Midtown Service Co., Inc.

National Labor Relations Board - Board Decisions

Jun 13, 1968

171 N.L.R.B. 1306 (N.L.R.B. 1968)

1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Midtown Service Co., Inc ., 500 Fifth Avenue, Inc.
and Josephine Massaro
11 West 42nd Street, Inc., 500 Fifth Avenue, Inc.,
Broadtown Construction Co., Inc ., Midtown Ser-
vice Co., Inc., Seycorn Leasing Co., Inc ., Atlantic
Leasing Co., Inc ., Northern Fee Co., Inc., Salmon
Management Co., Inc ., and Walter J. Salmon, Jr.
and Richard Meyers
11 West 42nd Street, Inc., 500 Fifth Avenue, Inc.,
Broadtown Construction Co., Inc ., Midtown Ser-
vice Co ., Inc., Seycorn Leasing Co., Inc ., Atlantic
Leasing Co., Inc ., Northern Fee Co., Inc., Salmon
Management Co., Inc ., Walter J . Salmon , Jr., and
West 42nd Street Realty Corporation and Richard
Meyers and Local 670 , Retail , Wholesale and De-
partment Store Union , AFL-CIO, Party in In-
terest. Cases 2-CA-11121, 2-CA-11187-7, and
2-CA-11219
June 13, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On December 11, 1967, Trial Examiner Owsley
Vose issued his Decision in the above-entitled
cases, finding that the Respondents had engaged 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. He
also found that the Respondents had not engaged in
certain other unfair labor practices alleged in the
complaint, and recommended that such allegations
be dismissed. Thereafter, the Respondents, the
Party in Interest, and the General Counsel filed ex-
ceptions to the Trial Examiner's Decision and sup-
porting briefs.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
The General Counsel also submitted his brief to the Trial Examiner as a
brief in support of the Trial Examiner 's Decision, and the Respondents also
filed an answering brief to the General Counsel 's brief in support of his ex-
ceptions to the Trial Examiner 's Decision
i As the General Counsel stated at the hearing that he sought to adduce
evidence as to Supervisor Lewinski 's solicitation of support for Local 670
from employee Gregor and her partner in July 1966 only as background,
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the
briefs, and the entire record in these cases, and
hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner as modified
herein.
1. The Trial Examiner found, and we agree, that
the Respondents, in order to discourage employees'
efforts to decertify Local 670, the incumbent bar-
gaining representative, threatened employees with
loss of jobs and other reprisals, and effectuated
some of these threats by curtailing employee
privileges and imposing stricter work rules, in viola-
tion of Section 8(a)(1) of the Act.
2. We also agree with the Trial Examiner that
the Respondents gave assistance and support to
Local 670 by various acts and conduct, including
the threats and discrimination found above to be
violative of Section 8(a)(1), as well as the collec-
tion of dues for Local 670 and the solicitation of
employees to become or remain members of Local
670, and that the Respondents thereby violated
Section 8(a)(2) and (I) of the Act.'
Local 670 was certified by the Board in 1960,
and was the contractual representative of the
Respondents' employees until the expiration of
their agreement on July 31, 1966. A decertification
election conducted by the Board on September 14,
1966, was not determinative,' and a second elec-
tion scheduled to be held on December 14, 1966,
was indefinitely postponed because of the Respon-
dents' refusal to furnish a list of employees' names
and addresses. During January and February 1967,
the Respondents negotiated a new union-security
agreement with Local 670, retroactive by its terms
to the expiration date of the prior agreement, and
including various improvements in employee
benefits which were put into effect even before the
execution in June 1967 of a written agreement in-
corporating the terms of the verbal agreement. The
Trial Examiner found, and we agree, that the
Respondents, by entering into this new agreement,
contributed further unlawful support and assistance
to Local 670 in violation of Section 8(a)(2) and
(1) of the Act.
The Respondents contend, inter alia, that it was
not unlawful for them to negotiate a new agreement
with Local 670, because the General Counsel failed
and it appears that the Respondents, in reliance thereon, did not offer any
defense thereto , we shall not adopt the Trial Examiner's finding that such
solicitation violated Section 8(a)(2) and (I) of the Act.
9 The results were 94 votes for, and I l 1 against , Local 670. The election
was set aside because of the Respondents ' refusal to furnish a list of em-
ployees' names and addresses , and the circulation by the decertification
petitioners of an improperly marked facsimile ballot
171 NLRB No. 161
MIDTOWN SERVICE CO., INC. 1307
to establish that the Respondents had a good-faith
doubt of Local 670's majority status . The Respon-
dents also contend , as does Local 670, that even if
this conduct is found to be violative of the Act, the
Trial Examiner 's recommendation that the Respon-
dents be ordered to withdraw and withhold recogni-
tion from , and cease giving effect to their agree-
ment with, Local 670 should be rejected on the
ground that Local 670 had not been decertified, its
representative status should be presumed to have
continued. These contentions have no merit. Apart
from any other considerations , such a finding of
violation is warranted and such a remedial order is
required , in view of Respondents ' extensive unfair
labor practices aimed at continuing Local 670 as
the employees ' representative without regard to the
employees ' right to express their desires concerning
such representation in a Board -conducted election.'
3. The Trial Examiner found, and we agree, that
the Respondents discharged Josephine Massaro, an
employee with over 23 years' service without warn-
ing because of her leadership role in seeking the
decertification of Local 670; that the Respondents'
assertion that Massaro was discharged because she
violated a rule against leaving her assigned work
station was pretextual ; and, therefore, that by her
discharge the Respondents violated Section 8(a)(3)
and (1) of the Act.
4. The Trial Examiner found that the General
Counsel had failed to establish that the Respon-
dents, by their layoff of six painters and one car-
penter in January 1967, violated Section 8(a)(3)
and (1) of the Act. The General Counsel excepts
on the grounds , inter alia , that the Trial Examiner
erroneously credited the Respondents ' explanation
that the layoffs were due to economic considera-
tions, causing them to give more painting and car-
pentry work to the subcontractors who were al-
ready performing such work for the Respondents.
The record indicates in fact that there was less of
such subcontracting during the layoff period in
1967 than was the case in the corresponding 1966
period. Although no explanation was offered by the
Respondents as to why the painters and carpenter
could not have been retained as they had been in
past years during less busy seasons , the record also
shows that none of the laid-off employees had been
active in opposing Local 670; these employees had
stopped paying dues to Local 670 5 months before
the layoffs, other employees who were not laid off
had also stopped paying dues at the time, and it is
not shown that the Respondents knew that the laid-
off employees had stopped paying dues; those laid
off had the least seniority among the employees in
their categories; and all were offered reemployment
when the busy season approached.
In all the circumstances, we find, in agreement
with the Trial Examiner, that the General Counsel
has not shown by a preponderance of evidence that
the layoffs were discriminatory.
The Amended Remedy
The General Counsel has taken exception to the
failure of the Trial Examiner to recommend reim-
bursement to employees coerced by the Respon-
dents' 8(a)(2) violations for any initiation fees,
dues, assessments, or other moneys they paid to
Local 670. We agree that such reimbursement of
certain employees is appropriate, and we shall, ac-
cordingly, order the Respondents to reimburse,
with interest at the rate of 6 percent per annum,5
Jose Gonzalez, Wilberto Jiminez, Martinez (first
name unknown), and Joseph Wamil, who, as the
Trial Examiner found, were solicited by supervisors
to sign Local 670 membership cards and dues-
checkoff authorizations. We shall order such reim-
bursement as well for all other employees who were
coerced into joining Local 670 by the Respondents'
renewal, in furtherance of their unlawful support of
and assistance to Local 670, of the union-security
agreement, which was executed in June 1967 and
made effective retroactively to the expiration of the
prior agreement in July 1966.8
We also find merit in the contention of the
General Counsel that the Trial Examiner's Recom-
mended Order should reflect more specifically the
violations found, and that it should contain a broad
cease-and-desist provision rather than the narrow
provision recommended by the Trial Examiner, in
view of the number and character of the violations
found.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner , as herein
modified, and orders that the Respondents, Mid-
town Service Co., Inc.; 500 Fifth Avenue , Inc.; 1 1
West 42nd Street, Inc.; Broadtown Construction
Co., Inc.; Seycorn Leasing Co., Inc.; Atlantic
Leasing Co., Inc.; Northern Fee Co., Inc.; Salmon
I See , e.g., Sioux City Brewing Co ., 82 NLRB 1061; compare Lykes
Bros. Inc . of Georgia, 128 NLRB 606, 609-611.
5 Isis Plumbing A Heating Co., 138 NLRB 716
" Meyers Brothers of Missour,. Inc, 151 NLRB 889, 890-891
s N L R B v Entwistle Mfg Co, 120 F 2d 532 (C A 4). Seneca Plastics,
Incorporated , 149 NLRB 320, 323
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Management Co., Inc .; and West 42nd Street
Realty Corporation , New York, New York, their
officers , agents , successors , and assigns , shall take
the action set forth in the Trial Examiner 's Recom-
mended Order , as herein modified:
1. Delete paragraph 1(a) and insert in lieu
thereof the following:
(a) Assisting or contributing support to Local
670, Retail , Wholesale and Department Store
Union , AFL-CIO, or any other labor organization,
by soliciting employees to acquire or retain mem-
bership therein or to pay dues or other moneys to
such organization.
2. Delete the words beginning with " and in any
like or related manner " and the remainder of para-
graph 1(d) and add the following as paragraph 1(f):
(f) In any other manner interfering with,
restraining , or coercing their employees in the exer-
cise of their right to self-organization , to form, join,
or assist any labor organization , to bargain collec-
tively through representatives of their own choos-
ing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual
aid or protection , or to refrain from any or all such
activities , except to the extent that such right may
be affected by a lawful agreement conforming to
the provisions of Section 8(a)(3) of the National
Labor Relations Act, as amended , requiring mem-
bership in a labor organization as a condition of
employment.
3. Add the following as paragraph 2(c):
(c) Reimburse Jose Gonzalez , Wilberto Jiminez,
Martinez, and Joseph Wamil , and all those em-
ployees who became members of Local 670 after
the unlawful renewal of the union -security agree-
ment effective July 31, 1966, for initiation fees,
dues , assessments , or other moneys paid by them to
Local 670, together with interest at the rate of 6
percent per annum , as set forth in the section of the
Board 's Decision and Order entitled "The
Amended Remedy."
