Tri State Maintenance Corp.

National Labor Relations Board - Board Decisions

Oct 20, 1967

167 N.L.R.B. 933 (N.L.R.B. 1967)

TRI STATE MAINTENANCE CORP.
Tri State Maintenance Corporation and
Government Service Employees Union , Local 536,
affiliated with Building Service Employees ' Union,
AFL-CIO. Case 5-CA-3503
October 20, 1967
DECISION AND ORDER
On December 19, 1966, Trial Examiner Samuel
Singer issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
The Trial Examiner also found that Respondent
had not engaged in other unfair labor practices al-
leged in the complaint, and he recommended that
these allegations be dismissed. Thereafter,
Respondent, the General Counsel, and the Charg-
ing Party filed exceptions to the Trial Examiner's
Decision and supporting briefs. Respondent also
filed answering briefs to the exceptions filed by
the General Counsel and the Charging Party.'
The National Labor Relations Board has
reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was
committed. These rulings are hereby affirmed, with
the exception noted below.2 The Board has con-
sidered the Trial Examiner's Decision, the excep-
tions and briefs, and the entire record in this case,
and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner only to the
extent that they are consistent herewith.
The maintenance work in many United States
Government buildings is often awarded to inde-
pendent contractors by the Government' s adminis-
trative agency, the General Services Administration
(GSA). Respondent is one of the companies engaged
in the business of furnishing janitorial and building
maintenance services in the Washington, D.C.,
area. In April 1966, GSA invited Respondent,
along with other contractors, to place a bid for the
contract covering maintenance work at the
Veterans Adminstration Building in Washington.
On or about May 17, 1966, Respondent was
awarded the VA Building contract for a 1-year
period beginning on June 1, 1966.3
During the contract year 1965-66, the main-
tenance work at the VA Building was performed by
the Frugal Company under a contract which was
due to terminate on May 31, 1966. Frugal em-
ployed 60 to 70 employees, exclusive of super-
' Respondent has requested oral argument This request is hereby de-
nted because the record , the exceptions , and the briefs adequately present
the issues and the positions of the parties
2 As discussed below , we find that the Trial Examiner erred in striking
certain testimony about statements alleged to have been made by Richard
Turner All of the parties have had an opportunity to present evidence on
matters relevant to the alleged statements , since the Examiner allowed the
167 NLRB No. 140
933
visors, at the building. Six were on the day shift and
the remainder worked at night. All of Frugal's em-
ployees were represented by Government Service
Employees Union, Local 536, the Charging Party
herein, under a board certification which had issued
on February 15, 1966, following a Board-conducted
election. On or about March 28, 1966, Frugal and
the Union entered into a collective-bargaining
agreement which contained, among other things,
a union-security provision.
It is the practice in the building service industry
for a new contractor to hire all the employees of the
building's previous contractor as a group, rather
than on an individual basis, and then to screen out
those whom it does not want. In line with this indus-
try practice, both the GSA and the Union sought to
ensure the continued employment of Frugal's em-
ployees at the VA Building. Respondent, however,
hired only about 20 of the Frugal employees, most
but not all of whom had filed individual applica-
tions, and replaced the rest with employees hired
from outside sources. The central question litigated
at the hearing of this case was whether Respond-
ent's deviation from industry practice and its
failure or refusal to hire Frugal's employees as a
group was discriminatorily motivated by a desire to
avoid bargaining with the Union.
The Trial Examiner found that Respondent had
not violated Section 8(a)(3) of the Act, as alleged.
Although finding that "substantial credible evidence
establishe[d] that Respondent did not look favorably
upon the prospect of dealing with its employees
through a union " and also that "Respondent
departed from prevailing practice under which
a new contractor takes over existing employees as
a group," the Trial Examiner nevertheless con-
cluded that Respondent' s antiunion motivation was
not sufficiently linked to its actions to make out a
case of unlawful group discrimination. He noted
particularly that Respondent had hired all former
employees who filed formal written applications.
While we do not differ with the factual findings of
the Trial Examiner, we do disagree with the conclu-
sions which he drew therefrom and find on the basis
of the totality of circumstances involved herein that
Respondent's failure and refusal to hire the Frugal
employees as a group was motivated by a purpose
to avoid having to deal with the Union and that
Respondent therefore violated Section 8(a)(3).
If Respondent had followed the customary prac-
tice of hiring the former contractor's employees en
masse, it would have become Frugal's successor in
law, and it could have been obligated to recognize
and bargain with the Union.' Respondent's entire
testimony to be adduced at the hearing and did not strike it until after the
close of the hearing Consequently , there is no prejudice in our admitting
the testimony at this time
We take official notice of the fact that Respondent 's contract expired
on May 31 , 1967, and that another company has since taken over the
maintenance work at the VA Building.
' Maintenance , Incorporated, 148 NLRB 1299
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
course of conduct persuades us that Respondent
was aware of this and refused to follow the industry
practice in order to avoid successorship status and
its resulting obligations.
Respondent's intent not to hire most of the Fru-
gal employees because of their union affiliation was
manifested by both the statements and actions of its
representatives. During discussions with GSA offi-
cials, Respondent's spokesmen expressed their an-
tipathy toward the Union, contending that they
should not be forced to negotiate with it since they
already paid above union scale, and hinting that
they might try to stall recognition for 11 months or
so. Respondent's president also stated that he felt
the Company should not be required to employ
union workers. Since all of Frugal's employees
were members of the Union by virtue of a union-
security clause, this was a rather clear indication of
his reluctance to take them over because of their
union membership and the inevitable consequences
of making them his employees.
Respondent's president did tell GSA officials at
one point that he was agreeable to using Frugal's
employees. Yet when the Union sent Respondent
a telegram advising that all Frugal employees were
available for employment and requesting a meeting,
Respondent answered that it doubted that the
Union represented the employees who were to be
employed by it at the VA Building. Respondent's
counsel later told a union official that Respondent
would not hire the Frugal employees in a group.
And despite its assurances to GSA officials that it
would use the employees of its predecessor,
Respondent placed an ad in the newspaper
requesting 100 people, when the work force at the
building was to be considerably less than that
number.
Further evidence of Respondent's plan is con-
tained in testimony which was stricken by the Trial
Examiner. Several employees testified that Frugal's
chief supervisor, Richard Turner, told them at a
meeting that Respondent intended to hire only 22
of the Frugal people and had asked him to make the
selection. (In fact, Respondent did hire only 23 of
Frugal's employees.) The Trial Examiner allowed
the testimony to be adduced subject to a showing
that Turner was Respondent's agent and could bind
it by his statements. But when he issued his Deci-
sion, the Trial Examiner found that the agency rela-
tionship had not been sufficently established, and
'he struck the testimony. The evidence demon-
strates, however, not only that Rspondent used
Turner to distribute application forms to the Frugal
employees, but that it also anticipated and
discussed with him his remaining on as chief super-
visor at the VA building, and that it did in fact hire
him to work for the Company at another building.
