Servisco

National Labor Relations Board - Board Decisions

Jul 6, 1971

191 N.L.R.B. 902 (N.L.R.B. 1971)

902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Columbus Janitor Service , Division of Servisco and
Service , Employees Union, Local 587, Service Em-
ployees International Union, AFL-CIO and Broth-
erhood of Painters, Decorators and Paperhangers of
America, AFL-CIO, Party to Contract . Case 5-
CA-4647
July 6, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND BROWN
On September 17, 1970, Trial Examiner Lowell Go-
erlich issued his Decision in the above-entitled proceed-
ing, finding that the Respondent, at its Friendship oper-
ation, had engaged in and was engaging in certain
unfair labor practices within the meaning of Section
8(a)(1),(2),(3), and (5) of the National Labor Relations
Act, as amended, and recommending that it cease and
desist from some of the unfair labor practices and
affirmatively offer to reinstate and make whole 34 em-
ployees it discriminatorily refused to hire, and further
recommending that an election be conducted 60 days
after the posting of compliance notices to determine
whether the employees desire to be represented by Lo-
cal 587, Painters, or neither, all as set forth in the
attached Trial Examiner's Decision. Thereafter, the
Respondent, the General Counsel, and the Charging
Party filed exceptions to the Trial Examiner's Decision
and brief. Exceptions to the Trial Examiner's Decision
were also filed by the Party to the Contract.
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 this case to a three-member panel.
The Board has reviewed the rullings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the
entire record in the case,' and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner to the extent that they are consistent
herewith.
We agree with the Trial Examiner's conclusions that
the Respondent violated Section 8(a)(1),(2),(3), and (5)
of the Act. But we do not agree with his proposed
remedy, or with much of his reasoning.
The record shows and the Trial Examiner found the
following significant facts: In December 1969 the City
of Baltimore had a contract with Allied for the
janitorial work at the Friendship International Airport.
' The Respondent's request for oral argument is hereby denied, since we
find that the record adequately presents the Respondent's position.
191 NLRB No. 125
The contract `was near. expiration and the city accord-
ingly requested bids for essentially the same work al-
though with minor changes, and the Respondent, a
nationwide enterprise, submitted a bid.
Local 587, which had an existing collective-bargain-
ing agreement with Allied running to October 27, 1971,
covering the employees doing the work, sent the Re-
spondent (and other prospective bidders) a letter en-
closing a copy of this agreement. The letter further
stated that Local.587 expected the successful bidder to
hire. the employees, currently doing the work and to-
adopt the agreement; and it added that failure of'the .
successful bidder to do so could result in -serious legal
and labor problems.
Respondent was low bidder and was awarded the
contract for a 1-year period commencing, February 1,
1970. Sometime prior to January 21, 1970, Morgan, the
Respondent's vice president, in reply to a question by
Moots, an International official of Local 587's parent;
acknowledged the application for employment made by
Local 587 on behalf of the Allied employees, and said
that he had no objection to hiring them "providing he
did not have a problem with the Painters." Painters was
party to a nationwide collective-bargaining agreement
with the Respondent covering its janitorial employees.
The agreement contained union-security and checkoff
provisions, and also a provision that the Respondent
would notify Painters of every new operation the Re-
spondent contracted to undertake. The Respondent ac-
cordingly notified Painters of the new Friendship oper-
ation.
On January 27, as a result of Painters objections to
the Respondent's suggested hiring of the Allied em-
ployees, the Respondent hired a large number of new
employees through the Maryland State Employment
Service. The interviews and hiring occurred entirely at
the Employment Service offices. Carkitto, the Re-
spondent's vice president for operations, informed
Painters that the hiring was to be done in that manner
and permitted Williams, a representative of Painters, to
solicit the new employees on the spot. When Williams
had signed up these employees, Carkitto agreed to
recognize Painters and cover them into the existing
nationwide union-security and checkoff agreement.
The Respondent accordingly had none of the former
Allied employees on its payroll when it began its
Friendship operation on February 1, 1970. The Re-
spondent likewise refused to recognize or bargain with
Local 587, and refused to adopt Local 587's existing
collective-bargaining agreement with Allied covering
the Friendship operation; and in addition it made cer-
tain unilateral changes in the terms and conditions of
employment at Friendship.
COLUMBUS JANITOR SERVICE
1. The refusal to employ
The Trial Examiner concluded that the Respond-
ent's defenses for refusing to consider and employ the
former Allied employees were "pretextual" and that
the refusal was discriminatory and in violation of Sec-
tion 8(a)(3) and (1) of the Act. The Respondent ex-
cepts, asserting at the outset that the evidence disproves
the Trial Examiner's finding that the 34 named em-
ployees were in fact Allied employees prior to the time
when Allied's operations terminated. The evidence
shows, however, that an Allied official's worksheet sup-
ports the Trial Examiner's finding, and we see no rea-
son to reverse this finding. The Respondent also'claims
that there is a paucity of evidence of discriminatory
motivation for the refusal to employ these employees.
Again the record fails to support the claim. Rather, the
evidence clearly warrants the conclusion that the Re-
spondent, after Morgan's initial agreement to accept
the employment application of the Allied employees,
finally rejected them because of Painters objections to
their employment, and also because of its own prefer-
ence to recognize and deal with Painters on a continu-
ing nationwide basis including this new single location.
It is of no help to the Respondent that it may also have
had still other reasons, of a nondiscriminatory nature,
for rejecting the Allied employees. We, accordingly,
agree with the Trial Examiner that the Respondent
violated Section 8(a)(3) and (1) of the Act by its refusal
to hire the 34 named Allied employees.'
2. The refusal to bargain with Local 587
The Trial Examiner concluded that it was the Re-
spondent's duty on,February 1, 1970, to honor and
enforce the contract between Allied and Local 587; to
refrain from making unilateral changes in working con-
ditions; and to continue the statutory recognition
theretofore accorded to Local 587. Accordingly the
Trial Examiner found that by refusing to do so the
Respondent violated Section 8(a)(5) and (1) of the Act.
The Respondent excepts, arguing initially that the
Friendship operation no longer constituted an appro-
priate unit after the Respondent succeeded Allied. The
Respondent contends that it had established a single,
integrated multilocation, nationwide unit in its Painters
contract; that the new Friendship operation was an
accretion to this unit; and that in any event there was
a substantial change in the nature of the operation and
a substantial interchange of employees with other loca-
tions. The Respondent insists that these factors had the
result of obliterating the identity of the Friendship em-
ployees as a separate unit. Painters argues, similarly,
' See Barrington Plaza and Tragniew, Inc., 185 NLRB No 132.
903
that the new Friendship operation became an accretion
to its nationwide unit with,the Respondent.
We agree with the Trial Examiner in rejecting these,
contentions. We note that neither the Respondent nor
Painters regarded their contract as automatically cov-
ering the Friendship employees; rather, the Respond-
ent first assisted Painters in signing up the new em-
ployees before granting it recognition and signing a
contract addendum covering those employees. Fur-
thermore, the past history of collective bargaining at
the Friendship operation as a separate unit supports the
finding that that site remained,a substantially distinct
appropriate unit, despite the change in management
and method of operation. In addition, the evidence
shows that the Respondent itself recognized many
less-than-nationwide units, one comprising the Mt.
Vernon area in Ohio, and others limited to a recently
purchased Chicago building maintenance firm, a Cin-
cinnati firm, and a Warren, Ohio, firm, respectively.
And in three representation cases involving other single
locations of the Respondent, the Board has found such
single-location units appropriate. We therefore agree
with the Trial Examiner's conclusion that the Friend-
ship site remained an appropriate unit, and was not an
automatic accretion to the Respondent's nationwide
Painters unit.'
The Respondent also argues that there is insufficient
proof of Local 587's majority when it was recognized
by Allied in the summer of 1969, or when it signed a
collective-bargaining agreement with Allied in the fall
of 1969. However, the Trial Examiner credited the
card-check certification of an impartial arbitrator,
Robertson, as proof of majority at these times, and we
find nothing in the record to warrant reversing this
finding.'
The Respondent also argued that the General Coun-
sel admitted on the record that Local 587 never repre-
sented a majority of Allied's employees. It appears,
however, that although the reporter's original, tran-
script contained such an ostensible admission the tran-
script was not accurate; and the Trial' Examiner subse-
quently granted the General Counsel's motion to
correct the transcript, so that it now reads:
All I am saying, Mr. Examiner, if in truth and
fact, the Service Union [Local 587] never repre-
sented a majority of Allied's employees, I think
that defense is not permissible. All I am saying Mr.
Examiner is that we have put into evidence also,
General Counsel's exhibit 9, which is the recogni-
tion that has been accorded by that Company [the
Respondent] to the charging party in this case
' See Super Yalu Stores, 177 NLRB No. 63
We do not adopt the finding made by the Trial Examiner in fn.2 that
this defense of lack of majority is barred by the time limitations in Sec 10(b),
particularly since it appears that the charge was filed and served within 6
months of the time in question.
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[Local 587]. And I don't think you can go behind
that even to attack this.
The Respondent opposed the General Counsel's mo-
tion on the ground that it believed that the original
transcript accurately set forth the General Counsel's
statement. We see no reason to disturb either the Trial
Examiner's holding to the contrary, however, or his
ruling correcting the transcript.
We therefore find, as did the Trial Examiner, that the
Friendship unit remained appropriate for collective
bargaining under Section 9(b) of the Act; Allied's em-
ployees must be deemed to have become employees of
the Respondent;' the Respondent thus was obligated to
honor and enforce the existing collective-bargaining
agreement between Allied and Local 587 and to refrain
from unilateral changes in working conditions; and the
Respondent's refusal to do so violated Section 8(a)(5)
and (1) of the Act.'
3. The assistance to painters
The Trial Examiner concluded that the Respondent
recognized Painters and entered into and enforced a
union-security and checkoff contract with Painters, in
violation of Section 8(a)(2),(3), and (1) of the Act.
