Maintenance, Inc.

National Labor Relations Board - Board Decisions

Sep 24, 1964

148 N.L.R.B. 1299 (N.L.R.B. 1964)

MAINTENANCE, INCORPORATED 1299
Maintenance, Incorporated and Lodge 1325, International Asso-
ciation of Machinists , AFL-CIO. Case No. 10-CA-5408. Sep-
tember 24, 1964
DECISION AND ORDER
On February 5, 1964, Trial Examiner Jerry B. Stone 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 cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. He further found that the Respondent had not engaged
in certain other unfair labor practices alleged in the complaint and
recommended that such allegations be dismissed. Thereafter, the
Respondent and the General Counsel filed exceptions to the Trial
Examiner's Decision and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner only insofar as they are consistent
herewith.
The complaint alleged in substance that the Union was the exclu-
sive bargaining representative of certain employees of the Respond-
ent in an appropriate unit and that on or about June 3, 1963, the
Respondent unlawfully refused to bargain with the Union in viola-
tion of Section 8(a) (5) and (1) of the Act.
The Trial Examiner recommended that the 8(a) (1) and (5) al-
legations of the complaint be dismissed. In essence, he found that
the Respondent was not a "successor" to the employer for whose em-
ployees the Union had been certified. The Trial Examiner also found
that the unit of employees certified was not the unit employed by the
Respondent, that no presumption of continued majority status would
be applied, and that the General Counsel therefore had failed to es-
tablish that the Union represented a majority of the Respondent's
employees in the alleged appropriate unit. Hence, he ruled, the Re-
spondent was under no obligation to bargain with the Union as the
statutory representative of its employees. We do not agree.
The facts, in brief, show that Respondent had been engaged in
providing custodial janitorial services for NASA's Marshall Space
Flight Center in Huntsville, Alabama, for a period beginning July 1,
1963. White Castle Company, a corporation having no affiliation
with Respondent, had performed these services for NASA during the
148 NLRB No. 114.
1300 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD
previous year under a 1-year contract which provided for both jani-,
torial services and garbage collection. On October 29, 1962, follow-
ing a Board-conducted election at White Castle, the Union had been
certified as the bargaining representative of a unit consisting of "all
employees of the employer engaged in the servicing and maintaining
of NASA buildings at Redstone Arsenal and Huntsville, Alabama,
area, excluding all office clerical employees, professional and technical
employees, guards, and supervisors." Subsequently, the Union and
White Castle entered into a collective-bargaining contract which was
to be effective until June 30, 1965. On June 15, 1963, anticipating
the periodic advertising for bids for the furnishing of maintenance
services for the center, the Union notified Respondent and other
prospective bidders, in substance, that it was the certified representa-
tive of the approximately 360 janitorial employees then performing
services at the center and that it would be available to discuss terms of
a collective-bargaining contract with whatever bidder was successful.
Respondent was successful in its bid for the custodial service work,
but was not awarded the contract for the refuse collection services.'
Respondent's contract covered approximately the same area as that of
White Castle. However, it was for a period of only 4 months and con-
tained certain differences in specifications regarding materials and the
disposition of personnel.
During the week preceding its assumption of the services, Respond-
ent distributed job applications to White Castle employees. When
Respondent commenced its services on July 1, 90 percent of its total
work force of 320 were former White Castle employees who were, for
the most part, assigned to their former jobs. Respondent did not,
however, hire any of White Castle's supervisors, utilize any of its
equipment, or acquire any of its other interests or assets.
On July 3 and August 7, the Union demanded a meeting with Re-
spondent for the purpose of collective bargaining. Thereafter, Re-
spondent did meet with the Union, but refused to honor the Union's
certification or to recognize it as bargaining agent for the employees
in the absence of other proof of majority status.
On the foregoing facts, we find that the Respondent was under an
obligation to honor the demand of the Union to recognize and bargain
with it as the representative of the employees in the appropriate unit
for which the Union had been certified. We are of the view that in
the circumstances of this case the advent of the Respondent effected
no substantial change in the employing industry forming the appro-
priate bargaining unit for which the Union had been certified. Thus
on July 1, 1963, the day the White Castle service contract expired,
1 The White Castle contract had valued the garbage collection services for the preceding
year at $85,000 or approximately $7,000 per month. Other evidence in the record in-
dicates that the value of the garbage collection services was something less than 10 per-
cent of the volume of the total services performed.
MAINTENANCE, INCORPORATED '1301
the Respondent commenced the performance of substantially the iden-
tical operations that had theretofore been performed by White Castle,
servicing the same facilities for the same customer in substantially
the same manner and at the same work situs, and utilizing for that
-purpose the former White Castle work force who performed the same
-functions and exercised the same skills.
Under comparable circumstances in-Johnson Ready Mix Co.,2 the
Board found that a company-which had succeeded to the business
operations of another without, however, assuming the latter's obliga-
tions or otherwise holding itself out as the latter's successor in inter-
est-was obligated to bargain with the certified representative of the
employee group it had taken over. There the Board stated (at
page 442) :
It is well settled that a Board certification must be honored for
it reasonable period of time, normally at least 1 year, in the
absence of unusual circumstances. A mere change in ownership
in ail "employing industry" is not such an unusual circumstance
as to affect the force of the certification for it is equally well set-
tied that where the "employing industry" remains essentially the
same . . . the certification continues effective for the normal
operative period and the obligation to bargain devolves upon the
successor employer. [Citations omitted.]
It is true that in Johnson Ready Mix, unlike the instant case, the
respondent company acquired by purchase certain physical assets of
the company whose operations it took over. But, contrary to the
Trial Examiner, we do not view this as a substantial basis for distinc-
tion in applying the fundamental principle involved. The duty of
an employer who has taken over an "employing industry" to honor
the employees' choice of a bargaining, agent is not one that derives
from a private contract, nor is it one that necessarily turns upon the
.acquisition of assets or assumption of other obligations usually in-
cident to a sale, lease, or other arrangement between employers. It
is a public obligation arising by operation of the Act. The critical
question is not whether Respondent succeeded to White Castle's cor-
porate identity or physical assets, but whether Respondent continued
essentially the same operation, with substantially the same employee
unit whose duly certified bargaining representative was entitled to
statutory recognition at the time Respondent took over.
In determining whether an obligation to bargain with the Union
devolved upon the Respondent we do not consider it of overriding im-
portance that, in taking, over the servicing operation; the Respondent
substituted its - own supervisory force S for that - of White Castle's.
2142 NLRB 437. 1 1
3 Supervisors were excluded by the Board from the White Castle's appropriate unit in
accordance with the Act. ' . . • 'a: '
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This did not destroy the interest which the employee bargaining unit
retained in continuing to deal collectively with their Employer
through their designated representative. Although in other circum-
stances resort to evidence of substantial continuity in employment of
the predecessor's supervisory staff, like evidence of succession in in-
terest by purchase. may be of help in tracing the identity of the "em-
ploying industry," in the instant case there can be no genuine doubt
that the "employing industry" remained the same. It is clear that
when Respondent entered its bid for the maintenance -work, under the
practice of periodic renewals of the maintenance contract, it was
bidding to conduct the same servicing operation that was formerly
performed by White Castle.
Therefore, it is clear to us that Respondent assumed the obligation
the Act imposes upon an employer to recognize and deal -with its •
employees' majority representative when it selected as its work force
the employees of the previous employer to perform the same tasks at
the same place as they had in the past. These employees had already
expressed their choice of bargaining representative, and continued to
constitute an appropriate bargaining unit. As the certification year
had not yet expired at the time the Union sought recognition and bar-
gaining, the presumption of the Union's continuing majority status
applied and was not then vulnerable to attack.' We therefore find,
contrary to the Trial Examiner, that the Respondent was obligated to
recognize and bargain with the Union as the statutory representative
of its employees in the appropriate unit.'
