Dr J W Gilmartin

National Labor Relations Board - Board Decisions

Oct 15, 1975

220 N.L.R.B. 1312 (N.L.R.B. 1975)

1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dr J W Gilmartin, D D S, a Dental Group and
Dental Technicians Union of Northern California,
Local 99, International Jewelry Workers Union,
AFL-CIO Case 20-CA-10042
October 15, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
On August 25, 1975, Administrative Law Judge E
Don Wilson issued the attached Decision in this pro-
ceeding Thereafter, the General Counsel filed a lim-
ited exception with respect to an alleged omission
from the Administrative Law Judge's recommended
Of der
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has considered the record and the at-
tached Decision in light of the exception and has de-
cided to affirm the rulings, findings, and conclusions
of the Administrative Law Judge and to adopt his
recommended Order, as modified herein I
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Dr
J W Gilmartin, D D S, a Dental Group, Sacramen-
to, California his agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified
I Insert the following as paragraph 2(e) of the Or-
der and reletter the subsequent paragraphs accord-
ingly
"(e) Sign the agreement reached with the Union
on February 21, 1975 "
i The General Counsels exception relates to the apparently inadvertent
failure of the Administrative Law Judge to provide in his recommended
Order in accordance with his conclusion that Respondent violated Sec
8(a)(5) of the Act by refusing to sign the collective bargaining agreement to
which it had agreed that Respondent be ordered to sign the agreement
reached with the Union on February 21 1975 We find meet in this excep
lion and have appropriately revised the Administrative Law Judge s recom
mended Order
DECISION
STATEMENT OF THE CASE
E DON WILSON, Administrative Law Judge Based upon
a charge filed by the Dental Technicians Union of North-
ern California , Local 99 , International Jewelry Workers
Union , AFL-CIO, herein the Union , on March 12, 1975,
the Acting Regional Director for Region 20 of the National
Labor Relations Board , herein the Board , issued a com-
plaint and notice of hearing on April 29, 1975, alleging that
Dr J W Gilmartin , D D S, a Dental Group , I herein Re-
spondent and sometimes Dr Gilmartin , committed various
violations of the Act Respondent timely denied the same
Pursuant to due notice , a hearing in this matter was held
before me on June 10 and 11, 1975, at Sacramento , Califor-
nia Briefs of General Counsel and Respondent have been
received and have been fully considered
Upon the entire record in this case , and from my obser-
vation of the witnesses , I make the following
FINDINGS OF FACT
I RESPONDENT'S BUSINESS
Respondent is in the business of owning and operating
two professional dental laboratories in Sacramento, Cali-
fornia, and also provides dental services to patients at each
of its locations James W Gilmartin, D D S, testified that
his operations at Arden Way are conducted by a corpora-
tion owned solely by him and that he is the president He
did not know whether any stock had ever been issued, nor
did he know whether there was a board of directors nor
whether there were any other officers At his operations on
Florin Road, Dr Gilmartin again testified that he was
president of a corporation which owned the business there
conducted He testified that he owned 45 percent of the
Florin Road operations, his ex-wife had a 45 percent inter-
est, and the father of his labor relations representative
owned 10 percent No evidence as to the interests of Dr
Gilmartin, his ex-wife, or the father of his labor relations
representative at Florin Road was submitted, other than
the testimony of Dr Gilmartin I shall later comment on
the credibility of his testimony
At the Arden Way office and at the Florin Road office
there are window signs which state that the name of the
business there conducted is "Dr J W Gilmartin, D D S,
A Dental Group " Newspaper advertisements so list the
name of the businesses as do the Sacramento telephone
books It is eminently clear from the record that Dr Gil-
martin is solely responsible for the labor policy at each
office It does not appear that either his ex-wife or the
father of his labor representative partake at all in directing
either of the operations
In any event, in 1974, the office receipts for the Arden
Way operation were $451,200 77 and the office receipts for
the Florin Road office were $337,014 95 I have noted that
control of the labor policies at both operations was solely
As amended at the hearing herein
221) NLRB No 204
DR. J. W . GILMARTIN
in the hands of Dr. Gilmartin. Adding the revenues of the
two locations, as is proper, the combined annual gross re-
ceipts of the two offices exceeds $700,000, and thus the
Board's jurisdictional standards for retail operations were
clearly met. In 1974 Respondent admittedly purchased
goods valued in excess of $2,700 directly from suppliers
located outside California. As Courts of Appeal have not-
ed, such a sum of money is not a "trifle," and I find that
the purchase of $2,700 worth of goods directly from out-
side California is more than de minimus. There is no ques-
tion but that Respondent meets the Board's retail standard
for the assertion of jurisdiction. I find it is an employer
engaged in commerce and in operations affecting com-
merce within the meaning of the Act.