4. Reletter the present paragraphs 2(c), (d), and
(e) as 2 ( d), (e), and ( f), and amend relettered
paragraph 2(d) by inserting between the words
"backpay" and "due" the words "and reimburse-
ment."
5. Add the following to the third indented para-
graph of the Trial Examiner 's notice: "by soliciting
employees to acquire or retain membership or to
pay dues or other moneys to such organization."
6. Substitute the phrase " in any other manner"
for the phrase " in any like or related manner" in
the seventh indented paragraph of the notice.
7. Add the following as the ninth indented para-
graph of the notice:
WE WILL reimburse Jose Gonzalez, Wilberto
Jiminez , Martinez , and Joseph Wamil , and all
those employees who became members of
Local 670 after the unlawful renewal of the
union-security agreement effective July 3 1,
1966, for initiation fees , dues , assessments, or
other moneys paid by them to Local 670,
together with 6 percent interest.
IT IS HEREBY ORDERED that the complaints herein
be, and they hereby are, dismissed insofar as they
allege violations of the Act not found herein.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
OWSLEY VosE, Trial Examiner : These con-
solidated cases were heard by me in New York,
New York, on various dates commencing on April
26, 1967, and ending on June 29 , 1967. The com-
plaints allege in substance that the Respondents
supported and assisted Local 670, Retail,
Wholesale and Department Store Union,
AFL-CIO, herein called Local 670 , threatened em-
ployees opposing Local 670 with discharge and
other reprisals, and engaged in other acts of inter-
ference , restraint , and coercion , in violation of Sec-
tion 8 (a)(2) and (1) of the Act; and discharged
Josephine Massaro on October 13 , 1966, and laid
off six painters on January 5, 1967 , and one car-
penter on January 6, 1967, because of their activi-
ties in opposing Local 670, in violation of Section
8(a)(3) and (1) of the Act.
Upon the entire record , including my observation
of the witnesses , and after due consideration of the
briefs filed by all parties , I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENTS
The Respondents, with the exception of Walter J.
Salmon, Jr., are affiliated corporations owning or
leasing office buildings in New York City. They
have common ownership, officers, directors, and
supervisory staff, and constitute a single integrated
enterprise having a common labor policy affecting
the employees of all of the corporations. Walter J.
Salmon, Jr., is the president of 500 Fifth Avenue,
Inc., and vice president of most of the other cor-
' The complaint in Case 2-CA-11121 was issued on December 15,
1966, pursuant to a charge filed on October 14, 1966 A consolidated com-
plaint was issued by the Regional Director for Region 2 in Cases
2-CA-I 1187-7 and 2-CA-I 1219 on May 19, 1967, pursuant to charges
filed on January 6 and January 27, 1967, and amended charges which were
filed on May 15 and April 28, 1967, respectively The General Counsel on
June 6, 1967, moved to consolidate Case 2-CA-I 1121 with Cases
2-CA- 11187-7 and 2-CA-I 1219, which had previously been consolidated
by the Regional Director , and the Trial Examiner that same day granted the
motion for consolidation
MIDTOWN SERVICE CO., INC.
porate Respondents. Among the Respondents' ten-
ants are corporations receiving substantial
revenues from businesses located outside the State
of New York. Upon these facts, which are admitted
by the Respondents , I find that the Respondents are
engaged in a business affecting commerce within
the meaning of Section 2(7) of the Act and that it
is appropriate for the Board to assert jurisdiction in
this case.
11. THE LABOR ORGANIZATION INVOLVED
Local 670, Retail, Wholesale and Department
Store Union , AFL-CIO, the Party in Interest
(herein called Local 670), is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background; Events in the Period More Than 6
Months Before the Filing of the Charge
For many years prior to the events in this case,
the employees of the Respondent corporations,
with minor exceptions not here relevant , have been
represented for collective-bargaining purposes by
Local 670. On April 12, 1960, Local 670 was cer-
tified by the Board as the exclusive representative
of all "building service and building maintenance
employees of I I West 42nd Street, Inc., 500 Fifth
Avenue , Inc., Bryant Park Building , Inc., Seycorn
Leasing Co., Inc., Broadtown Construction Co.,
Inc., and Northern Fee Co., Inc...."
On June 28, 1960, the above-named corporations
and Atlantic Leasing Co., Inc., entered into a 3-
year collective-bargaining contract with Local 670.
This contract between Respondents and Local 670
was subsequently renewed with a second 3-year
contract which had as its expiration date July 3 1,
1966. During the term of this contract , the West
42nd Street corporation purchased the building at
55 West 42d Street which had previously been
owned by the Bryant Park Building Company. On
September 15, 1964, the West 42nd Street Cor-
poration assumed said multiemployer collective-
bargaining contract . This contract contained a
union -security clause requiring all employees in the
unit to become and remain members of Local 670
after the first 30 days of their employment.
In the spring of 1966, some of the Respondents'
employees became dissatisfied with Local 670's
representation of them and sought advice concern-
ing ways to get rid of Local 670 as their bargaining
representative. Among these were the cleaning
women at II West 42nd Street and 500 Fifth
Avenue, two of the buildings owned and managed
by the Respondents. These two buildings are ad-
1309
jacent to one another along 42d Street at Fifth
Avenue.
On April 6, 1966, a group of the cleaning women
in these two buildings attended a meeting spon-
sored by Local 32-J, Building Service Employees
International Union, AFL-CIO, herein called Local
32-J. The floorladies in these two buildings, Jose-
phine Massaro and Helen Lewinski, also attended
the meeting along with the cleaning women under
them.
On April 13, the two floorladies were summoned
to the office of President Walter J. Salmon. There,
in the presence of John Smith, the superintendent
of both the 500 Fifth Avenue and 11 West 42d
Street buildings, President Salmon asked Floorlady
Massaro whether she had attended the meeting
held by Local 32-J. After Masaro denied attending,
Floorlady Lewinski spoke up saying, that eight of
her women had attended. Salmon, declaring that
"he wouldn't have a bunch of women boss him
around," instructed the floorladies to tell the
women under them that "they should stick with
670" or he would contract the work out and "there
would be less women working and longer hours."
That evening both floorladies, in compliance with
President Salmon's instructions, told the cleaning
women under them as they came in to work that
Pesident Salmon had said that they "should keep
670" and "if 32-J got in" he would contract out
the work and "a lot of them would lose their jobs. "2
On April 14, 1966, when Floorladies Lewinski
and Massaro reported for work they found a note
from Superintendent Smith stating that Henry
Rodriguez, the night foreman of the porters in both
buildings, had a petition for employees to sign and
requesting both floorladies to cooperate.
Thereafter, Foreman Rodriguez and William Har-
rar, vice president of most of the Respondents, ap-
proached employees at work and requested them to
sign petitions favoring continued representation by
Local 670. The circulation of these petitions for
Local 670 by Foreman Rodriguez continued for
several months, with Floorlady Lewinski assisting
quite frequently.
At least from March 1965 on, Floorlady Lewin-
ski collected dues in Local 670 from employees
under her supervision. As found below, Lewinski
continued to collect Local 670 dues in September
and part of October, even though the collective-
bargaining contract with Local 670 expired on July
31, 1966, and had not been renewed, and Local
670 had failed to obtain a majority of the votes in a
Board-conducted election.
On April 19, the Respondent demoted Floorlady
Massaro from her position as floorlady, a supervis-
ing position, to that of cleaning woman. Superinten-
dent Smith told Massaro on this occasion that a
`The quoted testimony in the preceding two paragraphs is that of Floor-
lady Lewinski It is fully corroborated by that of Massaro and is not denied
by President Salmon , who did not take the witness stand
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recent robbery made it necessary that Respondent
place a man on the elevator for the protection of
women. Smith told Floorlady Lewinski, however, as
she testified, that an additional factor in Massaro's
demotion was the fact that she was "influencing the
women" against Local 670 and had sent a delegate
from Local 32-J, which "they didn't want ... in,"
over to 1 1 West 42nd Street.'
In May, a group of the Respondent's employees
who opposed continued representation by Local
670, including Robert Currenti, Josephine Massaro,
and Richard Meyers, commenced working for the
decertification of Local 670. Currenti had some
cards printed requesting the decertification of
Local 670 and Currenti, Meyers, and Massaro sol-
icited their fellow employees to sign the cards. At
some latter stage the group took the name "Rank
and File Committee for Honest Labor Representa-
tion at Salmon Towers."
On May 26, 1966, Massaro and Anna Mitchell
filed, with the Board's Regional Office in New
York, New York, a petition requesting the decer-
tification of Local 670 (Case 2-RD-680). On June
23, 1966, an employer representation petition
covering the Respondents' employees was filed with
the Board's Regional Office (Case 2-RM-1491).
The two representation cases were duly con-
solidated . After an initial hearing in the con-
solidated cases the Employer 's representation peti-
tion was withdrawn. The hearing continued upon
the decertification petition and culminated, on July
27, 1966, in the Regional Director 's Decision and
Direction of Election in which he directed that an
election be held among the Respondents' em-
ployees.
Parenthetically it may be stated that the election
was held on September 14, 1966, and 94 votes
were cast for Local 670 and 111 votes were cast
against Local 670.
With this background in mind I turn to the acts
and conduct alleged to violate the Act, all of which,
the General Counsel contends, were aimed at con-
tinuing Local 670 as the exclusive bargaining
representative of the Respondents' employees and
defeating the opposition to Local 670.
