Howard Johnson Co.

National Labor Relations Board - Board Decisions

Jun 28, 1968

172 N.L.R.B. 763 (N.L.R.B. 1968)

HOWARD JOHNSON COMPANY 763
Howard Johnson Company and International Union
of Operating Engineers , Local 68, AFL-CIO.
Cases 22-CA-3284 and 22-CA-3317
June 28, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On May 1, 1968, Trial Examiner George J. Bott
issued his Decision in the above-entitled proceed-
ing, finding that the Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief.
The General Counsel filed a brief in support of the
Decision and Respondent filed a brief answering
that of the General Counsel.
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
powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in these cases, and
hereby adopts the findings,' conclusions 2 and
recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, Howard Johnson Com-
pany, Englewood, New Jersey, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE J. BOTT, Trial Examiner: Upon a charge
of unfair labor practices filed by International
Union of Operating Engineers , Local 68,
AFL-CIO, herein called Union , in Case
22-CA-3284, on October 30, 1967, against
Howard Johnson Company, herein called Company
or Respondent , the General Counsel of the Na-
tional Labor Relations Board issued a complaint on
December 8, 1967, alleging that Respondent had
engaged in unfair labor practices in violation of
Section 8(a)(1) and (3) of the Act. On December
13, 1967, the Union filed a charge in 22-CA-3317
against Respondent alleging further violations of
the Act, and, on January 12, 1968, an order con-
solidating cases, amended complaint and notice of
hearing issued adding to the allegations of the
original complaint the allegations set forth in the
. charge in Case 22-CA-3317.
Respondent 's answer and amended answer to the
amended complaint admitted certain allegations
but denied the commission of any unfair labor prac-
tices. A hearing was held before me at Newark,
New Jersey , on February 5 and 6 , 1968, at which
all parties were represented . Subsequent to the
hearing , General Counsel and Respondent filed
briefs which I have carefully considered.
Upon the entire record in the case and from my
observation of the witnesses , I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent is a Maryland corporation with its
principal office and place of business in Maryland
and maintains various other places of business in
other States, including an ice cream manufacturing
plant in Englewood, New Jersey, the only facility
involved in this proceeding, where it is engaged in
the manufacture, sale, and distribution of ice cream
and related products.
In the course and conduct of the Englewood
operation during the 12-month period prior to the
issuance of the complaint, Respondent manufac-
tured and sold products valued in excess of
$50,000, of which products valued in excess of
s 50,000 were shipped from said plant in interstate
commerce. Respondent concedes and I find that it
is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the
meaning of Section 2(5) of the Act.
' These findings and conclusions are based in part, upon credihthty
determinations of the Trial Examiner to which Respondent has excepted
After a careful review of the record, we conclude that the Trial Examiner's
credibdt) findings are not contrar\ to the clear preponderance of all rele-
vant c%idence Accordingly we find no hams for disturbing these findings
Standard Dr, Wall Piodua is 91 NLRB 544, enfd 188 F 2d 362 (C A 3)
As we agree with the Trial Examiner that the Respondent was
172 NLRB No. 90
tnotnated by a desire to discourage union membership in depnung Koe-
hler and Vary of wage increases. we find it unnecessary to consider the
Trial Examiner's alternative finding that the Respondent's aforesaid con-
duct would hasc violated Section 8(a)( I ) and (3) of the Act even in the
absence of proof of such unlawful moos aeon
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
There are approximately 45 employees employed
at Respondent's Englewood plant but only two,
Henry Koehler and Victor Vary, powerhouse en-
gineers, are represented by a union, and the Union
is their certified representative. Very briefly stated,
on April 29, 1966, the Union filed a petition for an
election in the unit in which Koehler and Vary
work, and, after a hearing, the Regional Director,
on June 9, issued a Decision and Direction of Elec-
tion in the unit sought by the Petitioner The Union
won the election, and, after various proceedings
and appeals, the Regional Director issued a certifi-
cation of representatives on November 10, 1966.
Subsequently, Respondent refused to bargain with
the Union on the ground that the certification was
invalid, but, after additional proceedings, the Board
on May 22, 1967, held that Respondent's refusal
was a violation of Section 8(a)(5) and (I) of the
Act.' That case is presently pending enforcement in
the appropriate court of appeals.
