151 N.L.R.B. 98 (N.L.R.B. 1965)

Dunrail Construction Co., Inc.

National Labor Relations Board - Board DecisionsFeb 17, 1965

151 N.L.R.B. 98 (N.L.R.B. 1965)

98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MEMBER FANNING, dissenting : I dissent from the majority's conclusion that the dispute in this case is one cognizable under Sections 10(k) and 8(b) (4) (D). It is the position of the majority that a jurisdictional dispute exists in this case solely on the ground that the Respondent has sought "assignment of the disputed work from one group of employ- ees to another." If this is all that is needed to evoke the Board's arbitrational power, it would seem equally logical to determine a work dispute where the employer is alleged to have assigned work to employees on the basis of racial considerations, member- ship in a favored union, or even seniority. In my view, Sections 10(k) and 8(b) (4) (D) do not present so easy a formula for the effectuation of those provisions of the Act when considered with other, equally important, statutory objectives. Here the Respond- ent does not claim that the work of driving the Importer's cars from the marine terminal premises to the Importer's lot located within the Calumet port area is work that longshoremen are better entitled to perform by virtue of skill, history, tradition, practice, or custom in the industry. Indeed, the Respondent has no objection if other employees drive these cars away from the terminal provided the cars are driven outside the Calumet port area. Respondent bases its claim to this work solely on the ground that its contract with North Pier Terminal Company gives it the right to remove all cargo from the hold of the ship to "its final resting place" within the dock area. Essentially, this dispute is one of contract interpretation. If Respondent were persuaded that it had no con- tractual right to perform this work, the dispute would be resolved. I cannot agree that the extraordinary provisions of Sections 10 (k) and 8(b) (4) (D) were enacted by Congress merely to resolve dis- putes over the interpretation of collective-bargaining agreements. In my opinion, the means used by the Respondent to achieve its objectives and the legality of those objectives should be determined by other applicable provisions of the statute. Accordingly, I would quash this notice of hearing. Dunrail Construction Co., Inc., and Crossway Motor Hotels, Inc. and Hotel , Restaurant Employees and Bartenders Union, Local 178, Hotel & Restaurant Employees' & Bartenders Interna- tional Union , AFL-CIO. Case No. 2-CA-10025. February 17, 1965 DECISION AND ORDER On November 9, 1964, Trial Examiner Reeves R. Hilton issued his Decision in the above -entitled proceeding , finding that the 151 NLRB No. 15. DUNRAIL CONSTRUCTION CO., INC., ETC. 99 Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the attached Trial Examiner's Decison. Thereafter, the Respondents filed excep- tions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Brown and Jenkins]. 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 hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the modification noted below.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Order recommended by the Trial Examiner, and orders that Dunrail Construction Co., Inc., and Crossway Motor Hotels, Inc., New York, New York, their officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 1 We do not adopt the Trial Examiner's statement that the basic issue here is whether there is "substantial evidence," considering the record as a whole, to support the allega- tions of the complaint that the Respondent violated Section 8(a)(1) and (3) of the Act Under Section 10(c) of the Act, the Board's finding that a respondent has engaged in unfair labor practices must be based "upon the preponderance of the testimony" taken at the hearing Upon the preponderance of such testimony, we are satisfied that the Respondents have violated the Act as found by the Trial Examiner. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon charges, as amended, filed by the above-named Charging Party, herein called the Union, the General Counsel of the National Labor Relations Board issued a com- plaint, dated June 30, 1964, alleging that Dunrail Construction Co., Inc., and Crossway Motor Hotels, Inc., herein called the Respondents or the Companies, have engaged in specified acts and conduct in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the Act. The answer of the Respondents admits certain allegations of the complaint but denies the commission of any unfair labor practices. Pursuant to notice, a hearing was held before Trial Examiner Reeves R. Hilton at New York City on September 23, 1964, at which all parties were represented and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs. About October 14, 1964, I received a brief from counsel for the Respondents. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS Respondent Crossway Motor Hotels, Inc., a Delaware corporation, maintains its principal office and a place of business at 711 Third Avenue, New York City, and is 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engaged in the business of operating motor hotels in New York and Pennsylvania through corporate subsidiaries which it owns and controls. Crossway Motor Hotels, at all times material herein, owned and controlled a corporate subsidiary, Dunrail Construction Co., Inc. Respondent Dunrail Construction Co., Inc., a New York corporation, maintains an office and place of business at the same address as Crossway Motor Hotels, and at all times material herein, has operated and controlled a motor hotel known as Dunwoodie Motor Inn, at Yonkers, New Yoik. Dunwoodie is the only facility involved in this proceeding. Crossway Motor Hotels and its corporate subsidiaries, including Dunrail Construc- tion Co., at all times material have had common officers, directors, and supervisors, who have formulated and administered common business and labor relations policies and said Companies have operated their various affiliated business as an integrated business enterprise. During the year ending May 5, 1964, which is a representative period, Respondents' gross income from their operations was in excess of $500,000. During the above pe- riod Respondents (1) rendered services and provided accommodations, both in meet- ing rooms and in lodgings, for enterprises engaged in interstate, including International Paper Company and The Borden Company, and (2) extended credit to holders of credit cards of American Express and Diners Club, among others. In the same period over 75 percent of the persons lodging in Respondents' motor hotels, including Dunwoodie, remained less than I month. The Respondents admit, and I find, that they are employers engaged in commerce within the meaning of Section 8(2), (6), and (7) of the Act. If. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization as defined in Section 2(5) of the Act. M. THE UNFAIR LABOR PRACTICES A. Preliminary statement At all times material herein, Harry Seeve was, and is president of Crossway Motor Hotels and holds the same office in United Investors Corporation, a management company, which has been managing all the properties of Crossway since about November 1962. The parties stipulated that the following named persons held the position of mana- ger of Dunwoodie for the periods appearing opposite their names, and that they were and are supervisors within the meaning of Section 2(11) of the Act: Peter Rogers, from about October 1963 to February 1964; Cliff Conard, from about March to May 1964; and James Altland, since about May 13, 1964. The parties also stipulated that about April 14, 1964, the Respondents received a telegram from the Union stating that it represented a majority of the employees at Dunwoodie and requesting a meeting for the purpose of negotiating an agreement. About April 16, the Union filed a representation petition, Case No. 2-RC-13361. On May 5, a hearing was held on the petition at which Conard and employees Agnes Sabol and Daniel Sabol appeared and testified. About May 15, the Regional Director issued his Decision and Direction of Election and on June 15, following an election conducted on June 3, the Union was certified as the bargaining representative for all maids, maintenance employees, and front office employees at Dunwoodie, excluding office clerical employees and the usual statutory exclusions. B. Acts of interference, restraint , and coercion Agnes Sabol, wife of Daniel Sabol the discriminatee, was first employed at Dun- woodie about November 1962, and promoted to desk clerk in May 1963. As desk clerk her duties included registering and checking out guests, answering the switch- board, and taking care of complaints. Sabol stated that around the end of March 1964, she and other employees signed union cards and at the time the union representative said he would notify the Com- panies by telegram of the Union's claim to represent them. Sabol testified she was at the switchboard when Conard received the Union' s tele- gram on April 14, and after he had read it, he waived it in her face and shouted, "You and your p- union ... I broke unions in Bistol, I'll break it here.... You are DUNRAIL CONSTRUCTION CO., INC., ETC. 101 nothing but elementary school children." 1 Conard then went out of the office to his car but ran back and told her, "Your husband will be the first to go." Sabol remarked that was good news and seemingly that ended the conversation. Shortly prior to the representation hearing, Altland, then assistant manager, told Sabol, in Conard 's presence , that he was going to relieve her so she could attend the hearing. When Sabol asked, "What hearing," Conard remarked, "Let her G D union tell her what hearing." Sabol, on cross-examination , stated that practically every day Conard warned that she and other employees would be discharged if they joined the Union , that "We would all be fired by the New York office." Sabol further stated that when Conard received a "letter" from the Board about the middle of May, the Decision and Direction of Election , he cursed the Union and repeated his earlier remarks that he had broken the union at Bristol. John Ward , employed as maintenance man since May 1963, testified that in April, about a week after the employees had signed union cards , Conard remarked the employees were trying to get a union in the motel and Ward replied he knew nothing about it . Conard declared he had broken a union before, Ward could not recall the place, and that he would "break