We are confirmed in our opinion that Respondent is under an
obligation to bargain by a consideration of the consequences of find-
ing otherwise. It would be virtually impossible for employees to
achieve collective-bargaining rights in an employing industry which
is periodically subject to a possible change of employers if with every
change the employees must again resort to the Board's processes in
order to demonstrate anew their desire to be represented by their
formerly certified bargaining representative. In our opinion, it
would best effectuate the policies of the Act if, in the circumstances
here present, the Respondent is required to bargain with the Union
and the Union is left free to devote itself to its function as bargain-
ing agent for at least the normal operative period before the presumed
`majority status,flowing from its certification may be questioned.6- -
Nor can we agree with the Trial Examiner's finding that there was
a substantial change in the certified unit because Respondent's em-
4 Ray Brooks v. NL.R.B ., 348 U.S. 96 ( 1954).
5 Aside from the presumption of continuing majority status flowing from the certifica-
tion , we are satisfied on the particular facts of this case that Respondent could not, and
did not, entertain any reasonable doubt as to the appropriateness of the unit -,or of the
Union 's majority status when it refused to bargain. Cf. Fred Snow, Harold Snow and
Tom Snow d/b/a Snow & Sons , 134 NLRB 709 , enfd . 308 F. 2d 687 (C.A. 9).
6 See Ray Brooks v. N.L.R .B., supra.
MAINTENANCE, INCORPORATED I 1 1303
ployee complement did not include the employees who had performed
the garbage and refuse disposal service for White 'Castle, and that
therefore no conclusive presumption of continued majority representa-
tive could attach' to the Board's certification. The changes in question
involved a relatively small portion of White Castle's business, appar-
ently affecting no more than about 40 employees in a unit of more
than 360. In our view, these circumstances are not of sufficient mo-
ment to affect the Employer's obligation to bargain?
For all the foregoing reasons, we find that on July 3, 1963, when
the Union requested recognition and bargaining as the certified repre-
sentative of Respondent's employees, Respondent was required to rec-
ognize and bargain with it. By its refusal to do so, Respondent'
violated Section 8 (a) (5) and (1) of the Act.
THE REMEDY
Having found in agreement with the Trial Examiner that the Re-
spondent has engaged in unfair labor practices, we shall order the
Respondent to cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the policies of the Act.' `
We have further found, contrary to the Trial Examiner, that the
Respondent refused to bargain collectively with the Union as the ex-
clusive representative of the employees in the appropriate unit. Al-
though we are aware of the fact that the Respondent's maintenance
contract was for a period of only 4 months from July 1, 1963, there is
nothing on the record to indicate that the Respondent is no longer
performing the same services. We shall therefore order the Respond-
ent, upon request, to bargain collectively with the Union as such repre-
sentative and, in the event an understanding is reached, to embody
such understanding in a signed agreement.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that Re-
spondent, Maintenance, Incorporated, Huntsville, Alabama, its, offi
cers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Failing or refusing to' recognize and bargain collectively with .
Lodge 1325, International Association of^ Machinists, AFL-CIO, as
exclusive bargaining representative'of Respondent's employees in the
following appropriate unit : . ' " .
All employees of the Respondent engaged in servicing and maintain-
ing National Aeronautics and Space Administration buildings at Red-
7 Firchau Logging Company, Inc., 126 NLRB 1215; Royal Brand Cutlery Company, a
Division of Brockelman Brothers, Inc., 122 NLRB 901. 't.:
1304 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD
stone Arsenal and Huntsville, Alabama, area, excluding all office cleri-
cal employees, professional and technical employees, guards, and
supervisors is defined in the Act.
(b) Discouraging membership in, or activities on behalf of, Lodge
1325, International Association of Machinists, AFL-CIO, or any
other labor organization of its employees, by discriminating in regard
to their hire or tenure or any term or condition of employment.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization; to,
form, join, or assist Lodge 1325, International Association of Ma-
chinists, AFL-CIO, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage
in other concerted activities for the purposes of collective bargaining
or other mutual aid or protection, or to refrain from any or all such
activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Lodge 1325, Interna-
tional Association of Machinists, AFL-CIO, as exclusive representa-
tive of the employees in the appropriate unit as found above, and, if
an understanding is reached, embody such understanding in a signed
agreement.
(b) Offer the employees discharged on July 3, 1963, immediate
and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and
privileges.
(c) Notify the above-named employees if presently serving in the
Armed Forces of the United States of their 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.
(d) Make whole each of the employees discharged July 3, 1963',,
for any loss of pay they may have suffered by reason of the discrimi-
nation against them, by payment to each of them of a sum of money
equal to the difference, if any, between the wages each would have
earned, absent the discrimination, and the amount each actually
earned, from July 3, 1963, until the date of Respondent's offer of rein-
statement as recommended herein. Such backpay shall be computed
on a quarterly basis' in the manner established by the Board in
F. W. Woolworth -Company, 90 NLRB 289, 291-294, and with interest
thereon as prescribed by the Board in Isis Plumbing c€ Heating Co.,
138 NLRB 716. ' •
(e) Preserve and,, upon request, make available to the Board and
its agents, for examination and copying, all payroll, records, social
security payment records, timecards; personnel . records- and reports;
MAINTENANCE, INCORPORATED 1305
and all other records relevant or necessary to the determination of the
amounts of backpay due and to the reinstatement and related rights
provided under the terms of this Order.
(f) Post at its premises in Huntsville,.Alabama, or wherever cur-
rently engaged in business, copies of the attached notice marked
"Appendix." s Copies of said notice, to be furnished by the Regional
Director for Region 10, shall, after being duly signed by the Respond-
ent's representative, be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60.consecutive days there-
after, in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered, defaced, or
.covered by any other material.
(g) Notify the Regional Director for Region 10, in writing, within
10 days from the date of this Order, what steps the Respondent has
taken to comply herewith.
MEMBER LEEDOM, concurring :
I agree with my colleagues that Respondent failed to bargain with
the Union in violation of Section 8(a) (5) of the Act. - However, un-
like them, I am unable to base my conclusion on a finding that Re-
spondent is in effect a successor to White Castle and, as such, is
obligated to recognize the certification of the Union 9 Rather, I base
my finding of a violation solely on the ground that Respondent re-
fused to recognize the Union as representative of its employees
without a good-faith doubt as to its majority status or as to appro-
priateness of unit.
The basic facts, as described more fully in the majority opinion,
are as follows. Maintenance, Incorporated, Respondent herein, is
engaged in the business of furnishing janitorial services to agencies of
the United States Government.. Prior to July 1, 1963, White Castle
,Company, a corporation having no affiliation with Respondent, had
performed custodial janitorial services and garbage collection serv-
ices for NASA's Marshall Space Flight Center in Huntsville, Ala-
bama. , On October 29, 1962, following a Board-conducted election,
which the Union:won by, a vote of 178 ,to,49, the Union was certified
as bargaining representative of the- employees of White Castle Com-
pany in a unit "engaged-in the servicing and maintaining of NASA
$ In the event • that this Order is enforced by a decree of a United States Court of
Appeals, there- shall be substituted for the words "a Decision find Order" the, words "a
Decree of the United States Court of Appeals, Enforcing an Order."
9 Although 'the majority does not state, in hacc verba , that Respondent was a successor
to white Castle, it seems to me that the necessary implication of their rationale , includ-
Ing its references to the continuing validity of the Union 's certification , and_its _ rellance
.on Johnson , Ready Mix, Co:, 142, NLRB 437, indicate that Respondent ' s obligation to bar-
gain with the Union was predicated on its successor relationship to white, Castle.