These facts convince us that Turner was Respond-
ent's agent with respect to the Frugal employees
before the date of the changeover, even though he
did not actually go to work for Respondent at the
VA Building. As Turner was acting within the
scope of this authority as the agent of Respondent
at the time the statement was made, it should have
been admitted as evidence against Respondent.5
And since the testimony about the statement was
not only corroborated by other evidence, but was
also uncontradicted, we have credited it and con-
sidered it as probative evidence of Respondent's in-
tent.
Consistent with Turner's statement and the other
evidence reflecting Respondent's purpose of avoid-
ing the Union, Respondent eventually hired only 23
of the approximately 70 Frugal employees.
Respondent claims, and the Trial Examiner found,
that despite this, its willingness to hire Frugal em-
ployees is shown by the fact that it hired all those
who submitted formal written applications. The
facts surrounding the application procedures, how-
ever, not only fail to help Respondent's case but, on
the contrary, support the conclusion that it was
-motivated by unlawful considerations in refusing to
hire the Frugal employees as a group.
Despite Respondent's assurances to GSA that it
would employ the Frugal employees, it took no
steps to inform them that they had to file applica-
tions in order to be hired. Nor were they ever told
where they could obtain forms or how and when to
file them. Although application blanks were kept on
a desk in the contractor's office in the building, it
does not appear that employees had much occasion
to go into that office. Most of those who did find out
about the forms were told there were none left. It is
true that more applications were distributed on the
night of May 31, as the employees were leaving for
home. But by then the only time that many of these
people had to submit the completed forms was the
next day, June 1, when Respondent took over the
contract. And on that day, when the employees
showed up at the VA Building, they were merely
told to wait for interviews which never took place.
There could have been no doubt that the Frugal em-
ployees were there to work, since on May 27 the
Union had informed Respondent of their availabili-
ty. Yet, nothing was done to obtain or process their
applications, even though Respondent's president
was present and, by his own admission, needed
many more workers on that first day. In fact, he had
to request the day-shift employees to stay on
through the evening, since he was so short handed.
While the Frugal employees waited for their "inter-
views," a number of outsiders appeared wearing
uniforms supplied by Respondent and went to
work.
5 Cf. NLRB v Reed & Prince Mfg Co, 205 F 2d 131 (C A 1),
Overnite Transportation Company, 157 NLRB 1185, enfd . 372 F 2d 765
(C A 4)
TRI STATE MAINTENANCE CORP. 935
In direct contrast to Respondent's lack of
diligence in providing the majority of Frugal em-
ployees with an opportunity to obtain work with it,
Respondent actively sought out some of the more
skilled workers who were indispensable to it; i.e.,
the elevator operators and day-shift employees. In
fact, some of these apparently went to work without
even first filing applications, and Respondent's pre-
sident admitted that such procedures were occa-
sionally followed. These facts belie Respondent's
contention that the submission of a written applica-
tion was a prerequisite to being considered for em-
ployment. Nor were applications needed for health
or security reasons, since all of Frugal's employees
had clearances which would have allowed them to
work on June 1 and thereafter. By reporting for
work on June 1, after having notified Respondent
through the Union of their availability for employ-
ment, the Frugal employees in fact applied for jobs
with Respondent. Their failure to submit formal ap-
plication forms is immaterial, since they were not
given a reasonable opportunity to do so. By not act-
ing in response to the Union's request to hire them
and to their presence at the job, Respondent refused
employment to the Frugal employees just as if it
had turned down each individually.
On all the evidence, we are persuaded that
Respondent not only refused to hire Frugal's em-
ployees in a group, but that it set about to
discourage and prevent all, but the few it needed,
from gaining access to the application procedures
in order to accomplish its expressed purpose of hir-
ing only a handful of its predecessor's employees so
as to avoid successorship. Respondent had no
economic or other legitimate justification for refus-
ing to hire Frugal employees since it paid the same
wages that would have been required under the
Union's contract and since there had been no com-
plaints about the work of the Frugal employees, but
only about the supervisor, Turner. Thus, we find,
contrary to the Trial Examiner, that Respondent
refused to hire its predecessor's employees as a
group in order to avoid having to recognize and bar-
gain with the Union as the representative of its em-
ployees, in violation of Section 8(a)(3) of the Act.6
There remains for consideration the 8(a)(5) al-
legation which was not included in the charge or the
original complaint but which was first added to the
complaint by amendment after the close of the
hearing.' The Trial Examiner found in accord with
that allegation that Respondent violated Section
8(a)(5) by refusing upon request to bargain with the
Union as the representative of all Respondent's em-
ployees working at the Veterans Administration
Building, excluding office clerical employees,
guards, and supervisors as defined in the Act. The
record discloses that the Union's only bargaining
request was made before Respondent had any em-
ployees at that location. This was on May 27, 1966,
when the Union sent a telegram to Respondent
requesting a meeting "to conclude [a] union con-
tract covering wages and conditions." We find it un-
necessary to determine whether Respondent's
refusal to honor the Union's bargaining demand at
that time gave rise to an 8(a)(5) violation, because
in the particular circumstances of this case we do
not believe that an 8(a)(5) remedial order would be
appropriate in any event. On June 1, the Union
withdrew its earlier request for bargaining, and it at
no time thereafter renewed that request. In fact, it
never even filed charges alleging that Respondent
had refused to bargain with it. On August 17, 1966,
when Respondent made a bona fide offer to the
Union to hire the Frugal employees, there was no
response. Moreover, on May 31, 1967, Respond-
ent's contract expired, and a new contractor took
over the work at the VA Building . Thus, the issue
of 8(a)(5) liability is largely moot since an order
requiring Respondent to bargain with the represent-
ative of its employees at that building would be in-
effective. And to the extent that the 8(a)(5) viola-
tion was alleged by the General Counsel in order to
ensure remedial relief to the former Frugal em-
ployees who were denied employment, our order
remedying the 8(a)(3) violation will accomplish that
result. Because of the foregoing considerations, we
hereby dismiss the 8(a)(5) allegation of the com-
plaint as being unnecessary for our determination.
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(3)
of the Act, we shall order that it cease and desist
therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Inasmuch as Respondent offered all former em-
ployees of Frugal employment on August 17, 1966,
we find that the discriminatory refusal to hire was
remedied as of that date. Therefore, we shall order
backpay from June 1, 1966, to August 17, 1966, for
all those employees of Frugal who occupied such
status on May 31, 1966, and who were not hired by
Respondent on June 1.1 Any employee hired by
Respondent on June 1, who thereafter left the em-
ploy of Respondent or who did not actually begin
"See Piasecki Aircraft Corp v N L.R B , 280 F 2d 575 (C A 3, 1960),
enfg 123 NLRB 348, cert denied 364 U S. 933, K B. & J Young's
Super Markets v N L R B, 377 F .2d 463 (C A 9, 1967 ), New England
Tank Industries , Inc, 133 NLRB 175, enfd 302 F 2d 273 (C.A. 1, 1962)
7 At the hearing, counsel for the General Counsel stated explicitly, in
response to a question put to him by the Trial Examiner , that "we do not
contend that there has been any violation of 8(a)(5) of the Act "
8 Backpay shall be computed at the rate provided in the contract
governing the employee relationship at the time the Respondent acquired
the enterprise Backpay shall further be computed in the manner set forth
m F W Woolworth Company, 90 NLRB 289, with interest added thereto
in the amount and in the manner set forth in Isis Plumbing & Heating Co ,
138 NLRB 716.
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work shall not be entitled to backpay since such em-
ployees were not discriminatees. Any employee
who was hired by Respondent after June 1, but be-
fore August 17, 1966, shall be entitled to backpay
only until the date on which he was hired.