this one up here." Conard also stated it was "the family" who was promoting the Union , meaning the Sabols. In addition to her hus- band , Agnes Sabol had two sisters working at the motel, Florence Werner and Edna Difiore. About a week later, and on other occasions , Conard said he wanted to get rid of Daniel Sabol and break up "the family ," because Daniel was a "troublemaker" and responsible for bringing in the Union . As appears below, Daniel Sabol was laid off about May 9 and discharged May 12. Ward was with Conard in the office when Conard received the Decision and Direc- tion of Election around May 15, and, pointing to Daniel Sabol's name in the decision, he stated , "If it 's the last thing I do, I 'll make sure that b never gets back to work here." Conard then went over to Agnes Sabo] , who was at the switchboard , and said, "You and your p union , Agnes. You are trying to cause a lot of trouble around here and trying to get Floie Werner and me [Ward ] fired." During the period of the above conversations , Conard told Ward to vote against the Union ; that if it got in Daniel Sabol would probably be made shop steward and Ward would probably lose his job. Later Conard told Ward he understood the Union "was going to get in," and if Ward would run for shop steward , he would try to per- suade some of the employees to vote for him. Seeve testified that he dismissed Rogers because , inter alia , he had overstaffed the motel, ran it in a loose manner, and "his relations were too good with the staff ." Seeve replaced Rogers, sometime in March , with Conard , who had been doing a satisfactory job as manager at the Companies ' motel in Bristol , Pennsylvania , and he instructed Conard to straighten out the mess at Dunwoodie and get rid of excessive personnel. Seeve admitted that Conard reported the employees , without mentioning specific individuals , were engaging in union activities "in very wild terms" and "violent expres- sions" and he told Conard it was none of his business , to let him, Seeve, handle matters pertaining to the Union. Seeve was in the hospital the greater part of May and during this period he received reports from his staff concerning the poor relationship between Conard and the employees . He thereupon sent two staff members , William Bluestone and Miss Cozzens, to look into the matter and, after doing so, they advised Seeve the relation- ship between Conard and the employees was very bad . Seeve then decided to remove Conard as manager of Dunwoodie and send him back to Philadelphia , which he did. When asked if Conard 's opposition to the Union was one of the reasons for his trans- fer, Seeve replied: Well, I remember that he had been quite violent on the subject , although that was not the primary reason . The reason was he had established a very bad rela- tionship with the staff, probably partly because of the things he had said about the union, but once having established that kind of relationship with the staff, he could no longer operate as effectively as he should. Conard was present at the hearing but was not called as a witness by the Companies. IOne of the exhibits in the case, a letter to Daniel Sabol on Dunwoodie stationery, lists Bristol Motor Inn, Philadelphia , Pennsylvania, as one of the Crossway Motor facilities. 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The discharge of Daniel Sabol For a number of years Sabot has been, and is, regularly employed by the Yonkers Fire Department. In December 1963 Sabot worked for a few days at Dunwoodie for which he was paid on a daily cash basis. About the middle of January 1964, Rogers told Sabot he was satisfied with his work and asked if he would work there steady on his time off from the fire department.=' This was agreeable to Sabot and he was employed to assist Ward, the maintenance man, in all general maintenance work. He was paid $2 an hour, was carried on the regular payroll, and was paid by check every Thursday. Sabot's duties included painting, repairing electrical appliances, beds, and chairs, mopping floors, assorting and storing linens, maintenance work on the grounds, and operation of the boiler. Sabol continued in his employment after Conard became manager and Conard told him he was satisfied with his work and complimented him for one of the painting jobs he had performed. From the commencement of organizational activities Sabot spoke in favor of, and urged the employees to join, the Union. It seems obvious from the record that Sabol signed a union card although he was not questioned on that particular point. Sabot testified that he reported for work one night toward the end of April and as he was entering the door, Conard waved a paper at him and stated, "This is from your lousy union." Sabot said he had nothing to do with the Union, whereupon Conard declared, "What do you think, I don't know what's going on in this motel? I know what's going on. You are a damned liar." Sabot asked if Conard wanted him to remain or leave and Collard told him to stay and do his work. Sabot continued in his employment until discharged under circumstances set forth below. As already stated, a hearing was held on the representation petition on May 5, and both the Sabols testified at the hearing. As appears in the Decision and Direction of Election, the Companies sought to exclude Agnes Sabot from the unit on the ground that she was a supervisor and Daniel Sabot because he was a temporary employee. These contentions were rejected by the Regional Director and both the Sabots were included in the unit. Agnes Sabol testified that on May 9, Conard said her husband was going to be laid off and shortly thereafter she received a telegram from Dunwoodie, addressed to Daniel Sabo], stating, "Work available Monday May 19th if weather clear." 