,,I
4306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
buildings." Subsequently, the Union and White Castle entered into
a , collective-bargaining agreement which was to be effective until
June 30, 1965.
Respondent was successful in its bid for custodial service work: and
on, July 1, 1963, it replaced White Castle and began to provide the
NASA installation with custodial janitorial service. However, the
garbage collection service contract was awarded to another company.
When Respondent commenced its services at the flight center on
July 1, 1963, 90 percent of,its total force of 320 employees were former
White Castle employees and these employees were assigned to do sub-
stantially similar work for Respondent at the same location. None
of White Castle's supervisors were retained by Respondent. Nor were
any assets, goodwill, or any interest transferred from White Castle to
Respondent.
On, July 3, 1963, the Union, sent a letter to Respondent stating that
it had been certified as representative of the janitorial workers on
October 29, 1962, and that it had an agreement with White Castle;
and requesting Respondent to honor the certification and agreement.
The Union further stated that it was available to meet with Respond-
ent. - Respondent did not reply to this letter, and on August 7 the
Union sent a second letter to Respondent seeking recognition. There-
after, several meetings were held between the Union and Respondent,
but Respondent continued to refuse to recognize the Union. The
Trial Examiner found that Respondent did not violate Section
8 (a) (5) by refusing to bargain with the Union because the unit for
which the Union was certified included employees performing garbage
collection work, and as these services were not performed by employees
of Respondent, the unit which was certified was no longer in existence
and the presumption of validity of the certification could be invoked.
The majority reverses the Trial Examiner and finds that Respond-
ent violated Section 8(a) (5). Relying on the Board's decision in
Johnson Ready Mix Co., the majority reasons that since the "employ-
ing industry" continued intact and the unit continued to remain ap-
propriate, Respondent was in effect a successor employer to White
Castle and thereby obligated to bargain with the Union as certified
representative of its employees.10 I cannot agree with this reasoning.
Here, as found by the Trial Examiner, Respondent did not purchase
any assets from White Castle nor did it assume any of White Castle's
liabilities. Indeed, there was no relationship at all between these two
firms, other than the fact that Respondent, as a competitor of White
Castle, was successful in replacing White Castle in providing certain
maintenance services at the flight center. In all prior cases in which
AO In 'agreement with the majority,' I, would reverse the Trial Examiner and find that
the certified unit was not substantially changed and, for'that reason ; Respondent was`not'
relieved of its obligation to honor the certification.
MAINTENANCE, INCORPORATED 1307
the'Board and courts have found a''su'ccessor employer" relationship
to, exist, there has always been some legal- relationship,between the suc-
cessor and its predecessor." For example, in Johnson Ready Mix,
the case relied on by the majority, the respondent employer had pur-
chased from its predecessor the "fixtures, equipment and machinery,
including cement, truck and machinery parts, and' various supplies
used by [the predecessor] in the conduct of the business." It was
in the light of these facts that the Board there concluded, that "where,
the `employing industry' remains essentially the same after a transfer'
of the legal ownership . . . the obligation to bargain devolves upon
the successor employer." 12 [Emphasis supplied.] But I can find
no basis in policy or logic for extending this doctrine to include the
situation, involved in the present case, where there was no transfer
from its predecessor to Respondent, nor, in fact, any relationship be-
tween Respondent and its predecessor. I would therefore not predi-
cate a finding that Respondent violated Section 8 (a) (5) on a successor
relationship between Respondent and White Castle.i3
However, I would find that Respondent violated Section' 8(a) (5)
under the rule stated in Snow cC Sons.14 In that case, the Board held
that where an employer entertains no reasonable doubt either with
respect to the appropriateness of the proposed unit or the union's
representative status and seeks a Board-conducted election without a
valid ground therefor, he has failed to fulfill the bargaining require-
ments of the Act and thereby violates 8(a) (5), even though the
employer otherwise does not engage in conduct designed to dissipate
the union's majority.',' , In the instant case, Respondent does not dis-
pute that on October 29, 1962, the Union was certified on the basis of
a Board election in which a large majority of employees in the unit
selected the Union as their collective-bargaining representative. On
July 3, 1963, just 7 months after. the election, the Union, alluding to
the certification, wrote to Respondent seeking recognition. Because
Respondent had hired 90 percent of White Castle's employees and be-
u See Ugite Gas Incorporated, 126 NLRB 494 ; Rohlik, Inc.; 145 NLRB 1236.
12 Johnson Ready Mix Co., supra, at 442
13 In finding that Respondent was obligated to honor the certification , the majority
argues that to hold otherwise would create a situation where "it would be virtually im-
possible for employees to achieve collective -bargaining rights in an industry which is
periodically subject to a possible change, Inemployers if with every change the employees
must again ' resort to the Board ' s processes in order to demonstrate anew their desire to
be represented by their formerly certified bargaining representative." I do not agree that
under the facts of the present case the Union has no alternative but to establish its rep-
resentative status through a Board-conducted election. As the majority itself suggests
(see footnote 5, above ), and as I discuss below, it is well -established that where a union
has been designated as representative by a majority of employees in the unit, even though
not certified , and the employer refuses to recognize the union without a reasonable ground
therefor, the employer commits an unfair labor practice
14 Fred Snow, Harold Snow and Tom Snow d/b/a Snow d, Sons, 134 NLRB 709, enfd.
308 F. 2d 687 (C.A. 9).
15 See also Bernet Foam Products Co., Inc., 146 NLRB 1277 (I dissented on other
grounds).
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause the unit had remained intact, it must have been clear to Respond=
ent that the Union represented a majority of employees in an appro-
priate unit. Indeed, Respondent did not raise any question as to the
majority status of the Union or as to the appropriateness of the unit
which, the Union claimed to represent. Accordingly, as the Union
represented a majority of employees in an appropriate unit on and
after July 3, 1963, I would find that Respondent's refusal to bargain
with the Union without any valid ground therefor, failed to fulfill
the bargaining requirements of the Act and violated Section 8(a) (5).
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT refuse to bargain collectively with Lodge 1325,
International Association of Machinists, AFL-CIO, as the ex-
clusive bargaining representative of the employees in the follow-
ing appropriate unit :
All employees of ours engaged in servicing and maintain-
ing National Aeronautics and Space Administration build-
ings at Redstone Arsenal and Huntsville, Alabama, area,
excluding all office clerical employees, professional and
technical employees, guards, and supervisors as defined in
the Act.
WAVE WILL, upon request, bargain collectively with Lodge 1325,
International Association of Machinists, AFL-CIO, as the ex-
clusive bargaining representative of the employees in the ap-
propriate unit, and, if an understanding is reached, embody such
understanding in a signed agreement.
WE.WILL ,offer our employees discharged on July 3, 1963, im-
mediate and full reinstatement to -their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of pay
they may have suffered by reason of the discrimination against
them.
WE WILL NOT discourage' membership in or activities on behalf
of Lodge 1325, International Association of Machinists, AFL-,
CIO, or any•other labor organization of our"employees, by dis-
criminating in regard to their hire or tenure or.. any. term or,
condition of employment.
MAINTENANCE, INCORPORATED 1309
WE WILL NOT in any other mariner interfere with, restrain, or
coerce any of our employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to bar-
gain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purposes of
collective bargaining or other mutual aid or protection as guaran-
teed by Section 7 of the Act, or to refrain from any or all such
activities.
WE WILL NOT, in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
All our employees are free to become or remain, or to refrain from
becoming or remaining members of Lodge 1325, International As-
sociation of Machinists, AFL-CIO, or any other labor organization.
MAINTENANCE, INCORPORATED,
Employer.
