Atlantic Maintenance Co.

National Labor Relations Board - Board Decisions

Dec 18, 1961

134 N.L.R.B. 1328 (N.L.R.B. 1961)

1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours, pay, and fringe benefits, we find that the fabricating division
is not a functional part of the production and maintenance unit in the
steel division, nor an accretion to it.5 Accordingly, we deny the Pe-
titioner's motion to amend or clarify its certification.
[The Board denied the motion.]
5 See Chrysler Corporation, 129 NLRB 407; Barrett Division , Allied Chemical & Dye
'Corporation, 120 NLRB 1026 ; Cities Service Refining Corporation, 121 NLRB 1091.
Herman O . Wunsch and William Smith t/a Atlantic Maintenance
Co. and Philadelphia Window Cleaners and Maintenance
Workers' Union, Local 125, AFL-CIO. Case No. 4-CA-2325.
December 18, 1961
DECISION AND ORDER
On September 1, 1961, Trial Examiner Thomas N. Kessel issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and is engaging in certain un-
fair labor practices and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the Interme-
diate Report attached hereto. Thereafter, the Respondent filed
timely exceptions to the Intermediate Report, and the Charging
Party filed exceptions and a statement in support thereof.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown].
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 In-
termediate Report, the exceptions, and the entire record in this case,
and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner, with the following modification as to the
remedy.
THE REMEDY
The Trial Examiner recommended, inter alia, that the Respondent
make whole those employees against whom discrimination has been
found with the exception of Doris Jones, Belle Ford, and Dudley
Riley: As to these individuals, the Trial Examiner found that they
rejected the Respondent's offer of employment at a rate of pay lower
than union scale, and thereby indicated their unwillingness to work.
Contrary to the Trial Examiner, we find that the Respondent's offer
134 NLRB No. 131.
ATLANTIC MAINTENANCE Co. 1329
of employment to these three; individuals was conditional in that it
was based, upon their first obtaining a withdrawal from the Union.
In this regard, Doris Jones testified that Foreman Christian told her,
"I would like to keep you,, but I can't because you are in the union."
She then asked how much he was- paying and was told $1.15 an
hour. She replied, "No, I come out cheaper by drawing unemploy-
ment." Belle Ford testified that Christian told her that she could
continue to work provided she withdrew, from the Union. She asked
how much he was paying and was told $1.15 an hour. , She then testi-
fied, "I said anyone who would work " but was interrupted. When
Christian subsequently called her on the telephone to find out whether
she wanted to work and then instructed her to withdraw from the
Union, she again asked what he would pay. Upon being told $1.15
an hour, she responded, "I wouldn't be down." Dudley Riley testified
that Christian spoke to a group bf employees and said that "they
were not going to hire any union help," because the Respondent did
not want to post a bond for each employee. Subsequently, when
Riley learned from `^ydney Shannon, Penn's day foreman and
Christian's brother-in-law, that his $1.55 hourly rate was going to be
reduced to $1.40, Riley testified that'he definitely made up his mind
not to work for Respondent at'this rate.
In view of the unlawful condition attached to Respondent' s offer,
and as it has no been clearly establi'shed that' these'three discrimi-
natees would have rejected Respolidelit's'offer of employment even
if it had not been conditioned' on their withdrawal from the Union,
we find no basis upon which to` conclude, as did the Trial Examiner,
that they should be denied backpay.' Accordingly, to remedy the Re-
spondent's violations. of the Act ' with 'respect to Doris Jones, Belle
Ford, and Dudl'ey'Riley,'we sliall order'tlie Respondent to make them
whole, along with the remaining discrilninatee's; for any loss they may
have suffered because of the discrimination against them, 'in the manner
prescribed by the Trial Examiner in the -sectidn of the Intermediate
Report entitled "The Remedy.".
1 Member Rodgers would adopt the Trial Examiner 's recommendations denying backpay
to Doris Jones , Belle Ford , and Dudley Riley,. Member' , Rodgers notes that while the
Respondent's offer of, employment was conditional,''tile 'em'ployees did not assert the
unlawful condition as their, reason, for rejecting employment with Respondent Thus,
Member Rodgers would find, as did the Trial Examiner, that the three individuals credibly
testified that the reason ' for, not 'accepting the'Respondent 's offer of employment was be-
cause its pay scale was lower than the union, rate , of pay. , Accordingly, as this reason is
totally unrelated to, and independent ° of, the conditional nature of the Respondent 's offer
of employment , Member . Rodgers would - not disturli' the Trial Examiner's findings and
recommendations in this regard *For the same , reasons„ Member , Rodgers would not re-
quire the Respondent to make additional ' offers 'of e'mployment to these three individuals in
view of their previous unequivocal rejection of 'same. Cf . 1 L. -Bonney ' & Son8 Furniture
Manufacturing-Co., etc. , 97.NLRB 891 .
