Pasadena Bowling Center

National Labor Relations Board - Board Decisions

Dec 30, 1964

150 N.L.R.B. 729 (N.L.R.B. 1964)

PASADENA BOWLING CENTER 729
Pasadena Bowling Center and Service & Maintenance Employees
Union, Local 399, Building Service Employees International
Union , AFL-CIO. Case No. 01-CA-5605. December 30, 1964
DECISION AND ORDER
On October 5, 1964, Trial Examiner David F. Doyle issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Decision. Re-
spondent filed exceptions to the Trial Examiner's Decision and the
General Counsel filed an answering brief, cross-exceptions, and a
brief in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection
with this case to a three-member panel [Chairman McCulloch and
Members Fanning and Brown].
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
Trial Examiner's Decision, the exceptions, the briefs, and the_ entire
record in this case, and hereby adopts the findings,' conclusions 2
and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board adopts, as its Order, the Order recommended
by the Trial Examiner and orders that Respondent, its officers,
agents, successors, and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order, with the following additions :
Add the following after paragraph 2(a) to the Trial Examiner's
Recommended Order :
I The Trial Examiner inadvertedly misstated the volume of Respondent ' s business The
record indicates , and we find, that Respondent, during the calendar year 1963 , purchased
and received at its place of business goods and materials valued in excess of $90,000,
of which goods and materials valued between $ 20,000 and $25 , 000 were obtained by
Respondent from California suppliers which in turn received these items by direct ship-
ment from points located outside the State of California The Decision is corrected
accordingly Similarly, the Trial Examiner did not find, although the record indicates,
that Respondent has refused to reinstate Jackson to his former or substantially equivalent
position We so find
2 While we agree that Jackson , in July 1963 , was discharged in violation of Sec-
tion 8 ( a) (3) because he elected to pursue his grievance (see, e g , Farmers Union Coop-
erative Ila ) keting Assn , 145 NLRB 1 ) and that the Respondent is liable therefor, we find
it unnecessary to pass upon and do not adopt the Trial Examiner 's findings as to the effect
of Respondent ' s change in location and ownership in September 1962, or as to the merit
of Jackson ' s claim that he was entitled to 3 weeks ' vacation
150 NLRB No. 65.
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstate-
ment upon application in accordance with the Selective Service Act
and the Universal -Military Training and Service Act of 1948, as
amended, after discharge from the Armed Forces." 3
The notice shall be amended by adding below the signature line the following:
WE WILL notify the above-named employee if presently serving in the Armed Forces
of the United States of his right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military Training and Service Act
of 1948, as amended, after discharge from the Armed Forces.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard by Trial Examiner David F.
Doyle in Los Angeles, California, on April 22, 1964, on complaint of the General
Counsel and answer of the Respondent. The issue litigated was whether the Respond-
ent had violated Section 8 (a) (1) and (3) of the Act by the discriminatory discharge
of Glen Jackson, an employee, on or about July 12, 1963.
At the hearing the parties were represented by counsel and were afforded full
opportunity to be heard, to present evidence, to examine and cross-examine witnesses,
and to submit arguments and briefs on the issues.'
From my observation of the witnesses, and upon the entire record in the case, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Pasadena Bowling Center is and was a partnership of certain individuals who
engaged in the business of operating a multilane bowling alley, poolroom, restaurant,
bar, and related services in Pasadena, California. For some years prior to August
1963, the business of Pasadena Bowling Center was conducted at 376 West Colorado
Boulevard in Pasadena. In August 1963, the Company moved its business from the
West Colorado Boulevard location to a larger modern building at 33' North Lake
Avenue in the same city.
At all times relevant hereto, and during operations at both locations, the Company
was a member of the Bowling Proprietor's Association of Southern California, Inc.,
herein called the Association. This body is an incorporated association of employers
engaged in the operation of bowling alleys in the southern California area, and exists
for the purpose, at least in part, of representing its members, including the Respondent,
in collective bargaining with various labor organizations, including the Union. The
members of the Association who are represented by it for the purpose of collective bar-
gaining, do a gross amount of business annually in excess of $500,000. During the
calendar year 1963 the Respondent, in the course of its business operations, purchased
and received at its place of business bowling pins, bowling balls, liquors, food, and
other goods and materials valued in excess of $200,000, of which goods and materials
valued in excess of $50,000 were transported to Respondent's place of business either
directly from sources in States of the United States other than the State of California,
or were obtained by Respondent from California suppliers who in turn received said
items by direct shipment from points located outside the State of California.
