J. J. Gumberg Co.

National Labor Relations Board - Board Decisions

Apr 19, 1971

189 N.L.R.B. 889 (N.L.R.B. 1971)

J. J GUMBERG CO. 889
J. J. Gumberg Co. and Pennley Park South , Inc. and
James F. Hux, III. Case 6-CA-5025
April 19, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On November 12, 1970, Trial Examiner Josephine
H. Klein issued her Decision in the above-entitled
proceeding, finding that the Respondents had en-
gaged in and were engaging in certain unfair labor
practices, and recommending that they cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision.
On November 27, 1970, the Respondents filed
exceptions to the Trial Examiner's Decision and a
supporting brief. On December 7, 1970, the General
Counsel filed a brief in support of the Trial Examin-
er's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, 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 recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondents, J. J. Gumberg Co. and Pennley Park
South, Inc., Pittsburgh, Pennsylvania, their 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
JOSEPHINE H KLEIN, Trial Examiner- This case was tried
in Pittsburgh, Pennsylvania, on September 1, 1970,i on a
complaint issued against J. J. Gumberg Co. (Gumberg) and
Pennley Park South, Inc (Pennley) on July 30, pursuant to
a charge filed by James F. Hux, III, on May 15 and an
amended charge filed on July 30,2 alleging discriminatory
discharge of Hux on May 13, in contravention of Section
8(a)(3) and (1) of the Act.3
Upon the entire record,4 observation of the demeanor of
the witnesses, and consideration of the briefs filed on behalf
of the General Counsel and Respondents, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. PRELIMINARY FINDINGS
A. At all times material herein, Respondent Pennley, a
Pennsylvania corporation, owned Penn Plaza Apartments,
residential rental property. During the 12-month period
immediately preceding the issuance of the present com-
plaint, Pennley derived revenues in excess of $500,000 from
ownership of Penn Plaza Apartments and during that
period it purchased goods and materials valued in excess of
$5,000 from points outside Pennsylvania. Respondent
Pennley is engaged in commerce or activities affecting
commerce within the meaning of Section 2(6) and (7) of the
Act and within the Board's announced jurisdictional
standards. Parkview Gardens, 166 NLRB 697.
The parties stipulated, and the Examiner accordingly
finds, that Respondent Gumberg, a Pennsylvania corpora-
tion, is contract manager of several office buildings and
that the gross revenue derived from such office buildings
exceeds $100,000 per year, of which more than $25,000 is
derived from organizations directly engaged in commerce.
Respondent Gumberg is engaged in commerce or in
activities affecting commerce within the meaning of Section
2(6) and (7) of the Act and within the Board's announced
jurisdictional standards. Mistletoe Operating Company, 122
NLRB 1534, 1536.
Gumberg manages Penn Plaza Apartments under a
contract with Pennley which provides that Gumberg shall
have authority:
To hire, discharge and supervise all labor and
employees requned for the operation and maintenance
of the premises, it being agreed that all employees shall
be deemed the employees of [Pennley] and not
[Gumberg].
All rents are deposited "in a rent account, separate from
Gumberg's personal account," and all expenses, including a
fixed monthly fee to Gumberg, are paid from such account.
Employees are paid from this fund in Gumberg's name. The
contractual disclaimer of employer status for Gumberg is
not conclusive as to its actual status under the Act. Keystone
Universal Carpet Co, 130 NLRB 4, 9, enfd. 306 F.2d 560
(C.A 3); Toledo Scale Co., 82 NLRB 826, 828. Both under
the terms of the contract and in actual practice, Gumberg
"exercises full control over the persons employed at" Penn
Plaza Apartments and, accordingly, "an employer-employ-
ee relationship exists between [Gumberg] and these
employees." Pacific Hosts, Inc. - Padre Trails Motel Corp,
i Unless otherwise stated, all dates herein are in 1970
2 The original charge named Harvey 'vt Amado as the employer The
amended charge named Gumberg and Pennley, with Amado designated as
the employer representative
3 National Labor Relations Act , as amended (61 Stat 136 , 73 Stat 519,
29 U S C Sec 151, et seq )
4 The General Counsel's unopposed motion to correct the transcript is
hereby granted and the transcript is corrected in accordance therewith
189 NLRB No. 120
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
156 NLRB 1467, 1469, Barry Industries, Inc., 181 NLRB
No. 159.