630849-62-vol . 134=85
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The backpay herein ordered shall begin on February 1, 1961, and
continue to the date of the discriminatees' employment, or the date
upon which unconditional employment is offered to them. However,
because the Trial Examiner recommended that Doris Jones, Belle
Ford, and Dudley Riley be denied backpay, and in accordance with
our practice, we exclude from the above period the time from the
date of the Intermediate Report to the date of our Order herein in
computing the amount of backpay to which each is entitled. Time-O-
Matic, Inc., 121 NLRB 179, 181.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Herman O.
Wunsch and William Smith t/a Atlantic Maintenance Co., Pleasant-
ville, New Jersey, their officers agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Philadelphia Window Cleaners
and Maintenance Workers' Union, Local 125, AFL-CIO, or any other
union, by discriminating in regard to hire or tenure of employment
of their employees.
(b) In any manner interfering with, restraining, or coercing their
employees in the exercise of their right to self -organization , to form,
join, or assist Philadelphia Window Cleaners and Maintenance
Workers' Union, Local 125, AFL-CIO, or any other labor organiza-
tion, to bargain collectively with representatives of their choosing,
and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid and protection, or to refrain from en-
gaging in such activities, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Helen Holland, Daisy Anthony, Jacquline Miller,
Yvonne Stowe, Mary Morris , Marion Brooks , Doris Jones, Belle
Ford, Rose Newkirk, William Waterson, Melvin Miller, Wilfred
Coley, Don Eady, Richard Miller , Roumania Brewington , Albert
Carson, Wayne Dotts, Dudley Riley, Edna Holley, and Thelma Strick-
land employment at the same or substantially equivalent positions
at which they would have been employed had there not been dis-
crimination against them , without prejudice to any seniority or other
rights and privileges they might have acquired , and- make them whole
for any loss of pay suffered in the manner set forth in the section of
the Intermediate Report entitled "The Remedy," as modified, by our
Decision and Order herein. `
ATLANTIC MAINTENANCE CO. 1331
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records'and reports, and
all other records necessary to analyze the amount of backpay due and
the rights of employment under the terms of this Order.
(c) Post at the United States Signal Corps Building in Phila-
delphia, Pennsylvania, with permission of the building authorities,
copies of the notice attached hereto marked "Appendix." 2 Copies of
said notice, to be furnished by the Regional Director for the Fourth
Region, shall, after being duly signed by the Respondent's partners,
be posted by them immediately upon receipt thereof, and maintained
by them for a period of 60 consecutive days at the Signal Corps Build-
ing, in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered, defaced, or
covered by any, other material. If permission for posting at the
Signal Corps Building cannot be obtained from the building authori-
ties, then a copy of the notice shall be mailed to each of the persons
named therein and to all employees presently employed by the
Respondent.
(d) Notify the Regional Director for the Fourth Region, in writ-
ing, within 10 days from the date of this Decision and Order, what
steps the Respondent has taken to comply herewith.
2In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in Philadelphia Window
Cleaners and Maintenance Workers' Union, Local 125, AFL-
CIO, or in any other labor organization, by refusing to hire ap-
plicants for employment because of their membership in the afore-
said labor organization or in any other labor organization, or by
discriminating in any manner in regard to hire, tenure, or any
term or condition of employment.
WE WILL offer to the persons named below employment at the
same or substantially equivalent positions at which they would
hive been employed had we not discriminated against them, with-
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out prejudice to any seniority or other rights and privileges they
might have acquired.
Helen Holland William Waterson
Daisy Anthony Melvin Miller
Jacquline Miller Wilfred Coley
Thelma Strickland. Don Eady '
Yvonne Stowe Richard Miller '
Mary Morris , Roumania Brewington
Marion Brooks Albert Carson
Doris Jones Wayne Dotts
Belle Ford Dudley Riley
Rose Newkirk Edna Holley
WE WILL make whole all the above-named persons for any loss
of pay suffered because of the discrimination against them. '
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of the right of self-organization,
to form labor organizations, 6r to join or assist the above-named
or any other labor organization; to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from engaging in any or all such
activities.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of any labor organization.