The acts alleged as unfair labor practices in this
case grow directly out of the previous proceedings
and the Union's certification of representatives
which the Company is contesting. In short, the
complaints here allege that Respondent violated the
Act by warning its two operating engineers that
they would not get wage increases so long as they
were members of the Union or so long as the Union
pressed its charges of refusal to bargain, by promis-
ing the engineers a wage increase if they withdrew
from the Union; by refusing to consider them for
wage increases because they were members of the
Union; and by refusing to give wage increases to
them when it gave wage increases to other em-
ployees who were not represented by a labor or-
ganization . It is clear that Koehler and Vary got no
wage increases since 1966 when the petition for an
election was filed, although practically all other em-
ployees did, and it is also clear that Respondent's
failure to consider them for wage adjustments is
connected with the prior representation proceeding
which Respondent is contesting by refusing to bar-
gain with the Union. Respondent denies, however,
that any illegal statements or promises were made
to the unit employees, and contends also that its
failure to consider wage increases for Koehler and
Vary while it is litigating the propriety of the
Board's certification is legally justifiable.
B. The Facts
1. Employee conversations with Christensen and
Kurtz
Henry Koehler, whose testimony I credit, has
been employed as an engineer at Respondent's
plant since 1961. He is a member of the Union, and
voted in the election which was the basis for the
Union's certification. Koehler has not received a
wage increase since 1966, although there is no
question about his competency or the fact that the
area rate for operating engineers is considerably
higher than the $3.70 an hour that Koehler makes
Koehler received regular increases in wages before
he interested himself in the Union and voted in the
Board election.' On August 14, 1967, Respondent
installed a new chief engineer, Martin Christensen,
to supervise Koehler and Vary. A few days after
Christensen was hired, Koehler started conversa-
tions with him about his failure to receive a wage
increase, and he testified that he raised the question
about 40 times
According to Koehler, soon after he met
Christensen,; he asked him why he had not
received an increase in wages since February 1966,
although others had, and Christensen agreed that
he and Vary deserved higher rates and promised to
speak to plant manager Burnham about it to see if
he could raise them to the union scale in the area '
The day after this conversation, Christensen told
Koehler that he had talked with Burnham who said
that the employees could not get increases because
they "went for a union."
The gist of Koehler's numerous conversations
with Christensen during the next few months was
pretty much the same. As he met Christensen at
shift change he would frequently voice his discon-
tent, but he said that Christensen's usual response
was "we can't get you no more money because you
went for a union," although he conceded that the
situation was not "right." On one occasion,
Christensen's reaction to Koehler's continual
protests was that "he was disgusted with all the
talk" and would discuss the matter with Burks,
Respondent's labor relations counsel. A few days
later, Koehler asked Christensen if he had seen
Burks, and Christensen told him that he had, and
that "Burks said that the reason we can't get raises
is because if they gave us a raise , they would be giv-
ing into the union and recognizing the union."
In September 1967, and again in December
164 NLRB 901
He got a substantial increase in 1965 In early 1966, the then plant
manager told hint that an additional increase he was receit ing was part of a
"general increase' in plant wages
' It was stipulated that Christensen was .i supervisor within the meaning
of the Act
'Christensen is a former member of the Union, but sought a withdrawal
card on taking employment with Respondent
HOWARD JOHNSON COMPANY 765
1967, most of the employees were given increases,
but Koehler and Vary were not. Again Koehler vo-
iced his displeasure, and he said that Christensen
only repeated that because he and Vary had gone
"for the union" the Company could not give them
increases
One of Koehler's talks with Christensen about his
rate led to a conversation with Marlyn Kurtz, plant
manager of Respondent's Baltimore, Maryland,
operation, which is similar to the Englewood facili-
ty. Kurtz had been assigned to Englewood in Oc-
tober 1967 to observe conditions at the plant and
to advise Burnham , the then plant manager. Koe-
hler said that during one of his talks with Christen-
sen he indicated that he might have made a mistake
by getting involved with the Union, and he asked
Christensen if he knew of any way he could
withdraw from the Union and get a raise . He said
that Christensen told him that there might be a way
to solve the problem and get a raise because "this
case might take five years in court ." Sometime
after this conversation , Christensen asked Koehler
if he wanted to talk with Kurtz who might have
some thoughts on how Koehler could withdraw
from the Union and get a wage increase . Koehler
indicated willingness , and the next day Christensen
brought Koehler to Kurtz ' office where the two
talked alone.
