Tennsco Corp.

National Labor Relations Board - Board DecisionsMar 11, 1963

141 N.L.R.B. 296 (N.L.R.B. 1963)

296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the aforesaid Company to recognize or bargain with Construction , Shipyard and General Laborers Local 1207 , AFL-CIO , as the representatives of its employees, in violation of Section 8(b) (7) (C ) of the Act. CONSTRUCTION , SHIPYARD AND GENERAL LABORERS LOCAL 1207, AFL-CIO, Labor Organization. Dated------------------- By----------------------------------------- (Representative ) ( Title) BUILDING AND CONSTRUCTION TRADES COUNCIL OF TAMPA , FLORIDA, Agent. 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 , Ross Build- ing, 112 East Cass Street, Tampa 2, Florida, Telephone No. 223-4623, if they have any question concerning this notice or compliance with its provisions. Tennsco Corp. and Stove Mounters ' International Union of North America, AFL-CIO, Local No . 160. Case No. 26-CA- 1274. March 11, 1963 DECISION AND ORDER On October 1, 1962, Trial Examiner Frederick U. Reel issued big 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 attached Inter- mediate Report. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices, and recom- mended that the allegations of the complaint pertaining thereto be dismissed. Exceptions to the Intermediate Report, together with a supporting brief, were filed by the Respondent. The General Counsel filed a brief in support of the Intermediate Report. 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 [Chairman McCulloch and Members Rodgers and Fanning]. 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 Intermedi- ate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as indicated below. The Trial Examiner found that Respondent violated Section 8(a) (1) by threatening a number of employees, including applicants for employment, that it would shut down its plant before recognizing a union, and by otherwise interfering with their Section 7 rights. He 141 NLRB No. 21. TENNSCO CORP. 297 also found that Respondent violated Section 8(a) (3) and ( 1) by re- fusing to employ two individuals , Greer and Sullivan , for reasons connected with their union activities . We agree with these findings, and adopt them.' The Trial Examiner also found that Respondent refused to bargain with Stove Mounters ' International Union of North America, AFL- CIO, Local No. 160 , the Charging Party, ' as representative of its em- ployees at the Dickson plant here involved . However, contrary to the Trial Examiner, we do not believe the record here presented shows that Respondent unlawfully refused to bargain under Section 8 ( a) (5) or, alternatively, supports a bargaining order under Section 8(a) (1). In November 1961, Diebold Company, a corporation unrelated to Respondent , shut down its operations at the Dickson plant, solely for financial reasons. At the time of the shutdown , Diebold had a collective-bargaining agreement with the Charging Party. Though there was no union-security clause in the contract , all employees had executed checkoff designations in favor of the Union.3 Shortly thereafter, individuals who were later to form Tennsco Corp ., herein called the Respondent , negotiated to buy the Diebold plant and some of its assets . Tennsco commenced operations Janu- ary 9,1962 , with a complement of four employees . Although the Gen- eral Counsel alleged that the Respondent was the "successor " to Die- bold's operations , and was on that ground compelled to recognize and bargain with the Charging Party, the Trial Examiner found that Tennsco was not the legal successor to Diebold at this operation, and thus was not, under this theory of Section 8 (a) (5), required to bargain with the Union. No exceptions have been filed to the Trial Examiner's rejection of the successorship theory. The Trial Examiner did find, however, that Respondent refused to bargain with the Union after it had submitted a formal bargaining request on August 2 , 1962, and on that ground, found that the Respond- ent had committed a violation of Section 8 (a) (5).' As noted above, we are unable to agree with this finding. The statute in pertinent part 5 states that an employer is under an obligation to bargain collectively with the representative desig- nated by a majority of the employees in an appropriate unit. There , is no direct evidence in the present case that the Union was the repre- sentative of a majority of employees at Respondent 's Dickson opera- 1 For the reasons stated in the dissenting opinion in 1818 Plumbing d Heating Co., 138 NLRB 716, Member Rodgers would not grant interest on any backpay these individuals may be awarded. 2 Sometimes referred to hereinafter as the Union. S Before the series of layoffs preceding the shutdown, Diebold's normal complement was 50 to 60 employees. * Two earlier requests by the union president for "meetings," on December 29, 1961, and January 8, 1962, were found by the Trial Examiner not to have constituted demands for recognition. No exceptions have been taken to this finding, and we adopt it pro forma. 