B. The Respondents' Assistance and Support to
Local670 in Violation ofSection 8(a)(2) and its
Interference With, and Restraint and Coercion of
' The General Counsel refused to issue a complaint on the charge filed
by Massaro alleging that her demotion violated Section 8(a)(3) and (1) of
the Act Among the grounds for the General Counsel 's refusal was the fact
that Massaro was a supervisor within the meaning of the Act
Employees Opposing Continued Representation by
Local 670, in Violation of Section 8(a)(1)
1. The Respondents ' conduct in the preelection
period
a. Floorlady Lewinski 's and Foreman Henry
Rodriguez ' solicitation of employees on behalf of
Local 670
Helen Gregor credibly testified that Lewinski ap-
proached her and her partner in July while they
were at work on the 13th floor of 11 West 42d
Street with a paper for Local 670 and told her "that
the boss did not want 32-J union, he wanted 670
and we had to sign." Sophie Kutney, another em-
ployee, testified that Lewinski and Foreman Henry
Rodriguez spoke to her about Local 670, she be-
lieved, "just before our old contract expired." They
told her the reason "why Mr. Salmon wanted 670"
was "because 32-J, as a rule, sympathizes with
other buildings if there ever was a strike." Kutney
further testified that on this same occasion Lewin-
ski and Rodriguez handed them a blank piece of
paper and told them "to sign it." When Kutney's
partner asked why, Lewinski said "because ... he
(Mr. Salmon) wanted 670." Kutney added that
Lewinski and Rodriguez "were so many times on
her floor" talking in favor of Local 670.4 On
another occasion before the contract expired, ac-
cording to Kutney, Lewinski approached her and
two other cleaning women with two papers, each
with different language supporting Local 670 at the
top, and asked them to sign one or the other. When
counsel for the General Counsel sought to pinpoint
the date more accurately, Kutney was unable to do
so, explaining , "We signed so many papers, one
after the other, in the same period of time."
Rodriguez was not called as a witness by the
Respondents. Lewinski denied circulating any peti-
tions after May 1966 and she specifically denied
telling Hojnowskie that she would be thrown out of
work if she did not sign a paper for Local 670. Not
only did Gregor, Kutney, and Hojnowskie testify
concerning Lewinski 's solicitation for Local 670
after May 1966, but, as found below, Ursula Jasin-
ski also testified to solicitation and threats by
Lewinski after the election. Both Gregor and Jasin-
ski, at the time they testified, had left the Respon-
dents' employ and had no direct interest in the out-
come of the case . Lewinski impressed me on the
stand as shading her testimony somewhat to favor
' Sophia Hojnowskie testified that 3 or 4 weeks before the election
Lewinski came to her where she was working on her floor with a "very
large paper" on which "all the women were writing ... their names" and
asked her to sign the paper When Hojnowskte hesitated . Lewinski said if
you don 't like it . you're going to lose your job "
MIDTOWN SERVICE CO., INC. 1311
the Respondents ' case . I credit the testimony of
Gregor , Kutney, and Hojnowskie , above set forth.
b. Foreman Raniolo's threats
In August 1966 , Carmelo Raniolo, the foreman
of all of the Respondents ' construction work, ad-
mittedly told all of the men under his supervision
that " if they vote against 670 they would be fired
one by one."
c. Foreman Decker's threats
Thomas Decker is a supervisor over the Respon-
dents' plumbers, engineers , and maintenance
mechanics. During the month or so preceding the
election he repeatedly threatened employees with
discharge for rejecting Local 670 in the election.
Thus , he warned Henry Snyder and three others of
his fellow workers that " if you fellows don't join
670 we are going to contract the whole job out and
fire every one of you." On another occasion he told
Walter Gilmore that "if 670 were to be thrown
out" "the work would all be contracted out and
that we wouldn't have any jobs."
Two weeks before the election Decker told
Jospeh Wamil, a member of Local 32-B of the
Building Service Employees International Union,
"not to mention anything about 32-B," that "the
least [he] said about it the better [ he] would be."
A week before the election , Decker called
Richard Meyers over to his desk, and after explain-
ing that he had been up to President Salmon's of-
fice, told Meyers that he (Decker) had to take or-
ders from Mr . Salmon , and that Meyers had to take
orders from Decker , " and if [he ] wanted to con-
tinue to work there ," he would stop giving "out any
literature against 670 ." As found above, Meyers
was one of the leaders in the decertification move-
ment . On the morning before the election Decker
told the men under him that "if they voted out 670,
that they would be voting themselves out of a job."
The foregoing findings are based upon the unde-
nied testimony of the employees involved . Decker,
although called as a witness by the Respondents,
was not questioned about any of the incidents re-
lated above.
d. The conduct of Forman Bertles
George Bertles was foreman of the Respondents'
painters . Leonardo Procino and Leon Palacios'
testified that Bertles told a group of painters during
the summer before the election that "if somebody
comes here to ask you to sign for another union,
don't sign ." Emanuele Menardi testified that
Bertles told them on this occasion "don't start for a
new union because you will have trouble."
As stated above, Robert Currenti , a painter, was
one of the leaders in the movement to decertify
Local 670. The first week in September 1966,
Bertles asked Currenti if he had distributed any
material for the rank-and-file committee. When
Currenti denied it, Bertles said to him that someone
had seen him doing so.
The foregoing findings are based upon the em-
ployees' undenied testimony . Bertles was not called
as a witness by the Respondents.
e. Foreman Schumacher's threat to the engineers
The uncontradicted testimony of Walter Gilmore
establishes that about a month before the election
Schumacher told Gilmore, Richard Meyers, and
Henry Synder that "we would be jeopardizing our
jobs if 670 lost because all of the work would be
given out, and we wouldn't have any jobs to work
at."
The Respondents contend that Schumacher was
not a supervisor within the meaning of the Act and
that hence they are not responsible for his conduct.
The facts regarding the supervisory setup in the
mechanical department are as follows: Supervisor
Decker has overall supervision of the Respondents'
plumbing , engineering , and mechanical repair
work. Decker's office is in the basement of 1 1 West
42d Street and his work confines him to the office
much of the time. The engineering work is per-
formed in different parts of the buildings, some of it
a considerable distance from the office where
Decker personally is not in a position to oversee it.
Consequently, Decker relies on Schumacher, the
most experienced engineer, for immediate supervi-
sion over the other two or three engineers.
Meyers testified that Schumacher "went around
checking work; if it wasn't done to his satisfaction,
he had you do it over again." Gilmore testified that
although Schumacher performed some physical en-
gineering work, he spent "most of his time supervis-
ing the work" of the engineers. While most of the
tasks of the engineers are performed routinely
without instructions from any supervisor, Schu-
macher is the one who assigns them their nonrou-
tine jobs.
Schumacher also determines whether needed
work can be performed by the Respondents' en-
gineers or whether the services of a subcontractor
will be required, and makes recommendations in
this regard to Decker. Decker admittedly utilizes
Schumacher as his "troubleshooter out and around
the buildings ." Because Decker is tied so closely to
the office and many times lacks the opportunity to
personally check on Schumacher's recommenda-
tions, Decker necessarily relies on Schumacher's
recommendations concerning the need for subcon-
tracting.
Decker in his testimony referred to Schumacher
as his lead engineer, but sought to minimize his
authority to make independent decisions. Accord-
ing to Decker, Schumacher merely relayed on to
the men Decker 's own instructions concerning the
nonroutine tasks the engineers were to perform.
Schumacher was not called as a witness by the
Respondents . In view of this fact, the testimony of
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees concerning the instructions and
direction given them in their work by Schumacher,
and the practical difficulty of Decker's performing
all of the supervision of the engineers' work
because of the widely scattered work locations
throughout the two buildings, I do not credit
Decker's testimony concerning Schumacher's asser-
tedly limited role in supervising the work of the en-
gineers . I find that Schumacher exercised indepen-
dent judgment in assigning engineers to their work
tasks and responsibly directed them in the per-
formance of these duties. Accordingly, I conclude
Schumacher was a supervisor within the meaning of
Section 2(11) of the Act and the Respondents were
responsible for his conduct.
2. The election
As stated above, at the election which was held
on September 14, 1966, the employees voted to
decertify Local 670. The tally of the ballots showed
I 1 l employees in favor of decertification and 94
votes for Local 670.
On September 20, 1966, Local 670 filed objec-
tions to the election alleging , in part, that the
Respondents had failed and refused to file the elec-
tion list in accordance with Excelsior Underwear
Inc., 156 NLRB 1236, and that the Petitioners in-
terfered with the election by distributing to the em-
ployees an election handbill containing a facsimile
of the official Board ballot with an "X" marked in
the "No" box. These objections were sustained by
the Regional Director in his Supplemental Decision
and Direction of Second Election dated October
10, 1966, in which he set aside the election of Sep-
tember 14, 1966.
On November 15, 1966, the Regional Director is-
sued a notice of rerun election in which he
scheduled the rerun election for December 14,
1966. At the same time the Regional Director
notified the Respondents of their obligation to
furnish the election eligibility list in accordance
with Excelsior Underwear Inc., supra. Thereafter, on
December 12, 1966, the Regional Director issued a
telegraphic order postponing the election in-
definitely because of the Respondents' refusal to
furnish the Excelsior list.
3. The Respondents ' postelection conduct
a. Decker's continued threats against the opponents
of Local 670; the Respondents ' tightening up on its
work rules
One night about a week after the election
Richard Meyers and Robert Currenti encountered
Alex Kakuk, business agent for Local 670, in the
basement of 11 West 42d Street, where about a
dozen cleaning women were waiting for the eleva-
tor to take them to their floors. Kakuk was solicit-
ing the women to sign dues-checkoff authoriza-
tions. Meyers and Currenti explained to the women
what they were being asked to sign and told them
that they did not have to sign. While this was going
on, Bertles, the painting foreman, was pacing up
and down about 20 feet away.
The next morning Decker called Meyers over to
his desk in the shop and told him, according to
Meyers' undenied testimony, that he "was making
life hard for him and for everybody; that Mr.
Bertles had called him up and told him what [he]
was doing the night before, and he told [him] to
keep away from Bob Currenti." Currenti, as found
above, was one of the leaders of the rank-and-file
committee which was opposing Local 670. About
this same time Currenti quit his job as a painter for
the Respondents and opened an office to further
the work of the rank-and-file committee.
About 3 weeks after the election Decker gave a
talk to all of the plumbers and engineers on duty
that day. According to Richard Meyers' credited
and undenied testimony, Decker told the men as
follows:
... that he was up to Mr. Salmon's office and
Mr. Salmon told us-told him that all-if we
didn't get behind 670 and give them support,
that the work was going to be given to outside
contractors and he told us that things were
going to-there was going to be a drastic
change . As of then, that there was to be no
more in between coffee breaks except one in
the morning, one in the afternoon; there was to
be no sitting in the back and the men were to,
if there was no job, they were to-to find some
work to do but to look busy at all times
because if they didn't and if they-things
would be bad for them....