11. THE LABOR ORGANIZATION
At all times material, the Union has been a labor organi-
zation within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES 2
A. The Issues
Among the issues are questions as to whether employees
George Baird and John Gutenberger were discharged be-
cause of their union activities or because one or the other
or both engaged in protected concerted activities. Also at
issue is whether on or about February 21, 1975, the parties
arrived at a complete agreement on all the terms of a new
contract and whether since February 26, 1975, Respondent
has refused and has continued to refuse to bargain collec-
tively with the Union by refusing to sign a written agree-
ment which contains all the terms agreed upon by Respon-
dent and the Union on February 21, 1975.
B. The Refusal to Bargain
At no time, even at the hearing herein, did Respondent
claim that its financial condition was seriously affected by
the economic conditions of late last year and early this
year. While this is so, he stated that one of the reasons for
dispensing with the services of Baird was that business was
"slow." 3 Early in the bargaining negotiations which began
about January 11, 1975, Gilmartin took the position that
he would keep both of his technicians, Baird and Guten-
berger, in his employ, if the Union would agree to accept a
6-month extension of the old contract. The Union on the
other hand demanded a much longer contract and one
which would provide for substantial wage increases."
Shortly after Gilmartin's request for a 6-month extension
21 was most unfavorably impressed by the demeanor of Dr. Gilmartin,
and I find that in many instances he was less than candid in testifying.
Frequently he was almost brazenly evasive. His description of his "feeling"
that Baird had been smoking marijuana over a long period of time is be-
yond the belief of any reasonable person. The same is true with respect to
his testimony as to knowledge which came to him "from out of the blue."
He often claimed lack of knowledge as to things he clearly must have
known.
3 Subsequently to be discussed in more detail.
$0.66 an hour.
1313
.of the current contract was turned down by the Union, and
the Union sought substantial wage increases, Gilmartin
fired Baird. Even though he fired Baird, he continued to
meet with the Union and finally came up with three pro-
posals he wanted. He insisted the Union would have to
agree to each of them if there were to be a contract. The
Union agreed to each of Gilmartin's proposals and there
was a complete meeting of the minds as of February 21,
1975, on the terms of a new contract. Not long after Febru-
ary 21, Respondent found so-called "independent contrac-
tors" to work at the Arden Way office, and since he con-
sidered them to be "independent contractors," and not
employees, he refused to sign the contract upon which the
parties had agreed on February 21, 1975. This refusal to
sign the contract after it had been reduced to writing and
presented to him violated Section 8(a)(5) and (1) of the
Act. The refusal to sign occurred before he hired the so-
called "independent contractors." I find no bargaining im-
passe had been reached, as Dr. Gilmartin claimed.
I shall subsequently find that Baird, as well as Gutenber-
ger, were discharged because of their union activity, in vio-
lation of Section 8(a)(3) and (1) of the Act, Baird being
discharged first and before February 21. Any contention
by Respondent that since Baird had been fired by Respon-
dent before February 21, 1975, it was no longer obliged to
bargain with the Union is fallacious, because after Baird's
discharge it not only continued to negotiate with the
Union, but also the termination of Baird, being in violation
of 8(a)(3) and (1) of the Act,5 did not change his status as
an "employee" within the meaning of the Act. When the
agreement was reached on February 21, 1975, it covered
not a "one-man" but a "two-man" unit. As will become
evident in this Decision, Dr. Gilmartin was not content
with eliminating Baird but also discharged Gutenberger in
violation of Section 8(a)(3) and (1) of the Act, and went
through the farce of hiring "independent contractors" pre-
sumably to replace the discharged "employees." Baird was
not replaced until Gutenberger was fired, and during the
time that Gutenberger worked after Baird's discharge,
Gutenberger's work increased considerably.
