City Window Cleaning Co.

National Labor Relations Board - Board Decisions

Nov 4, 1955

114 N.L.R.B. 906 (N.L.R.B. 1955)

906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Louis Goren and Helen Goren, co-partners d/b/a City Window
Cleaning Company and Michael Elinsky
Detroit Window Cleaning Company and Michael Elinsky
Window Cleaning Contractors Association of Detroit, Inc., a
Michigan corporation ; Major A. Siegel and Victor Medler,
co-partners d/b/a Allied Window and Building Company;
Clearvue Window Cleaning Company , a Michigan corporation;
Daelyte Service Company, a Michigan corporation ; Clifford
Ballard and Shirley Graheck , co-partners d/b/a Eagle Win-
dow Cleaning Company; Expert Window Cleaning Company,
a Michigan corporation ; Sam Barlow d/b/a Industrial Window
Cleaning Company ; L. F. Eggert d/b/a Mutual Window Clean-
ing and Painting Company; Anthony Spencer d/b/a National
Window Cleaning Company; Pasquale Stronati d/b/a Pruden-
tial Window Cleaners; William Dowhan and Tillie Dowhan,
co-partners d/b/a Service Window Cleaning and Painting
Company; Dick Vanders d/b/a Dick Vanders Window Cleaning
Company; Steve Osmola d/b/a Westside Window Cleaning
Company; Charles V. Zink and Marion Zink , co-partners d/b/a
American Window Cleaning Company; Michigan Window
Cleaning Company, a Michigan corporation; Detroit Window
Cleaning Company, a Michigan corporation ; James S. Calder,
Emily K. Calder and Rebecca Kaufman , co-partners d/b/a
J. S. Calder Company; Edward Hexham and Benjamin Hex-
ham, co -partners d/b/a Ensign Maintenance Company; and
Louis Goren and Helen Goren, co-partners d/b/a City Window
Cleaning Company and Michael Elinsky
Detroit Window Cleaners Union, Local No . 139, Building Service
Employees International Union, AFL and Michael Elinsky
Detroit Window Cleaners Union , Local No. 139, Building Serv-
ice Employees International Union, AFL, and Thomas Martino,
its Business Agent and Francis M. Pressey . Cases Nos. 7-CA-
1044, 7-CA-1045, 7-CA-1084, 7-CB-188, and 7-CB-186. Novem-
ber 4,1955
DECISION AND ORDER
On January 5, 1955, Trial Examiner Herbert Silberman issued his
Intermediate Report in the above-entitled proceedings, finding that
the Respondent had engaged in certain unfair labor practices and rec-
ommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the copy of the Intermediate Report attached
114 NLRB No. 134.
CITY WINDOW CLEANING COMPANY 907
hereto. Thereafter the parties I filed exceptions to the Intermediate
Report and supporting briefs thereto.
Respondent Detroit Window Cleaning Company's request for oral
argument before the Board is denied, as the record, including the
exceptions and the briefs, adequately presents the issues and 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 Interme-
diate 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, with the modifications noted below?
Jurisdiction over Detroit
Detroit was a charter member of the Association at the time of the
latter's organization in 1949. Detroit admittedly was a member of the
Association until January 1953, at which time it ceased to pay dues.
Detroit, relying on the original bylaws of the Association, contends
that by its failure to pay dues on or after January 1953, it was auto-
matically expelled from membership in the Association no later than
the end of April 1953, and because its own operations were allegedly
insufficient to meet the Board's jurisdictional requirements at the time
it discharged Elinsky, the Board should not assert jurisdiction over
it. The General Counsel contends that Detroit was still a member
of the Association at the time it discharged Elinsky in August 1953,
and consequently was within the Board's jurisdiction because (1)
Detroit was carried on the books of the Association until September
1953; (2) Detroit never notified the Association of its resignation;
and (3) it was not until July 14, 1953, that the Association voted to
expel members, including Detroit, who were delinquent at the end of
August 1953.
We find it unnecessary to resolve the conflicting contentions of
Detroit and the General Counsel as to this issue. Assuming that
Detroit had effectively resigned from the Association before it dis-
charged Elinsky, the record shows that Detroit's operations were of
sufficient scope to satisfy the Board's jurisdictional standards existing
at that time.' Furthermore, the record clearly shows that Detroit later
'Exceptions and supporting briefs were filed by the General Counsel, Respondent Union,
Respondent Detroit Window Cleaning Company, hereinafter referred to as Detroit, Re-
spondent City Window Cleaning Company , and Respondent Window Cleaning Contractors
Association of Detroit, Inc , hereinafter referred to as Association
2 We correct the typographical error in section III, B, of the Intermediate Report
which reads that Elinsky 's testimony "does establish" that he was discharged. It obvi-
ously should read "does not establish "
3 Detroit stipulated that during 1953 it performed services valued at $48,026 for enter-
prises, each of which shipped goods valued in excess of $25,000 outside the State. The
record shows in addition that Detroit furnished services having a value of $3,249 during
908 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
rejoined the Association, in May 1954, for collective-bargaining pur-
poses, paying a sum in excess of $200 "to bring us up to date." As the
Association performed services during 1954 in excess of $200,000 for
enterprises which shipped goods in excess of $50,000 in value to points
outside the State of Michigan, it is clear that Detroit's operations at
the time of the hearing satisfied the Board's current jurisdictional
standards.'
Accordingly, there was no jurisdictional hiatus concerning Detroit's
operations, as contended by Detroit, resulting either from Detroit's
resignation from the Association or from the change in the Board's
jurisdictional policies. At the time of Detroit's resignation from the
Association, it remained within the Board's jurisdiction, by virtue of
the scope of its own operations. By again associating itself with other
enterprises for collective-bargaining purposes, prior to the announce-
ment of the present jurisdictional standards, it remained within the
Board's jurisdiction, even after the issuance of the present jurisdic-
tional standards.
Accordingly, we find that the Board now has, and has had at all
times pertinent, jurisdiction over the operations of Detroit, and that,
in accordance with its present jurisdictional policies, it will effectuate
the policies of the Act to assert jurisdiction herein.
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. All Respondent Employers, except the Association, named in the
caption in Case No. 7-CA-1084, their officers, agents , successors, and
assigns, shall :
(a) Cease and desist from :
(1) Recognizing Detroit Window Cleaners Union, Local No. 139,
Building Service Employees International Union, AFL, or any suc-
cessor thereto, as the representative of any of their employees for the
purpose of dealing with them concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of em-
ployment unless and until said organization shall have been certified by
the National Labor Relations Board as such representative.
1953 to the Ice Cream Division of Detroit Creamery Company, which company shipped
and delivered ice cream valued in excess of $25,000 from its place of business in Michigan
to points outside the State of Michigan . It is clear , therefore , that Detroit' s operations
to 1953 satisfied the Board' s indirect outflow standard in effect at that time, which re-
quired that an enterprise furnish goods or services valued at $50,000 to enterprises which
ship goods valued at $25,000 directly out of State. Hollow Tree Lumber Company, 91
NLRB 635.
A Jonesboro Grain Drying Cooperative , 110 NLRB 481 , 484. Insulation Contractors of
6outhern California, Inc., 110. NLRB 638, 639.
CITY WINDOW CLEANING COMPANY 909
• (2) Giving effect to, performing, or in any way enforcing their
agreements with the Union, entered into in June 1953, or any modi-
fication, extension, supplement, or renewal thereof or any other con-
tract, agreement, or understanding entered into with said organization
relating to grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment, unless and until said
organization shall have been certified by the National Labor Relations
Board.
(3) Encouraging membership in Detroit Window Cleaners Union,
Local No. 139, Building Service Employees International Union,
AFL, or in any other labor organization, by discriminating against
employees in regard to hire or tenure of employment or any term or
condition of employment.