We shall not order Respondent to bargain with
the Union on the theory that it dissipated the
Union's majority by refusing to hire the Frugal
employees," since, as noted, the August 17 offer of
employment cured this violation, and since such an
order would be ineffective in the circumstances of
this case.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By refusing to hire employees of the Frugal
Company as a group, Respondent committed an un-
fair labor practice within the meaning of Section
8(a)(3) and (1) of the Act.
4. The aforesaid labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
5. We do not find that Respondent violated Sec-
tion 8(a)(5) of the Act and the portion of the
amended complaint alleging a violation of that Sec-
tion is hereby dismissed.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respond-
ent, Tri State Maintenance Corporation, Silver
Spring, Maryland, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Government
Service Employees Union, Local 536, affiliated
with Building Service Employees' Union,
AFL-CIO, or in any other labor organization, by
refusing to employ any applicant for employment,
or in any other manner discriminating against any
individual in regard to hire, tenure of employment,
or any terms or conditions of employment because
of membership in, activities for, or sympathies with
any such labor organization.
(b) In any other manner interfering with,
restraining, or coercing applicants for employment
or employees in the exercise of the right to self-or-
ganization, to form labor organizations, to join or
See Piasecki Aircraft Corp v N L R B, supra
"' In the event that this Order is enforced by a decree of a United States
Court of Appeals , there shall be substituted for the words "a Decision and
assist the above-named Union or any other labor
organization, to bargain collectively through
representatives of their own choosing, and to en-
gage in concerted activities for the purpose of mu-
tual aid or protection as guaranteed in Section 7 of
the Act, or to refrain from any and all such activi-
ties, except to the extent that such right may be af-
fected by an agreement requiring membership in a
labor organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as modified
by the Labor-Management Reporting and Disclo-
sure Act of 1959.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Make all former employees of the Frugal
Company at the Veterans Administration Building,
who occupied such status on May 31, 1966, and
who were not offered employment by Tri State
Maintenance Corporation, on June 1, 1966, whole
for any loss of pay until August 17, 1966, to the ex-
tent and in the manner set forth in the section herein
entitled "The Remedy."
(b) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security pay-
ment records, timecards, personnel records and re-
ports, and all other records in the Respondent's
possession necessary for the computation of
earnings and benefits due hereunder.
(c) Post at its offices and premises in Silver
Spring, Maryland, and mail to all former employees
of the Frugal Company at the Veterans Administra-
tion Building, who occupied such status on May 31,
1966, and who were not offered employment by
Respondent on June 1, 1966, copies of the attached
notice marked "Appendix."10 Copies of said notice,
to be furnished by the Regional Director for Region
5, after being duly signed by Respondent's
representative, shall be posted and mailed by the
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to its employees are
customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are
not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 5,
in writing, within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint
herein be, and it hereby is, dismissed insofar as it al-
leges that respondent violated Section 8(a)(5) of the
Act.
Order" the words "a Decree of the United States Court of Appeals En-
forcing an Order "
TRI STATE MAINTENANCE CORP. 937
APPENDIX TRIAL EXAMINER'S DECISION
NOTICE TO ALL OUR EMPLOYEES AND TO ALL
FORMER EMPLOYEES OF THE FRUGAL COMPANY
AT THE VETERANS ADMINISTRATION BUILDING
IN WASHINGTON, D.C.
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT discourage membership in
Government Service Employees Union, Local
536, affiliated with Building Service Em-
ployees' Union, AFL-CIO, or in any other
labor organization, by refusing to employ any
applicant for employment or in any other
manner discriminating against any individual
in regard to hire and tenure of employment, or
any terms or conditions of employment
because of membership in, activities for, or
sympathies with any such labor organization.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees, or ap-
plicants for employment, in the exercise of
their rights to self-organization, to form, join,
or assist the above-named or any other labor
organization, to bargain collectively through
representatives of their own choosing, and to
engage in other concerted activities for the pur-
pose of collective bargaining or other mutual
aid or protection, or to refrain from any or all
such activities.
WE WILL make all former employees of the
Frugal Company who were employed by the
Frugal Company on May 31, 1966, and who
were refused employment by us on June 1,
1966, whole for any loss of pay suffered by
them because of such discriminatory refusal to
hire, until August 17, 1966.
TRI STATE MAIN-
TENANCE CORPORATION
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered , defaced , or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions , they may
communicate directly with the Board ' s Regional
Office, Federal Building, Room 1019 , Charles
Center, Baltimore, Maryland 21202, Telephone
962-2909.
STATEMENT OF THE CASE
SAMUEL M. SINGER, Trial Examiner: The complaint,
issued August 31 on a charge filed June 3, 1966,' alleges
that Respondent violated Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended, by refusing
to hire 53 employees (formerly in the employ of another
employer)2 because of their union membership and activi-
ties. It further alleges that Respondent unlawfully caused
and prolonged a strike of employees since June 1. Hear-
ing on the complaint was held before Trial Examiner
Samuel M. Singer in Washington, D.C., on October 12,
13, and 14. On November 3, the Trial Examiner granted
General Counsel' s motion to reopen the hearing and
amend the complaint to allege that Respondent also vio-
lated Section 8(a)(5) of the Act by refusing to recognize
and bargain with the Charging Party as representative of
a majority of its employees in an appropriate unit.
Thereafter, Respondent filed its answer to the amend-
ment of the complaint None of the parties availed itself
of the opportunity afforded to adduce additional evidence
at a reopened hearing. On November 10, the Trial Ex-
aminer granted Respondent's request to extend the time
for filing its brief to meet the issue raised by the amend-
ment of the complaint. Subsequently, briefs were
received from both sides.
Upon the entire record3 in the case, the briefs, and my
observation of the witnesses, I make the following-
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent, a District of Columbia corporation, with
its office and principal place of business in Silver Spring,
Maryland, is engaged in the business of furnishing jani-
torial and building maintenance services in the District of
Columbia, Maryland, and Virginia. During the past 12
months, a representative period, Respondent received
revenue in excess of $50,000 for such custodial services
rendered in buildings occupied by agencies of the United
States Government, including the Veterans Administra-
tion Building in the District of Columbia (Vermont
Avenue and H Street, N.W.), the only building involved
in this proceeding. I find that Respondent is engaged in
commerce within the meaning of the Act and that it would
effectuate the policies of the Act to assert jurisdiction.
11. THE LABOR ORGANIZATION INVOLVED
The Charging Party is a labor organization within the
meaning of the Act.