3 Agnes Sabot gave the telegram to her husband. By letter dated May 12, Conard notified Sabot that since the work for which he had been hired had been completed, the Company had no further need of his services. Sabot was reemployed by Altland about May 23 and discharged on June 3. On the morning of June 3 the election was held, as directed, and won by the Union.4 Sabol voted a challenged ballot in the election. As Sabot was leaving the motel around 4 o'clock that afternoon, Altland told him he "wouldn't be needed any more." Sabot asked why he was being discharged and Altland replied "he was told that the payroll would have to be cut." Sabot denied that at the time he was hired by Rogers in January, and rehired by Altland about May 23, there was any mention his employment was for a limited period, or that he was hired for a specific job or jobs. He also stated that at the time of his final discharge there was much maintenance work to be performed. For instance, Sabol was in the process of painting the swimming pool, at least two of the motel rooms needed painting, and there were table and floor lamps waiting to be repaired. Ward likewise testified there was a great deal of this work to be done when Sabot was discharged. He also stated that thereafter he worked about 5 hours every Satur- day in order to do some of the work previously performed by Sabol. Ward further stated that after Sabot had been fired Altland used lifeguards to paint the rooms and do odd jobs. The record also shows that since about April 26, the Companies have employed a part-time porter, Raymond Lioi. However, Lioi did no maintenance work and his duties were entirely different from Sabot's, except perhaps that at times they both cleaned bathrooms. 2 Sabol explained he rotated shifts on the fire department. He worked a 10-hour day shift from 8 am. to 6 p in. for 3 days, was off 48 hours, and then went on a 14-hour night shift from 6 p in. to 8 a.m for a 3-day period, when he was again off for 48 hours. 3 Actually Monday fell on May 18. 4 Agnes Sabol testified the outcome of the election was known about 9 o'clock that morning and shortly thereafter she heard Altland telephone the results to Bluestone. The Board's records show that of the 14 eligible voters, 8 voted for the Union, 5 against, and 1 ballot challenged. DUNRAIL CONSTRUCTION CO., INC., ETC. 103 Seeve testified he was responsible for the operations of some 30 different properties, consequently he could not spend much time with individual officials and employees in these enterprises . Concerning Dunwoodie , Seeve stated that he ran the motel on the basis of reports and in the period January through June 1964 , he made only several visits to this facility. As a result of reports from Dunwoodie , Seeve decided to dis- miss Rogers because his relationship with the employees was "too good " and because he hired Sabol as a second maintenance man, paying him out of petty cash , and when he instructed Rogers he had no authority to make such an arrangement , Rogers cir- cumvented his instructions by hiring Sabol as a permanent employee. About a week after Conard became manager , he telephoned Seeve to request that Sabol be retained as second maintenance man for a short time in order to catch up on the maintenance work. Seeve asked what type of work he had for Sabol and Conard told him painting, primarily . Seeve said he did not like maintenance men to paint, that if the motel had to be painted they could get a contractor , but he authorized Conard to retain Sabol "for a short time." However , Seeve cautioned Conard it was company practice to have only one maintenance man at each of its facilities, that Dunwoodie did not warrant the employment of a second maintenance man, and that he was going to watch the situation closely. Conard reported regularly on the paint- ing matter and finally Seeve told Conrad he had had enough to discharge Sabol. Obviously , Seeve issued the above instructions shortly before Sabol's actual discharge, which occurred about May 12. Seeve admitted he was fully aware of union activities at the time , but stated he did not know Sabol was engaging in such activities , or that Sabol was even the second maintenance man. On May 19, the original charge was filed and served on the Companies on May 20. It is undisputed Sabol was reemployed by Aitland about May 23 and again dis- charged on June 3. Seeve testified that in going over the various payrolls, seemingly after leaving the hospital in the latter part of May, he saw that Altland had rehired a second maintenance man, so he called Altland and told him he had no authority to do so and to discharge this man at once. When asked to define the authority of the managers , Seeve answered , "The authority of the manager is to act only to the degree