Allied Maintenance Corp.

National Labor Relations Board - Board Decisions

Mar 22, 1971

189 N.L.R.B. 179 (N.L.R.B. 1971)

ALLIED MAINTENANCE CORPORATION 179
Allied Maintenance Corporation and Vincent Marsh.
Case 29-CA-1881
March 22, 1971
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On November 5, 1970, Trial Examiner John G.
Gregg issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter,
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case, and finds merit in
Respondent's exceptions. Accordingly, we shall dis-
miss the complaint for reasons set forth hereinafter.
Respondent provides skycap services for airlines at
various airports, including the American Airlines
terminal at LaGuardia Airport in New York. Vincent
Marsh, the Charging Party, was employed by Respon-
dent as a skycap at this terminal. Marsh was a
member of Local 290, United Transport Service
Employees, AFL-CIO (UTSE), which had a collec-
tive-bargaining contract with Respondent for a unit
of skycaps, skycap captains, doormen, and interline
baggage men employed at LaGuardia Airport.
On August 1, 1969, Marsh was involved in an
altercation with an airline passenger and in violation
of a posted rule forbidding such conduct boarded an
American Airlines plane without authorization. Res-
pondent immediately suspended Marsh and appar-
ently scheduled a grievance hearing for August 8. On
August 6, American Airlines notified Respondent
that it did not want Marsh to work at its terminal. On
August 8, Respondent notified Marsh that his
employment was terminated for refusing to attend the
hearing.
Because Marsh claimed that he had not been
notified of the August 8 hearing, Respondent sched-
uled a new grievance hearing for August 22. Prior to
this hearing, Marsh contacted Glenroy Atkinson, who
is employed by Respondent as a skycap captain at the
Kennedy Airport, also in New York. Atkinson, who
was a member of Local 298, UTSE, and also an
International representative of UTSE, was appointed
by the Union to handle employee grievances. Atkin-
son arranged a meeting with officials of American
Airlines in order to try to persuade American to
withdraw its demand that Marsh not be permitted to
work at the LaGuardia terminal. Despite Marsh's
apology, American Airlines adhered to its demand
that Marsh be removed from its terminal. At the
grievance meeting on August 22, Marsh's grievance
was rejected by Respondent. Respondent explained
that it could not force American Airlines to take
Marsh back. Since American Airlines' contract with
Respondent contained a 30-day termination clause,
American could cancel the contract with Respondent
and thus terminate all Respondent's employees at the
terminal if Respondent insisted on the restoration of
Marsh to his former job. But while Respondent
rejected Marsh's grievance, it offered Marsh a job at
Kennedy Airport. Marsh accepted the Kennedy job,
but later changed his mind and turned the job down
when he discovered that the work hours conflicted
with his college schedule.
The issue as formulated in the complaint is a narrow
one: whether by permitting Atkinson, an alleged
supervisor, to act for Marsh at the grievance heating
Respondent violated Section 8(a)(1) of the Act.
Respondent contends that Atkinson was not a
supervisor. But assuming that he was a supervisor,
Respondent further argues that at most he was a low-
level supervisor, and his representation of Marsh at
the grievance hearing did not prejudice any of
Marsh's rights. The Trial Examiner found that
Atkinson was a supervisor and that by permitting
Atkinson to represent Marsh Respondent violated
Section 8(a)(1).
The issue of whether Atkinson is a supervisor is an
exceedingly close one. Even assuming arguendo that
the Trial Examiner correctly found that Atkinson was
a supervisor, it is clear as urged by Respondent that he
was a low-level one. He was a member of UTSE,
although of a different local than Marsh and was
included in the same bargaining unit as skycaps,
although at the Kennedy Airport.2 He was a working
skycap who pooled his tips with other skycaps. He
had no authority to hire, fire, layoff, recall, promote,
or discipline employees. He did not handle grievances
for Respondent. The Trial Examiner found that he
I The Respondent has requested oral argument. This request is hereby 2 At LaGuardia Airport skycap captains were also included in the same
denied because the record, the exceptions, and the brief adequately present unit with skycaps
the issues and the positions of the parties
189 NLRB No. 29
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was a supervisor on the basis that he could assign
skycaps to positions where they were needed, and
could order or recommend that a skycap who
reported unfit for duty return home. But neither of
these duties could possibly conflict with Atkinson's
representation of Marsh. There is no evidence that
Respondent had anything to do with Atkinson's
appointment to represent Marsh. As noted, the
selection was made by the Union and Marsh
contacted Atkinson. There is no evidence that
Respondent interfered with Atkinson's intraunion
activities, or with his representation of Marsh. There
is no complaint that the Union or Atkinson did not
fairly represent Marsh. In these circumstances, we
believe with Respondent that the Board's decision in
Beach Electric Co., Inc., NLRB No. 39, dictates a
dismissal of the complaint. In that case, the Board
found that an employer had not violated Section
8(a)(2) by the fact that several "low level and
intermittent supervisors" were officers of the union.