The Respondent argues principally that its recogni-
tion of Painters was not unlawful, because Local 587's
recognition demands were not valid, having been made
before the City of Baltimore had awarded the janitorial
contract to the Respondent and before any employees
had been hired by the Respondent to perform the
janitorial contract. This argument is without merit, for
the evidence shows that Local 587's original demand
was clearly a continuing one, and that it would have
been futile to repeat the demand after the Respondent
refused to employe the Allied employees and recog-
nized and signed a contract with Painters covering the
work.
The General Counsel excepts to the narrow basis for
the Trial Examiner's finding, which relied solely on the
Midwest Piping doctrine, and urges that the Respond-
ent in fact actively assisted Painters to obtain a card
majority before extending recognition to it. Indeed, the
Trial Examiner recognized as a fact that Carkitto, the
Respondent's vice president for operations, granted
permission to a Painters representative to solicit the
new employees as they were being hired at the Employ-
ment Service office, and so advised the employees. Only
after Painters signed up the new employees did the
Respondent recognize Painters and enter into an ad-
dendum covering the new employees under the nation-
wide union-security contract. Further, as we have
6 Compare Builders Realty & Mortgage Co., Inc a/b/a Ramada Inn, 186
NLRB No. 87
6 Barrington Plaza, supra; Ranch-Way," Inc, 183 NLRB No. 116.
found, the Respondent was then under a duty to recog-
nize Local 587 and no other representative. We, ac-
cordingly, find merit in these exceptions and in the
General Counsel's theory.
For all the foregoing reasons, we agree with the Trial
Examiner's conclusion that the Respondent violated
Section 8(a)(2), (3), and (1) of the Act with respect to
Painters.
4. The alleged question concerning representation
The General Counsel and Local 587 except to the
Trial Examiner's finding that the Respondent on or
about February 1, 1970, was confronted with genuine
rival recognition claims raising a real question concern-
ing representation, which should now be resolved by a
Board election rather than a conventional 8(a)(5)
remedy. The Trial Examiner reasoned that while the
Friendship operation was an appropriate unit, a nation-
wide unit which included Friendship was also appro-
priate and the rival representation claims of Local 587
and Painters in these appropriate units raised a real
question concerning representation within the meaning
of Midwest Piping & Supply Co., Inc., 63 NLRB 1060.
We find merit in the challenge to this reasoning, par-
ticularly in view of the Trial Examiner's finding, which
we have adopted, that the Respondent was then unlaw-
fully refusing to recognize Local 587; and further be-
cause the Respondent was assisting Painters in'obtain-
ing a majority at the very time the Trial Examiner
would find that Painters was raising a valid claim for
representation.
Accordingly, we do not adopt the Trial Examiner's
findings and recommendations in this respect.
5. The appropriate remedy
The General Counsel argues that the Trial Ex-
aminer's remedy is not adequate in the face of the
unfair labor practices found, since it does not require
that the Respondent recognize Local 587 as the statu-
tory representative as required by the collective-bar-
gaining agreement and applicable law;7 nor does it re-
quire that the Respondent be directed to honor the
agreement and give it retroactive effect. Additionally,
the Trial Examiner's remedy does not require that the
Respondent withdraw and withhold recognition from
Painters, cease giving effect to its contract with that
organization, and reimburse the employees for the
moneys unlawfully exacted from them under its con-
tract with Painters, together with interest, as in Super
Yalu Stores, Inc., 177 NLRB No. 63. We find merit in
these arguments, and shall frame our Order accord-
ingly.
' See Ranch-way, supra; Burns International Detective Agency, 182
NLRB No. 50.
COLUMBUS JANITOR SERVICE 905
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the Respondent, Columbus
Janitor Service, Division of Servisco, Baltimore, Mary-
land, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Local 587 or any
other labor organization, by discriminatorily refusing
to hire applicants for employment or by unlawfully
discriminating in any other manner in regard to their
hire, tenure, terms, or other conditions of employment.
(b) Refusing to bargain collectively concerning rates
of pay, wages, hours, and other terms and conditions
of employment with Service Employees Union, Local
587, Service Employees International Union, AFL-
CIO, as the exclusive representative of its employees in
the appropriate unit at Friendship International Air-
port.
(c) Assisting Brotherhood of Painters, Decorators,
and Paperhangers of America, AFL-CIO, or any other
labor organization, or recognizing or contracting with
such labor organization as the representative of any of
its employees at Friendship International Airport for
the purposes of collective bargaining, unless and until
Painters, or such other labor organization, shall have
been certified by the National Labor Relations Board
as the exclusive representative of such employees.
(d) Giving effect to its contract with Painters, cover-
ing the Friendship employees, or to any extension,
renewal, modification, or supplement thereof, or to any
superseding contract, unless and until Painters has
been certified by the Board as the exclusive representa-
tive of such employees.
(e) In any like or related manner interfering with,
restraining, or coercing employees in their exercise of
the rights guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Offer T. P. Bates, J. H. Beatty, E. P. Brown, A.
Cobb, J. M. Cobb, C. Colf, W. Craig, G. V. McCray,
J. C. Dent, J. Donaldson, O. C. Edwards, O. C. Ed-
wards, Sr., J. Gibson, E. M. Hunt, T. G. Irvin, L. King,
R. N. Lee, R. W. Lewis, C. Lucas, N. Manuel, F.
Nabet, I. McGee, B. Parson, J. Queen, E. Ray, Jr., A.
B. Rodriguez, P. Rollins, Q. E. Saunders, L. Speight,
D. M. Spencer, G. S. Stewart, W. Washington, M. E.
West, and C. G. Wiggins immediate employment to the
same position at which they would have been employed
under the terms of the Local 587-Allied agreement or,
if such positions no longer exist, to substantially
equivalent positions, without prejudice to their senior-
ity dr other, rights and privileges, discharging or re-
transferring, if necessary, any employees assigned to
Friendship since February 1, 1970, and make them
whole for any loss of pay that they may have suffered
by reason of the Respondent's discrimination against
them, in accordance with the provisions of this Deci-
sion and the Trial Examiner's recommendations.
(b) Upon request, bargain collectively with Local
587 as the exclusive representative of its Friendship
employees in the bargaining unit found appropriate
herein.
(c) Withdraw and withhold all recognition from
Painters as the representative of its Friendship em-
ployees for the purpose of dealing with the Respondent
concerning grievances, labor disputes, wages, rates of
pay, hours of employment, or other terms or conditions
of employment, unless and until the National Labor
Relations Board shall certify Painters as such repre-
sentative, and abrogate its contract with Painters cov-
ering such employees.
(d) Reimburse all present and former Friendship em-
ployees for all moneys unlawfully exacted under its
contract with Painters, together with interest at the rate
of 6 percent per annum, computed in the manner set
forth in Seafarers International Union of North
America, Great Lakes District, AFL-CIO, 138 NLRB
1142.
(e) Notify immediately the above-named individuals,
if presently serving in the Armed Forces of the United
States, of the right to full reinstatement, upon applica-
tion after discharge from the Armed Forces, in accord-
ance with the Selective Service Act and the Universal
Military Training and Service Act.
(f) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the reinstatement rights
and amounts of backpay due under the terms of this
Order.
(g) Post at its Friendship Airport site, Baltimore,
Maryland, copies of the attached notice marked "Ap-
pendix.", Copies of said notice, on forms provided by
the Regional Director for Region 5, after being duly
signed by the Respondent's representative, shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other
material.
' In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board "
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(h) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Ser-
vice Employees Union, Local 587, Service Em-
ployees International Union, AFL-CIO, or any
other labor organization , by discriminatorily
refusing to hire applicants for employment or by
unlawfully discriminating in any other manner in
regard to hire , tenure, terms, or other conditions
of employment.
WE WILL NOT refuse to recognize or bargain
collectively with Service Employees Union, Local
587, Service Employees International Union,
AFL-CIO, as the exclusive representative of our
employees at Friendship International Airport.
WE WILL NOT assist Brotherhood of Painters,
Decorators , and Paperhangers of America, AFL-
CIO, or any other labor organization , nor will we
recognize or contract with that organization as the
representative of any employees at our Friendship
operation , unless and until such organization shall
have been certified by the National Labor Rela-
tions Board as the exclusive representative of such
employees; nor will we give effect to our contract
with Painters covering such employees.
WE WILL NOT in like or related manner inter-
fere with , restrain , or coerce our employees in
their exercise of the rights guaranteed to them in
Section 7 of the Act.
WE WILL offer Allied's former employees,
named below , immediate and full employment and
make them whole for any loss of pay from Febru-
ary 1, 1970. The employees are: T. P. Bates, J. H.
Beatty, E. P. Brown, A. Cobb, J. M. Cobb, C. Colf,
W. Craig, G. V. McCray, J. C. Dent, J. Donald-
son, O. C. Edwards, O. C. Edwards, Sr., J. Gibson,
E. M. Hunt, T. G. Irvin, L. King, R. N. Lee, R.
W. Lewis, C. Lucas, N. Manuel, F. Nabet, I.
McGee, B. Parson , J. Queen, E. Ray, Jr., A. B.
Rodriguez, P. Rollins, Q. E. Saunders, L. Speight,
D. M. Spencer, G. S. Stewart, W. Washington, M.
E. West, and C. G. Wiggins.
WE WILL bargain collectively, upon request,
with Local 587 as the exclusive representative of
all our employees in the unit found appropriate
herein.
WE WILL make whole all persons employed at
our Friendship operation for any loss of pay or
other benefits resulting from our unilateral
changes since February 1, 1970, with 6 percent
interest.
WE WILL withdraw and withhold recognition
from Painters , unless and until certified by the
Board , and will abrogate our contract with Paint-
ers covering our Friendship employees.
WE WILL reimburse all present and former
Friendship employees for moneys unlawfully ex-
acted under our contract with Painters, with 6
percent interest.