He said latenesses or absences would not be
tolerated any more. Walter Gilmore's testimony
fully corroborates Meyers' concerning this in-
cidents
After Decker's talk to the men the working con-
ditions in the shop took a definite change for the
worse. As explained by Gilmore:
Well, what occurred was that we used to come
down a little bit before lunch, take time to
wash up, and if we went out for coffee break
the time wasn 't strictly held, and the jobs we
did that we signed for were more or less taken
at our word that we had done them and that
they were done right.
But after the election the lunch hour
schedules , the washup time, coffee breaks,
' The only question asked of Decker concerning this incident was as fol-
lows "Did you ever tell Noel Mussen after the election that things would
be different and that latenesses and absences would not he tolerated""
Decker responded , "Absolutely not." Since Mussen did not testify con-
cerning this incident and since there is no evidence that Mussen was
present on this occasion . I do not regard Decker 's response to the above-
quoted question as a denial of Meyers ' and Gilmore 's testimony
MIDTOWN SERVICE CO., INC. 1313
were all very strictly adhered to, and our word
was no longer accepted as to the work that we
had performed. It now was the duty of being
checked up on. They would spot-check.
About October 5, 1966, as Meyers was painting
the floor in the steamroom in the basement of 11
West 42d Street, Currenti passed by outside the
wire gate. As noted above, by this time Currenti
had quit his job with the Respondents. After a few
pleasantries Currenti passed on, just as Dwyer, the
steward for Local 670, appeared on the scene. Very
shortly thereafter Superintendent Smith came and,
after peering behind the boilers, asked Meyers if
anybody else had been in the steamroom. At
lunchtime that day Decker notified Meyers that he
was being laid off for a week, and told him to go
home immediately. When Meyers tried to find out
the reasons for his layoff he was first given a
"runaround" by the Respondents' supervisors.
Finally, Decker told Meyers as follows:
... it came from Mr. Salmon. Give me your
keys and get out of here or you're going to be
fired instead of laid off.
When Meyers returned to work about a week later,
he was transferred to engineering work under Schu-
macher, but was required to work at the lower
plumbers' helpers' rate of pay.
About a month after the election Decker again
spoke to Joseph Wamil about his membership in
Local 32-B. On this occasion Decker told Wamil
that "he liked [his] work, wanted to keep [him] ...
the least you say about 32-B, you, you will have
your job."
One day early in November Decker called
Meyers to his desk in the shop and said that he had
been informed that Meyers was still handing out
circulars for the rank-and-file committee . Meyers
denied it . Thereupon Decker stated, "Well, if you
are ever caught doing it or I can prove you did it,
you will be fired immediately." The foregoing find-
ing is based on the credited and undenied testimony
of Meyers and of Gilmore, who overheard the con-
versation.
On another occasion about this same time,
Meyers had lunch with Currenti. He returned to the
employees' lounge in the shop at 12:40 p.m. and
chatted with the men until it was time to return to
work at 1 p.m. Then the following happened, ac-
cording to Meyers' uncontradicted testimony:
At 1 o'clock I was on the way out of the shop
and Tom Decker called me over and he told
me I was going to be fired because I was seen
outside speaking with Bob Currenti after
lunch.
I told him it's impossible. It's just now 1
o'clock and I've been in the back for the last 20
minutes.
He says, "Well, George Bertles just called me
up and told me this."
So I told him "Ask the men back there right
now before-don't wait until tomorrow. Ask
the men back there right now."
So he swung his chair out into the aisle and
looked back, and Tom Schumacher was stand-
ing there, he says to him, "Is that right?'. and
Tom went (indicating) "Yes."
On an occasion in late January or February 1967
when Edward Dwyer, one of the plumbers,
returned to the shop with his helper, Joseph Wamil,
Decker told him, that "There is a friend of yours
back there who wants to see you." Decker was
referring to Alex Kakuk, the business agent for
Local 670. There, within Decker's hearing, Kakuk
told Wamil that he should bring his dues up to date,
and, turning to Dwyer, the Local 670 steward for
the Respondents' plumbers, said, "it's more impor-
tant that he sign a pledge card (dues-checkoff
authorization) even than he pays his dues at this
time." Thereupon Wamil pulled out some money
and offered it to Kakuk. Dwyer accepted it. Wamil
also signed a pledge card at this time. This finding is
based on the credited and undenied testimony of
Joseph Wamil and Walter Gilmore.
With the exception of the one incident men-
tioned in the footnote above, Decker was not
questioned about any of the incidents related
above.
b. Foreman Rodriguez' assistance to Local 670
About 3 weeks after the election, the night por-
ters found Business Agent Alex Kakuk in the office
when they went to punch the timeclock. Henry
Rodriguez, their foreman, was in the office at the
time . Kakuk showed the men an application and
dues-checkoff authorization for Local 670 and said
that if the men signed they would be accepted in
Local 670 in groups. Two or three days later on
payday, Kakuk returned and gave Foreman
Rodriguez some kind of a booklet. While the men
were waiting for their pay Rodriguez told them that
those who signed the booklet would be able to join
Local 670 department by department. At least
three of the men signed for Local 670 at this time.
c. Foreman Schumacher's threats
Several weeks after the election on September 14
Schumacher told Meyers within the hearing of Gil-
more that he thought the men had "made a
mistake, that [they] should have gone along with
670 and that he was afraid that unpleasant results
would follow." Schumacher also told Meyers on
this occasion "to be very careful, that he didn't
want to lose him and they were after him." The
foregoing finding is based on Gilmore's credited
and undenied testimony. Meyers' testimony is sub-
stantially in accord, except that he placed the in-
cident at an earlier date.
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A few days later Schumacher told Meyers that he
"should quit because ... this way [he] could get a
reference because [he ] was going to be fired, and
in a short time." This is Meyers' undenied
testimony. As found above, a short while thereafter
Meyers was given a week 's layoff and was unsuc-
cessful in obtaining any meaningful explanation for
it from the Respondents.
d. Floorlady Lewinski's activities on behalf of Local
6 70
It was stipulated that Lewinski issued receipts for
dues in Local 670 during September and October
1966 up to October 10.
Ursula Jasinski testified that Lewinski asked her
to sign for Local 670 on two occasions about the
time of the election. On the first occasion, accord-
ing to Jasinski , Lewinski said, "just we want to get
back the union , and you want to sign , sign it."
Jasinski signed this time . The next time , which was
2 or 3 weeks after the election, Lewinski gave
Jasinski and Helen Gregor dues -checkoff authoriza-
tions and told them that they "must pay for the
union dues." They refused. Whereupon Lewinski
declared, "If you want to stay here and work, then
you must pay." Jasinski replied that "we don't have
any union." The foregoing finding is based upon
the mutually corroborative testimony of Jasinski
and Gregor. While Lewinski denied making the
threat attributed to her by Jasinski and Gregor, I do
not credit her testimony in this regard. As indicated
above, I have some doubts about Lewinski's relia-
bility as a witness. And the conduct attributed to
Lewinski is wholly consistent with the pattern of
the conduct of the Respondents' supervisors
generally in this case which is established by unde-
nied testimony.
In January 1967, after Helena Pacepnia stopped
paying her dues to Local 670, her partner on the
floor mentioned to her that she had heard that the
employees were going to receive a $3-per-week
wage increase, but that they would have to pay
union dues. Whereupon Pacepnia declared, "I
don't pay." Several days later, as Pacepnia was
punching in at the timeclock , Lewinski told her, as
Pacepnia testified, "if I don't stop talking with
other women , I might lose my job ." When Pacepnia
asked who her conversation had bothered, Lewin-
ski replied that four employees had complained.
Lewinski did not deny this conversation with
Pacepnia.
The General Counsel offered considerable addi-
tional testimony concerning the Respondents' sup-
port of Local 670 in violation of Section 8(a)(2) of
the Act, but the Trial Examiner , sustaining the
Respondents ' objection that such testimony was cu-
mulative , refused to receive it.
e. The Respondents' negotiation of a collective-
bargaining contract with Local 670 and their grant
of wage increases and other benefits pursuant to the
contract
On August 30, 1966, representatives of the
Respondents and of Local 670 met in the office of
Charles Katz, the attorney for Local 670. Currenti,
Meyers, and Massaro, having heard about the meet-
ing, went up to Katz ' office at the time scheduled.
While the three employees were waiting in the hall-
way outside of Katz' office, Louis Jackson, one of
the Respondents' attorneys, walked out of the
elevator. Currenti, as his undenied testimony
establishes , told Jackson that " since we represent a
majority of the people at these buildings, we would
like to sit in on these negotiations ." Jackson
refused to agree. Later, when the employee mem-
bers of Local 670's bargaining committee were in-
vited to enter Katz' office, Currenti, Meyers, and
Massaro also sought to enter, but they were barred.
Katz asserted that Local 670 was still the certified
bargaining representative.
At the meeting Katz presented Local 670's
proposals for a new contract, which provided for
substantial additional benefits for the employees.
Attorney Jackson stated that these proposals would
be submitted to Mr. Salmon and that Local 670
would be notified as to his position regarding them.
Thereafter, for almost 5 months, as far as the
record shows, there were no further bargaining
negotiations between the parties.
Then on January 23 and January 26, 1967, an
oral understanding was reached concerning all the
items involved in the negotiations except one,
which was agreed to on February 3 in a telephone
conversation between the negotiators. After
February 3, 1967, certain improvements in the em-
ployees' terms and conditions of employment were
made by the Respondents in accordance with the
terms of the oral understandings reached in the
negotiations.6
Local 670's attorneys, in a letter dated May 12,
1967, requested Respondents to execute the stipu-
lation embodying the understandings reached
between the parties on February 3. The Respon-
dents' attorneys replied to Local 670's request by
letter dated May 17, 1967, the text of which is as
follows:
We are in receipt of your letter of May 12,
1967 requesting execution of a contract. Our
clients feel that, in view of the results of the
decertification election, a serious question ex-
ists as to the majority status of your client's
union, Local 670, RWDSU.
Under present NLRB law, we feel that the
best evidence of majority representation you
can tender under the present circumstances is
"The findings in this paragraph are based upon a stipulation of the
parties.
MIDTOWN SERVICE CO., INC.
authorization of your client 's union by a
majority of employees . The Board has given its
approval to such procedure in similar circum-
stances. We therefore decline your request.