Dated----- ----------- By-------------------------------------
(Representative ) ( Title)
NOTE.-We will notify the above-named employees if presently serv-
ing in the Armed Forces of the United States of their 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, 528 Peachtree-Seventh Building, 50 Seventh Street, NE.,
Atlanta, Georgia, Telephone No. 876-3311, Extension 5357, if they
have any question concerning this notice or compliance with its
provisions.
TRIAL EXAMINER'S DECISION
STATEMENT 0F THE CASE
Upon a charge .filed on July 22, 1963, by Lodge 1325, International -Association
of Machinists , AFL-CIO (herein called the Union), the General ' Counsel of the
National Labor Relations Board, by the Regional Director for Region 10 (Atlanta,
Georgia ), issued his complaint dated September 5, 1963, against Maintenance, In-
corporated ( herein called the Respondent ). In substance the complaint , as amended
at the hearing, alleged that Respondent had engaged in conduct violative of Section
8(a) (1), (3 ), and (5 ) of the National Labor Relations Act. Respondent 's answer,
as amended at the hearing, admitted many of the, facts pleaded in the complaint but
denied the commission of any unfair labor practices.
Pursuant to appropriate notice, a hearing was held before Trial Examiner Jerry
B. Stone at Huntsville , Alabama, on OctoLer 1, 2, and 3, 1963. All parties were
represented at and participated in the hearing and were afforded the right to present
evidence , to examine and cross-examine witnesses, to offer oral arguments, and to
file briefs . Briefs by the General Counsel and Respondent have been filed and have
been considered.
' 1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in this case , and from my observation of the witnesses, the
following findings of fact, conclusions of law, and Recommended Order are made.'
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER 2
Maintenance , Incorporated , the Respondent , is, and has been at all times material
herein, an Alabama corporation with an office and place of business located at
Dothan, Alabama, and is engaged in the business of furnishing janitorial services
to agencies of the United States Government.
Respondent, during a 12-month period, representative of all times material herein,
in the course and conduct of its operations at Huntsville , Alabama, receives revenue
in excess of $200,000 for janitorial services performed for the National Aeronautics
and Space Administration (herein called NASA), George C. Marshall Space Flight
Center (herein called Marshall Flight Center), which is engaged in the national
defense effort . During the same period of time, Respondent purchases and receives
goods and materials valued in excess of $5,000 directly from suppliers located out-
side the State of Alabama. The Respondent currently provides custodial services
in the States of Alabama and Georgia at governmental locations and for The Boeing
Company. Respondent's aggregate total contract value for Federal business is in
excess of $ 1,750 ,000 annually . The Respondent employs employees in its opera-
tions described above. It is found that Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the of the Act and that in connection with
the acts described in section III of this Decision, it will effectuate the policies of the
Act to assert jurisdiction in this proceeding.
H. THE LABOR ORGANIZATION INVOLVED
Based upon the pleadings it is found that Lodge 1325, International Association
of Machinists , AFL-CIO,3 is a labor organization within the meaning of Section
2(5) of the Act.
HI. THE UNFAIR LABOR PRACTICES
Background4
About the latter part of 1957 or the first part of 1958, NASA commenced having
the custodial janitorial and garbage and refuse collection services at Marshall Flight
Center performed by nongovernmental contracting companies . Prior to this time
this work had been performed by civil service employees of the Government. After
the initial contract subsequent contracts were let, usually for 12-month periods.
After the commencement of the contracting for servicing there were three or four
changes in the identity of the companies performing such contracting services.
Maintenance , Incorporated , performed the custodial janitorial services for Marshall
Flight Center between July 1 , 1961 , and June 30 , 1962,5 and had a collective-
bargaining contract with the United Steelworkers of America, AFL-CIO. White
Castle Company performed the custodial janitorial services and the garbage and
refuse collection between July 1, 1962, and June 30, 1963.6
The contract let to White Castle Company in 1962 was for a 12-month period and
initially required janitorial service for 1,884,782 square feet of area. As a result
of modifications in the contract , White Castle Company was servicing 2,446,374
square feet of area on June 30 , 1963. The contract let to White Castle Company
in 1962 priced the garbage and refuse collection service for 12 months at $76,800.
i All credibility resolutions 'are based In whole or in part on my observation of the wit-
nesses' demeanor . Some of the witnesses were credible as to part but not as to all of
their testimony.
2 The facts pertaining to the business of the Employer are based on stipulations of the
parties, upon pleadings , admissions , and undisputed evidence
8 The record reveals that the AFL-CIO designation is proper. I correct the style cap-
tion In this case accordingly
4 The background facts relating to the contracting services are based on a composite of
the credited testimony of McCord, Wise, Taylor, and Crider.
S Whether Maintenance , Incorporated, performed the garbage and refuse collection at
that time is not revealed by the record
6The White Castle Company contract was one contract covering both ( 1) custodial
janitorial services and ( 2) garbage and refuse collection services . The contract , however,
detailed the evaluation of the services separately.
MAINTENANCE, INCORPORATED 1311
As a result of additional garbage and refuse collection service (July 1962-
July 1963) the approximate contract price for such service increased to approxi-
mately $85,000.7 -
Additions or deletions of custodial janitorial services at Marshall Flight Center
arise from the increase or decrease in office space used by the center. On occasion
new buildings are built and placed into service. When regular office building space
is not available, warehouse buildings are temporarily converted for office use. When
permanent type office space becomes available as a result of new buildings, the tem
porary office buildings (warehouses) are reconverted to warehouse status and are no
longer serviced but the new permanent type buildings are serviced. As indicated
from the increase in service during the life of the White Castle. Company contract,
the emphasis is upon a general trend of increased service. -
Just preceding the end of White Castle Company's contract, custodial servicing
had commenced in part on a new building-building 2400. At the end of White
Castle Company's contract on June 30, 1963, the contract covered custodial servic-
ing for 2,446,374 square feet of area. At the commencement of Maintenance, In-
corporated's contract on July 1, 1963, additional footage of custodial servicing of
building 2400 was added. The foregoing and other adjustments resulted in Mainte-
nance, Incorporated, commencing its custodial janitorial servicing for 2,421,957
square feet of space at Marshall Flight Center on July 1, 1963. The garbage and
collection refuse service, value priced at approximately $8,000 per month, was not
contracted to or performed on July 1, 1963, by Maintenance, Incorporated, but was
awarded to and performed by some other company?
The Union's Certified Status s
On October 29, 1962, the Regional Director for Region 10 of the National Labor
Relations Board issued a report on objections and cei tification of representatives,
which revealed in effect that (1) on September 19, 1962, an election by secret ballot
had been conducted among employees in the appropriate unit for purposes of col-
lective bargaining with the tally of ballots reflecting that there were approximately
267 eligible voters, that 178 voters had voted for representation by-the Union, and
that 49 voters had voted against the Union; (2) the appropriate collective-bargaining
unit consisted of "all employees of the Employer engaged in the servicing and main-
taining of National Aeronautics and Space Administration building at Redstone
Arsenal and Huntsville, Alabama, area, excluding all office clerical employees, pro-
fessional and technical employees, guards, and supervisors as defined in the Act";
and (3) Lodge 1325, International Association of Machinists, AFL-CIO (the
Union), received a certification on October 29, 1962, as'having been designated and
selected by a majority of the employees of White Castle Company in the appropriate
unit (described above) for their representative for the purposes of collective bar-
gaining, and that pursuant to Section 9(a) of the Act, as amended, was the exclusive
representative of all the employees in such unit for the purpose of collective
bargaining.
The White Castle/Union Collective-Bargaining Agreement 10
Sometime after October 29, 1962, the Union and White Castle Company entered
into a collective-bargaining agreement. The agreement provided that it would be-
come effective as of the date of signing and continue in full force and effect until
June 30, 1965. The agreement provided in part for certain increased benefits to
commence on and after July 1, 1963.
