Sherman Car Wash Equipment Co.Download PDFNational Labor Relations Board - Board DecisionsJul 22, 1959124 N.L.R.B. 207 (N.L.R.B. 1959) Copy Citation SHERMAN CAR WASH EQUIPMENT COMPANY 207 Petitioner as exclusive representative of all the employees in the unit heretofore found to be appropriate.] [The Board ordered that, if the Petitioner does not win the election by a majority of more than one vote, the election held on February 27, 1959, be, and it hereby is, set aside.] [The Board further ordered that, in the event the election is set aside, a second election by secret ballot shall be conducted as early as possible, but not later than 30 days from the date of this Order. The Regional Director shall direct and supervise the election, subject to Sections 102.69 and 102.70 of the Board's Rules and Regulations. Eligible to vote are those in the unit who were employed during the payroll period immediately preceding the date of this Supplemental Decision, in- cluding employees who did not work during that period because they were ill, on vacation, or temporarily laid off. Those employees in the military services of the United States, may vote, if they appear in person at the polls. Ineligible to vote are employees who have, since that period, quit or been discharged for cause and have not been re- hired or reinstated before the election date and employees on strike who are not entitled to reinstatement. Those eligible shall vote whether or not they desire to be represented, for collective bargaining purposes, by International Ladies' Garment Workers' Union, AFL-CIO.] MEMBERS BEAN and FANNING took no part in the consideration of the above Supplemental Decision, Direction, and Order. Sherman Car Wash Equipment Company and Ray Pasternak and Metal Processors Union , Local 28, affiliated with International Union of Doll and Toy Workers of the United States and Can- ada, AFL-CIO , Party to the Contract . Case No. 7-CA-1891. July 22, 1959 DECISION AND ORDER On March 31, 1959, Trial Examiner Eugene E. Dixon issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. 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 Rodgers, Jenkins, and Fanning]. 124 NLRB No. 27. 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- state Report , the exceptions and briefs , and the entire record in this case, and hereby adopts the findings , conclusions , and recommenda- tions of the Trial Examiner with the modifications noted below.' ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Relations Board hereby orders Sherman Car Wash Equipment Company, its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Recognizing Metal Processors Union, Local 28, affiliated with International Union of Doll and Toy Workers of the United States and Canada, AFL-CIO, as the exclusive representative of the Com- pany's employees for the purposes of collective bargaining, until said labor organization shall have. demonstrated its exclusive majority status pursuant to a Board-conducted election. (b) Giving effect to the agreement with said Union dated Febru- ary 24, 1958, or to any extension, renewal, modification, or supple- mental or superseding agreement unless and until said Union shall have demonstrated its exclusive majority status pursuant to a Board- conducted election and then only if the agreement otherwise con- forms to the provisions of the Act; but nothing herein shall be con- strued to vary or abandon the wages, hours, seniority, or other sub- stantive provisions of any such agreement. (c) Giving effect to any checkoff cards authorizing the deduction of union dues from wages or remittances to the Union prior to the date of compliance with this order. (d) Encouraging membership in said Union or in any other labor organization of its employees by conditioning hire or tenure of em- ployment or any term or condition of employment upon membership in, affiliation with, or dues payments to the Union, or in any other labor organization, except where such conditions shall have been law- fully established by an agreement in conformity with the Act. (e) Sponsoring, assisting, or contributing support to the Union or to any labor organization. (f) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in ' As the record shows that the Respondent in December 1958 moved its plant from Detroit , Michigan , to Palmyra , New Jersey , we shall require the Respondent to post at its Palmyra, New Jersey, plant, and also send to each of the employees who were employed at the Detroit plant copies of the notice attached hereto. In addition , we shall order the Respondent to offer Ray Pasternak employment at the Palmyra, New Jersey, plant. SHERMAN CAR WASH EQUIPMENT COMPANY 209 Section 7 of the Act, except to the extent that such rights may be affected by an agreement permitted under Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the purposes of the Act: (a) Withdraw and withhold recognition from the Union as the exclusive collective-bargaining representative of its employees until said Union shall have demonstrated its exclusive