Local 670 renewed its request that the Respon-
dents sign the agreement in a letter written by At-
torney Katz on June 1 , in which he asserted that
Local 670 continued to be the collective -bargaining
representative of the Respondents ' employees
despite the vote in the decertification election. The
recent decision of the Board in Decorel Corporation
et al., 163 NLRB 146, was cited as authority for its
position.
By letter dated May 31, 1967, the Respondents'
attorneys notified Local 670's attorneys , as follows:
We are in receipt of your letter of May 29,
1967. Pursuant to said letter , we have ex-
amined the Board 's recent decision in Decorel
Corporation , 163 NLRB 146.
Accordingly , as your client 's Union con-
tinues to be the majority representative, we
hereby agree to meet with you and execute the
collective -bargaining agreement . This will
eliminate the necessity of proceeding further
with your unfair labor practice charge in case
2-CA-11320.
On June 6 , 1967, Attorney Katz, on behalf of
Local 670, mailed a copy of the stipulation em-
bodying the February 3, 1967, understandings to
the attorneys for Respondents for signature by the
Respondents . The stipulation provided for an ex-
tension of the expired agreement until July 3 1,
1969, with certain improvements and modifica-
tions. The stipulation was apparently executed by
all parties , as the Respondents refer to it in their
brief as " the contract negotiated between the
parties."
4. Conclusions concerning the Respondents'
violations of Section 8(a)(2) and ( 1) of the Act.
The testimony above set forth , much of it uncon-
tradicted , establishes that from the time the
Respondents first became aware of the movement
to decertify Local 670 the Respondents vigorously
sought to defeat the decertification movement in
order to effect the continuation of Local 670 as the
bargaining representative of their employees. The
Respondents ' efforts in the preelection period in-
cluded instances of supervisory solicitation of em-
ployees to sign petitions favoring Local 670 and nu-
merous threats by supervisors that employees
would lose their jobs if Local 670 lost the election.
After Local 670 lost the election, the Respon-
dents continued its campaign to uphold Local 670
and to defeat the efforts of the supporters of the
decertification movement . The Respondents' super-
visors assisted representatives of Local 670 in sign-
ing up employees in the buildings and themselves
solicited employees to sign at times. Floorlady
Lewinski acted as dues collector for Local 670 for
1315
a month or so after the election. As before, the
Respondents used as weapons in their campaign
threats of loss of jobs if Local 670 were ousted. Su-
pervisor Decker , who was in charge of the main-
tenance shop , implemented his threats with a
general tightening up of the employees ' work rules.
The Respondents took action against two of the
three principal promoters of the decertification
movement , Richard Meyers and Josephine Mas-
saro , in the month following the election , and the
third , Richard Currenti , quit to devote full time to
the movement . Meyers, who worked in the main-
tenance shop under Decker , was harassed in vari-
ous ways because of his decertification activities,
including being laid off for a week . As found below,
Massaro , who was the most active worker for de-
certification among the women , was discharged
because of her decertification activities.
The Respondents do not contend that the
evidence summarized above does not warrant a
finding that the Respondents contributed support to
Local 670 in violation of Section 8(a)(2) of the
Act; nor do they argue that the threats against the
supporters of the decertification movement, most
of which stand undenied in the record , do not con-
stitute interference , restraint , and coercion in viola-
tion of Section 8(a)(1) of the Act. The Respon-
dents ' principal argument is that their negotiation
of a collective-bargaining contract with Local 670
and the granting of certain benefits to the em-
ployees pursuant to the terms of the contract did
not violate Section 8 ( a)(2) of the Act. Local 670
also urges the same point and, in addition, argues
that the evidence at most shows permissible
cooperation with and assistance to Local 670, and
does not establish violations of Section 8(a)(2) and
(1) of the Act. This latter contention must be re-
jected as the evidence summarized above shows nu-
merous acts on the Respondents ' part of affirmative
support to Local 670 and outright threats against its
opponents, in violation of Section 8(a)(2) and (1)
of the Act.
In arguing that the negotiation of the collective-
bargaining contract with Local 670 and the grant of
benefits pursuant thereto did not violate Section
8(a)(2), the Respondents and Local 670 rely
primarily on a line of Board decisions indicating
that the mere pendency of a decertification petition
does not constitute a rival claim for representation
and does impair the obligation of an employer to
continue to bargain collectively with an incumbent
certified union , unless the employer believes in
good faith upon the basis of probative evidence that
the incumbent union has in fact lost its majority
status. The leading cases relied on by the Respon-
dents and Local 670 are Decorel Corporation, 163
NLRB 146, and Perry Rubber Co., 133 NLRB 225.
The General Counsel argues in effect that the
Decorel line of cases does not alter the basic doc-
trine laid down in Midwest Piping & Supply Co., 63
NLRB 1060, and certified in Shea Chemical Cor-
353-177 0 - 72 - 84
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
poration, 121 NLRB 1027, 1029, to the effect
... that upon presentation of a rival or con-
flicting claim which raises a real question con-
cerning representation, an employer may not
go so far as to bargain collectively with the in-
cumbent (or any other) union unless and until
the question concerning representation has
been settled by the Board
According to the General Counsel, a decertifica-
tion petition ordinarily does raise a real question of
representation, and an employer cannot take upon
himself to resolve the question, but must leave it to
the procedures of the Board. In support of this
proposition the General Counsel cites Halben
Chemical Co., Inc., 124 NLRB 872, 878. The
Decorel line of cases, the General Counsel con-
tinues, constitutes an exception to this doctrine
because of the special circumstances there
presented and are not applicable under the circum-
stances of this case. I agree with the overall conclu-
sions of the General Counsel.
One of the basic objectives of the Act is to assure
employees of their free choice of bargaining
representatives. An employer is not permitted to
bargain with a representative which has not been
freely chosen. Ordinarily an employer found guilty
of contributing support to a labor organization in
violation of Section 8(a)(2) and (1) of the Act is
required to withdraw and withhold recognition
from the union which is the beneficiary of such sup-
port until such union shall have been certified fol-
lowing a Board -conducted election . The present
case is not an ordinary one, involving as it does a
certified incumbent union as to which a rebuttable
presumption of its continuing majority status exists,
and the question here is whether the presumption
of continuing majority status is to be given effect
notwithstanding the Respondents ' unfair labor
practices . I conclude that this presumption should
not be given such effect and that the Respondents
must be deemed obligated to have refrained from
recognizing and bargaining with Local 670 until the
question raised by the decertification petition had
been settled under the procedures of the Act.' Any
other view of the matter would allow the Respon-
dents to destroy the employees' freedom of choice
to reject Local 670 in the election with impunity.
Nothing in Decorel or Perry Rubber warrants such
an outcome in this case . In Decorel the Board held
that the filing of a decertification petition did not
relieve the employer of the obligation to continue
to bargain collectively with the recognized certified
incumbent union , where the employer , after the fil-
ing of the decertification petition and prior to the
election , engaged in unfair labor practices aimed at
unseating the certified incumbent. Although the
certified incumbent union failed to win a majority
' Respondents themselves recognized this obligation for a time, as as in-
dicated by the Respondents ' letter to Local 670 raising a question concern-
ing its majority status and requesting new proof thereof
" While I do not believe this is a situation requiring the striking of a
balance between competing considerations, if it he deemed such a situation
of the votes in the decertification election, the elec-
tion was set aside by the Regional Director because
of the employer's unfair labor practices prior to the
election. Because of these unfair labor practices,
and taking into consideration all of the circum-
stances of the case, the Board found that the cer-
tified incumbent union's subsequent loss of the
election did not affect the employer's obligation to
continue to bargain collectively with it. The Board
noted in Decorel the employer could point to no
probative evidence that the certified incumbent
union had lost its majority status prior to the
request for bargaining.
In Perry Rubber the Board held that the filing of a
decertification petition by another union did not
constitute a rival claim of majority status and hence
did not justify the employer's questioning of the
continued majority status of the incumbent cer-
tified collective-bargaining representative. How-
ever, the Board found that such a claim was raised
by the subsequent filing by the other union of a
petition for certification, but that such a claim
could not be relied on by the employer as an excuse
for ceasing to continue bargaining with the certified
incumbent union because the employer, after the
filing of the decertification petition and before the
filing of the second petition, engaged in unfair labor
practices aimed at destroying the majority status of
the certified incumbent union.
The very considerations which impelled the
Board in the Decorel case to regard the outcome of
the decertification election as a nullity and to hold
the employer bound to continue to bargain collec-
tively with the previously certified incumbent
union-the fact that the employer with notice of
the decertification petition engaged in unfair labor
practices designed to oust the incumbent union and
thereby prevented the employees from exercising
their free choice of representatives in the elec-
tion-call for the opposite conclusion in a case like
the present where the employers, with notice of the
decertification petition, engaged in serious unfair
labor practices aimed at maintaining the certified
incumbent union in office.
As found above, the Respondents engaged in
serious unfair labor practices for a period of at least
6 months after the filing of the decertification peti-
tion. These unfair labor practices, as stated above,
had as their goal the continuation of Local 670's
representative status and the defeat of the decertifi-
cation movement. To hold that, notwithstanding
these unfair labor practices , the Respondents were
nevertheless obliged to continue to recognize and
bargain with Local 670 would frustrate one of the
basic objectives of the Act of assuring employees of
their free choice of bargaining representatives." To
preserve the employees' freedom of choice of
I would have no hesitancy in striking the balance in favor of the right of the
employees to have a free choice of representatives, on the one hand, as
against the benefits occurring from the continuance of a stable bargaining
relationship, on the other hand
MIDTOWN SERVICE CO., INC. 1317
representatives and to prevent the Respondents
from profiting from their own unfair labor prac-
tices, in the circumstances of this case the Respon-
dents must be held to have been obligated to
refrain from continuing to recognize and bargain
collectively with Local 670 after the filing of the
decertification petition.
From this it follows that the Respondents' bar-
gaining with Local 670 and its grant of benefits pur-
suant to the agreements reached in the bargaining,
all of which is discussed above, constituted further
violations of Section 8(a)(2) and (1) of the Act.
Cf. Midwest Piping & Supply Co., 63 NLRB 1060;
Shea Chemical Corporation, 121 NLRB 1027.