7 Witness Crider fixed the increase between $3,000 and $10,000 and total value between
$85,000 to $100,000.
s The White Castle Company contract contained a "small business" set-aside provision.
The advertised bid for the custodial work contract to commence on July 1, 1963, contained
a similar provision initially-but the provision was later deleted The bid filed by
Maintenance, Incorporated, alleged that Maintenance, Incorporated, qualified as a "small
business."
9 The facts are based upon General Counsel's Exhibit No. 2 relating to White Castle
Company, Case No. 10-RC-5329.
10 The facts are based upon a composite of the credited testimony of witness League and
upon General Counsel's Exhibit No 3.
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Notification to Contract Bidders of Union Status 11
Around- June 15, 1963 , the Union notified various companies , including Respond-
ent, that it was the certified bargaining representative of the employees working for
the contractor currently performing the janitorial services for Marshall Flight Center
and that it was .available to discuss terms of a collective-bargaining agreement, if
Respondent (or one of the other companies) were the successful bidder for the
custodial contract.
Respondent Obtains Custodial Services Contract 12
The Respondent was successful in its bid for the NASA Marshall Flight Center
custodial services contract but was unsuccessful in its bid for the garbage and refuse
collection work. The Respondent's custodial services contract covered services from
July 1 to October 31, 1963. During the last week in June 1963, Respondent gave
out job application forms to a majority of the White Castle Company employees.
A majority of the White Castle Company employees completed and returned the
job applications to the Respondent.
The Events of July 1, 1963 13
On July 1, 1963, Respondent commenced its custodial services using as-a majority
of its work force on each shift a majority of the former White Castle Company em-
ployees.14 The former White Castle Company employees were substantially as-
signed the same type work, at the same location, and with the same duties as their
White Castle Company assignments. The Respondent's supervisory personnel did
not include any of White Castle Company's supervisors when work commenced. On
July 2, 1963, however, Respondent utilized Boldin, a former White Castle supervisor,
in a status somewhat similar to that of supervisor. It may be summarized that Re-
spondent's supervisors were substantially without prior affiliation with White Castle
Company. It may also be summarized that no assets, goodwill, or any interest were
transmitted from White Castle Company to Respondent.
After the Respondent assigned the employees for work on July 1, 1963, the first
shift commenced operations. Work was concluded on the first shift without any,
problems.
Around 5:30 p.m., Respondent assigned employees for work on the second shift.
The Respondent assigned some of its former employees (14 or 15) to a waxing
(stripping) operation. The former White Castle Company employees, in main, were
assigned their former jobs. There were approximately 14 or 15 former White
Castle Company "strippers" 15 and approximately 6 or 7 maids (women) who were
not assigned work, as well as several other employees. Contract Superintendent
Hand told the employees that he would attempt to find assignments for them on a
later date.16 Shortly thereafter 'some of the former White Castle Company "strip-
11 The facts are based upon a composite of League ' s credited testimony and upon Gen-
eral Counsel 's Exhibit No. 3.
13 The facts are based upon a composite of the credited - testimony of McCord , Crider,
Wise, Taylor , Hand , and Boldin and upon Respondent ' s Exhibits Nos..8 and 9
13 The facts are primarily based on a composite of the credited testimony of Hand, Wise,
and Watkins . Other General Counsel and Respondent witnesses ' testimony is generally
corroborative of the version set out. Testimony contradictory of the version set out is
discredited.
"Vice President Wise credibly testified to the effect that (1) 98 to 100 percent of
White Castle Company ' s first-shift employees were hired , ( 2) 90 to 95 or 96 percent of
White Castle Company's second -shift employees were hired 'Superintendent Hand credibly
testified- to the effect that he assigned the former White Castle Company employees to
their former 'jobs and places Since the evidence reveals that the Respondent 's services
were in effect an . updating of the current services required at, George C. Marshall Flight
Center and the contracts reflect substantially the same square footage area to be cleaned
(custodial services ), approximately the same number of people was required to perform
the services Wise, Hand , and Taylor gave slightly varying estimates of the exact numb
her of people employed on the shifts
15 Employees who wax the floors and who remove wax from the floors
16 There were other jobs necessary for the 'operation but not requiring , immediate assign-,
ment on the first day of the new contract Hand credibly testified that prior to the sec-
ond shift he told the maids that the Company ' s policy was not to employ maids on the
night shift , but that he would find work for them otherwise.
MAINTENANCE, INCORPORATED 1313
pers" complained to Union Steward Watkins about not being assigned. A short
time later Watkins and substantially, the whole shift of employees working on the
base 17 walked off their job and congregated at the Respondent's office on the base.
Watkins spoke to Contract Superintendent Hand and Vice President Wise protesting
the failure to employ the former White Castle Company "strippers" and the
"maids." 18 Watkins also pointed out to Vice President Wise the "certified status" of
the Union, the union contract with White Castle Company, and the fact (according
to the contract) that the employees were supposed to receive a 5-cent raise on
July 1, 1963. Vice President Wise told Watkins in effect that the Union had been
certified for the employees of White Castle Company and that the contract (union
contract with White Castle Company) was of no effect. Wise agreed, however,
to employ the former White Castle Company "strippers" and "maids" for the night
and stated that Respondent would find work for the maids on the day shift. Wise
explained the Respondent's policy of not working maids on the night shift. The
strippers and the maids were assigned jobs and the employees returned to work and
finished out the shift. The overall quality of the work of the employees for the
shift was substantially below the normal quality of work for the shift.
The Events of July 2 and 3, 1963 19
On July 2, 1963, nothing of unusual nature occurred on the first shift. At the
commencement of the second shift the employees who had worked on the second
shift on July 1, 1963, excepting for the maids, were assigned the same-jobs. Again
Watkins and substantially the whole second shift working at the base congregated at
Respondent's office. Watkins complained about the failure to assign the maids to
work and insisted that they be assigned to their former work stations. Hand,20 on
behalf of the Respondent, acceded to the demands. The employees returned to
work. During the shift some of the employees did not remain at their work sta-
tions.- The overall quality of the' work of the shift again was not up to normal
standards. Government inspectors complained to Contract Superintendent Hand.
Later during the- shift the employees were told to assemble at the office at the end of
the shift. The employees- assembled around- 12:30 a.m. on July 3, 1963. Vice
President Wise told the employees that he had a contract to perform with the Gov-
ernment and that he had been advised that the work was not being accomplished,
that he had personally checked and found that the work was not being accomplished.
Wise told the employees that during the past two nights the work had not been ac-
complished due to their refusal to work. Wise told the employees that all employees
17 There were approximately 30 to 40 employees who worked "off, the base" In down-
town Huntsville, Alabama. It is clear that as to the cause of the walkout, some of the
employees thought it was about the hiring of all former White Castle employees who
wanted to work, that some'of the employees thought the walkout was for "settlement" of
recognition of the Union, and that in generahthe employees were walking out because of
the union steward's leadership and in' come instances without knowing specifically why
and that they were leaving the details up to Watkins. The concerted following, of
Watkins, with clear approval of his action, coupled with Watkins' action of protesting
concerning recognition of^ the Union, the -recognition of contract rights, and the hiring of
the former employees, constituted concerted, protected action within the meaning of Sec=
hon 7 of the Act -
Is Watkins' testimony was to the effect that the problem concerning the "maids"' em-
ployment occurred on July 2, 1963, only. I am convinced that he has confused the events
of the 2 days and credit Wise's testimony to the effect that the problem concerning the
maids occurred on July 1 and 2, 1963. Contract Superintendent Hand had attempted to
find out from some of the-employees what the problem was Ultimately Vice President
Wise asked to speak to the "spokesman" and spoke with Watkins.