1 The charge herein was filed on October 14, 1963, by counsel for the Charging Party and
an amended charge was filed on February 17, 1964 The complaint herein was issued by
the Regional Director, Region 21, on February 25, 1964
In this Decision, Pasadena Bowling Center is referred to as the Company or the
Respondent ; Service & Maintenance Employees Union, Local 399, Building Service Em-
ployees International Union, AFL-CIO, as the Union; the National Labor Relations
Board, as the Board ; the General Counsel of the Board and his representative at the
hearing as the General Counsel; and the Labor-Management Relations Act, as amended,
as the Act.
On May 13, 1964, the General Counsel moved to correct the transcript of testimony
in three particulars. There being no objection, the order correcting transcript of testimony
is hereby granted.
PASADENA BOWLING CENTER 731
It is conceded by the Company and I find that the Respondent and the Association
are now, and have been at all times material herein , employers engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is not disputed and I find that the Union is, and at all times material herein has
been , a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issue
It is undisputed that this controversy has its source in a dispute between Ted Liebe],
principal partner in the Respondent , and Glen Jackson, an employee , as to whether
Jackson was entitled to 3 weeks ' paid vacation in 1963 or entitled to only 1 week's
paid vacation . It is the contention of the General Counsel that Jackson filed a
grievance on this dispute with the Union and because of that action , Liebel discharged
Jackson. It is the contention of the Respondent that in the course of the dispute over
the length of his vacation , Jackson voluntarily quit his employment.
Also, there are problems incidental to the main issue. At approximately the time
the Company moved from the West Colorado Boulevard location to the North Lake
location, the partners who comprised the first partnership changed and on Febru-
ary 25, 1964, Ted Liebel , the principal partner, died. These facts gave rise to sub-
sidiary questions as follows: ( 1) Is a successor partnership , whose majority interest
is held by one who had a majority interest in the predecessor partnership , accounta-
ble for unfair labor practices committeed by the predecessor partnership ? ( 2) Are
certain statements attributed to Ted Liebel , now deceased , admissible in evidence in
this proceeding?
B. The undisputed facts
It is undisputed that the Pasadena Bowling Center originated as an equal partnership
between Ted Liebel and Lester Green and that the business of the partnership was
conducted at 376 West Colorado Boulevard , in Pasadena . This bowling center had
12 lanes. In September 1962, the Pasadena Bowling Center moved to 33 North Lake
Avenue, in the same city . At this time three partners were added . Ted Liebel retained
a 51-percent interest ; Lester Green retained only a 22-percent interest and three new
partners named James Coppedge , William Fleming , and Clarence V. Castle, Jr.,
became owners of 27 percent of the partnership.
At the new location there were 24 lanes and improved facilities for restaurant, bar,
and all other incidental services . The pinsetting machines and most of the other
equipment were transferred to the new location. Many of the leagues which bowled
at the old location moved their tournaments to the new location, and the necessary
licenses such as the liquor license were transferred to the new location. All employees
of the Company at the old location , including Glen Jackson , were transferred to the
new location . The name "Pasadena Bowling Center" was retained.
In September 1963, J. R. Johnson , Ernest Hubbell, and Jerome Stewart, counsel for
the Company herein, bought the interest of Coppedge, Fleming, and Castle, and
changed the Pasadena Bowling Center into a limited partnership . Liebel and Green,
both of whom retained their previous interest , were named as the general partners
in the partnership agreement . This change in partnership structure brought no change
which affected either the management or operations of the Pasadena Bowling Center.
Liebel , as majority partner, at all times continued in control of the active management
of the Company and its labor relations with all its employees . Lester E. Green, the
other principal partner, at all times was fully employed in conducting the bookkeeping,
the financial affairs, and the incidental office work of the partnership. As stated
previously , Liebel died on February 25, 1964.