(4) In any other manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed in Section 7 of the
Act, except to the extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment, as authorized in 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) Withdraw and withhold all recognition from Detroit Window
Cleaners Union, Local No. 139, Building Service Employees Inter-
national Union, AFL, or any successor thereto, as the representative
of their employees for the purpose of dealing with them in regard to
grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment, unless and until such labor organ-
ization shall have been certified by the National Labor Relations Board
as the representative of the employees- concerned.
(2) Post at their respective plants copies of the notice attached to
the Intermediate Report and marked "Appendix A." s Copies of
said notice, to be furnished by the Regional Director for the Seventh
Region, shall, after being duly signed by a representative of each
Respondent Employer, be posted by said Respondents immediately
upon receipt thereof and maintained by them for sixty (60) consecu-
tive days thereafter- in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be
taken by Respondents to insure that the notices are not altered, de-
faced, or covered by any other material.
(3) Notify the Regional Director.for the Seventh Region in writ-
ing, within ten (10) days from the date of this Order, what steps each.
Respondent Employer has taken to comply herewith.
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."
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. Respondent, Detroit Window Cleaners Union, Local No. 139,
Building Service Employees International Union, AFL, its officers,
representatives, agents, successors, and assigns, and Thomas Martino,
its business agent, shall :
(a) Cease and desist from :
(1) Attempting to cause or causing any of the Respondent Employ-
ers, except the Association, named in the caption in Case No. 7-CA-
1084, their officers, agents, successors, and assigns, to discriminate in
any manner against employees in violation of Section 8 (a) (3) of the
Act.
(2) Giving any effect to, performing, or enforcing the 1953 agree-
ments with said Employers, or to any understandings or agreements
they may have regarding said contracts, or entering into any exten-
sions, renewals, or modifications of said contracts unless and until
the Union shall have been certified by the National Labor Relations
Board as the collective-bargaining representative of the employees
concerned.
(3) Causing or attempting to cause said Employers to accord pref-
erence to members of the Union when hiring employees or to engage
in the practice of requiring employees, or applicants for employment,
to obtain membership in the Union as a condition of employment,
except pursuant to an agreement entered into in conformity with
Section 8 (a) (3) of the Act.
(4) In any other manner restraining or coercing employees of said
Employers named in Case No. 7-CA-1084 in the exercise of the rights
guaranteed in Section 7 of the Act, except to the extent that such
rights may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized in
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) Post at its business offices in Detroit, Michigan, copies of the
notice attached to the Intermediate Report and marked "Appendix
B." 6 Copies of said notice, to be furnished by the Regional Director
for the Seventh Region, shall, after being duly signed by an author-
ized representative of Respondent Union and individually by Thomas
Martino, its business agent , be posted by Respondent Union immedi-
ately upon receipt thereof and maintained by it for a period of sixty
(60) consecutive days thereafter in conspicuous places, including all
places where notices to members are customarily posted. Reasonable
steps shall be taken to insure that said notices are not altered, defaced,
or covered by any other material.
(2) Additional copies of Appendix B shall be signed by a represent-
ative of the Respondent Union and individually by Thomas Martino,
6 See footnote 5.
CITY WINDOW CLEANING COMPANY 911
its business agent, and forthwith returned to the Regional Director.
These notices shall be posted , the Employers named in Case No.
7-CA-1084 being willing , on the bulletin boards in their respective
places of business and wherever notices to employees are customarily
posted.
(3) Notify the Regional Director for the Seventh Region in writing,
within ten ( 10) days from the date of this Order, what steps they have
taken to comply herewith.
III. Respondent Detroit Window Cleaning Company, its officers,
agents, successors, and assigns, and Respondent Detroit Window
Cleaners Union, Local No. 139, Building Service Employees Interna-
tional Union, AFL, its officers, representatives, agents, successors, and
assigns , shall jointly and severally make whole Michael Elinsky for
any loss of earnings he may have suffered by reason of the discrimina-
tion against him in the manner set forth in the section of the Inter-
mediate Report entitled "The Remedy." Detroit shall preserve and
upon request make available to the Board or its agents, for examination
and copying, all payroll records, social-security payment records, time-
cards, personnel records and reports, and all other records necessary
to analyze the amounts of back pay due and the rights of employment
under the terms of this Order.
IT IS FURTHER ORDERED that the complaint against Window Cleaning
Contractors Association of Detroit, Inc., be dismissed.
IT IS FURTHER ORDERED that the complaints against Louis Goren and
Helen Goren, co-partners d/b/a City Window Cleaning Company,
and Detroit Window Cleaners Union, Local No. 139, Building Serv-
ice Employees International Union, AFL, be dismissed insofar as they
allege that Respondent City Window Cleaning Company discrimina-
torily discharged Michael Elinsky and that the Respondent Union
caused said Employer to discriminatorily discharge Elinsky.
IT IS FURTHER ORDERED that the complaint in Case No. 7-CB-186 be
dismissed insofar as it alleges that Thomas Martino caused Prudential
to enter into and retain in effect an illegal closed -shop arrangement
with the Union.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges duly filed by the individuals above named , the General Counsel
of the National Labor Relations Board, by the Regional Director for the Seventh
Region ( Detroit , Michigan ), on April 30 , 1954 , issued separate complaints in each
of the above -numbered cases alleging that the Respondent or Respondents therein
named had engaged in and were engaging in unfair labor practices affecting com-
merce within the•meaning of the National Labor Relations Act, 61 Stat . 136, herein
called the Act . On April 30, 1954, the said Regional Director issued an order con-
solidating for hearing the above -numbered cases and a notice of hearing thereon.
Copies of the charges , the complaints , the order consolidating the cases, and the
notice of hearing were duly served upon the parties. Answers to the complaints
were duly filed on behalf of the named Respondents.
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice, a hearing was held at Detroit, Michigan, on May 24 through
27, 1954, before Herbert Silberman, the duly designated Trial Examiner. The
record herein was reopened and a further hearing was held on November 15, 1954,
pursuant to an order issued by the Trial Examiner on October 1, 1954, for the'pur-
pose of obtaining additional evidence concerning the business operations of the
Employers named as Respondents herein. All parties were represented at the hear-
ings by counsel, and were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence pertinent to the issues. , Mo-
tions made by the General Counsel at various stages during the hearings to amend
the complaints in the above-numbered cases to reflett the correct names of the Re-
spondents were granted.' The names of the Respondents set,forth in the captions
above reflect the aforementioned corrections. The General Counsel's motion to
amend the complaints herein and a motion on behalf of City Window Cleaning
Company to amend their answer to the complaint in Case No. 7-CA-1084, made
at the opening of the hearings, were granted. The General Counsel's further mo-
tions to amend the complaints, made towards the close of his case-in-chief and at
the close of the entire case, were denied. Also denied were the motions on the part
of some of the Respondents to dismiss the complaints on jurisdictional grounds.
The parties waived the opportunity afforded them to engage in oral argument at
the close of the hearings and omitted to file briefs or proposed findings and conclu-
sions with the Trial Examiner although leave to do so was granted at the hearings.
The Pleadings
The complaints in the five cases listed above stem from identical agreements
entered into in June 1953 by each of the Employers named as Respondents herein
and Detroit Window Cleaners Union, Local No. 139, Building Service Employees In-
ternational Union, AFL, herein called the Union. Apart from matters relating to
jurisdiction the issues framed by the pleadings in each of the cases are as follows:
In Case No. 7-CA-1044, the, complaint alleges that City Window Cleaning Com-
pany, herein referred to as City, entered into and continued in effect a collective-
bargaining agreement with the Union containing an unlawful closed-shop provi-
sion and that on or about August 18, 1953, at the Union's demand, City terminated
the employment of Michael Elinsky. By reason of the foregoing it is alleged that
City engaged in and is engaging in unfair labor practices in violation of Section 8
(a) (1), (2), and (3) of the Act. In its answer, City admits having executed the
said contract but denies it enforced the closed-shop provision thereof, and denies
'it discharged Elinsky but avers that Elinsky voluntarily quit its employ on August
19, 1954.