10 The facts are based' on a composite of the credited testimony 6f Hand, Wise, and
Watkins. Other General Counsel and Respondent witnesses'- testimony is generally cor-
roborative of the version set out.- Testimony contradictory of, the version set out is
discredited ',
20 Watkins testified that he talked to Wise on July 2, 1963,- at ^this'time.' I am con-
vinced that he has confused the events of July 1 and 2, 1963. Wise's and'Hand's testi-
mony is credited, to, the effect that Wise was not `at the' office and did not talk to Watkins
at .this time .
•11' 760-1577 -65-vol 148-84
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who had walked off the job would no longer be needed by the Company 2i At this
point Watkins said that he guessed that "this means.all of us." 22 Wise then, in
effect, said, "Very well turn in your badges to Mr. Myhan.".23 An employee named
Gooch told Vice President Wise,that he would not get a "God damn" one of the
badges.24 Wise told Supervisor Myhan to call security. ' The employees then left
in a hurry toward the base exit gate. Wise and other Respondent officials hurried
to the gate. , The employees were searched at the gate by security officials before
departure.
The' employees, after consulting with union officials, reported back to the base on
July 3, 1963, around midday. The security guard told Watkins that the security
badges must be turned in. Watkins turned in 69 security badges to the guard.
Later Watkins received a pass and went in to see Wise and told Wise the employees
wanted their jobs back. Wise told Watkins that there were no openings. The
Respondent thereafter made a special payroll and prepared checks for the employees
who only worked on July 1 and 2, 1963.
Conclusions as to Discriminatory Discharges of Employees
The Respondent at the hearing and in his brief contended that the employees quit,
and that the "alleged discharges" had no relationship to the mass walkouts on July 1
and 2, 1963. This position has been found to be without merit. In,his brief the
Respondent makes the alternate argument that because of the wording of General
Counsel's complaint allegation (the allegation was to the effect that the discharges
were because the employees . . . "engaged in the presentation of grievances con-
cerning working conditions prescribed in a collective bargaining agreement"), that
the General Counsel must establish that the collective-bargaining agreement referred
to was binding upon the Respondent. As indicated hereinafter this position is also
found to be without merit. "
The General Counsel, at the hearing, stated that he did not contend that the Re-
spondent was obliged to assume the obligations of the White Castle Company
contract. The issues concerning the walkouts, the reasons therefor, the discharges,
and the reasons therefor, were thoroughly litigated in the hearing and,in the briefs.
Considering the pleadings, the evidence, and the litigation of the issues, the Respond-
ent's narrow construction of the issues is not proper and is not adopted 25
In conclusion the following may be summarized: (1) the employees walked out
on July, 1, 1963, in concerted demand for- (a) union recognition, (b) recognition of
21 Watkins, Boldin, Gooch, Talley, and Headrick credibly testified that Wise stated in
effect that all employees who had walked off the job would no longer be needed . Wise's
testimony on direct examination is subject to an interpretation that he also included
reference to employees refusing to work otherwise. On cross-examination Wise answered
"yes" to a question propounded by the General Counsel which substantially corresponded
to Watkins' version of what was said. Hand's, testimony as to what was said, when con-
sidered as a whole, did not purport to be exactly what was said. Watkins, Boldin, Gooch,
Talley, and Headrick's testimony on this point is found to be more reliable than Wise's
and Hand's It is so credited.
22 Watkins' testimony as to what he said at this time is found-to be more credible than
the testimony of other witnesses Wise's testimony to this point is substantially the same
as Watkins', the difference being that Wise uses the word "well" instead of " guess."
Hand's testimony was to the effect that Watkins stated, "if one goes-all will go."
Headrick's testimony was to the effect that Watkins asked, "Does that mean all of us?"
Hand's and Headrick's testimony appears to be, their interpretation of .what was meant
by what Watkins said I so find.
22 Based on the credited facts no merit is found to Respondent's contention that the
employees "quit." Nor is merit found in Respondent's contention that Wise' s reason for
his remarks was "improper work." If "improper work" were the reason, such individuals
could have been singled out through the supervisors, and Wise could have clarified the
matter in his reply to Watkins as to whom he meant. Wise's testimony reveals that his
intent was to discharge those who "continue to walk-off every day and who intended to
come up with those ridiculous and petty gripes, that those were the people that were no
longer needed." .
"'The testimonial versions of Wise and Hand of what Gooch said is credited over Gooch,
Watkins, and the other witnesses . There is little difference in the versions, but Wise and
Hand were more certain of this point than the other witnesses . I so find and credit.
25 Stokely-Van. Camp, Inc., 130 NLRB 869.
MAINTENANCE, INCORPORATED 1315
the existing " contract , and (c ) employment of. former employees ; 26 (2) the em-
ployees walked out on July 2, 1963, in concerted demand for continuation of the
same status of conditions as before July 1, 1963, and as received on July 1, 1963;
(3) the Respondent was apprised of the concerted nature of such protected activity;
and (4) the Respondent discharged the employees because of their concerted pro-
tected union activity walkouts. It is concluded and found that the Respondent
discriminatorily terminated the employment of a major portion of its second shift
on July 3, 1963, at 12:30 a.m.,27 in violation of Section 8(a)(1) and (3), of
the Act.
Respondent 's Alleged Successorship
On July 1, 1963, the Union sent, and on July 3, 1963, the Respondent received,
a letter referring to the Union 's status as having been certified on October 29, 1962,
as the bargaining representative of the janitorial workers servicing and maintaining
National Aeronautics and Space Administration buildings at Redstone Arsenal,
Huntsville , Alabama, that at the time of the certification White Castle Company was
the employer and that a collective-bargaining agreement had been negotiated be-
tween the Union and White Castle Company. , In this letter the Union requested
the Respondent to honor the certification and agreement , and stated that the Union
was available to meet to discuss any question with the Respondent . No reply was
made by the Respondent to this letter . Later on August 7, 1963, the Union sent
a letter to the Respondent , referring to its previous letters of June 15, 1963, and of
July 1, 1963, requesting a meeting for the purposes of collective bargaining, and
setting forth that the Union was the certified bargaining representative of the Re-
spondent 's employees
League credibly testified to the effect that there were several meetings thereafter
at which the Union demanded recognition and at which Respondent refused to rec-
ognize the Union on the basis of the certification and demanded proof that the
Union was the bargaining agent for the employees.
The General Counsel contends that ( 1) the Union is the certified representative
of the employees of Respondent , as successor to White Castle Company in the unit
certified to have been appropriate on October 29, 1962; ( 2) the Union , on July 3,
1963, requested the Respondent to bargain collectively with it as exclusive repre-
sentative of Respondent 's employees ; ( 3) the Respondent on July 3 , 1963, and
thereafter , has refused to so bargain with the Union ; and (4 ) such refusal to bargain
was done within the meaning of a violation of Section 8 (a) (1) and (5) of the Act.
The General Counsel's evidence in support of his contentions in part includes the
Unions letter received by the Respondent on July 3, 1963. The letter in effect
notified the Respondent ( 1) of the Union 's contended certified status, and (2) of
the Union's contended contract covering the employees , and requested that the Re-
spondent honor the certification and contract . Although the letter stated that the
Union was available to discuss any "question regarding this matter ," it is not con-
strued that the letter constituted a request to bargain , but that the letter constituted
a request that the Respondent , as successor to White Castle Company, honor the
Union's contract with White Castle Company.28 It is clear from the evidence that (1)
the Respondent on and after July 3, 1963 , refused to recognize the Union as the
exclusive bargaining representative of its employees , and (2 ) that the Respondent's
failure to so recognize the Union in the August 1963 meetings with union representa-
tives was tantamount to a refusal to negotiate unless the Union proved its majority
by means other than the October 29, 1963, certification . The issue narrows to the
0 Watkins' protests on behalf of the employees were clearly designed to protect the
status quo as set forth in the'Union ' s contract with White Castle Company. Wise's're-
quest to speak to the group ' s "spokesman " clearly reveals Respondent 's knowledge of the
concerted nature of the walkouts
27 Specifically , the employees discriminated against are : those employees designated on
the special July 1 and 2 1963 , payrolls for whom checks were drawn and delivered to
The gist of Hand's and Wise's credited testimony was to the effect that except for the
terminations at 12 30 a in . on July 3 , 1963 ,. there were no other discharges for those first
days The Respondent contends that because of the confusion of the events coupled with
the fact that it has lost certain records , that it does not know who was discharged. The
Respondent prepared checks from its records and from the security badges collected.