The Board relied on the facts that the supervisors were
included in the bargaining unit, and there was no
evidence that the employer ever interfered in any
specific union activity or ratified the union activity of
any of the supervisors. All these factors are equally
present in this case. It is true that Beach involved an
allegation of violation of Section 8(a)(2), whereas in
this case the allegation is that Respondent violated
Section 8(a)(1). But the principle relating to an
employer's responsibility for the intraunion activities
of a low-level supervisor is the same.3 Accordingly, we
find, contrary to the Trial Examiner, that Respondent
did not violate Section 8(a)(1) of the Act by permitting
Atkinson to act for Marsh in a grievance proceeding.
We shall therefore dismiss the complaint.4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
3 E E E Co, Inc, 171 NLRB No 137, upon which the Trial Examiner
relied in making his finding of a Section 8(a)(1) violation is readily
distinguishable In that case the Board found that an employer had
violated Section 8(a)(2) by permitting a foreman to act as union steward
However this foreman was the employer 's only supervisor and he not only
assigned work but could effectively recommend hiring and firing Thus the
foreman's supervisory duties were not marginal and he was not a "low level
supervisor " Hence , the foreman steward , who handled grievances for
employees and represented them in contract negotiations , was involved in a
real conflict of interest Such is not the case here
4 In view of our decision to dismiss the complaint, we find it
unnecessary to consider Respondent 's further argument that the complaint
should be dismissed as moot because in another case (Case 29-CA-1814), a
settlement agreement was entered into whereby Atkinson resigned from his
position as international representative of UTSE, and Respondent posted a
notice that it would not recognize any supervisor for the purpose of
handling grievances
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN G. GREGG, Trial Examiner This case was initiated
upon a complaint of the General Counsel of the National
Labor Relations Board , herein called the Board , based on a
charge filed by Vincent Marsh on December 17, 1969,
alleging that Allied Maintenance Corp. of New York, New
York, herein called the Respondent or the Company, had
engaged in an unfair labor practice within the meaning of
Section 8(a)(1) of the National Labor Relations Act. The
Respondent 's answer denied the commission of any unfair
labor practices . Pursuant to notice , a trial was held before
me at Brooklyn , New York, on September 2, 1970. All
parties were afforded full opportunity to appear, to
examine and cross-examine witnesses , and to submit briefs.
Briefs were submitted by counsel for the General Counsel
and by counsel for the Respondent Company, and have
been carefully considered.
Upon the entire record in this case , and from my
observation of the witnesses and their demeanor while
testifying, I make the following:
FINDINGS OF FACT
1. JURISDICTION
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 New York.
At all times material herein, the Respondent has
maintained its principal office and place of business at 2
Pennsylvania Plaza, in New York, New York, herein called
the main office, and places of business at various airports in
the State of New York, New Jersey, and other States, where
it is, and has been at all times material herein , continuously
engaged in providing skycaps, baggage handlers, and
related services at airports involving the loading and
unloading of commercial passenger airlines.
The Respondent annually performs services valued in
excess of $500 ,000 of which services worth in excess of
$50,000 were performed for interstate airline carriers,
which enterprises are instrumentalities of commerce, each
having annual gross revenues in excess of $50,000 from
their interstate operations.
The Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(2), (6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 290, United Transport Service Employees, herein
called the Union , is, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges essentially that Glenroy Atkinson,
at all times material herein was a supervisor within the
meaning of Section 2(11) of the Act; that he was an
international representative of the Union, whose duties
ALLIED MAINTENANCE CORPORATION
included the handling of grievances and arbitrations, acting
on behalf of the Union; that on August 23, 1969, a hearing
was held pursuant to a collective-bargaining agreement in
effect between the Respondent Allied and the Union, the
issue being whether Charging Party Marsh had been
discharged for cause under the terms of the aforesaid
agreement ; that Atkinson, was permitted by the Respon-
dent Allied to appear and act on behalf of the Union as the
representative of Charging Party Marsh at said hearing;
and that by the foregoing acts the Respondent Allied
interfered with, restrained, and coerced its employees in
their exercise of rights guaranteed them by Section 7 of the
Act in violation of Section 8(a)(1) of the Act.
A. The Chronology
There is no material dispute as to the factual background
herein. The Respondent Allied is engaged in the business of
providing skycaps, baggage handlers, and related services
at airports all over the country, including LaGuardia and
the John F. Kennedy Airports. The Respondent has
contracts with various airlines including American Airlines
at LaGuardia Airport as at other airports around the
country where it provides the foregoing service. In addition
the Respondent has collective-bargaining agreements with
Local 290 United Transport Service Employees, AFL-CIO,
and with other unions.
Testimony by Charging Party Vincent Marsh, largely
uncontradicted herein, established that on August 1, 1969,
Marsh was employed as a skycap by the Respondent at
LaGuardia Airport. He was also a member of the Union.
On that date he became involved in a dispute with an
American Airlines passenger at the terminal. According to
Marsh the passenger had arrived at the terminal in a cab,
with a large box, which Marsh had some doubt about
handling because of its size . According to Marsh the
passenger became offensive but Marsh left the scene. In a
subsequent encounter a few minutes later, the same
passenger became offensive again. Marsh secured permis-
sion of his sky captain to get a policeman to have the
passenger arrested. He found a Port Authority patrolman,
and they proceeded to board the aircraft, followed a minute
or two later by several American Airlines supervisors.
Marsh was asked whether he wanted to press charges
against the passenger and he said he would rather have an
apology. When the passenger refused to apologize Marsh
was ordered off the plane. The record indicates that an
American Airlines rule posted on the Respondent's bulletin
boards prohibited skycaps from boarding planes without
authorization.
The Respondent thereupon suspended Marsh and a
grievance hearing was set for August 8. Glenroy Atkinson,
who is employed as a skycap captain for the Respondent at
the John F. Kennedy Airport and who is also a member of
the Union, was designated by the Union to represent Marsh
at the hearing. Atkinson attended the hearing on August 8,
but Marsh failed to appear. Following this the Respondent
notified Marsh that his employment was terminated. Marsh
stated he had not been notified of the hearing.
According to Marsh he felt that the parties had acted
"behind my back" and that he had no one to represent him.
He then went to get his own attorney. The attorney
181
requested another hearing which was then scheduled for
August 23, 1969.
According to Marsh, prior to this date in a discussion
with Atkinson he had been informed by Atkinson
essentially that Atkinson's hands were tied because the
Respondent did not want to jeopardize its contract with
Amencan Airlines. When the hearing convened Marsh's
attorney was barred from appearing and was ordered to
leave by representatives of the Respondent, and the hearing
took place with Atkinson representing Marsh. Marsh stated
that after the hearing on August 23 he told Atkinson he
would like to go to arbitration but Atkinson stated that the
Union did not have the funds needed to do so, that
Atkinson would have to get his own attorney.
Subsequently on September 17, 1969, Marsh received a
letter from the Respondent notifying him that following the
hearing the Respondent concluded he was properly
discharged but that based on mitigating circumstances he
was offered two employment opportunities-one at John F.
Kennedy Airport as a baggage handler with the opportuni-
ty to bid a skycap job; the other at Neward Airport for the
first available skycap job. On September 24, Marsh replied
accepting the offer at John F. Kennedy Airport. When
Marsh subsequently reported to work he found that he was
on the night shift which conflicted with his schools hours.
He then refused the job. Based on my observation of the
witnesses Marsh as he testified and the largely uncontrad-
icted aspect of his testimony, I credit Marsh's version of the
events that transpired.