It is undisputed that Glen Jackson began his employment with the Company in
June 1958 when it was located at 376 West Colorado Boulevard . He was a mechanic
who maintained, repaired , lubricated, and adjusted all the machinery of the bowling
alley, especially the pinspotters . He was classified as an A mechanic according to the
terminology of the labor agreement hereinafter referred to. It is likewise undisputed
that the Association and the Union had a labor agreement covering the period July 1,
1960, to July 31 , 1963. Counsel stipulated that section 11 of the" contract entitled,
"Vacations and Holidays ," might be received in evidence and that the pertinent part
of this section is as follows:
Section 11 . Vacations and Holidays.
(a) When a regular employee , with the exception of pinsetters , has been in the
employ of the Employer for twelve ( 12) consecutive months, said employee shall
be entitled to and shall receive not less than ( 10) days vacation with pay.
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) When a regular employee, except pinsetters, has been in the employ of the
Employer for five (5) consecutive years, said employee shall receive fifteen (15)
days vacation with pay.
(c) Vacation pay shall be based on a forty (40) hour week at the regular
hourly rate of pay for said employee.
Counsel also stipulated that in the argument between Jackson and Liebel, which
will be related hereafter, if the business could be termed "continuous" then Jackson
was right and was entitled to 3 weeks' vacation; if the business was not "continuous"
then Liebel was right and Jackson was entitled to only 1 week's vacation.
The contract also has a provision for the handling of grievances in specified steps;
in the first step, the employee and the employer are to try to adjust their differences;
at-the second step, the Union's representative and a representative of the Association
are to try to settle the difference; and so forth, until the difference is settled by arbitra-
tion or an authorized strike by the Union.
C. The dispute
Glen Jackson testified credibly and was corroborated by several credible witnesses
as to various features of his testimony. Jackson testified that in the year 1962 he was
entitled to 2 weeks' vacation pursuant to the contract, but, by arrangement with Liebel,
he actually took time off for 1 week and accepted pay in lieu of time off for the second
week. In mid-June 1963, while at work, he stopped Liebel and asked him how he
would like Jackson to take his vacation; would Liebel prefer Jackson to take a com-
bination of time off and pay or would be prefer to pay him 3 weeks' pay in one
lump sum in lieu of a vacation. Liebel said that Jackson was entitled to only 1 week's
vacation, because of the fact that the Pasadena Bowling Center was "a new business"
and Jackson was in his first year of employment by the new business. Jackson said
that he couldn't agree with that since he had been continuously employed by Liebel
and the Pasadena Bowling Center for the past 5 years, and that although the business
had moved, it had the same name, the same employees, the same management, the
same equipment, and the same bowling leagues as customers. Liebel said that it was
"a new business" because it had "a new location and a new building and a new part-
nership." A few days later Liebel stopped Jackson and asked if Jackson had decided
to take the 1-week vacation which Liebel offered to him. Liebel again said that it was
"a new business" because it was in a new building, at a new location, with new partners.
Jackson again argued that it was the same business, with the same employees, the same
equipment, and the same management, and that he was entitled to 3 weeks' vacation.
He also told Liebel that he could not accept 1 week's vacation because by that action
he would be conceding the fact that it was a new business, and in future years he
would not be eligible for his full vacation of 3 weeks Jackson argued that if he con-
ceded that he was not entitled to 3 weeks' vacation in 1963, he would have to
serve 5 years more in employment in order to reach 3 weeks' vacation rights under
the labor agreement.
A few days later Liebel and Jackson resumed the argument and they agreed to phone
the grievance secretary of the Union and ask her opinion and guidance in the dispute.
Jackson phoned Mrs. Elinor Crain, who has the title of grievance secretary, at the
union hall. He explained the difficulty of Liebel and himself to Crain and then each
man spoke to Crain, giving his side of the argument. After listening to both of 'the
disputants, Crain said that she thought it was the same business, but she could not be
sure until she had looked into the matter a little further.
A day or two later the argument was resumed and at this time Liebel said that he
would be willing to compromise and give Jackson 2 weeks' vacation. Jackson again
told Liebel that he would not compromise because of the fact that such a compromise
would endanger his vacation rights in future years. A few days later Jackson phoned
Crain and told her that he had failed to adjust his difference with Liebel and that he
wished to file a grievance against the Pasadena Bowling Center. Thereafter Ted
Murakami, the business agent for the Union, took over the handling of the grievance.
Murakami had approximately six interviews with Liebel on the grievance.