The contractual provisions designating Pennley as an
employer is not conclusive on the Board. However, "the
contract which . . . has particularized the rights and
liabilities of the parties [ is] an initiation point [the Board is]
free to select." Herbert Harvey, Inc. v. N.L.R.B, 424 F.2d
770, 775 (C.A.D C ). Since Pennley by contract has
assumed the status of an employer, and the employees are
paid from funds beneficially belonging to it, there appears
no reason for relieving it of the statutory obligations of an
employer. Accordingly, it is found that Respondent
Pennley is an employer within the meaning of Section 2(2)
of the Act.
On the basis of the foregoing findings, it is concluded that
Respondents Pennley and Gumberg arejoint employers of
the employees at Penn Plaza Apartments within the Board's
jurisdictional Standards. Pacific Hosts, Inc, supra, 156
NLRB 1467 Cf. Manpower Inc, 164 NLRB 287; Herbert
Harvey, Inc v N.L R B., 385 F.2d 684 (C.A.D.C.).5
B. Service Employees' International Union, Local 29,
AFL-CIO, (the Union) is, and has been at all material
times, a labor organization within the meaning of Section
2(5) of the Act
II THE UNFAIR LABOR PRACTICE
On May 13, Hux, the Charging Party, was discharged
from his job as ajanitor at the Penn Plaza Apartments. The
sole question presented is whether his activity on behalf of
the Union was a substantial factor in the discharge.
In December 1969, in answer to a newspaper advertise-
ment, Hux applied for a job as a janitor at the Penn Plaza
Apartments After filling out a written application form
and being interviewed first by Mr. Sickles, at that time the
building superintendent, and then by Harvey M. Amado,
property manager for Gumberg, Hux was hired, reporting
for work, as instructed, at 8 a.m the following Wednesday,
the beginning of the next 2-week pay period. Hux worked at
the apartment house from 7 a m. to 2 p.m. Mondays
through Fridays and from 7 a.m. to noon or 8 a.m. to 1 p.m
on Saturdays. As he had been doing, he also worked from 3
to II p m. as a time recorder for a machine company.6
On Monday, May 11, 1970, Hux called the Union and
spoke to David R. Glavin, secretary-treasurer, about the
possibility of organizing the employees at Penn Plaza. Hux
then spoke about the Union to some 7 to 10 employees,
including Frank J Challinor, then resident maintenance
man at the Penn Plaza U-V-W building and Hux's
immediate supervisor; Bill Keag, resident manager at the
other building (X-Y-Z); and the sister-in-law and the son of
Frank Granata, who was then building superintendent,
above Challmor and Keag Challinor, who is conceded to
be a supervisor under the Act, described his conversation
with Hux as follows.
[Hux] approached me in the hall and asked me if I
wanted to make more money I says, "What are you
going to do?" And he said that he was going to organize
5 Respondents maintain that Pennley is the employer, with Gumberg
involved only as an agent If that view were to be accepted, Gumberg
would nonetheless be an "employer" within Sec 2(2) of the Act, which
provides that "The term `employer' includes any person acting as an agent
the union. That he wanted to talk to the other guys and
he asked me if I knew where they were at. And I told
him I didn't want anything to do with it because I'm
part of management.
On May 13, in the middle of a pay period, without any
advance notice, Challmor gave Hux a paycheck and told
him he was discharged.
"The abruptness of a discharge and its timing are
persuasive evidence as to the motivation." N.L.R.B. v.
Montgomery Ward & Co., 242 F.2d 497, 502 (C.A. 2), cert.
denied 355 U.S. 829 The timing of the unheralded
discharge and the undisputed fact that supervisory
personnel knew of Hux's Union activity, together with the
smallness of the staff (N.L.R B. v. Pembeck Oil Corp., 404
F.2d 105, 110 (C.A. 2), remanded 395 U.S. 828; N.L R.B. v.
