise of the rights

guaranteed in Section 7;

(5S) to refuse to bargain collectively with

the representatives of his employees,

subject to the provisions of Section

9(a).

For the convenience of the Court, a portion of Sec-

tion 9(a) of the same Act (61 Stat. 143, 29 U.S.C. 159) is

also herein set forth:

Representatives designated or selected for the

purposes of collective bargaining by the ma-

jority of the employees in a-unit appropriate

for such purpose, shall be the exclusive repre-

sentatives...

Section 10(c) of the Act (61 Stat. 146, 29 U.S.C.

160) provides, in pertinent part, as follows:

If upon the preponderance of the

testimony taken the Board shall be of the

opinion that any person named in the com-

plaint has engaged in or is engaging in any

such unfair labor practice, then the Board

shall state its findings of fact and shall issue

and cause to be served on such person an or-

der requiring such person to cease and desist

from such unfair labor practice, and to take

such affirmative action including rein-

statement of employees with or without back-

pay, as will effectuate the policies of the Act:

Provided, That where an order directs rein-

statement of an employee, backpay may be re-

quired of the employer or labor organization,

as the case may be, responsible for the dis-

crimination suffered by him...

STATEMENT OF THE CASE

This case arises in a factual situation not atypical in

the current American industrial scene — the sale of a

plant. The issue is the extent to which any unremedied

unfair labor practices of the selling company inhibit the

ri,, \t of the purchaser t select its own employees and

the right of such employees to designate their collective

bargaining representative.

Petitioner (herein called “Fabsteel”) purchased a

plant located in Shreveport, Louisiana from Mosher

Steel Company (herein called “Mosher”) in December,

1975. The employees of Mosher were represented by

United Steelworkers of America, AFL-CIO (herein

called the “Union”) in a unit consisting of all seven

plants of the company. The employees in the seven

plants engaged ina strike commencing on July 22, 1974.

In subsequent proceedings, the National Labor

Relations Board concluded that the strike had been

caused and prolonged by unfair labor practices com-

mitted by Mosher.! The strike concluded on May 12,

1975 when the Union made an unconditional request

for reinstatement of the striking employees.

At the time the strike commenced, there were sixty-

seven (67) employees in that part of the bargaining unit

located in Shreveport. Sixty-five (65) of these

employees struck. During the strike period (July 22,

1974 to May 12, 1975) Mosher hired approximately 30

new employees and, during the same period, twenty-

one (21) or more striking employees returned to work

at the plant. Between May 12, 1975 and December 31,

1975, seven (7) additional Shreveport strikers were re-

called by Mosher. Five (5) strikers were refused

reinstatement on grounds of misconduct. The Board

held, in subsequent proceedings, that the misconduct

of two of them was insufficient to forfeit their right to

reinstatement.

By contract dated December 10, 1975, Fabsteel

agreed to purchase certain assets of Mosher in Shreve-

port. These included real property, improvements,

production and vehicular equipment, raw materials

1 Mosher Steel Company, 220 NLRB 336.

2 Mosher Steel Company, 226 NLRB 1163.

and inventory. There was no purchase of accounts

receivable, trade assets or good will.

Fabsteel purchased with knowledge of the out-

standing order of the Board against Mosher. Said deci-

sion and order were then pending review in the United

States Court of Appeals for the Fifth Circuit. The deci-

sion of the Fifth Circuit issued in May, 1976.3 The

agreement between Fabsteel and Mosher provided that

Mosher would indemnify Fabsteel against any and all

costs or damages resulting from any claims asserted

before a governmental agency alleging unfair labor

practices of Mosher, including backpay, fines and/or

costs relating to the reinstatement of Mosher

employees. The agreement further provided that

Mosher would offer reinstatement to such individuals

at one of its facilities, paying reasonable expenses of

transportation of an employee, his family and house-

hold goods.

Informed of the pending sale, the Union requested

Fabsteel to recognize the Union and to reinstate

strikers not yet recalled by Mosher. On January 5,

1976, Fabsteel declined asserting that it was not operat-

ing as a successor to Mosher, that it was not responsi-

ble for remedying its unfair labor practices, and ex-

pressed doubt of the Union’s majority status.

On December 31, 1975, Fabsteel hired all of t'«

Shreveport employees then on the payroll of Mosher

3 Mosher Steel Company v. NLRB, 532 F.2d 1374 (Sth Cir., 1976).

and commenced operations on January 5, 1976. There

were fifty-six (56) employees in production and

maintenance classifications. Seven (7) had been

strikers for its full term; twenty-one (21) had aban-

doned the strike and returned to work; and twenty-

eight (28) were either non-strikers or replacements

hired during the strike.

The decision below concluded that Fabsteel must

remedy the unfair labor practices of Mosher as of the

time of purchase and directed the “reinstatement” of

twenty-two (22) Mosher strikers, requiring backpay

from January 1, 1976. Notwithstanding that ap-

proximately 40% of the employees hired by Fabsteel

were thereby displaced, the Court below concluded

that a proper balance between conflicting legitimate in-

terests of the bona fide successor, the public, and the

affected employees had been achieved. The Court fur-

ther concluded that, considering the unit as amended

by the reinstatement order, Fabsteel no longer had a

good faith basis to doubt the Union’s majority status.

Thus, whether the unit be viewed as excluding strike

replacements actually hired by Fabsteel, or whether it

be viewed as augmented by the strikers, the com-

pulsory inclusion of twenty-two (22) Union adherents

obviated any good faith doubt warranting a refusal of

recognition.

REASONS FOR GRANTING THE WRIT

The Decision Below is in Conflict with the

Decisions of this Court.

The Act does not inhibit an employer’s right to select

its own employees provided that it not discriminate on

the basis of Union membership or activity. The decision

below subordinates the right to hire of a successor

employer to the obligation of its predecessor to remedy

unfair labor practices. It thereby converts this obligu-

tion into a charge upon the enterprise — in the nature

of a lien — to which any purchase is subject. The Board

thus intrudes into the substantive terms of the trans-

fer and requires, as a condition of purchase, a

simultaneous remedy of unfair labor practices.

This Court has considered a variety of duties sought

to be imposed upon an employer which purchases sub-

stantial assets of a predecessor and continues, without

interruption or substantial change, the former busi-

ness. In all of its decisions, this Court has maintained

the right of a successor to set the initial terms under

which it will operate, including the selection of its in-

itial employee complement. In NLRB v. Burns Inter-

national Security Services, 406 U.S. 272 (1972), the Court

refused to bind a new employer to a pre-existing collec-

tive bargaining agreement but required recognition of

the Union of the predecessor’s employees in the

absence of a good faith doubt of its majority status. The

Court, in Burns, Ibid., at 280,n. 5, held that there was no

obligation by the purchaser to hire any of the

predecessor’s employees. Indeed, interference with the

right to hire its own work force was a factor militating

against compulsory observance of the contract because

otherwise Burns “would not have been free to replace

Wackenhut’s guards with its own except as the con-

tract permitted.” Ibid., at 288. The Court made clear

that the bargaining duty of the successor matured only

after it had selected its work force. Ibid., at 295.

This Court again protected the right of a successor

employer to select its own employees in Howard Johnson

Co. >. Hotel Employees, 417 U.S. 49 (1974). A union repre-

senting the predecessor’s employees sought to ~nforce

the duty to arbitrate upon a successor employer which

had hired a minority of such employees. The issue

which the union sought to arbitrate was the obligation

to hire predecessor employees. The Court considered

the action to be an attempt to avoid the Burns decision

which established the right of a successor not to hire

any employees of the predecessor and held that the

“Union's effort to circumvent this holding by assert-

ing its claims in a Section 301 suit to compel arbitration

rather than in an unfair labor practice context cannot

be permitted.” Ibid., at 262.

Although the Court upheld the authority of the

Board, in appropriate circumstances, to remedy a

predecessor's unfair labor practices through a

successor, it specifically stated that “we in no way

qualify the Burns holdings.” Golden State Bottling Co. v.

NLRB, 414 U.S. 168, 183. The Court observed that, ina

situation similar to the case at bar, a succeeding

employer would not be held responsible for all un-

remedied unfair iabor practices:

A purchasing company cannot be obligated to

carry out under § 10(c), every outstanding

and unsatisfied order of the Board. For exam-

ple, because the purchaser is not obligated by

the Act to hire any of the predecessor's

employees, see NLRB v. Burns International

Security Services, Inc., supra, at 280, n. 5, the

purchaser, if it does not hire any or a majority

of those employees, will not be bound by an

outstanding order to bargain issued by the

Board against the predecessor nor by any

order tied to the continuance of the bar-

gaining agent in the unit it involves. Id., at

280-281.

The decision below ignores the teaching of Burns that

the obligations of a successor mature only at that point

when it has selected its work force. Supra at 295. It re-

quired Fabsteel to decline strike replacements in the ac-

tual work force and to substitute unreinstated strikers as

part of its initial enployee complement.

Although the Court below (Appendix 55a)

specifically abjured a mechanical two-step approach to

impose obligations upon a successor, it enforced a

Board order based upon such simplistic and artificial

reasoning. The Board made an initial determination

that Fabsteel was a successor because, among other

factors, it hired all of Mosher’s employee complement.

The Board accordingly imposed all of Mosher’s

obligations upon Fabsteel, including the requirement

that it displace some of the employees whose hiring

underpinned the conclusion of successorship. This

Court considers such an “artificial division between

these questions” to be neither helpful nor appropriate.

Whether or not a company is a successor is “not

meaningful in the abstract.” 417 U.S. at 262, n. 9. The

proper standard was articulated by the Court:

... but the real question in each of these

‘successorship’ cases is, on the particular facts,

what are the legal obligations of the new

employer to the employees of the former

owner or their representative. The answer to

this inquiry requires analysis of the interests

of the new employer and the employees and of

the policies of the labor laws in light of the

facts of each case and the particular legal

obligation which is at issue, whether it be the

duty to recognize and bargain with the union,

the duty to remedy unfair labor practices, the

duty to arbitrate, etc. There is, and can be, no

single definition of ‘successor’ which is

applicable in every legal context. A new

employer, in other words, may be a successor

for some purposes and not for others.

(Citations omitted.) Id.

Applying the principle of balancing conflicting in-

terests, the Court declined to impose a duty to arbitrate

upon the new employer concluding that “[T]|his hold-

ing is compelled, in our view, if the protection afforded

employee interests in achange of ownership by Wiley is

to be reconciled with the new employer's right to operate

the enterprise with his own independent labor force.”

(Emphasis supplied.) Ibid., at p. 264.

The controlling doctrine is the same when applied to

the duty of a new employer to remedy unfair labor

practices. It involves “striking a balance between the

conflicting legitimate interests of the bona fide

successor, the public, and the affected employee.”

Golden State Bottling Co. v. NLRB, 414 U.S. at 181. The

decision below balanced no interests; it assumed as

paramount the right of reinstatement of the strikers. It

did not even discuss the right of apurchasing employer

to select its own employees. It subordinated the rights

of employees subject to displacement by the decision,

rendering their vulnerability to displacement a part of

the sales transaction. It bypassed an existing remedy

available against the predecessor employer and the

continuing existence of the bargaining unit of which

the strikers had been a part. Available at all times was

the remedy which this Court has suggested in a plant

closing situation, utilized in runaway shops: or tem-

porary closings; that is, to “order reinstatement of the

discharged employees in the other parts of the busi-

ness.” Textile Workers v. Darlington Mfg. Co., 380 U.S. 263,

275. The decision below thereby exculpates the

perpetrator of unfair labor practices from a continuing

obligation to remedy them and imposes the total

obligation upon an employer innocent of violation.

The decision below destroyed the right of Fabsteel

employees to select their own bargaining repre-

sentative. The remedy imposed altered the composi-

tion of the unit, albeit fictitiously, for the purpose of

determining an objective basis for a good faith doubt of

union majority. Assuming the twenty-one (21) strikers

returning to work during the strike to be pro-union,

there were no more than twenty-eight (28) of the fifty-

six (56) who had ever been strikers. Twenty-eight (28)

had never participated in the strike, and most had been

hired across the picket line. Accordingly, a good faith

basis existed for doubting the union’s majority status,

and Fabsteel properly declined to recognize the union.