majority status pur suant to a Board conducted election. (b) Refund forthwith to all employees who were employed at the Detroit, Michigan, plant, funds it withheld or deducted from their earnings for transmittal to the Union, to the end that each such em- ployee shall be promptly, fully, and completely reimbursed for any moneys so deducted or withheld; J. S. Brown-F,. F. Olds Plumbing cC Heating Corporation, 115 NLRB 594. (c) Offer to Ray Pasternak immediate and full reinstatement at the Respondent's Palmyra, New Jersey, plant to his former or sub- stantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole in accordance with the Board's usual remedial policies (see The Chase National Bank of the City of New York, 65 NLRB 827; Crossett Lumber Company, 8 NLRB 440; F. W. Woolworth Company, 90 NLRB 289) for any loss of earnings which he may have suffered since March 28, 1958, by reason of the discrimination against him. (d) Preserve and, upon request, make available to the National Labor Relations Board or its agents for examination and copying, all records necessary for the determination of the amount of back pay and refunds due under this Order. (e) Send to each of the employees who were employed at its De- troit, Michigan, plant, and post at its plant in Palmyra, New Jersey, copies of the notice attached hereto marked "Appendix." 2 Copies of said notice to be furnished by the regional Director for the Seventh Region shall, after being signed by the Respondent's representative, be mailed to said employees and also posted by Respondent immedi- ately upon receipt thereof and maintained by it for 60 consecutive days thereafter in conspicuous places including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that the posted notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for the Seventh Region in writ- ing, within 10 days from the date of this Order, what steps Respond- ent has taken to comply herewith. 2In 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." 525543--60-vol. 124-15 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT recognize Metal Processors Union, Local 28 af- filiated with International Union of Doll and Toy Workers of the United States and Canada, AFL-CIO, as the exclusive rep- resentative of the employees in our plant for the purposes of collective bargaining, until said labor organization shall have demonstrated its exclusive majority status pursuant to a Board conducted election. WE WILL NOT give effect to our agreement dated February 24, 1958, with said union, or to any extension, renewal, modifica- tion or supplement thereof, or to any superseding agreement with said union, unless and until said union shall have demonstrated its exclusive majority status pursuant to a Board-conducted elec- tion; and unless said agreement shall conform to the provisions of the National Labor Relations Act. WE WILL NOT give effect to any checkoff cards which may have heretofore been executed by our employees, authorizing deduction of union dues from their wages and remittal to said union. WE WILL NOT encourage membership in said union, or in any other labor organization, by conditioning the hire or tenure of employment or any term or condition of employment upon mem- bership in, affiliation with or dues payments to said union, or other labor organization, except where lawful provision thereof shall have become established by an agreement in conformity with the provisions of the National Labor Relations Act. WE WILL NOT assist or contribute support to said union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed to them by Section 7 of the National Labor Relations Act, except to the extent that such rights may be affected by an agreement permitted under Section 8 (a) (3) of the Act. AVE WILL refund to all our employees and former employees from whose wages we have deducted or withheld for transmittal to said union, the amount of all such deductions and withholdings to the end that such employees shall. be reimbursed for all moneys so deducted or withheld. WE WILL offer Ray Pasternak immediate and full reinstate- ment at the Palmyra, New Jersey, plant, to his former or a sub- stantially equivalent position without prejudice to his seniority SHERMAN CAR WASH EQUIPMENT COMPANY 211 or other rights and privileges previously enjoyed by him, and make him whole for any loss of earnings resulting from our dis- crimination against him. SHERMAN CA R WASH EQUIPMENT COMPANY, Employer. Dated----- ----------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 clays from the date hereof, and must not be altered , defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act, was heard at Detroit, Michi- gan, January 28, 1959, pursuant to due notice with all parties represented by coun- sel. The complaint, issued on October 27, 1958, by the General Counsel of the National Labor Relations Board, herein called the General Counsel and the Board, respectively, and based on charges duly filed and served, alleged that Respondent discharged Ray Pasternak on or about March 