COLUMBUS JANITOR
SERVICE, DIVISION
OF SERVISCO
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named individu-
als, if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Services Act and the Uni-
versal Military Training and Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Federal Building, Room 1019, Charles Center,
Baltimore , Maryland 21210, Telephone 301-962-2822.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Trial Examiner: A charge was filed
by Service Employees Union, Local 587, Service Employees
Union, AFL-CIO, herein called Local 587, on February 2,
1970, and was served on the Columbus Janitor Service, Divi-
sion of Servisco , the Respondent herein , sometimes referred
to herein as Columbus, on February 3, 1970. A complaint and
notice of hearing was issued on April 7, 1970,,in which it was
alleged that the Respondent had violated Section 8(a)(1), (2),
(3), and (5) of the National Labor Relations Act, as amended,
herein referred to as the Act . In the complaint it was charged
that the Respondent violated Section 8(a)(5) of the Act in
that it had refused to bargain collectively with Local 587, the
collective-bargaining agent of the employees of Allied East-
ern States Maintenance Corporation, herein referred to as
Allied, to which the Respondent was a successor in interest;
that the Respondent violated Section 8(a)(3) of the Act in
that it failed and refused to hire and put to work employees
of Allied , the Respondent's predecessor , because of their
membership in'and activities on behalf of Local 587; and that
the Respondent violated Section 8(a)(2) of the Act by unlaw-
COLUMBUS JANITOR SERVICE 907
fully assisting and contributing support to the Brotherhood
of Painters, Decorators and Paperhangers of America, AFL-
CIO, herein referred to as the Painters.
The case came on for hearing on May 26, 27, and 28 and
June 23, 24, and 25, 1970, at Baltimore, Maryland. Each
party was afforded a full opportunity to be heard, to call,
examine, and cross-examine witnesses, to argue orally on the
record, to submit proposed findings of fact and conclusions,
and to file briefs. All briefs have been carefully considered by
the Trial Examiner.
Upon the whole record' and upon his observation of the
witnesses the Trial Examiner makes the following:
FINDINGS OF FACT, CONCLUSIONS,
AND REASONS THEREFOR
I THE BUSINESS OF THE RESPONDENT
The Respondent is in the janitorial and building mainte-
nance service business. In this business, the Respondent exe-
cutes contracts for janitorial and building maintenance ser-
vices at certain buildings with its customers. It then employs
a crew to furnish these services at its customers' buildings. At
all times material herein the Respondent has been a New
Jersey corporation maintaining a principal place of business
for its Columbus Janitor Service Division at New Castle,
Pennsylvania. It also maintains a place of business at Friend-
ship International Airport, Baltimore, Maryland, the facility
involved herein. During the preceding 12 months, a repre-
sentative period, Respondent performed services outside the
States of New Jersey and Pennsylvania from which it derived
revenue in excess of $50,000 and purchased at its New Castle,
Pennsylvania, locations from points and places outside the
State of Pennsylvania goods and services valued in excess of
$50,000. As is admitted, at all times material herein Respond-
ent is and has been an employer as defined in Section 2(2) of
the Act engaged in commerce and operations affecting com-
merce as defined in Section 2(6) and (7) of the Act, respec-
tively.
II THE LABOR ORGANIZATIONS INVOLVED
The Service Employees Union , Local 587, Service Em-
ployees International Union, AFL-CIO, and Brotherhood of
Painters and Paperhangers of America , AFL-CIO , are and
have been at all times material herein labor organizations
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Facts
Commencing on February 1, 1969, Allied was engaged in
janitorial and maintenance service work at the Friendship
International Airport (sometimes referred to herein as
Friendship) near Baltimore, Maryland, pursuant to a con-
tract with the City of Baltimore expiring on January 31, 1970.
The work concerned janitorial and custodial services such as
scrubbing floors, washing windows, tidying toilets and wash-
rooms, and the general cleanliness of the air terminal. Prior
to February 1, 1969, the same type of work had been per-
formed by employees of the city of Baltimore.
After a card check certified by arbitrator Francis J. Robert-
son, on August 21, 1969, Allied recognized Local 587 as the
bargaining agent of its employees on or about August 22,
' General Counsel 's motion to correct transcripts is granted as to specifi-
cations 1 , 4, 5, 6, 7, 8, 9, 10, and 12 and denied as to specifications 2, 3, 11,
and 13
1969.1 A contract (sometimes referred to herein as "the Allied
contract" or "the Local 587 contract") was executed on Oc-
tober 27, 1969, providing for, among other things, union
security, checkoff, arbitration, and seniority allowing prefer-
ence in promotions and increases or decreases in work force
for the employees with the greatest length of service. The
contract expires on October 27, 1971. The unit covered by the
contract included all general cleaners, maids, scrubbing and
waxing machine operators, and lead men and women at the
Friendship International Airport, Baltimore, Maryland, ex-
cluding supervisory personnel.
In the latter part of 1969, the service contract with the City
of Baltimore covering the work being performed by Allied
was opened for bid.' Such event came to the attention of Peter
J. Sheehan, International representative for the Service Em-
ployees Union assigned to the State of Maryland and the
representative of the Charging Party in this proceeding. Shee-
han obtained a list of the bidders (which included the Re-
spondent) and addressed identical letters to each bidder,
dated December 19, 1969, calling attention to the collective-
bargaining agreement between Allied and Local 587, a copy
of which was enclosed.' The Respondent was the low bidder
whereupon Sheehan dispatched a letter dated January 12,
1970, to the Respondent together with two copies of the
Local 587 contract with the name Columbus substituted for
Allied. The Respondent was asked to become a party to the
agreement . Thereafter Sheehan visited Baltimore Controller
Hyman Pressman and asked him if the city would resubmit
the bid because he felt that if the indications were correct
Local 587's members would lose their jobs at the airport.
On January 21, 1970, Sheehan appeared at the City
Municipal Building for a meeting of the Board of Estimates
for the City of Baltimore at which the Respondent's bid was
to be presented for consideration. Walter Ronald Morgan,
executive vice president of the Respondent, was also present
for such occasion. By coincidence Sheehan and Morgan met
in the city controller's office. Sheehan introduced himself and
asked Morgan whether he was going to recognize Local 587
as the bargaining agent. Morgan replied, "I have neither a
contract as of this time right now with the City of Baltimore
for the Airport nor have I one employee, for me to recognize
you as the bargaining' agent for anybody, it would be a viola-
2 The Respondent raised as a defense at the hearing that recognition had
been accorded to Local 587 by Allied at a time when Local 587 did not
represent a majority of the employees within the terms of Sec. 9(a) of the
Act. Thus the Respondent argues that Local 587 had never been the lawful
bargaining agent of Allied's employees. This defense is without merit and
may not be sustained since it concerns an alleged unfair labor practice upon
which the statute of limitations has run. "The Supreme Court announced a
rule in Bryan Mfg. which prevents the resurrection of legally defunct unfair
labor practices in the guise of evidence and the resultant subversion of the
policies promoted by the limitations proviso of section 10(h)." N.L.R.B. v.
District 30, United Mine Workers ofAmerica, and Local 8280 United Mine
Workers of America, 422 F 2d 115 (C.A. 6), cert. denied 398 U.S. 959,
affirming 166 NLRB 271
' The contract contained an option to renegotiate the agreement for an
additional year but with a 5-percent limitation on any increase in the con-
tract rate for the second year The option was not exercised
° A paragraph of Sheehan's letter read:
We recommend that your company consider all cost factors con-
tained in the collective bargaining agreement before placing your bid
on the work. The present employees of Allied Maintenance are qua-
lified and experienced in the work and shall be available for immediate
employment by the successful bidder on the contract. Should your
company be the successful bidder, we will expect you to become a
signatory to the existing agreement. Failure on the part of the successful
bidder to employ Service Employees Union members and/or to refuse
to bargain collectively with Service Employees could result in serious
legal and labor relations problems at the airport.
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of the law." Sheehan became "pretty huffy" and referred
to the Painters Union. Morgan said, "I haven't signed a
contract to recognize nobody at this point." Sheehan asked
Morgan where the Painters Union was located and who he
could contact there. Morgan gave him the name of Robert C.
Welch, a Painters Union representative.'
Sheehan telephoned Welch and informed him that Local
587 represented the employees at Friendship Airport and that
if the Respondent did not hire Local 587 employees there
would be a strike. Sheehan asked, "Are you going to let the
company hire our people?" Welch responded "No, I'm not.
They're going to hire Painters." The conversation became
heated and ended with Welch suggesting that Sheehan "kiss
his ass" and Sheehan's response, "Go to hell."
Sheehan had told Morgan that if Local 587 was not recog-
nized he would speak against the Respondent's "getting the
award of the bid before the Board of Estimates." That he did
and suggested that the City of Baltimore rebid the work.
Although Sheehan threatened a work stoppage the bid' was,
nevertheless, awarded to Columbus.7
Sometime prior to January 21, 1969, Eugene P. Moots, vice
president of the Service Employees Union, talked by tele-
phone with Morgan. Moots asked Morgan if he would hire
Allied employees. Morgan said he had no objection to that
"providing he did not have a problem with the Painters
[Union] because of [it]." Moots told Morgan that "if there
was a problem with the Painters Union that they had access
to the internal mechanism of the AFL-CIO. The Article 20,
Internal Disputes Plan. And that we would settle the differ-
ences there."'
' The Respondent had executed a collective-bargaining agreement on
August 14, 1969, with the Painters (herein sometimes called the Painters
contract) which expires on January 1, 1973. The recognition clause pro-
vided.