The decision below, in enforcing the Board’s order to

bargain, observed that its enforcement of the Board’s

order requiring the “reinstatement” of the unfair labor

practice strikers “makes it quite apparent that the ma-

jority of Fabsteel’s employees after such rein-

statement will be represented by the certified union.”

(Appendix 62a) Its mathematical computation was

by alternative methods. Firstly, one should disregard

twenty-two (22) strike replacements hired and treat

the unit as composed of only thirty-four (34)

employees, of whom twenty-eight (28) were union

employees. Or, the Court authorized the addition of

the twenty-two (22) employees whose “reinstatement”

was ordered to the unit of fifty-six (56); that is, a unit of

seventy-eight (78), of whom only fifty-six (56) were ac-

tually employed. The alternative fictitious unit would

contain fifty (50) union employees, a majority ina unit

of seventy-eight (78). (Appendix 64a-65a)

Thus, the decision below ignores the rights of the

employees actually hired by Fabsteel to participate in

the designation of their own collective bargaining

representative. Computation of majority status upona

fictitious unit artificially construed to contain either

twenty-two (22) more or twenty-two (22) less

employees than its actual composition distorts the

Burns holding that a recently certified union in an un-

changed unit is entitled to a presumption of continued

majority status. NLRB v. Burns International Security Serv-

ices, Inc., 406 U.S. at 278-279.

The need for protection to employees from a sudden

transformation of their employer’s business to a new

legal entity cannot be gainsaid. Its extent varies with

each case depending upon the circumstances and a

proper balance of conflicting interests. The decision

below demonstrates a fundamental failure by the

Board to follow the teachings of this Court that due

regard be given to rights traditionally enjoyed by an

employer. Inherent in this decision to accord transcen-

dency to employee claims against the predecessor

employer are a variety of inchoate rights of such

employees which become potential charges upon the

employing enterprise. Such risks of exposure would

make a prudent buyer avoid the purchase.

CONCLUSION

For the foregoing reasons, this petition for writ of

certiorari should be granted.

Respectfully submitted this Le’ day of May, 1979.

< fe

nog W. CHRISTY

ANDREW C. “eree JR.

Kullman, Lang, Inman & Bee

A Professional Corporation

Post Office Box 60118

New Orleans, Louisiana 70160

Telephone: 504/524-4162

COUNSEL FOR THE

FABSTEEL COMPANY

OF LOUISIANA

CERTIFICATE

I hereby certify that I have caused a copy of the above

and foregoing to be served this Lory of May, 1979

by placing same in the United States Mail, postage

prepaid, certified mail, return receipt requested upon:

Mr. Elliott Moore

Deputy Assoc. General Counsel

National Labor Relations Board

1717 Pennsylvania Avenue, N.W.

Washington, D.C. 20570

Mr. Wade H. McCree, Jr.

Solicitor General

U.S. Department of Justice

Tenth & Constitution Streets

Washington, D.C. 20530

Of Counsel

APPENDIX

JD-236-77

Shreveport, LA

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGES

FABSTEEL COMPANY OF LOUISIANA

and Case 23-CA-6008

(Formerly 15-CA-6059)

UNITED STEELWORKERS OF AMERICA, AFL-CIO

DECISION

Statement of the Case

JERRY B. STONE, Administrative Law Judge: This

proceeding, under Section 10(b) of the National Labor

Relations Act, as amended, was tried pursuant to due

notice on October 19 and 20, 1976, at Shreveport,

Louisiana.

The charge was filed on April 1, 1976, in Region 15 of

the NLKB (New Orleans, La.), and was docketed as

Case 15-CA-6059. Thereafter, on April 13, 1976, said

charge and case was transferred to Region 23 of the

NLRB (Houston, Texas) and renumbered and docketed

as Case 23-CA-6008. The complaint in this matter was

issued on August 18, 1976.

The issues presented by the pleadings and

statements of counsel concern whether the Respon-

dent (1) is a successor to Mosher Steel Company, (2)

has, since on or about January 5, 1976, violated Section

8(a)(5) and (1) of the Act by refusing to recognize and

bargain with the Union with respect to an appropriate

bargaining unit limited to certain described clas-

sifications of Respondent’s employees, and (3) has

violated Section 8(a)(3) and (1) of the Act by refusing,

since on or about January 5, 1976, to“ reinstate” certain

named employees who had participated in an unfair

labor practice strike against Mosher Steel Company.

All parties were afforded full opportunity to par-

ticipate in the proceeding. Briefs have been filed by the

General Counsel and the Respondent and have been

considered.

Upon the entire record in the case and from my

observation of witnesses, I hereby make the following:

Findings of Fact

I. The Business of the Employer

The facts herein are based upon the pleadings and ad-

missions therein.

Fabsteel Company of Louisiana, the Respondent, is

and has been at all times material herein, a corporation

duly organized under and existing by virtue of the laws

of the State of Louisiana, having its principal office and

place of business in Shreveport, Louisiana, where it is

engaged in the business of fabrication of structural

steel products.

Mosher Steel Company is, and has been at all times

material herein, a corporation duly organized under

and existing by virtue of the laws of the State of Texas,

having its principal office and place of business in

Houston, Texas, where it is engaged in the business of

fabricating structural steel products. Prior to January

1, 1976, Mosher Steel Company also owned and

operated a facility in Shreveport, Louisiana, where

steel products were manufactured.

During the calendar year of 1976, which period is

representative of all times material herein, Respon-

dent, in the performance of its business as described

above, purchased goods and materials valued in excess

of $50,000, which goods and materials were shipped

directly to Respondent’s Shreveport, Louisiana, plant

from points and places located outside the State of

Louisiana. During the same period of time, Respondent

sold materials valued in excess of $50,000 to cus-

tomers located at points and places outside the State of

Louisiana, which materials were shipped directly from

Respondent’s Shreveport, Louisiana, plant to said

customers.

During the past calendar year, which period is repre-

sentative of all times material herein, Mosher Steel

Company, in its performance of its business as describ-

ed above, purchased goods and materials valued in ex-

cess of $50,000 which were shipped directly to

Respondent’s Houston, Texas, facility from points and

places located outside the State of Texas.

As conceded by the Respondent and based upon the

foregoing, it is concluded and found that

(1) Fabsteel Company of Louisiana, the Respon-

dent, is, and has been at all times material herein, an

employer engaged in commerce within the meaning of

Section 2(6) and (7) of the Act.

(2) Mosher Steel Company is, and has been at all

times material herein, an employer engaged in com-

merce within the meaning of Section 2(6) and (7) of the

Act.

Il. The Labor Organization Involved!

United Steelworkers of America, AFL-CIO, is, and -

has been at all times material herein, a labor organiza-

tion within the meaning of Section 2(5) of the Act.

1 The facts are based upon the pleadings and admissions therein.

BrarE te

III. The Unfair Labor Practice Issue

A. Background and Setting?

Pursuant to a Stipulation for Certification Upon

Consent Election, a secret ballot election was conduct-

ed on August 30, 1973, among the employees in the

stipulated unit described below. The tally of ballots fur-

nished the parties showed that of approximately 980

eligible voters, 912 cast valid ballots, of which 511 were

for and 378 against the Petitioner. There were 23

challenged ballots, which were insufficient to affect the

results of the election.

On January 18, 1974, the Board found the stipulated

unit to be an appropriate bargaining unit for the pur-

poses of collective bargaining within the meaning of

Section 9(b) of the Act.

The stipulated and found appropriate collective

bargaining unit was as follows:

“Included: A companywide unit of the

employees at all of the Employer’s seven

plants, at 3910 Washington and 6422 Esper-

2 The facts are based upon the pleadings and admissions therein,

upon stipulations, and upon official notice of the facts, concluding

findings, and decision and order of the Board in Mosher Steel Com-

pany,-220 NLRB 336, and in the Board’s Decision and Certification

of Representatives in Case 23-RC-3989 in the Mosher Steel Company

case reported at 208 NLRB 522.

3 The Employer was Mosher Steel Company. The Petitioner

was the United Steelworkers of America, AFL-CIO.

son Street, Houston, Texas; San Antonio,

Texas; Dallas, Texas; Lubbock, Texas; Tyler,

Texas; and Shreveport, Louisiana; described

as follows: All production and maintenance

employees, including leadmen, truckdrivers,

janitors, and all plant clericals. Excluded: All

office clerical employees, draftsmen, inside

and outside salesmen, watchmen, guards,

professional employees, and supervisors as

defined in the Act.”

On January 18, 1974, the Board found, as indicated

above, that the Petitioner had received a majority of the

valid ballots cast in said election and that the Petitioner

should be certified as the exclusive collective bargain-

ing representative of the employees in the unit found

appropriate.

On January 18, 1974, the Board certified the

Petitioner, United Steelworkers of America, AFL-CIO,

as the exclusive representative of the employees of the

Employer, Mosher Steel Company, in the appropriate

bargaining unit for the purposes of collective bar-

gaining with respect to rates of pay, wages, hours of

employment, or other conditions of employment.

Thereafter, the Union, United Steelworkers of

America, AFL-CIO, made a bargaining request or

February 7, 1974. Following this, the Union and

Mosher Steel Company had some bargaining sessions

between March 6, 1974, and December 10, 1974.

A strike by a substantial number of employees at the

seven plants involved in the appropriate unit com-

menced on July 22, 1974, and concluded, at least for the

Mosher Steel Company Shreveport employees, on or

about May 12, 1975. Said strike was an unfair labor

practice strike, caused and prolonged by unfair labor

practices committed by Mosher Steel Company.

Just prior to July 22, 1974, Mosher Steel Company

had approximately 67 employees in bargaining unit

positions at its Shreveport plant. On July 22, 1974,

approximately 65 of the 67 Shreveport employees, part

of the 7 plant bargaining unit, went out on strike. Dur-

ing the strike period (July 22, 1974 to May 12, 1975)

Mosher Steel Company hired approximately 30 new

employees. During the strike period, 21 or more

employees who had gone out on strike from the

Shreveport plant quit the strike and returned to work

at the plant.

On April 23, 1975, Administrative Law Judge Samuel

M. Singer issued his decision in Mosher Steel Company and

United Steelworkers of America, AFL-CIO — Cases 23-CA-

5165, 23-CA-5258 (formerly 16-CA-5699) and 23-CA-

5282 (formerly 15-CA-5357). Judge Singer found that

Mosher Steel Company had violated Section 8(a)(1) of

the Act by certain conduct, had violated Section 8(a)(5)

and (1) of the Act by refusing to bargain collectively,

and’ that the strike by Mosher Steel Company

employees commencing on July 22, 1974, was an unfair

labor practice strike, caused and prolonged by Mosher

Steel Company’s unfair labor practices. Judge Singer’s

recommended order included appropriate remedial ac-

tion relating in part to requirement to bargain with the

Union and to reinstatement of unfair labor practice

strikers upon unconditional application for reinstate-

ment.

As has been indicated, the unfair labor practice strike

which commenced on July 22, 1974, concluded (at least

for the Mosher Steel Company, Shreveport

employees) on or about May 12, 1975. Onor about May

12, 1975, unconditional offers were made to Mosher

Steel Company for the Mosher Steel Company

Shreveport unfair labor practice strikers to return to

work. The record reveals that between May 12, 1975,

and December 31, 1975, seven of Mosher Steel Com-

pany Shreveport unfair labor practice strikers were

returned to work. Five of the Mosher Steel Company

Shreveport unfair labor practice strikers were refused

reinstatement on the alleged ground of misconduct.‘

4 officially note that the question of such misconduct’s bearing

on the five individual unfair labor practice strikers’ right to

reinstatement was litigated in a proceeding before Adminis-

trative Law Judge Jalette. The Board in Mosher Steel Company, 226

NLRB No. 180, found that Mosher Steel Shreveport unfair labor

practice strikers Robert Wilkerson, Charles Stiles, and Benny

Harris engaged in striker misconduct justifying a refusal to

reinstate such employees. The conduct of Mosher Steel Company

Shreveport unfair labor practice strikers Roosevelt Washington

and Lee Taylor was tall re effect to be of sucha nature as not to

impair their rights to reinstatement as unfair labor practice

strikers, and it was found that the refusal to reinstate Tadkinieon

and Taylor violated Section 8(a)(3) and (1) of the Act. Appropriate

remedial order of reinstatement and backpay was issued in said

decision on November 24, 1976.