in which I let him or stop him." Later, on cross-examination , Seeve testified Aitland stated he rehired Sabol to paint the swimming pool and he told Altland he did not like to hire a man for that purpose, that it could be performed by a contractor. On June 3, 8 , and 29, amended charges were filed which were timely served upon the Companies. On June 1 counsel for the Companies wrote the Regional Office concerning the charges and stated that Sabol "was fired because he was unavailable for employment after repeated requests that he appear for work." Seeve explained that at the time he instructed Conard to get rid of the second maintenance man in May, Conard said he had hired or had a porter, Raymond Lioi, and when Seeve asked if he could use the second maintenance man as a porter Conard said he could not because he was employed by the fire department . Seeve thereupon told Conard to discharge the second maintenance man and keep the porter . Sometime later, apparently 2 weeks before the hearing , Seeve told Altland and Bluestone to offer Sabol a job as porter to avoid "all this unpleasantness." Seeve, likewise , advised the Regional Office of the reasons for Sabol's discharge in a letter addressed to the office dated "June 4, 1964," which date is obviously erroneous. Thus, the letter acknowledges receipt of a copy of the second amended charge, which was filed on June 8, and alleges the discriminatory discharge of Sabol on June 3. The letter also bears a stamp indicating it was received by the Regional Office on June 30. In his letter, Seeve stated that Sabol was terminated on May 7, "because we no longer needed his services . . ." and At the time we terminated his employment , and at the present , we have main- tained , and do maintain , two full-time maintenance men. We find that we no longer needed the services of an additional temporary maintenance man. It seems clear , therefore, the letter covers both the discharge of May 7 and June 3. When questioned concerning the reasons stated therein, Seeve answered, "It was bad drafting." Altland did not testify at the hearing. 6 Counsel for the Companies furnished the General Counsel with certain payroll or other records covering the Dunwoodie employees during the period January through September 1964 Although the General Counsel conducted a rambling , pointless cross- examination of Seeve on the basis of these records , neither counsel offered the records as an exhibit nor did they stipulate the purport or meaning thereof 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Analysis and Concluding Findings Here, the basic issue is whether there is substantial evidence, considering the record as a whole, to support the allegations of the complaint that the Companies engaged in acts and conduct in violation of Section 8(a)(1) and (3) of the Act. From the testimony of the Sabols and Ward detailed above, which stands undenied, I find that Conard openly and consistently made known his bitter opposition and resentment of the Union to the employees from the very outset of the union movement until he was replaced as manager, sometime around the middle of May. In the course of his campaign against unionization, Conard cursed and abused the Sabols for bring- ing the Union into the motel and declared he would break the Union, the same as he broke a union at another facility. Conard also announced that he was going to get rid of Daniel Sabol because he was a "troublemaker" and the instigator of the Union and, after discharging Sabol about May 12, declared that he would never work at Dunwoodie. Likewise, Conard constantly threatened Agnes Sabol that she and other employees would be discharged if they joined the Union. Conard also urged Ward to vote against the Union in the forthcoming election and warned him if the Union won the election Daniel Sabol would become shop steward and Ward would probably lose his job. Seeve admitted Conard reported on the union movement at the motel and stated his opposition to the Union "in very wild terms" and "violent expressions." Seeve simply told Conard that the Union was none of his business, that Seeve himself would handle such matters. The record, as well as the stipulation of the parties, conclusively proves that Conard was employed as a supervisor as the term is defined in Section 2 (11) of the Act. Con- sequently, the Companies, in line with long-established precedent, were, and are, responsible for Conard's campaign against the Union including his antiunion state- ments and threats to discharge adherents of the Union 6 Although the Companies recognize and accept this doctrine, nevertheless, they seek to avoid responsibility for Conard's acts and statements on the grounds they were neither authorized nor ratified and that his removal as manager prior to the election effectively cured the unlawful effect, if any, of his personal antiunion declarations and conduct. In their first contention the Companies conveniently attempt to apply the agency test to determine responsibility for Conard's acts and statements.7 Plainly, the record not only precludes any basis for the agency theory, but, affirmatively, shows that Conard was the top management official at Dunwoodie and the Companies stipu- lated that he was employed in a supervisory capacity. With respect to the second contention, it is clear from Seeve's own testimony that Conard's hostility to the Union was not the reason for his removal as manager. Furthermore, Seeve took no steps whatever to disavow or repudiate Conard's reprehensible conduct nor did he ever advise the employees of their right to form, join, or assist the Union and that the Com- panies had no objection to their exercising their right to do so. I find no merit in the above contentions and that the Companies were, and are, responsible for the acts and statements of Conard. 