C. The Unlawful Discharges of Baird and Gutenberger
It has been noted that at the first negotiation meeting of
January 11, 1975, Gilmartin asked for a 6-month extension
of the contract, with no changes, because of the "national"
economic conditions. He exhibited various newspapers
with headlines about people being laid off in other indus-
tries. However, he admitted that so far as his laboratories
were concerned they were working at the same level? He
allegedly felt on January II that a continuation of work at
the same level as in the past might not last.
It was at the second meeting on January 25 that Dr.
Gilmartin stated he would probably have to lay off one of
5 As I shall subsequently find.
61 was most favorably impressed by the demeanors of George Baird,
John Gutenberger, and Leo Turner, each of whom testified in a completely
straightforward manner . The testimony of each of these three men tended to
support the testimony of the other two where they testified concerning the
same subject matters.
7 This is particularly true with respect to the Arden Way operation with
which we are here concerned.
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his employees if the Union continued to demand a wage
increase of $0.66 an hour and predicted with precision that
George Baird, who was junior to Gutenberger, a master
technician, would be the one to be terminated. He stated
he had only two alternatives, namely, to refuse to grant the
wage increase and face a strike or to grant the increase and
probably have to lay off Baird. Thus, Baird and his contin-
ued employment were made a pawn in the collective bar-
gaining. In spite of the forecast that Baird would be laid off
if the wage increases were given, the Union stuck to its
position. On January 29, 1975, the Union's agent, Turner,
sent Gilmartin a letter enclosing a copy of the agreement
which provided for the $0.66-an-hour raise. About Febru-
ary 1, 1975, Dr. Gilmartin wrote to Turner stating that
there were some things about the new agreement which he
did not understand and he had some additional changes to
propose with respect to the contract.
The day before February 4, 1975, Baird asked Dr. Gil-
martin for a 2-week vacation, so that he could go back
East. Dr. Gilmartin stated that he would think about it,
and let Baird know the following morning. The next morn-
ing Baird asked Dr. Gilmartin if he had thought about
Baird's vacation, and Dr. Gilmartin said, "Yes, do you
want to step into my room?" 8 When Baird came into Dr.
Gilmartin's room, they seated themselves and Dr. Gilmar-
tin said, "Well, I have thought about your vacation and
due to economic situations, I am going to lay you off start-
ing today." Dr. Gilmartin handed Baird his checks. This
was about 9 o'clock in the morning. Dr. Gilmartin
"flashed" through a 4-inch pile of newspapers which he
had been accumulating throughout the month of January,
and stated, "General Motors and Southern Pacific are lay-
ing off people and due to a chain-reaction, my dental busi-
ness might fall and before it falls, I want to make sure that
it doesn't happen to me and let me be safe." Then he took
the Bible out and said, "In the Revelations, this world is
coming to an end," and he started a little preaching. He
stated, "You two want a raise and due to the raise, I can't
give you both a raise, because if I give you a raise, then I
will have to give all the girls a raise ." He offered Baird an
alternative of letting him work Monday, Wednesday, and
Friday, 4 hours a day.9 Baird replied that it wouldn't be
worth his while to work 4 hours a day on Monday, Wed-
nesday, and Friday because he could make more on unem-
ployment. Dr. Gilmartin replied, "Yes, you would. But, at
the time I need just a part-time helper," to help Gutenber-
ger. It should be noted that the Baird, who was fired with
no forewarning, had been an employee for about 3 years.
Dr. Gilmartin continued, telling Baird and Gutenberger
that he had a girl in his Florin office who had learned the
same work that Baird did in 6 months, and he asked Baird
why he should pay him $5 per hour when he could get a
girl to work at Arden Way for $2.50 or $2.30 an hour. Dr.