The litigation of such issues in Mosher Steel Company, 226

NLRB No. 180, requires a finding that Roosevelt

Washington and Lee Taylor, two of such five unfair

labor practice strikers, were entitled to reinstatement

after the offers to return to work on May 12, 1975.

On September 16, 1975, the Board issued its decision

in Mosher Steel Company, 220 NLRB 336, adopting in ma-

jor part Judge Singer’s decision issued on April 23,

1975. The Board found that Mosher Steel Company

had engaged in conduct violative of Section 8(a)(5) and

(1) of the Act. The Board also found that the strike by

Mosher Steel Company employees commencing on

July 22, 1974, was an unfair labor practice strike, caus-

ed and prolonged by unfair labor practices of Mosher

Steel Company. The Board issued appropriate remedial

order requiring Mosher Steel Company to bargain

with the Union and to reinstate the unfair labor prac-

tice strikers upon unconditional application for

reinstatement. The Board’s decision and order re-

ferred to above was enforced by Judgment of the Fifth

Circuit — United States Court of Appeals on June 7,

1976.

Agreement

Sale - Purchase

December 10, 1975

B.. On December 10, 1975, Mosher Steel Company

of Louisiana, Inc. (a Louisiana corporation), Mosher

Steel Company, Inc. (a Texas corporation), The Fab-

steel Company of Louisiana (a Louisiana corporation),

10a

and The Fabsteel Company (a Delaware corporation)

entered into an agreement relating to the sale by

Mosher Steel Company of Louisiana to The Fabsteel

Company of Louisiana of certain assets, real estate,

buildings, structures, machinery and equipment, tangi-

ble personal property, raw material and inventory,

located in Shreveport, Louisiana.

Said agreement was written in terms of “certain

assets,” certain real property, excluded certain trailers,

and indicated certain limitations on inventory or raw

materials purchased. Said agreement contained clauses

relating to purchaser’s agreement to furnish labor to

complete work in progress. Said agreement also

provided for “closing” and transfer of documents and

payments on December 31, 1976. Said agreement con-

tained provisions relating to obligations as to pending

labor related disputes and litigation. On the same day

The Fabsteel Company of Louisiana and The Fabsteel

Company, Inc. transmitted a letter to Mosher Steel

Company and Mosher Steel Company of Louisiana,

Inc. reflecting further understanding and agreement in

respect to the possible reinstatement of certain former

employees of Mosher Steel Company of Louisiana, Inc.

Events

December 16-31, 1975

C. On December 16, 1975, Chris Dixie, attorney

for the Union, met with Larry M. Lesh, attorney for

Mosher Steel Company. It is clear that Dixie and Lesh

lla

discussed the pending sale of the Mosher Steei Com-

pany Shreveport plant and that Dixie requested infor-

mation as to the agreement of sale.

On December 17, 1975, James P. Wolfe, a law part-

ner of Dixie, transmitted a letter to President Fletcher

Thorne-Thomsen of Fabsteel, Inc. Wolfe indicated that

the United Steelworkers of America, AFL-CIO, had

been advised that Fabsteel or a new corporation was in

the process of purchasing Mosher Steel Company’s

Shreveport facility, that the expected termination of

Mosher’s operations was to be on December 31, 1975,

and the anticipated commencement of operation by

Fabsteel’s affiliated company was to be on January 1,

1976. Wolfe’s letter referred to understanding that

Mosher Steel Company had advised the purchasers of

the pending unfair labor practice proceedings and find-

ings by the National Labor Relations Board. Wolfe’s

letter summarized the Board’s findings relating to

refusal to bargain, to an unfair labor strike, and to un-

fair labor practice strikers’ rights to reinstatement.

Wolfe requested that the purchaser recognize the Un-

ion for the production and maintenance employees at

the Shreveport plant operation, and that the pur-

chaser promptly reinstate all of the striking employees

entitled to reinstatement under the current Board

order whom Mosher had failed to reinstate as of the

date of the letter. Wolfe’s letter referred to an attach-

ment setting forth the names of such employees.

Wolfe’s letter also set forth a description of the ap-

propriate bargaining unit for which recognition as

12a

bargaining agent was being made. Wolfe’s letter in-

dicated that the strikers would make application in the

manner requested.

On December 23, 1975, Larry Lesh, attorney for

Mosher Steel Coinpany, by letter, advised Chris Dixie,

attorney for the Union, of certain provisions in the

December 10, 1975, agreement of sale-purchase

between Mosher Steel Company and The Fabsteel

Company previously referred to. Enclosed with Lesh’s

letter was an Exhibit P containing description of pend-

ing labor related disputes and litigation. Said exhibit re-

ferred to Case 23-CA-5360. Said case is the one dispos-

ed in the National Labor Relations Board decision

reported at 226 NLRB No. 180. Said exhibit also re-

ferred to Cases 23-CA-5165, 23-CA-5258, and 23-CA-

5282 as being on appeal to the United States Fifth Cir-

cuit Court of Appeals. Said Board decision is reported

at 220 NLRB 336 and was enforced by Judgment of the

United States Fifth Circuit Court of Appeals on June 7,

1976.

The Successorship

D. The facts areclear that the Fabsteel Company of

Louisiana, on December 31, 1975, purchased, pursuant

to prior agreement of December 10, 1975, in substan-

tial effect the real property, physical assets, machinery,

equipment, and inventory of Mosher Steel's

Shreveport plant. The wording of the agreement to

purchase refers in parts to certain real property and

certain assets. The facts relating to the agreement and

nr erent

13a

to the commencement of work with the same work

force persuade that insubstantial effect Mosher Steel’s

Shreveport plant was sold to and acquired by the

Fabsteel Company of Louisiana on December 31, 1975.

The General Counsel alleges and contends and the

Respondent denies that accounts receivable, trade

assets, and goodwill of Mosher Steel Company were

purchased by the Fabsteel Company of Louisiana. In

my opinion, the evidence does not support the General

Counsel's contentions. First, as to accounts receivable,

there is no evidence that the Fabsteel Company of

Louisiana purchased accounts receivable from Mosher

Steel Company. Rather, the parties entered into a busi-

ness agreement wherein the Fabsteel Company was to

furnish labor to finish work in progress for Mosher

Steel Company. Perhaps the details as to compensation

might reveal an arrangement warranting a conclusion

that such arrangement in effect was a sale and

purchase of accounts receivable disguised as another

relationship. Such details have not been presented.

Thus, the evidence is insufficient to reveal that ac-

counts receivable were sold and purchased. Regardless

of whether accounts receivable were sold and pur-

chased, continued work by employees on work in

progress tends to support a finding of successorship

status.

There is no evidence to reveal that the Fabsteel Com-

pany of Louisiana purchased “trade assets” and

“goodwill” from Mosher Steel Company. Statements

14a

by the General Counsel at trial revealed that in effect

his contentions are that “trade assets” and “goodwill”

are the same. The agreement to purchase did not refer

to “goodwill” or “trade assets,” does not refer to agree-

ment by Mosher Steel not to compete, and the name of

the Fabsteel Company of Louisiana does not indicate a

reliance or free ride upon the reputation of Mosher

Steel Company.

On December 31, 1975, Mosher Steel’s Shreveport

plant employee complement consisted of 56 non-

supervisory employees. On December 31, 1975,

Mosher Steel Company ceased operation of the

Shreveport plant and terminated all employees and

supervisors. The Fabsteel Company of Louisiana took

applications from all the employees and supervisors

working for Mosher Steel Company at Shreveport,

Louisiana, on December 31, 1975, hired all such

employees and supervisors, paid such employees for 2

days of holidays (apparently January 1 and 2, 1976) and

commenced operation with the same employee comple-

ment on January 5, 1976. All such employees, includ-

ing management, were given credit for prior service

with Mosher Steel Company, and the employees were

assigned the same employee employment number as

used at Mosher Steel Company in Shreveport, Loui-

siana. Employees hired by Mosher Steel Company after

5 The exhibit setting forth the names of such employees listed’

60 employees. Testimonial evidence revealed, however, that such

list included four persons who appear to be supervisors. (B.

Johnston, L. Johnson, Pugh, and Settle), Whether several of these

were leadmen and perhaps non-supervisory is not clear.

15a

January 5, 1976, whether previously employed by

Mosher Steel Company or not, were treated as new

hires and given new assigned numbers.°®

The facts relating to the operations of Mosher Steel

Company at Shreveport prior to December 31, 1975,

and to the operations of the Fabsteel Company of Loui-

siana at Shreveport on January 5, 1976, and thereafter

reveal that the employee complement continued sub-

stantially doing the same work with the same equip-

ment. Some testimony was presented that some newer

equipment was purchased, installed, and used after

January 5, 1976, and that such equipment was more ef-

ficient. Such type of change, however, is not of a sub-

stantial mature as regards the question of

successorship.

In December, 1975, Mosher Steel Company had a

bargaining obligation as regards its production and

maintenance employees because of the certification of

the 7 plant Mosher Steel unit in 1974 and because of

the Board’s order inthe case reported at 220 NLRB 336.

As noted before, Mosher Steel Company of Louisiana

and the Fabsteel Company of Louisiana entered into an

agreement of purchase-sale of the Shreveport plant.

Such agreement also contained clauses relating to con-

6 I note however that clock no. 8993 was assigned to James M.

Jordan as of 12/31/75, that an employee named R.S. Varnell first

appears on the records in this case in records for August, 1976,

with a clock no. 8991. Perhaps Varnell was not in the bargaining

unit and therefore not included in the earlier records.

16a

tinuation of the current pay scales for management and

employees.

The Fabsteel Company of Louisiana Shreveport

plant employees after January 5, 1976, were continued

to be paid the wage scales utilized at the Mosher Steel

Company of Louisiana prior to December 31, 1975.

_ A comparison of other fringe benefits enjoyed by

Mosher Steel’s Shreveport employees as compared to

the Fabsteel Shreveport employees reveals the follow-

ing. The Fabsteel Company instituted a health in-

surance program with greater benefits than the

program used by Mosher. Mosher paid the employees’

share of such insurance but the employees paid for

coverage for dependents. Both the Fabsteel Company and

the employees paid a percentage of both employee and family

coverage after January 1, 1976. Thus, The Fabsteel

employees had to pay a percentage of their own in-

surance coverage wherein before (at Mosher) they had

paid nothing for such coverage at Mosher. Further, the

Fabsteel employees paid a percentage of the family

coverage wherein before (at Mosher) they had had to

pay the total costs for such coverage.

Mosher Steel’s employees had been covered by a

retirement plan. When The Fabsteel Company ac-

quired the Shreveport plant, such plan was terminated

and a new different plan in effect at another Fabsteel

plant was implemented.

17a

Mosher Steel’s employees had received 7 paid

holidays per year whereas The Fabsteel Company

Shreveport employees were employed on the basis of

10 paid holidays per year. Mosher employees’ vacation

plan involved 1 week vacation after 1 year, 2 weeks

after 5 years, and 3 weeks after 15 years. The Fabsteel

Company Shreveport vacation policy instituted in-

volved 1 week vacation after 1 year, 2 weeks after 2

years, 3 weeks after 8 years, and 4 weeks after 18 years.

After the sale of the Shreveport plant, Mosher

ceased participating in the market in the area. Some of

Mosher’s customers became customers of the Fabsteel

Company after January 1, 1976. The Fabsteel Com-

pany has participated in a wider marketing area for the

Shreveport plant than had been used by Mosher before

the December 31, 1975, sale of the Shreveport plant.

There are alsosome differences in the handling of in-

voicing and related matters between the Mosher Steel

Shreveport operation and The Fabsteel Shreveport

operation. Thus, Mosher handled invoicing and collec-

tion and personnel records from its office in Houston,

Texas. Fabsteel handles invoicing and collections, and

personnel records on a local basis at the Shreveport of-

fice. Mosher had an organizational set up of separate

departments at the Shreveport operation. Fabsteel,

since the acquisition of the Shreveport plant from

Mosher, has combined all departments into one depart-

ment.