The complaint in Case No. 7-CA-1045 against Detroit Window Cleaning Com-
pany, herein referred to as Detroit, contains essentially the same allegations as the
complaint in Case No. 7-CA-1044, except that it is alleged that, at the demand of the
Union, Detroit discharged Elinsky on or about August 26, 1953. In its answer,
Detroit admits having signed the said agreement with the Union and admits that
on August 31, 1953, at the specific demand of the Union, it terminated Elmsky's
,employment, but avers that its action in this regard was the result of coercion upon
it by the Union.
The Association and Employers named in Case No. 7-CA-1084 are alleged to
have violated Section 8 (a)•(1), (2), and (3) of the Act by entering into and con-
tinuing in effect identical collective-bargaining agreements, which by their terms
became effective April 15, 1953, containing an unlawful closed-shop provision.
Respondent City in its answer admits execution of the collective-bargaining agree-
ment, but denies that it has enforced the closed-shop provisions thereof. The answer
filed on behalf of the remaining Respondents admits execution of the aforesaid agree-
ments but alleges that the Respondents during contract negotiations demanded with-
out success that the Union eliminate the closed-shop provision from the agreements.
The complaint in Case No. 7-CB-188 alleges that the Union, by causing the Em-
ployers listed in the caption in Case No. 7-CA-1084 to enter into and retain in effect
an illegal closed-shop provision and by causing City and Detroit to terminate
Elinsky's employment on or about August 18 and August 26, respectively, has vio-
lated and continues to violate Section 8 (b) (1) (A) and (2) of the Act. The
answer of the Union admits execution of the aforesaid collective-bargaining agree-
ments, but otherwise denies the material allegations of the complaint.
1 Sep Harding College, 99 NLRB 957, enfd. 209 F. 2d 956 (C. A. 6) ; Pioneer Electric
Company, 70 NLRB 771, enfd. 178 F. 2d 445 (C. A. 9) ; N. L. R. B. v. Cotten , 105 F. 2d
179, 183 (C. A. 6).
CITY WINDOW CLEANING COMPANY 913
The complaint against the Union and its business agent , Thomas Martino, in
Case No. 7-CB-186, alleges that the Respondents in violation of Section 8 (b)
(1) (A) and (2) of the Act caused Prudential Window Cleaning Company to enter
into and maintain in effect from April 15, 1953, a collective-bargaining agreement
containing an illegal closed-shop provision, and that in December 1953 and Janu-
ary 1954 the Union, by its business agent, Martino, demanded that Prudential ter-
minate the employment of Francis M. Pressey pursuant to the terms of the afore-
said contract. The Respondents in their answer deny the material allegations in
the complaint except that they admit the execution of the collective-bargaining
agreement.
Upon the entire record in the case, and from my observation of the demeanor
of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
The Employers named as Respondents in these cases perform window cleaning
and related services for commercial and industrial establishments in the metropolitan
Detroit area. During the times material herein , all said Employers , except Detroit,
were represented for purposes of collective bargaining with the Union by Window
Cleaning Contractors Association of Detroit, Inc., herein referred to as the Associa-
tion, either by virtue of their membership in the Association or by reason of having
specifically authorized the Association to negotiate on their behalf with the Union .2
The Association was incorporated on July 6, 1949, under the laws of the State of
Michigan. Beginning in 1950 and' each year thereafter the Association has con-
ducted collective -bargaining negotiations with the Union on behalf of its members
and other employers who specifically authorized the Association to represent them
for such purpose . The Association is represented at the bargaining sessions with the
Union by a committee selected from its membership and an attorney who is paid
by the Association. The committee is authorized to negotiate a tentative agreement
with the Union . From time to time during the course of each year's negotiations
the committee reports upon the progress of bargaining to the Association 's member-
ship and receives instructions from the membership concerning their position in
regard to the various subjects of collective bargaining . Upon the conclusion of the
bargaining sessions the committee submits the tentative agreement reached with the
Union to the Association 's membership for ratification . The ratified agreement in
its final form is duplicated by the Union . Separate identical contracts are then
executed by the Union and the Employers represented by the Association. Each year
from 1950 to 1953, inclusive , the collective -bargaining agreement negotiated by the
Union and the Association was executed by every Employer who was represented
by the Association for the particular year. The Union has used the contracts negoti-
ated with the Association as patterns for the industry in the metropolitan Detroit
area and has entered into similar identical agreements with other employers who
were not represented by the Association.
The General Counsel contends that, for the purpose of applying the Board's
jurisdictional standards , the commerce factors applicable to the operations of all the
Employers named as Respondents herein should be considered collectively .3 The
'Union, on the other hand, contends that its bargaining with the Employers has not
been on an associationwide basis and that jurisdiction should be determined on the
basis of the separate commerce factors for each Employer. In support of its posi-
tion, the Union relies principally upon three facts. The first is that collective-
bargaining negotiations in 1953 and preceding years were initiated by letters sent
by the Union to each contracting Employer individually advising that its contract
was about to expire and that the Union was prepared to negotiate a renewal agree-
ment. Second, that the Association has never executed a contract on its behalf or
on behalf of any of its members, but each Employer has signed a separate , although
identical, agreement. Finally, that employers who were not represented by the
Association also signed similar agreements . These facts are insufficient to rebut the
otherwise persuasive evidence that collective bargaining with the Union has been on
'The following Employers , although not members of the Association , authorized the
Association to represent them in collective-bargaining negotiations with the Union for the
contract year beginning April 15, 1953, and also for the succeeding contract year :
Michigan Window Cleaning Company, Ensign Maintenance Company, City Window Clean-
ing Company, and American Window Cleaning Company.
3 At the dates of the hearing herein the Association still represented the same Employers
(plus Detroit) for purposes of negotiation with the Union.
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an associationwide basis. The record is clear that the members of the Association
and the four additional Employers who authorized the Association to represent them
in the year 1953 evinced an unmistakable intention to be bound by group, rather
than by individual, action. It is immaterial that separate identical contracts, rather
than a group contract, were signed by the Employers and that the Union's request
to begin negotiations for the 1953 contract was addressed to the individual Employers
rather than to the Association? It is likewise immaterial that the contracts negoti-
ated by the Union and the Association uniformly set the pattern of bargaining for the
industry in the Detroit area.5 I do not credit the testimony of Thomas Martino,
the Union's business agent, that he did not know the Union was bargaining with
respect to the 1953 contract with the Association's negotiating committee. His
testimony was not only contradicted by the credible testimony of Clifford W. Ballard
and Edward James McEntee but also by the language of the 1953 contract, the first
paragraph of which reads as follows:
Parties. It is agreed between the DETROIT WINDOW CLEANERS'
UNION, LOCAL NO. 139, of the Building Service Employees' International
Union (A. F. of L.), the WINDOW CLEANING CONTRACTORS' ASSOCIA-
TION OF DETROIT, INC., and the undersigned Employer, as follows: 6
Upon the basis of the foregoing, I find that all the Employers, except Detroit, named
as Respondents in these cases, have joined together for the purposes of collective
bargaining with the Union and in consequence of this relationship among said
Employers the impact of their business activities upon commerce is coextensive with
the totality of the operations of all.7 Accordingly, the operations of all the Em-
ployers who were represented by the Association in the negotiation of the 1953
contract with the Union should be considered collectively in applying the Board's
jurisdictional standards.a
As to the Employers whose operations I have found should be considered to-
gether for the purpose of applying the Board's jurisdictional standards, it was stipu-
lated at the hearing that during the calendar year ending December 31, 1953, which
period is representative of all times material hereto, they collectively furnished
window cleaning and related services in excess of $500,000 to industrial and com-
mercial establishments each of whom sold and shipped commodities valued in excess
of $50,000 annually from the State of Michigan to points outside such State. The
Board has recently announced that it will assert jurisdiction over an enterprise which
furnishes services, regardless of their use, annually valued at $200,000 or more to
other enterprises which annually produce and ship goods out of the State valued
at $50,000 or more.9 The collective operations of the Employers who were rep-
resented by the Association and are named as Respondents herein (except Detroit)
meet the foregoing standard.