The Employer recognizes the Union as the exclusive collective bar-
gaining agent for all regular scheduled Cleaning Women, Porters,
Women Moppers, Male and Female Scrubbing Machine Operators,
and Working Foremen and Foreladies, or any other Employee, not
listed, but excluding office employees and supervisors as defined by the
Labor-Management Relations Act of 1947 as amended
By its terms, the agreement was to be "in effect within the boundaries of the
United States." The agreement, among other things, provided for union
security, checkoff, seniority, and arbitration. Male and female rates were
established by an addendum. The right was reserved to amend the contract
at any time at mutual consent. The following article on job notice appears
in the contract
It is further agreed that the Employer for the period of this Agree-
ment, will notify the Union at the Union's Washington, D C. office of
every job on which the Employer' has undertaken or contracted to
perform work. The job notice to the Union shall show the customer
location, approximate starting date, approximate number of employees
to be hired and the regular shift hours during which the work is to be
performed.
The Respondent employed around 2,000 employees and, in addition to
the Painters, had executed contracts with the Hotel, Motel and Bartenders
Union and Local 47; Service Employees Union. The Local 47 contracts
cover the Greater Mount Vernon, Ohio, area and locations in Warren, Ohio.
The Greater Mount Vernon, Ohio, area contract antedated the Painters
contract.
6 The bid was submitted upon specifications for the cleaning areas of the
Friendship terminal similar to the ones performed by Allied except that on
July 1, 1970, certain ramp offices, ticket counters, and loading docks were
to be excluded from the bidder's responsibility The new specifications pro-
vided for the same type of work, but required increased frequency cycles.
The mayor's final comment was "I really believe that your grievance lies
within the labor movement itself; there is a possibility of the rates quoted
and the rates in his bid going along with the rates you are concerned with.
Under the circumstances, I personally see absolutely no cause to reject bids,
but to award to the successful low bidder who is a Union contractor."
8 Neither Union has availed itself of art. 20.
Moots requested Joseph E. Murphy, president of Local 47,
Services Employees Union, to contact Morgan with whom he
had negotiated contracts on behalf of Local 47. Murphy tele-
phoned Morgan suggesting that perhaps he could use his
good offices to settle the Friendship dispute. Morgan told him
that "he thought it had gone too far. That he had talked. to
Pete Sheehan initially. And he asked Pete [Sheehan] to sit still
and see what developed. Pete went to some kind of a public
meeting and threatened to strike which brought the thing to
a head. So subsequently he said the Painters had moved in on
the situation and there was nothing that he could do....
That at one time there he might have been able to work out
a contract.... That he thought if, if Pete hadn't been so
rambunctious or overzealous, that possibly some type of an
agreement could have been arrived at.... That he would
have sat down and worked out some type of an agreement."'
On January 30, 1970, Thomas Donahue, executive secre-
tary, Service Employees Union, telephoned Morgan after he
had been told by Sheehan that "it was not then yet clear
whether or not Columbus was going to offer employment to
persons then employed at Friendship' Airport under the Al-
lied contract." Morgan and Donahue discussed the Friend-
ship Airport situation. Among other things, Morgan told
Donahue that "he was already committed to, by the Painters
contract to employ people under that agreement . And that he
didn't see how he could deal with Service Employees Interna-
tional Union." Donahue suggested that Morgan discuss the
matter with his counsel. Subsequently Donahue said the issue
as to who would represent the employees could be settled
through the processes of the AFL-CIO. Morgan agreed to
explore the matter with his counsel and talk with Donahue
again later in the day.
About 10 or 15 minutes later Donahue received a tele-
phone call from Welch of the Painters Union. Welch chal-
lenged Donahue's right to talk to his employer and said that
he had "no business in interfering with his employer at
Friendship Airport." Donahue charged the Painters with
tarot in procuring the Painters contract with Columbus and
that "it was an unscrupulous thing for the Painters Union to
do." Donahue "pleaded" that Welch permit the employer to
hire Allied employees and suggested that he file a proper
complaint the following week with the AFL-CIO, under
article 20, the internal disputes plan "to determine which
union should properly represent the employees." Welch's
reply was, "I can assure you not a single member of yours is
going to be employed on that job."
Later in the day, Morgan returned Donahue's calla Dona-
hue told Morgan that he was "a little bit upset about the fact
that a prior conversation [he] had with him had obviously
been reported to the Painters Union." Morgan revealed that
he had been unable to reach his counsel and that he felt
committed to the employees they had interviewed through
the employment service.
On January 27, 1970, representatives of Columbus hired 65
employees through the Maryland Department of Employ-
ment Security. On this occasion representatives of Columbus
appeared at the Security office and processed applications for
hire. Starting minimum wages were set at $2.25 and $1.90 an
hour. Carmen J. Williams, business manager for Local Union
327 of the Brotherhood of Painters and Allied Trades, AFL-
CIO, also appeared. On January 22, 1970, he had received a
routine slip through the mail from Columbus relating that the
Friendship job would commence about February 1, 1970,
with approximately 55 employees. Hourly rates were "to be
negotiated." Williams telephoned Morgan and inquired
' The Trial Examiner considers Murphy to be a credible witness
COLUMBUS JANITOR SERVICE 909
"how and where" Columbus would be hiring employees for
Friendship. Morgan said that the hirings would be conducted
at Maryland Employment Security office. Williams ascer-
tained the date of January 27, 1970, by telephoning the Em-
ployment Security office. When Williams arrived at the Em-
ployment Security office on January 27, 1970, he waited
about an hour and then went to the floor where Columbus
representatives were interviewing job applicants. There he
waited for another "hour or so" while he observed a repre-
sentative of the Employment Security office admitting em-
ployees to the room where the interviewing was occurring.
Interviews were concluded, and Louis Carkitto, vice presi-
dent for operations, emerged from the room. Williams asked
him for permission to speak to the employees, Carkitto
granted 5 minutes. All of the management representatives left
the room. According to employee Theodore Mack, Carkitto
had said that the employees would "know him [a union man]
when he comes in the room 'cause he's a big guy." Williams
introduced himself and passed out application cards. He told
the employees it would be 30 days before they would join the
Union and that they would receive a raise after 30 days. He
mentioned the amount for dues and initiation fees and gave
employees a telephone number where they could reach him
"if anything came up."
According to Williams, after introducing himself, he said
that it was his job to sign up Columbus employees in the
Union. He asked that the employees sign applications. He
explained the Painters contract, the "workings of the agree-
ment," and the benefits employees would receive if they
joined the Painters. He pointed out that wages under the
contract were $2.30 for males and $1.95 for females. Paid
holidays and vacations were also noted. Employees were in-
formed that dues were $5 a month and initiation fees were
$10. Williams explained that if the employee signed an ap-
plication card he would become a member of the Painters. He
asked the employees to sign the checkoff authorization so that
a checkoff could be made. All of the 65 employees present
signed.
Williams upon leaving the room advised Carkitto that he
had received authorization from 100 percent of the em-
ployees. Carkitto verified this fact and agreed to recognize the
Painters. 10
Columbus' representative returned to the room where the
employees remained.
By letter dated February 1, 1970, Williams informed
Columbus, in confirmation of a telephone conversation, that
he had "obtained a sufficient number of signatures for mem-
bership of employees at Friendship Airport in Baltimore,
Maryland, to make them a part of our master agreement,
effective 12:01, February 1, 1970."
William J. Gallaher, who had been Allied's manager at
Friendship, about 8 or 9 days before Allied ceased doing
business at Friendship inquired of Columbus' representatives
if they were going to hire any of Allied's employees. The reply
was that Columbus would accept applications. Several days
later Gallaher made the same inquiry." Carkitto gave Gal-
laher about 25 applications which he passed to the three shop
stewards. Fifteen or twenty executed applications were re-
to At the-time of recognition, the Respondent was providing building
maintenance service in four Sears stores in the Baltimore area. These stores
were located at Bethesda, Silver Spring, Glen Burnie, and downtown Bal-
timore, Maryland. All the employees at these stores were covered by the
National Agreement and represented by the Painters. Some of the em-
ployees at the Sears stores were transferred to the Friendship job by Re-
spondent.
11 Gallaher related to Carkitto that Allied employees were discontented
because they did not know whether they would have a job or not and that
at one time they were going to walk off the job
turned to Gallaher who gave them to Columbus District
Manager Robert Flanagan about January 30, 1970. Flanagan
said that he would review them and that they would be
contacted by telephone. Allied employees were neither hired
nor interviewed by February 1, 1970.
About noon on February 1, 1970, picketing by former
Allied employees commenced at Friendship Airport which
continued for about 3% weeks.
A few days after January 27, 1970, Williams met with
Carkitto in New Castle, Pennsylvania, at which time wages
were established a $2.30 for male and $1.95 for female which
rate was in effect at the time of the hearing. 12 A coffeebreak
was also negotiated. An addendum to the Painters National
Agreement was concluded on January 29 or 30, 1970. In the
Friendship situation the Painters followed its usual practice
upon receiving a notice that Columbus intended to open a
new site; Williams went to the job, signed in the Union the
employees whom Columbus hired, and established an adden-
dum for the area.
After Columbus' assumption of the Friendship Airport
service contract the same type of custodial work continued;
however, the "cycles and frequencies of cleaning" were in
most cases increased. About twice as many employees were
employed by Columbus as were employed by Allied and
about twice as many mechanized aids such as scrubbing ma-
chines, floor waxers, and polishers were used by Columbus as
by Allied.
Columbus used none of Allied's equipment and as noted
above by February 1, 1970, it had hired none of Allied's
employees" and none of its supervisors. It followed its usual
practice of utilizing State employment agencies and newspa-
per advertising to recruit new employees."
When Columbus commenced operations at Friendship
Airport on February 1, 1970, it utilized approximately 72
employees, 14 of whom were transferred from other opera-
tions of the Company.15 Allied's final payroll included 34
employees.16 Columbus has maintained an average work
1' Williams explained that the National Agreement establishes a mini-
mum rate for wages but when the contract concerns a metropolitan area and
the rates are higher according to Government figures, the Union tries to
establish higher rates.
11 Daniel J. Urbanski, senior operations supervisor at Friendship Airport,
testified that he told Columbus representatives that he "would rather not
have the Allied employees employed at the airport "
14 The General Counsel and Charging Party maintain by expert witnesses
that, in the building service industry, it is the common practice or custom
for the employer who takes over a service contract following service of a like
contract by another employer to hire the predecessor's employees en masse.