111. THE UNFAIR LABOR PRACTICES
A. Certification of the Union as Majority Representa-
tive of Frugal's Custodial Employees at the VA Building"
Prior to June I , ,janitorial and maintenance services at
the Veterans Administration ("VA") Building were per-
Unless otherwise indicated , all date references are to 1966
L Increased to 63 by amendment of the complaint at the hearing
9 As corrected by order on notice of the Trial Examiner dated
November 18
4 The findings in this and subsequent sections are based largely on sub-
stantially uncontradicted testimony and documentary evidence
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
formed by the Frugal Company under a 1-year contract
between Frugal and the General Services Administration
("GSA").5 Following a Board-conducted election, the
Union was certified on February 15 as collective-bar-
gaining representative of Frugal's custodial employees at
that building 6 On March 28, Frugal signed a collective
agreement with the Union including a union -shop clause
requiring union membership after 30 days employment
B. Respondent Is Awarded the Custodial Work at the
VA Building
Around April, GSA invited contractors, including
Respondent, to bid on maintenance in replacement of the
Frugal contract expiring May 31. GSA's bidding instruc-
tions informed prospective bidders that "the present con-
tractor" (Frugal) had a collective agreement with the
Union. The Union also mailed each bidder a copy of its
collective agreement with Frugal, suggesting that it "base
[its] bid upon the cost factors contained in the Union
contract." Viewing Respondent's contract bid as
"possibly" too low, particularly in view of increased labor
costs since the last contract, GSA representatives
questioned Respondent's representatives on their ability
to provide the required services at their bid price.7 Thus,
at a May 5 meeting, GSA officials stated that they
expected the new contractor to perform more satis-
factorily than Frugal, and that, unlike Frugal, he would
have to furnish employee uniforms. When discussion
turned to the Union, Respondent 's spokesmen "seemed
most reluctant" to deal with it, explaining that they paid
"over union scale and don't see why they should be
forced to deal with the union ." Respondent indicated,
however, that it was "agreeable to using employees" of
Frugal and was willing to bargain with the Union "when
approached." In a May 12 telephone conversation,
Respondent's president, Lancaster, assured GSA's
representative (H. W.) Zecher, chief of GSA's Contrac-
tual Services Branch) that Respondent could perform at
the bid price Lancaster " again intimated that they feel
rather strongly on the union situation and that they
should not be forced to employ union workers." He
"[h]inted that perhaps they could, like the incumbent
contractor, stall the union for I I months."
On May 17, GSA awarded to Respondent a contract
for the maintenance of the VA Building to run for 1 year
from June 1. In accordance with prevailing procedure,
Respondent was requested to furnish GSA with certain
information before taking over the job, including
completed security questionnaires and health certificates
for employees.8
The next day (May 18), Wilhelm, GSA's building
manager at VA, discussed with Respondent's representa-
tives details for implementing the contract, including job
requirements and specifications, necessary materials and
equipment, and adequacy of work force. When Wilhelm
asked whether "as customary," the Company was going
to employ "the existing employees," Respondent's
representative stated it would. Respondent also asserted
that it was going to pay its employees union wages. When
Respondent's representative mentioned that he was going
to retain Turner, Frugal's chief supervisor on the job,
Wilhelm objected, since, as he explained at the hearing,
he attributed Frugal's allegedly inadequate performance
to ineffective supervision by Turner. Wilhelm, as other
GSA representatives earlier, stressed the importance of
operating with a sufficient work force to bring the build-
ing "up to the standard level" of cleanliness ,9 suggesting
that in addition to the existing force, Respondent would
do well to hire from the outside to "have a reservoir to
draw from in the event that he experienced any trouble
recruiting for the first night."10 Wilhelm also suggested
that Respondent "come in advance and contact the em-
ployees and let them know that they [Respondent] were
willing to hire them and continue with the work." Both
Wilhelm and GSA official Zecher testified that all Frugal
employees had security and health clearances permitting
them to continue to work at the time of the changeover on
June 1. Zecher also indicated that existing employees
would normally fill out new security questionnaires bring
information "up to date and to weed out those whose con-
ditions might have changed during the year."
C. Respondent Distributes Application Blanks to the
Frugal Employees
After the May 17 contract award, Respondent ar-
ranged with Turner, Frugal's then chief supervisor at the
VA building, to distribute employment applications to the
Frugal employees." In addition, Respondent advertised
for help in a newspaper.12 Although some Frugal em-
ployees signed and turned in applications to respondent
prior to May 3 1, the great bulk of them had not done so
by that time either because of inadequate distribution or
5 GSA contracts out such services for various governmental installa-
tions in the Washington area, usually for a year at a time GSA representa-
tives maintain offices in buildings and periodically check or inspect these
contract services
6 5-RC-5437, 40 of approximately 61 eligible voters participating in
the election voted for and I against the Union
7 According to G C Exh 11, Respondent 's bid price was $14 ,023 per
month , frugal's contract price was $13,000 per month The Union's col-
lective agreement with Frugal required substantial wage raises on June 1
(e g , waxers ' rates increased from $ 1 45 to $1 67 per hour)
8 Frugal employees already had "up to date health cards and police
clearance "
° Wilhelm testified that while Frugal had an average of 48 night em-
ployees (Frugal employed 6 day employees ), Respondent should increase
it to 62 to 72 "to get the job done "
10 Wilhelm testified " I have been in this business quite a long time and
usually the first night is a problem You have to set up your crews "
11 About the same time, Respondent 's President Lancaster discussed
with Turner the possibility of remaining as chief supervisor when Lan-
caster took over on June 1 As already noted, however, GSA stren-
uously objected to Turner 's retention Lancaster 's testimony establishes
that, yielding to GSA's objections , he appointed Stevenson to the posi-
tion
In view of the foregoing and the fact that there is no substantial credible
evidence that Turner had acted as Respondent 's agent for any purpose
other than as a conduit to pass out job applications , I now stoke out the
testimony of employees (which I permitted General Counsel to adduce
subject to a showing of agency ) to the effect that prior to June I, Turner
had told a meeting of Frugal employees that Respondent was going to hire
only 22 of them , and that Respondent instructed him to make the selec-
tions but that he (Turner ) declined to do so because "he didn't think that
it was fair "
'L It is unnecessary to pass on General Counsel 's motion in his brief to
correct the record to show that the advertisement was placed on May 20
rather than May 28 Although it is apparent from the context of Lan-
caster's testimony (including the fact that the advertisement "ran for
several days") that the advertisement first appeared before May 28, the
specific date is immaterial
TRI STATE MAINTENANCE CORP. 939
insufficient supply of employment application forms.13
Lancaster -credibly testified that because of the poor
response, he arranged for another distribution of applica-
tions on May 31 and also instructed supervisors to inter-
view job applicants that day. There is no credible, sub-
stantial evidence that any employee who wanted an appli-
cation on May 31 was unable to obtain one 14
D. Respondent's Refusal to Recognize and Bargain
with the Union
Meanwhile, on May 27, the Union had sent a telegram
to Respondent requesting a meeting "to conclude [a]
union contract covering wages and conditions," also ad-
vising that all Frugal employees "are qualified and availa-
ble for employment" by Respondent. On May 3 1,
Respondent's attorney (Ross O'Donoghue) answered:
You seem to suggest, although you did not ex-
pressly say so, that your union has been authorized
to represent the corporation's employees who will be
working at the Veterans Administration Building.