The situation as to Detroit differs from that of the other Employers who are
named as Respondents herein in that the Company contends that the Association
did not represent it during the times critical in these cases. Detroit further argues
that the complaint against it should be dismissed because its independent business
operations are not sufficiently extensive to meet the Board's current jurisdictional
standards. While the General Counsel does not dispute that Detroit's-business
activities considered separately fall below the minimum requirements for the asser-
tion of jurisdiction under the Board's recently revised policies, his position is that
for jurisdictional purposes Detroit should be considered as a member of the Asso-
ciation.
Detroit joined the Association in 1949 as one of its charter members and con-
tinued its membership in the Association until January 1953. Although Detroit
did not formally resign from the Association, Ronald H. Thompson, its president,
testified that the Company did not pay dues to the Association or attend meetings
of the Association after January 1953, "because we desired to, frankly, check out
or disaffiliate." Thompson further testified that Detroit was not represented by
the Association with respect to the negotiation of the 1953 contract. However,
Detroit rejoined the Association in May 1954. Because it affirmatively appears in
4 Frosh Industry Committee, 98 NLRB 696; Abbotts Dairies, Inc., 97 NLRB 1064.
5 Samuel Bernstein & Co., 98 NLRB 1144.
6 This paragraph, which was used in the 1952 as well as in the 1953 contracts, was also
included in contracts signed by employers who were not represented by the Association.
7 Vaughn Bowen, et al., 93 NLRB 1147, 1150.
8 Insulation Contractors of Southern California, Inc., et al., 110 NLRB 638 ; N. L. R. B.
a. Gottfried Baking Co, Inc, et al, 210 F. 2d 772 (C. A. 2).
9 Jonesboro Grain Drying Cooperative, 110 NLRB 481.
CITY WINDOW CLEANING COMPANY 915
the record that the Association continues as the collective -bargaining representative
of its members and the same four Employers who authorized the Association to
represent them in 1953, Detroit by its reaffiliation has signified its desire to par-
ticipate in group bargaining . Therefore , the Board would now exercise its jurisdic-
tion over Detroit on the basis of the totality of the operations of all the Respondents
herein who are joined together for the purpose of bargaining collectively with the
Union.
The issue as to Detroit, however, involves a refinement apart from whether its
current operations fall within the scope of the Board 's jurisdictional standards. The
complaint against Detroit alleges that on or about August 26, 1953, it discriminatorily
discharged Michael Elinsky.i0 Because this discharge occurred at a time when
Detroit was not a member of the Association and therefore at a time when its
operations would not bring it within the scope of the Board 's current jurisdictional
plan, the Company contends that the Board is without authority to remedy the
alleged unfair labor practice . As shown above , by January 1953 Detroit had
demonstrated its intention to abandon multiemployer bargaining and to pursue
an independent course of action. Detroit's participation in group bargaining for
the years 1950 through 1952 did not preclude it from thereafter abandoning such
bargaining ." Had Detroit not reafiliated with the Association in 1954, under
the Board 's current standards , jurisdiction would not be asserted over Detroit in
this case . 12 Thus, the question is whether the Board should remedy an alleged
unfair labor practice committed during a temporary period when the operations of
Detroit did not meet the minimum standards the Board now applies in determining
when to exercise its jurisdiction . A similar proposition was considered in H. J.
Barton, 78 NLRB 431. In that case an employer who concededly was engaged
in commerce during 1944 and 1946 committed an unfair labor practice in 1945 when
the volume of its interstate operations was considerably reduced. The employer
argued that the complaint should be dismissed because its activities at the time
it had engaged in the alleged unlawful conduct were not sufficient to bring its opera-
tions within the Board's jurisdiction . In rejecting this contention the Board stated:
The logical extension of this argument is that the Board's jurisdiction over an
employer should turn upon the applicable commerce facts during a given
month , week, or day . To state the proposition is to demonstrate its unrea-
sonableness.rs
Since there is no doubt that in 1953 Detroit was engaged in commerce within the
meaning of the Act , 14 it is my opinion that it would promote the purposes of the
Act to assert jurisdiction in this case with respect to all the alleged unfair labor
practices on the part of Detroit."
w The complaint also alleges that effective April 15, 1953 , Detroit entered into and
thereafter has continued in effect a collective -bargaining agreement with the Union con-
taining an unlawful closed-shop provision The jurisdictional issue does not affect the
determination of this aspect of the complaint The execution of the 1953 contract pre-
ceded the filing of charges against Detroit by more than 6 months and therefore no unfair
labor practice finding may be based thereon However, by maintaining such provision in
effect at least since it rejoined the Association Detroit subjects itself to the Board's
remedial piocesses.
n Pacific Metals Company , Ltd , 91 NLRB 696, 699
i2 Coca - Cola Bottling Company of Stockton , 110 NLRB 840 . The fact that in 1953
Detroit, like other employers in the metropolitan Detroit area who were not represented
by the Association , adopted the terms of the Association 's contract and individually
entered into a similar agreement with the Union will not influence the Board to determine
jurisdiction over it on the basis of the collective operations of the Association 's member-
ship . The Plumbing Contractors Association of Baltimore, Maryland , Inc, et at., 93
NLRB 1081, 1082
vi See also Calera Mining Company, 97 NLRB 950, 932
14 It was stipulated at the hearing that in 1953 Detroit furnished services valued at
approximately $ 68,000 to about 75 customers and that such services to the extent of at
least $48,000 were furnished to customers located in the State of Michigan each of iihorn
sold or shipped commodities valued in excess of $25 , 000 per annum from Michigan to
points outside the State of Michigan
is The circumstances of the instant case are readily distinguishable from those in cases
where it was held that it would be inequitable to apply retroactively new jurisdictional
standards to Respondents who were in effect advised by the Board that under the policies
extant at the time of the commission of the alleged unfair labor practices it would not
387644-56-vol . 114-59
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing, it is found that the Employers who are named
as Respondents herein are, and at all times relevant hereto were, engaged in com-
merce within the meaning of Section 2 (6) and (7) of the Act and that it would
effectuate the purposes of the Act to assert jurisdiction over all the Respondents
named herein with respect to the unfair labor practices alleged in the General
Counsel's complaints. ,
II. THE LABOR ORGANIZATION INVOLVED
Detroit Window Cleaners Union, Local No. 139, Building Service Employees
International Union, AFL, is a labor organization within the meaning of Section
2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The unlawful contract
In June 1953 each of the Respondent Employers herein entered into separate,
although identical, collective-bargaining agreements with the Respondent Union.
The complaints allege that the first numbered paragraph of the agreements is an
unlawful closed-shop provision and that the Respondents (except Martino) by enter-
ing into and by maintaining in effect the agreements containing such clause have
violated and continue to violate the Act. The objectionable provision of the con-
tracts reads as follows:
(1) Closed shop.-None but members of this Union in good standing shall
be employed in any work covered by this agreement, which shall include the
following: cleaning of all windows either inside or outside of buildings, either
on the ground, from a scaffold or other safety devices.
This clause exceeds the permissible degree of union security authorized by Section
8 (a) (3) of the Act in that it deprives employees of the 30-day grace period within
which they might become members of the Union after being hired 16 and in that it
contemplates the establishment of a closed shop under an arrangement providing for
preferential hiring of union members and requiring other employees to obtain mem-
bership in the Union before they may be hired.17 The closed-shop feature of the
clause becomes manifest upon reference to paragraph numbered 8 of the agreements
which reads as follows: 18
(8) Hiring.-All window cleaners shall be employed through the office of
the Union. If the Union cannot furnish workers as required, the Employer may
secure from other sources such workmen as he desires, it being understood that
such workmen shall, before going to work, be sent to and apply within twenty-
effectuate the purposes of the Act to assert jurisdiction over their operations and that no
sanctions would be imposed by the National Labor Relations Board for any conduct
allegedly in violation of the Act. First, it is not unlikely that under the jurisdictional
standards which prevailed in 1953 the Board would have asserted jurisdiction over Detroit.