Gilmartin stated to Baird and Gutenberger, "I can't afford
both of you. I can afford one of you." He added, "If you
want to stay on we can have a 6-month extension; let's
look in the paper every day and see how the economic
6 Gutenberger joined them a few minutes later.
9 He, in this discussion, violated Sec. 8(a)(5) and (1) of the Act by ignor-
ing the employees bargaining representative.
situation goes." He was thus again violating Section 8(a)(5)
and (1) of the Act by seeking to obtain a 6-month exten-
sion of the existing contract which had been previously
refused by the Union. Dr. Gilmartin continued attempting
to negotiate a contract with Gutenberger and Baird in the
absence of their union representative Leo Turner, by stat-
ing that if the economic situation falls, "I will have to lay
you guys off, but if you don't ask for a raise in your con-
tract, I will keep you for 6 months and when the economic
situation is stable, I will give you a raise 6 months from
now." This was further violation of Section 8(a)(5) and (1)
of the Act.
Baird's final reply to Dr. Gilmartin, after the latter un-
lawfully attempted to get Baird and Gutenberger to agree
to his contract requirements, was, "Well, if it has to be,
then I guess I am laid off." Baird left that afternoon and
went home.
It is evident to me that Baird was discharged because he
refused, in combination with Gutenberger, to accept Dr.
Gilmartin's illegal contract proposals made in the absence
of Baird's union representative, Turner. It is clear to me
that Baird was selected not merely because he was the jun-
ior employee but also because Gutenberger was a master
technician whose services could not be dispensed with so
readily. I am convinced that if Baird and Gutenberger had
accepted Dr. Gilmartin's proposals for a 6-month exten-
sion of the existing contract, Baird never would have been
fired. Baird was fired on February 4, and on February 15
Respondent was advertising in the newspaper for a dental
laboratory technician. It was Dr. Gilmartin who asked for
the February 21, 1975, meeting , ostensibly because he
wanted to discuss some questions about the Union's pro-
posals, and some proposals he wished to make. The Union
listened to all his proposals and accepted all of them. Turn-
er stated that the Union had accepted Dr. Gilmartin's pro-
posals, asking him if he had any objection to signing the
contract. Dr. Gilmartin replied that he did not, and Turner
told him he would type up the final agreement with
Respondent's proposals, as agreed to, in it and mail it to
Dr. Gilmartin for his signature. It was mailed on February
25, 1975. Of course, as noted above, Dr. Gilmartin never
signed the written contract to which he had fully and com-
pletely agreed on February 21, 1975. As George Baird testi-
fied, Dr. Gilmartin said that not only was the February 21,
1975, agreement "okay," but he said "he was happy" and
added that he would sign the contract. Of course, this he
never did. A mere reading of the above with respect to
what took place in Dr. Gilmartin's room, with Baird, Gu-
tenberger, and Dr. Gilmartin present, makes it evident that
Baird's discharge was in violation of Section 8(a)(3) and (1)
of the Act. Primarily, he was discharged because he and
Gutenberger would not agree with Dr. Gilmartin's propos-
als for a 6-month extension of the old contract ,10 and, in
effect, abandon their Union.
Gutenberger started to work for Dr. Gilmartin in March
1972. When he was hired he told Dr. Gilmartin he had
been a member of the Union for about 16 years. Gutenber-
ger told Dr. Gilmartin at that time that he could not work
for him unless he worked under a union contract. Dr. Gil-
10 Obviously, the offer of a 12-hour week was a mere sham.
DR. J. W. GILMARTIN
martin agreed to become Union after Gutenberger started
to work.
