White Oak Park

National Labor Relations Board - Board Decisions

Feb 29, 1952

98 N.L.R.B. 376 (N.L.R.B. 1952)

376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WHITE OAK PARK, AETNA CONSTRUCTION, INC., BEN WEINGART AND
Louis H. BOYAR AND WILBER F. MERRICK
LOCAL No. 300, INTERNATIONAL HOD CARRIERS , BUILDING AND COMMON
LABORERS UNION OF AMERICA, A. F. OF L. and WILBER F. MERRICK.
Cases Nos. 21-CA-866 and f1-CB-288. February 29,1952
Decision and Order
On July 13, 1951, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent Employers and the Respondent Union had engaged in
and were engaging in certain unfair labor practices, and recommend-
ing that they cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter the Respondent Employers and the Respondent
Union filed exceptions to the Intermediate Report and supporting
briefs. The Respondent Employers also requested oral argument.
The request is denied as the record, in our opinion, adequately pre-
sents the issues and the positions of the parties.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner to the extent, and with the modifications,
indicated below.
1. We agree with the Trial Examiner that in determining the com-
merce question in this case the Board should consider in the aggre-
gate the operations of Aetna Construction, Inc., White Oak Park,
Westchester Park, and Lakewood Park. These corporations, all oper-
ating in the construction industry, are controlled by Respondent Indi-
viduals Weingart and Boyar,' and some transfer of employees between
the corporations has occurred. Upon the basis of the aggregate
purchases in 1950 of these four corporations, set forth in the Inter-
mediate Report, we find that the Respondent Employers are engaged
in commerce within the meaning of the Act. We further find, in
view of the fact that in 1950 these corporations purchased within the
State of California goods originating outside the State which
amounted in value to more than $1,000,000, that it will effectuate the
purposes of the Act to assert jurisdiction in this case.2
'\e'amend the Intermediate Report to find that Weingdrt and'Bbyar own two -thirds
of the capital stock of Lakewood Park.
2 See Galyan's Super Market, Inc., 92 NLRB 298; Paul W. Speer, Inc., 94 NLRB 317;
Dorn's House of Miracles, Inc., 91 NLRB 632.
98 NLRB No. 60.
WHITE OAK PARK 377
2. We agree with the Trial Examiner that Wilbur F. Merrick was
discriminatorily discharged because he would not join the Respond-
ent Union. We do not agree entirely with the Trial Examiner's find-
ings of responsibility or his recommended remedy for this unfair
labor practice.
As the Respondent Individuals Weingart and Boyar were not served
with a copy of the charge in this proceeding until more than 6 months
after the conduct occurred which is charged as an unfair labor prac-
tice, we do not adopt the Trial Examiner's findings and recommenda-
tions concerning them. In our opinion Section 10 (b) of the Act
requires us to dismiss the complaint as to Weingart and Boyar .3 We
find, however, that the Respondent Employer White Oak Park, the
corporation which employed Merrick at the time of his discharge, and
the Respondent Employer Aetna Construction, Inc., a corporation
which operates in the same industry and under the same control as
White Oak Park, are responsible for the unlawful discharge of Mer-
rick and have thereby violated Section 8 (a) (3) and 8 (a) (1) of
the Act. We also find that the Respondent Union by causing the
unlawful discharge of Merrick violated Section 8 (b) (2) and 8
(b) (1) (A) of the Act.
We shall order the Respondent Employers White Oak Park and
Aetna Construction, Inc., to offer Merrick immediate and full rein-
statement to his former position or, if it is not in existence, to one
substantially equivalent, without prejudice to his seniority or other
rights and privileges.4 We shall order the Respondent Employers
White Oak Park and Aetna Construction, Inc., and the Respondent
Union jointly and severally to make Merrick whole for any loss of pay
he may have suffered by reason of the discrimination against him by
payment to him of a sum of money equal to that which he normally
would have earned from the date of his discharge to the date of the
Respondent Employers' offer of reinstatement, less his net earnings
during said period.5 The Respondent Union may terminate its lia-
bility for further accrual of back pay to Merrick by notifying the
Respondent Employers White Oak Park and Aetna Construction,
Inc., in writing that it has no objection to Merrick's reinstatement.