(Considerable evidence was adduced at the hearing as to whether the operations of Detroit
meet the jurisdictional formula set forth in Hollow Tree Lumber Company, 91 NLRB 635.
Since the jurisdictional standard enunciated in the Hollow Tree Lumber Company case has
been revised by the Board recently, it has become unnecessary for me to resolve the con-
flicting contentions in that regard. In any eNent, if Detroit's operations in 1953 were
below the minimum figure which the Board then required before it would assert its juris-
diction, it fell below such figure by such small amount that the Company when it dis-
charged Elinsky could not reasonably have acted in reliance upon the fact that the
Board would not exercise its jurisdiction in any case arising from such discharge.)
Second, in 1954 Detroit again became subject to the Board's jurisdiction, not because of
change in Board policy, but because of Detroit s voluntary action in rejoining the Asso-
ciation. Cf. N. L. R. B. v. Guy F. Atkinson, ct al, 195 F. 2d 141 (C A. 9) ; John Almeida,
etc, 99 NLRB 498, Tom Thumb Stores, Inc, 95 NLRB 57; Screw Machsne Products
Company, 94 NLRB 1609; Yellow Cab Company of California, 93 NLRB 766.
16 Tacoma Harbor Lumber and Timber Go, 108 NLRB 912.
17 N L. R B v. George D. Auchter Co, 209 F. 2d 273 (C. A 5) , N. L. R. B. v. Gottfried
Baking Company, Inc, et at., supra
18Although the Trial Examiner denied the General Counsel's untimely motions to amend
the complaints herein by setting forth paragraph numbered 8 of the aforesaid contracts as
an additional and separate allegation of unfair labor practices on the part of the Re-
spondents,' nevertheless, reference may be made to this provision, as well as the balance
of the contract, to amplify and explain the closed-shop clause specifically alleged in the
complaints to be unlawful.
CITY WINDOW CLEANING COMPANY 917
four ( 24) hours to the Union office for membership . No workman shall be
refused admittance to the Union, provided he complies or has complied with
the rules and regulations of the Union.
Despite the unlawful character of the closed -shop provision in the aforesaid con-
tracts, because the earliest of the 7 charges and amended charges which initiated these
proceedings was filed and served on January 26, 1954 , more than 6 months after the
contracts were signed , a violation of the Act may not be founded upon the execution
of the contracts by the Respondents herein by reason of the time limitation on the
issuance of complaints provided for in Section 10 (b) of the Act. However , Section
10 (b) of the Act does not preclude an unfair labor practice finding based upon the
fact that the unlawful closed-shop provision of the contracts was continued in effect
by the parties thereto during the times embraced by the charges and coniplaints.la
The contracts , although consummated in June 1953 , provide that they shall be
effective for a term of 1 year beginning retroactively on April 15, 1953, and shall
continue in operation thereafter until negotiations are effected for a new agreement.
The 1953 contracts have not been renewed , superseded , or rescinded by the parties
thereto . Thus, the contracts by their terms have continued in force during the period
beginning 6 months before the filing and service of the charges in these cases to the
dates of the hearings . As long as these agreements in violation of the Act are in force
a continuing offense under the Act is being committed 20
Respondent City contends that it never had enforced the closed -shop provision of
its contract with the Union . However, City adduced no evidence showing that it had
repudiated the closed-shop clause in its 1953 collective -bargaining agreement. The
fact that City may have advised one employee , Michael Elinsky , that it would not dis-
charge him for failure to pay a union fine is not evidence of its disavowal of all the
unlawful aspects of its contract . Thus, there is no evidence that City would not
discharge Ehnsky or any other employee for failure to tender to the Union periodic
dues or initiation fee uniformly required as a condition of acquiring or retaining mem-
bership therein , or that it would hire any employees in the work classfication covered
by the contract with the Union who was not a member of the Union or who within
24 hours after his employment would not apply for membership in the Union. The
sparse evidence in the record on the subject of City's compliance with the closed-shop
provision of its contract indicates that City has observed the practice of hiring window
cleaners exclusively through the Union , which gives rise to a reasonable inference that
City has discriminated against applicants for employment as window cleaners. I find
no merit in City's contention that it is absolved of responsibility for maintaining in
effect a collective-bargaining agreement containing an unlawful closed-shop clause
because it would not enforce such illegal provision.
Although , with the exception of Detroit , there is only scant and inconclusive evi-
dence in the record that any of the Respondent Employers have implemented the
closed-shop clause of their 1953 collective-bargaining agreements by specific conduct
in furtherance thereof, there is no evidence that any of the Employers abrogated such
provision . In the circumstance , the existence of the unlawful closed -shop clause in
the subsisting collective -bargaining agreements covering the terms and conditions of
employment of the employees covered thereunder interferes with , restrains , and co-
erces employees in the exercise of the rights guaranteed them in Section 7 of the Act,21
creates discriminatory conditions of employment encouraging membership in the
Union ,22 and constitutes illegal support of the contracting Union ,23 in violation of
Section 8 ( a) (1), (2), and ( 3) of the Act.24 The fact that the Respondents may
not have had occasion during the term of the contracts to enforce their unlawful closed-
shop provision does not dissipate the unlawful effects of the agreements or preclude a
finding that the Companies violated these sections of the Act25 Similarly, maintaining
in effect the illegal provisions of its contracts with the Respondent Employers herein
is an unlawful attempt by the Union to cause the contracting Employers to violate
Section 8 (a) (3) of the Act because it creates conditions which would result in dis-
10 George D. Auchter Company, 102 NLRB 881, 883, enfd 209 F. 2d 273 (C. A. 5) ;
Leo Katz, et at. v. N. L. R B., 196 F. 2d 411 (C. A. 9).
0 N L R. B. v F. H. McGraw and Co , 206 F. 2d 635 (C A. 6) ; Paul W. Speer, Inc.,
98 NLRB 212; Sterling Furniture Company, 94 NLRB 32, affd. 202 F. 2d 41 (C. A 9)
at N. L. R. B. v. Philadelphia Iron Works, Inc, 211 F. 2d 937 (C. A 3).
22 N L. R. B v Gottfried Baking Co , Inc, supra.
23 Technical Porcelain and Chinaware Company, 99 NLRB 21 ; Julius Rcsnick, Inc
86 NLRB 38, 40
2A Federal Stores Division of Speigcl. Inc, 91 NLRB 647, enfd. 196 F 2d 411 (C A 9).
25 N. L. R B v. F. H. McGraw and Co., supra; Rockaway News Supply Company, Inc,
94 NLRB 1056.
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
crimination26 and constitutes unlawful restraint and coercion by the Union upon
employees in the exercise of rights guaranteed in Section 7 of the Act,27 in violation
of Section 8 (b) (1) (A) and (2) of the Act.
I find no merit in the Union's contention that the "savings clause" in paragraph
numbered 7 of its 1953 contracts 28 neutralizes the unlawful character of the closed-
shop provision. This clause lacks the necessary specificity to apprise the employees
covered by the contracts and others that the operation of the closed-shop provision
is suspended during all periods of time that it contravenes the Act. Furthermore, not
only is there a complete absence of evidence that the Union was not enforcing the
closed-shop provision of its contracts during the periods of time material hereto, but
the testimony adduced at the hearing indicates the contrary. Therefore, the inclusion
of the vague "savings clause" in the 1953 contracts does not purge the closed-shop
provision of its illegality 29
I do not find upon the record herein that the General Counsel has established by a
preponderance of the evidence that the Association, during the times material hereto,
has been responsible for maintaining in effect the unlawful provisions of the aforesaid
contracts. Although the Association's name appears on the agreements, the evidence
shows that the Association did not sign any of the contracts with the Union. Further-
more, there is no evidence that since the conclusion of the negotiations for the 1953
contract the Association has taken any action whatsoever to maintain in effect the
unlawful closed-shop provision of the contracts. Regardless of whether the Associa-
tion's conduct in the course of the negotiations for the 1953 contract might have been
violative of the Act, since such conduct cannot form the basis of an unfair labor prac-
tice finding being barred by the limitations period of Section 10 (b), there remains a
complete absence of incriminatory evidence against the Association for the period of
time material hereto. Accordingly, I shall recommend that the complaint against the
Association be dismissed.30
B. The discrimination against Elinsky
The complaints against City, Detroit, and the Union allege that, at the Union's
demand, City on or about August 18, 1953, and Detroit on or about August 26, 1953,
discriminatorily discharged Michael Elinsky. City and the Union deny these allega-
tions. City contends that it did not discharge Elinsky, but that he quit voluntarily.