Very suddenly on March 6, 1975, about 10 minutes to 5
in the evening, Dr. Gilmartin entered the lab and inquired
if Gutenberger was about finished. Dr. Gilmartin invited
Gutenberger into his office. Gutenberger went in and sat
down. With no previous notice, Dr. Gilmartin told him
they were going to have a new setup in the lab. He said he
would hire an "independent man," and gave Gutenberger
his final checks. Gutenberger was very angry and upset
and just walked out. The only reason Dr. Gilmartin gave
him for laying him off was that he would have him re-
placed with an "independent contractor." Dr. Gilmartin
had never found fault with Gutenberger's work at any time
and very often complimented him. He had been paid high-
er than union scale from the time he had begun working
for Dr. Gilmartin. At the time Gutenberger was fired, no
one had replaced Baird. I bear in mind that Dr. Gilmartin
testified that it was about March 1st that he began having
"independent contractors." A close or even casual exami-
nation of the work done by these so-called "independent
contractors" and their methods of operation demonstrates
that they were "independent contractors" in name only
and were really employees just as had been Baird and Gu-
tenberger. An examination of GC-2 which is supposed to
be the contract which made the "independent contractors"
nonemployees shows that it is a mere sham. Obviously, the
contract of the "independent contractor" to do the work of
the dental technicians could not be binding on his heirs,
executors, administrators, successors, and assigns."
Although as of February 21, 1975, Respondent had a
contract with the Union, which it later unlawfully refused
to sign, Gutenberger plainly and truthfully testified that
Dr. Gilmartin told him he was terminating him so that he
could be replaced by an "independent contractor," like he
had in the other office. Dr. Gilmartin, himself, testified
that he was paying Gutenberger $9 an hour and that Gu-
tenberger wanted a $0.66-per-hour raise as provided by the
contract. Dr. Gilmartin swore that that was one of the rea-
sons he fired Gutenberger. I find it was a violation of Sec-
tion 8(a)(3) and (1) for Respondent to discharge Gutenber-
ger because he wanted to be paid the wages Respondent
had agreed to pay him under its contract with the Union.
Dr. Gilmartin testified that he gave Gutenberger the $0.66
an hour raise for the 3 weeks he worked during the time
"between when we laid off Baird and the time I laid off
Gutenberger." Dr. Gilmartin testified further that he fired
Gutenberger "because he wouldn't work unless I paid it
[$0.66] to him." This is simply another way of stating that
Dr. Gilmartin fired Gutenberger because he insisted upon
Respondent living up to its contract with the Union, at
least so far as wages was concerned. Such could not be
more violative of Section 8(a)(3) and (1) of the Act. Dr.
Gilmartin testified he advertised in the newspaper to find
someone to replace Gutenberger and relieve himself of the
necessity of paying Gutenberger $0.66 per hour more.12
11
Think of an heir of the age of 2 years, of an executor with no arms, of
an administrator such as the Bank of America, etc.
12 1 don't know whether the ad was to obtain a replacement for Baird or
for Gutenberger.
1315
So far as the "independent contractors" are concerned,
there is nothing but a "contract" 13 which is ridiculous on
its face. As Dr. Gilmartin testified, these men did nothing
but work for him and get paid by him and work according
to his directions, plans, schemes, and orders. This is just
what Baird and Gutenberger did. Of course, Respondent
furnished substantially all of their supplies and equipment.
They worked 8 hours a day, Monday through Friday, and
were paid overtime when they worked Saturday morning.
Dr. Gilmartin refused to refer to the replacements for
Baird and Gutenberger as anything but "independent con-
tractors." He hired two "independent contractors about
the first of March." 14 Respondent's argument is that the
two people involved were "independent contractors" be-
cause they signed contracts with him to work. It is none of
my business, but he does not deduct any withholding taxes,
etc., from these "independent contractors" who do the
same work as the dischargees and work the same hours and
are supplied the same tools and equipment, as had been the
situation with Baird and Gutenberger. Dr. Gilmartin insist-
ed that the replacements for Baird and Gutenberger were
"independent contractors" because they had a contract
and were independent.
It should be emphasized that at no time before entering
into the February 21 contract, did Dr. Gilmartin advise the
Union that Gutenberger was going to be replaced. He testi-
fied that he told the Union he intended to replace his em-
ployees with "independent contractors" on March 5 or 6,
1975. The Union protested his doing that without their
agreement. Dr. Gilmartin testified he fired Gutenberger
because he demanded a $0.66-per-hour increase which was
the same demand the Union made. This was a clear viola-
tion of Section 8(a)(3) and (1).