We very much doubt that this is the case, but we
will be very glad to consider any evidence of your
representation. If you can establish your claim, no
doubt the corporation will be required to bargain
with you, but you can understand the necessity of
your satisfying this prerequisite before acceding to
your request.
Meanwhile, if you wish an opportunity to furnish
the corporation with any information, please get in
touch with me as its attorney.
On June 1, Thomas Donahue, assistant to the president
of the Local's International, discussed with Company At-
torney O'Donoghue the latter's May 31 letter. When
O'donoghue asked Donahue "for some evidence or proof
that the Union did in fact represent" Respondent's em-
ployees, Donahue pointed to the February certification
of the Union after Board election, stating that "the certifi-
cation would carry over based on the employment by Tri
State of Frugal employees." The parties discussed the
custom and practice in the trade for a new contractor to
take over the employees of the former contractor. When
Donahue asked if Respondent intended to hire the Frugal
employees, O'Donoghue replied, "Not as a group," but
that Respondent would consider them on an individual
basis and "hire any of them that apply for work that are
qualified."15 Later that day (June 1), Respondent filed
with the Board a petition for an election. "'
Donahue immediately reported the substance of the
above conversation to Union President Sheehan. Later
the same day (June 1), the Union wrote Respondent two
letters, stating in one that "because of your failure to offer
13 Ford , Frugal's owner, credibly testified that as early as mid - May ap-
plications "were just laying around for the employees to pick up."
Although Lancaster testified that he "heard a rumor" that the Union had
advised employees "not to fill out the applications until we dealt with
them ," the credible evidence shows the contrary, viz, that the Union in-
structed its members to file applications despite Respondent 's refusal to
hire them as a group
11 Lancaster testified that he instructed his subordinates to "hire any-
one you can" because of the "distressed" labor market . He cited as exam-
ple the fact that although he advertised for 100 employees, only 15 or 20
reported to work on June I
15 The foregoing findings are based on a synthesis of the mutually con-
sistent and substantially undisputed testimony of O'Donoghue and
Donahue
i6 The petition was thereafter dismissed because of the pendency of the
unfair labor practice charge herein
17 Respondent had four supervisors on June 1, it is unclear whether
Frugal 's third night -shift supervisor ( Percy Whitaker) was among these
employment to Union members employed at the VA
Building as we thought you would and as is the customary
in the industry, we now find we don't represent a majority
of employees and withdraw our request for recognition at
this time"; and in the other requesting recognition and
bargaining as representative of "only" the day-shift em-
ployees.
E. Respondent's Unilateral Offers to Employ Frugal
Employees
Respondent retained Frugal's day supervisor (McGee)
and at least two (Covington and Morrow) of Frugal's
three night supervisors in taking over the VA Building
on June 1.17 As already noted, it replaced Frugal's chief
supervisor (Turner) with Stevenson. Another company
representative, Steube, helped start Respondent's opera-
tions at the building.
The great majority of Frugal's employees (as those of
other building maintenance contractors) worked on the
night shift.18 The six day-shift employees reported to
work as usual on the morning of June 1, 19 at least some
working the full day without filling out applications.20 The
employees (both day- and night-shift) were offered the
rates applicable under the Union's contract with Frugal
had the latter received the GSA contract instead of
Respondent.21 Some were told they would also receive
their former fringe benefits , including paid vacations, life
insurance , and retirement. When one night-shift em-
ployee (Wallace) asked her interviewer (Steube) "why he
didn't want union since he promised all of the benefits,"
the latter replied "he didn 't mind us belonging to the
union but that the company was not going to be union
because it was too much extra book work." Another em-
ployee (day-shift employee Baker) was told that although
he would be paid "union" wages, this would not be in
writing.
F. The Strike
The night-shift employees here normally start at 5:30
p.m. By leaflet distributed on May 31, the Union asked
them (as well as day-shift employees) to meet at 4.30 p.m.
the next day, in front of the VA Building. Union Presi-
dent Sheehan credibly testified, corroborated by the
leaflet, that a purpose of the meeting was to discuss
Respondent's failure to negotiate a collective agreement,
and that another purpose was "to instruct members to
apply for work with the Company." After this meeting,
some employees applied for work; while others, appar-
ently already hired, went to work. Chief Supervisor
Stevenson, who had been instructed by Company
President Lancaster to interview job applicants, was not
on the scene at this time, having left at 4 p.m Instructed
1e In the 2-week payroll period ending May 31, Frugal had 74 em-
ployees of whom only 6 worked on the day shift Many night-shift em-
ployees were " moonlighters ," working at other jobs during the day It is
not clear whether all 68 night-shift employees during the 2-week period in
question actually worked on the Job on May 31
19 One of the part-time employees (Mathews ) quit voluntarily ap-
parently after hearing the rumor that Respondent would not hire part-time
day help
20 Lancaster testified that although "normally we have the application
filled out ahead of time there have been exceptions where some people
have worked for maybe a day and then they turned them in at the end of
the day "
21 As previously noted (fn 7), the Union's collective agreement with
Frugal called for wage increases on June 1 Lancaster testified that the
Company had expected to pay "union wages," notwithstanding GSA's
warning that its bid "was surprisingly low" since "we thought GSA was
wrong "
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by supervisors to wait around for interviews, the more
than 50 employees milled around in and outside the
building. When Union Representative Tucker sought
to enter the building between 5:30 and 6 p.m. to speak
with employees, he was refused admittance by GSA
guards because the Company refused to approve his
admission.22
Around 6 p.m., groups of individuals (a total of 15 to
20) not formerly employed by Frugal arrived at the VA
Building in Tri State uniforms. Stevenson and Steube en-
tered the building with them and put them to work.
Thereupon, employees gathered outside the building
started to picket, carrying "On strike" signs, singing,
yelling, and shouting "scab" at employees crossing their
line. Approximately 60 employees participated in the
strike and picketing, among them the 5 day-shift em-
ployees (i.e., Odell and Caradio Adams, Clarence Baker,
Thelma Bell, and William Fairley). Forty-seven em-
ployees - both former Frugal employees and new em-
ployees - worked on June 1.
Picketing continued until the middle of July. On the
second on third day of the strike, the Union distributed a
leaflet "To The Public" pointing out that the Union had
won a Board-conducted election; that, "contrary to the
general practice in our industry," when Respondent took
over the building it "failed to hire the bulk of the" custodi-
al employees; and that those who had been hired were
striking "for better wages and for job security," as well as
because of Respondent's discriminatory failure to hire all
employees. On June 9, Respondent distributed a letter to
its employees setting forth company policy on wage in-
creases, free uniforms, pension plan, and paid holidays
and vacations.