5Sections 8(a)(5) and 9(a). 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions. In the absence of direct evidence, the Trial Examiner looked to indirect evidence of majority, and concluded there was a "continuing presumption" that the employees of Tennsco-14 of whom, out of 20, had previously been employed by Diebold, and had been union mem- bers there-remained members of the Union while employed by the Respondent. In view of the Trial Examiner's clear finding that Tennsco is not the "legal successor" to Diebold, we do not believe we are justified in engaging in the "continuing presumption" relied upon by the Trial Examiner. Such a presumption becomes particularly tenuous in this case when mirrored against the circumstances that: (a) It was approximately 7 months after commencement of op- erations that the Union made its first effective request for recognition. (b) During these 7 months, the Union made no effort to obtain authorization cards, or other evidence that a majority of employees desired representation by it. (c) The only pertinent evidence seems to indicate to the contrary, that a majority of Respondent's employees were not members of the Union during their employment with Tennsco. Union records in- troduced into evidence indicate that at no time after January 15, 1962,6 did a majority of employees at Tennsco continue to pay dues to the Union. On that date, January 15, only 3 of 6 were dues-paying members, by February 5,1962, only 4 of 10 were dues-paying members, and by July 30, 1962, the proportion had decreased to 5 of 20. while it is true that, in some circumstances, the cessation of employees' dues payments does not constitute evidence of a union's loss of majority,' this has relevance only in cases where a majority has once been demon- strated. In this case, no independent evidence of majority has been shown, and since no 'cai cccessorship) has been found, the evidence presented is basically inconsistent with any "presumption" that the Union represents or ever represented a majority of employees at this Employer's operation.8 8 Early in January 1962, at the commencement of operations , three out of the four newly hired employees paid dues to the Union , and continued to do so up to the time of the hearing . However , these 4 employees did not represent a substantial portion of the Respondent ' s total complement , which by the date of the hearing, August 15, 1962, had reached 20 . Other employees discontinued their dues payments sometime prior to their employment by Tenneco. 7,Cf. United States Gypsum Company, 90 NLRB 964. 8 In Mitchell Standard Corporation , 140 NLRB 496, which Chairman McCulloch cites for comparison in his dissent, a Board panel dismissed refusal-to -bargain charges where it was found that the new employer ' s refusal to bargain was in good faith we do not reach this question in the instant case , as it has not been established that the Union rep- resented the requisite majority of employees, aside from the Employer ' s response In Mitchell , supra, the Board referred to a "presumption of continued union majority status," which it suggested may have been present in the circumstances of that case . However, in Mitchell, there was a finding by the Trial Examiner , not rejected by the Board, that the new employer was the "successor"-or at least the "same employing industry"-as the predecessor employer. The Trial Examiner explicitly rejected both a "successorship" and "same employing industry" finding in the present case; no exceptions have been TENNSCO CORP. 299 We recognize, of course, that the Section 8(a) (1) violations com- mitted by the Respondent may have interfered with the employees' union adherence or activities. However, Section 8(a) (1) violations by their nature constitute "interference" with Section 7 activities; they justify a bargaining order only where the union's majority has once been established, and where it may thereafter be said that any loss of majority was caused by the employer's unfair labor practices.' We cannot, however, on this same basis, presume that the Union's failure to establish a majority at this Employer's operations was due to the unfair labor practices committed, or order the Respondent to bargain with the Union in the absence of a majority showing at any appropriate time. We therefore do not adopt the Trial Examiner's alternative conclusion that a bargaining order is justified to remedy the violations of Section 8 (a) (1) committed by the Respondent. The Board adopts as its order the Recommended Order of the Trial Examiner, except that sections 1(c) and 2(c) are deleted, in accord- ance with our decision herein. The notice as proposed by the Trial Examiner shall also be revised, so that the last paragraph, requiring the