Dr. Gilmartin testified that without notifying or bargain-
ing with the Union he changed the status of his employees
so that his "employees" would be "independent contrac-
tors." I find that this was a violation of Section 8(a)(5) and
(1) of the Act.
Dr. Gilmartin testified, in part, that he terminated Gu-
tenberger because Gutenberger had told other employees
that he intended to engage in a "slowdown" and to sabo-
tage for the purpose of forcing Dr. Gilmartin to rehire
Baird. I credit Gutenberger's denial that he did or said any
of these things and no credible evidence exists to corrobo-
rate this self-serving testimony of Dr. Gilmartin.
Dr. Gilmartin's alleged "economic" defense in connec-
tion with his termination of Baird was made farcical by
other testimony of Gutenberger. He wanted to know why
he should pay a unionized apprentice lab technician $5 an
hour when he paid nonunion lab technicians at Florin
Road only $2.50 an hour. Obviously one of the reasons he
fired Baird was because, being covered by the union con-
tract, he was making more money than nonunion employ-
ees. I find it is significant that within a matter of days after
Baird's discharge, Dr. Gilmartin was advertising for a lab
technician to work at the Arden Way office. Less than 2
At least he didn't fire Gutenberger as he allegedly fired Baird, because
"he had a feeling that came to him out of the blue that Baird used marijua-
na."
13 Dr. Gilmartin said they were independent and had a contract.
14 Transcript p. 22.
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
weeks after Respondent agreed to a new union contract
and about a month after Baird was unlawfully discharged,
Gutenberger, an apparently outstanding employee, was
discharged with little or no notice and was told merely that
Dr. Gilmartin intended to replace his unionized employees
with "independent contractors." Respondent cannot es-
cape from Dr. Gilmartin's testimony that he unlawfully
discharged Gutenberger because he wanted the same raise
that the contract called for, and which he had received for
some time before his discharge. The record spells out clear-
ly and unmistakably that Respondent discharged Baird
and Gutenberger, each, because of their union activities. I
am satisfied that Respondent did not fire Gutenberger at
the same time it fired Baird because Gutenberger possessed
exceptional skills which could not readily be replaced. Nei-
ther one would have been fired on February 4, if they had
agreed to Respondent's unlawful action in bypassing the
union representative and had agreed to a 6-month exten-
sion of the existing contract. Respondent continued to em-
ploy Gutenberger until such time as it was able to replace
him.
IV. EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Union set forth in section III, above,
occurring in connection with the operations of Employer
described in section 1, 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 Respondent has engaged in certain unfair
labor practices, it will be recommended that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Having found that in the months of February and
March, Respondent discharged Baird and Gutenberger,
each, because of their Union and other protected concert-
ed activities, I shall recommend that Respondent offer
Baird and Gutenberger, each, full and complete reinstate-
ment to his former position or, if such position no longer
exists, then to a substantially equivalent position, without
prejudice to his seniority and other rights and privileges. I
shall also recommend that Respondent make Baird and
Gutenberger whole for any loss of pay either or both may
have suffered by reason of the discharge of either or both,
in violation of Section 8(a)(3) and (1) of the Act, in the
manner set forth in F. W. Woolworth Company, 90 NLRB
289 (1950), with interest on backpay computed in the man-
ner described in Isis Plumbing & Heating Co., 138 NLRB
716 (1962).
I shall further recommend and order that Respondent
bargain with the Union, on request, with respect to the
hours of employment, wages, and other conditions of em-
ployment of all laboratory employees, including master
technicians, junior technicians, and apprentices employed
by Respondent at his Arden Way, Sacramento, California,
location, excluding all other employees, office clerical em-
ployees, guards, and supervisors as defined in the Act, such
employees constituting an appropriate bargaining unit.
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. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. The Union is a labor organization within the meaning
of the Act.
3. By discharging Baird on February 4 and Gutenberger
on March 6, and thereafter failing and refusing to reinstate
them because of their union or other protected activities,
Respondent has violated Section 8 (a)(3) and (1) of the Act.