HERMAN 0. WUNSCH AND WILLIAM SMITH
T/A ATLANTIC MAINTENANCE Co.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered-by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT, OF THE CASE
On a charge filed by. Philadelphia Window Cleaners and Maintenance Workers'
Union, Local 125, AFL-CIO, herein called , the Union, the General Counsel of the
National Labor Relations Board , herein called the Board , by the Regional Director
for the Fourth Region , issued his complaint dated May 24, 1961, against Herman O.
Wunsch and William Smith t/a Atlantic Maintenance Co., herein called the Re-
spondent , alleging that the Respondent had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of Section' 8(a) (3) and (1)
and Section 2(6) and ( 7) of the National Labor Relations Act, 61 Stat. 136,
herein called the Act. Copies of the complaint , the charge , and a notice of hearing
were duly served upon the ' parties. ' The Respondent 's • answer to the complaint
denies the averment of statutory violations set forth therein.
'Pursuant to notice , a hearing was held at Philadelphia , Pennsylvania , on July 10
and 1 .1,.1961 ,-before Thomas N. Kessel, the. Trial Examiner duly designated to con-
duct the hearing. All parties were represented by counsel . Full opportunity to be
heard, to examine and cross -examine witnesses , and to introduce evidence was afforded
ATLANTIQ;MhINTENANCE CO., , _ _ 1333
all parties. After the.close of the hearing the Respondent filed a brief which has been
carefully considered.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
I. PERTINENT COMMERCE FACTS
The complaint alleges and the answer admits that Herman O. Wunsch and William
Smith are partners doing business under the trade name Atlantic Maintenance Co.,
and during times material to this case have maintained an office and place of business
in Pleasantville , New Jersey, for the performance of custodial and janitorial services;
that during 1960 the Respondent in the course of its business operations performed
services valued in excess of $100,000, of which services valued at more than $50,000
were performed in States other than New Jersey. It is further alleged and ad-
mitted that the Respondent annually renders services valued in excess of $100,000
under contracts with the United States Government and that these services have a
substantial impact on the national defense. Respondent concedes and I find from
these facts that it is engaged in commerce within the meaning of the Act, and I
further find that exercise of the Board's jurisdiction over its operations will effectu-
ate the purposes of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Philadelphia Window Cleaners and Maintenance Workers' Union, Local 125,
AFL-CIO, is a labor organization admitting to membership employees of the
Respondent.
M. THE• UNFAIR LABOR PRACTICES
The complaint alleges the Respondent's refusal to employ 20 named persons
because of their membership in and adherence to the Union, and that such refusal
to employ was violative of Section 8(a)(3) and (1) of the Act. The Respondent
asserts that these persons never applied to it for employment and were, therefore,
never refused employment.
In the latter part of January 1961, the Respondent obtained a contract for the
performance of janitorial services at the United States Signal Corps Building in
Philadelphia. These services were then being performed by a business organiza-
tion called Penn Associates whose contract was to expire on January 31. The Re-
spondent was to begin operations under its contract on February 1. On or about
January 23, William Smith, then and now one of the Respondent's partners, and
Floyd Braman, then but not now a partner, retained the Penn Associates foreman,
Edward H. Christian, to supervise its work at the Signal Corps Building. At the
same time they authorized Christian to employ for the Respondent those persons
working under him for Penn Associates whom he regarded as desirable workers.
On the evening of January 24 Christian spoke to the assembled 25 or 26 em-
ployees comprising the janitorial night force at the Signal Corps Building and in-
formed them that the Respondent would succeed Penn Associates on February 1 as
contractor for the cleaning services in the building. Doris Jones, one of the night-
shift employees present, testified that Christian declared at the meeting that he was
to be in charge of the day and night shifts for the Respondent. She recalled that
he had announced that there would be "union work and union scales" for the em-
ployees, but that there would be some personnel changes with not all the Penn
Associates employees being retained. Thereupon he passed out individual slips of
paper to the employees with instruction to insert name, address, and place of birth.
The employees then returned the slips to him. According to Jones, Christian ad-
vised that he would later place on his desk the names of those employees whom he
would keep. Christian conceded that he had passed out the slips and called for
the information described by Jones but testified that he had said only that he wanted
the slips to submit to the Signal Corps provost marshal for clearance. He acknowl-
edged telling the employees that he would later post the names of those turned in by
him to the provost marshal.