18a

Fabsteel Company utilizes a broader based method of

estimating, casting, and pricing products as compared

to a more broken down method utilized by Mosher in

its operations.

Mosher Steel Company’s Shreveport plant was one

of a number of plants operated by Mosher. Mosher’s

smaller plants, such as its Shreveport plant, were in-

volved in production for commercial work. After the

sale of Mosher’s Shreveport plant, Mosher continued

work in other plants mainly of an industrial work

nature. The Fabsteel Company of Louisiana is similarly

one of several plants of The Fabsteel Company set up as

different corporations apparently. The Fabsteel Com-

pany of Louisiana has continued doing the commercial

work as did Mosher. The Fabsteel Company also com-

menced doing industrial work (Petro chemical and

chemical customers) mainly for The Fabsteel Company

at Waskom. The volume of such work was at first 90%

of such work for the Waskom plant, and later such

percentage decreased to 50% for Waskom, apparently

as local customers were picked up.

Both Mosher’s Shreveport plant and The Fabsteel’s

Shreveport plant have had temporary exchanges of

employees with other plants in related or affiliated cor-

porations of their parent corporations. Some work

produced at the Fabsteel Company of Louisiana is

processed at Shreveport and at the Fabsteel’s Waskom

plant.

19a

The Fabsteel Company of Louisiana has operated

with basically the same employee complement and the

same supervision after January 1, 1976, as had Mosher

before December 31, 1975. Thurman occupied the

same position as General Manager at the plant for both

corporations. Thurman credibly testified to the effect

that he had not engaged in labor negotiations for

Mosher with the Union and that at Fabsteel he had not

been given labor relations responsibilities. Thurman

also credibly testified to the effect that the line of

authority from him to top management for Fabsteel

was from him to President Thorne-Thomsen, that

Thorne-Thomsen came over to Shreveport frequently

from Waskom, and that Vice-President Burnley

(engineering) was over daily from Waskom to render

staff assistance. Whether this is different or not in

effect from the line of command or assistance ren-

dered when he was Mosher’s General Manager is not

revealed.

Thurman’s testimony as to job openings reveals in

effect that the same job classifications, duties of

employees, and work in Fabsteel’s operation essentially

continued as had been in Mosher’s operation.

As has been previously noted, the production and

maintenance employees at Mosher’s Steel Shreveport

plant were part of an overall 7 plant Mosher Steel

bargaining unit. Such bargaining unit as described in

specifics for the 7 plant unit has been found to be an ap-

propriate bargaining unit. The number of employees at

20a

the Shreveport location on December 31, 1975, and on

January 1 and 5, 1976, numbered 56 or 58.” A unit of

employees of 56 or 58 in number paralleling the

description of the larger 7 plant unit is also an ap-

propriate bargaining unit. The same reasoning relating

tocommunity of interest would apply, and the evidence

of the appropriateness of the larger unit would con-

stitute a preponderance of evidence requiring a find-

ing that the smaller unit with similar classification

description be appropriate for bargaining.

In the background of significant geographical disper-

sion of the 7 plant Mosher unit, the facts reveal a suf-

ficient identity of the Shreveport employees as a

separate group to warrant from astructure viewpoint a

separate employee complement. aa

Considering all of the foregoing, I am persuaded and

conclude that The Fabsteel Company of Louisiana on

January 1, 1976, constituted a successor to the Mosher

Steel Company of Louisiana as the enterprise operat-

ing the Shreveport plant involved herein. Thus, the

facts reveal that substantially the same employees and

supervisors continued after the change in ownership

on December 31, 1975. Such employees have con-

tinued doing substantially the same work on the same

equipment at the same location. Essentially, what has

7 The facts indicate that B. Johnson, and George Pugh, Jr. were

supervisors at the time of the sale of the plant on Decetnber 31,

1975, and when Fabsteel commenced operation. This being so, the

number of employees in the complement was 56. If, however,

Johnson and Pugh were merely leadmen and nonsupervisory, the

number of employees would be 58.

21a

happened is that The Fabsteel Company has continued

the same work of acommercial nature but added work

of an industrial nature. Although the products for the

industrial nature work involves some differences, such

work is basically the same. I do not find that the

changes in fringe benefits basically affects the question

of the continuation of the employing enterprise. Such

benefits do not appear to have been substantially

changed. Further, bookkeeping and other changes have

little bearing ona realistic evaluation of continuation or

lack of continuation of an enterprise. The overall struc-

tures of Mosher and of Fabsteel appear substantially

similar.

The employee unit complement continued the same

at Fabsteel as at Mosher. The fact that the certified bar-

gaining unit at Mosher involved a 7 plant unit is not

significant in evaluating structural change or lack

thereof when it is clear that a single plant unit is also

appropriate. Rather the 7 plant unit is essentially

similar in nature to a situation of multi-plant or multi-

employer bargaining in an agreed merger of single

units into one bargaining unit or as part of multi-unit

bargaining.

In sum, the facts reveal that The Fabsteel Company

of Louisiana is a successor employer to the Mosher

Steel Company as employer of the Shreveport plant in-

volved herein.

22a

E. The Refusal to Bargain

1. The General Counsel alleges that all production

and maintenance employees, including leadmen, truck-

drivers, janitors and plant clericals employed at

Respondent’s Shreveport, Louisiana plant, excluding

guards, watchmen and supervisors as defined in the

Act, constitute a unit appropriate for collective bar-

gaining within the meaning of Section 9(b) of the Act.

The Respondent admits in effect that a unit of all

production and maintenance employees at the

Shreveport plant is appropriate but denied, because

there might be issues relating to specific inclusion of

various classifications, the remainder of the

_ allegations.

The matter of appropriateness of the alleged ap-

propriate bargaining unit has been discussed in the

“successorship” section herein. No specific evidence as

to specific inclusion or exclusion of classifications has

been presented. In effect, the facts reveal that a

described appropriate bargaining unit, of the described

classifications included in this alleged appropriate bar-

gaining unit but relating to a7 plant Mosher Steel unit,

was stipulated to be appropriate and was so found by

the Board on January 18, 1974. Further, such unit was

certified as the appropriate unit on January 18, 1974.

As indicated beforehand, the community of interest of

the employees as to inclusions and exclusions from

such 7 plant unit similarly persuade that the same in-

clusions and exclusions would prevail for a single plant

‘23a

unit. Accordingly, I conclude and find that the alleged

appropriate bargaining unit constitutes a unit ap-

propriate for collective bargaining within the meaning

of Section 9(b) of the Act.8

2. The pleadings establish and I so find that the Un-

ion (United Steelworkers of America, AFL-CIO) on or

about December 17, 1975, requested and continued to

request Respondent to bargain collectively with

respect to rates of pay, wages, hours of employment,

and other terms and conditions of employment as the

exclusive collective bargaining representative of all the

employees of Respondent in the single plant unit

described above.

The pleadings also establish and I so find that —

commencing on or about January 5, 1976, and at all

times thereafter, Respondent did refuse, and continues

to refuse to recognize the Union and to bargain collec-

tively with the Union as the exclusive collective bar-

gaining representative of all the employees in the single

plant unit described above with respect to wages,

hours, and working conditions and other terms and

conditions of employment for the employees in said

unit.

3. As indicated above, it is clear that the Respon-

dent has refused to bargain with the Union as to wages,

8 | note that office clericals were specifically excluded from the

stipulated 7 plant unit, that “office clericals” are not included in the

alleged single plant unit as being included and that “office

clericals” are not specifically excluded from such single plant unit.

24a

terms, and conditions of employment covering the

employees in the appropriate bargaining unit. I note

that Attorney Ramsey, for the Respondent, replied to

Wolfe’s December 17, 1975, request for recognition

and bargaining on January 5, 1976. Ramsey’s letter in-

dicated an awareness of the unfair labor practice

claims, set forth Respondent’s contention that it was

not a “successor”, set forth Respondent’s contention

that it did not believe the Union to represent a majority

in any unit appropriate for bargaining, and suggested

that the Union file a representation petition.

On March 22, 1976, Attorney Dixie, for the Union,

spoke to Attorney Ramsey, for the Respondent, and of-

fered to prove the Union’s majority statutes [sic] by a

card check. Dixie offered such proof related to a majori-

ty of the employees working, as well as related to a

count of those working and of unreinstated strikers.

Ramsey stated that he would check with his client, the

Respondent, and call back if the Respondent were will-

ing to agree to a card check for majority status deter-

mination. Dixie received no further communication on

this point.

4. The facts reveal the following with respect to the

employees in the appropriate bargaining unit as of

January 5, 1976. There were 56 non-supervisory

employees in the Mosher Steel Company unit at the

Shreveport plant on December 31, 1975. Respondent's

unit on January 1 and 5, 1976, had 56 non-supervisory

employees, the same employees who had been working

for Mosher Steel at Shreveport on December 31, 1975.

25a

Of these 56 employees, the following may be noted.

Twenty-one of Respondent’s non-supervisory

employees were. employees who had been striking

employees at Mosher Steel Company’s Shreveport

plant and had returned to work before the cessation of

the strike on May 12, 1975. Seven (7) of Respondent's

non-supervisory employees were employees who has

been striking employers at Mosher Steel’s Shreveport

plant and who were reinstated to their jobs between

May 12, 1975, and December 31, 1975. Twenty-eight

(28) of Respondent’s employees on January 1 and 5,

1976, were employees who were either hired after the

strike commenced on July 22, 1974, or had not gone out

on strike. The record indicates that the number of

employees who had not gone out on strike was around

2. As of December 31, 1975, there were 22 unfair labor

practice strikers entitled to reinstatement by Mosher

Steel Company at the Shreveport plant. As of January

1, and 5, 1976, there were 22 unfair labor practice

strikers entitled to reinstatement by the Respondent.°

9 The records relating to employees, their clock numbers, and

status on Mosher Steel’s payrolls, and the facts in Mosher Steel Com-

pany, 220 NLRB 336, in composite effect form the basis for the

above numerical findings as to employees working on December

31, 1975, and on January 1 and 5, 1976. The facts, findings, and

order in Mosher Steel Company, 220 NLRB 336, the evidence in this

case as to certain terminations and quits, and the findings, facts,

and order in Mosher Steel Company, 226 NLRB no. 180, in composite

effect with the records in this case, form the basis for the findings

as to-the 22 unreinstated strikers.

26a

Contentions

Conclusions

The General Counsel contends that the Respondent

was obligated to bargain with the Union because (1) un-

der the theory of Golden State Bottling!° the Respondent

was obligated as a successor to remedy Mosher’s unfair

labor practices relating to refusal to bargain and to the

reinstatement of unfair labor practice strikers and (2)

under the Burns doctrine!! the Respondent was

obligated to bargain as a successor because such obliga-

tion had devolved upon the “successor.”

The Respondent contends in effect that it is not a

successor, that for there to be a successor, there has to

be a termination of the predecessor, that the 1 plant

unit was not the certified unit, that there is a question

of majority status, that an employer is free as a

successor to hire employees it wishes to hire, that

Respondent had an objective basis for doubt of the Un-

ion’s majority status, and that Respondent and Mosher

could decide upon Mosher's remedying the unfair labor

practices,

Considering all of the evidence and the contentions

of the parties, I am persuaded, conclude, and find that

the Respondent was a successor having the obligation

to remedy Mosher Steel’s bargaining obligation and

10 Golden State Bottling Company v. N.L.R.B., 414 U.S. 168 (1913)

11 Burns International Security Service, 406 U.S. 272 (1972)

—

27a

other unfair labor practices as they affected the

Shreveport plant unit, and under the circumstances, as

a successor, to bargain with the Union as to the

Shreveport plant complement.

Under the Burns doctrine, one of the factors for con-

sideration as to a Respondent’s obligation to bargain as

a “successor” is whether there is a question as to ma-

jority status regard the Union. In this case, the certi-

fied bargaining unit covered 7 plants geographically

separated. Normally slight increases or decreases of

employees in a bargaining unit are persumed [sic] not

to affect the majority status of the representative. It

would appear that the presumption of majority accord-

ed a representative as to an overall unit of plants would

be a presumption of equal distribution throughout the

whole unit and that the presumption would apply

equally as to the individual plants involved. Absent

some evidence of employee dissatisfaction or change,

such presumption would continue to constitute

evidence of a majority status throughout the unit was

[sic] well as in the separate parts of the overall unit.