B. The Status of Atkinson
Section 2(11) of the Act defines the term supervisor as
any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other employees, or
responsibly to direct them, or to adjust their grievances, or
effectively to recommend such action, if in conclusion with
the foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the use of
independent judgment.
It is well settled that to be classed as a supervisor a person
need only have one or more of the types of authority
specified in the definition, not all of them, the qualifications
applicable in the disjunctive. The Board has held that an
employee who has authority responsibly to direct other
employees, not merely routine in nature, but requiring the
exercise of independent judgment is a supervisor within the
meaning of the definition. Ohio Power Co. v. N.L.R.B., 176
F.2d 385 (C.A. 6). Based on my careful consideration of the
testimony of record bearing on Atkinson's status I am
convinced and I find that he was, at the time material
herein, a supervisor within the meaning of the Act. In so
finding I have taken the following factors into account,
both separately and in their cumulative effect.
First, the testimony of Marsh whom I credit as a
straightforward sincere witness indicating that when a
skycap is improperly attired or unfit for duty the sky
captain, in the absence of a supervisor, will order him to
leave the floor. Secondly, testimony of record establishing
the fact that for substantial periods of time neither the
manager nor his assistant, allegedly the only supervisors at
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the operation were physically present at the operation to
discharge the supervisory function of management. The
manager and his assistant, according to the Respondent,
even when at home were readily available at the other end
of a telephone. It would seem to me that the basic tenets of
good management would require the physical presence of a
supervisor for consultation, problem solving, and direction,
particularly at a viable operation such as that at LaGuardia
Airport, with its thousands of travellers incessantly pouring
in and out and its myriad of problems in logistics and
human relations. I am convinced from the record that this
wide gap in the provision of the supervisory function for
skycaps in the terminal operation was filled by the presence
of the skycap captains. Marsh testified credibly that skycap
captains ordered skycaps to leave the floor when improper-
ly attired or unfit for duty, and provided the direction
necessary to keep the operation functioning properly in the
absence of the general manager and his assistant. I also
credit Marsh's testimony that on occasion skycaps who
came in late or drunk were sent home by sky captains.
In his testimony Sky Captain Atkinson stated that he had
no authority with respect to the hiring, transferring,
suspension, lay off, recall, promotion, discharge, and
discipline of other employees, nor did he make effective
recommendations with respect to such actions He stated
that he was a working skycap and pooled his tips with the
other skycaps at John F. Kennedy Airport where he was
employed. This testimony was largely corroborated by
Shaw, manager of skycap operations for the Respondent.
Shaw also stated that all skycap captains, skycaps, and
union personnel with whom the Respondent dealt were
specifically advised that the Respondent did not expect one
union man to take any disciplinary action against other
union men. However, the record indicates that in practice
the skycap captain, while within limitations of numbers of
personnel and prior selection of personnel for various
shifts, did assign skycaps as required for specific functions,
to provide wheel chair service, to rearrange positions in
covering for lunch periods.
A careful analysis of Shaw's testimony and its substance
leads me to the conclusion that the Respondent did not
interdict sky captains from disciplining skycaps. Shaw's
testimony emphasized the Respondent's laudatory objec-
tive of maintaining harmonious relationships between sky
captains and skycaps and achieving a high esprit-de-corps
among all union members. However he stated that the
Company's instructions were that "we do not expect any
skycap captain who is a member of the union, and they all
are members of the union, to take any disciplinary action
against another union member who is a skycap." (Emphasis
supplied.) Shaw went on to state, "We only say this for the
job security of the operation and every individual, that in
the event a man creates an embarrassing situation or gets
himself into a problem, or should . . . come to work under
the influence or be out of the proper uniform, we ask him to
recommend to that individual that he get into the proper
uniform, check out sick, personal business, but don't
jeopardize the job for not just Allied, but for all the
employees."
Shaw continued his testimony by indicating that from his
experience when sky captains were queried by management
about the absence of specific individual skycaps the sky
captains would on occasion state that they had recom-
mended he go home, or that he wasn't fit for work.
In my opinion the Respondent, while carefully avoiding
the admission of a direct grant of authority to sky captains,
has in fact established on this record that it provided sky
captains with authority to effectively discipline skycaps by
encouraging sky captains to "recommend" rather than to
"order" a skycap to go home when unfit for duty, or
otherwise causing a problem. While this may seem an
exercise in semantics, I am persuaded that the Respondent
in fact clothed skycap captains with authority to discipline.