Koehler told Kurtz that since he and Vary had
not had a raise since February 1966 it looked as if
the Company was holding a grudge because "we
went for the union ." He then repeated his conver-
sation with Christensen about some method for the
two men to resign from the Union and have their
wages raised. He said that Kurtz responded that if
Koehler and Vary did "get out of the union," the
Company would raise Koehler to $4.50 an hour and
Vary to $3.70. Kurtz advised Koehler to think it
over, and he replied that he would talk with Vary
and let Kurtz know later . He said the discussion
lasted an hour, and it appears that he never gave
Kurtz his decision on the subject of resignation.5
Victor Vary, the other engineer member of the
bargaining unit, said he was promised a raise in
February 1966 by the then plant manager if he ob-
tained his engineer 's license . He has gotten it, but
he too has received no increases since the litigation
over the unit in this case started in 1966. He also
had a few conversations with Christensen about his
wage problem . In September 1966, with Koehler
present , he pointed out to Christensen that another
employee who had no operator's license was mak-
ing more an hour than he and Koehler . After some
discussion , Christensen replied , according to Vary,
"you fellows went for a union , so that 's why you are
not going to get an increase."
Vary again complained to Christensen in October
that he and Koehler had been discriminated against
because they were union members . He said that
Christensen told him that he would like to discuss
the matter more as time went by and that he could
get the two engineers more money "if we really get
working together in harmony . . ." When in
December 1967, other employees received length
of service increases and Vary did not and com-
plained to Christensen , Christensen said so "long as
you went for the union , you are not going to get"
the increase . He added under cross-examination
that Christensen also said that he hoped the "union
matter" would be settled "one way or the other" so
that he could obtain more money for the two men.
Supervisor Christensen testified that before he
was hired he had a conversation with Plant
Manager Burnham in which Koehler and Vary were
mentioned . He said Burnham told him that
although he was a supervisor , he could not recom-
mend changes in wage rates because there was a
"union matter pending" and he could not act until
it was "settled one way or the other ." According to
Christensen, in his admittedly numerous conversa-
tions with Koehler and Vary he merely told them
that "so long as this matter was pending with the
union , Local 68, I could not get them any more
money until the matter was settled one way or the
ether ." He added that this was "essentially the
same " thing he said each time he talked with the
men.
Christensen denied that he told the employees
they could not have their wages raised because they
"went for a union ," but that if they got out of the
Union they would get raises . He also denied telling
Koehler that he could withdraw from the Union by
quitting the Company's employ and then being
rehired.6 Christensen conceded that, in addition to
his basic explanation to Koehler and Vary that a
union matter was pending and he could do nothing
for them until it was settled "one way or the other,"'
he also told them that he "wanted harmony in the
plant" and they noted that a wage increase would
"bring harmony and happiness "; that he agreed
that they deserved wage increases and promised to
"go to bat for them " when the "union matter was
settled"; and that he did discuss the matter with
Burnham and reported back to the men . He also
stated that he made sure that Kurtz "was availa-
ble," if Koehler wished to discuss his problem with
him, and told Koehler so. He recalled that Koehler
had "indicated " that perhaps it would have been
' Koehler had had two earlier conversations with Kurt/ about wages after said that if he had been running the plant at the time there would have been
Kurt/ armed at the Englewood plant to survey conditions In the first, he no problem and Kochler and Vary would have gotten what they deserved
merely complained about his status , and he s.ud Kurt? replied that he " Koehler had testified that this wan a method for avoiding the Union sug-
would talk to hint another time In the second , Koehler complained again gested to hint by Christensen in one of their conversations
about being treated unfairly because of the Union, and he said that Kurtz
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
better if he had not joined the Union, but he said he
did not recall discussing the subject with him.
Kurtz' version of his conversations with Koehler
differed from Koehler's except with respect to their
first meeting in early October where Koehler mere-
ly stated that he hadn't had a wage increase for
some time and thought the Company was holding a
grudge against him. Kurtz testified that a few weeks
later Koehler visited him and, after stating that he
would like to get out of the Union because it had
done nothing for him, asked Kurtz if he could ad-
vise him how to do it. Kurtz merely replied that he
had no experience in that area and could not tell
Koehler what to do.
Sometime after this second meeting with Koe-
hler, Kurtz told Burks about Koehler' s interest in
getting out of the Union and asked Burks what he
might tell Koehler if he asked again . According to
Kurtz, Burks told him that Koehler could write the
Union and ask to be released from it, but warned
him not to give Koehler any help in resigning from
the Union or make any promises to him.