Mid State Sportswear, Inc, 412 F.2d 537, 539 (C A. 5);
Weise Plow Welding Co., 123 NLRB 616, 618), establish a
prima facie case of discriminatory discharge. "The Compa-
ny had the burden to come forward with an adequate
explanation for discharging [Hux] once a prima facie case
of possible discrimination had been established by the
General Counsel." N.L.R.B. v. Standard Container Co., 428
F.2d 793 (C A. 5).
Respondent maintains that Amado had no knowledge of
the Union activities when he gave the necessary final
approval for Hux's discharge. Since sometime in March
there had been something less thanjovial goodwill between
Challinor and Hux. According to Challmor and Amado,
Challinor had frequently sought to have Hux discharged.
But there is no evidence that Hux was ever made aware of
this fact in any manner. Amado testified that he decided
not to take the requested action, since Challinor was new,
having been hired at the same time as Hux, and Amado
hoped that the "incompatibility" between the two young
men would somehow resolve itself According to Amado,
toward the end of the working day on May 12, Frank
Granata again broached the subject of discharging Hux
because of his "incompatibility" with Challinor. This time
Amado agreed and, in response to Granata's request, said
he would ask the accounting office to prepare a final
paycheck for delivery to Hux the next day.
The question immediately apses to why Amado at that
point reversed his prior consistent refusal to approve Hux's
discharge. In their brief, Respondents say: "The only
reason that Hux was not discharged sooner was due to the
inexperience and recent employment of his immediate
supervisor, and due to a lack of replacement until May
13th." The record, however, does not support this
statement. Asked precisely when the decision to discharge
Hux had been reached, Amado testified.
A specific date was probably a few days prior to his
final check because in discussions with Frank Granata,
obviously Challinor and he are incompatible. Granata
himself was sort of scheduled to be phased out in any
of an employer" Acceptance of this alternative basis for jurisdiction over
Gumberg would, at most, affect only the scope of a remedial order
6 Presumably he did not work at this job on Saturdays
J. J. GUMBERG CO. 891
event because he was going back as construction
foreman with Navarro. [ 7 ] I had to arrive at some
solution there and finally I said, "look. If the thing's not
going to work out let's replace him."
The question was: How do I replace him. I says,
"Well, you've got a man out there cleaning up grounds.
Just pull him in and we won't replace the man outside."
This is actually what we did . .
The immediacy of problem is not apparent. Granata did
not leave until August, some three months later. So far as
appears, the outside grounds man would have been as
available before and after May 13 as he was at that time.
Respondents did not undertake to explain how the grounds
man suddenly became "surplus" on May 12.
Challinor testified that he did not inform Amado or any
other management representative of his conversation with
Hux about the Union. It seems highly improbably that
Challmor, who clearly identified himself with management,
would not feel obliged to advise higher authority of the
matter of such interest.
Further, Amado could have learned from several other
sources. Admittedly, building superintendent Granata
knew of Hux's Union activity when he requested Hux's
discharge on May 12. Amado's testimony concerning this
event was:
[Granata] says, "Then can you have his check here
tomorrow?" I said, "Yes. I'll have Pamela, the
accountant, make it up." And then he said, "By the
way, did you know that he was trying to unionize?" I
said "No." I says, "But you know, finding out at this
point, one day before this takes place." The question
really within my own mind was was this intended for me
to know it this way or not? And I says, "Well, you,
know, the decision was made and he's gone. That's all.
What the hell. I wasn't sitting there stopping the union
at Penn Plaza or anywhere else.". . . This was the first
time I was advised by Frank Granata to this effect.
Now after that I asked some questions around and I
found, you know, everybody knew about it but Harvey
Amado. And I thought, well why wasn't I told about it?
Not for any particular reason, but why didn't they tell
me before they arrived at this point. At least I could
have protected myself.