6lnternational Association of Machinists , Tool and Die Makers Lodge No. 35 (Serrick Corp) v N L.R B , 311 U S 72, 80; H. J. Heinz Company v. N.L.R.B., 311 U.S. 514, 518-521 ; N.L.R B. v. Pallette Stone Corporation , Inc., 283 F. 2d 641 ( C.A. 2) ; Local 636 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the U S. and Canada AFL-CIO (Detroit Assn. of Plumbing Contractors) v. N.L.R.B., 287 F. 2d 354, 358-360 (C A.D C.). 7 The cases cited by counsel are inapplicable in the present situation. In N.L R B. v. Henry Mayer, d/b/a Cherokee Hosiery Mills , 196 F. 2d 286, 290 (C.A. 5), the court held the mere fact the employer may have benefited from unsolicited and unauthorized acts of a friend, who had no connection with the business, although constituting unfair labor practices, was insufficient to establish an agency relationship between the employer and his friend In N L R.B. v. Russell Mfg. Co., Inc., et al., 187 F. 2d 296 (C A. 5), the court likewise held the evidence insufficient to establish agency relationship between three individuals and the corporate respondents where the individuals were not employees of the respondent and had no connection with the business . N.L.R B. v Sparks- Withington Co., 119 F. 2d 78 (C.A. 6), involved isolated statements by two supervisory employees made in the course of a campaign between a UAW local and an alleged dominated union. In denying enforcement of the order, the court held the company had maintained a hands-off policy in the matter and the statements amounted to nothing more than expressions of personal opinion, which left the employees unmoved. DUNRAIL CONSTRUCTION CO., INC., ETC. 105 Having found that Conard engaged in the aforegoing acts and conduct, I further find the Companies thereby interfered with, restrained, and coerced the employees in the exercise of the rights guaranteed them in Section 7 of the Act, in violation of Sec- tion 8 (a) (1) thereof. It is undisputed Sabot was laid off about May 9, discharged May 12, reemployed about May 23, and finally discharged on June 3. Seeve claimed he had no knowledge of Sabot's union activities, or that he was even employed as the second maintenance man, and that Sabot's terminations were made for economic reasons; namely, the elimination of the second maintenance man. In summary, the facts, which are undenied, establish that Conard warned the Sabols that he intended to discharge Daniel because of their activity on behalf of the Union and told Ward that he was going to fire Sabot for the reason that he was a "trouble- maker" and responsible for bringing the Union into the motel. The record also dis- closes that the Companies objected to the inclusion of the Sabols in the bargaining unit described in the representation petition and that the Sabols testified at the repre- sentation hearing held on May 5. Sabot was thereupon laid off about May 9, and discharged May 12. On May 14, the Decision and Direction of Election issued wherein the Companies objections were overruled and the Sabols held to be properly included in the unit. Upon receiving a copy thereof, Conard told Ward that he would make sure Sabot would never work at the motel and warned Agnes Sabot about stir- ring up trouble with the Union and trying to get her sister and Ward fired. Certainly if there was ever a case where knowledge of union membership and activity and unlawful motivation in effectuating a discharge was proven beyond all doubt, it is this case. As I have found Conard to be the top supervisor at Dunwoodie such knowledge and motivation must be imputed to the Companies. In view of the evidence herein, I find Seeve's testimony that he had no knowledge of Sabot's union activities, or even his employment, is simply incredible and unbelievable. It is conceded Sabot was reemployed by Altland on May 23. Sabot testified he was reemployed in the same capacity and performed the same duties as he had prior thereto and there was no mention that he was being rehired for a specific job or term. Sabot continued to work until June 3, the date of the election, when he was discharged that afternoon by Altland for the reason that "the payroll would have to be cut." Altland, of course, was not called as a witness at the hearing. Seeve related that when he discovered from the payrolls that Altland had rehired a second maintenance man he called Altland and told him he had no authority to do so and to discharge this man at once . Seeve's testimony that he ordered Sabot's discharge for economic reasons stands alone in the record. Thus, Altland, who actually discharged Sabot and who was in the best position to describe maintenance conditions at the motel at times material herein , did not testify, nor did the Companies produce any records