Respondent to recognize and bargain with the Union, is deleted. CHAIRMAN MCCULLOCH, dissenting in part : I agree that the Respondent violated Section 8 (a) (1) and (3) of the Act. However, for the reasons set forth in the Intermediate Report of the Trial Examiner, I would also adopt his recommendation that the Respondent be required, upon request, to bargain with Stove Mounters' Local No. 160.10 taken . Moreover, as explained by the Board in Mitchell, there was no evidence there that employees had withdrawn their checkoff authorizations In the present case, the record indicates that a majority of employees did discontinue their dues payments to the Union. In these circumstances , whatever presumption of continued majority may have been present in Mitchell-and the Board there dismissed the complaint-is not present here. See, e g., Franks Bros. Company v. N.L R.B., 321 U.S. 702, 702-705 ; Greystone Knit- wear Corp , et at. , 136 NLRB 573 10 Compare Mitchell Standard Corporation , 140 NLRB 496 . The majority correctly asserts that in the instant case "a majority of the employees did discontinue their dues payment to the Union ." Omitted in this connection is the Trial Examiner's finding that the cessation of dues payments "followed Respondent 's commission of unfair labor prac- tices, particularly the threat to close the plant rather than recognize the Union " Per- tinent also is the Trial Examiner's additional observation that a union 's loss of majority following such an unfair labor practice ( which my colleagues find) is attributable to such unfair labor practice and that an employer may not be heard to assert a good-faith doubt of majority where his own unfair labor practices give rise to the doubt and to the possible loss of majority. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This case was heard before Trial Examiner Frederick U. Reel in Dickson, Ten- nessee, on August 15 and 16 , 1962, pursuant to charges filed May 7, June 21, and August 14 , 1962 , a complaint issued June 21, 1962 ( and amended August 10, 1962, and again at the opening of the hearing ), and an answer filed July 2, 1962 (and amended at the opening of the hearing ). The basic issues are whether Respondent, 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which since January 1962 has been operating a plant formerly operated by a prior owner under a collective-bargaining contract with the Charging Party (hereinafter called the Union), has violated Section 8(a) (1), (3), and (5) of the Act by threaten- ing to close the plant if a union organized it, by refusing to hire employees because of their union membership or activities, and by refusing to bargain with the Union. At the conclusion of the hearing General Counsel and Respondent presented short oral arguments, and thereafter General Counsel and Respondent filed briefs which have been thoroughly considered. Upon such consideration, and upon the entire record in the case, including my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT; THE LABOR ORGANIZATION INVOLVED The parties stipulated and I find that Respondent is a Tennessee corporation en- gaged since January 1962 at Dickson, Tennessee, in the manufacture and sale of metal file cabinets, lockers, and shelving, and that its direct interstate purchases and its direct interstate sales of goods and materials will each exceed $50,000 per year. The par- ties stipulated and I find that Respondent is engaged in commerce within the meaning of the Act, and that the Union is a labor organization within the meaning of the Act. If. THE ALLEGED UNFAIR LABOR PRACTICES A. Background; the plant's operation under prior owners and its shutdown in November 1961 In the early 1950's K. F. Cline Company operated a plant at Dickson engaged in manufacturing lockers, shelving, and cabinets. In 1953 the Union became the certi- fied bargaining representative of the production and maintenance employees at this plant, and thereafter until the plant closed in November 1961, the Union enjoyed a contractual relationship with the employer. This relationship survived a 1955 trans- action in which the Cline interests were purchased by Diebold Company, which con- tinued the Dickson operation in the name of "K. F. Cline Company, a subsidiary of Diebold Company." At this time Diebold sent to Tennessee one Elwin Liebtag, an accountant, who became general manager of the Dickson plant under the Diebold regime. In the spring of 1961 the contract between the Union and Cline-Diebold was about to expire and was renewed. At that time the employer made it clear that business conditions might force a termination of the Dickson operation during the life of the renewed contract. The prediction was realized; by October a cutback from the nor- mal working force of 50 to 60 employees had been effected, and by November 30, 1961, the entire plant was shut down, and some of the machinery had been shipped to another Diebold