On or about July 12, 1963, Liebel summoned Jackson to a table on the concourse of
the bowling lanes. Liebel then told Jackson that he was tired of being bothered by
Murakami about Jackson's grievance,and that he had decided that if Jackson did not
accept 2 weeks' vacation and drop his grievance, Liebel would fire him. Liebel told
Jackson to think on it, over night, and to let Liebel know his decision on the next day.
On the next day Jackson looked for Liebel, and when Liebel did not appear, Jackson
went to Jim LaGrutta, the manager of the lanes. He said to LaGrutta, "I thought over
the ultimatum that Mr. Liebel gave me, and I decided that I'm going to continue my
Union grievance." Then Jackson continued, saying, "and I guess that's it, huh?"
LaGrutta replied in the affirmative, and then said, "I think you are making a mistake."
PASADENA BOWLING CENTER 733
Jackson replied, "Well, maybe I am, but I'm going to stick up for my rights." Jackson
then asked LaGrutta if he had a replacement for him and LaGrutta replied in the
negative, but assured Jackson that he could get a replacement readily. With that,
Jackson left the Pasadena Bowling Center.
Jackson was a most convincing witness and his testimony was supported, by the
equally credible testimony of Elinor Crain, Ted Murakami, and Gilman W. Page. I
credit the entire testimony of these witnesses.
Lester E. Green, the partner mentioned previously, was called by the General
Counsel as a witness and examined under rule 43b of the United States District Court
Rules. Green testified that Liebel was the active manager of the business until the day
that he died. Green said that he had a conversation with Jackson a short time after
July 13, 1963. They discussed Jackson's vacation and Green told Jackson the same
thing that Liebel had told him, that the Pasadena Bowling Center was a "new organiza-
tion," a "new place," but Jackson still claimed that he was entitled to 3 weeks' vacation.
Green testified that he and others in management had figured it out that Jackson was
entitled to 1 week because he had been at the new location just about a year. In the
course of questioning by the Trial Examiner, Green agreed that Jackson began working
for the Pasadena Bowling Center in 1958, and that he was entitled to 3 weeks' vaca-
tion, "if it was the same organization." Green testified that he and others in manage-
ment took the position that this was a new organization because three partners had
been added and operations were conducted in a new building.
Vincent J. LaGrutta was called as a witness for the defense. LaGrutta testified that
on one occasion Liebel asked him to sit down at a table in the concourse with himself
and Jackson to discuss the difference between Liebel and Jackson as to the extent of
Jackson's vacation. Liebel wanted LaGrutta in the conversation because he was the
bowling manager. LaGrutta explained that Jackson came to him and told him that he
was entitled to 3 weeks' vacation and explained the basis of his claim. LaGrutta told
Jackson that he would have to discuss the matter with Liebel, because Jackson's claim
was-based on his having worked in the "old" bowling alley and LaGrutta had not
worked for the Company at the "old bowling alley." LaGrutta explained that he knew
the facts of Jackson's employment only at the "new" bowling center. After talking to
Jackson, LaGrutta explained the basis of Jackson's claim to Liebel. Liebel said that
he would think it over. A few days later Jackson, Liebel, and LaGrutta discussed the
matter at a table in the concourse of the lanes. Jackson reviewed the facts and told
Liebel that he thought he should get 3 weeks' vacation. Liebel took the position that
Jackson was only entitled to 1 week's vacation, but on this occasion Liebel said that he
would split the difference with Jackson and give him 2 weeks' vacation. After discuss-
ing it further Jackson said that he would quit "before he would take the two weeks
vacation." Liebel then pointed out to Jackson that Jackson had been working for him
for a good number of years and that he felt that Jackson was a son of his. - Then he
said to Jackson, "Why quit a good job?" Jackson said he would think it over. A
couple of days later, Jackson came to LaGrutta and said that he was not going to take
the 2 weeks' vacation, that he was going to quit.
LaGrutta denied that Liebel ever told Jackson that if Jackson did not take the com-
promise of 2 weeks that Liebel would fire him.
Concluding Findings
Upon a consideration of all the evidence, it seems clear that the testimony of Jackson
and others as to conversations with Liebel are admissible in this proceeding.