C. The Respondents' Discharge of Josephine
Massaro
1. The evidence
Massaro was hired as a cleaning woman by
Respondent 500 Fifth Avenue on March 3, 1942,
and, with the exception of a 15 -month period in
1943 and 1944, has worked steadily for 500 Fifth
Avenue ever since. In August 1962, Massaro was
made a floorlady at 500 Fifth Avenue and con-
tinued in this capacity until April 19, 1966, at
which time, as found above, Massaro was demoted
to the job of cleaning woman. On October 13,
1966, Massaro was discharged by the Respondent
500 Fifth Avenue.
Massaro was one of the initial participants in the
movement to decertify Local 670 and actively
sought signatures on decertification cards after her
demotion in April . Massaro and Mitchell were the
employees who filed the decertification petition in
May. The Respondents' supervisory officials, from
President Salmon on down , were strongly opposed
to the decertification movement and sought to
counteract it in various ways, including by making
numerous outright threats of discharge to the sup-
porters of the decertification movement.
Before discussing the circumstances leading up to
Massaro's discharge I should mention preliminarily
that in July 1966 the Respondents posted in the
freight elevator at II West 42d Sreet , which the
cleaning women in that building used to take them
to their floors , and on the brick wall in the base-
ment of 500 Fifth Avenue adjacent to the freight
elevator used by the women in that building, a
notice to the effect that employees found off their
floors would be discharged . The notices remained
posted only one evening.
According to Superintendent Smith and Floor-
lady Lewinski , the Respondents have always had a
rule forbidding employees from leaving their as-
signed floors and employees were generally in-
formed of the rule at the time they were hired.
There is a substantial conflict in the testimony con-
cerning this point . Massaro testified that she was
not aware of any such rule . Three other cleaning
women testified that they had not been told by su-
pervisory officials of the Respondents not to leave
their floors during normal working hours. However,
one of the three testified that she never left the
floor and Anna Mitchell's testimony is to the same
effect.Weighing the conflicting testimony, I con-
clude that the Respondents did have a rule restrict-
ing employees to their floors which was loosely en-
forced up until the decertification movement got
under way. Then the Respondents posted the notice
announcing the penalty of discharge for employees
found off their floors.
Admittedly, it was Massaro's decertification ac-
tivities which prompted the posting of the notice.
As superintendent Smith testified:
I had received numerous complaints from
the cleaning women at 500 Fifth Avenue
around the months of June and July to the ef-
fect that Josephine Massaro was bothering
them on their respective floors, and she was
threatening them with vile language and she
also stated to the effect, she told them that if
they continued to join Local 670 or pay dues
to 670, they would be in trouble. And these
women were very much put out about it.
The Respondents did not call as witnesses any of
the employees who allegedly complained about
Massaro's alleged threats and use of vile language.
While I accept Smith's testimony that employees
complained to him that Massaro was bothering
them, I do not credit his testimony that Massaro
used vile language or made threats to employees. I
find it inconceivable, as outspoken as the Respon-
dents were against the supporters of the decertifica-
tion movement, that the Respondents would not
have cautioned Massaro against engaging in such
conduct, had they valid grounds for complaint
against her . But they did not. Lewinski admitted
that she had not spoken to Massaro about the com-
plaints against her.
Although I have found that the Respondents
posted for one evening the notice announcing that
employees found off their floors would be
discharged, in view of the testimony of Massaro and
various other employees that they had not seen any
such notice posted at 500 Fifth Avenue, and in
view of the very brief period for which the notice
remained posted, I conclude that Massaro was
never aware of the drastic penalty which the
Respondents now proposed to invoke in violation
of its rule.
The Respondents contend that Massaro was
discharged on October 13, 1966, for leaving her as-
signed floors for three nights in a row, on October
10, 11, and 12, 1966, contrary to the Respondent's
rule. The testimony concerning the events of Oc-
tober 10-13 is somewhat conflicting and requires
thorough sifting.
According to Massaro , on October 10, 1966,
after completing her work on the 12th and 23d
floors about 9 p.m., she took the self-service eleva-
tor up to the 53d floor to talk to Saverio Avagliano.
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On her way down, Massaro stopped at the 47th
floor , where she saw Miguel Rodriguez talking to
the cleaning woman on the floor. Miguel Rodriguez
was the Local 670 steward for the night porters,
and had been the observer for Local 670 in the
election . Upon seeing Rodriguez , Massaro decided
to continue on down to her floor.
Massaro testified that she did not leave her floors
at all on the night of October 11. She did notice
that on that night Miguel Rodriguez stopped off at
the 23d floor where she was working at that time
and peered at her for a while and then left, without
performing any work on that floor.
On October 12, 1966, which was Columbus Day,
quite a few of the tenants did not come in to work
because of the holiday. According to Massaro, she
completed her work this evening at 8:30 p.m. and
at 9 p.m. went down to talk to her friend, Anna
Mitchell, the cleaning woman on the eighth floor.
While down on the eighth floor, Massaro heard the
door of the freight elevator open, heard footsteps
leaving and returning to the car , and heard the car
leave. It is Miguel Rodriguez' function to operate
the freight elevator at 500 Fifth Avenue. Floorlady
Lewinski also operates the freight elevator at times.
The testimony of Superintendent Smith and
Floorlady Lewinski concerning the Massaro in-
cidents on October 10-12 are substantially in ac-
cord. Smith testified that on the morning of Oc-
tober 1 1 he received a note from Lewinski stating
that Miguel Rodriguez had reported to her that
Massaro was heard or seen talking to a woman on
the 47th floor, away from her assigned area, on the
night of October 10. The next morning , October
12, Smith found another note from Lewinski re-
porting that she could not find Massaro on either
the 12th or 23d floors at 8:30 p.m. on October 11,
and that when Lewinski reached the 32d floor she
overheard Massaro talking to two other cleaning
women. According to Smith, he received still
another note from Lewinski on the morning of Oc-
tober 13 reporting that she could not find Massaro
on either of her floors on the night before, October
12. Lewinski testified that while checking the 23d
floor ladies' room at 9:10 p.m. on October 12 she
noticed that the place was dark and no one was on
the floor. She found the same situation on the 12th
floor and reported her findings to Smith in a note.
Smith testified that he did not know where the
note covering the October 10 incident was. The
notes purportedly covering the October 1 1 and 12
incidents were offered in evidence through Smith.
However, these notes do not jibe with the testimony
of either Smith or Lewinski covering Lewinski's
findings concerning Massaro's absences from her
floors or Lewinski's reports to Smith about these
absences. Exhibit R-23 which purports to cover
Massaro's absence from her floors after 9 p.m. on
October 12 conforms fairly closely to the testimony
of Smith and Lewinski about the incident of Mas-
saro's alleged absence from her floor on the night
before, October 11. In view of the inconsistency
between the testimony of Smith and Lewinski and
the contents of the notes themselves, the Respon-
dents' inability to produce the note covering the
October 10 incident, and the Respondents' failure
to examine Lewinski about the circumstances of
preparing the notes, I have serious doubts whether
Exhibit R-22, the note assertedly covering Mas-
saro's October 11 absence from her floor, can be
taken at face value. This matter is discussed further
below.
At no time during this period did Smith or
Lewinski speak to Massaro about her absences
from her floor. Smith testified that it had been his
practice if he received a report from Lewinski that
a cleaning woman was off her floor, and he had an
opportunity to do so, to remind her of the rule, and
inform her that she was to stay on her floor. Anna
Mitchell's undenied testimony that on the very
evening of Massaro's discharge Smith warned her
about being off her floor the night before and told
her that Massaro had been fired and that "if it
would happen again [she'd] be fired too."
Smith testified that after receiving the third re-
port on the morning of October 13, he went to Pre-
sident Salmon 's office and showed him the reports
concerning Massaro's alleged absences from her
floor. Smith then consulted Mr. Dreyfuss, an attor-
ney, who was his immediate superior. The three
men agreed that Massaro was to be discharged.
This decision was reached without discussing the
matter with Lewinski, who had assertedly prepared
all three reports. Although Lewinski testified that
she found both the 12th and 23d floors dark on the
night of October 12, which indicates that two other
cleaning women were also off their floors that
night,' as far as the record shows, only Massaro was
terminated.
Regarding the occasion of her discharge, Mas-
saro testified that when she reported for work on
the evening of October 13, 1966, she was
questioned by Superintendent Smith in the
presence of Floorlady Lewinski as to where she had
been on Monday, October 10. Massaro replied that
she had been on the 47th floor. Smith asked who
was there. Massaro answered Miguel Rodriguez and
the cleaning woman on the floor. Smith then
inquired where Massaro had been on the evening of
October 12. She said she had been on the 8th floor.
Smith thereupon informed Massaro that she had
been guilty of misconduct and that she was being
discharged. After complaining that they had been
spying on her, Massaro picked up her belongings
and left.
Smith's and Lewinski's version of the discharge
conversation differs from Massaro's mainly in that
they both testified that three instances of Massaro's
"The cleaning women work two to a floor at 500 Fifth Avenue Maria lu-
liano worked on the 12th floor and Katherine Wankoviat on the 23d
MIDTOWN SERVICE CO., INC.
being off her floor-on October 10, 11, and 12-
were brought to her attention , rather than the two
instances-October 10 and 12-mentioned by Mas-
saro. According to Smith, Massaro refused to
answer when he asked her where she was on the
nights of October 11 and 12, asserting that she
thought she was allowed to go to any floor she
wanted . When Smith asked Massaro again for an
explanation , she persisted in her refusal to answer,
and thereupon Smith informed Massaro that, hav-
ing been away from her floor three nights in a row,
he had no alternative but to discharge her. There-
upon Massaro declared that she was "going to the
Labor Board ," according to Smith.
Anna Mitchell credibly testified that less than a
week after Massaro's discharge Frances Murray,
who worked at 11 West 42d Street, came to her
floor at 500 Fifth Avenue with Local 670 literature,
said that she had permission to visit 500 Fifth
Avenue, and mentioned benefits which President
Salmon had promised . Murray was a Local 670
steward for the 11 West 42nd Street cleaning
women. Helen Gregor testified that Frances Murray
came to her as she was working on the 13th floor of
500 Fifth Avenue about a month after the election
and told her to sign papers for Local 670 . There is
no evidence, however, that Floorlady Lewinski was
aware of Murray 's presence at 500 Fifth Avenue.
2. Credibility resolutions ; conclusions concerning
Massaro's discharge
With respect to Massaro's absences from her
floor during the period October 10-12, 1 find, in ac-
cordance with Massaro's testimony, that she was
absent from her floors only on October 10 and 12.