plant. Although certain Tennessee interests had obtained an option to purchase the plant early in November, by the end of the month this option had lapsed. The contracts between Cline-Diebold and the Union had not contained any provi- sion requiring union membership as a condition of employment; such clause is per- missible under Tennessee's right-to-work law. The contracts had provided, however, that upon receiving proper authorization from the individual employees, the employer would check off union dues. Such voluntary checkoff authorizations had regularly been executed by every member of the bargaining unit for several years and conse- quently the employer (and Liebtag, the general manager) knew that every employee in the unit was a member of the Union. B. The formation of Respondent and its purchase of the plant Late in November one Lester Speyer, who operated a competing concern in Illinois, became interested in acquiring the Cline-Diebold plant and producing similar articles there. In early December Speyer took an option to purchase from Cline-Diebold which he exercised in late December. To operate the new plant Speyer formed Re- spondent corporation, becoming the president and sole or principal stockholder. Other officers were a Nashville attorney and Liebtag, who severed his connection with Diebold and remained in Dickson in his former capacity as operating head of the plant. Liebtag, in turn, hired as supervisory personnel for Respondent the same superintendent and foremen who filled those jobs prior to the closing of the plant in 1961. TENNSCO CORP. 301 Respondent, using the same machinery formerly used by Cline-Diebold (except for a small group of machines shipped to Ohio at the time of the shutdown) manu- factures products substantially similar to those manufactured by the former occupant, i.e., metal lockers, shelving, cabinets, and the like. The employees are using similar skills and performing tasks similar to those performed by employees of Cline-Diebold. Certain aspects of the operation are different from those prevailing under Cline- Diebold; e.g., Liebtag now is responsible only to Speyer instead of to three vice presi- dents; Liebtag helps shape company policy; Respondent does its own printing of brochures, etc.; Respondent utilizes different sources of supply, and has some different customers from those dealt with by the prior concern, and has new and different insur- ance coverage. Respondent did not purchase Cline-Diebold' s accounts receivable, and no orders placed with Cline-Diebold were filled by Respondent. Cline-Diebold notified its customers of the cessation of its operations, and made no mention of any continua- tion or resumption of the business by Respondent. On the contrary, Cline-Diebold referred a certain group of its customers to a competitor in Nashville, unconnected with Respondent or with Speyer. Raw materials in the plant at the time of the Tennsco purchase were removed by the prior owner, Diebold, and shipped to Ohio. C. Respondent 's relations with its employees and with the Union 1. The employment interviews At the time Speyer was engaged in negotiations for the purchase of the business and the formation of Respondent, he made it clear to Liebtag among others that he (Speyer) would not be interested in consummating the transaction if he would be regarded as a successor to Cline-Diebold and obligated as such to deal with the Union. Speyer was advised by counsel that Tennsco would not be regarded as a successor to Cline-Diebold in the sense that it would be obligated to recognize the Union. When Respondent started operations in January 1962, a number of the former Cline-Diebold employees applied for jobs. In most instances they applied individu- ally, but on at least one occasion several men applied at the same time. The job applicants saw Liebtag and his chief subordinate, Plant Superintendent Bowen, who had held a similar position under Cline-Diebold. What was said at these interviews is the subject of conflicting testimony. On January 8, 1962, six former employees of Cline-Diebold (Ray Sullivan, Choate, Griffey, Underhill, Meeker, and Pate) went to the plant to seek employment. They spoke to Liebtag in his office, and in the presence of Bowen. According to Sullivan, Liebtag in the course of the discussion said that Speyer "would close the doors before he would recognize the union , or have a union in the Dickson plant." Pate's testimony is that Liebtag said "the new owner definitely didn't intend to have a union in the shop, that he would close the doors and call it quits." Meeker testified that "Mr. Liebtag stated . . . that the new management said that he would not recognize the union whatsoever, that he would close the doors before he did." Griffey's testimony attributes to Liebtag the statement that he "wouldn't accept a union , that they would close the doors if the union came in." Underhill testified