Kurtz testified that in December 1967, after he
had talked with Burks, Koehler visited him again
and this time they had a lengthy meeting during
which Koehler told him again that he was unhappy
and that the Union had done nothing for him. Koe-
hler again inquired if there was some way he could
rid himself of the Union and asked him what the
Company would do for him if he did get out. Kurtz
said he only told Koehler that he could write a
letter of resignation to the Union, but that he could
promise him nothing if he did.
Kurtz denied that he mentioned money in his
conversation with Koehler in December or said that
Koehler would be raised to $4.50 an hour and Vary
to $3.70 if they quit the Union. He stated that
Burks told him not to take the information about
writing a letter to the Union back to Koehler, in-
dicating that Koehler 's visits and talks were
completely his own idea, but he also stated that
Christensen had discussed the Koehler situation
with him and told him some of the things that Koe-
hler later repeated to him. He agreed that he told
Christensen that he would be happy to discuss mat-
ters with Koehler . Later, as described , Koehler
came to him for advice, but he said he did not in-
itiate the movement.
2. The general wage increase of September 29 and
the length of service increase of December 8, 1967
A summary of Respondent's payroll records
shows that practically every employee in the Com-
pany's production department employed prior to
1967 received a wage increase of 5 to 10 cents an
hour during the week ending September 29, 1967.
Koehler and Vary did not.'
Based upon a wage survey which took place after
Kurtz was assigned to Englewood to assist and ad-
vise Burham , the plant manager, Respondent
adopted a new wage program, which it explained to
its employees, and installed on December 8, 1967.
As a result of the survey and program, a substantial
number of employees received wage increases.
Burnham testified that the primary factors involved
in the program were the base rate (which was
elevated in several cases), longevity, working con-
ditions, and leadership qualities of the persons oc-
cupying a particular classification. The factors were
assigned certain money values, and length of ser-
vice resulted in an increment over the base rate of
10, 15, and 20 cents an hour for 5, 10, or 15 years
of service, respectively. Records in evidence also
show that although a substantial number of em-
ployees with more than 5 years of service received
increases , some did not. The record also shows,
however, that of the eight employees with the
minimum length of service who were not raised,
one, George Srill, is a salaried employee whose du-
ties are primarily clerical in the shipping and
receiving department. Five of the remaining seven
are women who perform office clerical functions,
and four of them, in any case, got a raise between
the September 29 general increasse and the
December 8 increase. The fifth got a 10-cent in-
crease on September 29. The remaining two of the
eight were Koehler and Vary.
It is also a fact that five employees with less than
5 years of service got increases as a result of the
survey which culminated in the December 8 wage
program. Some of these employees, however, had
been recently hired, and two of them did not get an
increase in September 1967. Another works in the
shipping department. In the light of Burnham's
testimony, other factors, including a change in the
base rate, may have influenced the decision to raise
these employees with less than 5 years of service,
but it is a fact, and I find that, in the December 8
wage review, employees comparable to Koehler
and Vary with equivalent service received in-
creases.
There can be no question that Koehler and Vary,
their jobs, length of service, and personal qualifica-
tions were ignored by Respondent in determining
which employees would be elevated in September
and December 1967 Counsel for Respondent
stated at the hearing that it was the Company's
position that there would be no change in Koehler's
and Vary's wages, hours, or working conditions as
long as the refusal-to-bargain case remained un-
resolved. Burnham flatly stated in his testimony
that Koehler and Vary had received no increases
since 1966, and he was under specific instructions
from the Company's then director of labor relations
not to change their rates as long as "this case was
pending before the Board." He added that Koehler
Neither did Nothern, Oria ni, and Addis, but they had been recently
hired Turner's case, who did not, is unexplained in the record
HOWARD JOHNSON COMPANY 767
and Vary were given no consideration for a pay in-
crease in September 1967 because of "specific in-
structions that I could not." With respect to the
September and December wage reviews, he stated
at another point in the record that Koehler and
Vary did not receive wage increases because he was
"under specific instructions that went back over a
considerable length of time that as long as their
case was pending before the Board and the courts
that there could be no consideration given for a
change of wages, hours or working conditions."
These instructions, Burnham said, are still outstand-
ing. Kurtz also testified in connection with his con-
versations with Koehler that unlike the cases of
other employees who came to him and complained
about their wages or other problems, he made no
investigation in Koehler's case and did not speak
with Burnham about the possibility of improving
Koehler's rate because he "was aware of, the situa-
tion" and "this would be impossible" in the light of
the "Company's stand on this thing."