to support Seeve's testimony. The failure, therefore, to adduce such evidence warrants the infer- ence that it would not have been favorable to them.8 On the other hand both Sabot and Ward testified there was much maintenance work to be done at the time of Sabot's discharge. Ward further stated that subsequent to June 3, he worked about 5 hours every Saturday in order to perform some of the jobs previously performed by Sabot and that lifeguards were used to paint rooms and do odd jobs. This evidence, of course, deflates the argument that the Companies' failure to replace Sabot indicates his discharge was for economic reasons. Again, as set forth above, the Companies gave conflicting reasons for the discharge. Thus, their counsel stated in his letter to the Regional Office that Sabot was fired on May 9, because he was unavailable for employment after repeated requests that he report for work. Later, Seeve advised the Regional Office that Sabot was discharged on both occasions because he had "two full time maintenance men" at Dunwoodie and did not need Sabot. On the basis of the foregoing findings, I have no difficulty in further finding that Sabot was laid off about May 9, and discharged on May 12 and June 3, respectively, by reason of his union membership and activities, not for economic reasons. But, assuming there was some merit in the Companies' contention the result would be the same for the mere existence of valid cause for discharge is no defense when actual motivation is based on antiunion considerations.° 8Interstate Circuit v. United States, 306 U.S 208, 225-226; N.L.R B. v. Remington Rand, Inc., 94 F. 2d 862, 871 (C.A. 2) ; Spartanburg Sportswear Company, 116 NLRB 1914, enfd. 246 F. 2d 366 (CA. 4). 8 N L.R.B. v Revere Metal Art Company, Inc, 287 F. 2d 632 (C.A. 2) ; N.L.R B. v. WTtiJ, Inc., 268 F. 2d 346 (C.A. 5) ; N.LR.B. v. Solo Cup Company, 237 F. 2d 521, 525 (C A. 8) ; N L.R B. v. Jack Lewis and Joe Levitan, d/b/a California Footwear Company, et al., 246 F . 2d 886, 890 (C.A. 9). 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD By laying off and discharging Daniel Sabol in the manner found herein the Com- panies thereby violated Section 8 (a) (3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connec- tion with the operations of the Respondents set forth 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 I shall recommend the conventional remedy for the unfair labor practices found herein; namely, that the Respondents cease and desist therefrom and post appropriate notices. Having found the Respondents discriminatorily laid off and discharged Daniel Sabol about May 9 and June 3, 1964, respectively, I shall recommend that the Respondents offer him immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the Respondents' discrimination against him. Backpay, with interest at the rate of 6 percent per annum, shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. The unfair labor practices herein found, including the discharge of Daniel Sabol, are such as to indicate an attitude of opposition to the purposes of the Act generally. In these circumstances a broad cease-and-desist provision is necessary to effectuate the policies of the Act. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. By threatening employees with discharge if they joined or assisted the Union the Respondents have engaged in unfair labor practices affecting commerce within the meaning of Section 8(a) (1) and Section 2(6) and (7) of the Act. 2. By discriminatorily laying off and discharging Daniel Sabol because of his union membership and activity the Respondents have engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pur- suant to Section 10(c) of the Act, I recommend that the Respondents, Dunrail Con- struction Co., Inc., and Crossway Motor Hotels, Inc., their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with discharge because of their membership and activities in behalf of Hotel, Restaurant Employees and Bartenders Union, Local 178, Hotel & Restaurant Employees' & Bartenders International Union, AFL-CIO, or any other labor organization of its employees. (b) Discouraging membership in and activity on behalf of the above-named Union, or any other labor organization of its employees, by laying off or discharging Daniel Sabol, or otherwise discriminating against him, or any of their employees, in regard to their hire or tenure of employment or any term or condition of employ- ment, except as permitted by the proviso to Section 8(a)(3) of the Act. (c) In any other manner interfering with, restraining , or coercing their employees in the exercise of the rights guaranteed to them in Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act- (a) Offer to Daniel Sabo] immediate and full reinstatement to his former or sub- stantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of the Respondents' discrimination against him, together with interest at the rate of 6 percent per annum, in the manner set forth in the section entitled "The Remedy." (b) Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance DUNRAIL CONSTRUCTION CO., INC., ETC. 107 with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended , after discharge from the Armed Forces. (c) Preserve and, upon request , make available to the Board and its agents, for examination and copying , all payroll records , social security payment records, time- cards, personnel records and reports, and all other records necessary or useful to determine the amount of backpay due and the rights of reinstatement under the terms of this Recommended Order. (d) Post at their Dunwoodie Motor Inn, at Yonkers , New York, copies of the attached notice marked "Appendix ." 