The Respondent Union shall not thereafter be liable for any back pay
accruing after 5 days from the giving of such notice. Back pay shall
be computed in the manner set forth in the Intermediate Report.
, We do not here pass upon the question of the possible liability of Weingart and Boyar,
in their capacities as successors to white Oak Park and Aetna Construction, Inc , to effec-
tuate the Order issued herein against the latter.
4 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65
NLRB 827.
1 Crosset Lumber Co, 8 NLRB 440.
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
1. The Respondent Employers White Oak Park and Aetna Con-
struction, Inc., their officers, agents, successors, and assigns shall :
(a) Cease and desist from :
(1) Encouraging membership in Local No. 300, International Hod
Carriers, Building and Common Laborers Union of America, A. F. of
L., or in any other labor organization - of their employees, by dis-
charging any of the employees or discriminating in any other manner
in regard to the employees' hire or tenure of employment, or any terms
or conditions of employment.
(2) In any like or related manner interfering with, restraining, or
coercing their employees in the exercise of the right to engage in or
to refrain from engaging in activities guaranteed employees by
Section 7 of the Act, except to the extent that such right may be af-
fected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized by Section 8 (a) (3)
of the Act.
(b) Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(1) Offer to Wilber F. Merrick immediate and full reinstatement
to his former or substantially equivalent position, without prejudice
to his seniority or other rights and privileges.
(2) Upon request, make available to the National Labor Relations
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 for a determination of the
amounts of back pay due and the right of reinstatement under the
terms of this Order.
(3) Post at their operations, copies of the notice attached hereto
marked "Appendix A." 6 Copies of said notice, to be furnished by the
Regional Director for the Twenty-first Region, shall, after being duly
signed by the Respondent Employers' representatives, be posted im-
mediately upon receipt thereof, and maintained by them for a period
of at least sixty (60) consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent Employ-
ers to insure that said notices are not altered, defaced, or covered by
any other material.
6 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 "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
THITE OAK PARK 379
(4) Notify the Regional -Director for the, Twenty-first Region, in
writing, within ten (10) days from the date of this Order what steps
they have taken to comply herewith.
II. Respondent Union, Local No. 300, International Hod. Carriers,
Building and Common Laborers Union of America, A. F. of L., its
officers, representatives , and agents , shall:
(a) Cease and desist from :
(1) Restraining or coercing employees of the Respondent Employ-
ers White Oak Park and Aetna Construction, Inc., their successors
or assigns , in the exercise of the right to refrain from any or all of
the concerted activities guaranteed by Section 7 of the Act, except
to the extent that such rights may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment
as authorized by Section 8 (a) (3) of the Act.
(2) In any manner causing or attempting to cause the Respondent
Employers White Oak Park and Aetna Construction, Inc., their offi-
cers , agents, successors , or assigns to discriminate against their em-
ployees in violation of Section 8 (a) (3) of the Act.
(b) Take the following affirmative action, which the Board finds
will effectuate the policies of the Act:
(1) Notify, in writing, the Respondent Employers White Oak Park
and Aetna Construction, Inc., that it withdraws its objections to the
employment of Wilber F. Merrick by them and requests them to offer
him immediate and full reinstatement to his former or substantially
equivalent position, without prejudice to his seniority or other rights
and privileges.
(2) Post in conspicuous places in its business office, and where
notices to its members are customarily posted, copies of the notice
attached hereto and marked "Appendix B".7 Copies of said notice, to
be furnished by the Regional Director for the Twenty-first Region,
shall after being duly signed by an official representative of the Re-
spondent Union, be posted by it immediately upon receipt thereof and
maintained by it for a period of at least sixty (60) consecutive days
thereafter. Reasonable steps shall be taken by it to insure that said
notices are not altered, defaced, or covered by any other material.
(3) Mail to the Regional Director for the Twenty-first Region
signed copies of the notice attached hereto and marked "Appendix B,"
for posting, the Respondent Employers White Oak Park and Aetna
Construction, Inc., willing, at the operations of these employers in
places where notices to their employees are customarily posted. Copies
of said notice, to be furnished by the Regional Director for the
' 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 "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Twenty-first Region, shall, after being signed as provided above, be
forthwith returned to the said Regional Director for said posting.