The Respondent maintains by witnesses equally as expert that such an
employer, as a common usage or custom, does not follow such practice
Because of this seemingly conflicting expert testimony and the probable bias
of the witnesses (none of whom was wholly neutral) the Trial Examiner is
unable to find that the common practice or custom as claimed by the Gen-
eral Counsel and the Charging Party has been established by a preponder-
ance of the testimony.
11 Morgan testified-
Approximately 14 came from Commercial Shearing in Youngstown,
Ohio, Youngstown Sheet and Tube, the Dixmont State Hospital in
Beaver, Pennsylvania, or Guntersville, I guess it is It 's in the Beaver
area From Rochester Hospital in Rochester, Pennsylvania, from Ur-
sinus College in Collegeville, Pennsylvania, and a Sears store in Penn-
sylvania and a couple Sears stores in the locale here.
16 These employees were identified as.
T. P. Bates R. W Lewis
J H. Beatty C Lucas
E P Brown N. Manuel
A. Cobb F. Nabet
J M. Cobb I McGee
C. Coif B. Parson
W Craig J. Queen
(Cont.)
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
force, exclusive' of supervisors, of about 56 employees. In
order to retain this work force, by reason of the high turnover
of employees which is typical. of the building service industry,
the Respondent has hired 150 employees.
The Friendship Airport location is part of an administra-
tive division of Respondent which extends northward from
Maryland through Delaware and Pennsylvania into New Jer-
sey. At the time that Respondent commenced work at
Friendship Airport this subdivision included the Sears stores
located at Glen Burnie, Silver Spring, and Bethesda, Mary-
land, locations . This entire administrative division was under
the control of Robert Flanagan , who reported directly to
Morgan at Respondent's home office in New Castle, Pennsyl-
vania.
All company purchases were made through the home
office. Individual locations placed orders with the home office
which were drop shipped from the manufacturer or trucked
from New Castle.
Clerical employees are located at the home office, payroll
and personnel records are maintained there, and employees'
checks are drawn and run through the computer at New
Castle.
Morgan , who heads labor relations, administers all labor
relations from New Castle and negotiates all labor contracts.
The president of Columbus, William E. Columbus, the execu-
tive vice president, Walter Ronald Morgan, vice presidents in
charge of sales, George Manos and Oscar Hayer, and the vice
president in charge of service, Louis Carkitto, maintained
offices at New Castle.
Everything was supervised centrally in New Castle: "pay-
roll, labor relations, purchasing, paying of the bills, making
out the checks, all the payroll records, actual maintenance of
everything. The only thing that is maintained locally is the on
the job functioning of the service contract."
At the time operations at Friendship commenced Colum-
bus serviced contracts at the several Sears stores noted above
which it has since lost. There were minor exchanges of em-
ployees between Sears and the Friendship Airport. Skilled
scrub teams were brought to Friendship about once a month
for 4 or 5 days from Collegeville and Philadelphia. Window
cleaners were also brought in from Pittsburgh and New Cas-
tle once a month for a week's work.
Columbus services around 400 locations. Most of its ser-
vice contracts are on a month-to-month basis with a 30-day
cancellation clause which may be utilized by either party. In
the last 12 months Columbus has added about 60 jobs and
relinquished 15.
As noted Columbus maintains labor agreements with Lo-
cal 47, Service Employees Union for the Greater Mount Ver-
non, Ohio, area. If the employer adds a location in that area
Local 47 "automatically pick[s] up the employees and they
automatically become theirs" and the contract is applied to
the new location.
The Employer also maintains the agreement with the
Painters Union which, as noted, covers all areas of the United
States, excluding the areas embraced in the Local 47 con-
tracts. If a new location is acquired in this area the Painters
G V McCray E Ray, Jr
J C Dent A. B. Rodriguez
J Donaldson P. Rollins
O C Edwards Q E Saunders
O C Edwards, Sr L Speight
J. Gibson D M. Spencer
E. M. Hunt G S Stewart
T. G. Irvin E. Washington
L King M E. West
R N Lee C G Wiggins
are notified as was done in the instant case. Locations in
Indianapolis, Indiana; Maryland; New Jersey; New York;
and Pennsylvania have been added by this method. At the
Sears stores in Silver Spring , Bethesda, Baltimore, and Glen
Burnie, Maryland, after notice of Columbus' acquisition,_the
Painters supplied sufficient authorizations to Columbus "for
addition to the contract."
Conclusions and Reasons Therefor
First: It is well settled that Allied's employees were entitled
to be considered by Columbus for employment on a nondis-
criminatory basis. Tri-State Maintenance Corp. v. N.L.R.B.,
408 F.2d 171 (C.A.D.C.). The Respondent's duty in this,
regard obtained even though Columbus was not a successor
in law of Allied for an employer may not refuse a person
employment because of his union affection. Phelps Dodge
Corporation v. N.L.R.B., 383 U.S. 177.
Prior to the hiring of any new employees for the Friendship
site, the union affection of Allied employees was brought to
the attention of Columbus by Local 587. Nevertheless, as is
established by the credible proof, the Respondent considered
none of Allied's employees for prospective employment, al-
though it hired new employees' who exceeded the Allied em-
ployees in number. To permit an employer to pretermit his
predecessor's employees' reasonable expectations of employ-
ment without justifiable explanation is but to cater to that
employer who "might well seek to avoid application of the
successorship principle by refusing to hire the seller's em-
ployees."" Indeed, if successorship is to have any legal signifi-
cance in fact such pretermission cannot be tolerated for to
tolerate it is to put in the hands of the employer the power
to destroy the successorship principle as it has evolved in the
law of labor relations and to deprive the employee of the
protection which the principle affords the employee when
there is a sudden change in his employment relationship. It
is well established that "the interests to be protected [under
the Act] are primarily those of employees.... " Philip Carey
Manufacturing Company v. N.L.R.B., 331 F.2d 720, 735
(C.A. 6). With the employees in mind, the Supreme Court has
said in John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543,
549;
The objectives of national labor policy, reflected in estab-
lished principles of federal law, require that the rightful
prerogatives of owners independently to rearrange their
businesses and even eliminate themselves as employers
be balanced by some protection to the employees from a
sudden change in the employment relationship. [Empha-
sis supplied.]
"Some protection," it seems clear, at least contemplates the
duty for an arguable successor employer who hires employees
to consider a predecessor's employees for hire on a nondis-
criminatory basis. Where the predecessor's employees are
prounion and the employees hired are nonunion, the failure
of the arguable successor employer to consider any of the
predecessor's employees for employment creates a strong pre-
sumption of unlawful discrimination. Thus, when the Gen-
eral Counsel had produced credible evidence which sup-
ported a finding that the Respondent had failed or refused to
consider Allied's employees who were known Local 587 par-
tisans for hire, although other employees were hired who
were not known Local 587 partisans, a prima facie case of
unlawful discrimination was established, for the natural and
foreseeable consequence of such conduct was "to discourage
" See International Association of Machinists, District Lodge 94, AFL-
CIO (Lou Ehlers Cadillac and Thomas Cadillac, Inc.) v. N.L.R.B., 414 F.2d
1135(CA.DC).
COLUMBUS JANITOR SERVICE
membership in any labor organization."" Under these cir-
cumstances Allied employees could not have escaped the
realization that they were passed over for hire because of their
affection for Local 587. Likewise new employees would have
been equally impressed that their jobs were offered them
because of their lack of interest in Local 587. Such idea was
bolstered by the appearance of Painters representatives with
ostensible Respondent approval at the hiring of the new em-
ployees, and the inescapable discovery that not one Allied
employee was hired. Hence, the Respondent's conduct was
inherently destructive of important employee rights (see
N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26)" and the
General Counsel has established a prima facie case of unlaw-
ful motivation. It became then the Respondent's burden to
rebut the General Counsel's prima facie case in order to
escape a finding of unlawful discrimination. In this regard the
Respondent explained that Allied employees were passed
over because the Respondent sought new employees in the
belief that they would not have to unlearn a prior employer's
work methods and would, without such inhibition,, adapt
more readily to the Respondent's work methods.2° The apo-
cryphal character of such claim is self-evident for the Re-
spondent did not interview a single Allied employee to ascer-
tain whether he or she possessed bad habits or whether he or
she would adapt to the Respondents work methods, al-
though it knew Allied employees were available for employ-
ment. Moreover, the Respondent hired employees who had
prior janitorial experience with employers other than Colum-
bus.
While there is some doubt whether the Respondent's de-
fense in support of its refusal to consider Allied employees
would lie because of the inherent destructive character of the
Respondent's conduct upon important employee rights (see
18 ". . an employer 's protestations that he did not intend to encourage
or discourage must be unavailing where a natural consequence of his action
was such encouragement or discouragement . Concluding that encourage-
ment or discouragement will result, it is presumed that he intended such
consequence In such circumstances intent to encourage is sufficiently estab-
lished." The Radio Officers' Unton of the Commercial Telegraphers Union,
AFL v. N.L.R.B , 347 U S. 17, 45
" See N.L.R.B. v Hudson Transit Lines, 74 LRRM 2797, 2799-2800
(C.A. 3).
Also relevant here are N..LR.B. v Great Dane Trailers, 388 U S 26
(1967) and N.LR B. v. Fleetwood Trailer Co., 389 U.S 375, . .
(1967), which identified two categories of unfair labor practices where
proof of improper motive apparently is not necessary to establish a
violation of 8(a)(3) These categories were summarized by Chief Justice
Warren in his opinion for seven members of the Court in Great Dane
Trailers. First, if an employer 's conduct is "inherently destructive" of
important employee rights, no proof of anti-union motivation is needed
and the Board can find an unfair labor practice even if the employer
introduces evidence that his conduct was motivated by business consid-
erations 388 U S. 34. ... Second, if the employer 's conduct could have
adversely affected employee rights to some extent the employer must
establish that he was motivated by legitimate objectives . 388 U.S. 34.