Detroit, on the other hand, admits the allegations against it, but by way of defense
asserts that it discharged Elinsky only in response to coercion upon it by the Union.
The events herein involving Elinsky spring from a fine of $200 which the Union
imposed upon him in June 1953 and which Elinsky has refused to pay. Elinsky testi-
fied that in the morning of August 19, 1953, while he was employed by City, William
Switzen, City's foreman, discharged him. This was denied by Switzen, as well as
Louis Goren, City's managing partner. Switzen testified that in July 1953, Thomas
Martino, the Union's business agent, told him that Elinsky had been fined by the
Union and Elinsky should not be permitted to work until he paid the fine. Because
he "was being bothered so much over the 'phone to stop Mr. Elinsky from working,"
on the night of August 18, 1953, Switzen telephoned Louis Goren at the latter's home -
and made an appointment for Goren to come to the office early the next morning.
When Elinsky reported for work at 6 a. in. on the morning of August 19, according to
Switzen, "I told Mr. Elinsky I am not putting him to work that morning, to wait and
see Mr. Goren and get this matter straightened out" (referring to the union fine).
But Elinsky said, "To hell with it," and left. During this conversation Elinsky asked
for a layoff slip but Switzen told Elinsky that he (Switzen) couldn't give Elinsky a
layoff slip because Elinsky was not being laid off and he had no authority to lay off
Elinsky. Switzen further testified he had no authority to discharge any employee.
20N. L. R. B v. National Maritime Union of America, 175 F 2d 686, 689 (C A 2),
cert denied 338 U. S 954; Local 57, International Union of Operatinq Engineers, at at,
97 NLRB 386
27 N. L R. B v Philadelphia Iron Works, Inc., sups a.
21 The clause is as follows
Whenever a conflict shall appear between this contract and any legislation, or be-
tween this contract and any Governmental regulation, this contract shall yield to
such legislation or regulation.
29N. L. R B. v Gottfried Baling Company, Inc, at al, supra; Ebasco Services In-
corporated, 107 NLRB 617
30 Cf N L. R B. v. Sterling Furniture Company, 202 F. 2d 41 (C A 9) and George D.
Auchter Co, supra, in which cases the associations were signatories of the unlawful
collective-bargaining agreements.
CITY WINDOW CLEANING COMPANY 919
Louis Goren testified that only he on behalf of City exercises authority to discharge
employees and that he did not discharge Elinsky or instruct anyone else to discharge
Elinsky. He further testified that when Switzen telephoned him about Elinsky on the
night of August 18, he told Switzen to keep Elinsky in the office the next morning 31
because he wanted to talk to Elinsky and try to settle the dispute between Elinsky and
Martino.
Elinsky's version of his conversation with Switzen on August 19 differs from
Switzen's in only one material respect. According to Elinsky, Switzen said, "he
couldn't put me [Elinskyl to work, it was Martino's orders. He [Martino] called up
and `told me [Switzen] not to put you to work' . . . I [Elinsky] asked him for a lay-
off slip, and he said he couldn't give it to me, it was the union that was doing it laying
me off. . . I waited until the boys all left to work, and then I left, myself, went
home." 32 Thus, the only significant difference between Switzen's and Elinsky's ver-
sions of their August 19 conversation lies in Elinsky's denial that Switzen told him to
wait for Mr. Goren. I do not credit Elinsky's denial. Of the two, Switzen impressed
me as being the more reliable witness. Among other factors upon which such impres-
sion was based are that Switzen appeared to possess the more certain recollection of
past events and appeared to have exercised greater effort to give accurate testimony.
The credited evidence supports City's contention that Elinsky was not laid off or dis-
charged on August 19. Elinsky, instead of waiting to speak to Mr. Goren, as he
was requested to do, walked out of the office and therefore did not ascertain the reason
he had not been assigned work on the morning of August 19.33 The testimony of
Switzen and Goren demonstrates that City had no intention of terminating Elinsky's
employment. Accordingly, the only construction that can be placed upon the entire
transaction is that Elinsky voluntarily quit his employment on August 19.
Even were Elinsky's version of his conversation with Switzen accepted, such
testimoifJ would not spell out a discriminatory discharge. Elinsky not only testi-
fied thafaSwitzen did not use the word "discharge" in their conversation, but further
testified, on cross-examination, that Switzen refused to give him a layoff slip and
that "he [Switzen] says he wasn't firing me. It was Martino that was causing all
of that." Elinsky made no attempt whatsoever to ascertain from Switzen, Goren,
or any other responsible official of City what his status with the Company was or
whether his employment was being terminated, temporarily or permanently. Elinsky's
testimony considered alone is clear in only two respects, namely, that Switzen in
the morning of August 19 said (1) he was not assigning Elinsky to a job immediately
and (2) Switzen was not firing him. Absent further clarification of this testimony,
it does establish with the certainty necessary to support an unfair labor practice find-
ing that on August 19 Switzen discharged or laid off Elinsky.
City's contention that it did not discharge or lay off Elinsky in August 1953 is fur-
ther supported by the testimony of Marion Aureli and Rebecca Bernstein, City's
bookkeepers. They testified that during the week following August 19, when
Elinsky reported to the office to collect his paycheck for the work he performed
on August 17 and 18, in response to a query from Mrs. Aureli as to why he was
not working, Elinsky said he had been fined by the Union, that he'd be damned
if he was going to pay the fine, and he would quit first. Aureli and Bernstein
further testified that City's employees are paid on Tuesdays for work performed
during the previous week, that whenever an employee is discharged they are advised
of the fact and prepare the check for the discharged employee specially. Thus,
according to their testimony, had Elinsky been discharged on August 19 and normal
practices were followed, they would have received such advice the same day and
31 Elinsky was employed as a window cleaner. The practice at City is for the window
cleaners to report to City's office each morning at which time Switzen gives them their
assignments for the day. The work of the window cleaners is performed at the premises
of City's customers.
32Elinsky's version of the incident was corroborated by George Pope who overheard
part of the conversation between Elinsky and Switzen. However, Pope left the office
before Elinsky and his testimony indicates that he did not hear all the conversation. For
instance, Pope did not testify that he heard the discussion about a layoff slip which both
Elinsky and Switzen agree took place
33 The fact that Elinsky was not assigned to a job upon reporting to City's office on
August 19 does not indicate that he would have suffered any loss of pay on that day. The
evidence shows that the employees' pay is computed from the time they report to the
Company's office rather than from the time they actually begin cleaning windows at the
premises of City's customers There is nothing in the record to indicate that had Elinsky
waited at the office to be interviewed by Goren, he would not have been assigned to work
and been paid for a full day.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would have prepared specially his check for the work he performed until the time
of his discharge. However, they did not receive any advice that Elinsky was dis-
,charged and therefore did not prepare his paycheck for the work he performed dur-
ing the week which included August 19, until the following week when they pre-
pared the payroll for all employees 34
Upon the basis of the foregoing, I find that the General Counsel has failed to
establish by a preponderance of the evidence that City discriminatorily terminated
the employment of Michael Elinsky. I also find that the General Counsel has
failed to prove, as alleged in the complaint in Case No. 7-CB-188, that on or about
August 18, 1954, the Union caused City to terminate Elinsky's employment. Wil-
liam Switzen testified that in July 1953 Martino in a telephone conversation asked
him to stop Elinsky from working until the latter paid the union fine. However, this
event preceded the filing of the charges in Case No. 7-CB-188 by more than 6
months 35 and therefore cannot support an unfair labor practice finding. Although
there is hearsay evidence and some circumstantial evidence in the record which raise
a suspicion that Martino renewed the request upon City within the period of limi-
tations, such evidence does not have sufficient probative weight to sustain the Gen-
eral Counsel's burden of proof that the Union caused or attempted to cause City to
discriminate against Elinsky in violation of Section 8 (a) (3) of the Act.