28, 1958, and has failed and refused to reinstate him because of his refusal to execute an application for membership card in the above Union, for engaging in concerted activities within the meaning of Section 7 of the Act with other employees of Respondent, and for refraining from engaging in concerted activities on behalf of the Union. By such conduct it is alleged that the Respondent has violated Section 8(a) (3) of the Act. The complaint further alleges that such conduct has been and is interfering with the formation and administration of the aforementioned Union, and has been and is otherwise lending support to it thus violating Section 8(a)(1) and (2) of the Act. In its duly filed answer Respondent denied engaging in any unfair labor practices. Respondent further alleges in its answer that "Ray Pasternak, was discharged on March 28, 1958. . . During his sixty day probationary period for willful in- subordination and incompetence and other reasons" as follows: A. Failing to follow the normal and usual working instructions imposed by authorized authority. B. Guilty of willful insubordination. C. Doing incompetent work. D. Walking off the job without the permission of the supervisor. E. Failure to follow plant diagrams in making electrical wiring on the equip- ment that charging party worked on and thereby causing serious maintenance problems and the possibility of major burnout in the equipment. F. For constantly disrupting the other workmen with his conversation about his social life. G. For frequently falling behind in his work assignments and thereby slowing down plant production. H. For bragging on the job that he was "goldbricking" and doing as little work as he could. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT COMPANY Respondent is, and at all times material herein was, a corporation organized and existing under the laws of the State of Michigan, with its principal office and place of business in Detroit, Michigan, where it is engaged in the manufacture of carwash equipment. From on or about February 25, 1958, when Respondent began opera- tions, through April 30, 1958, the total sales of Respondent amounted to approxi- mately $117,000 of which in excess of $111,000 represents the value of products shipped directly to points outside the State of Michigan from its plant in Detroit, Michigan. I find Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED Metal Processors Union, Local 28, affiliated with International Union of Doll and Toy Workers of the United States and Canada, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Up to January 1958, the business involved herein had been operated under the name Sherman Vacuum Equipment Company. In 1957 Sherman Larson was assistant manager and a partner in the business. In February 1957 what apparently was an organizational strike by the Union occurred with about half the employees participating in the strike when it started and half continuing to work. According to Larson's testimony the Company "didn't recognize the Union up to that point." Subsequently (the strike only lasted a few days) the Company entered into a collective-bargaining agreement with the Union which among other things contained a union-shop clause. Thereafter up to January 31, 1958 (all the employees having become and remained union members) the Company operated under this contract observing the union-security clause and deducting the union dues from the employees' pay. On January 31, 1958, the Company went into receivership. The plant closed and remained closed for 3 or 4 weeks. During this period William Thacher became interested in taking over the business. To this end, he asked Larson if he "would be willing to be a part of the new company." Larson indicated he was willing., Convinced that high wages, among other things, had been the reason for the Com- pany's insolvency, Thacher, "before he would lay his money on the line" had Larson "arrange to see the officials of the Union to determine whether it would be feasible to start a new operation and be able to make money. . At first the union officials "felt they had a contract, until they were assured that the old company was definitely over to the receivers, and they were now talking to an entirely new party." After a survey of the situation by the Union a tentative contract was drafted which ultimately resulted in an agreement dated February 24, 1958, between the new company, now called Sherman Car Wash Equipment Company, and the Union. Upon the advice of "different attorneys" the new company decided to rehire the former employees "regardless of their past record." Accordingly, the Company "took back the entire force that [it] had before." Each employee at the time of hiring, however, was shown "the new working conditions and the new contract" to see if he was willing to work thereunder. At the same time each em- ployee was also given union authorization and dues deduction cards to sign along with their other hiring papers. The Alleged Discrimination Ray Pasternak had been employed as