In the instant case, the facts reveal that 65 of 67

employees in the Shreveport plant part of the overall 7

plant unit went out on strike on July 22, 1974. Twenty-

one (21) of such employees returned to work for

Mosher prior to May 12, 1975, and 7 other of such

employees returned to work before December 31,

1975. Twenty-two (22) of such employees who were

unreinstated unfair labor practice strikers and entitled

28a

to reinstatement had not been reinstated as of the time

Respondent commenced operations on January 1 and 5,

1976. As to the unfair labor practices and obligations

regarding refusal to bargain and to reinstatement of

unfair labor practice strikers, the Respondent was

clearly on notice. In addition to the above, the Respon-

dent had employed some 28 employees who had not

been strikers or who had been hired during the strike

against Mosher Steel.

Thus, the bargaining unit of employees consisted of

78 employees. Fifty-six of such employees were actual-

ly employed, and 22 of such employees had a status of

entitlement to reinstatement as unfair labor practice

strikers. It is clear, considering the question of

presumption flowing from the January 18, 1974,

certification, and from the evidence of employee sup-

port for the union by virtue of 65 out of 67 employees

going on strike on July 22, 1974, the evidence that 28 of

such employees were actually employed on January 1

and 5, 1976, and that 22 of such employees were un-

reinstated unfair labor practice strikers entitled to

reinstatement, that the Union enjoyed majority status

on December 17, and 31, 1975, and on January 1, 1976,

and thereafter.

The Respondent contends that there can not be a

successor unless the predecessor has been terminated. |

reject such contention. The question as to

successorship relates to a continuation of the employ-

ing enterprise and whether there are or are not sub-

29a

stantial changes affecting the employee relationship. !2

The Respondent contends that as a successor it is free

to hire the employees it wishes. In a sense this is true.

However, a Respondent obligated to remedy unfair

labor practices of a predecessor in the process of litiga-

tion, including the reinstatement of unfair labor prac-

tice strikers, acts at its peril if it does not reinstate such

unfair labor practice strikers.13 Conceivably, the

Respondent might have hired a complement of

employees including former Mosher Steel Company

employees at Shreveport and including new

employees, and the composition of such employees

might not have comported to the requirements of Burns

as to the tests requiring successorship findings. Ido not

find it necessary in this case to determine the question

of the effect of the unreinstated unfair labor practice

strikers upon the Burns test as to comparison of

employees in the predecessor and the successor except-

ing as to the question as to majority representation

status. The Respondent in this case hired all of the

working employees at the predecessor. Having done so,

the only question remaining is the question of the

12 The essence of Respondent's argument as to termination of

the predecessor is contrary to the Board’s and Court's Decision in

Parkwood IGA, 201 NLRB 905, and Zinn’s Foodliner, Inc., 85 LRRM

3019, enforcement of the Board’s Parkwood IGA Decision.

13 Itis noted that the Board's decision in Mosher Steel Company, 220

NLRB 336, issued on September 16, 1975, prior to Respondent's

taking over and operating the Shreveport plant.

30a

effect of changes upon “majority” status as to repre-

sentation.!4

As indicated above, it is clear that the Union enjoyed

majority status as the collective bargaining repre-

sentative of the employees in the appropriate bar-

gaining unit.15

The Respondent contends in effect that it had an ob-

jective basis for doubting the Union’s majority status in

the appropriate bargaining unit. Essentially, it appears

that the Respondent contends that the fragmentation

of the 7 plant Mosher Steel unit and its purchase and

operation of only 1 of such 7 plants plus the unit’s com-

position of 28 of the employees who were employed as

of the beginning of the strike and of 28 new or non-

striking employees afforded it an objective good faith

doubt as to the majority status of the Union.

Considering the fact that the Shreveport plant com-

plement for the Respondent was determined as of

14 Reinstatement of unfair labor practice strikers involves

reinstatement of such unfair labor practice strikers, discharging if

necessary such replacements as have been hired. Thus, Respon-

dent could have retained the replacement employees and

reinstated the unfair labor practice strikers for a total work com-

plement of 78, or the Respondent could have terminated such

replacements as hired in order to reinstate the unfair labor prac-

tice strikers in accordance with economic needs.

15 The Union would have enjoyed majority status even if some

of the replacement employees had been discharged to make room

for the reinstatement of unfair labor practice strikers.

3la

January 1, and 5, 1976, when attorney Ramsey reject-

ed the Union’s request for bargaining, I am persuaded

that the Respondent did not have a good faith doubt as

to the Union’s majority status. Thus, it is clear that

Respondent was aware of its obligation to reinstate un-

fair labor practice strikers, that 28 of the 56 non-

supervisory employees working had been strikers and

that it was obligated to reinstate 22 unfair labor prac-

tice strikers. Considering this along with the clear

knowledge that there had been determination of unfair

labor practices by its predecessor, I find that the

evidence preponderates for a finding that the Respon-

dent did not have an objective good faith doubt as to the

Union’s majority status.1¢

Considering all of the above, I conclude and find that

under the Burns doctrine, the Respondent had an

obligation on January 1 and 5, 1976, to bargain with the

Union regarding wages, terms, and conditions of

employment of employees in the appropriate bargain-

ing unit. I conclude and find, therefore, that

Respondent’s refusal to bargain with the Union as to

wages, terms, and conditions of employment of

employees in such appropriate collective bargaining

unit constituted a refusal to bargain within the mean-

ing of Section 8(a)(5) and (1) of the Act.17

16 The Respondent's failure to respond to the Union’s offer fora

card-check re majority status is supportive of such finding under

the cireumstances of this case.

17 CF Parkwood IGA, 201 NLRB 905, enforced Zinn’ |

85 LRRM 3019. enforced Zinn’s Foodlines, Inc.

32a

Considering all of the foregoing, I am also persuad-

ed that the Respondent’s obligation to remedy the

refusal to bargain obligations of the predecessor as

such affected the Shreveport plant employees

warrants a finding of refusal to bargain as regards such

employees. | am persuaded that essentially the same

consideration of the refusal to bargain under the Burns

doctrine would apply under the Golden State theory.

Thus, in considering the problem of remedial obliga-

tion, the question is one of practicability in measuring

the interests of the employees and of the employer and

determining an appropriate remedy. Thus, the Respon-

dent was faced with an obligation to remedy a refusal to

bargain by a predecessor as to a 7 plant unit when

Respondent’s had only acquired a 1 plant unit. Such

employees in Respondent’s 1 plant unit were entitled to

remedy of the effects of the predecessor's refusal to

bargain. It isclear that the Respondent was obligated to

tailor its remedy of such action as regards the 1 plant

unit. The facts areclear that the changes involved in ac-

quisition of the 1 plant unit did not destroy the Union’s

majority status. Considering Respondent’s remedial

obligations as to the unfair labor practices and in con-

nection therewith the lack of a good faith doubt as to

majority status, it is clear that the Respondent was

obligated to bargain with the Unionon January 1 and 5,

1976, because its obligation to bargain was fixed by its

obligation to remedy unfair labor practices. In essence,

the same considerations for a bargaining obligation un-

der the Burns theory and under the Golden State theory

are required in the factual context of this case. Insum, |

33a

conclude and find that the Respondent violated Section

8(a)(S) and (1) of the Act because of its admitted refusal

to bargain with the Union as to the appropriate bar-

gaining unit because of its obligation to remedy a

refusal to bargain by the predecessor.

F. The Refusal To Reinstate Unfair

Labor Practice Strikers

The General Counsel alleges and contends and the

Respondent denies that the Respondent dis-

criminatorily refused to reinstate 30 unreinstated un-

fair labor practice strikers after it commenc

operations on or about January 5, 1976.

The General Counsel has several theories of

violative conduct. One contention is that the Respon-

dent had an obligation to reinstate unfair labor practice

strikers and did not do so. Another is that the Respon-

dent engaged in actual discriminatory consideration of

employees for hire and did not hire such alleged 30

employees because they had engaged in an unfair labor

practice strike. Another contention is that the Respon-

dent adversely considered such employees for hire on

an individual basis and on a discriminatory basis

because of their striking activity.

As to the 30 alleged employees contended to have

been discriminated against, the facts reveal that there

were only 22 unreinstated unfair labor practice strikers

entitled to reinstatement by the Respondent when

34a

Respondent commenced operations on January 1and 5,

1976. Such 22 unfair labor practice strikers entitled to

reinstatement by the Respondent pursuant to its

obligation to remedy the predecessor’s unfair labor

practices and to reinstate unfair labor practice strikers

were as follows; George W. Brown, James Cheatham,

L. D. Coleman, Herman Gilliam, Mertin Horton, Jr.,

Claudia V. Johnson, Larry D. McDonald, Edward C.

McLean, Latham Montgomery, Herman L. Patterson,

John M. Patterson, Clyde Pennywell, Joe N. Peyton,

John A. Pouncy, Jr., Cleo Pratt, Robert C. Procell, Lee

G. Taylor, Rickey C. Taylor, Charles H. Thomas, Rufus

Walls, Roosevelt Washington, and Donald G.

Woodward.

The General Counsel had alleged that the Respon-

dent had discriminatorily refused to hire eight other

employees who had been unfair labor practice strikers.

The facts reveal that these eight employees had (with

respect to the predecessor) quit, been reinstated, refus-

ed reinstatement, or were disqualified ,for rein-

statement by conduct on the picket line during the un-

fair labor practice strike against the predecessor —

Mosher Steel Company. Thus in 1974 or 1975, David

O. Anderson, Jerry L. Stallings, and Joseph Tuminello

had all quit employment at Mosher Steel Company.

Johnny L. Roberson had refused reinstatement in 1975.

Employees Benny L. Harris, Charles E. Stiles and

Robert Wilkerson had engaged in misconduct during

the unfair labor practice strike against Mosher Steel

Company and were not entitled to reinstatement as

35a

unfair labor practice strikers.!* Employee Robert W.

Jones had been reinstated and was working on January

1 and 5, 1976.

Two (2) of the 22 unfair labor practice strikers enti-

tled to reinstatement by the predecessor before

December 31, 1975, and by the Respondent pursuant

to its remedial obligations were Lee G. Taylor and

Roosevelt Washington. The Respondent’s contended

reason for refusal to reinstate or hire these two, Taylor

and Washington, was alleged misconduct on the picket

line during the unfair labor practice strike against the

predecessor. In Mosher Steel Company, 226 NLRB No. 180,

it was found that such employees had not engaged in

disqualifying misconduct and were entitled to

reinstatement and back pay. The Respondent was on

notice of such unfair labor practice proceedings at the

time of purchase of the Shreveport plant. The

Respondent's failure of reinstatement of such em-

ployees was one of acting at its peril, and the deter-

mination has been contrary to its contentions.

The facts are clear that unconditional offers to

return‘to work were made to Mosher Steel Company

on May 12, 1975, by the unfair labor practice strikers.

The facts are also clear that the Board’s decision in

Mosher Steel Company, 220 NLRB 336, included (a) find-

ings that the strike from July 22, 1974, to May 12, 1975,

was an unfair labor practice strike, and (b) an order

relating to reinstatement and backpay for unfair labor

18 Mosher Steel Company, 226 NLRB No. 180

36a

practice strikers, including the 22 unreinstated unfair

labor practice strikers referred to herein. Said Board

decision issued on September 16, 1975. The facts are

clear that the Respondent was aware of the pending

unfair labor practice cases.

The Respondent contends in effect that agreements

were made by it with Mosher Steel Company whereby

question of remedy concerning reinstatement of unfair

labor practice strikers would be taken care of by actions

by Mosher Steel. Further evidence was offered and re-

ceived to the effect that, in 1976, Mosher Steel offered

certain of the unreinstated unfair labor practice

strikers jobs at other Mosher Steel plants, with moving

expenses. Certain of such employees accepted such

reinstatement but advised Respondent, Fabsteel, that

they desired reinstatement at the Shreveport plant.