that Liebtag told them the "new company" "had operated since the war and before the war, and they didn't intend to have a union." Choate testified that Liebtag, speaking of the "new owner," said that "he didn't intend to have a union in the plant, and that he would shut the doors before he had one." Liebtag's version of the conversation was that he told the men "we had no intention of recognizing the union, the former union, that we didn't feel legally obligated to them." Bowen corroborated Liebtag in this respect. Leibtag expressly denied telling them men that the new owner "didn't intend to have a union in the Dickson plant, and would close the doors of the Dickson plant before he would recognize the union , or something to that effect." In addition to the group which testified as to their meeting with Liebtag on January 8, other employees or applicants for employment testified to similar con- versations with Liebtag on other occasions. Springer, a former Cline-Diebold employee who was hired by Respondent in January 1962, testified that at the time he was hired Liebtag made it clear that Respondent would close the plant rather than recognize the Union. England, like Springer, a Tennsco employee with Cline- Diebold experience, testified that when he was hired early in January 1962, Liebtag told him the Company "couldn't operate with the union, and . . . wasn't recognizing 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the one we had." Baker, a Cline-Diebold employee who early in January 196Z applied to Respondent unsuccessfully for work, testified that Liebtag then told him "they wasn't going to have a union, that this new man had been operating success- fully for a number of years without a union, and there wouldn't be a union ." William Sullivan, a former Cline-Diebold employee who was hired by Respondent in June 1962, testified to a conversation with Liebtag in mid-April at which Liebtag said they "wouldn't have a union ," and also to a February conversation with Plant Super- intendent Bowen, who said the plant "would be nonunion, that the man had bought the plant and was operating a plant in Chicago without a union, and had for a number of years." Starkey, another Cline-Diebold employee hired by Respondent early in January, testified that at his employment interview Liebtag told him "the man who owned the plant up in Illinois had operated successfully without a union, and he didn't think they had to recognize this union." According to Hayes, a former Cline- Diebold employee who applied unsuccessfully for a job with Respondent late in Jan- uary 1962, Plant Superintendent Bowen told him on that occasion that "they were not going to have any union. That was out." Hamilton, who had never worked for Cline-Diebold and was hired by Tennsco in April 1962, testified that in preemploy- ment interviews with Liebtag and Bowen they told him that "they didn't care too much about having a union , that they were doing pretty good as it was." Hamilton further testified that he got the "impression" from his interview with Liebtag that he would be hired if he "was willing to work nonunion." Liebtag testified that he told Springer and all the other applicants and employees substantially the same thing with respect to the Union-namely, that Respondent did not recognize Local 160 or feel any legal obligation to do so. Bowen testified that he told William Sullivan and other prospective applicants that the Company was not recognizing the old union and was operating on a nonunion basis. He admitted that he might have stated that Speyer, the new owner, "did not have association with a union in another operation." Greer, a former Cline-Diebold employee and secretary-treasurer of the Union, testified that when he unsuccessfully applied for employment in January 1962, Liebtag said: "Well, you were one of the better painters that we had, but you being a strong union man, I just can't use you among the first ones. We are strictly going nonunion." He further testified that he returned twice more during January, and Liebtag and Bowen both said they could not use him because he was a union man. On cross- examination, Greer testified that it was Liebtag who made the quoted statement, and that on his second and third visits neither Liebtag nor Bowen had mentioned the Union, but had said they were not hiring at the time because of lack of orders. Liebtag denied telling Greer that he would not be "one of the first men hired because he was a strong union man." Garton, a Cline-Diebold employee who applied unsuccessfully to Respondent in January 1962, testified that on that occasion Liebtag said: . there was two men that wouldn't go back, that we could operate the plant better without them, and one of them was Ray Sullivan [president of the Union]. He did not call the other man's name. He said that if a man had a gripe or a complaint, he wanted him to take it up with him, and not bring