an electrician by the former Company at $2.85 an hour. According to his testimony he was one of the last to be laid off when the Company ceased operations. When he was rehired his rate was $2.40 an hour. On February 28, the day he went back to work, the Company gave him the union checkoff and authorization cards along with his job application forms. He filled them out and signed them. Three or four days later, after he started working, he came to the conclusion that he had done the wrong thing in signing these cards because he "didn't figure the Union was representing [the employees]." Accord- ingly he asked the office girl for the two union cards and being given them "tore them up." On March 3, the employees were called together at the plant for the purpose of meeting Thacher, the new owner. According to the General Counsel's undenied and credited testimony, Larson told the employees that "Mr. Thacher had assumed some liabilities of the old corporation and that was the reason for a cut in wages" but that the cut would be compensated for by more overtime. Pasternak got the floor and stated "that in some cases the overtime did not compensate for the cut in pay" and cited two examples. Some minutes later Pasternak got the floor again. This time he had occasion to remark that he "felt the men should have a choice of their bargaining agent, that [he] did not believe it was right for a contract to be negotiated without the men knowing anything about it, or having any say so at all." Larson told them they had to be members of the Union or they could not work. Pasternak informed Larson that he had not signed a card. Larson in effect there- i Larson's connection with the new Company was only as an employee and not as a stockholder. SHERMAN CAR WASH EQUIPMENT COMPANY 213 upon asked him how it was then that he was working. Another employee stood up at this point and told Larson that Pasternak "had 30 days in which to sign a card" during which he could not be discharged. About March 17 or 18 a notice appeared on the bulletin board stating that union dues would be deducted from the next paychecks. Pasternak talked it over with some of the employees and drew up a petition asking the Company not to deduct dues from the employees' wages because they "did not feel that this union was rep- resenting" them. About eight or nine employees signed this petition. Two employees, like Pasternak, did not sign because like Pasternak they had not signed authorization or checkoff cards. Upon appointment Pasternak along with Edwin Narkiewicz, acting chief steward, and one Salvati, a former assistant steward, presented the peti- tion to Thacher. At this time they told Thacker that most of the employees "did not care to have dues deducted from their wages." Pasternak told Thacher that he "did not want to pay dues to a union that was not representing [him], that was never around when [the employees] needed them." Thacher was asked if he had any ob- jections to the employees trying "to get another union into the plant." Thacher re- plied "that it didn't make any difference to him what union he had, as long as he had a union so that he could operate freely." Thacher also said that he would talk to his lawyers to see if anything could be done about it. Nothing further was heard from the Company about the matter. On March 28, Pasternak was discharged. His verbatim testimony as to the cir- cumstances of his discharge is as follows: about three twenty-five, that is the first buzzer, the first wash-up buzzer, Mr. Deneseich came up by my bench and told me Mr. Higley 2 wanted to see me in his office. I asked Mr. Narkiewicz if he would accompany me. The two of us went into Mr. Higley's office, a small office, and Bill, the shipping clerk- I don't recall his last name-was in there. He was working at his desk. Mr. Higley said to me "you haven't signed these cards yet," and he pointed to a union card sitting on his desk, and I looked at him and I said "no, I haven't." And he proceeded to tell me that I was not working the full 10 hours a day. I told Mr. Higley I was doing my work and that I could only do what was to be done, and that he was the supervisor and he was getting paid to find work for me. In other words, after my job was completed, I couldn't work any more unless someone told me what they wanted done. He mentioned that I was talk- ing loud. I didn't reply anything. I asked Mr. Higley if he was satisfied with my final work. He told me that he was. I then asked Mr. Higley if I signed the union cards if I could report to work Monday, and he told me I could, and at this time I told him I wasn't going to sign them, and he told me I was through, to turn in my tool checks. I asked Mr. Higley if I could have a letter saying why I was discharged, and he said I could but after I left I never got it. Narkiewicz' testimony on the incident is as follows: when we got into the office Mr. Higley, Leonard, told Ray he was dissatis. fied with his work, and naturally at that time Ray in defense of himself wanted to know in what