In explanation of what he meant by saying he "could have
protected" himslef, Amado said, in effect, that if he had
known about Hux's incipient Union activities, he would
have deferred the discharge until completion of the
organizational campaign.8
Granata did not testify and Respondent's failure to call
7 Navarro is apparently a construction company somehow affiliated
with Gumberg
8 The relevant testimony is
A Well, if I had known that he was doing this two or three weeks
before , I certainly wouldn't have fired him at that point because
obviously he would have to go and function with what he was doing
See He was out recruiting Let him go ahead and recruit You see I
had no objection
Q [The following question appears as hereby corrected,
principally to correct the punctuation in the transcript) Then what
you're saying is that if you had known that he was talking union, you
would have kept him on so that he could organize'
A If he chose to and if he could, fine
Q You'd have decided not to fire him, but-9
A Oh, no I would have fired him ultimately, but I would have
him was unexplained. Again, it seems improbable that
Granata would fail to mention his recently acquired
information in renewing the request for Hux's discharge,
particularly since there is no other apparent reason for
Granata to have believed that Amado was inclined to
reverse his position. And Chalhnor indicated that he had
not recently renewed his request for Hux's discharge .9
It is unusual, to say the least, for an employer to retain an
unwanted or undesirable employee solely to enable him to
organize the other employees. In any event, according to
Amado's own testimony, he was informed of Hux's Union
activities before the accounting department was asked to
prepare the employee's final check and before either Hux or
Challtnor was advised of the decision. It clearly was not too
late for Amado to keep Hux on "to go through the
mechanics" of recruiting for the Union. The Examiner thus
discredits Amado's testimony that he would have kept Hux
on for some time if he had known of the Union activities on
May 12. The Examiner cannot escape the conclusion that
Amado's statement that he "could have protected" himself
if he had known of the Union activities was an inadvertent
slip, indicating a hindsight wish that a better "record" had
been made to support the discharge.
When giving Hux his final check, Challtnor said that the
reason for the discharge was Hux's holding twojobs, which
made him unavailable in the event of emergency. Challtnor
testified concerning two emergencies which had arisen. He
conceded, however, that he had not had to call on Hux or
any other off-duty janitorial employee since in each
instance an employee was visiting Challtnor and between
them they were able to handle the problem. Inconsistently
with Challinor, Amado, who lives in the building, testified
that he "was awakened one morning, 2 or 3 o'clock" 10 by
Challinor, who reported some emergency and asked
Amado whom he should call in. Amado testified that he
told Challinor to "Get one of your employees or two of
your employees other than those around." Amado then
added: "I can't get into the day-to-day operation there.
That's what the superintendent's job is for." Thus, there is
no credible evidence that Hux's dual employment had ever
rendered him unavailable when called or needed for an
emergency. Presumably Bill Keag, resident maintenance
man at the X-Y-Z building, would be generally available, as
well as other Janitorial employees.
The "moonlighting" nature of Hux's employment by
Respondents was clearly disclosed on his written employ-
ment application. Hux testified that in the original
employment interview Amado raised some question about
Hux's holding two jobs. According to Hux, Amado spoke
wanted him to go through the mechanics of whatever he was going
through
Q And that's what you meant when you said, At least I would
have protected myself '9
A Right I've been through these previously I let them go
through the mechanics of it That's all.
s Challmor testified " and I had talked to Mr Amado about it and
he said to let it ride That it'd iron itself out And Frank [Granata] never
said anything about he was going to get a replacement for him or not so I
just lived with him So I found out that he was going to get-he was being
fired on the 12th , I believe " At another point, however, he said he had
asked to have Hux fired "[a]fter the inspection ," apparently referring to the
building inspection of May 8
tU It might be observed that this was not during Hux's working time at
his other job
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of a general policy against hiring people who held other
jobs but agreed to hire Hux upon Hux's assurance that his
other job was sedentary and would leave him time for
adequate rest. Amado testified that when he first inter-
viewed Hux, Hux's employment application was on the
table and Amado examined it "very cursorily." When asked
if he knew of Hux's other employment when he approved
his employment, Amado testified:
No. I think it was after an inquiry was made on the
report in the office that we realized that he did have
another job. Payroll something. Mesta. And I didn't
initially do too much about this until suddenly we found
that on two or three occasions where they have had
emergencies.. .