The State of California has a so-called deadman's rule in section 1880 of its Code
of Civil Procedure. Among persons who cannot be witnesses are:
Parties or assignors of parties to an action or proceeding, or persons in whose
behalf an action or proceeding is prosecuted, against an executor or administrator
upon a claim, or demand against the estate of a deceased person, as to any matter
or fact occurring before the death of such deceased person.
The section stated above is the conventional form of this rule which is included in
the Codes of Civil Procedure of many jurisdictions. However, the courts have been
consistent in giving this rule a very strict construction and application. This construc-
tion is set forth in Trabin v. Title Insurance & Trust Co., 52 Cal. 2d 149, 339 P. 2d
136 (1959), wherein the court said:
This Court has been reluctant to Extend the effect of subdivision 3 of Section
1880 beyond what is compelled by its language and in many cases has narrowly
construed the statute against the disqualification of a witness and in favor of the
admissibility of evidence.
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This narrow construction was placed on the statute in Panno v. Russo, 82 Cal.
App. 2d 408, 186 P. 2d 452 (1947). In that case the court held:
There is no difficulty in holding under the authorities cited that in an action
against surviving partners a plaintiff may testify to matters occurring prior to the
death of a deceased partner, whether such testimony relates to transactions with
the deceased partner or with others.... The testimony of plaintiff established
the debt or liability of the firm of which decedent was a member. That the estab-
lishment of such debt operated indirectly to diminish the assets of the estate does
not justify relieving the estate of liability by invoking the code section in question.
I deem the above language as controlling here. Clearly this proceeding is not
brought "against an executor or an administrator upon a claim, or demand against the
estate of a deceased person." The proceeding is against the Pasadena Bowling Center,
a partnership, and the estate of Liebel is only remotely and indirectly involved.
The Board's policy on the admissibility of statements attributed to a deceased person
is clearly set forth in a series of cases which agrees with the narrow construction of
such statutes as illustrated in Panno v. Russo, supra.2
Upon the authority of the cases above, I have considered all the evidence in the
case, finding that none of it is rendered inadmissible by virtue of the statute.
It is also clear that the Pasadena Bowling Center, as a limited partnership, as it is
at present, is accountable for the unfair labor practices committed in July 1963 by the
Pasadena Bowling Center, doing business in the form of the former partnership. The
uncontradicted testimony of Lester Green, a principal partner in each partnership,
clearly demonstrates that Liebel retained his 51-percent interest and Green his
22-percent interest in the Pasadena Bowling Center, after the new limited partnership
was formed. The testimony of both Green and Jackson establishes that while there
was a change in the location of the Pasadena Bowling Center, the employees, mana-
gerial personnel, operations, and the name of the bowling alley remained the same.
Furthermore, Liebel was the active partner who had charge over the actual opera-
tions of the bowling alley at both locations, and had control of all labor relations at
both locations. In such circumstances the Board and the courts have consistently
held that a successor partnership may be held responsible for the unfair labor prac-
tices committed by its predecessor partnership. In N.L R B. v. Arthur J. Colten and
Abe J. Colman d/b,/a Kiddie Kover Manufacturing Company, 105 F. 2d 179 (C.A. 6),
enfg. 6 NLRB 355, the court stated*
A problem of first impression is presented by the fact that the respondents
constituted a co-partnership, terminated as an entity by the death of Colten. It
is argued that the affirmative provisions of the order directing the reinstatement
of Mary Kule and striking employees and the payment of their wages is
invalid....
This contention, however, ignores the essential nature of regulatory statutes
of the class here considered, and the scope and purpose of administrative orders
made in exercise of powers conferred by such legislation. They are to imple-
ment a public social or economic policy not primarily concerned with private
rights, and through remedies not only unknown to the common law but often in
derogation of it....
In this view of the Act it seems to us unimportant that the proceedings were
styled as against Colten and Colman, co-partners, doing business as The Kiddie
Kover Company. It is the employing industry that is sought to be regulated
and brought within the corrective and remedial provisions of the Act in the
interest of industrial peace. The term "co-partners" may not then be regarded
as more than a term of description, or as denoting a legal entity which alone
is subject to the command of the order.... It would be an implausible conten-
tion that the death of a partner subject to restrain relieved survivors of its
burdens.