... If the employer does not establish the required "legitimate and
substantial business justifications for his action, the conduct constitutes
an unfair labor practice "without reference to intent ." 389 U.S. 380.
20 Morgan testified.
We hire new employees because it's much easier to train a new em-
ployee who has no bad habits except by working for the previous
employer or any other employer. We would prefer, not only here but
anywhere, to look for a new employee that has no bad habits and train
him right from the start. He makes a better employee; you don't have
to worry about their saying, "I did it this way for that company," or "I
want to do it that way," and try to break that habit. We continue on
training him in our methods and our methods, as I say, are entirely
different. We have much more mechanization; we have a different
formulation It's just entirely different, and he makes a better employee
all the way around.
911
N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26), the Trial
Examiner is of the opinion that the Respondent's alleged
defense is pretextual in nature and under the circumstances
of this case was insufficient to relieve the employer of its
primary duty to have considered Allied's employees for hire
on a nondiscriminatory basis. The credited testimony estab-
lishes that a true purpose for the Respondent's refusal to hire
Allied employees was to accommodate and appease2' the
Painters who had asserted that the Respondent would not
hire Local 587 members but was "going to hire Painters."
Morgan told Murphy that at one time "he might have been
able to work out a contract" with Local 587 but there was
nothing he could do "[b]ecause the, the Painters Union had
moved in and were, were claiming jurisdiction." For this
reason and from an examination of the record as a whole the
Trial Examiner finds that the real motive of the employer was
to avoid the consequences which would have flowed from the
hiring of Allied's union personnel, the result of which was to
discourage employees' membership in a union . Accordingly,
the Respondent violated Section 8(a)(3) and (1) of the Act.
Second: As is evident from the foregoing facts, the advent
of the Respondent effected no change in the employing indus-
try forming an appropriate bargaining unit for which Local
587 had been designated and recognized as the bargaining
agent and for which unit a labor agreement had been nego-
tiated and executed by Allied and Local 587. At the conclu-
sion of Allied's service contract, on February 1, 1970, the
Respondent commenced the performance of substantially the
identical operations that had theretofore been performed by
Allied, servicing the same facilities for the same customer in
substantially the same manner and at the same worksite, and
utilizing for that purpose employees who performed the same
functions and exercised the same skills. While these em-
ployees became employees of the Respondent who adminis-
tered the operations of many sites throughout the United
States from its New Castle, Pennsylvania, office and were
caused to be placed under the Painters National Agreement
which covered many of these sites, but not all (some sites were
covered by contracts with Service Employees Union, Local
47), the Friendship operation was not merged into nor did it
become an integral part of the operation of any other site or
sites. Its day-to-day operations were continued on a local
level and its separate identity was recognized and maintained
to the extent that a separate addendum to the Painters Na-
tional Agreement was negotiated for it. Cf. Solomon Johnsky
d/b/a Avenue Meat Center, 184 NLRB No. 94. Moreover,
the identity of this unit had been firmly established by the
contract executed between Allied and Local 587 which con-
tract covered identical job classifications and the identical
unit work performed by the Respondent's Friendship site
employees. In these respects, among others, the case of Fed-
eral Electric Corporation, 167 NLRB 469, cited by the Re-
spondent, is unlike the instant case and is inapposite.
In the Federal Electric Corporation case an on-site depart-
ment of quick-copy reproduction machine operators was
merged into and became an integral part of an alleged succes-
sor's on-site logistics department where its employees had
been performing similar reproduction work. Unlike the em-
ployees in the instant case they constituted only a segment of
the employees in that department" possessing the same em-
" "Between the Scylla of the Painters and Charybdis of the Charging
Party (in its International), Respondent attempted to reach shore without
becoming wrecked on the shoals." Respondent' brief to the Trial Examiner,
p 47.
21 If one were to hold that the Federal Electric Corporation case was in
point, one would be hard put to decide whether the Friendship operation
became a segment of the unit covered by the Painters contract or the unit
(Cont.)
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployment interests, and were, in fact, no longer identifiable
for unit purposes by classification but only by name.
The Respondent's assumption of Allied's Friendship oper-
ations did not result in a different type of employing enter-
prise nor did it result in a change in the employer-employee
relationship, although the possibility was opened as to
whether employees might ultimately desire to be represented
in a multisite unit or a single-site unit. Except for the fact that
the Respondent did not hire any of its predecessor's em-
ployees, the instant case presents a classic example of succes-
sorship23 and the duty to recognize and bargain with Local
587 seemingly devolved upon the Respondent as a successor
employer when it commenced performing the service con-
tract at Friendship. Maintenance, Inc., 148 NLRB 1299; Tri-
State Maintenance Corp., 167 NLRB 933. However, as noted
by the Respondent, PiaseckiAircraft Corporation, 123 NLRB
348 (1959), suggests that the Respondent may not be found
to have become a successor in law of Allied because it did not
put to work any of Allied's employees. Nevertheless, if this
be the reasoning of Piasecki, it is not confirmed by subsequent
case law.24
In the case of Chemrock Corporation, 151 NLRB 1074,
1078-79, the Board said:
We think that where, as here, the only substantial
change wrought by the sale of a business enterprise is the
transfer of ownership, the individuals employed by the
seller of the enterprise must be regarded as "employees"
of the purchaser as that term is used in the Act. Such
individuals possess a substantial interest in the continua-
tion of their existing employee status, and by virtue of
this interest bear a much closer economic relationship to
the employing enterprise than, for example, the mere
applicant for employment in the Phelps Dodge case. The
particular individuals involved here were unquestiona-
bly "employees" of the enterprise at the time of the
transfer of plant owernship. The work they had been
doing was to be continued without change. Clearly em-
ployees in such a situation are entitled to seek through
bargaining to protect their economic relationship to the
enterprise that employs them. As the Supreme Court
recently stated in another context:
Employees and the union which represents them,
ordinarily do not take part in negotiations leading
to a change in corporate ownership. The negotia-
tions will ordinarily not concern the well-being of
the employees, whose advantage or disadvantage,
potentially great, will inevitably be incidental to the
main considerations. The objectives of national la-
bor policy, reflected in established principles of fed-
eral law, require that the rightful prerogative of
owners independently to rearrange their businesses
and even eliminate themselves as employers be ba-
lanced by some protection to the employees from a
sudden change' in the employment relationship.
We therefore hold that the five drivers whom the Re-
spondent did not hire were "his employees" within the
meaning of Section 8(a)(5) of the Act.
covered by Service Employees Union, Local 47's contract with Respondent,
since the sites included under each contract are administered on a national
basis in the same manner from the home office of the Respondent
23 In resolving successorship the critical inquiry is whether the "employ-
ing industry remains essentially the same" (NL.R.B. v Auto Ventshade,
Inc., 276 F 2d 303, 304 (C.A 5)), and whether the nature of the employ-
ment rather than its source may be deemed continuous. N.L.R.B. v McFar-
land, 306 F.2d 219, 220 (C A. 10).
'" It is of significance that John Wiley and Sons, Inc. v. Livingston, supra
(1964), postdates Piasecki (1959).
The same reasoning which persuaded the Board to find
unhired employees, employees of the successor in the Chem-
rock Corporation case, is equally persuasive in the instant
case. Accordingly, as of February 1, 1970, Allied's employees
were employees of the Respondent and successorship must be
deemed to have matured together with the obligations which
pertain to that status.
One of these obligations was to take over and honor the
contract between Allied and Local 587. William J Burns
International Detective Agency, Inc., 182 NLRB No. 50. In
such case the Board opined:
Binding the successor-employer to his predecessor's
bargaining obligation furthers the policy of protecting
the employees' exercise of the right to engage in collec-
tive bargaining through representatives of their own
choosing. Requiring the successor-employer to negotiate
proposed changes in existing terms and conditions of
employment with the employees' bargaining representa-
tive promotes stability in the employing enterprise's la-
bor relations and furthers the interests of industrial
peace. The obligation to bargain imposed on a successor-
employer includes the negative injunction to refrain
from unilaterally changing wages and other benefits es-
tablished by a prior collective-bargaining agreement
even though that agreement has expired.
See also Ranch-Way, Inc., 183 NLRB No. 116.
Applying these doctrines, on February 1, 1970, the Re-
spondent was obligated to recognize and bargain with Local
587, take over and honor and enforce the existing contract
between Allied and Local 587, and refrain from unilateral
changes in working conditions in derogation of the contract.
Third.- The Respondent insists that the obligations of a
successor in law detailed in the sentence above did not attach
to it because the Friendship site became an "accretion to the
existing overall unit or at least to the bargaining unit of
Respondent's employees at Glen Burnie, Silver Spring, Bal-
timore, and Bethesda, Maryland." It maintains that as a
consequence it was free to recognize and bargain with the
Painters. This theory fails for two reasons: (1) the Painters
contract, by its terms, does not specifically include new sites
and was not so administered in the instant case;25 (2) the
multisite unit to which the accretion must attach is not the
only appropriate unit. Cf. Sheraton-Kanai Corp. v. N.L.R.B.,
429 F.2d 1352 (C.A. 9). Although it is conceded that the
Friendship site became a part of the employer's centralized
operation and that the multisite unit including the Friendship
unit is an appropriate unit because the operations of the
employer are highly integrated, there is a uniformity of wages
and working conditions at all locations, there is some inter-
change of employees between the locations and, employees at
all locations are subject to centralized control and common
labor policies (cf. Home Exterminating Company, 160 NLRB
1480, 1482); nevertheless, the history of bargaining at the
Friendship site has been on a Friendship site basis, a factor
which also must be considered. The c 'kianges in employer
administration have not been sufficient to gainsay the appro-
priateness of the established Friendship site unit which re-
mained substantially the same even though it was absorbed
as a part of the employer's centralized operation. The local
administration differed little from that of the predecessor
" In the instant case the contract was made applicable only after the
Painters had claimed majority representation among the employees as-
signed to the site Under these circumstances had the Respondent assumed
its responsibilities as a successor in law or, if another union had intervened
prior to recognition of the Painters or, if the Painters had not obtained
majority designation, the site, under the contract, could not have been
merged into the unit covered by the contract.