Amado's testimony is silent as to when he claims to have
become consciously aware of Hux's dual employment.
Although Challinor dated one of the alleged "emergencies"
in February, Hux was not discharged until May, when
Amado maintained he became convinced that the
"incompatibility" between Challinor and Hux was irremi-
diable. Challinor testified, in effect, that it was his own idea
to tell Hux that his discharge was caused by his dual
employment.
On all the evidence, together with observation of the
demeanor of the witnesses, the Examiner credits Hux's
testimony that Amado was specifically aware of Hux's
having other employment when he was hired by Respon-
dents. The Examiner finds that Hux's dual employment
was not the reason for his discharge by Respondents on
May 13.
Although his dual employment was the only reason for
his discharge that Hux was given at the time, Respondents
now assert several additional reasons therefor.
Respondents lay great stress on the undisputed coolness,
if not animosity, between Hux and Challinor. The two
young men were both hired in December 1969. The strain
in their relationship arose sometime in March, when
Challinor, who is White, addressed Hux, who is Black, as
"boy." Hux responded by saying that a repetition of that
epithet would result in Hux's foot being placed forcibly on
Challinor's posterior. Challinor testified that he had been
unaware that Negro men resented the appellation "boy"
and that he then attempted to apologize to Hux but was
rebuffed. Thereafter, according to Challinor, the relation-
ship between the two men was essentially one of silence.
Challinor testified that Hux was thereafter
"uncooperative." But Challinor was unable to provide any
basis for that judgment. He conceded that Hux had never
said anything which manifested antagonism to Challinor.
Challinor futher testified that he thereafter did not give any
instructions or orders to Hux. Thus, there was no evidence
or claim of disobedience or insubordination on Hux's part.
As previously noted, Amado was early made aware of
Challinor's dislike of Hux but declined to take any action.
Respondents have offered no plausible or credible
explanation for Amado's change of heart and precipitous
decision on May 12.
Respondents contend also that Hux's work was generally
unsatisfactory. But the record fails to support this claim.
First, it should be noted that in February Hux and Louise
Granata received wage increases from $1.60 to $1.70 per hour.
The remaining employees received similar increases
effective as of the next pay period, after some of them
complained. Although Amado's testimony was not entirely
clear on this point, he suggested that the singling out of Hux
and Louise Granata was the result of a computer or
accountant's error. However, no further explanation was
given. On the other hand, Hux testified, without contradic-
tion, that Sickles had praised his performance during his
first month. Hux further testified without contradiction that
when he asked for another raise in April, his work was
praised by Amado, who said that since Louise Granata and
Hux had been working at Pennley Plaza, in a reversal of the
prior conditions, the U-V-W building was better main-
tained than the X-Y-Z building. According to Hux's
uncontradicted testimony, Amado at that time agreed that
Hux was worth more than $1.70 per hour but denied the
raise because granting it would "upset the budget."
Challinor testified that Hux's work was satisfactory
during his first few months but it deteriorated after their
"feud" arose. However, there was evidence of only two
specific instances in which Hux was accused of being
uncooperative, and both of those occurred before the "boy"
incident which initiated the "feud" in March.
In support of their contention that Hux's work was not
satisfactory, Respondents in their brief say: "On at least
two inspections, Hux's work received `gigs', [ ii ] for which
he was reprimanded." The first of the two inspections
referred to was in March. Challinor testified that he could
not remember how many "gigs" Hux had at that time or
whether he had more than the other employees did.
Challinor acknowledged that in the second inspection,
which was made less than a week before the discharge,i2
Hux had fewer "gigs" than any other employee. Since it was
undisputed that there is a very high employee turnover rate
at Penn Plaza and Amado testified that it is very difficult to
secure employees for janitorial jobs, it is impossible to
believe that Respondent would discharge as an unsatisfac-
tory employee the one who had the least number of "gigs."