a man down from Nashville. He also said that the Company would not operate with the union, that they had operated successfully, I believe he said in the north some- place, without a union, and would not recognize the union. Garton understood the reference to "a man from Nashville" to apply to one Grubbs, international vice president of the Union. Liebtag did not expressly deny Garton's testimony, except insofar as Liebtag's statement that he told all the applicants the same thing may be construed as a denial. Liebtag indeed had no independent recollection of his interviewing Garton, and (at the hearing) was under the mistaken impression that Garton had been one of the six employees who came as a group to see him. 2. The hiring practices In explaining the policy which governed the selection of employees for Respondent, Liebtag and Bowen explained that they desired to acquire the experience of the former Cline-Diebold employees but also to introduce younger men, as the average age of the prior employees had been over 40 and "in ten years we would be a group of old men ...." Of the 20 men hired by Respondent at the time of the hearing, 14 had been employed by Cline-Diebold. Some of that group had at one time held offices in the Union. Indeed, the first four men hired were characterized by Liebtag TENNSCO CORP. 303 as "strong members" of the Union . The following table lists the employees by date of hire and also indicates their union status as of the date of the hearing: Date hired Name Union status I Jan 9,1962 ------------------- Starkey--------------------- Dues paying member anuary 10 -------------------- England-- ------------------ - Bates ------------------------ Brunett--------------------- Stout-------- --------------- Do. Do Last dues-December. New man January 15 -------------------- Crumpler-- ---------------- Do. January 17 -------------------- Springer- ------------------- Last dues-December. January 22-------------------- Le Comte------------------- Do. February 5-------------------- Oliphant-------------------- Walker--------------------- Do Dues paying member April 19----------------------- Miller----------------------- Last dues-January. April 23----------------------- Hamilton-- ----------------- New man. May 1- °---------------------- McElhiney----------------- Shelby------- --------------- Williams-------------------- No dues, at least since October. Last dues-February. New man June 25- ----------------------- Sullivan, Wm- -------------- Dues paying member. July 2------------------------- Mayberry------------------- New man July 23------------------------ Ivey--- --------------------- Last dues-May. July 30------------------------ Brazzell--------------------- Annis- ---------------------- Last dues-February. New man. -New man" refers to employees not formerly employed by Cline-Diebold. In summary of the foregoing table , of the 20 employees , 5 were dues -paying union members at the time of the hearing , and 8 others were paid-up members at the time Respondent started operations , but at varying time thereafter had stopped paying dues. (The record establishes that after the checkoff ceased to operate with the closing of the plant , the men paid their dues at the union meeting, normally held on the second Thursday of the month.) It should also be noted that of the two painters employed by Respondent , Springer and Hamilton , the former was employed by Cline-Diebold, and is an experienced painter , 41 years of age. Hamilton , age 27, was an inexperienced painter when he was hired, and at the time of the hearing was undergoing training at the hands of Springer. Greer, an experienced painter , with 8 years in the plant under the prior owners, was 37 years old. The record does not disclose the ages of the other em- ployees hired by Respondent other than those who appeared as witnesses : Bates, 45; England, 35 ; William Sullivan, 37; Starkey, 39. 3. Communications between Respondent and the Union On December 29, 1961, Union President Ray Sullivan "asked Mr. Liebtag for a meeting with management ." Liebtag agreed to advise Speyer of Sullivan's request but added that "Speyer had informed him that he had operated successfully since the war without a union, and he didn't intend to have one in the Dickson plant." On January 8, 1962, when Sullivan and five other former Cline-Diebold employees interviewed Liebtag as described above, Sullivan again asked if he could see Speyer. Liebtag told Sullivan that Speyer had said "he didn't see that anything could be accomplished in such a meeting ," but that Speyer would meet with Sullivan when and if Speyer had time. According to the testimony of Sullivan and Pate, Liebtag indicated his belief that a meeting with Speyer would be pointless as Speyer would not have a union in the shop. Liebtag, however, did advise Speyer of Sullivan's request for an interview, and Speyer made a bona fide but fruitless effort