(4) Notify the Regional Director for the Twenty-first Region, in
writing, within ten (10) days from the date of this Order what steps
the Respondent Union has taken to comply herewith.
III. White Oak Park and Aetna Construction, Inc., their officers,
agents, successors, and assigns, and Local No. 300, International Hod
Carriers, Building and Common Laborers Union of America, A. F.
of L., its officers, agents, representatives, successors, and assigns, shall
jointly and severally make whole Wilber F. Merrick in the manner
set forth above for any loss of pay he may have suffered by reason
of the Respondents' discrimination against him.
IT IS FURTIIER ORDERED that the complaint be, and it hereby is, dis-
missed as to the Respondent Individuals Ben Weingart and Louis
H. Boyar.
MEMBER HousTON took no part in the consideration of the above
Decision and Order.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT encourage membership in LOCAL No. 300, INTER-
NATIONAL HOD CARRIERS, BUILDING AND COMMON LABORERS UNION
OF AMERICA, A. F. or L., or in any other labor organization of our
employees by discharging any of our employees or discriminating
in any other manner in regard to their hire or tenure of employ-
ment, or any terms or conditions of employment.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the right to engage in or to
refrain from engaging in any or all of the activities guaranteed
them by Section 7 of the Act, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized by
Section 8 (a) (3) of the Act.
WE WILL offer Wilber F. Merrick immediate and full reinstate-
ment to his former or substantially equivalent position without
prejudice to his seniority or other rights and privileges, and we
will make him whole for any loss of pay suffered as a result of the
discrimination against him.
WHITE OAK PARK 381
All our employees are free to become or remain , or refrain from becom-
ing or remaining , members of the above -named union or any other
labor organization , except to the extent that this right may be affected
by an agreement in conformity with Section 8 (a) (3) of the Act.
WHITE OAK PARK,
Employer.
By ------------------------------
(Representative ) ( Title)
AETNA CONSTRUCTION, INC.,
Employer.
By ------------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Appendix B
NOTICE TO ALL MEMBERS OF LOCAL No. 300, INTERNATIONAL HOD CAR-
RIERS, BUILDING AND COMMON LABORERS UNION OF AMERICA, A. F.
OF L., AND TO ALL EMPLOYEES OF WHITE OAK PARK AND AETNA
CONSTRUCTION, INC.
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 restrain or coerce employees of WHITE OAK PARK
and AETNA CONSTRUCTION, INC., their successors or assigns, in
the exercise of their right to refrain from any or all the con-
certed activities guaranteed to them by Section 7 of the Act,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment, as authorized by Section 8 (a) (3) of the Act.
WE WILL NOT in any manner cause or attempt to cause the above-
named employers, their officers, agents, successors, or assigns, to
discriminate against their employees in violation of Section 8 (a)
(3) of the Act.
WE WILL make Wilbert F. Merrick whole for any loss of pay
suffered because of the discrimination against him.
LOCAL No. 300, INTERNATIONAL HOD CAR-
RIERS BUILDING AND COMMON LABORERS
UNION OF AMERICA, A. F. OF L.,
Labor Organization.
By --------------------------------------------
(Representative ) (Title)
Dated --------------------
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report
Upon charges and amended charges duly filed by Wilber F. Merrick, an individ-
ual, in Case No. 21-CA-866 against White Oak Park, Aetna Construction, Inc.,
Ben Weingart, and Louis H. Boyar,' herein called the Respondent Employers,
and in Case No. 21-CB-282 against Local No. 300, International Hod Carriers,
Building and Common Laborers Union of America, A. F. of L., herein called the
Respondent Union, the General Counsel of the National Labor Relations Board,
herein respectively called General Counsel and the Board, by the Regional Di-
rector for the Twenty-first Region (Los Angeles, California), on May 14, 1951,
consolidated the cases for hearing and issued a complaint, alleging that the
Employers had engaged in and were engaging in unfair labor practices within the
meaning of Section 8 (a) (1) and (3) of the National Labor Relations Act,
as amended, 61 Stat. 136, herein called the Act, that the Union had engaged in
and was engaging in unfair labor practices within the meaning of Section 8 (b)
(1) (A) and (2) of the Act, and that said unfair labor practices affected com-
merce within the meaning of Section 2 (6) and (7) of the Act. Copies of the
charges, the order consolidating the cases, the complaint, and notice of hearing
were duly served upon the Respondents and Merrick.