First, parties cannot by private agreements undermine

the responsibilities to comply with the National Labor

Relations Act or remedial orders of the Board. Sec-

ondly, offer of jobs away from the employing enter-

prise which is continuing does not constitute an offer

of reinstatement which effectuates the purposes of the

Act.!9 °

The facts are clear that attorney Wolf, for the Union,

on December 17, 1975, reiterated a request to the

19 See, M. J. McCarthy Motor Sales Co., 147 NLRB 605, and cases

cited therein.

ft on mie

37a

Respondent for reinstatement of such unreinstated

unfair labor practice strikers.2°

The right of reinstatement pursuant to an ad-

judicatory order is a continuing one. It is clear that

Respondent was on notice of such obligation of

reinstatement. As soon as the Respondent became a

successor, which it did on January 1, 1976, such knowl-

edge and obligation blended, and the failure to reinstate

such unreinstated unfair labor practice strikers con-

stituted conduct violative of Section 8(a)(3) and (1) of

the Act.

The General Counsel, as indicated, argued a num-

ber of theories in support of his contention of violative

conduct in refusal to reinstate the unreinstated unfair

labor practice strikers. One theory is that the Respon-

dent actually considered on a discriminatory basis the

selection of the employees for hire. Thus, the General

Counsel contends that the Respondent discrimina-

torily considered and refused to reinstate the unfair

labor practice strikers because of their striking activity.

I am not persuaded that the facts support this conten-

tion excepting with respect to employees Taylor and

Washington. The violative conduct found herein is bas-

ed simply upon the inherent effect of discrimination

flowing from the refusal to reinstate unfair labor prac-

20 Evidence of conversation between Wimberly and Thurman

was introduced relating to offer to return to work in late

December, 1975, and early January, 1976. I found Thurman to

appear the more credible witness and credit his version of facts

over Wimberly’s.

38a

tice strikers who are entitled to reinstatement and who

have made offers to return to work.

As to Taylor and Washington, the facts reveal that

the Respondent refused to consider them for some job

openings because of alleged misconduct as strikers. In

Mosher Steel Company, 226 NLRB No. 180, it was found

that Taylor and Washington had not engaged in dis-

qualifying misconduct during the strike. Under such

circumstances, Respondent’s conduct in refusing to

consider Taylor and Washington for employment con-

stituted conduct violative of Section 8(a)(3)(1) of the

Act.?!

The General Counsel also contended that Respon-

dent discriminatorily considered the unreinstated

strikers for job openings after it commenced operation

on January 1 and 5, 1976. Excepting for the fact that the

unreinstated unfair labor practice strikers were en-

titled to reinstatement, I do not find that the evidence

presented reveals discrimination as to the selection of

employees for job openings. The reasons given for the

individual selection of new employees appeared plausi-

ble.

In sum, I conclude and find that the Respondent's

failure and refusal to reinstate on January 1, 1976, the

22 unreinstated unfair labor practice strikers con-

stituted conduct violative of Section 8(a)(3) and (1) of

the Act.

21 Mosher Steel Company, 226 NLRB 180; Burnup and Sims, 379 US

21.

oe tila

39a

IV. The Effect of the Unfair Labor

Practices Upon Commerce

The activities of the Respondent set forth in Section

III, -above, occurring in connection with the

Respondent’s operations described in section I, above,

have a close, intimate, 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.

V. The Remedy

Having found that the Respondent has engaged in

unfair labor practices, it will be recommended that

Respondent cease and desist therefrom and take cer-

tain affirmative action to effectuate the policies of the

Act.

Respondent’s refusal to recognize and bargain with

the Union in violation of Section 8(a)(5) and (1) of the

Act shall be remedied by an order requiring it to

bargain, upon request, with the Union, as regards

wages, hours, terms, and working conditions of

employment of the employees inthe appropriate single

plant unit found herein, and to embody any under-

standing reached into a signed agreement.

Respondent’s failure and refusal to reinstate certain

22 unreinstated unfair labor practice strikers in viola-

tion of Section 8(a)(3) and (1) of the Act, shall be reme-

40a

died by an order requiring reinstatement and backpay

to the 22 referred to unreinstated unfair labor practice

strikers, excepting for Patterson and Walls who have

now been reinstated, and as to Patterson and Walls, re-

quiring that they receive backpay from January 1, 1976,

to date of reinstatement.22

Backpay due to the discriminatees in this proceeding

shall be computed on a quarterly basis as prescribed in

F. W. Woolworth Co., 90 NLRB 289, with 6 per cent in-

terest thereon in accordance with Isis Plumbing & Heating

Co., 138 NLRB 716.

Because of the character of the unfair labor practices

herein found, the recommended Order will provide

that the Respondent cease and desist from in any other

manner interfering with, restraining, and coercing

employees in the exercise of their rights guaranteed by

Section 7 of the Act.

Upon the basis of the above findings of fact and upon

the entire record in the case, I make the following:

Conclusions of Law

1. The Fabsteel Company of Louisiana, the

Respondent, is an employer engaged in commerce

within the meaning of Section 2(6) and (7) of the Act,

22 The question of Respondent's backpay liability for the time

prior to January 1, 1976, is not presented and apparently left for

resolution in the compliance stage of Mosher Steel Company, 220

NLRB 336.

4la »

and is a successor employer to the Mosher Steel Com-

pany as regards the Shreveport plant employees who

formerly worked for Mosher Steel Company at

Shreveport, Louisiana.

2. United Steelworkers of America, AFL-CIO, is,

and has been at all times material herein, a labor

organization within the meaning of Section 2(5) of the

Act.

3. All production and maintenance employees,

including leadmen, truckdrivers, janitors, and all plant

clericals employed at Respondent’s Shreveport, Loui-

siana plant, excluding guards, watchmen and super-

visors as defined in the Act, constitute a unit ap-

propriate for collective bargaining within the meaning

of Section 9(b) of the Act.

4. At all times since January 1, 1976, and con-

tinuing to date, the Union has been the representative

for the purposes of collective bargaining of the

employees of the unit described above, and, by virtue of

Section 9(a) of the Act, has been, and is now, the ex-:

clusive representative of all the employees in said unit

for the purpose of collective bargaining with respect to

rates of pay, wages, hours of employment and other

terms and conditions of employment.

5. The Respondent, since on or about January 1,

1976, and at all times thereafter, has refused and con-

tinues to refuse to recognize and bargain with the Un-

42a

ion as the exclusive collective bargaining repre-

sentative of all the employees in the Unit described

above with respect to wages, hours, and working con-

ditions and other terms and conditions of employment

for the employees in said unit in violation of Section

8(a)(5) and (1) of the Act.

6. The Respondent, on or about January 1, 1976,

discriminated against unreinstated unfair labor prac-

tice strikers by refusing to reinstate such unfair labor

practice strikers in violation of Section 8(a)(3) and (1) of

the Act.

7. The aforesaid unfair labor practices affect com-

merce within the meaning of the Act.

Upon the foregoing findings of fact, conclusions of

law, and the entire record, and pursuant to Section

10(c) of the Act, I hereby issue the following

recommended:

ORDER?23

Respondent, The Fabsteel Company of Louisiana, its

officers, agents, successors, and assigns, shall:

23 In the event no exceptions are filed as provided by Section

102.46 of the Rules and Regulations of the National Labor

Relations Board, the findings, conclusions, and recommended

Order herein shall, as provided in Section 102.48 of the Rules and

Regulations, be adopted by the Board and become its findings,

conclusions, and Cede: and all objections thereto shall be deemed

waived for all purposes.

< ws

43a

1. Cease and desist from:

(a) Refusing to reinstate or otherwise dis-

criminating against employees in regard to hire or

tenure of employment, or any term or condition of

employment because of their union or protected con-

certed activities, including their engaging in an unfair

labor practice strike, except to the extent permitted by

the proviso to Section 8(a)(3) of the Act.

(b) Refusing to recognize or bargain with the Un-

ion as exclusive collective bargaining representative of

all the employees in the appropriate collective bargain-

ing unit set out below as to wages, hours, terms, and

conditions of employment of such employees.

restraining, or coercing employees in the exercise of

their rights guaranteed in Section 7 of the Act, except

to the extent permitted by the proviso to Section 8(a)(3)

of the Act.

2. Take the following affirmative action which it is

found will effectuate the policies of the Act.

(a) Offer to the employees named below, excep-

ting for Walls and John M. Patterson, immediate and

full reinstatement to the former position held by each

or, if such position is no longer existing, to a substan-

tially equivalent position, without prejudice to each’s

seniority, or other rights previously enjoyed, and make

44a

whole each of the employees named below, including

Walls and John M. Patterson, for any loss of pay or

other benefits suffered as a result of the failure to

reinstate such unfair labor practice strikers on January

1, 1976, in the manner described above in the section

entitled “The Remedy.”

George W. Brown

James Cheatham

L. D. Coleman

Herman Gilliam

Mertin Horton, Jr.

Claudia V. Johnson

Larry D. McDonald

Edward C. McLean

Latham Montgomery

Herman L. Patterson

John M. Patterson

Clyde Pennywell

Joe N. Peyton

John A. Pouncy, Jr.

Cleo Pratt

Robert C. Procell

Lee G. Taylor

Rickey C. Taylor

Charles H. Thomas

Rufus Walls

Roosevelt Washington

Donald G. Woodward

(b) Preserve and, upon request, make available to

the Board or its agents, for examination and copying,

all payroll records, social security payment records,

timecards, personnel records and reports, and all other

records necessary to analyze the amount of backpay

due under the terms and this recommended Order.

ed Steelworkers of America, AFL-CIO, as the exclusive

bargaining representative of the employees in the ap-

propriate collective bargaining unit and, if an un-

derstanding is reached, embody such understanding in

a signed agreement.

ee ee

45a

The appropriate collective bargaining unit is:

All production and maintenance employees,

including leadmen, truckdrivers, janitors and

plant clericals employed at Respondent's

Shreveport, Louisiana plant, excluding

guards, watchmen and supervisors as defined

in the Act.

(d) Post at Respondent’s plant at Shreveport,

Louisiana copies of the attached notice marked

“Appendix.”24 Copies of said notice, on forms provided

by the Regional Director for Region 23, after being

duly signed by Respondent's representatives, shall be

posted by it immediately upon receipt thereof, and be

maintained by Respondent for 60 consecutive days

thereafter, in conspicuous places, including all places

where notices to employees are customarily posted.

Reasonable steps shall be taken by Respondent to in-

sure that said notices are not altered, defaced, or

covered by any other material.

(e) Notify the Regional Director for Region 23, in

writing, within 20 days from the date of receipt of this

Order, what steps the Respondent has taken tocomply

herewith.

24 Inthe event that the Board’s Order is enforced by a Judgment

of a United States Court of Appeals. the words in the notice read-

ing “POSTED BY ORDER OF THE NATIONAL LABOR

RELATIONS BOARD” shall be changed to read “POSTED

PURSUANT TO A JUDGMENT OF THE UNITED STATES

COURT OF APPEALS ENFORCING AN ORDER OF THE

NATIONAL LABOR RELATIONS BOARD.”

46a

Dated at Washington, D.C. April 8, 1977

ls) JERRY B. STONE

Jerry B. Stone

Administrative Law

Judge

231 NLRB No. 50 FJP

D-2782

Shreveport, La.

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

FABSTEEL COMPANY OF LOUISIANA

and Case 23-CA-6008

(formerly 15-CA-6059)

UNITED STEELWORKERS OF AMERICA, AFL-CIO

DECISION AND ORDER

On April 8, 1977, Administrative Law Judge Jerry B.

Stone issued the attached Decision in this proceeding.

Thereafter, Respondent filed exceptions and a support-

ing, brief, and the General Counsel filed a brief support-

ing the Administrative Law Judge’s Decision.

———

ee as

47a

Pursuant to the provisions of Section 3(b) of the

National Labor Relations Act, as amended, the

National Labor Relations Board has delegated its

authority in this proceeding to athree-member panel.

The Board has considered the record and the at-

tached Decision in light of the exceptions and briefs and

has decided to affirm the rulings, findings, and con-

clusions of the Administrative Law Judge and to adopt

his recommended Order,! as modified herein.

ORDER

Pursuant to Section 10(c) of the National Labor

Relations Act, as amended, the National Labor

Relations Board adopts as its Order the recommended

Order of the Administrative Law Judge, as modified

below, and hereby orders that the Respondent,

Fabsteel Company of Louisiana, Shreveport,

Louisiana, its officers, agents, successors, and assigns,

shall take the action set forth in the said recommended

Order, as modified herein:

1. Delete the following from paragraphs 1(a) and

(c):

“Except to the extent permitted by the proviso to

Section 8(a)(3) of the Act.”