On January 26 Christian posted a sheet listing 21 names. These included the
names of the 20 employees alleged in the complaint unlawfully to have been denied
employment because of their membership in the Union. The other name was that
of employee Ida Reeves who was hired by the Respondent on February 1 and who
withdrew from membership in the Union on, February 20: The listing of names on
the sheet was preceded by the following statement: '
1334 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD
JANUARY 26th 1961.
NOTICE
THE FOLLOWING PERSONS WILL BE HIRED BY THE ATLANTIC
MAINTENANCE CO., as of Feb. 1st 1961, and will be required to fill out
-forms the night of January 31st at 9:00 P.M. Those persons, who's names I
have, but dose [sic] not appear on this list, may apply as sub. workers if they
so desire.
'Christian's signature appeared at the bottom of the sheet with designation as fore-
man for the Respondent.
Subsequent to the posting of the foregoing notice it was withdrawn and discarded.
The precise circumstances relating to its manner of removal are disputed, but no
resolution of these contradictions is required. What matters is that sometime before
January 31 Christian admittedly directed the removal of the notice and revoked its
effect. The determination in this case of the question at issue depends on Christian's
reasons for this action.
The aforementioned Doris Jones testified that on January 30 Christian had re-
marked to her that he was "not keeping any union workers, that the contractor did
not sign the union agreement." In her presence Christian had also said to employee
Ida Reeves, "If you want to work, go to the union and get a withdrawal card."
Then, according to Jones, he said to her, "I would like to keep you, but I can't be-
cause you are in the union." Belle Ford, another former Penn Associates employee,
testified that on the day when the notice had been removed she was told by Christian
that she could continue to work provided she withdrew from the Union. He in-
formed her that Ira Reeves had done so. A week later, after the Respondent was
already operating under its contract, she assertedly received a telephone call from
Christian who again offered her work if she would.withdraw from the Union. An-
other Penn Associates employee, Daisy Anthony, testified that on January 31
Christian had absolved himself of blame for the fact that her employment was to end
that day with these remarks: "Don't blame me. The Atlantic Maintenance is not
hiring any union help. I can't hire you." Roumania Brewington had been a sub-
foreman under Christian before January 31. He testified that he had held a con-
versation on January 30 with Christian in which the latter told him that he would
not hire the "Penn Associates hands that was working there-that they were going to
get all non-union to-all non-union employees to work." Dudley Riley, a former
Penn Associates employee, testified that after the notice was posted but prior to
January 31 Christian had told him that the Respondent did not want to provide
bonds for its employees and would therefore not have any union help. Clarence
Gamble, employed by the Respondent from February 1 to sometime in April 1961,
testified that about March 8 or 10, Christian called a meeting of the Respondent's
employees and told them that he had heard that some employees wanted to join the
Union and that so long as he was the supervisor there would be no union in the
building. Called as a witness by the General Counsel Floyd Braman testified that
about the time when he hired Christian in the latter part of January 1961, Christian
advised that he had some good workers in his force whom he would like to hire.
Braman related that he had given Christian authority to hire them but not if they be-
longed to the Union. Then Christian observed they could get withdrawal cards from
the Union.
Christian denied telling Jones and Ford they would have to get withdrawal cards
from the Union to work for the Respondent. He denied the remark attributed to
him by Anthony as well as the comments ascribed to him by Gamble. He did not
refute Braman's testimony that he was instructed not to hire employees who be-
longed to the Union. He testified that when Braman informed him that the
Respondent was not going to sign a union contract he removed the notice from
the wall where it had been posted, and did so because he knew the persons listed
were members of the Union and the Respondent was not going to have a union
shop. He had planned to have these persons fill out the Respondent's regular em-
ployment application forms and tax forms before they started duty for the Respondent
at 9 p.m. on January 31, and had then wanted to explain why the Respondent would
not have a union shop. He claimed that he did have such a meeting with the night
force on January 30 1 at which time he reported what the wage scale would be. He
1 I do not credit Christian 's testimony that such meeting was held . Brewington testified
credibly he was not requested by Christian to call such meeting and that he did not sum-
mon the employees under him to a meeting. Daisy Anthony and Yvonne Stowe, also a
former Penn Associates employee, credibly testified they were neither called to nor
ATLANTIC MAINTENANCE CO. 1335
claimed also that he then told the employees "we could not hire people who were
Union members , because we were not going to be a Union shop . But that anybody
who wanted to join our company under this wage scale , without a union, was willing
[sic] to do so." He further denied making the statement related by Riley about post-
ing a bond for employees, but conceded that there was a meeting of three or four
employees on January 28 or 29 at which Riley was present when he, Christian, said
the Respondent would not operate a union shop and that the employees could work
at the Respondent's pay scale if they so desired.