With respect to unfair labor practices the complaint alleges, in substance, that :
(1) certain of the Respondent Employers in August 1950, discharged employee
Merrick because he was not a member of the Respondent Union ; and (2) that
the Union caused the Employers to discharge Merrick because he was not a
member of the Union.
Answers were duly filed by the Respondents in which they denied engaging in
the unfair labor practices alleged.
Pursuant to notice, a hearing was held in Los Angeles, California, on June 18,
1951, before the undersigned Trial Examiner, duly designated by the Chief Trial
Examiner . The General Counsel and the Respondents were represented by
counsel , participated in the hearing, and were afforded full opportunity to
examine and cross-examine witnesses, and to introduce evidence bearing upon
the issues . At the conclusion of the hearing ruling was reserved upon motions
by the Respondents to dismiss the complaint. Disposition of these motions is
made in the findings , conclusions, and recommendations appearing below.
At the close of the hearing a discussion , in the nature of oral argument, was
had, and' opportunity was given for filing briefs. A brief has been received
from counsel for the Respondent Union.
Upon the entire record and from his observation of the witnesses, the Trial
Examiner makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYEES
Ben Weingart and Louis H. Boyar are individuals engaged in the business of
acquiring tracts of undeveloped land in the vicinity of Los Angeles, California,
laying out and constructing streets and rights-of-way, subdividing such tracts
into individual parcels, erecting residence and other buildings on such individual
parcels, and selling the land and buildings to purchasers.
1 Certain changes have been made in the title of the case, in conformity with motions
granted during the hearing: to conform the pleadings to the proof and to strike therefrom
the name of Harold Larson.
WHITE OAK PARK 383
They finance these operations by forming a separate corporation for each
development . In the course and conduct of their business Weingart and Boyar
have organized, managed, and controlled the following California corporations :
Aetna Construction, Inc., White Oak Park, Westchester Park, and Lakewood Park.
Aetna Construction, Inc. Aetna is engaged in the business of general contract-
ing. Weingart and Boyar own all of its outstanding stock and since early in 1949
have controlled its operations. Ii1 1950 Aetna purchased- building materials,
consisting principally of Douglas fir, from a California supplier, valued at about
$4,100, of which about 80 percent originated from points outside the State of
California. I
White 'Oak Park. This corporation, formed in June 1949, existed until the
latter part of December 1950. It was controlled by Weingart and Boyar.
During its existence it erected 341 residences, valued at about $3,500,000. In
1950 this corporation purchased building materials, of the same nature and from
the same supplier noted above, valued at about $150,500, of which about 80 percent
originated from points outside the State of California.
Westchester Park. This corporation, formed in July. 1949, existed until Sep-
tember 1950. It was controlled by Weingart and Boyar. The value of the
completed development was about $3,500,000. During 1950, the corporation
purchased building materials, of the same nature and from the same supplier
noted above, valued at about $254,300, of which about 80 percent originated
from points outside the State of California.
Lakewood Park. This corporation, caused to be formed by Weingart and
Boyar in January 1950, is wholly owned by these two individuals. It is en-
gaged in the construction of about 7,300 residences and other structures. The
value of the development, when completed and as estimated by Boyar, will be
more than $50,000,000. During 1950 the corporation purchased building mate-
rials, of the same nature and from the same supplier noted above, valued at
about $6,614,700, of which, about 80 percent originated from points outside
the State of California.
At the time of the discharge of Merrick, in August 1950, three of the above-
described corporations were operating: Aetna, White Oak Park, and Lakewood
Park. Development of Westchester Park, according to counsel for the Respond-
ent Employers, was completed shortly before operations at White Oak Park
were begun.