The specific "gigs" mentioned by Challinor concerned the
conditions of the boiler room in the U-V-W building. Hux
ascribed those deficiencies to the employee, a transitional
mental-hospital patient, who was on duty after Hux left.i3
Challinor testified that in August he had to call a man in
specially to burn trash. He acknowledged that the janitor
who had left without fulfilling his responsibility to bum the
trash was not discharged. Finally, and most significantly, as
heretofore stated, Challinor did not refer to the "gigs" or
other claimed deficiencies when he informed Hux of the
discharge. Instead, Challinor told Hux he was being fired
"because of his having anotherjob, and we need somebody
there in case of an emergency." And, according to
Challinor, he "just told [Hux] no hard feelings and [they]
shook hands."
Respondents also refer to the fact that "on more than one
occasion, Hux left the job to conduct personal matters."
ii "Gigs" are notations of deficiencies which call for corrective action 13 Several such transitional mental-hospital patients have been
12 Hux placed the inspection on Friday, May 8 The report is dated employed at Penn Plaza Apartments Amado indicated that such
May 12 and states that the inspection was made on May I I experimental employment has been found unsatisfactory
J. J. GUMBERG CO 893
There was no contradiction of Hux's testimony that on
each occasion that he took time off for personal matters he
cleared with Granata in advance . There was no evidence
that Respondents ' representatives ever objected to these
short absences or that they interfered with or impeded
Hux's performance of his duties . In a similar vein,
Respondents contend that Hux spent some time talking
with fellow employees instead of working . However, so far
as appears , neither he nor the fellow employees were ever
warned or reprimanded for this activity.
Respondents appear to maintain that Hux's "frequent
dissatisfaction over wages " contributed to his discharge.
Little need be said of this contention except to note that if
Respondents were inclined to discharge employees who
asked for higher wages, they would probably oppose
unionization of their employees.
Further, it should be noted that, although Amado had
originally postponed Hux's employment so that he would
start work at the beginning of a pay period , the discharge
came without notice in the middle of a pay period Amado
explained that , as a matter of policy, employees are never
given advance notice of discharge because of Respondent's
fear that an employee given advance notice of his discharge
might have duplicate keys made for future nefarious use.
But this does not explain why the discharge, and
concommitant transfer of another employee , could not
have been delayed , as was Hux's original employment, until
the beginning of the next pay period.
Respondents emphasize the absence of any evidence of
anti-Union animus on their part as evidencing lack of
discriminatory motivation in the present case. While the
absence of other acts of anti -Union conduct is relevant and
sometimes significant in determining motivation in a
particular case , its significance in the present case is
minimized by the absence of any prior union activities.
Without any prior attempts at organization , there would be
no occasion for antiunion activity on Respondent 's part.
The decision to discharge Hux was reached the day after he
first consulted the Union and mentioned the subject at
work.
Respondents also rely on the fact that other buildings
managed by Gumberg are unionized.14 Whatever weight
such fact might have in other situations , it has little in the
present case, since it appears that the other apartment
houses referred to (not owned by Pennley) were umonized
before Gumberg took over their management.
Respondents ' "vacillation and the multiplicity of their
alleged reasons for firing Hux render their claims of
nondiscrimination the less convincing ." N.L.R.B . v Schill
Steel Products, Inc., 349 F.2d 568 , 573 (C.A. 5). The only
apparent plausible explanation of Hux's sudden discharge
is his instigation of a Union organizational campaign in
furtherance of his longstanding attempt to secure higher
wages. On all the evidence , the Examiner finds and
concludes that , as alleged in the complaint, James F. Hux,
i4 The record in unclear on this point since Amado, Respondent's only
witness on this issue, repeatedly disclaimed intimate knowledge of
Respondent's administrative, financial, and business operations He
testified that Gumberg manages about 13 buildings, of which 2 office
buildings and probably 4 to 6 apartment buildings are unionized
Apparently all the unionized buildings managed by Gumberg are owned
by the University of Pittsburgh
III, was discharged from his job at the Penn Plaza
Apartments in violation of Section 8(a)(3) and (1) of the
Act because of his activity of behalf of the Umon.