Said checks , excepting for some five or six, have been distributed . Claims for pay have
not been made for the referred to five or six checks Under such circumstances it is
found that the employees who received final paychecks on'the special July 2, 1963 , payroll
are the discriminatees
28 The letter pointed out a clause in the Union's contract with White-Castle referring to
obligations of successors.
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
question of whether the obligations of the October 29, 1962, certification of the
Union devolved upon the Respondent. A consideration of the evidence in this case
does not reveal that the obligation to bargain with the Union so devolved upon the
Respondent.
- The evidence does not reveal that Respondent is a successor in the nature of an
alter ego, or a successor in the nature of an employer who has assumed obligations
by contract (with the predecessor) or otherwise of a predecessor. Nor does the
evidence reveal that the General Counsel has established that the Respondent can
be described a "successor" within the meaning of the rationale of Johnson Ready
Mix Co., 142 NLRB 437, and cases cited therein. In the instant case the unit that
was certified on October 29, 1962, included "all employees of White Castle Company
engaged in servicing and maintaining NASA buildings at Redstone Arsenal and the
Huntsville, Alabama, area, excluding all office clerical employees, professional and
technical employees, guards, and supervisors as defined in the Act." The certifica-
tion is interpreted to include also such employees of White Castle Company as were
necessary to perform the garbage and refuse disposal services required to be per-
formed under the contract. Respondent's employees do not include the employees
currently performing the garbage and refuse disposal services. Thus the October 29,
1963, certified appropriate unit has in effect been divided with the result that part of
the certified unit (custodial services) continues with the Respondent, and part of the
certified unit (garbage and refuse disposition), the exact number of such employees.
being unknown, continues with an employer other than the Respondent. Accord-
ingly, the General Counsel has not established that the unit of employees certified
on October 29, 1962, was employed by the Respondent, and the presumption of-
validity of the October 29, 1962, certification cannot be invoked under the circum-
stances of this -case. The General Counsel did not otherwise attempt to prove that
the Union was the majority representative of the employees of the employer in an:
appropriate unit. Accordingly, it is found that the evidence does not reveal that
Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain'
with the Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relationship to trade, traffic, and commerce upon the-
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, it wills
be recommended that Respondent cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the Act.
Having found that Respondent violated Section 8 (a) (3) and (1) of the Act by
the discharge on July 3, 1963, of employees working on the second shift on the base-
at George C. Marshall Flight Center, and in the event that the Respondent is per-
forming custodial services at George C. Marshall Flight Center, or elsewhere, if the-
Respondent is currently employing the same complement of employees employed at:
the George C. Marshall Flight Center custodial work, it is recommended that Re-
spondent offer to each of the discriminatees immediate and full reinstatement to their-
former or substantially equivalent position, without prejudice to their seniority and-
other rights and privileges, and make them whole for any loss of earnings they may
have suffered by reason of such discrimination by payment to each of a sum of
money equal to that which each normally would have earned as wages from the
date of their discharge to the said offer of reinstatement, less their net earnings dur-
ing such period, with backpay computed on a quarterly basis in the manner estab-
lished by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294, and'
with interest thereon as prescribed by the Board in Isis Plumbing & Heating Co., 138
NLRB 716.
In the event that the Respondent is not currently performing the custodial serv-
ices at George C. Marshall Flight Center, or is not elsewhere employing substantially
the same complement of employees as employed at George C. Marshall Flight Cen-
ter, the Respondent's liability to make the discriminatees whole in the manner pre-
viously indicated. is found to have continued until the final date that Respondent-
terminated the employment, even if elsewhere from the location of George C.
,Marshall Flight Center, of the complement of employees employed at George C.
Marshall Flight Center.
MAINTENANCE, INCORPORATED 1317
In the event that the Respondent is not currently performing the custodial services
at George C. Marshall Flight Center, or is not elsewhere employing substantially
the same complement of employees as employed at George C. Marshall Flight Cen-
ter, it is recommended that the Respondent notify the discriminatees by letter to
their last known address that it will consider them on a nondiscriminatory basis for
any job openings or opportunities for which they may apply, and it is recommended
that Respondent so consider on a nondiscriminatory basis such job applications by
the discriminatees for any openings or job opportunities.
As the unfair labor practices committed by the Respondent were of a character
which go to the very heart of the Act, it shall be recommended that the Respondent
,cease and desist therefrom and cease and desist from infringing in any other manner
upon the rights of employees guaranteed by Section 7 of the Act.
In the event that the Respondent is not currently performing the custodial services
at George C. Marshall Flight Center , or is not elsewhere employing substantially the
same complement of employees as employed at George C. Marshall Flight Center,
it is recommended that remedial notices be mailed to the discriminatees and em-
-ployees employed in its George C. Marshall Flight Center employee complement,
and that notices be posted at its home office , and at its hiring or employment offices.
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. Lodge 1325, International Association of Machinists, AFL-CIO, is a labor
-organization within the meaning of Section 2(5) of the Act.
2. The Respondent is engaged in commerce within the meaning of Section 2(6)
-and (7) of the Act.
3. By interfering with, restraining , and coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. By discriminating in regard to the hire and tenure of employment of employees
on its second shift, thereby discouraging membership in or activities on behalf of a
labor organization , Respondent has engaged in unfair labor practices within the
meaning of Section 8(a) (3) of the Act.
5. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 8(a) (3) of the Act.
6. The evidence does not establish that Respondent has engaged in conduct viola-
tive of Section 8(a) (5) of the Act.
RECOMMENDED . ORDER 29
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record , and pursuant to Section 10(c) of the Act, the following Recommended
Order is hereby issued-
A. Maintenance , - Incorporated , its officers , agents, successors , and assigns, in the
-event that Maintenance , Incorporated , currently employs its George C. Marshall'
Flight Center complement of employees , shall:-
1. Cease and desist from:
(a) Discouraging membership in or activities on behalf of Lodge 1325, Interna-
tional Association of Machinists , AFL-CIO, or any other labor organization of its
employees by discriminating in regard to 'tlieir hire or tenure or any terms or condi-
tions of employment. - '
(b) In any other manner interfering with, restraining , or coercing its employees in
the exercise of their right to self-organization , to form, join, or assist Lodge 1325,,
International Association of Machinists , 'AFL-CIO, ^ or any other labor organization,
to bargain collectively through representatives of their'own choosing , and to engage
in other concerted activities for the purpose of collective bargaining or other mutual
aid or protection , or to refrain from any'or 'all such activities.
z In the event that this Recommended Order be adopted by the Board, the word "Order"
shall be deemed substituted for the words "Recommended Order." Additionally there shallf
be deemed substituted for the first paragraph of 'the Recommended Order the following
paragraph,
Upon the entire record in this case , and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, the National Labor Relations Board hereby orders
that Respondent , Maintenance , Incorporated , its officers , agents, successors, and
assigns, shall:
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action designed to'effectuate the policies of the
Act:
(a) Offer the employees discharged on July 3, 1963, immediate and full reinstate-'
ment to their former or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges.