In Reynolds Pallet & Box Co. v. N.L.R.B., 324 F. 2d 833 (C.A. 6), enfg. 139
NLRB 519, the court stated:
The pertinent question in this case is whether the corporation is the successor
to and the alter ego of the sole proprietorship of Reynolds. The Trial Examiner
2 See West Texas Utilities Company, Inc, 94 NLRB 1638, enfd. 195 F 2d 519 (C A 5) ;
The Linde Aar Products Company, 86 NLRB 1333, Sam Wallick, et at , d/b/a Wallack
and Schwalm Corp ; and Spring Hills Apparel, Inc, 95 NLRB 1262, enfd 198 F. 2d
477 (C A 3) ; Jamestown Veneer and Plywood Corporation, 93 NLRB 101, 108.
PASADENA BOWLING CENTER 735
found that Reynolds and his wife owned 90 percent of the stock of the company,
that the supervisory personnel was brought over from the old plant , that the
equipment of the old plant was purchased by the new company and transferred
to the new location, and that the company continued in the same line of manu-
facturing and sales. These facts are undisputed . The conclusion of the Exam-
iner, based on these facts , that the corporation is the alter ego of the sole pro-
prietorship is a logical one and is supported by substantial evidence.
Upon the evidence and the authority of these cases , I find that the Pasadena Bowl-
ing Center is and has been a continuous single business entity subject to the Act and
that it is presently responsible for any unfair labor practices committed by it in
July 1963.
Upon the credited testimony of Glen Jackson , Elinor Crain , Gilman W. Page, and
Ted Murakami , I find that Jackson ( 1) had been employed by the Pasadena Bowling
Center for upward of 5 years , and (2 ) pursuant to the contract between the Union
and the Association, was entitled to receive " 15 days vacation with pay." I further
find that Jackson filed a grievance with the Union over Liebel 's refusal to give him
his full vacation and that on July 12, 1963, Liebel told Jackson to accept 2 weeks'
vacation with pay and drop his grievance or Liebel would fire him. Jackson refused
to accept less than his due under the contract and his employment was terminated on
July 13, 1963 , in violation of Section 8(a) (3) and ( 1) of the Act.
IV. THE EFFECT OF THE. UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company set forth in section III, above , occurring in connec-
tion with the operations of the Company described in section I, above, have a close,
intimate , and substantial relation to trade, traffic , and commerce among the several
States, and constitute unfair labor practices which tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Company has engaged in unfair labor practices violative
of Section 8(a)(1) and (3) of the Act, it will be recommended that it cease and
desist therefrom and take certain affirmative action designed to effectuate the policies
of the Act.
Having found that the Company has discriminated in regard to the tenure of
employment of Glen Jackson , it shall be recommended that the Company offer to
him immediate and full reinstatement to his former or substantially equivalent posi-
tion, without prejudice to his seniority and other rights and privileges, and make him
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 would have earned
as wages from the date of such discrimination to the date of reinstatement, or a
proper offer of reinstatement , as the case may be, less his net earnings during such
period; the backpay to be computed on a quarterly basis in the manner established
by the Board in F. W. Woolworth Company, 90 NLRB 289, with interest at the rate
of 6 percent as established and computed in Isis Plumbing & Heating Co., 138
NLRB 716.
Upon the above findings of fact , and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. Pasadena Bowling Center, herein called the Company or the Respondent, is
an employer engaged in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Service & Maintenance Employees Union , Local 399, Building Service Employ-
ees International Union, AFL-CIO , herein called the Union , is a labor organization
within the meaning of Section 2(5) of the Act.
3. By discriminating in regard to the tenure of employment of its employees by
the discriminatory discharge of Glen Jackson , the Company has violated Section
8(a)(1) and ( 3) of the Act.
4 The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and ( 7) of the Act. -
775-692-6 5-v of 150-48
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon the
entire record in the case , I recommend that the Respondent , Pasadena Bowling
Center, its officers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Service & Maintenance Employees Union, Local
399, Building Service Employees International Union, AFL-CIO, or any other labor
organization of its employees , by discharging , laying off, or refusing to reinstate or
in any other manner discriminating against employees in regard to their hire or tenure
of employment or any term or condition of employment.