There really can be no doubt that Koehler and
Vary would have gotten raises if their cases had
been reviewed on the merits when Respondent
reviewed other employees in September and
December 1967. Burnham testified that he con-
sidered merit, length of service, and competitive
rates in deciding whether employees deserved a
wage increase. Koehler had received wage in-
creases before 1966, when this case began, and
Burnham said that he would assume that these in-
creases were all on the basis of merit. Burnham also
stated that, apart from his instructions not to give
Koehler and Vary any consideration for a wage in-
crease in September 1967, he knew of no reason
why they would not have received a wage increase
like the others, and "it would be safe to assume"
that they would have in other circumstances. Burn-
ham also noted that, with the exception of Kohler
and Vary, every employee who appeared on
Respondent's employee roster in March 1966 and
who was still employed at the time of the hearing
got some sort of a wage increase during that period.
Christensen, Koehler's and Vary's immediate su-
pervisor, was aware that their rates were con-
siderably below the area rate, which was one of the
factors which Burnham's wage survey included, and
Christensen, as has been noted earlier, recom-
mended both Koehler and Vary for increases on the
ground that the work they were performing
qualified them for it. Asked if he had concluded on
the basis of Koehler's merit, seniority, and rate, as
compared to other rates in the industry, that, com-
pared to other employees, Koehler should get an in-
crease, he stated that he had.
C. Analysis, Additional Findings, and Conclusions
Respondent's refusal to consider adjustments in
Koehler's and Vary's wages and its failure to in-
clude them in the September and December 1967
wage programs, which resulted in increases for a
substantial number of employees, was a clear viola-
tion of Section 8(a)(1) and (3) of the Act whether
or not there is proof that Respondent was
motivated by resentment towards the employees for
having exercised their rights under Section 7 of the
Act or by a desire to discourage membership in the
Union. Respondent argues that since it had been
ordered to bargain with the Union by the Board, it
would have violated the Act if it had given Koehler
and Vary wage increases "unilaterally," by which it
means without bargaining with the Union." Respon-
dent has refused to recognize the Union and it does
not intend to bargain with it as the representative of
the employees in the certified unit, at least until it
has exhausted its rights of appeal to the courts, and
so the obvious fallacy in its principal contention is
that it purports to excuse its discriminatory treat-
ment of Koehler and Vary on the ground that it has
violated another section of the Act, namely,
8(a)(5), by refusing to accord the employees' statu-
tory representative the recognition to which it is en-
titled.9 Admittedly, Koehler and Vary were ignored
when all other employees were twice considered for
wage adjustments, and clearly, as I found, Koehler
and Vary would have gotten substantial wage in-
creases if it had not been for Respondent's policy
regarding them. Koehler and Vary were the only
employees in the bargaining unit and both were
members of the Union. Respondent's position that
it could not elevate the wages of these employees
while the case under Section 8(a)(5) of the Act
remains "unresolved" is tantamount to a position
that the employees will be treated differently from
other employees because they caused the Union to
be selected, and that this difference in treatment
will continue so long as the employees continue to
support the Union, the Union continues to press
their charges, and the Board insists on protecting
their rights. In short, Respondent's conduct is "in-
herently destructive" of employee interests and
basic rights.10 It is clear that Koehler and Vary
would not have been treated as they were but for
the Union, and it appears that Respondent has no
legitimate purpose to justify its conduct."
" Respondent relies on N L R B v Benne Katz. d/h/a Wilhainshur^q Steel
PrcxlucisCo, 369 U S 736, 743, and May Department Stores dlh/a Panious-
Bair Conn/wit v N L R B , 326 U S 376, 384-385, where it was held that
an employer who is under a statutory duty to bargain with a certified
representative of his employees violates this duty by altering conditions of
employment without first bargaining with the representative
" Even a good-faith doubt as to the appropriateness of the unit does not
preclude the issuance of a bargaining order N L R B v Qua/its Markets,
bu , 387 F 2d 20 , 24, fn 3 ( C A 3), Saut /daul Pain t Co , 156 NLRB 22,
23
"' N L R B v Great Dane Traders, Inc , 388 U S 26, 33, 34 See The
Great Atlantic & Pacift Tea C'omnpam, Inc , 166 NLRB 27, Darling & Cont-
/wni, 170 NLRB 1068
i' the Kroger Co , 164 NLRB 362, Flossers Baking Canilxu,, hit , 161
NLRB 1429, 1440, Rassell-Newnan Manifacturing Con iliani, Inc , 167
NLRB I112
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I also find that Respondent was motivated in
treating Koehler and Vary as it did by a desire to
discourage membership in the Union. I have in-
dicated earlier that I found Koehler to be a credible
witness and I here specifically credit his testimony
over Christensen's. Koehler testified about a
number of conversations with Christensen in which
Christensen told him that he couldn't get an in-
crease because he and Vary "went for a union."