(b) Make whole each of the employees discharged on July 3, 1963, for any loss
of pay they may have suffered by reason of the discrimination against them, by
payment to each of them a sum of'money equal to the difference, if any, between the
wages each would have earned, absent the discrimination, and the amount each
actually actually earned, from July 3, 1963,'until the date of Respondent's offer of`
reinstatement as recommended herein. Such backpay shall be computed on a
quarterly basis in the manner established by the Board in F. W. Woolworth Com
pany, 90 NLRB 289, 291-294, and with interest thereon as prescribed by the Board
in Isis Plumbing & Heating Co., 138 NLRB 716.
(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 relevant or necessary
to the determination of the amount's of backpay due and to the reinstatement and
related rights provided under the terms of this Recommended Order.
(d) Post at its premises in Huntsville, Alabama, or wherever currently engaged
in business, copies of the attached notice marked "Appendix A." 30 Copies of said
notice, to be furnished by the Regional Director for Region 10, shall, after being
signed by the Respondent's representative, 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 employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material
(e) Notify the Regional Director for Region 10, in writing, within 20 days from
the date of this Recommended Order, what steps the Respondent has taken to comply
herewith 31
B. Maintenance, Incorporated, its officers, agents, successors, and assigns, in the
event that Maintenance, Incorporated, does not currently employ its George C.
Marshall' Flight Center complement of employees, but is engaged in business and
commerce otherwise, shall:
1. Cease and desist from:
(a) Discouraging membership in or activities on behalf of Lodge 1325, Interna-
tional Association of Machinists, AFL-CIO, or any other labor organization of its
employees, by discriminating in regard to their hire or tenure or any terms or con-
ditions of employment.
(b) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form,, join, or -assist Lodge
1325, International Association of Machinists, AFL-CIO, or any other labor-
organization, to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all such activities.
2. Take the following affirmative action designed to effectuate the policies of
the Act:
(a) Notify by mail , at their last known address, all employees discharged on
July 3, 1963, that Respondent, upon their application for job openings or opportuni-
ties, will consider them for all such job openings or opportunities in a nondiscrimina-
tory manner regarding the exercise of rights guaranteed under Section 7 'of the Act.
so In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "a Recommended Order of a Trial
Examiner" In the notice. In the further event that the Board's Order be enforced by a,
decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order"
81 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read : "Notify said Regional Director , in writing , within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
MAINTENANCE, INCORPORATED 1319
(b) Consider, upon application for job openings or opportunities by employees
discharged on July 3, 1963, all such applications in a nondiscriminatory manner with
regard to the employees' exercise of rights guaranteed under Section 7 of the Act
(c) Make whole the employees discharged on July 3, 1963, for any loss of pay
they may have suffered by reason of the discrimination against them, by payment
to each of them a sum of money equal to the difference, if any, between the wages
each would have earned, absent the discrimination, and the amount each actually
earned, from July 3, 1963, until the date of Respondent's offer of reinstatement as
recommended hetein or until the time that Respondent ceased the employment of
its George C Marshall Flight Center employee complement, as set forth in the sec-
tion entitled "The Remedy " Such backpay shall be computed on a quarterly basis
in the manner established by the Board in F W Woolworth Company, 90 NLRB
289, 291-294, and with interest thereon as prescribed by the Board in Isis Plumbing
cf Heating Co, 138 NLRB 716
(d) 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 relevant or necessary to
the determination of the amounts of backpay due and to the reinstatement and
related rights provided under the terms of this Recommended Order
(e) Post at its premises in Dothan, Alabama, and at its hiring or employment
offices, copies of the attached notice marked "Appendix B " 32 Copies of said notice,
to be furnished by the Regional Director for Region 10, shall, after being signed by
the Respondent's repiesentative, 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 employees are customarily posted Rea-
sonable steps shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material
Mail copies of the referred-to notice to the last known address of all employees
employed by Respondent on and after July 1, 1963, at the George C Marshall Flight
Center job
(f) Notify the Regional Director for Region 10, in writing, within 20 days from
the date or this Recommended Order, what steps the Respondent has taken to com-
ply herewith 33
It is also recommended that the complaint be dismissed as regards the alleged
refusal to bargain 8(a) (5) conduct
12 In the went that this Recommended Oder be adopted by the Board, the words "a
Decision ind Order" shill be substituted for the words "a Recommended Order of 's Trial
Examiner' in the notice In the further went that the Board's Order be enforced by a
decree of i United Stites Court of kppeals, the fiords ",I Decree of the United States
Court of Appeils, Enfoicing an Order" shall be substituted for the words "a Decision
and Order "
' In the eient that this Recommended Order be adopted by the P.o'urd, this provision
shell be rnodihcd to reid "Notifi said Regional Director, in cmriting, within 10 days
from the date of this Order, aliat steps the Respondent has taken to comply here«rth"
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that
WE WILL offer our employees discharged on July 3, 1963, immediate and full
reinstatement to their former or substantially equivalent position, without
prejudice to their seniority or other rights and privileges, and make them whole
for any loss of pay they may have suffered by reason of the discrimination
against them
WE WILL NOT discourage membership in, or activities on behalf of, Lodge
1325, International Association of Machinists, AFL-CIO, or any other labor
organization of our employees, by discriminating in regard to their hire or
tenure or any terms or conditions of employment
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with, restrain , or coerce any of
our employees in the exercise of their right to self-organization, to form; join,
or assist labor organizations, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for the .purposes
of collective bargaining or other mutual aid or protection as guaranteed by Sec-
tion 7 of the Act, or to refrain from any or all such activities.
All our employees are free to become or remain , or to refrain from becoming
or remaining members of Lodge 1325, International Association of Machinists,
AFL-CIO, or any other labor organization.
MAINTENANCE, INCORPORATED,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
NoTE.-If any of the above referred to employees are currently serving in the
Armed Forces of the United States we will notify them of their right to full rein-
statement upon application after discharge from the Armed Forces, in accordance
with the Selective Service Act and the Universal Military Training and Service Act
of 1948, as amended.
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, 528
Peachtree-Seventh Building, 50 Seventh Street, NE., Atlanta, Georgia, Telephone
No. 876-3311, Extension 5357, if thye have any question concerning this notice or
compliance with its provisions.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that: -
WE WILL make our employees discharged on July 3, 1963, whole for any loss
of pay they may have suffered by reason of the discrimination against them.
WE WILL notify by mail to their last known address our employees discharged
on July 3, 1963, that we will consider, upon their application for job openings
or opportunities, such applications in a nondiscriminatory manner with regards
the employees' exercise of rights guaranteed under Section 7 of the Act.
WE WILL NOT discourage membership in or activities on behalf of Lodge
1325, International Association of Machinists, AFL-CIO, or any other labor
organization of our employees, by discriminating in regard to their hire or
tenure or any terms or conditions of employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce any of
our employees, in the, exercise of their' right to self-organization, to form, join,
or assist labor organizations, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for the purposes
of collective bargaining or other mutual aid or protection as guaranteed by
Section 7 of the Act, or to refrain from any or all such activities.
All our employees are free to become or remain, or to refrain from becoming
or remaining, members of Lodge • 1325, International Association of, Machinists,
AFL-CIO, or any other labor organization.
MAINTENANCE, INCORPORATED,
x.,-,, ' . .- • - - , . Employer.
Dated-' LE ------ B----------- ------=--------r -'(Representative) • • f '(Title) -
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; 528
Peachtree-Seventh Building, 50 Seventh -Street, NE.; Atlanta, Georgia,- Telephone
No. -876-3311, Extension 5357, •if they have 'any'question' concerning this notice or
,compliance with its provisions,