After his employment with City terminated Michael Elinsky was hired by Detroit
,on August 24, 1953, as a window cleaner. He was discharged by Detroit on August
31, 1953. The evidence concerning Elinsky's discharge by Detroit is uncontra-
dicted. Pearl M. Heuser, Detroit's bookkeeper, testified that on August 31, 1953,
in a telephone conversation, Thomas Martino advised her that if Elinsky was
working for Detroit the Company would have to discharge him because he was not in
good standing with the Union. Miss Heuser transmitted this information to re-
sponsible officials of Detroit, and Elinsky was discharged the same d4ay,. By
way of defense Detroit asserts that Elinsky's discharge was a product of the .'Union's
coercion and did not reflect its free choice. However, an employer is under a duty
to resist such domination of its management functions. It cannot escape responsibility
for the consequences resulting from an unfair labor practice because its conduct was
dictated by union pressure.36
Because the union-security clause in the contract between Detroit and the Union
was unlawful, Elinsky's discharge by Detroit for the reason that he was not in good
standing with the Union was a discrimination with regard to his hire and tenure em-
ployment, in violation of Section 8 (a) (3) of the Act, and served to interfere with,
restrain, and coerce employees in the exercise of the rights guaranteed in Section
7 of the Act, in violation of Section 8 (a) (1) thereof.37 Furthermore, it is evident
from the record that Elinsky was not in good standing with the Union because of his
failure to pay a union fine and his discharge for such reason was a violation of the
Act even were the union-security provisions of Detroit's contract lawful.38 The
Union by causing Detroit to discriminate against Elinsky violated Section 8 (b) (2)
of the Act and by such conduct also restrained and coerced employees in the exer-
cise of rights guaranteed in Section 7 of the Act, in violation of Section 8 (b) (1)
(A) thereof.
C. The attempt to cause discrimination against Pressey
In Case No. 7-CB-186, the complaint alleges that the Union and Thomas
Martino, its business agent, violated Section 8 (b) (1) (A) and 8 (b) (2) of the
Act by reason of Martino's demand upon Prudential Window Cleaning Company,
herein referred to as Prudential, to discharge Francis M. Pressey. As in the case
of Elinsky , the alleged unfair labor practice arises from a $100 fine which was levied
upon Pressey by the Union in June 1953 and which the latter refused to pay.
Pressey testified that on December 16, 1953, Martino, while at Prudential's shop,
a+ I credit the testimony of Aurell and Bernstein . Elinsky did not deny that he told
Mrs Aureli about the union fine Also, he did not contradict their testimony that he
told Mrs Aureli that he would quit , but merely testified that he didn ' t remember saying
anything to Mrs Aureli about quitting his job
The original charge was filed by Elinsky on February 12, 1954, and an amended
charge was filed on April 19, 1954
° N. L R B. v. Bell Aircraft Corporation , 206 F. 2d 235 (C A. 2) ; N. L. R. B. v. Pappas
end Co , 203 F 2d 569 (C A 9)
3'+ Local 803 , International Brotherhood of Boilermakers, 107 NLRB 1011.
38 The Great Atlantic & Pacific Tea Company ( Pittsburgh Bakery ), 110 NLRB 918 and
cases cited in footnote 3 thereof.
CITY WINDOW CLEANING COMPANY 921
asked Pressey if he was working there. Although Pressey answered that he was not,
Martino turned to Pasquale Stronati, Prudential's sole proprietor, and said that if
Pressey was working for Prudential he (Martino) would pull the shop ( meaning
call a strike of Prudential's window cleaning employees). Pressey's testimony in
this respect was corroborated by the testimony of James Price and Stronati. Stronati
further testified that Martino made similar demands and threats upon him on another
occasion in December 1953 and also in April or May 1954. Martino admitted that
he spoke to Stronati in regard to Pressey's fine but denied that he asked or. made
a demand upon Stronati to discharge Pressey. Despite Martino's denial, which I
do not credit, and the fact that Martino's efforts to induce Prudential to discharge
Pressey were not successful,39 I find that the General Counsel has established by a
preponderance of the evidence that within the times embraced by the charges and
complaints herein, the Union and Martino attempted to cause Prudential to dis-
criminate against Pressey in violation of Section 8 (a) (3) of the Act and by
reason of such conduct Martino and the Union, which was Martino's principal
with respect to these events, have violated Section 8 (b) (1) (A) and (2) of the Act.
The General Counsel adduced no evidence directed towards proving the allega-
tion in the complaint in Case No. 7-CB-186 that Thomas Martino caused Pru-
dential to enter into an illegal closed-shop arrangement with the Union and to
retain such arrangement in effect. Accordingly, I shall recommend that the com-
plaint be dismissed in this respect.
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, 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 com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents herein, except the Association, have engaged
in certain unfair labor practices, it will be recommended that they cease and desist
therefrom and take affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent Employers have violated Section 8 (a) (1),
(2), and (3) of the Act by maintaining and giving effect to a collective-bargaining
agreement with the Union containing an illegal closed-shop provision. In accordance
with the Board's established policy in such cases, it will be recommended that they
withdraw recognition from the Union as the collective-bargaining representative of
their employees and cease giving effect to their contracts, entered into in June 1953,
with the Union, or to any modification, extension, supplement, or renewal thereof,
unless and until the Union shall have been certified by the Board as the collective-
bargaining representative of the employees concerned.40 Nothing in this recom-
mendation, however, should be construed to require the Respondent Employers
to vary or abandon those wage, hour, seniority, or other substantive features of the
relationship between them and their employees which may have been established
pursuant to the aforesaid agreement.
It has also been found that the Union has violated Section 8 (b) (1) (A) and
(2) of the Act by maintaining and giving effect to its contracts entered into in
June 1953 with the above-named Employers. Accordingly, it will be recommended
that the Union cease and desist therefrom and refrain hereafter from entering into,
renewing, or enforcing any contract, arrangement, or understanding with the
Respondent Employers providing for preferential hiring of members of the Union
or requiring membership in the Union as a condition of employment, except to
the extent permitted by Section 8 (a) (3) of the Act.
It has further been found that Respondent Detroit, at the request and demand of
the Union, on August 31, 1953, discriminatorily discharged Michael Elinsky. The
record discloses that on May 3, 1954, Detroit offered to Michael Elinsky uncon-
ditional reinstatement in his former job. Thus, it is unnecessary to include in the
recommendations herein that the Company offer Elinsky employment in his former
39 N L R. B v. George D Auchter Co, supra.
46 Ebasco Services Inco, porated, 107 NLRB 617; Sti auss Stores Corporation, et at,
94 NLRB 440; Julius Resnuck, Inc, 86 NLRB 38; Leo Katz v N L R B, 196 F. 2d 411
(C. A. 9). But see N. L R 0 v Gaynor News Company, Inc., 197 F. 2d 719 (C. A. 2),
affd. 347 U. S 17.
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
job. However, it will be recommended that Respondent Detroit and Respondent
Union, jointly and severally, make Michael Elinsky whole for any loss of earnings
he may have suffered in consequence of the discrimination against him by payment
to him of a sum of money equal to that which he normally would have earned
from August 31, 1953, to May 3, 1954, less his net earnings during this period.
Back pay shall be computed in accordance with the formula set forth in F W. Wool-
worth Company, 90 NLRB 289.