COLUMBUS JANITOR SERVICE 913
which likewise operated at sites other than Friendship. Thus
the Friendship site remained an appropriate unit.
The seeming appropriateness of the two units for which
interested unions are making conflicting claims for bargain-
ing rights must be weighed in determining the obligations of
the successor employer. This is true because the advent of a
successor employer bound to a contract which embraces an
appropriate unit which arguably includes the acquired site
may raise a real question of representation. Whether a real
question of representation exists in the instant case depends
upon whether the Allied contract which became binding
upon the Respondent on February 1, 1970, was a bar to an
election.
One of the Board's tests for whether a contract shall consti-
tute a bar is thusly stated in Hershey Chocolate Corporation,
121 NLRB 901, 906, " ... the Board must be satisfied that
the existing contract can no longer serve to promote indus-
trial stability, and that the direction of an election would be
in the interests of achieving industrial stability as well as in
the interest of the employees' rights in the selection of their
representative." While this test referred to schisms it seems
also apposite to the present situation. The Hersey case in-
volved an intraunion conflict; the instant case concerns an
unresolved intra-AFL-CIO conflict between two AFL-CIO
unions both of whom are subject to the terms of article 20
(interunion disputes) which neither Union has shown any
inclination to observe.21
In the Hershey case the Board held that "a question affect-
ing commerce exist[ed] concerning the representation of em-
ployees of the Employer within the meaning of Section
9(c)(1) and Section 2(6) and (7) of the Act." Consistency in
purpose demands the same finding in the instant case. Here,
as in the Hershey case, factors over which Allied employees
had no control completely changed the basis upon which
Allied employees had originally selected their bargaining
agent . Through no fault of their own Allied employees
became the employees of an employer with a Painters con-
tract through which the employer managed its affairs with its
employees on a centralized basis. The Allied employees were
precipitously confronted with the conflicting claims of two
contending AFL-CIO unions. Thus for the first time these
employees were faced with the prospect of choosing between
two unions and as to whether they preferred to bargain
through the single site unit or the multisite unit. With these
radical changes brought about by the acquisition (which may
have brought benefits or caused detriments for the Allied
employees) neither the Allied contract nor the contracting
unit may have been, from the employees' viewpoint, appro-
priate vehicles through which collective bargaining could
have been beneficially and effectively administered. This new
state of affairs was not anticipated or provided for in the
terms of Allied's collective-bargaining agreement. Had these
circumstances, which were not of Allied employees' making,
existed at the time they chose Local 587, their selection might
have been for the Painters. In view of these facts, in the name
of stability, it seems not in the best interests of employees'
freedom of choice as envisioned by the Act to bind these
" The Respondent contends , citing J. H. Hamlen & Son, Inc., 180 NLRB
No. 145 , that the instant case should be dismissed in that , although machin-
ery existed to resolve the situation between the Unions, neither would
invoke this machinery . While the Trial Examiner recognizes the strength of
such argument , this contention concerns a matter of policy involving the
exercise of the Board 's discretionary jurisdiction Moreover, if the Trial
Examiner were to dismiss this case on this ground, he must have lost sight
of a most important function of the Act, the protection of employees' rights
"The sanctions of the Act are imposed ... for the protection of the em-
ployees." N.L R.B v Virginia Electric and Power Company, 314 U.S 469,
477.
employees to the Allied contract until October 27, 1971, and
thus deny them what they might consider to be benefits flow-
ing from nationwide bargaining and a national agreement.
These words of the court in Shoreline Enterprises ofAmerica,
Inc. v. N.L.R.B., 262 F.2d 933, 944 (C.A. 5), are appropriate:
The National Labor Relations Board is not just an um-
pire to referee a game between an employer and a union.
It is also a guardian of individual employees. Their voice,
though still and small, commands a hearing.
It appears that little concern was shown for the Allied em-
ployees."
Under the facts revealed in the record it is doubtful
whether the Allied contract may longer serve to promote
industrial stability if foisted upon the employer and em-
ployees, but, on the contrary, may prove a source of industrial
unrest. For this reason and in order that the employees'
freedom of choice in the selection of their bargaining repre-
sentative may be acknowledged and fostered, a question of
representation should be declared open so that the employees
of Allied may, in the light of the changes evolving from this
peculiar successorship, choose a representative who may be
responsive to their best interests as they now conceive them.
To give way to the concept of stability in derogation of free-
dom of choice where stability may lead to possible injustices
and instability is a slavish application of the concept which
was never envisioned by the Act. As between two unions
claiming representation of employees in an employer's newly
acquired operation, both of whom have arguably valid claims
by reason of subsisting bargaining agreements , a resolution by
an election is a desired means28 of circumventing strife and is
a "substitute for industrial strife," an objective which the
Supreme Court finds embedded in the Act.29 The Trial Exam-
iner finds that a real question of representation existed when
Columbus commenced operations at Friendship on February
1, 1970. Nevertheless, on this date and thereafter, Columbus
was required to recognize and bargain with Local 587,30 take
over and honor and enforce the existing contract between
Allied and Local 587, and refrain from unilateral changes in
" Sheehan's antagonism for the Painters, reflected in the record, no
doubt subrogated his interest in the welfare of the Allied employees. So
intense was the antagonism that when Robert P Bailey, president of Service
Employees Local 82, answered (in reference to the organization of service
employees), "There is enough virgin territory there [Washington, D.C.] for
everybody." Sheehan responded "Except the Painters." It seems clear from
this remark that Sheehan preferred no union organization to the Painters
organization
Sheraton-Kant Corp. v. N.L.R.B., supra-
Hence, the Board has held that even though it might have found an
overall unit appropriate on a representation petition, and thus have
given all employees at all locations an equal voice in the initial represen-
tation decision, it would not "under the guise of accretion, compel a
group of employees, who may constitute a separate appropriate unit, to
be included in an overall unit without allowing those employees the
opportunity of expressmg their preference in a secret election or by
some other evidence that they wish to authorize the Union to represent
them." Melbet Jewelry Co., 180 NLRB No. 24 (1969). See also Super
Yalu Stores, Inc, 177 NLRB No. 63, (1969); Warehouse Markets, Inc.,
174 NLRB No. 70 (1969).
" By this decision the Trial Examiner does not intend to whittle away
at the holding in William J. Burns International Detective Agency, Inc.,
supra, with which he is wholly in accord. (See Trial Examiner's Decision
Thomas Cadillac, Inc., 170 NLRB No 92.) Rather the Trial Examiner is
accommodating the Burns doctrine to a peculiar set of facts, viz: where an
employer in the building service industry with a multisite labor agreement
becomes the successor in law of a single site covered by a contract with
another union, which site may or may not be an appropriate unit or may or
may not be included in the multisite appropriate unit
30 Maintenance, Inc, supra.
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
working conditions in derogation" of Local 587's contract thereby the Respondent Employer violated Section 8(a)(2) of
until "at least the Board [h]ad given some indication that [the the Act.
Respondent's] claim [that it be relieved of these responsibili-
ties] ha[d] merit .1112 The Respondent was derelict in this duty.
An employer may not ignore, as here, the procedural require-
ments of the Act which Congress has devised as a means of
securing industrial stability and industrial peace, and resort
to self-help.
Although the Board may, if the facts warrant, revoke a
certification or agree not to pursue a charge of an unfair
labor practice, these are matters for the Board; they do
not justify employer self-help or judicial intervention.
The underlying purpose of this statute is industrial
peace. To allow employers to rely on employees' rights
in refusing to bargain with the formally designated union
is not conductive to that end, it is inimical to it. Congress
has devised a formal mode for selection and rejection of
bargaining agents and has fixed the spacing of elections,
with a view of furthering industrial stability and with
due regard to administrative prudence.33
In that it was the Respondent's duty on February 1, 1970,
to recognize and bargain with Local 587, take over and honor
and enforce the contract between Allied and Local 587, and
refrain from unilateral changes in working conditions in
derogation of Local 587's contract, the Respondent violated
Section 8(a)(5) and (1) of the Act.
There is a firm rule that an employer cannot arrogate unto
himself authority to determine which of two or more con-
tending unions is entitled to recognition as exclusive bargain-
ing agent. Midwest Piping & Supply Co., Inc., 63 NLRB 1060.
Hence, the recognition of the Painters during a period when
a real question of representation was pending was unlawful
even though the Painters had proved an uncoerced majority
and the contract executed pursuant to such unlawful recogni-
tion was and is null and void.
Accordingly, the Trial Examiner finds that the Respondent
Employer, in recognizing the Painters as the exclusive repre-
sentative of Friendship site employees, at a time when the
Painters had not been lawfully designated as their exclusive
representative for the purposes of collective bargaining, and
thereafter entering into a collective-bargaining agreement
with the Painters covering such employees, at a time when a
real question concerning their representation for the purposes
of collective bargaining existed, violated Section 8(a)(2) and
(1) of the Act.
The Trial Examiner further finds that the limitations on
union activity, as well as the right to refrain from union
activity, imposed by the maintenance of membership provi-
sions of the Painters contract and the support to the Painters
provided thereby are at odds with the requirements of Section
8(a)(1), (2) and (3) of the Act, and that by reason of the
execution of and the maintenance of such provision the Re-
spondent Employer violated Section 8(a)(l), (2), and (3) of
the Act. Fiore Brothers Oil Co., Inc., 137 NLRB 191, 208,
enfd' 317 E.2d 710=(C.A. 2); Mr. Wicke Ltd. Ca, 172 NLRB
No. 181; Carlson Furniture Industries, Inc., 153 NLRB 162.