CONCLUSIONS OF LAW
1 Respondents, jointly and severally, are employers
engaged in commerce within the meaning of Section 2(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 discharging James F. Hux, III, and thereafter
failing or refusing to reinstate him, in order to discourage
union activities, Respondents have discriminated in regard
to hire and tenure of employment, in violation of Section
8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents discriminatorily dis-
charged James F. Hux, III, the Examiner will recommend
the cease-and-desist, reinstate with backpay, and notice
posting remedies customary in such cases. Backpay shall be
computed in the manner prescribed in F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating Co,
138 NLRB 716.
RECOMMENDED ORDER15
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act,the Trial Examiner hereby issues the following
recommended:
ORDER
Respondents, J. J. Gumberg Co. and Pennley Park South,
Inc., jointly and severally, their officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Service Employees'
International Union, Local 29, AFL-CIO, or any other
labor organization, by discriminating against any of its
employees as to hire, tenure, or other terms or conditions of
employment.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which it is
found will effectuate the policies of the Act:
(a) Offer James F. Hux, III, immediate and full
reinstatement to his former position, or, if that position no
longer exists, to a substantially equivalent position, without
prejudice to his seniority and other rights and privileges.
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 , recommendations , and recommended Order herein
shall, as provided in Sec 102 48 of the Rules and Regulations , be adipted
by the Board and become its findings , conclusions , and order, and all
objections thereto shall be deemed waived for all purposes
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Make James F. Hux, III, whole for any loss of
earnings suffered by him as a result of the discrimination
practiced against him, in the manner set forth in the section
of the Trial Examiner's Decision entitled "The Remedy "
(c) 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 and Universal Military Training and
Service Act of 1948, as amended, after discharge from the
Armed Forces.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports and all records necessary to
analyze the amount of backpay due and the rights of
employees under the terms of this Order.
(e) Post at the Penn Plaza Apartments and at the office of
J.J. Gumberg Co. copies of the attached notice marked
"Appendix "16 Copies of said notice, on forms to be
provided by the Regional Director for Region 6, after being
signed by representatives of Respondents, shall be posted
by Respondents immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
Respondents to ensure that said notices are not altered,
defaced, or covered by any other material
(f) Notify the Regional Director for Region 6, in writing,
within 20 days from the date of this Decision, what steps
Respondent has taken to comply herewith.17
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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
17 In the event that this recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 6, in writing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith "
WE WILL NOT discourage membership in Service
Employees International Union , Local 29, AFL-CIO,
or any other labor organization , by discriminating
against any of our employees in regard to hire and
tenure of employment or any term or condition of
employment.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce our employees in the exercise of
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 organiza-
tion as a condition of employment , as authorized in
Section 8(a)(3) of the Act, as amended).
WE have offered James F. Hux, III, immediate and
full reinstatement to his formerjob without prejudice to
his seniority or other rights or privileges previously
enjoyed by him, but he refused our reinstatement offer.
We then paid him the sum of $2,152.41 representing
backpay for the loss of pay he suffered as a result of his
discharge by us on May 13, 1970, with interest at the
rate of 6 percent per annum , all as required by the Order
of the National Labor Relations Board.
All our employees are free to become, remain , or refuse to
become or remain , members of SERVICE EMPLOYEES'
INTERNATIONAL UNION' LOCAL 29, AFL-CIO, or
any other union (except to the extent that such freedom
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, as amended).
Dated By
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a full trial, in which the parties had the opportunity to
present their evidence, the National Labor Relations Board
has found that we, J. J. Gumberg Co., and Pennley Park
South, Inc., violated the National Labor Relations Act and
has ordered us to post this notice; and we intended to abide
by the following:
Dated By
J. J. GUMBERG CO.
(Employer)
(Representative ) (Title)
PENNLEY PARK SOUTH, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 1536
Federal Building, 1000 Liberty, Pittsburgh, Pennsylvania
15222, Telehpone 412-644-2977.