In my opinion, the Respondent Employers herein, by maintaining and continuing
in effect the illegal closed-shop provision of their 1953 contracts, have violated the
letter and the spirit of the Act. Their violations of the Act, herein found, are per-
suasively related to other unfair labor practices proscribed by the Act, and the danger
of their commission in the future is to be anticipated from Respondents' conduct in
the past.41 The preventive purposes of the Act will be thwarted unless the remedial
order is coextensive with the threat. In order, therefore, to make effective the inter-
dependent guarantees of Section 7 of the Act, to prevent the recurrences of unfair
labor practices, and thereby to minimize industrial strife which burdens and obstructs
commerce, and thus to effectuate the policies of the Act, it will be recommended that
the Respondent Employers cease and desist from in any manner infringing upon
rights guaranteed employees in Section 7 of the Act. Like the Respondent Employ-
ers herein, the Union has flagrantly attempted to avoid its statutory obligations by
maintaining and enforcing the illegal closed-shop provision of its contracts with the
said Employers, by causing Detroit discriminatorily to discharge Michael Elinsky
and by attempting to cause Prudential discriminatorily to discharge Francis M.
Pressey. It will therefore be recommended that the Union cease and desist from in
any manner causing or attempting to cause any of the Respondent Employers to
discriminate against employees in violation of Section 8 (a) (3) of the Act, as
amended, and in any manner infringing upon the rights guaranteed employees in
Section 7 of the Act. The same recommendation will also be directed to Thomas
Martino, the Union's business agent, who by his unlawful conduct, hereinabove
found, demonstrated the same lack of regard for employee rights protected by
Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
these cases, I make the following.
CONCLUSIONS OF LAW
1. By maintaining and continuing in effect, during the times material hereto, the
illegal closed-shop provision in their 1953 contracts with the Union, the Employers
(except the Association) named in the caption in Case No. 7-CA-1084 have engaged
in and are engaging in unfair labor practices within the meaning of Section 8 (a)
(1), (2), and (3) of the Act.
2. By maintaining and enforcing the illegal closed-shop provision in its 1953
contracts with the Respondent Employers herein, the Union during all times material
hereto engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (b) (1) (A) and (2) of the Act.
3. Respondent Detroit by discriminatorily discharging Michael Elinsky on August
31, 1953, engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (1) and (3) of the Act.
4. Respondent Union by causing Respondent Detroit discriminatorily to discharge
Michael Elinsky and the Union together with its business agent, Thomas Martino,
by attempting to cause Respondent Prudential discriminatorily to discharge Francis
M. Pressey engaged in and are engaging in unfair labor practices within the meaning
of Section 8 (b) (1) (A) and (2) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
6. Respondent Association has not engaged in any unfair labor practices within
the meaning of the Act.
7. Respondent City and Respondent Union have not engaged in any unfair labor
practices by reason of the termination of employment of Michael Elinsky by Re-
spondent City on August 19, 1953.
8. Thomas Martino has not, in violation of the Act, caused Respondent Pru-
dential to enter into and retain in effect a contract containing an unlawful closed-
shop provision.
[Recommendations omitted from publication.]
41 N L B B v Express Publashuiag Company, 312 U S 426.
CITY WINDOW CLEANING COMPANY 923
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations, of a Trial Examiner 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 withdraw and withhold all recognition from Detroit Window
Cleaners Union, Local No. 139, Building Service Employees International
Union, AFL, as the collective-bargaining representative of any of our employees
for the purposes of dealing with us concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of employment, unless
and until said labor organization shall have been certified by the National
Labor Relations Board as such representative.
WE WILL NOT perform, enforce, or give effect to our 1953 contract with
Detroit Window Cleaners Union, Local No. 139, Building Service Employees
International Union, AFL, or to any modification, extension, supplement, or
renewal thereof unless, and until said organization shall have been certified by
the National Labor Relations Board.
WE WILL NOT encourage membership in said Union, or any other labor
organization, by discriminating against employees in regard to hire, tenure
of employment, or terms and conditions of employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in their right to engage in or refrain from engaging in any or all
of the activities guaranteed in Section 7 of the Act, except to the extent that
such rights may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section 8 (a) (3)
of the Act.
WE WILL make Michael Elinsky whole for any loss of earnings he may have
suffered as a result of the discrimination practiced against him.'
All our employees are free to become, remain, or refrain from becoming members
of any labor organization, except to the extent that this right may be affected by
agreements in conformity with Section 8 (a) (3) of the National Labor Relations
Act, as amended.
----------------------------------------------
Employer.
Dated---------------- By------------ --------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
'This paragraph shall be included only in the notice to be posted by Detroit Window
Cleaning Company.
APPENDIX B
NOTICE TO ALL MEMBERS OF DETROIT WINDOW CLEANERS UNION, LOCAL No. 139,
BUILDING SERVICE EMPLOYEES INTERNATIONAL UNION, AFL
Pursuant to the recommendations of a Trial Examiner 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 cause or attempt to cause Allied Window and Building Com-
pany, Clearvue Window Cleaning Company, Daelyte Service Company, Eagle
Window Cleaning Company, Expert Window Cleaning Company, Industrial
Window Cleaning Company, Mutual Window Cleaning and Painting Com-
pany, National Window Cleaning Company, Prudential Window Cleaners,
Service Window Cleaning and Painting Company, Dick Vanders Window
Cleaning Company, Westside Window Cleaning Company, American Window
Cleaning Company, Michigan Window Cleaning Company, Detroit Window
Cleaning Company, J. S. Calder Company, Ensign Maintenance Company, and
City Window Cleaning Company, their officers, agents , successors , and assigns,
to discriminate in any manner against employees in violation of Section 8 (a)
(3) of the Act.
924 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner restrain or coerce employees of the
aforesaid Companies in the exercise of the rights guaranteed to them by
Section 7 of the National Labor Relations Act, as amended , except to the
extent that such rights may be affected by an agreement requiring membership
in a labor organization as a condition of employment , as authorized by Section
8 (a) (3)•ofthe'Act.'
WE WILL cease giving any effect to , performing , or enforcing the collective-
bargaining agreements entered into with the aforesaid Employers in 1953,
or any extensions, renewals, or modifications of said agreements , unless and
until the Union shall have been certified by the National Labor Relations Board
as the bargaining representative of the employees covered by said contracts.
WE WILL cease the practice of requiring employees of the aforesaid Em-
ployers, as a condition of employment , to be members of Detroit Window
Cleaners Union , Local No . 139, Building Service Employees International
Union , AFL, except to the extent that membership in such organization may
be required as a condition of employment by a valid agreement , as authorized
in Section 8 (a) (3) of the Act.
WE WILL , discontinue the practice of requiring the aforesaid Employers to
give preference to members of Detroit Window Cleaners Union , Local No. 139,
Building Service Employees International Union , AFL, when hiring employees.
WE WILL make Michael Elinsky whole for any loss of earnings suffered
because of the discrimination against him.
DETROIT WINDOW CLEANERS UNION, LOCAL No. 139 , BUILDING
SERVICE EMPLOYEES INTERNATIONAL UNION, AFL,
Labor Organization.
Dated---------------- By----------------------------------------------
(Representative ) ( Title)
Dated---------------- By-------------------•---------------------------
(THOMAS MARTINO , Business Agent)
This notice must remain posted for 60 days from the date hereof, and must not be
altered , defaced , or covered by any other material.
Local Union No. 1, Sheet Metal Workers International Associa-
tion , AFL, and John Stables , Business Representative and
Refrigeration and Air Conditioning Contractors Association of
the Peoria Area
Pipe Trades Council No . 34, Local Union No. 353 of United As-
sociation of Journeymen & Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, AFL,
and William J. Galvin , Business Representative , and Harold E.
Messmer, Assistant Business Representative and Meyer Fur-
nace Company. Cases Nos. 13-CD-36 and 13-CD-37. November
4,1955
DECISION AND ORDER QUASHING NOTICE OF HEARING
This proceeding arises under Section 10 (k) of the Act, which pro-
vides that "Whenever it is charged that any person has engaged in an
unfair labor practice within the meaning of paragraph (4) (D) of
Section 8 (b), the Board is empowered and directed to hear and deter-
mine the dispute out of which such unfair labor practice shall have
arisen. . . ."
114 NLRB No. 140.