way. "In what way are you dissatisfied? What's wrong with my work? Has any jobs been brought back or complaints?" And Leonard didn't answer too-well, as far as his work being inferior, Leonard just let it go at that; and the other two-there was two more reasons given. One was for horseplay and for goldbricking. Naturally on those two counts I had to defend Ray, because being a steward and being able to see quite a few of my em- ployees-fellow workers-there was no goldbricking and horseplay done by Ray no more than any other person in the shop, and we just went around and around over the three points of issue, and Ray asked Leonard if it would make any difference if he signed the Union card, and Leonard Higley said yes, he would give Ray another chance if Ray would sign the membership card, and the minute Leonard said he would take him back to that position then Ray definitely asked Leonard "you mean if I sign this card I can come back to work the follow- ing day or the next scheduled day of work?" And Leonard Higley said "yes," and after that statement Ray Pasternak said "I won't sign." And that's all I remember of that meeting. Q. Do you recall if there was anything said in regard to the electrical work of Pasternak? A. None whatsoever at the discussion between Leonard Higley, Ray and myself. 2 Higley was Larson's brother-in-law and apparently second to Larson in the supervision of the plant, being plant superintendent. 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On cross-examination Narkiewicz confirmed his testimony on direct examination to the effect that the first mention of the Union was made by Pasternak. He also testified on cross-examination that when Pasternak asked if it would make any dif- ference to his job if he signed a union card, Higley said "yes, that he was willing to give Ray another chance if he would sign." The substance of Respondent's evidence as to Pasternak's merit or lack thereof as an employee points to numerous deficiencies on his part most of which apparently existed throughout his employment both with the old company as well as the new one. These matters can be itemized as follows: 1. Faulty work. 2. Refusal or failure to do maintenance work. 3. Not having a city of Detroit electrician' s license. 4. Horseplay, "goldbricking," and talking on the job. 5. Failure to wear safety glasses. 6. Excessive tardiness over a 10-month period. 7. General attitude. All of these except the first appear to have been in existence and known to man- agement in the old company. The details as to these matters show the following: (1) Pasternak was supposed to have worked on various existing maintenance tasks for the old company when his production duties permitted. He was "hesitant" to do so on the grounds that his pay did not cover such work. According to Larson's testimony, Pasternak's failure to do this work was the basis upon which he was dis- charged late in 1957. If such was the fact, he apparently was rehired before the old company went into receivership because his testimony stands undenied that he was among the last to be laid off when the Company failed. In any event, when opera- tions began under the new Company the same maintenance work still remained to be done presumably by Pasternak. But he simply did not do it or at least he did not do all that had been expected by the Company. Some was done by contract and some by Pasternak's replacement after he was discharged. (2) Larson explained that Respondent expected Pasternak to have a Detroit electrician's license apparently on the grounds that only on that basis could he legally do electrical work in Detroit.3 Yet it was admitted that with Pasternak's St. Clair Shores license a Detroit building permit was obtained and certain of the maintenance work completed, some of it involving a possible penalty being done by Pasternak. (3) Union Steward Narkiewicz testified credibly and without denial that Paster- nak's deportment on the job was no worse than that of "any other person in the shop." (4) While Pasternak's failure to wear safety glasses resulted in a written reprimand to him as well as several oral reprimands, there were many others who were also lax in this respect although apparently none of them had received a written reprimand. The matter was important to the Company because of its compensation insurance liability. (5) Pasternak's record showed 12 tardinesses in a 10-month period and there were times he was absent without reporting in. For the same period the company records showed at least two other employees with tardiness records greater than Pasternak's. (6) As for Pasternak's faulty work, Larson testified regarding two jobs in the new Company that went out with switches installed upside down and with the colors of some wiring different than that called for by the plans.4 This led to some $350 worth of expense to the new Company. Thacher was upset about this and was not in "a very good frame of mind to keep" Pasternak. Larson talked to Pasternak about these jobs and "proceeded to show him how he was putting the switches in upside down, and he was quite certain that he was putting them in right, and it took a good deal of persuading to show him just exactly what he was doing wrong with the particular switch involved, and why he was putting them upside down." Several days before Pasternak was discharged, Larson spoke to Superintendent Higley about "Mr. Pasternak and his probationary period." 