Ida Reeves denied that she had been requested by Christian or any agent of
the Respondent to withdraw from the Union in order to obtain employment from
the Respondent. She explained that she withdrew from the Union because she
knows "that you cannot belong to a non-union shop and belong to a union."
That an employer's refusal to hire applicants for employment because of their
union membership is violative of the Act has long been settled law .2 This is not dis-
puted by the Respondent. As noted, the Respondent maintains only that the
persons who allegedly were denied employment had not applied therefor. The
record shows otherwise.
The January 24 meeting by Christian with the 25 or 26 employees on the night
force was clearly called by the former to apprise the employees of their job oppor-
tunities with the Respondent. When he advised them that he would post a list of
those whom he would select for employment and contemporaneously instructed them
to submit personal data on slips of paper, he was in effect asking for and accepting
their applications for work. Obviously, these employees would not have filled out
and submitted these slips if they had not thereby intended to show their desire for
employment by the Respondent. The informality of these slips did not detract from
their character as applications. Nor did the fact that the Respondent may have
contemplated the completion by these employees of more detailed application forms
before they' actually entered on duty on February 1. The subsequent posting of the
notice telling them in clear and unmistakable language that those whose names were
listed would be hired by the Respondent as of February 1, 1961, leaves no room for
doubt that Christian had solicited their applications for employment on January 24
and that by the posting of the list he had decided which applicants would be put to
work on February 1. The subsequent withdrawal and revocation of that notice
constituted a refusal to employ the persons listed therein which, if motivated by
statutorily proscribed reasons, was violative of Section 8(a)(3) of the Act. There
is ample evidence demonstrating that the Respondent was unlawfully motivated.
The credited testimony of Doris Jones, Belle Ford, Daisy Anthony, and Roumania
Brewington reveals Christian's decision not to employ anyone who belonged to the
Union and his coniationing of employment upon withdrawal from the Union. Bra-
man's credited testimony shows that Christian was carrying out the Respondent's
instructions not to hire the Union's members. Christian's own testimony is tanta-
mount to a confession that the persons named in the complaint were known by
him to be members of the Union and that he had not hired them for this reason.
This evidence sufficiently proves the complaint allegation of the Respondent's unlawful
discriminatory conduct and obviates need for consideration of other conflicting
testimony further demonstrating Christian's unlawful motives. I find that the Re-
spondent by denying employment to the persons named in the complaint on Febru-
ary 1, 1961, because of their membership in the Union violated Section 8(a)(3)
and (1) of the Act.3
In reaching the foregoing conclusion, I have considered those portions of Chris-
tian's testimony to the effect that he told the employees they could work for the
Respondent if they were willing to accept its pay scale. Were this all Christian
had said there would be no basis for a finding of unlawful discrimination. This,
however, was not the case, for these remarks were coupled with assertions that
the Respondent would not hire members of the Union and with requirements that
employees withdraw from the Union. Willingness to accept the Respondent's pay
scales was apparently not enough to gain employment. It was also necessary to give
up union membership. This requirement as the price for a job was plainly violative
of the Act.
attended such meeting . fn these circumstances I do not believe there was a January 30
meeting.
See Phelps Dodge Corp . v. N.L.R B., 313 U.S. 177.
T I L. Sportswear Corporation , 131 NLRB 176.
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'IV. THE EFFECT OF' THE" UNFAIR LABOR PRACTICES UPON' COMMERCE
The activities of the Respondent set forth'in section III, above, occurring in con-
nection with the operations of the Respondent described, 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 thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act. It has been found that the
Respondent on February 1, 1961, denied employment to the 20 employees named
in the complaint in violation of Section 8(a)(3) and (1) of the Act.4 I therefore
recommend that the Respondent be ordered to offer employment on a nondiscrimi-
natory basis to each of these 20 employees displacing if necessary any employee
hired at or subsequent to the time of the discrimination against them to perform
work for which each of these persons is qualified. I further recommend that the
Respondent be required to credit all these employees with such seniority and other
rights and privileges that would have accrued to them as of the dates when they
would have been hired, absent the discrimination against them. If, after displacing
employees in the aforesaid manner, the Respondent, for lawful reasons unrelated
to its discriminatory motivation, has no existing need for any of the employees
having the experience or qualifications of any of the employees against whom dis-
crimination has been found in this case, the Respondent shall place them on a
preferential list and offer them jobs for which their experience and qualifications
show them to be equipped as replacements are needed or as new jobs are created.