In August 1950, H. D. Hoon was general superintendent at the White Oak
Park development. At the time of the hearing he was connected with Lake-
wood Park.
In November 1949, Merrick was employed as a guard at Westchester Park
by the chief of guards, Todd Moss, now deceased. Upon completion of this devel-
opment Merrick was, in effect, transferred by Moss to similar duties at White
Oak Park, where he was employed at the time of his discharge , which is the
major issue in these proceedings.
Conclusions as to Jurisdiction
It is General Counsel's contention, opposed by the Respondents, that in
determining the question of commerce and of exercising its jurisdiction the
Board should consider the operations controlled by Weingart and Boyar, de-
scribed above, in tha aggregate. The Trial Examiner finds merit in General
Counsel's position.
It appears that here the nature of the enterprise or industry-admittedly
owned and controlled by Weingart and Boyar, is the determining factor. That
for each development a new corporation is set up and later dissolved seems
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the undersigned to be immaterial to the issues raised under the Act. Own-
ership and directing control were and are the same during the period material
in these proceedings; it is established that Hoon, as general superintendent
at one operation, moved upon its completion to another, and that Merrick, as
a guard, was transferred by, the same chief of guards from one to another
development of Weingart and Boyar.
Considering in the aggregate the 1950 purchases of the Respondent Employers,
originating outside the State of California, the Trial Examiner concludes and
finds that the Respondent Employers are, and have been during the period
material, engaged in commerce within the meaning of the Act. He is further
of the opinion that the policies of the Act would be effectuated by the Board's
assertion of jurisdiction.
II. THE LABOR ORGANIZATIONS INVOLVED 2
Local No. 300, International Hod Carriers, Building and Common Laborers
Union of America, A. F. of L., is a labor organization admitting to membership
employees of the Respondent Employers.
III. THE UNFAIR LABOR PRACTICES
There is little dispute as to the issue of Merrick's discharge. On August 1,
1950, Business Agents Micelli and Quevado of the Union came to the White Oak
Park development and informed General Superintendent Hoon and Chief of
Guards Moss that all watchmen must belong to Local 300. Hoop's testimony
is unchallenged that "They intended to have these men join 300 or they would
have a picket line on the job the next morning." Hoon thereupon instructed
Moss to have his men "sign up with Local 300."
In the presence of the union officials Moss telephoned to Merrick, then em-
-ployed as a night watchman at White Oak Park, and told him he would have
to join the Union if he wanted to continue to work. Merrick replied that he
would not join. Moss then told him that he would have to replace him with
another man that night. Since then Merrick has not been offered reinstatement
by any of the Respondent Employers.
No evidence was offered to show that any agreement, legal or otherwise, oral
or written, existed between the parties requiring membership in the Union.
The Trial Examiner concludes and finds that the Respondent Employers dis-
criminatorily discharged Merrick on August 1, 1950, because he would not join
the Respondent Union, thereby encouraging membership in the Union, in viola-
tion of Section 8 (a) (3) of the Act, and interfering with, restraining, and
coercing employees in the exercise of rights guaranteed by the Act.
The Trial Examiner further concludes and finds that the Respondent Union,
through its business agents, caused the Respondent Employers discriminatorily
to, discharge Merrick in violation of Section 8 (a) (3), thereby itself violating
Section 8 (b) (2) of the Act. By such conduct the Respondent Union restrained
and coerced employees in the exercise of rights guaranteed by the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in Section III, above, occurring
in connection with the operations of the Employers, described in Section I, above,
2 The complaint alleges that in addition to the labor organization described in this section
two others are labor organizations within the meaning of the Act: Local No. 1, American
Federation of Guards, and Local No. 193, Building Service Employees International Union,
A. F. of L Not only is the proof insufficient for the Trial Examiner to base an accurate
finding as to these two organizations, but only Local No 1, of which Merrick said he was a
member, appears even incidentally involved in these proceedings.