The Trial Examiner further finds that the Respondent Em-
ployer's honoring the dues-checkoff authorizations, obtained
by the Respondent Employer's, unlawful assistance and its
deduction of dues pursuant to -a contract-executed during a-
time, when a - real question of 'representation was pending;;
constituted a contribution of support of the Painters and
" William J. Burns International Detective Agency, supra
3 2 See Ray Brooks v. N..L:R.B, 348 U.S. 96, 104.
" Ray Brooks v. N.L.R.B., supra.
CONCLUSIONS OF LAw
1. The Respondent Employer is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Local 587 and the Painters are labor organizations
within the meaning of Section 2(5) of the Act.
3. All general cleaners , maids, scrubbing, and waxing ma-
chine operators, and lead men and women employed by
Columbus Janitor Service, Division of Servisco at Friendship
International Airport, Baltimore, Maryland, excluding
supervisory personnel and guards as defined in the Act consti-
tute a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act.
4. By failing and refusing on February 1, 1970, and there-
after, to recognize and bargain with Local 587 as the exclu-
sive bargaining representative of Respondent's employees in
the above-described appropriate unit, by failing to honor and
adopt and enforce the existing contract between Allied and
Local 587, and by unilaterally changing working conditions
in derogation of the terms of the contract, Respondent has
engaged in and is engaging in unfair labor practices within the
meaning of 8(a)(5) and (1) of the Act.
5. All cleaning women, porters, women moppers, male and
female scrubbing machine operators, working foremen and
foreladies, and any other employees not listed, of the Colum-
bus Janitor Service, Division of Servisco, excluding office
employees, guards and supervisors as defined in the Act, and
employees in the above classifications who are included under
the employer's contracts with Service Employees Local 47,
but including employees of the employer at Friendship Inter-
national Airport, Baltimore, Maryland, constitute a unit ap-
propriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
6. By recognizing the Painters at a time when the Union
was not the lawful exclusive representative of the Respondent
Employer's Friendship site employees and by contracting
with it and by applying the Painters contract to the Friend-
ship site at a time when a real question concerning representa-
tion of such employees existed, the Respondent Employer
thereby rendered and is rendering unlawful assistance and
support to a labor organization and has engaged in and is
engaging in unfair labor practices within the meaning of Sec-
tion 8(a)(2) and (1) of the Act.
7. By including in said contract a provision. requiring mem-
bership in the Painters and by deducting sums of money from
the wages of its Friendship site employees for union dues to
Painters Local 1115 pursuant to the Union's security provi-
sion of the contract, Respondent Employer has engaged in
unfair labor practices within the meaning of Section 8(a)(1),
(2), and (3) of the Act.
8. By unlawfully failing to employ:
T. P. Bates R. W. Lewis-
J. H. ,Beatty
E. P: Brown.
A: Cobb
L M: Cabb
C. Coif
W. Craig
G. V. McCray
J. C. Dent,
J. Donaldson
O. C. Edwards
C. Lucas
N. Manuel
F: N=abett
ILM G
B_ Parson
J. -Queen
E. Ray,.Jt.
A B. Rodriguez-
P. Rollins,
Q. E. Saunders
COLUMBUS JANITOR SERVICE 915
0. C. Edwards, Sr. L. Speight
J. Gibson D. M. Spencer
E. M. Hunt G. S. Stewart
T. G. Irvin E. Washington
L. King M. E. West
R. N. Lee C. G. Wiggins
on February 1, 1970, the Respondent had engaged in unfair
labor practices within the meaning of Section 8(a)(3) and (1)
of the Act.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE RECOMMENDED REMEDY
Since the Respondent has engaged in unfair labor practices
and in order to protect the interests of the employer's em-
ployees as is compelled by the Act, the Trial Examiner
recommends that the Respondent cease and desist from a
continuation of its misconduct herein found and take certain
affirmative action designed to effectuate the policies of the
Act and restore, as nearly as possible, the conditions which
existed prior to commission of the unfair labor practices. In
order to dissipate the effect of the Respondent Employer's
unfair labor practices, the Trial Examiner recommends that
the Respondent Employer be ordered to withdraw and with-
hold recognition from the Painters, as the exclusive represent-
ative for the Friendship site employees, and to cease giving
effect to the Painters agreement or to any renewal or exten-
sion thereof as it has been applied to the Friendship site
employees, until such time as Painters shall have been cer-
tified by the Board as the exclusive representative of the
employees in question.
As for the dues deducted, it appears that the Friendship
site employees ignored the Local 587 picket line placed on
February 1, 1970, at the Friendship site and apparently con-
tinued allegiance to the Painters. Under these circumstances
the Trial Examiner cannot find that the dues were taken from
these employees to support an organization not of their free
choice. Cf. Virginia Electric Co. v. NLR.B., 319 U.S. 533,
541. Accordingly, the Trial Examiner recommends that the
Respondent be excused from reimbursing these employees for
any dues deducted pursuant to the terms of the Painters
contract. "Discrimination against union labor in the hiring of
men is a dam to self-organization at the source of supply. The
effect of such discrimination is not confined to the actual
denial of employment; it inevitably operates against the whole
idea of the legitimacy of organization. In a word, it under-
mines the principle which, as we have seen, is recognized as
basic to the attainment of industrial peace." Phelps Dodge
Corp. v. N. L. R B., 313 U. S. at 185. Thus it having been found
that the Respondent unlawfully refused to offer employment
to and continue in employment
T. P. Bates
J. H. Beatty
E. P. Brown
A. Cobb
J. M. Cobb
C. Colf
W. Craig
G. V. McCray
J. C. Dent
J. Donaldson
0. C. Edwards
0. C. Edwards, Sr.
J. Gibson
R. W. Lewis
C. Lucas
N. Manuel
F. Nabet
1. McGee
B. Parson
J. Queen
E. Ray, Jr.
A. B. Rodriguez
P. Rollins
Q. E. Saunders
L. Speight
D. M. Spencer
E. M. Hunt G. S. Stewart
T. G. Irvin E. Washington
L. King M. E. West
R. N. Lee C. G. Wiggins
it is recommended that the Respondent, in accordance with
Board policy," offer them immediate employment to the
same positions at which they would have been employed
under the terms of the Local 587 agreement or, if such posi-
tions no longer exist, to substantially equivalent positions,
without prejudice to the seniority or other rights and privi-
leges they may have acquired, dismissing, if necessary, any
employees employed since February 1, 1970, and make them
whole for any loss of earnings they may have suffered as a
result of the discrimination against them by payment to them
of a sum of money equal to the amount they would have
earned from the date they would have been respectively em-
ployed by the Respondent had it not discriminated against
them to the date of an offer of employment, less net earnings
during said period to be computed on a quarterly basis in the
manner established by the Board in F W. Woolworth Com-
pany, 90 NLRB 289, and including interest at the rate of 6
percent per annum to be computed in the manner set forth
in Isis Plumbing & Heating Co., 138 NLRB 716.
The Trial Examiner does not gainsay the Respondent's
assertion, "The evidence in this case is clear as to one point-
Respondent is caught in an internecine war between the two
Unions with which it has collective bargaining relationships."
(Respondent's brief to the Trial Examiner, p. 47.) The Re-
spondent's fault was that it chose between the two combat-
ants rather than to have submitted the matter to the Board's
procedures for a determination of its obligations. Whether it
yielded to the Painters by reason of pressure or desire would
not have become a consideration if it had assumed its obliga-
tions and sought a resolution of the conflicting claims of the
Unions by filing a representation petition. The Act seems well
equipped to accommodate the Respondent's dilemma in that
Section 9(c)(1)(B) provides:
(c)(1) Wherever a petition shall have been filed, in
accordance with such regulations as may be prescribed
by the Board-
(B) by an employer, alleging that one or more
individuals or labor organizations have presented to
him a claim to be recognized as the representative
defined in section 9(a);
the Board shall investigate such petition and if it has
reasonable cause to believe that a question of representa-
tion affecting commerce exists shall provide for an ap-
propriate hearing upon due notice. Such hearing may be
conducted by an officer or employee of the regional
office, who shall not make any recommendations with
respect thereto. If the Board finds upon the record of
such hearing that such a question of representation ex-
ists, it shall direct an election by secret ballot and shall
certify the results thereof.
In the interests of industrial harmony and in order to affirm
the employees' freedom of choice, to contribute toward the
termination of the alleged "internecine war" between the
Unions, and to effectuate the purposes of the Act, the Trial
Examiner further recommends that the Board conduct an
election in the appropriate single site Friendship unit within
60 days after the posting of the notice provided herein to
3' See The Rushton Company, 158 NLRB 1730, fn 2
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
determine whether the employees in such unit desire to be
represented for the purposes of collective bargaining by Local
587, the Painters, or by no union. In that the Trial Examiner
is recommending an election it is not recommended that the
Respondent be required to bargain collectively, upon request,
with Local 587 or honor and adopt and enforce the contract
between Allied and Local 587 at this time. It is recom-
mended, however, that the Respondent be required to put in
effect immediately such economic terms of said contract as
provide for wages and other benefits, if any, which exceed
those now presently in effect. The backpay claims of the
above-named employees shall be computed on such basis.
However, the Trial Examiner is not recommending that the
provisions of the Local 587 contract be applied retros-
pectively, except as noted for those Allied employees dis-
criminated against, since the Respondent's employees put to
work on February 1, 1970, and thereafter accepted the condi-
tions of employment offered by the Respondent and worked
even though a Local 587 picket line appeared at the Friend-
ship site on February 1, 1970. Thus it would appear that they
chose freely to work under the conditions offered, a right
which the Act protects.
Furthermore, in that no claim has been made for the recov-
ery of dues which Local 587 would have collected had the
Respondent honored the Local 587 contract and in that there
has been no valid reason advanced for allowing recovery of
such dues, the Trial Examiner does not recommend that
recovery be ordered.
The remedy herein recommended is tailored to the peculiar
needs of this case as viewed in the light of the Act's stated
policies.
[Recommended Order omitted from publication.]