Massaro freely admitted being away from her floors
on numerous other occasions after completing her
work and I see no reason why she should attempt to
deny her absence on this occasion. And both Smith
and Lewinski impressed me as being willing to
tailor their testimony to support the Respondents'
case.
As to the remainder of the discharge conversa-
tion, the differences between the versions of the
various witnesses are minor, and I accept Smith's
version. After observing Massaro on the witness
stand, I think it quite likely that she told him that
she thought she was allowed to go wherever she
wanted in the building and that, upon being
discharged, Massaro further told Smith that she
would go to the Labor Board.
While I accept the fact that Smith told Massaro
on the occasion of her discharge that she was being
discharged for violating the Respondents' rule
against leaving her assigned floors, I do not believe
"' The record in this case as a whole makes it abundantly clear that Mas-
saro's activities in this regard did not have the sanction of management In-
deed , any support given by Massaro while a floorlady to the efforts to un-
seat Local 670 was directly contrary to the Respondents ' wishes By no
stretch of the imagination can the petition for a decertification election
1319
that this was the true reason for her discharge. For
reasons more fully detailed below, I find that the
Respondents seized upon Massaro's absences from
her floor as a pretext for getting rid of one of the
most active supporters of the decertification move-
ment.
This movement was very much alive at this time.
While the proponents of decertification had won
the election of September 14, 1966, the Regional
Director had set the election aside and had directed
that a new election be held. This action was taken
by the Regional Director on October 10, 1966, just
a few days before Massaro's discharge. Robert Cur-
renti had quit the Respondents' employ by this time
and had opened an office on 42d Street for the pur-
pose of working full time in support of the decertifi-
cation movement. A meeting sponsored by the
rank-and-file committee had been held on October
8, at the Commodore Hotel.
The Respondents' intense desire to have Local
670 continue as the bargaining agent of their em-
ployees and to defeat the decertification movement
is amply demonstrated by the Respondents' many
threats to the supporters of the decertification
movement and numerous acts of assistance and
support to Local 670.
Massaro had worked for the Respondents for
over 23 years. I find no suggestion in the record
that in the actual performance of her duties Mas-
saro's work was in any way unsatisfactory.
Massaro first incurred the Respondents' displea-
sure when, while still a floorlady, she participated
with rank-and-file employees in the initial probings
looking towards the unseating of Local 670.10 This
led to Massaro's demotion. After her demotion
Massaro became one of the cosigners of the decer-
tification petition and worked actively to obtain
signatures on decertification cards . Her activities in
this regard were well known to the Respondents.
Massaro was discharged without any warning
although the Respondents had an opportunity to
caution her that they were in earnest about enforc-
ing the rule against employees leaving their floors.
Ordinarily one would expect a word of warning to
an employee of over 23 years' service before sum-
marily discharging her. In view of Smith's testimony
that usually, when he had an opportunity to do so,
he would remind employees found off their floors
of the Respondents' rule, it is all the more surpris-
ing that Massaro was given no warning to stay on
her floors.
In view of the timing of Massaro's discharge, the
evening after she had been visiting with Anna
Mitchell, her cosigner on the decertification peti-
tion ," and just after the Respondents had received
information that a rerun election would be held, the
filed by Massaro and Mitchell be deemed to have been inspired by the
Respondents
" Massaro testified that she went to the eighth Floor on October 12 to
talk to Mitchell about the decertification petition
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents' failure to give any warning to this
long service employee that any further absence
from her floor would result in her discharge, and
the Respondents' continuing efforts to support
Local 670 and to oppose the decertification move-
ment, I conclude that the Respondents seized upon
Massaro's absences from her floor on October 10
and 12 as a pretext for getting rid of the most active
supporter of the decertification movement among
the cleaning women. Accordingly, her discharge
violated Section 8(a)(3) and (1) of the Act.
D. The Respondents' Alleged Retaliatory
Promulgation of a Rule Requiring a Doctor's
Certificate After Absences
The consolidated complaint alleges that the
Respondents, in violation of Section 8(a)(I) and
(2) of the Act, on December 22, 1966, promul-
gated and applied to Richard Meyers a rule requir-
ing him to bring in a doctor's certificate after being
absent from work for I day. Meyers was one of the
original supporters of the decertification movement
and continued to work in its behalf until he was
discharged on December 29, 1966. Meyers'
discharge is not involved in this case.
As found above, Meyers was repeatedly
threatened by the Respondents with discharge
because of his prodecertification activities and was
harassed in various other ways for the same reason.
Meyers was absent for 1 day on November 3,
1966. Although Meyers testified that the Respon-
dents had no rule requiring a doctor's certificate for
an absence of only 1 day (the rule, according to
Meyers, required a doctor's certificate for absences
of more than 1 day), Meyers brought in a doctor's
certificate for his absence on this occasion. Meyers
explained this by saying that he felt that the
Respondents were looking for an excuse to fire
him. According to Meyers, Supervisor Decker told
him on this occasion that a note was not necessary.
Decker denies this. In view of the documentary
evidence discussed below, I credit Decker.
On December 22, 1966, Meyers was ill and
called in and told Decker that he would not be in to
work. When Meyers reported for work the next
day, the subject of a doctor's certificate for his
absence came up in a conversation between Meyers
and Decker. While there is a conflict in the
testimony concerning the substance of this conver-
sation, it is clear that the result of the conversation
was that Meyers agreed to Decker's request that he
bring in a doctor's certificate covering his previous
day's absence. In view of my ultimate conclusion
concerning the prior existence of a rule requiring
doctor's certificates for 1-day absences, if the em-
ployee had seen a doctor, it is unnecessary for me
to resolve the conflicts in the testimony regarding
the December 23 conversation between Meyers
and Decker.
It is the General Counsel's position, as alleged in
the consolidated complaint, that Decker's request
to Meyers that he bring in a doctor 's note for his
absence on December 23 constituted the imposi-
tion of a new and more sweeping requirement with
respect to furnishing doctors ' certificates for
absences than had been previously in effect among
the Respondents ' employees , and that the promul-
gation of such a new rule was in retaliation against
Meyers because of his decertification activities and
violated Section 8 ( a)(1) and ( 2) of the Act.
The Respondents contend that for many years
the Respondents have had a rule requiring the
production of a doctor 's certificate for an absence
of only I day , if the employee actually had seen a
doctor , although the Respondents did not require
such a certificate if the employee had not gone to a
doctor . Superintendent Smith, Supervisor Decker,
Comptroller Benjamin Peetrillo , and Attorney
Henry P. Burr , who acts as personnel director for
all of the Respondents , all testified that such a rule
had been in effect as long as they had been em-
ployed by the Respondents.
The Respondents also offered in support of their
contention approximately 70 doctor 's certificates
taken from employees ' personnel files covering the
period from April 1953 to the date of the hearing.
A number of these certificates dated prior to
December 22, 1966, appear to cover absences of 1
day only . In view of this fact and in view of the
uniform testimony of the Respondents ' officials
concerning the longstanding existence of the rule, I
am impelled to conclude that Meyers was mistaken
in his understanding of the rule and that the
Respondents ' contention regarding this allegation
of the complaint must be sustained . The allegations
of the consolidated complaint regarding the imposi-
tion of a new rule regarding the furnishing of a doc-
tor's certificate for absences are hereby dismissed.
E. The Respondents ' Temporary Layoff of Six
Painters and One Carpenter in January 1967
On January 5, 1967, Paint Foreman George
Bertles assembled 6 of the Respondents' 19 pain-
ters and told them that they were being laid off for
lack of work . Bertles said nothing about their being
recalled to work. The laid-off painters were the six
junior painters in the Respondents' employ. About
2 months later all six men were sent telegrams ask-
ing them to return to work.
All six painters had been members of Local 670
but had stopped paying dues when the contract ex-
pired on July 31 , 1966. There is no evidence that
the Respondents were aware of this fact. Nor is
there any evidence that any of the painters were at
all active in the decertification movement.
On January 6, 1967, the Respondents laid off
their junior carpenter , Giovanni Conti. Nothing was
said to him at the time about being recalled to
work . However , Conti was recalled and returned to
work on March 20.
Conti attended two meetings with Currenti, who
ran the office for the rank -and-file committee. One
MIDTOWN SERVICE CO., INC.
of these , Conti was sure , was after the election on
September 14. There is no evidence that the
Respondents had any knowledge of Conti's at-
tendance at meetings with Currenti or that he was
in any other way interested in the decertification
movement.
The Respondents contend that for years they
have used the services of outside painting contrac-
tors along with their own staff of painters for
decorating work in the various buildings operated
by them , and that in December 1966 it was decided
to rely on the services of Aglow Painting Corp., to a
little greater extent than in the past , which resulted
in less need for the services of the painters on their
own staff. Records offered in evidence by the
Respondents bear out the Respondents ' contention
in this regard.
The Respondents ' contention regarding Conti's
layoff is similar . Respondents ' officials testified that
the Respondents have used subcontractors to per-
form construction work in their buildings for about
35 years and that recently they had used the ser-
vices of Ruart Construction Company and found
them very satisfactory, not only as to the quality of
the work done, but also as to the price of the work.
This experience led to the decision of the Respon-
dents in December to expand the use of Ruart's ser-
vices and to discontinue the services of one car-
penter.
I am convinced from the record as a whole that it
was not lack of work in the usual sense which led to
the layoff of the seven men, but rather the Respon-
dents' decision to expand the use of subcontractors'
services . However, the question remains whether
this decision was motivated by ordinary business
considerations or whether it was part of the
Respondents ' campaign to shore up Local 670's
status as bargaining representative of their em-
ployees, as contended by the General Counsel.
In my opinion, the preponderance of the
testimony does not support the General Counsel's
contention . The layoff of the seven men was very
poorly adapted to achieving the objective which the
General Counsel attributes to it, namely the con-
tinuation of Local 670 as the employees ' bargaining
representative . For all the Respondents knew, the
seven men might have been Local 670 supporters.
There is nothing in the way the layoffs were an-
nounced or put into effect which suggested that the
Respondents ' action was taken in retaliation against
the men or in any way posed an object lesson for
the employees as a whole . The recall of the seven
men as the Respondents ' busier season approached
tends to rebut the inference that the Respondents
were trying to get rid of the men because they
stood in the way of its plans to retain Local 670 as
the bargaining representative of the employees.