It is further recommended that the Respondent make whole those employees against
whom discrimination has been found with the exceptions hereinafter noted, for
any loss they may have suffered because of the discrimination against them by pay-
ment to them of sums of money equal to the amounts they normally would have
earned as wages from the date of the discrimination to the date of the offer of
employment or placement upon a preferential hiring list with backpay to be com-
puted on a quarterly basis in the manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289.
The foregoing backpay recommendations shall not apply to Doris Jones, Belle Ford,
and Dudley Riley. I am satisfied from their testimony that they would not have
worked for the Respondent for its lower than union pay rates, even if the Respondent
had offered them employment without attaching unlawful conditions. Doris Jones
testified that when, in the course of her conversation with Christian on January 30,
he told her he could not hire her because of her union membership, she asked how
much he was paying and was told $1.15 an hour. She replied, "No, I come out
cheaper by drawing unemployment." Belle Ford testified that during a conversation
with Christian in which she was told to withdraw her card from the Union in order
to receive employment from the Respondent, she asked what he was paying and
was told $1.15 an hour. Her response is reflected by the following testimony: "I said
anyone who would work-" This sentence was not completed by the witness
because she was interrupted at this point by another question. However, her later
testimony concerning another incident indicates that what she had undoubtedly told
Christian was that she would not consider working for the Respondent for $1.15
an hour. Thus, when Christian subsequently called her on the telephone to find out
whether she wanted to work and then instructed her to withdraw her card from the
Union, she again asked what he would pay her and was told $1.15 an hour. Her re-
sponse was, "I wouldn't be down." Dudley Riley testified that when he learned that
his $1.55 hourly rate was going to be reduced to $1.40 he definitely made up his mind
not to work for the Respondent for this rate. While I have recommended that the
Respondent be required to offer Jones, Ford, and Riley employment without attach-
ing unlawful conditions, I do not believe they are also entitled to backpay awards for
a period when they would not have worked even if there had not been insistence by
the Respondent upon compliance with its unlawful conditions.
Because the Respondent's unfair labor practices go to the heart of the Act, the
commission of similar and of other unfair labor practices may reasonably be antici-
4 Helen Holland, Daisy Anthony, Jacquline Miller, Thelriia ` Strickland, Yvonne Stowe,
Mary Morris, Marion Brooks, Doris Jones, Belle Ford, Rose Newkirk, William Waterson,
Melvin Miller, Wilfred Coley, Don Eady, Richard Miller, Roumania Brewington. Albert
Carson, Wayne Dotts, Dudley Riley, and Edna Holley.
INT'L UNION, UNITED AUTOMOBILE, AIRCRAFT, ETC. 1337
pated . It will therefore be recommended that the Respondent be orderd to cease
and desist from in any manner infringing upon the rights guaranteed its employees
by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Herman O. Wunsch and William Smith t/a Atlantic Maintenance Co. are an
employer within the meaning of Section 2(2) of the Act and are engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. Philadelphia Window Cleaners and Maintenance Workers' Union, Local 125,
AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.
3. By discriminating with respect to the hire and tenure of employment of the 20
employees hereinabove named the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
International Union , United Automobile, Aircraft and Agricul-
tural Implement Workers of America (UAW), AFL-CIO, and
its Amalgamated Local No. 453 and Maremont Automotive
Products, Inc., Charging Party. Case No. 13-CB--888. Decem-
ber 18, 1961
DECISION AND ORDER
On October 12, 1960, Trial Examiner Eugene E. Dixon issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, both Respondents and the Charging
Party filed exceptions to the Intermediate Report and supporting
briefs.
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, insofar as they are consistent with this
Decision and Order.
We agree with the Trial Examiner that Respondents violated Sec-
tion 8 (b) (3) of the Act but not for the reasons on which he relied.
On the facts, which are accurately set forth in the Intermediate
Report, we find, as did the Trial Examiner, that the unit 21 negotiat-
ing committee and its chairman, Hawkins, were the negotiators and
agents for both Respondents, Local and International. However, we
disagree with the Trial Examiner's holding that the International's
134 NLRB No. 128.