Additionally I have considered the fact, clear from the
record, that sky captains had authority to position skycaps,
that is to assign skycaps to positions where the skycap was
needed. Testimony by Robert Shaw, manager of skycap
operations for the Respondent, indicated that this authority
granted to the sky captains by the Respondent was to be
exercised after the manager or his assistant had determined
the skycap personnel for each shift. I am convinced
nevertheless that the exercise of this function by sky
captains calls for the independent exercise of judgment and
is not routine in nature. One need only stand by and
observe the normal operation at an air terminal such as
LaGuardia to realize that the task of effectively directing
and positioning skycaps to meet incessant and recurrent
peak and valley requirements at numerous stations calls for
the independent exercise of judgment and is not merely
routine. I credit testimony by Marsh indicating that
Atkinson in fact exercised this authority.
From the foregoing I am convinced and I find that
Atkinson, in the absence of the manager and his assistant,
possessed and exercised authority to discipline skycaps, and
possessed and exercised authority responsibly to direct
skycaps in other than a routine manner. I find that at the
time material herein Atkinson was a supervisor within the
meaning of the Act. In so finding I have not been called
upon nor have I considered the question of the appropriate
unit for sky captains and I make no finding with respect
thereto.
C. The Alleged Interference, Restraint, and
Coercion
The complaint alleges that the Respondent interfered
with, restrained and coerced its employees in their exercise
of rights guaranteed in Section 7 of the Act, when it
permitted its supervisor Atkinson to represent on behalf of
the Union the Respondent's employee Marsh in a grievance
hearing, on August 23, 1969, arising from the Respondent's
discharge of Marsh. It is the basic contention of the
General Counsel that by allowing Atkinson to serve in such
a dual capacity the Respondent violated Section 8(a)(1) of
the Act. I agree.
In E. E. E. Company, Inc., 171 NLRB No. 137, the Board
stated: "Thus although Hartman has been and is its
supervisor the Respondent has dealt with him as the
Union's steward and the representative of the Respondent's
employees in handling their grievances and in contract
negotiations. Such a mingling of supervisory and employee
representative functions has denied the Respondent's
employees their rights under the Act to be represented in
ALLIED MAINTENANCE CORPORATION 183
collective bargaining matters by individuals who have a
singled minded loyalty to their interest . By permitting
Hartman , although its supervisor to act as union steward
and by dealing with him in this capacity the Respondent
has therefore interfered with this right of its employees
. . " The Board found that the Respondent therein had
violated both Section 8(a)(2) and (1) of the Act. We
are concerned herein merely with the alleged violation of
Section 8(a)(1) of the Act
For its part, the Respondent argues that, even assuming
that Atkinson is a supervisor , the General Counsel does not
establish a violation merely by proving that Atkinson had
some degree of supervisory authority. The Respondent
contends that the General Counsel must prove that
Atkinson was a major rather than a low-level supervisor,
and that his activities in some way prejudiced Marsh's
rights in connection with the processing of its grievance.
The Respondent relies on Beach Electric Company, 174
NLRB No. 39, as governing. In Beach while acknowledging
that the individuals there involved possessed supervisory
authority, the Board found that they were low level and
intermittent supervisors and that accordingly there was no
evidence that any of the substantive ills contemplated by
Section 8(a)(2) of the Act had resulted from the dual status.
That case is immediately distinguishable from the case at
hand on the basis that the Board therein was dealing
specifically with the question of the evils involved in a
violation of Section 8(a)(2) of the Act involving assistance
to or domination of the Union where supervisors were
included in the bargaining unit. In the case at hand we are
analyzing the activity of an employer which permits one of
its supervisors, a union member and an official of the
Union, to represent another employee in a grievance
hearing.
I am not persuaded that the reasoning which led the
Board to distinguish between degrees of supervisory
authority in Beach is applicable herein. It would appear to
me that the extent to which a supervisor is subjected to
conflict flowing from loyalty owed to dual masters is not
controlling but that the very existence of the conflict in
whatever degree negates the singleness of purpose required
to assure a fair representation on behalf of the employee.