Under all the circumstances , I conclude that the
layoff of the seven men did not violate Section
8(a)(3) and (1) of the Act. The allegations of the
consolidated complaint based on the layoff of the
seven men are hereby dismissed.
CONCLUSIONS OF LAW
1321
1. By threatening employees with loss of jobs or
other reprisals for failing to support Local 670 and
for distributing literature and engaging in other ac-
tivity in opposition to Local 670, and by curtailing
employee privileges and imposing and enforcing
more strict rules of employee conduct in retaliation
against employees for failing to adhere to Local
670, the Respondents have interfered with,
restrained, and coerced employees in the exercise
of the rights guaranteed in the Act, in violation of
Section 8 (a)(1) of the Act.
2. By the foregoing conduct and by soliciting
support for, and by aiding in the solicitation of
memberships in, Local 670, by collecting dues for
Local 670, and by negotiating with Local 670 a
successor contract to the one expiring on July 3 1,
1966, and by granting benefits pursuant to the
terms of the contract, the Respondents have con-
tributed support to a labor organization in violation
of Section 8(a)(2) and (1) of the Act.
3. By discharging Josephine Massaro because of
her activities in opposing Local 670, the Respon-
dents have encouraged membership in Local 670
by discrimination in regard to her tenure of em-
ployment, in violation of Section 8(a)(3) and (1) of
the Act.
4. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
Having found that the Respondents have engaged
in certain unfair labor practices, my Recommended
Order will provide that they cease and desist
therefrom and that they take certain affirmative ac-
tion designed to effectuate the policies of the Act.
I have found that the Respondents have violated
Section 8(a)(2) and (I) of the Act by various acts
and conduct including: by continuing to recognize
Local 670 as the exclusive bargaining representa-
tive of their employees, by entering into a renewal
contract for the one expiring on July 31, 1966, and
by granting certain benefits pursuant to the terms
of the renewal contract. In accordance with the
Board's established policy in such cases, my
Recommended Order will direct that the Respon-
dents withdraw and withhold all recognition from
Local 670 as the collective-bargaining representa-
tive of their employees and cease giving effect to
the aforesaid renewal contract with Local 670 or to
any modifications, extensions, supplements, or
renewals thereof, unless and until Local 670 shall
have demonstrated its exclusive majority represen-
tative status pursuant to a Board -conducted elec-
tion among Respondents ' employees in a unit or
units appropriate for the purpose of collective bar-
gaining . Nothing in my Recommended Order, how-
ever, shall be construed to require the Respondents
to vary or abandon any wage, hour, seniority, or
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other substantive feature of the relationship
between Respondents and their employees which
may have been established pursuant to the
aforesaid contract , or to prejudice the assertion by
the employees of any rights they may have under
such contract.
In view of the Respondents ' discharge of Jose-
phine Massaro my Recommended Order will pro-
vide for her reinstatement , with backpay from the
date of her discharge to the date of the Respon-
dents' offer of reinstatement . In computing
backpay, Massaro's net interim earnings shall be
taken into consideration , and the formulas set forth
in F. W. Woolworth Company, 90 NLRB 289,
291-293, and Isis Plumbing Y Heating Co., 138
NLRB 716, shall be followed.
While the General Counsel requests that Walter
J. Salmon , Jr., be named in the Order as a separate
party Respondent , in view of the fact that the
Board 's order is directed not only to the named
corporate Respondents , but also to their officers
and agents , which clearly covers Walter J . Salmon,
who is an officer or an agent of all of the Respon-
dent corporations, and the further fact that no spe-
cial circumstances have been brought to my atten-
tion which in my opinion warrant the naming of
Walter J. Salmon, Jr., as a separate party Respon-
dent , the General Counsel 's request in this regard is
denied.
Upon the foregoing findings and conclusions and
the entire record, and pursuant to Section 10(c) of
the Act, the Trial Examiner hereby issues the fol-
lowing:
RECOMMENDED ORDER
The Respondents Midtown Service Co., Inc., 500
Fifth Avenue, Inc., 11 West 42nd Street, Inc.,
Broadtown Construction Co., Inc., Seycorn Leasing
Co., Inc., Atlantic Leasing Co., Inc., Northern Fee
Co., Inc., Salmon Management Co., Inc ., and West
42nd Street Realty Corporation , their officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Contributing support to Local 670, Retail,
Wholesale and Department Store Union,
AFL-CIO, or any other labor organization of their
employees.
(b) Recognizing or contracting with Local 670,
Retail , Wholesale and Department Store Union,
AFL-CIO, as the representative of any of their em-
ployees for the purpose of dealing with said or-
ganization concerning grievances , labor disputes,
wages, rates of pay, hours of employment , or other
conditions of employment , unless and until said
labor organization shall have demonstrated its ex-
clusive majority status pursuant to a Board-con-
ducted election among Respondents ' employees.
(c) Giving effect to, performing , or in any way
enforcing in favor of Local 670, Retail, Wholesale
" In the event that this Recommended Order is adopted by the Board.
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board 's Order is enforced by a decree of a United States
and Department Store Union , AFL-CIO, the
renewal contract succeeding the prior contract
which expired on July 31, 1966, or any modifica-
tions, extensions , supplements , or renewals thereof,
or any other contract, agreement , or understanding
entered into with Local 670, Retail, Wholesale and
Department Store Union , AFL-CIO, relating to
grievances , labor disputes , wages , hours of employ-
ment , rates of pay or other conditions of employ-
ment , unless and until Local 670, Retail , Wholesale
and Department Store Union , AFL-CIO, shall have
demonstrated its exclusive majority status pursuant
to a Board -conducted election among Respondents'
employees.
(d) Threatening employees with loss of jobs or
other reprisals because of their activities in oppos-
ing or supporting any labor organization, curtailing
employees ' privileges or imposing and enforcing
more strict rules of employee conduct because of
their activities in opposing or supporting any labor
organization , and in any like or related manner in-
terfering with , restraining , or coercing their em-
ployees in the exercise of the rights guaranteed in
the Act.
(e) Discharging or otherwise discriminating
against employees in regard to hire or tenure of em-
ployment, or any term or condition of employment,
in order to encourage or discourage membership in
any labor organization.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from
Local 670, Retail , Wholesale and Department Store
Union , AFL-CIO , as the collective-bargaining
representative of any of their employees unless and
until such organization shall have demonstrated its
exclusive majority representative status pursuant to
a Board-conducted election.
(b) Offer to Josephine Massaro immediate and
full reinstatement to her former position or to a
substantially equivalent position , without prejudice
to her seniority or other rights previously enjoyed,
and make her whole for any loss of pay she may
have suffered by reason of the discrimination
against her, in the manner described in "The
Remedy " section of the Trial Examiner's Decision.
(c) 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 other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at the buildings owned and operated by
them in New York, New York, copies of the at-
tached notice marked "Appendix" t2 including
translations in the Italian, Spanish , and Polish lan-
guages thereof. Copies of said notice, on forms pro-
vided by the Regional Director for Region 2, after
Court of Appeals , the words " a Decree of the United States Court of Ap-
peals Enforcing an Order " shall be substituted for the words " a Decision
and Order "
MIDTOWN SERVICE CO., INC. 1323
being duly signed by Respondents ' representative,
shall be posted by the Respondents immediately
upon receipt thereof, and be maintained by them
for 60 consecutive days thereafter , in conspicuous
places, including all places where notices to em-
ployees are customarily posted . Reasonable steps
shall be taken by the Respondents to insure that
said notices are not altered , defaced , or covered by
any other material.
(e) Notify the Regional Director for Region 2, in
writing , within 20 days from the receipt of this
Decision , what steps have been taken to comply
herewith.13
" In the event that this Recommended Order is 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 Respondent
hits taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended , we hereby
notify our employees that:
WE WILL withdraw recognition from and WE
WILL recognize Local 670, Retail , Wholesale
and Department Store Union , AFL-CIO, as
the collective -bargaining representative of any
of our employees for the purpose of dealing
with such organization concerning grievances,
labor disputes , wages, rates of pay, hours of
employment, or other conditions of employ-
ment , unless and until said organization shall
have demonstrated its status as exclusive
majority representative pursuant to a Board-
conducted election among our employees.
WE WILL NOT give effect to, or perform or en-
force in favor of, Local 670, Retail, Wholesale
and Department Store Union, AFL-CIO, our
contract entered into renewing our predeces-
sor contract with said organization which ex-
pired on July 31, 1966, or any modifications,
extensions , supplements , or renewals thereof,
unless and until Local 670, Retail, Wholesale
and Department Store Union, AFL-CIO, or
any successor thereto, shall have demonstrated
its status as exclusive majority representative
pursuant to an election conducted by the Na-
tional Labor Relations Board among our em-
ployees.
WE WILL NOT assist or contribute support to
Local 670, Retail, Wholesale and Department
Store Union, AFL-CIO, or any other union.
WE WILL NOT encourage membership in
Local 670, Retail, Wholesale and Department
Store Union, AFL-CIO, or encourage or
discourage membership in any other labor
union by discharging or otherwise discriminat-
ing against employees because of their activi-
ties in opposing or supporting any labor union.
WE WILL NOT threaten employees with loss
of jobs or other harm because of their activities
in opposing or supporting any labor union.
WE WILL NOT take away employee privileges
or benefits or impose or enforce stricter rules
of employee conduct because of their activities
in opposing or supporting any labor union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our em-
ployees in the exercise of the right either not to
join or to join any labor union, except as this
right may be limited by any agreement in con-
formity with Section 8(a)(3) of the Act.
WE WILL offer to Josephine Massaro her
former job, or a substantially equivalent one,
with all of her rights, and will pay her backpay.
MIDTOWN SERVICE CO.,
INC., 500 FIFTH AVENUE,
INC. 1 1 WEST 42ND
STREET, INC. BROADTOWN
CONSTRUCTION CO., INC.
SEYCORN LEASING CO.,
INC. ATLANTIC LEASING
CO., INC. NORTHERN FEE
CO., INC. SALMON
MANAGEMENT CO., INC.
WEST 42ND STREET
REALTY CORPORATION
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced , or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board 's Regional
Office, Fifth Floor Squibb Building , 745 Fifth
Avenue, New York, New York 10022 , Telephone
751-5500.