Knoch, Senior Circuit Judge, Kiley and Fairchild, Circuit Judges. Knoch, Sen. C. J. (dissenting in part).
This case is before us on petition of HLH Products, Division of Hunt Oil Co., to review an order of the National Labor Relations Board. The board petitioned for enforcement.*fn1
The company operates a number of canneries. The plant involved here is located at Muncie, Indiana. It has normally packed tomatoes from August to early October and potatoes thereafter, depending upon availability, until some date in the spring.
Local 135, Teamsters, was bargaining agent for production, maintenance, and warehouse employees. This unit included some 100 workers. There was a year-round work force and additional temporary help was usually employed during the tomato season.
On February 4, 1965, the company closed the plant and terminated all but a few employees. In July, however, it began to recruit for the tomato season, and proceeded to operate. It sought workers through the Indiana Employment Security Division. It did not directly recall its old employees in the bargaining unit, although it arranged with the Division to send letters inviting them to apply at the Division office. It continued in operation and packed potatoes, starting in October.
Approximately 600 applicants were hired by the company, including some former employees. Sixty to 65 out of the 100 employees who were in the unit in February, 1965, were not reemployed. A number of these applied to the company but were rejected.
The trial examiner made findings and concluded therefrom (1) that the company violated section 8(a)(3) and (1) of the Act by refusing to recall and reemploy 65 employees because of their union activity; (2) that it violated section 8(a)(5) and (1) by refusing to bargain on and after July 23, 1965; and (3) that it violated section 8(a)(1) by coercively interrogating employees about their union activity and by threatening to discontinue operations rather than to operate a unionized plant.
The board adopted the findings and conclusions of the trial examiner, except with respect to certain reasoning concerning the refusal to bargain and the justification for a bargaining order. The order. The order here under review, includes, among others, a requirement that the company bargain collectively with the union upon request, as well as offer reinstatement and replace lost earnings.
1. The finding of an unfair labor practice by discrimination on account of union activity.
It is clear that less than 40% of the employees in the bargaining unit on February 4, 1965 were put back to work in August. The company contends that the failure to employ others did not result from unlawful discrimination. It appears to be the company view that Mr. Hunt decided in February to close the Muncie plant because it was losing money; that he made unsuccessful efforts to sell; that he decided to operate again so that the plant would be more readily salable; that management doubted the desire of its former employees to return after five months and decided it would be easier to recruit through the state employment service; that the former employees who were interested in working had an equal chance with all other prospects; that failure of any former employee to obtain a job was fortuitous, due either to not being called by the state employment service in random selection from its pool of prospects, or to the fact that an appropriate job was not available when a former employee applied at the plant.
The record contains a wealth of evidence that the company had been aggressive in its opposition to the union in the past. There was testimony that management promoted a decertification petition in 1964, and sent representatives to tell employees individually and in groups that the plant would be closed unless the union were voted out. The union won the election in July, 1964, by a vote of 65 to 25.
There was testimony that supervisors remarked in February, 1965, that the plant was closed on account of the union, and at the time of reopening that union adherents were not wanted. In July and August, the union's business representative wrote the company asking that the old employees be recalled, but these requests were denied.
The trial examiner pointed out that the former employees appeared to be a competent work force and that the natural thing for the company to do would have been to follow its former practice and recall its employees; that many persons referred by the state employment service worked a day or less, but that the company did not hire old and reliable employees who applied at the plant; that anti-union statements ...