G. Respondent's Employment of Former Frugal Em-
ployees
All former Frugal employees who had filled out appli-
cation forms - whether or not they participated in the
picketing - were hired by Respondent. One day-shift em-
ployee (Bell) returned on the second or third day of the
strike, two others (Caradio and Odell Adams) shortly
thereafter, and the remaining two (Baker and Firley) at
the end of the picketing.23 On August 17, Respondent
wrote the Union that since it had recently learned (in the
course of investigation of the unfair labor practice
charges herein) that some former Frugal employees had
"the impression that we were unwilling to hire them," it
wanted now "to assure you that such is not the case and
that we stand willing at the present time to hire any per-
son who was working for The Frugal Company ... dur-
ing the week ending May 31, 1966, who can meet the
requirements for health and security clearances and who
has not since taken another job elsewhere. Any such per-
son who files an application within the next 10 days will
be immediately considered and, if found qualified, will be
given employment by this Company."
Conclusions
1. The alleged 8(a)(3) violation
As General Counsel points out, the gravamen of the
Section 8(a)(3) portion of the complaint-that Respond-
ent failed and refused to hire Frugal's night-shift em-
t2 At this time Company President Lancaster was on the scene, await-
ing arrival of his supervisors
23 1 do not credit employee Molten's testimony that Supervisor Morrow
told her around 8 p in on June 1 that if she "changed [her] mind about
resigning from the Union [she ] could get [her] job back " Molten did not
ployees because it desired to avoid bargaining with the
Union - turns on the question of motivation. In support
of the contention that Respondent's conduct was dis-
criminatorily motivated, General Counsel relies heavily
on the fact (I) that Respondent opposed dealing with the
Union and, indeed, as it told GSA officials, it felt "rather
strongly" on this point; and (2) that Respondent failed to
follow the trade practice of hiring its predecessor's em-
ployees as a "group "
The substantial credible evidence establishes that
Respondent did not look favorably upon the prospect of
dealing with its employees through a union, and also that
in insisting on hiring Frugal employees on an individual
basis (and by separate written application) Respondent
departed from prevailing practice under which a new con-
tractor takes over existing employees as a group (and
only thereafter - when appropriate - screens them for
health, security, or otherwise). The existence of these two
factors, however, does not compel the conclusion that
Respondent's conduct was discriminatorily motivated.
Although evidence of antiunion hostility is a relevant con-
sideration in assessing employer motivation in failure to
hire, it is not alone sufficient upon which to base a finding
of unlawful action. There must be evidence linking the ac-
tion to the antiunion or unlawful motivation. See Earl
Fisher Manufacturing Company, 148 N LRB 1587, 1596.
Nor was Respondent's failure to follow the customary
hiring practice crucial on the issue of motivation. The
worst that can be said about Respondent's conduct is that
it was unjustifiable, but action motivated even by caprice
is not proscribed by the statute. An employee may be
refused employment or discharged "for a good reason, a
poor reason, or no reason at all, so long as the terms of the
statute are not violated." N.L R B. v. Condenser Cor-
poration of America, 128 F.2d 67, 75 (C A. 3). On the
other hand, the record here affirmatively shows that
Respondent hired all former Frugal employees who filed
applications as new employees'24 even prounion picket-
ing demonstrators As Respondent's brief (p. 7) points
out, there is no credible evidence that any "question was
ever raised as to their union affiliation or activities."
Respondent insisted only on the filing of individual writ-
ten applications as a condition to employment
I conclude that the preponderance of evidence does not
support the allegation in the complaint that Respondent's
failure and refusal to hire the former Frugal employees
was violative of Section 8(a)(3) and (1) of the Act
2. The alleged 8(a)(5) violation
Whether Respondent unlawfully refused to recognize
and bargain with the Union - unlike the question of
whether it discriminatorily refused to employ the Frugal
employees - does not turn on motivation. Involved is the
employer's statutory obligation to meet and confer with
the majority representative of its employees on terms and
conditions of employment. In such a situation "prohibited
conduct cannot be excused by a showing of good faith"
(international Ladies' Garment Workers' Union,
AFL-CIO v. N.L R.B., 366 U.S 731, 739). See also Old
King Cole, Inc. v N.L.R.B., 260 F.2d 530,532 (C.A. 6).
There is no question that the Union was the majority
representative of Frugal's employees in May since it had
impress me as a credible witness Molten admitted that she did not fill out
an application form
21 Presumably all Frugal employees were union members by virtue of
the union-security provision in the union contract requiring union mem-
bership after 30 days of employment
TRI STATE MAINTENANCE CORP. 941
been certified upon the basis of a Board election in
February. Under settled Board and court law, this certifi-
cation survived Respondent's takeover of the custodial
operations in June, absent special circumstances not here
present. As stated in Johnson Ready Mix Co., 142
NLRB 437,442:
It is well settled that a Board certification must be
honored for a reasonable period of time, normally at
least 1 year , in the absence of unusual circumstances.
A mere change in ownership in an "employing ' indus-
try" is not such an unusual circumstance as to affect
the force of the certification for it is equally well set-
tled that where the "employing industry" remains es-
sentially the same ... the certification continues ef-
fective for the normal operative period and the
obligation to bargain devolves upon the successor
employer. [Footnotes omitted.]
See also N.L.R.B. v. Hoppes Manufacturing Company,
170 F.2d, 962, 964 (C.A. 6); N.L.R.B. v. Auto
Ventshade, Inc , 276 F.2d 303, 304-305 (C.A. 5),
N.L R B v F. C. McFarland and S. R. Hullinger, 306
F.2d 219, 220 (C.A. 10). The crucial question here is
whether the "employing industry" remained essentially
the same after Respondent's June 1 takeover.
In my view, the principles enunciated in Maintenance,
Incorporated, 148 NLRB 1299, and ChemrocI. Corpora-
tion, 151 NLRB 1074, are dispositive in this case. In
Maintenance, as here, the respondent was the successful
bidder for a contract to furnish custodial services to a
governmental agency. Although the new employer did
not acquire any of the former employer's physical assets
or retain the former supervisors, he continued to perform
substantially the same operations, serving the same facili-
ties in substantially the same manner , and employing em-
ployees of the former employer. In holding that the
respondent 's refusal to honor the certification or to recog-
nize the .union in absence of new proof of majority was a
violation of Section 8(a)(5), the Board stated ( 148 NLRB
at 1302)•
[I]n the instant case there can be no genuine doubt
that the "employing industry " remained the same. It
is clear that when Respondent entered its bid for the
maintenance work , under the practice of periodic
renewals of the maintenance contract , it was bidding
to conduct the same servicing operation that was for-
merly performed by [the predecessor employer].
Therefore , it is clear to us that Respondent as-
sumed the obligation the Act imposes upon an em-
ployer to recognize and deal with its employees'
majority representative when it selected as its work
force the employees of the previous employer to per-
form the same tasks at the same place as they had in
the past . These employees had already expressed
their choice of bargaining representative , and con-
tinued to constitute an appropriate bargaining unit.
As the certification year had not yet expired at the
time the Union sought recognition and bargaining,
the presumption of the Union 's continuing majority
status applied and was not then vulnerable to
atack....