(b) In any other manner interfering with, restraining , or coercing its employees
in the exercise of their right to self-organization , to form labor organizations , to' join
or assist the above -named Union , or any other labor organization , to bargain collec-
tively through representatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Offer Glen Jackson immediate and full reinstatement to his former or sub-
stantially equivalent position , without prejudice to his seniority and other rights and
privileges , and make him whole for any loss of pay he may have suffered by reason
of the discrimination against him , in the manner set forth in the section of this
report entitled "The Remedy."
(b) Preserve and, upon request , make available to the Board or its agents, for
examination and copying , all payroll records , social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under , the terms of this Recommended Order.
(c) Post at its bowling center in Pasadena , California, copies of the attached
notice marked "Appendix ." 3 Copies of said notice , to be furnished by the Regional
Director for Region 21, shall, after being duly signed by the Company 's representa-
tive, be posted immediately upon receipt thereof , and be maintained by it for 60 con-
secutive , days thereafter , in conspicuous places, including all places where '' notices•to
employees are customarily posted The Company shall take reasonable steps to
insure that such notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 21, in writing , within 20 days from
the date of receipt of this Trial Examiner 's Decision , what steps the Company has,
taken to comply herewith .4
It is further recommended that, unless the Company shall within 20 days from the
date of receipt of this Trial Examiner's Decision , notify said Regional Director in
writing that it will comply with the foregoing Recommended Order, the National
Labor Relations Board issue an order requiring the Company to take the action
aforesaid.
-I In the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice . In the further event that the Board ' s Order be enforced
by a decree of a United States - Court of Appeals ,- the words _"a Decree of the United
States Court of Appeals , Enforcing an Order" shall be substituted for the words " a Decision
and Order."
'In the event that this Recommended Order, be adopted by the Board , this provision
shall be modified to read " Notify said Regional Director , in writing , within 10 days from
the date of this Order , what steps' the Company has taken to comply herewith
- APPENDIX
NOTICE TO ALL•"EMPLOYEES -
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies'of the National Labor Rela-
tions Act, as amended , we hereby notify you that•
WE WILL NOT discourage membership in Service & Maintenance Employees
Union , Local 399, Building Service Employees International Union , AFL-CIO,
or any other labor organization of our employees , by discouraging, laying off,
M. LOWENSTEIN & SONS, INC. 737
or refusing to reinstate , or in any other manner discriminating against them in
regard to their hire or tenure of employment or any term or condition of
employment.
WE WILL offer Glen Jackson immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority or other
rights and privileges previously enjoyed, and make him whole for any loss of
pay suffered by him as a result of our discrimination against him.
WE WILL NOT in any manner interfere with, restrain, or coerce our employees
in the exercise of their rights to self-organization , to form labor organizations,
to join or assist the Union named above , or any other labor organization, to
bargain collectively through representatives of their own choosing , and to engage
in other concerted activities for the purposes of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities.
All our employees are free to become or remain, or to refrain from becoming or
remaining , members of Service & Maintenance Employees Union, Local 399, Building
Service Employees International Nnion, AFL-CIO, or any other labor organization.
PASADENA BOWLING CENTER
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 849 South
Broadway, Los Angeles, California, Telephone No. 688-5206, if they have any ques-
tions concerning this notice or compliance with its provisions.
M. Lowenstein & Sons, Inc. and Lyman Printing & Finishing
' Go., Inc. and Textile Workers Union of America, AFL-CIO.
Case No. 11-CA-2278. December 30, 1964
DECISION AND ORDER
On May 26, 1964 , Trial Examiner C. W. Whittemore issued his
Decision in the above-entitled proceeding , finding that the Re-
spondents had engaged in and were engaging in certain unfair labor
practices within the meaning of the National Labor Relations Act,
and recommending that they cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision . He also found that Respondent had not engaged in
certain other unfair labor charges alleged in the complaint and
recommended dismissal of these allegations . Thereafter , the Re-
spondents filed exceptions to the Decision and a supporting brief.'
Pursuant to the provisions of Section 3(b) of the Act , the Board
has delegated its powers in connection with this case to a three-
member panel . [Members Fanning, Brown , and Jenkins].
The Board has considered the Trial Examiner's Decision, the ex-
ceptions , and the entire record in the case, and hereby adopts the
i The motion of the Charging Party to strike certain exceptions filed by Respondent,
Lyman Printing & Finishing Co., Inc., is hereby denied.
150 NLRB No. 66.