Christensen, as set out in more detail above, said
that all that he ever told Koehler and Vary was that
he could not recommend them for wage increases
until "the matter was settled one way or the other."
I do not credit Christensen's skeletal account of his
conversations with Koehler and Vary for a number
of reasons. First of all, Koehler appeared to be
recounting the events as he honestly recalled them,
but Christensen appeared to be understating what
had happened. In addition, Koehler was cor-
roborated by Vary with respect to the "went for a
union " remark, and it was evident from some of
Christensen's admissions that the talks with Koehler
were more detailed than it first appeared from his
direct examination. As found above, Christensen
remembered that there was reference to "har-
mony" in the plant in connection with a wage in-
crease discussion with Koehler, and he also remem-
bered something about Koehler indicating that it
might have been better if he had not joined the
Union. I find, as evidence of animus as well as a
separate violation of Section 8(a)( I) of the Act,
that Christensen told these employees that they
would not receive wage increases because they
were members of the Union and because the Union
continued to claim to represent them. I also find,
for essentially the same reasons, that Christensen
told Koehler during one of their conversations that
he had discussed the matter with Burnham who said
that the employees would receive no increases
because they had joined a union, and that, in
another conversation, he told Koehler that Respon-
dent's labor relations counsel, Burks, had told him,
when he brought the matter to his attention, that
there would be no raises, for, if the Respondent
granted increases, "they would be giving into the
union and recognizing the union." Such statements
are evidence of Respondent's motive and additional
violations of Section 8(a)(1) of the Act.
The complaint also alleges, and I find, that
Respondent promised employees wage increases if
they withdrew from the Union. During one of his
many conversations with Christensen about his
wage rate, Koehler voiced regret about having
become involved with the Union, and Christensen
remarked that if Koehler and Vary withdrew from
the Union they would get a higher rate. As found
above, Christensen told Koehler later that Kurtz
might have some ideas on how he could withdraw
from the Union, and he arranged for Koehler to see
him. During Koehler's meeting with Kurtz, Kurtz
told him that if he and Vary did withdraw from the
Union, the Company would raise their rates. It ap-
pears that Koehler initiated all conversations with
Christensen, and it also appears that it was he who
first stated that he was unhappy about the delay
caused by litigation, had second thoughts about the
Union, and ideas about resigning. Nevertheless, I
find that Christensen and Kurtz used Koehler's un-
certain and unhappy frame of mind, which existed
because of Respondent's refusal to recognize the
Union with which he is affiliated and as a result of
Respondent's disparate treatment of him, to en-
courage him to withdraw from the Union on the
promise of a wage increase for both employees. By
such conduct, Respondent violated Section 8(a)( I )
of the Act.
Although Koehler at one stage of his examination
could not recall Christensen making any sug-
gestions about the Union withdrawing its unfair
labor practice charges, he was able to recall a con-
versation about it with Christensen when his
memory was refreshed. I find, as Koehler testified,
that Christensen asked him why he did not ask the
Union to withdraw its charges so that he and Vary
could get raises in pay, and that he responded that
he had done so, but that the Union refused to
withdraw.12 Such suggestion was an additional
violation of Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in sec-
tion III, above, occurring in connection with
Respondent's operations described in section I,
above, have a close, intimate, and substantial rela-
tionship 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
It having been found that Respondent engaged in
unfair labor practices in violation of Section
8(a)(1) and (3) of the Act, it will be recommended
that the Respondent cease and desist therefrom and
take certain affirmative actions designed to effectu-
ate the policies of the Act.