We are confirmed in our opinion that Respondent
is under an obligation to bargain by a consideration
of the consequences of finding otherwise . It would be
virtually impossible for employees to achieve collec-
tive-bargaining rights in an employing industry which
is periodically subject to a possible change of em-
ployers if with every change the employees must
again resort to the Board ' s processes in order to
demonstrate anew their desire to be represented by
their formerly certified bargaining representative.
[Footnotes omitted.]
In Chemrock, the Board applied these principles to an
employer refusing to hire his predecessor 's employees.
Tere the respondent , as purchaser of a plant , continued to
operate it in substantially the same manner as the seller.
Although retaining the former production employees, he
refused to employ the former truckdrivers and deal with
the majority representative of the drivers. When the
drivers rejected the respondent's request to deal with it
individually as "free agents," respondent hired new
truckdrivers. The Board concluded that although the
respondent 's conduct (including an offer of lower wages
to the drivers) was not discriminatorily motivated in
violation of Section 8(a)(3), it nevertheless constituted a
Section 8 (a)(5) violation of the obligation to bargain. Re-
jecting the contention that the respondent was under no
duty to recognize and bargain with the Union as majority
representative of the drivers because they never became
its employees , the Board stated ( 151 NLRB at 1078,
1080):
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 em-
ployed by the seller of the enterprise must be re-
garded as "employees " of the purchaser as that term
is used in the Act. Such individuals possess a sub-
stantial interest in the continuation 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 [313 U.S.
177]. The particular individuals involved here were
unquestionably "employees" of the enterprise at the
time of the transfer of plant ownership. The work
they had been doing was to be continued without
change. Clearly employees in such a situation are en-
titled to seek through bargaining to protect their
economic relationship to the enterprise that employs
them.
The record clearly shows ... that all five of the
drivers were members of the Union and that the
Respondent was fully aware of their membership and
of their designation of the Union as their bargaining
representative in an appropriate unit . Moreover, the
drivers, by their insistence that the Respondent deal
with the Union's business representative, clearly
demonstrated their continued adherence to 'the
Union when the Respondent, immediately before it
took over the operations of the plant , sought to
negotiate with them directly the terms and conditions
of their continued employment. The drivers, as we
have found above, were Respondent's employees
within the meaning of the Act, and the Union
represented all of them. The Respondent's failure to
bargain with the Union upon request, its unilateral
change in the wage rates offered the drivers, and its
dealing individually with the drivers thus constituted,
we hold, violations of Section 8(a)(5) of the Act.
See also Martin Marietta Corp., 159 NLRB 905, where,
in a somewhat different context, the Board held a succes-
sor employer in violation of Section 8(a)(5) by reason of
staffing the purchased plant with employees of the seller
without prior consultation with a certified union and
without regard to employees' seniority. The Board there
stated, "where, as here, only a substitution of employers
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
took place at the time of the sale and, at least for a time
the plant operated as a going concern, we conclude that
employees at the plant from whom [the successor] ob-
tained its work force were entitled to be represented by
their union in the selection process." (159 NLRB at 907.)
It is clear from these principles that the "employing in-
dustry" here remained substantially the same after
Respondent's acquisition of the VA Building operation
on June 1. As in Maintenance, Respondent continued to
furnish - without interruption - the same custodial work,
§erving the same facilities-for the same customer in the
same manner, during the same hours. Prior to the change-
over, all Frugal employees indicated (through the
Union's letter of May 27) that they were "available for
employment" for Respondent. Respondent retained prac-
tically all of Frugal's supervisors and hired all Frugal em-
ployees filing applications and willing to work as new
employees. 25 It continued to give its "new" employees
the Frugal wage rates and fringe benefits. That Respond-
ent did not in fact hire a majority of the Frugal em-
ployees is, under the Board's Chemrock doctrine, not
dispositive. As "employees of the enterprise" at the
changeover, the Frugal employees must be regarded in
law as "employees" of Respondent "as that term is used
in the Act." (151 NLRB at 1078.) Moreover, as in
Chemrock, Respondent itself "recognized the [em-
ployees'] close relationship to the enterprise" by inviting
all Frugal employees to file job applications. Indeed, the
industry here involved is one in which changes in manage-
ment are frequent and routine and it is the rule rather
than exception for a new employer to acquire the work
force of his predecessor "in toto." 26 "Clearly employees
in such situation are entitled to seek through bargaining
to protect their economic relationship to the enterprise
that employs them." Chemrock, 151 NLRB at 1078.
I conclude that the employing enterprise remained sub-
stantially the same after Respondent operated the VA
Building on June 1; that Respondent was a "successor"
employer of Frugal at the jobsite; and that by refusing to
honor the Union's certification for its usual operative
period which, in the absence of unusual circumstances, is
1 year, Respondent violated Section 8(a)(5) and (1) of the
Act.27
Respondent's statutory obligation to deal with the
Union did not necessarily obligate it to assume Frugal's
contractual commitments to the Union. Nor did such
obligation preclude it from rejecting Frugal employees for
nondiscriminatory reasons, including inability of em-
ployees to obtain security or health clearance.28 But
Respondent "was not free to ignore [the employees']
statutory representative in determining which employees
were to retain their jobs." Martin Marietta Corporation,
159 NLRB 905, 907-908. The deprivation of union
representation to Frugal employees at the time of the
changeover - perhaps a time they most needed it - con-
stituted a substantial impairment of basic employee rights
under the Act.
In the circumstances I do not regard the Union's letter
of June 1, withdrawing its May 27 recognition request as
fatal. It is clear that that letter was in response to
Respondent's May 31 letter rejecting the Union's request
for recognition and bargaining.2i' Apparently, the Union
was of the mistaken view that its loss of numerical
majority , by reason of Respondent's failure to hire the
Frugal employees as a group, resulted in a loss of its
legal majority. However, as noted, under the Board's
"employing industry" doctrine a successor's failure to
retain his predecessor's employees does not operate to
deprive those employees of the benefit of their collective-
bargaining representation. It is incumbent upon the
successor to negotiate with the bargaining representative
of the predecessor's employees concerning job retention.