WHITE OAK PARK 385
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents engaged in unfair labor practices the
Trial Examiner will recommend that they cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Since it appears that White Oak Park, as a corporation, has been dissolved
since the commission of unfair labor practices, no recommendation as to it will
be made. Lakewood Park, although now being operated by Weingart and
Boyar, is not named in the complaint. Aetna Construction, Inc., although
a corporate creature still functioning under the control of Weingart and Boyar,
appears to have been involved only as part of the entire enterprise set up and
directed by these two individuals Weingart and Boyar are, and have been,
the prime and controlling individuals in the development enterprise with which
this proceeding is concerned. Accordingly it will be recommended that the Re-
spondent Employers Weingart and Boyar offer Merrick immediate and full
reinstatement to his former position or one substantially equivalent, without
prejudice to his seniority or other rights and privileges' It will likewise be
recommended that the Respondents Boyar and Weingart and the Respondent
Union jointly and severally make Merrick whole for any loss of pay he may have
suffered by reason of the discrimination against him by payment to him of a
sum of money equal to that which he normally would have earned from the date
of his discharge on August 1, 1950, to the date of the Respondent Employers'
offer of reinstatement, less his net earnings during said period.' The Respond-
ent Union may terminate its liability for further accrual of back pay to Merrick
by notifying the Respondents Weingart and Boyar in writing that it has no objec-
tion to Merrick's reinstatement. The Respondent Union shall not thereafter
be liable for any back pay accruing after 5 days from the giving of such notice.
Absent such notification, the Respondent Union shall remain jointly liable with
the Respondent Employers for all back pay to Merrick that may accrue until
Merrick is offered reinstatement.
For the reasons stated in F. W. Woolworth Company,` the loss of pay on the
part of Merrick shall be computed on the basis of each separate calendar quarter
or portion thereof during the period from the discrminatory discharge to the
date of a proper offer of reinstatement. The quarterly periods shall begin with
the first day of January, April, July, and October. Loss of pay shall be deter-
mined by deducting from a sum equal to that which Merrick normally would
have earned for each such quarter or portions thereof, his net earnings, if any, in
other employment during that period. Earnings in one particular quarter
shall have no effect upon the back-pay liability for any other quarter The
Respondent Employers, upon request, shall make available to the Board and its
agents all pertinent records.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following : r
3 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Bi aneh,
65 NLRB 827.
' Crossett Lumber Co, 8 NLRB 440, 497-98.
5 90 NLRB 289.
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OP LAW
1. The Respondents Ben Weingart , Louis H. Boyar, and Aetna Construction,
Inc., are engaged in activities affecting commerce within the meaning of Section
2 (6) and (7) of the Act.
2. The Respondent Union, Local No. 300, International Hod Carriers , Building
and Common Laborers Union of America, A. F. of L., is a labor organization
within the meaning of Section 2 (5) of the Act.
3. By discriminating with respect to the hire and tenure of employment of
Wilbur F. Merrick , thereby encouraging membership in the Respondent Union,
Respondent Employers had engaged in and are engaging in unfair labor
practices within the meaning of Section 8 ( a) (3) of the Act.
4. By interfering with, restraining , and coercing their employees in the exercise
of rights guaranteed by Section 7 of the Act, the Respondent Employers have
engaged in and are engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
5. By causing the Respondent Employers to discriminate against an employee
in violation of Section 8 (a) (3) of the Act, the Respondent Union has engagedi
in and is engaging in unfair labor practices , within the meaning of Section 8 (b)
(2) of the Act.
6. By restraining and coercing employees in the exercise of rights guaranteed
by Section 7 of the Act, the Respondent Union has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
METALLIC BUILDING , COMPANY (A PARTNERSHIP) and HUGO S. BAKER,
ET AL. Case No. 39-CA-59. February 29,1952
Decision and Order
On March 20, 1950, Trial Examiner Hamilton Gardner issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices. Thereafter,
the Respondent and the General Counsel filed exceptions to the Inter-
mediate Report and supporting briefs.'
On June 13, 1950, the Board reopened the record and remanded the
case to the Trial Examiner for the limited purpose of a further hear-
ing to adduce additional evidence with regard to the commerce facts
involved. On December 26, 1951, a stipulation by the parties, con-
'The Respondent 's request for oral argument is hereby denied because the record and
the exceptions and briefs , in our opinion , adequately present the issues and the positions
of the parties.
98 NLRB No. 64.