10 Copies of said notice , to be furnished by the Regional Director for Region 2, shall, after being duly signed by the Respond- ents' representative , be posted by the Respondents immediately upon receipt thereof, and be maintained by them for a period of 60 consecutive days thereafter , in conspic- uous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered , defaced , or covered by any other material. (e) Notify the said Regional Director , in writing , within 20 days from the date of the receipt of this Decision and Recommended Order, what steps the Respond- ents have taken to comply herewith.11 It is further recommended that unless on or before 20 days from the date of receipt of this Decision and Recommended Order, the Respondents notify the said Regional Director in writing that they will comply with the above Recommended Order, the National Labor Relations Board issue an Order requiring them to take such action. 10 If this Recommended Order Is adopted by the Board , the words "a Decision and Order" shall be substituted for the words " the Recommended Order of a Trial Examiner" in the notice . If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals, Enforcing an Order" for the words "a Decision and Order." u If this Recommended Order is adopted by the Board , this provision shall be modified to read: "Notify the Regional Director for Region 2, in writing , within 10 days from the date of this Order , what steps the Respondents have taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT threaten our employees with discharge because of their mem- bership in and activities on behalf of Hotel , Restaurant Employees and Bar- tenders Union, Local 178, Hotel & Restaurant Employees ' & Bartenders Inter- national Union , AFL-CIO, or any other labor organization of our employees. WE WILL NOT discourage membership in and activity on behalf of the above- named Union , or any other labor organization of our employees , by laying off or discharging , or otherwise discriminating against our employees in regard to their hire or tenure of employment , or any term or condition of employment WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment , as authorized in Section 8(a) (3) of the Act. WE WILL offer Daniel Sabol immediate and full reinstatement to his former or substantially equivalent position , without prejudice to his seniority or other rights and privileges , and make him whole for any loss of pay he may have suffered as a result of the discrimination against him. All our employees are free to become or remain, or to refrain from becoming or remaining , members of the above -named Union or any other Union. DUNRAIL CONSTRUCTION CO., INC., and CROSSWAY MOTOR HOTELS, INC, Employer. Dated------------------- By------------------------------------------- (Repreaentative) (Title) 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NOTE.-We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended , after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office, Squibb Building, Fifth floor, 745 Fifth Avenue, New York, New York , Telephone No. 751- 5500, if they have any question concerning this notice or compliance with its provisions. Herrin Transportation Company and Hugh M. Miller, attorney for and on behalf of the following individuals : Joe Tinkle, Willie Johnson , Robert Hoke , Willie C. Rose, James Volter, George Fontenette , James Washington , Thomas Gary, C. R. Samuels , R. J. Washington . Case No. 23-CA-1730. Febru- ary 17, 1965 DECISION AND ORDER On May 14, 1964, Trial Examiner C. W. Whittemore issued his Decision in the above-entitled proceeding, finding that the Respond- ent 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 Decision. Thereafter, the Respondent filed exceptions to the 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 [Members Fanning, Brown, and Jenkins]. 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 hereby adopts the findings, conclusions, and recommendations of the Trial Examiner,' except as modified herein. 1. In agreement with the Trial Examiner, we find that the Respondent unlawfully assisted and contributed support to the Herrin Employees Shop Committee. In this connection , we rely particularly upon the Respondent' s continued recognition of this 1 These findings and conclusions are based , in part, upon credibility determinations of the Trial Examiner , to which the Respondent has excepted , alleging that the Trial Examiner was biased and prejudiced . After a careful review of the record , we conclude that the Trial Examiner 's credibility findings are not contrary to the clear preponder- ance of all the relevant evidence . Accordingly , we find no basis for disturbing the Trial Examiner's credibility findings in this case, and reject the charge of bias and prejudice, Standard Dry Wall Products , Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 3). 151 NLRB No. 10.