5 In this conversation a Larson testified that in the "new contract we specified that it was necessary to have a licensed electrician as being part of the job. Any electrician hired, it was necessary for him to have a license from the city of Detroit." He might have added that the old contract contained a similar provision. 4 The requirement of following the color scheme called for in the blueprints is im- portant when the machines are serviced by strange mechanics. The various colored wires shown on the wiring chart make it simple to see their functions. If the wiring colors do not conform to the chart a strange serviceman is at a disadvantage in tracking down trouble or making repairs. 5 The collective-bargaining agreement called for a 60'day probationary period during which Respondent could discharge without intercession by the Union. SHERMAN CAR WASH EQUIPMENT COMPANY 215 (or another one on the day of Pasternak's discharge) Larson told Higley that he was not satisfied with Pasternak's work "primarily because of Bill Thacher's and [his] conversation on the subject" wherein they "had agreed that he wasn't the man [they] wanted to have or keep. According to Larson the decision to discharge Pasternak was made "purely upon the work that he produced." Higley testified that he told Pasternak that the reason he was being discharged was because he "was dissatisfied with his work, his talking, his attitude in the shop.. . In his testimony he also denied mentioning anything at any time to Pasternak "concerning his union activities or his belonging or not belonging to any union." Later, when asked if Pasternak had not inquired "whether or not if he joined the union he could come to work the following Monday?" Higley answered, "I don't recall any words to that effect." In an affidavit Higley gave a Board agent he made the following statement: While Ray and Eddie were in the office Ray brought up something about thirty days for signing up for the union. He said something to the effect that he would not join or something like that. That was immaterial to me. That did not enter into my decision to discharge him. On the basis of the foregoing and from my observation of Higley on the witness stand, I have no difficulty in crediting the General Counsel's version of what took place on the occasion of Pasternak's discharge by Higley. In this connection I specifically find that Higley offered to let Pasternak continue working if he would sign the union card. The evidence further shows that at no time did either Larson or Higley ever threaten Pasternak with discharge or other discipline because of faulty work or his conduct on the job. It also appears that Pasternak's basic ability was never ques- tioned by Respondent. Larson testified that "Ray Pasternak had the capabilities" to perform the work. Concluding Findings In his brief the General Counsel contends that Pasternak was discharged for failure to sign a union membership card in violation of Section 8(a) (1) and (3) of the Act. He further contends that even if the card-signing were not considered an issue, "the discharge would still be a violation of 8(a)(1) and 8(a)(3) because it was obviously made because Pasternak's activities were a definite threat to Re- spondent's coveted contract." I agree with both contentions and find that the evi- dence adequately supports them both. As for the card-signing, the General Counsel apparently relies solely on the fact that Pasternak was discharged before the 30-day grace period allowed in the proviso to Section 8(a) (3) of the Act had expired.6 6The proviso of Section 8(a)(3) of the Act reads: . . . Provided, That nothing in this Act, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organ- ization (not established, maintained, or assisted by any action defined in section 8(a) of this Act as an unfair labor practice) to require as a condition of employ- ment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, (1) if such labor organization is the representative of the employees as provided in section 9(a), in the appropriate collective-bargaining unit covered by such agree- ment when made and has at the time the agreement was made or within the pre- ceding twelve months received from the Board a notice of compliance with section 9(f), (g), (h ), and (ii ) unless following an election held as provided in section 9(e) within one year preceding the effective date of such agreement, the Board shall have certified that at least a majority of the employees eligible to vote in such election have voted to rescind the authority of such labor organization to make such an agreement : Provided further, That no employer shall justify any discrimination against an employee for nonmembership in a labor organization ( A) if he has rea- sonable grounds for believing that such membership was not available to the em- ployee on the same terms and conditions generally applicable to other members, or '(B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the peri- odic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership. 