4. By refusing to sign the written contract to which it
had agreed on February 21, 1975, and by bypassing the
Union's bargaining representative and attempting to bar-
gain collectively directly with Baird and Gutenberger, who
were represented by such Union, Respondent has violated
Section 8(a)(5) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of the Act.
Upon the entire record, including the foregoing findings
of fact and conclusions of law, I hereby issue the follow-
ing:
ORDER IS
Respondent, its agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Terminating or otherwise discriminating against any
of its employees because of their support for or assistance
to a union or because they engage in any union activities or
any other activities protected by the Act.
(b) Refusing to sign a written contract after it has
agreed to all its terms, and bypassing the Union and at-
tempting to bargain directly with the employees repre-
sented by said Union.
(c) In any other manner, interfering with, restraining, or
coercing any employee in his right to join, assist , or support
the Union or any other labor organization or engage in any
activity protected by the Act or to refrain from so doing.
2. Take the following affirmative action which, I find,
will effectuate the policies of the Act:
(a) Offer Baird and Gutenberger immediate and full re-
instatement to their former positions, or if those positions
no longer exist, to substantially similar and equivalent po-
sitions without prejudice to either's seniority or any other
rights and privileges.
(b) Make Baird and Gutenberger, each, whole for any
loss of earnings either one may have suffered by reason of
Respondent's discrimination against him, in the manner set
forth in the "Remedy" section of this Decision.
15 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes.
DR. J. W . GILMARTIN
(c) Preserve and, upon request, make available to the
Board or any of its agents, all records necessary or useful
to determine or compute the amount of backpay due
George Baird and John E. Gutenberger, if any.
(d) Bargain collectively in good faith, respecting wages,
hours, and working conditions of its laboratory employees,
including master technicians, junior technicians, and ap-
prentices employed by Respondent at its Arden Way, Sac-
ramento, California, location; excluding all other employ-
ees, office clerical employees, guards, and supervisors as
defined in the Act, with the Union as the collective bar-
gaining representative of such employees who constitute an
appropriate unit.
(e) Post at its Arden Way, Sacramento, California, oper-
ation copies of the notice attached hereto and marked,
"Appendix." 16 Copies of said notice on forms to be fur-
nished by the Regional Director for Region 20, shall, after
being duly signed by an authorized representative of Re-
spondent, be posted immediately upon receipt thereof and
be maintained by it for a period of 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 insure that such
notices are not altered, defaced, or covered by any other
material.
(f) Notify the above Regional Director, in writing, with-
in 20 days from the date of this Order what steps Respon-
dent has taken to comply herewith.
16 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
1317
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT terminate or otherwise discriminate
against any of our employees because of their support
for or assistance to Dental Technicians Union of
Northern California , Local 99 , International Jewelry
Workers Union , AFL-CIO, or any other labor organi-
zation , or because they engage in any union activities
or any other activities protected by the National La-
bor Relations Act.
WE WILL NOT , in any other manner , interfere with,
restrain , or coerce any of our employees in their rights
to join, assist , or support the above-named Union or
any other labor organization or engage in any other
activity protected by the Act, or to refrain from so
doing.
WE WILL offer George Baird and John E . Gutenber-
ger immediate and full reinstatement to their former
positions or, if those positions no longer exist, to sub-
stantially equivalent positions , without prejudice to
their seniority and other rights and privileges.
WE WILL make George Baird and John E . Gutenber-
ger whole for any loss of earnings they may have suf-
fered by reason of our illegal discrimination against
them, in violation of the National Labor Relations
Act.
WE WILL bargain collectively , in good faith, with re-
spect to the wages, hours, and working conditions of
our employees , with Dental Technicians Union of
Northern California , Local 99, International Jewelry
Workers Union , AFL-CIO, as the collective-bargain-
ing representative of all laboratory employees , includ-
ing master technicians , junior technicians, and ap-
prentices employed by us at our Arden Way,
Sacramento , California, location ; excluding all other
employees, office clerical employees , guards, and su-
pervisors as defined in the Act, such being an appro-
priate unit, and we will sign the agreement we reached
with this Union on February 21, 1975.
DR. J. W. GILMARTIN, D.D.S., A DENTAL GROUP