1 Since Louisiana is a right-to-work State, we shall delete

references to the proviso to Sec. 8(a)(3) from the recommended

Order and notice.

48a

2. Substitute the attached notice for that of the Ad-

ministrative Law Judge.

Dated, Washington, D.C. August 15, 1977

John H. Fanning, Chairman

Howard Jenkins, Jr... Member

John A. Penello, Member

NATIONAL LABOR

RELATIONS BOARD

(SEAL)

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

Vv.

FABSTEEL COMPANY OF LOUISIANA,

Respondent.

No. 77-3079.

United States Court of Appeals

Fifth Circuit

Jan. 10, 1979.

Oe ee

49a

On Application for Enforcement of an Order of The

National Labor Relations Board.

Before RONEY, RUBIN and VANCE, Circuit Judges.

VANCE, Circuit Judge:

This case comes to us on the National Labor Rela-

tions Board’s petition to enforce its order issued against

Fabsteel Company of Louisiana (Fabsteel) on

September 12, 1977.1

The Board found that by virtue of its purchase of the

Shreveport plant of Mosher Steel Company (Mosher),

Fabsteel was a successor to Mosher with certain

obligations under the National Labor Relations Act.

The Board found that Fabsteel had violated Section

8(a)(3) and (1) of the Act by refusing to fulfill its obliga-

tion to remedy Mosher’s unfair labor practices. The

Board further found that Fabsteel had violated Section

8(a)(5) and (1) of the Act by refusing to bargain with the

United Steelworkers of America, AFL-CIO (the Un-

ion). It ordered Fabsteel to cease and desist from refus-

ing to bargain with the Union, ordered reinstatement

of named employees with back pay and granted other

relief.

Fabsteel presents two issues. (1) Whether a

successor, within these facts, has the obligation to

1 The Board’s decision and order is reported at 231 N.L.R.B. No.

50.

50a

remedy its predecessor’s unfair labor practices by

reinstating unfair labor practice strikers. (2) Whethera

successor, within these facts, had an obligation to

bargain with the Union which was certified as bargain-

ing agent for employees of its predecessor.

The unfolding area of the law of successorship has

been before the Supreme Court on several occasions.

The first was in John Wiley & Sons, Inc. v. Livingston, 376

U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964). That

holding was later described by the court as “properly

cautious and narrow.” Howard Johnson Company, Inc. v.

Detroit Local Joint Executive Board, Hotel and Restaurant

Employees and Bartenders International Union, 417 U.S. 249,

254, 94 S.Ct. 2236, 41 L.Ed.2d 46 (1974). The develop-

ment since Wiley has been on a case by case approach. In

its most recent opinion, the Supreme Court stated:

Particularly in light of the difficulty of the

successorship question, the myriad factual cir-

cumstances and legal contexts in which it can

arise, and the absence of congressional

guidance as to its resolution, emphasis on the

facts of each case as it arises is especially ap-

propriate. The Court was obviously well

aware of this in Wiley, as its guarded, almost

tentative statement of its holding amply

demonstrates.

Howard Johnson, supra, at 256, 94 S.Ct. at 2240. It is

necessary, therefore, that we give particular attention

to the facts in the case before us.

Sla

Factual History

On August 30, 1973, a company wide election was

held at Mosher’s seven plants.? The stipulated unit was

all production and maintenance employees at all seven

plants, including leadmen, truckdrivers, janitors, and

plant clericals.

On January 18, 1974, the NLRB found that the

stipulated unit was an appropriate one and that the Un-

ion had received a majority of the employees’ votes. On

that date the Board certified the Union as the exclusive

representative of Mosher’s employees in the bargain-

ing unit.

On July 22, 1974, a strike involving a great majority

of the employees in the unit commenced. At the

Shreveport plant Mosher had approximately 67

employees in the unit on July 22. Sixty-five of those

employees went out on strike. Mosher hired ap-

proximately 30 new employees and 21 of the strikers

returned to work. The strike concluded at the

Shreveport plant on May 12, 1975. On or about that

same day, Mosher received unconditional offers from

the strikers. None was reinstated at that time. Prior to

December 31, 1975, however, seven employees were

2 The seven plants consisted of plants located at: 3910

Washington and 6422 Esperson Street, Houston, Texas; San An-

tonio, Texas; Dallas, Texas; Lubbock, Texas; Tyler, Texas; and

Shreveport, Louisiana. The case before us concerns incidents aris-

ing out of the Shreveport plant.

52a

returned to work. Another five were refused reinstate-

ment based on grounds of alleged misconduct.

On September 16, 1975, the Board found‘ that

Mosher had engaged in conduct violative of Section

8(a)(5) and (1), and that the strike was an unfair labor

practice strike caused and prolonged by Mosher’s un-

fair labor practices. The Board ordered Mosher to

bargain with the Union and to reinstate unfair labor

practice strikers upon unconditional applications for

reinstatement. We enforced this order on May 14,

1976. Mosher Steel Co. v. NLRB, 532 F.2d 1374 (Sth Cir.

1976).

3 The Administrative Law Judge, whose opinion was adopted in

full by the Board, specifically noted and took into consideration

these five strikers as is evidenced by the following excerpt:

I officially note that the question of such misconduct’s

bearing on the five individual unfair labor practice

strikers’ right to reinstatement was litigated in a proceed-

ing before Administrative Law Judge Jalette. The Board

in Mosher Steel Company, 226 NLRB No. 180, found that

Mosher Steel Shreveport unfair labor practice strikers

Robert Wilkerson, Charles Stiles, and Benny Harris

engaged in striker misconduct justifying a refusal to

reinstate such employees. The conduct of Mosher Steel

Company Shreveport unfair labor practice strikers

Roosevelt Washington and Lee Taylor was found in

effect to be of such a nature as not to impair their rights

to reinstatement as unfair labor practice strikers, and it

was found that the refusal to reinstate Washington and

Taylor violated Section 8(a)(3) and (1) of the Act. Ap-

propriate remedial order of reinstatement and backpay

was issued in said decision on November 24, 1976.

4 The Board’s Decision and Order is reported at 220 N.L.R.B.

No. 47 (1975).

woth” ene

ee ee

53a

Enter Fabsteel

An agreement was entered on December 10, 1975,

between Mosher and Fabsteel for sale to Fabsteel of the

real estate, buildings, structures, machinery and equip-

ment, tangible personal property, raw material and in-

ventory, which constituted Mosher’s Shreveport plant.

At the time of the agreement, Fabsteel was aware of

the Board’s outstanding order against Mosher, and

Fabsteel and Mosher had made arrangements con-

cerning potential back pay and _ reinstatement

obligations. Pursuant to this agreement, Mosher ter-

minated its Shreveport operation on December 31,

1975, and Fabsteel commenced its operation on January

1, 1976. As of December 31 Mosher terminated its en-

tire employee complement which consisted of 56 non-

supervisory employees. On the same day Fabsteel took

applications from all Mosher employees and hired all

interested employees. It commenced operation with

the identical employee complement that Mosher had

prior to its termination.

By letter from its attorney on December 17, 1975,

the Union notified Fabsteel of the Board’s findings and

order relating to Mosher’s obligation to bargain and to

the unfair labor practice strikers’ rights to reinstate-

ment. At that time the Union requested Fabsteel to

bargain and to reinstate the strikers. At all times com-

mencing on or about January 5, 1976, Fabsteel has

refused to bargain with the Union or to reinstate the

strikers.

54a

Fabsteel admits that it is a successor for some pur-

poses, but contends that it is not a successor in the

sense of being obliged to remedy Mosher’s unfair labor

practices or to bargain with the Union. We disagree

with both contentions.

The Successor’s Obligation To Remedy

Unfair Labor Practices

The Board found that Fabsteel violated Section

8(a)(3) and (1) of the Act by failing to reinstate 22 unfair

labor practice strikers. The Board’s determinations

that, at least, the 22 strikers involved here, were unfair

labor practice strikers and were entitled to reinstate-

ment by Mosher is not contested by Fabsteel. Under

settled law, Mosher was obligated to rehire these

strikers. NLRB v. Safeway Steel Scaffolds Company of Georgia,

383 F.2d 273 (Sth Cir. 1967), cert. denied 390 U.S. 955, 88

S.Ct. 1052, 19 L.Ed.2d 1150 (1968). Fabsteel, however,

contends that it has no obligation to reinstate the

strikers.

The Board’s finding that Fabsteel was a successor to

Mosher with an obligation to reinstate the strikers was

based on Golden State Bottling Co. v. NLRB, 414 U.S. 168,

94 S.Ct. 414, 38 L.Ed.2d 388 (1973), which affirmed the

ninth circuit’s enforcement? of a Board order. In that

case, All American Beverages, Inc. had acquired Golden

5 Mosher Steel Company, 220 N.L.R.B. No. 47 (1975).

6 Golden State Bottling Co. v. NLRI

OO aac tsi tne tls

55a

State’s business and continued the business without in-

terruption or substantial change in operation,

employee complement, or supervisory personnel. The

Board found that since All American had acquired the

business with knowledge of an outstanding Board

order to reinstate with back pay adischarged employee,

it was a successor for purposes of the Act and liable for

the reinstatement of the discharged employee with

back pay.

Fabsteel views the present Board holding as an

overstatement of Golden State. It complains that the

Board erred in making an initial determination that

Fabsteel is a successor and then in automatically im-

posing all of Mosher’s obligations on Fabsteel following

such determination of successorship. Although we

agree that such a two step approach would be inap-

propriate” we do not agree that the result achieved by

the Board in this case is incorrect.

7 The Court of Appeals stated that “[t]he first question

we must face is whether Howard Johnson is a successor

employer,” 482 F.2d, at 492, and, finding that it was, that

the next question was whether a successor is required to

arbitrate under the collective-bargaining agreement of

its predecessor, id., at 494, which the court found was

resolved by Wiley. We do not believe that this artificial

division between these questions is a helpful or ap-

propriate way to approach these problems. The question

whether Howard Johnson is a “successor” is simply not

meaningful in the abstract. Howard Johnson is of course

a successor employe. in the sense that it succeeded to

operation of a restaurant and motor lodge formerly

operated by the Grissoms. But the real question in each

of these “successorship” cases is, on the particular facts,

what are the legal obligations of the new employer to the

employees of the former owner or their representative?

56a

Golden State addressed the correct decisional process

as follov s:

The Board’s decisional process in the Perma

Vinyl line of cases has involved striking a

balance between the conflicting legitimate in-

terests of the bona fide successor, the public,

and the affected employee. What we said of

the Board’s decisional process in another con-

text is pertinent here:

“The ultimate problem is the balancing of

the conflicting legitimate interests. The

function of striking that balance to effec-

tuate national labor policy is often a dif-

ficult and delicate responsibility, which

the Congress committed primarily to the

National Labor Relations Board, subject

The answer to this inquiry requires analysis of the in-

terests of the new employer and the employees and of the

policies of the labor laws in light of the facts of each case

and the particular legal obligation which is at issue,

whether it be the duty to recognize and bargain with the

union, the duty to remedy unfair labor practices, the duty

to arbitrate, etc. There is, and can be, no single definition

of “successor” which is applicable in every legal context.

A new employer, in other words, may be a successor for

some purposes and not for others. See Golden State Bottling

Co. v. NLRB, 414 U.S. 168, 181, 94 S.Ct. 414, 423, 38

L.Ed.2d 388 (1973). International Ass'n of Machinists v. NLRB,

134 U.S.App.D.C. 239, 244, 414 F.2d 1135, 1140 (1969)

(Leventhal, J., concurring); Goldberg, The Labor Law

Obligations of a Successor Employer, 63 Nw.U.L.Rev.

735 (1969); Comment, Contractual Successorship: The

Impact of Burns, 40 U.Chi.L.Rev. 617, 619 n. 10(1973).

Howard Johnson Co. v. Detroit Local Joint Executive Board, Hotel and

Restaurant Employees and Bartenders International Union, supra, 417 U.S. at

263, n. 9, 94 S.Ct. at 2243 n. 9.