The Respondent adverts also to Local 616 United
Association of Journeymen v. N.L.R.B., 287 F.2d 354. In that
case the Board was more concerned with the practice in the
construction industry of permitting the retention of basic
union membership by supervisors and stated: "In an
industry such as construction there is extreme upward and
downward flexibility in job positions. A man hired one
week for one job as a foreman may very possibly be hired
the next week on the next job as a journeyman. In view of
this flexibility not every supervisory employee is to be
barred from active participation in a journeyman's union."
I do not find Local 616 controlling herein.
To come to the point, it is clear to me from this record
that Marsh was engaged in activity protected by the Act in
filing and pursuing his grievance . Pursuant to the
provisions of the collective-bargaining agreement under
which he was covered he was entitled specifically to a fair
hearing. On August 23, 1969, the date of the hearing, the
Respondent was on notice that Marsh desired representa-
tion other than that provided . At that time the Respondent
excluded Marsh 's chosen representative from the hearing.
The Respondent , under these circumstances , in knowingly
permitting its supervisor Atkinson to represent Marsh at
that hearing interfered with , restrained , and coerced Marsh
in the exercise of his rights under the Act.
In Emerson Electric Co., U.S. Electrical Motors Division,
185 NLRB No. 71, the Board stated : "The statutory right of
employees to protest an employer's conduct, to present
grievances to him , and to engage in other concerted
conduct is far ranging ." While the Board in that case did
not extend the right to include insistence on the right to
have fellow employees present as witnesses at a meeting at
which it was expected that some measure of discipline
would be meted out, I am persuaded in the case at hand
that the scope of the right does extend to being provided in
a grievance hearing with a representative clothed with a
singleness of purpose and that such right is interfered with
when the Respondent permits the grievant to be represent-
ed by one of its supervisors.
I have taken into account and have rejected the
Respondent 's argument that in fact the hearing was a fair
hearing which did not prejudice the rights of Marsh, for I
would be inclined to find in this case without hesitation
from the testimony of record that there was a violation of
Marsh's rights in the conduct of the hearing. The
Respondent argues that it offered another job to Marsh
which Marsh accepted after consulting his own lawyer, that
Marsh could have rejected the profferedjob and demanded
that his discharge be submitted to arbitration . I reject this
argument not only for the reason that the record establishes
the fact that Marsh did request arbitration which was
denied but for the reason that as a practical matter Marsh
after being denied a fair hearing was presented with
Hobson 's choice of either discharge or taking a lower
echelon job with less pay. The offer of this alleged choice by
the Respondent does not in my opinion cure the inherent
interference by the Respondent stemming from its actions
nor does it provide the basis for a finding that Marsh
waived his rights thereby.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Those activities of Respondent set forth in section II,
above , occurring in connection with its operations de-
scribed in section I, above , have a close , intimate, and
substantial relation 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
As Respondent has been found to have engaged in an
unfair labor practice , I shall recommend that it cease and
desist therefrom and that it take specific affirmative action,
as set forth below , designed to effectuate the policies of the
Act.
In view of the fact that the Charging Party Marsh was as
a result of the unfair labor practice of the Respondent
deprived of his right to a fair hearing on August 23, 1969, 1
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall recommend that a hearing de novo take place. While
the Respondent argues that the matter is now moot, I do
not find it so. There is still for resolution the basic question
to be answered in a fair hearing concerning the propriety of
the discharge of Marsh . He has a right to no less.
Since the conduct of Respondent does not demonstrate a
general opposition to the Act, I find that an Order is
appropriate which is limited to enjoining the activity found
to be an unfair labor practice and similar or like acts.
Upon the basis of the foregoing findings of fact and the
entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. The Respondent Allied Maintenance Corp. is an
employer within the meaning of Section 2(2), and is
engaged in commerce as defined in Section 2(6) and (7) of
the Act.
2. United Transport Service Employees , Local 290,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By permitting Supervisor Atkinson to represent its
employee Marsh at a grievance hearing the Respondent has
interfered with, restrained , and coerced its employees in
their exercise of rights protected by Section 7 of the Act and
has thereby committed an unfair labor practice proscribed
by Section 8(a)(1) of the Act.
4. The foregoing unfair labor practice affects commerce
within the purview of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]