Having found that Respondent illegally deprived
Koehler and Vary of wage increases in September
and December 1967 and has continued to deprive
them of wage increases since that time in violation
of the Act, it will be recommended that Respon-
dent make Koehler and Vary whole for the loss of
earnings they suffered by reason of the discrimina-
" The reference is to Case 22-CA-2961, the refusal -to-bargain charge
which grew out of Respondent 's refusal to honor the Union's certification
HOWARD JOHNSON COMPANY 769
tion against them by payment to them of the addi-
tional sums of money which they would have
earned as wages from the date of discrimination
against them to the date that Respondent elevates
their wage rates to where they would have been ab-
sent the discrimination against them. Interest on
backpay shall be computed in the manner set forth
in Isis Plumbing & Heating Co., 138 NLRB 716.
It will also be recommended that Respondent
preserve and make available to the Board, upon
request, payroll and other records to facilitate the
computation of the amounts of back wages.
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. The Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By denying Koehler and Vary wage increases
in September and December 1967, and by continu-
ing to deny said employees wage increases ever
since, Respondent discriminated as to their terms
and conditions of employment and thereby sought
to discourage membership in the union, which had
been chosen by them as their collective-bargaining
agent, in violation of Section 8(a)(3) of the Act.
4. By the conduct set forth in section III which
has been found to constitute unfair labor practices,
Respondent interfered with, restrained, and
coerced its employees in the exercise of rights
guaranteed to them by Section 7 of the Act, and
thereby engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)( I) of
the Act.
5. The aforesaid unfair labor practices are unfair
labor practices within the meaning of Section 2(6)
and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law, and upon the entire record
in the case, I recommend that Howard Johnson
Company, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Discouraging membership in the Union, or in
any other labor organization, by withholding wage
increases from employees.
(b) Advising employees that they will receive
wage increases if they withdraw their membership
in and support of the Union.
(c) Informing employees that they would receive
no wage increases as long as they were members of
the Union and as long as the Union claimed to
represent them pursuant to its certification of
representatives.
(d) In any other manner interfering with the
rights guaranteed in Section 7 of the Act, except to
the extent that such rights may be affected by an
agreement requiring membership in a, labor or-
ganization as a condition of employment as
authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action, which
will effectuate the policies of the Act:
(a) Adjust the wage rates of Koehler and Vary
by conforming such rates to the rates they would
have received if Respondent had not discriminated
against them.
(b) Make Koehler and Vary whole for losses of
wages they suffered as a result of the discrimination
against them as set forth in the section of the Trial
Examiner's decision entitled "The Remedy "
(c) Preserve and, upon request, make available
to the Board or its agents all payroll records and
other records in Respondent's possession necessary
for the computation of lost earnings due hereunder.
(d) Post at its Englewood, New Jersey, plant in-
volved herein copies of the attached notice marked
"Appendix."'" Copies of said notice, to be
furnished by the Regional Director for Region 22,
after being duly signed by Respondent's representa-
tive, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous
places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material
(e) Notify said Regional Director, in writing,
within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.'4
" In the event that this Recommended Order is adopted by the Bogard,
the words -ai Decision and Order " shall he substituted for the ccords the
Recommended Order of a Trial Examiner" in the notice In the further
esent that the Board 's Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order -
" In the event that this Recommended Order is adopted by the Board
this provision shall he modified to read " Notify the Regional Director tor
Region 22 , in w riting, u thin 10 days from the date of this Order , u hat steps
Respondent has taken to comply hereu nh "
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 Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT discourage membership in In-
ternation Union of Operating Engineers, Local
68, AFL-CIO, or any other labor organization,
by withholding wage increases from em-
ployees.
354-126 O-LT - 73 - pt. 1 - 50
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT tell employees that they will
receive wage increases if they withdraw their
membership in and support of said Union.
WE WILL NOT tell employees that they will
receive no wage increases as long as they are
members of said Union or as long as said
Union claims to represent them under its cer-
tification of representatives.
WE WILL adjust the rates of employees Koe-
hler and Vary by raising said rates to what they
would be if they had not been discriminated
against.
WE WILL make Koehler and Vary whole for
loss of earnings suffered as a result of not being
considered for wage increases and not being
raised when other employees were by paying
them the additional wages they would have
earned if they had been considered and raised
like other employees.
WE WILL NOT in any other manner interfere
with the rights guaranteed employees in Sec-
tion 7 of the Act, except to the extent that
such rights 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.
HOWARD JOHNSON
COMPANY
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered , defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions , they may.
communicate directly with the Board's Regional
Office, 614 National Newark Building , 744 Broad
Street , Newark, New Jersey 07102, Telephone
645-3088.