57a

to limited judicial review.” NLRB v. Truck

Drivers Local Union 449 International

Brotherhood of Teamsters, 353U.5S. [sic] 87, 96,

77 S.Ct. 643, 648, 1 L.Ed.2d 676 (1957).

The Board’s Perma Vinyl principles introduced into

the balancing process an emphasis upon protection for

the victimized employee:

“Especially in need of help, it seems to us, are

the employee victims of unfair labor prac-

tices who, because of their unlawful dis-

charge, are now without meaningful remedy

when title to the employing business opera-

tion changes hands.” 164 N.R.L.B., at 969.

Golden State Bottling Co., supra, 414 U.S. at 181,94S.Ct. at

423. In the case before us the Board properly balanced

the equities. Its findings are supported by the record

and are therefore due to be enforced. Universal Camera

Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456

(1951).

Fabsteel contends, however, that in balancing the

equities the Board failed to take into consideration the

fact that Mosher could reinstate these employees at

other plants and that it also did not adequately consider

the hardship that would be visited upon those

employees hired to replace the strikers.

58a

The first of these contentions was disposed of in the

Administrative Law Judge’s opinion, adopted in full by

the Board:

Further evidence was offered and received to

the effect that, in 1976, Mosher Steel offered

certain of the unreinstated unfair labor prac-

tice strikers jobs at other Mosher Steel plants,

with moving expenses. Certain of such

employees accepted such reinstatement but

advised Respondent, Fabsteel, that they

desired reinstatement at the Shreveport

plant. First, parties cannot by private

agreements undermine the responsibilities to

comply with the National Labor Relations Act

or remedial orders of the Board. Secondly,

offer of jobs away from the employing enter-

prise which is continuing does not constitute

an offer of reinstatement which effectuates

the purposes of the Act.19

19 See, M. J. McCarthy Motor Sales Co., 147

NLRB 605, and cases cited therein.

The Board’s position finds support in cases involving

reinstatement of strikers in other situations not in-

volving successorships. See NLRB v. Madison Courier, Inc.,

153 U.S.App.D.C. 232, 472 F.2d 1307 (1972); Florence

Printing Co. v. NLRB, 376 F.2d 216 (4th Cir.), cert. denied

389 U.S. 840, 88 S.Ct. 68, 19 L.Ed.2d 104 (1967).

59a

The second contention is equally lacking in merit. We

have recently held in a case not involving a

successorship that unreinstated unfair labor practice

strikers are entitled to reinstatement regardless of the

fact that permanent replacements have been hired.

NLRB v. Pope Maintenance Corp., 573 F.2d 898 (Sth Cir.

1978). We perceive no reason to change the law because

a successor is involved. This is especially true when the

successor has knowledge of an outstanding Board

order requiring reinstatement.

The Successor’s Obligation to Bargain

The second issue is whether substantial evidence on

the record as a whole supports the Board’s finding that

Fabsteel had an obligation to bargain with the Union as

a representative of its employees.

Fabsteel contends that it had doubt that the

employees hired by it had an allegiance to the Union

and a desire for representation by it. The employer

relies on NLRB v. Burns International Security Services, Inc..

406 U.S. 272, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972) and its

holding that a successor has a right to refuse recogni-

tion of a union when it reasonably entertains a good

faith doubt of such majority. Id. at 278-279, 92 S.Ct.

1571.

The Board found, however, that the certification was

binding on Fabsteel and that it had no reasonable basis

for a good faith doubt of the Union’s majority status. It

60a

found that Fabsteel’s refusal to recognize and bargain

with the Union was a violation of Section 8(a)(5) and (1)

of the Act. NLRB v. Leatherwood Drilling Co., 513 F.2d 270,

272 (Sth Cir.), cert. denied, 423 U.S. 1016, 96 S.Ct. 449, 46

L.Ed.2d 387 (1975).

We agree that substantial evidence supports the

finding of no reasonable ground for a good faith doubt

of the Union’s continuing majority status. Under Uni-

versal Camera Corp. v. NLRB, supra, this conclusion is suf-

ficient for enforcement of the Board’s order. Because of

the novelty of the issue, however, we shall examine

Fabsteel’s contentions more closely than otherwise

would be required.

Fabsteel contends that after recognizing that the

unit had changed within the meaning of Burns, the

Board relied on mathematics to find majority status

and misapplied the arithmetic. Fabsteel argues that

there necessarily has been a change in the bargaining

unit because a seven plant unit was certified and it

purchased only one of those seven plants.

The Board did not find that the unit had changed

within the meaning of Burns:

Under the Burns doctrine, one of the factors

for consideration as to a Respondent’s obliga-

tion to bargain as a “successor” is whether

there is a question as to majority status regard

the Union. In this case, the certified bargain-

6la

ing unit covered 7 plants geographically

separated. Normally slight increases or

decreases of employees in a bargaining unit

are persumed [sic] not to affect the majority

status of the representative. It would appear

that the presumption of majority accorded a

representative as to an overall unit of plants

would be a presumption of equal distribution

throughout the whole unit and that the

presumption would apply equally as to the in-

dividual plants involved. Absent some

evidence of employee dissatisfaction or

change, such presumption would continue to

constitute evidence of a majority status

throughout the unit was [sic] well as in the

separate parts of the overall unit.

We do not read Burns, as Fabsteel suggests, to exclude

the present situation from control by the stated rule.

The Burns court specified two such exclusions, neither

of which encompassed our situation:

It would be a wholly different case if the

Board had determined that because Burns’

operational structure and practices differed

from those of Wackenhut, the Lockheed

bargaining unit was no longer an appropriate

one. Likewise, it would be different if Burns

had not hired employees already represented

by a union certified as a bargaining agent... .

But where the bargaining unit remains un-

62a

changed and amajority of the employees hired

by the new employer are represented by a

recently certified bargaining agent there is lit-

tle basis for faulting the Board’s implementa-

tion of the express mandates of § 8(a)(5) and §

9(a) by ordering the employer to bargain with

the incumbent union. This is the view of

several courts of appeals and we agree with

those courts. NLRB v. Zayre Corp., 424 F.2d

1159, 1162 (CAS 1970); Tom-A-Hawk Transit,

Inc. v. NLRB, 419 F.2d 1025, 1026-1027 (CA7

1969); S. S. Kresge Co. v. NLRB, 416 F.2d 1225,

1234 (CA6 1969); NLRB v. McFarland, 306 F:2d,

[219] at 220.

Burns, supra, 406 U.S. at 280, 92 S.Ct. 1571, 1579 (foot-

notes omitted).

Fabsteel concedes that the Shreveport plant was a

separate appropriate unit for bargaining. Although it

was not obligated to do so,’ it chose to hire the inden-

tical employee complement. Our enforcement of the

Board’s order requiring Fabsteel to reinstate the unfair

labor. practice strikers makes it quite apparent that a

majority of Fabsteel’s employees after such reinstate-

ment will be represented by the certified Union.

8 The Board has never held that the National Labor

Relations Act itself requires that an employer who sub-

mits the winning bid for a service contract or who

purchases the assets of a business be obligated to hire all

of the employees of the predecessor though it is possible

that such an obligation might be assumed by the

employer. But cf. Chemrock Corp., 151 N.L.R.B. 1074 (1965).

NLRB. Burns International Security Services, Inc., supra, at 406 U.S. 280

n.5, 92 S.Ct. at 1578 n.5.

ities: wet al eee iat

63a

From the holding in Burns, Fabsteel would have us ex-

trapolate a rule that if there were a change in the cer-

tified unit no obligation to bargain would survive.

Fabsteel does not attempt to state what type of change,

if any, would merit such a conclusion. The Supreme

Court has not given meaningful indication as to what

specific type of change, if any, in a unit would warrant a

refusal to bargain absent at least a good faith doubt as

to the majority status of the Union’s representation. A

few courts have opined that changes, which are at least

analogous to what Fabsteel contends is a change here,

do not relieve a successor of its obligation to bargain

with the Union. The Board has long held, with court

approval, that under proper circumstances, the obliga-

tion to bargain with an incumbent union may be found

although the work force is considerably diminished by

the transfer. See, e. g., NLRB v. Polytech, Inc., 469 F.2d

1226, 1230 (8th Cir. 1972); NLRB v. McFarland, 306 F.2d

219, 221 (10th Cir. 1962); NLRBo. Armato, 199 F.2d 800,

803 (7th Cir. 1952). The Board, with court approval,

has similarly found a bargaining obligation though the

transfer in ownership results in a division of the bar-

gaining unit into two or more separate units, where, as

here, each unit is independently appropriate. Nazareth

Regional High School v. NLRB, 549 F.2d 873, 880 (2nd Cir.

1977); Zim’s Foodliner, Inc. v. NLRB, 495 F.2d 1131, 1141

(7th Cir.), cert. denied 419 U.S. 838, 95 S.Ct. 66, 42

L.Ed.2d 65 (1974); N.L.R.B. v. Geronimo Service Co., 467

F.2d 903 (10th Cir. 1972); Ranch-Way, Inc., 445 F.2d 625

(10th Cir. 1971), vacated and remanded on other grounds, 406

U.S. 940, 92 S.Ct. 2037, 32 L.Ed.2d 328 (1972). As the

seventh circuit has stated,

64a

Once it is determined that the successor unit

is appropriate for bargaining, a change in unit

definition, from large to smaller units, would

seem not to raise any additional con-

siderations beyond those [posed by a

numerical diminution in unit size].

Zim’s Foodliner, Inc. v. NLRB, supra, at 1141.

Finally, we do not agree that the Board’s arithmetic

was misapplied. By either of two approaches, the status

of the Union’s majority is not susceptible of a good faith

doubt. Twenty-one of the 56 employees that Fabsteel

had employed were strikers who had returned to work.

No inference could be drawn that the employees who

returned to work prior to the conclusion of the strike

had abandoned the Union. Nazareth Regional High School

v. NLRB, supra at 880. Seven of the 56 had been strikers

who had been reinstated. Our arithmetic and the

Board’s adds up to 28 union employees, which is 50% of

the employee complement. Since we have already con-

cluded that Fabsteel was obligated to reinstate the 22

unfair labor practice strikers the 22 strike replacements

could not be counted. NLRB v. Frick Co., 423 F.2d 1327,

1334 (3rd Cir. 1970). The bottom line under this ap-

proach adds up to 28 out of 34, a clear majority.

The other approach similarly supports the Board’s

finding. The bargaining unit consisted of 78 employees. |

Fifty six of these emp:oyees were actually employed

and an additional 22 are entitled to reinstatement.

65a

Twenty eight of the 56 were union supporters who had

been out on strike. Together with the 22 who are en-

titled to reinstatement this makes a total of 50 out of

78, again a clear majority.

ENFORCED.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

versus No. 77-3079

FABSTEEL COMPANY OF LOUISIANA,

Respondent.

JUDGMENT

Filed: Feb. 1, 1979

Before: Roney, Rubin and Vance, Circuit Judges.

THIS CAUSE came on to be heard upon an applica-

tion of the National Labor Relations Board for the en-

‘forcement of a certain order issued by it against

Respondent, Fabsteel Company of Louisiana,

Shreveport, Louisiana, its officers, agents, successors

66a

and assigns on August 15, 1977. The Court heard argu-

ment of respective counsel on July 20, 1978 and has

considered the briefs and transcript of record filed in

this cause. On January 10, 1979, the Court being fully

advised in the premises, handed down its opinion

granting enforcement of the Board’s order.

ON CONSIDERATION WHEREOF, it is hereby

ordered and adjudged by the United States Court of

Appeals for the Fifth Circuit that the said order of the

National Labor Relations Board in said proceeding be

enforced, and that Fabsteel Company of Louisiana,

Shreveport, Louisiana, its officers, agents, successors

and assigns abide by and perform the directions of the

Board in said order contained.

Costs are taxed against the respondent.

ENTERED: FEB. 1, 1979

ISSUED AS MANDATE: APR. 4, 1979

A true copy

Test! EDWARD W. WADSWORTH

Clerk, U.S. Court of Appeals, Fifth Circuit

ls) BRENDA HAUCK

Deputy

New Orleans, Louisiana

APR. 4, 1979

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.