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Finding, as I do, that Respondent assisted the Union here in violation of Section 8(a)(2) and ( 1) of the Act,7 it would appear that even after the expiration of the 30-day period ( or of the 31 -day period provided for in the contract ) Respondent would have had no right to discharge Pasternak pursuant to the contract. As indicated , I have no difficulty in finding that Pasternak 's refusal to join the Union was one of the reasons for his discharge . Even in the absence of the strong admission to that effect by way of Higley's statement to Pasternak that the signing of a union card would permit his continued employment , the circumstances of his relationship with the Company viewed in the context of the record as a whole with its inconsistencies , questions , timing, and catch-all defenses would probably have impelled me to the conclusion that both his activity against the Union and his refusal to join the Union caused his discharge . Without attempting to be all -inclusive let me mention a few things that come to mind. With so many reasons advanced by Respondent why Pasternak was undesirable as an employee , the big question is why he was rehired when the new company started operations-particularly when he had already been discharged on one occa- sions The timing of his discharge at or near the termination of the grace period provided in the union -shop clause also raises a question . Of some significance too, it seems to me, was Thacher 's insistence on complete union clearance before he would consummate the deal for the new company . Obviously , he wanted no union troubles to jeopardize his investment . And Pasternak with his outspoken disdain for the Company 's recognition of, and agreement with, the Union could hardly be called a quiescent influence in that respect . The complete failure on the part of the Company, even with respect to Pasternak 's alleged faulty work, to even hint at possible discipline also must be noted. Last but not least, Respondent 's seizing on every criticism it could possibly make of Pasternak during his entire employment in itself casts suspicion on Respondent 's motives here. Some of the things it relies on in this respect are so trivial or so common to all of Respondent 's employees as to vitiate any value in them as defenses . The matters of his license and his general deportment are examples. It may be that Pasternak was not the ideal employee. Certainly among the things assigned by Respondent as the reasons for his discharge there were some that could have provided adequate grounds for such action . But in the circumstances here and in the light of Higley's remarks to him, I find that the controlling reason for his discharge was his failure to join the Union as required by the collective- bargaining agreement and his outspoken opposition to the Union as the bargaining representative of the employees . Having found that that agreement was illegally entered into in violation of Section 8(a)(2) and ( 1) of the Act , I further find that by discharging Pasternak for the above reasons, Respondent discriminated against him in violation of Section 8 (a) (3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent 's activities set forth in section III, above , occurring in connection with Respondent 's operations 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 commerce and the free flow of commerce. THE REMEDY Having found that Respondent engaged in certain unfair labor practices , I shall recommend that it cease and desist therefrom and that it take the affirmative action outlined below which I find necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. [Recommendations omitted from publication.] 7 Respondent's illegal assistance to the Union here is so clear and patent as to require little if any discussion . I agree with the General Counsel's contention and find that Pasternak' s discharge in itself constituted assistance to the Union. In addition , both by its entering Into the contract as it did. Safeway Stores, Incorporated , 111 NLRB 968; The Englander Company, Inc., 118 NLRB 707; Dickey v. N.L .R.B., 217 F . 2d 6'52 (C.A. 6), and by its getting the union authorization and dues deduction cards signed along with the application and other employment forms , New Orleans Laundries, Inc., 114 NLRB 1077, 10M ; Alaska Salmon Industry, Inc., 122 NLRB 1552, the Company vio- lated Section 8(a) (2) and ( 1) of the Act. 8 That "different attorneys" had advised that all the old employees be rehired hardly explains the matter. Copy with citationCopy as parenthetical citation