The Union's ill-advised letter of June 1 does not require
finding that upwards of 50 Frugal employees forfeited
their protection under the statute, particularly where, as
here, the employer took no action to its prejudice based
upon the letter, having repudiated its statutory obligation
to deal with the Union before the Union wrote the letter
and Respondent received it.3°
For all of the foregoing reasons, I conclude that the cer-
tification of the Union was binding upon Respondent and,
therefore, that Respondent's refusal to recognize and bar-
gain with the Union and its unilateral dealings with
former Frugal employees violated Section 8(a)(5) and (1)
of the Act.31
25 In brief ( p 7), Respondent asserts that it retained 23 former Frugal
employees
26 Thus , Ford, owner of Frugal , testified that on the 30 or 40 occasions
he had taken over a contract for the maintenance of a government building
(including the building here involved ), he always acquired the previous
contractor ' s rank-and -file employees Wilhelm , GSA's building manager,
testified that the new contractor "usually" takes over "the old force in
toto ," explaining "that has been the common practice " And Zecher, chief
of GSA' s Contractual Services Branch , indicated that as far as he knew
"normally the contractor does take over the employees of the old contrac-
tor Those who are unsuited for his work he weeds them out at a later
date "
27 Moreover , for reasons stated in Chemrock, Respondent 's conduct in
seeking to deal with the Frugal employees individually and in dealing with
them regarding wages , benefits , and working conditions constituted a
further violation of Section 8(a)(l) As stated in Chemrock , " Having itself
elected to deal with the employees on matters properly a subject for
collective bargaining , Respondent could not at the same time unlawfully
disregard the employees ' statutory right to bargain through their then cur-
rently duly designated bargaining representative Respondent ' s insistence
upon bypassing the Union and dealing with the employees directly and,
even more so, its flouting of the employees' expressed desire to be
represented by the Union in such negotiations , constituted , it is found, a
clear infringement of the employees ' Section 7 rights , and as such was
violative of Section 8 (a)(I) " (151 N LRB at 1081 )
28 The record establishes , however , that the absence of such clearance
was no obstacle to employment of any Frugal employee All had prior
clearance and, under customary procedure, all could have reported to
work (as, indeed, did those who were hired) subject to new clearance
while on the job
29 1 reject Respondent's contention in its brief (pp 14-15) that its May
31 answer was "not a refusal to bargain but a request for information"
as to the Union's majority The contention appears to be a strained if not
unreasonable interpretation of that letter Respondent admits (Br p 2)
that it "knew that the employees of Frugal at the site were represented
by" the Union
10 Company President Lancaster testified that he received the Union's
June 1 letter between June I and 3
11 The complaint alleges that five named employees of Respondent
"have engaged in a strike which was caused or prolonged" by Respond-
ent's alleged unlawful refusal to hire other Frugal employees The record
shows that the five were Frugal day-shift employees hired by Respondent
as new employees, and that after working the day shift on the first day of
Respondent's operations (June I), they struck Respondent along with the
night-shift employees In view of the findings of violations made herein
and the comprehensive remedial order recommended, it is unnecessary to
make any finding respecting the nature and purpose of the strike, nor the
manner in which such strike affected the status of the former Frugal em-
ployees Were it necessary, however, to make such findings, I would find
that since at least one of the objects of the strike (as evidenced by the
Union's strike leaflet, Resp Exh 1) was to protest Respondent's unlawful
refusal to meet and negotiate with the Union, the strike was from its incep-
tion an unfair labor practice strike
TRI STATE MAINTENANCE CORP.
CONCLUSIONS OF LAW
I Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All employees of Respondent working at the
Veterans Administration Building in Washington, D.C.,
excluding offfice clerical employees, guards and super-
visors as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
4. At all times material herein, the Union has been the
exclusive bargaining representative of the employees in
the aforesaid unit within the meaning of Section 9(a) of
the Act.
5 By refusing to bargain with the Union upon request
concerning the continued tenure of employment and
terms and conditions of employment of the employees in
the aforesaid bargaining unit; and by bypassing the Union
and dealing directly with employees concerning matters
properly the subject of collective bargaining, in deroga-
tion of the employees' Section 7 rights, Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
6. The aforesaid labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
7. Respondent did not violate Section 8(a)(3) and (1)
of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
The remedial action which will be ordered here com-
ports with that established by the Board in Chemrock,
supra, 151 NLRB 1074. In addition to directing the
respondent in that case to bargain with the union concern-
ing the wages and terms and conditions of employment of
the predecessor's employees (five truckdrivers), the
Board ordered the respondent to make the employees
whole for any losses attributable to the respondent's un-
lawful conduct. The Board stated (151 NLRB at
1081-82):
[I]t is clear that if the Respondent had honored its
bargaining obligation and not infringed upon the em-
ployees' statutory rights, as found above, the drivers
would not have been terminated without the protec-
tion afforded them through collective bargaining with
their union about their wages and the continuation of
their employment. They would have retained their
jobs at least until the Respondent had completely ful-
filled its bargaining obligation, and it is well within
the realm of possibility that as the result of such bar-
gaining they might not have been terminated at all.
Effectuation of the purposes of the Act requires that
employees whose statutory rights have been invaded
by reason of the Respondent's unlawful action, and
who have suffered loss of employment by reason
thereof, shall if possible be restored to the employ-
12 G C Exh 8-Frugal's payroll for the 2 weeks ending May 31 -does
not list two of the employees named in the complaint (Nora Wilkerson and
Coretha Mae Wren ) In addition , there ate variations in spellings of names
(e g . "Bewington " and "Blount " on Exh 8 and " Billington" and "Blunt"
943
ment status they enjoyed prior to such unlawful ac-
tion. The Respondent in this case has continued to
operate the enterprise in the same manner as its
predecessor, and to use the services of employees in
the work which its terminated drivers performed.
Accordingly we shall order the Respondent to offer
the drivers reinstatement to their former or substan-
tially equivalent employment, without prejudice to
their seniority and other rights and privileges, and to
make them whole for any loss of earnings suffered as
a result of the Respondent's unlawful action. as it is
speculative, and cannot be determined, what rate or
rates of pay might have governed their employment
had the Respondent fulfilled its obligation to bargain
with their representative, and as in any event their
existing rate could not have been changed until and
unless the Respondent has fulfilled its bargaining
obligation, we shall direct that backpay due them
shall be computed at the rate provided in the contract
governing their employee relationship at the time the
Respondent acquired the enterprise. Backpay shall
further be computed in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289 ... with in-
terest added thereto in the amount and in the manner
set forth in Isis Plumbing and Heating Co., 138
NLRB 716. [Footnotes omitted.]
The reinstatement and backpay order recommended
herein shall apply to all former Frugal day- and night-shift
employees who occupied the status of employee on May
31.32 Respondent shall dismiss, if necessary, any em-
ployees presently employed at its VA Building not for-
merly employed by the predecessor employer (Frugal), to
provide employment for such former Frugal employees
accepting such offers of employment by Respondent
under this Rcommended Order.
The record indicates that many former Frugal em-
ployees (including the day-shift employees) have already
complied with Respondent's insistence that they file in-
dividual written applications as new employees and that
they thereupon received employment as new employees.
Since, as the Board found in a comparable situation in
Chemrock, all former Frugal employees were entitled to
retain their former positions "at least until Respondent
had completely fulfilled its bargaining obligation" (151
NLRB at 1082), Respondent shall restore to all such
hired employees all rights and privileges (including
seniority) that they had enjoyed as employees under their
employment with Frugal as provided "in the contract
governing the employee relationship at the time Respond-
ent acquired the enterprise" (151 NLRB at 1082), until
these rights and terms of employment may be changed as
the result of collective bargaining between Respondent
and the Union.
The record further shows that on August 17 Respond-
ent notified the Union that it was "willing" to hire all
other former Frugal employees who agreed to file written
application as new employees. Since such offer did not
constitute valid and unconditional offers of reinstatement
to former or substantially equivalent employment,
Respondent shall offer employment to all such Frugal
employees in the manner provided herein.
[Recommended Order omitted from publication.]
in the complaint) Under the circumstances, the order herein will not list
all affected former Frugal employees, the identity of whom may readily be
determined during the compliance phase of this proceeding