to reach Sullivan by telephone 2 days later. On August 2, 1962, after the filing of pleadings in this proceeding , the Union sent a formal written bargaining request to the Company , claiming to represent a majority of the employees . Company counsel replied on August 7, expressing a doubt of the Union's majority and suggesting that the Union seek an election . An earlier company attempt to secure an election had failed ; the Company's petition mailed 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the Board's Regional Office on June 19, 1962 , was dismissed the following day because of the pendency of this proceeding . In that petition the Company stated that on May 7, 1962, the Union had claimed recognition. D. Concluding findings 1. As to Section 8 (a) (1): I find that Liebtag on several occasions told applicants for employment that Respondent would shut down the plant if required to deal with a union . In other words , in this respect I credit several of the witnesses called by General Counsel and discredit Liebtag's denial . I am moved to this resolution of the conflicting testimony by the following considerations : (a) Liebtag's demeanor on the witness stand , and the contrast between his ability to recall with considerable clarity details which occurred long prior to these interviews and his vague and on occasion inaccurate recollection of the employment interviews themselves ; the de- meanor of the employee witnesses gave me no reason to doubt their veracity. (b) Liebtag's knowledge that Speyer had expressed precisely the sentiment which the employee witnesses testified Liebtag attributed to Speyer , namely a disinclination to operate if the Union were in the picture. (c) The employees ' attributing to Liebtag in the same conversation the statement that Speyer had operated nonunion in Illinois , a fact of which the Dickson employees would in all probability be unware unless they learned it in this context from Liebtag ( although some may have learned it from Bowen ). (d) The testimony of Springer , attributing to Liebtag the state- ment in question , for Springer was a disinterested witness, a present employee of Respondent , and no longer a member of the Union. Based on the credited testimony in this respect of Ray Sullivan , Pate, Griffey, Meeker, Springer, and Choate, I find that Liebtag on at least two occasions told prospective or future employees that Respondent would close the plant rather than deal with the Union. Such a threat is plainly violative of Section 8 (a) (1). I further find that, in the context in which they were made, the following statements violated Section 8(a) (1) : Liebtag 's statement to Baker that there would be no union in the shop , Bowen 's and Liebtag 's statements to William Sullivan that they "wouldn't have a union" and "would be non-union ," and Bowen's statement to Hayes that "they were not going to have any union . That was out." In each case the statement made to an applicant for employment or an employee newly hired tends to interfere with his exercise of his Section 7 right to form, join, or assist a labor organization. 2. As to Section 8(a)(3): General Counsel urges that Respondent discriminated against the former Cline -Diebold employees insofar as it hired other employees in their stead, and that such discrimination was based on union membership or activity. General Counsel further urges that the record establishes particular discrimination against Greer and Ray Sullivan because of their union activity. I find no merit in the claim of general discrimination . Respondent was under no duty to hire any particular employee or group of employees. Its sole duty in this respect under the Act was not to discriminate against any applicant because of his union membership or activities . Having included 14 present or past union members in its group of 20 employees , Respondent is not vulnerable to a charge of mass discrimination based on mere numbers . To be sure , ordinarily "seasoned men are better than green hands" (N.L.R.B. v. Remington Rand, Inc., 94 F. 2d 862, 872 (C.A. 2), cert. denied 304 U.S. 576, 585), but with one exception discussed below, General Counsel did not even establish that the new men were "green hands." The burden of showing the violation rests on General Counsel . In a proper case this burden may be met by showing the hiring of a disproportionate number of nonunion employees , but here, where no such showing is made, I am compelled to dismiss for want of proof the general allegation of mass discrimination. The case stands otherwise as to Ray Sullivan . Classified as a spotwelder operator and capable of performing many jobs, Sullivan was the president of the Union at the time Respondent started operations . I credit the testimony of Garton , quoted above , that Liebtag coupled his expressed determination not to employ Sullivan with adverse comments about employees with "a gripe" bringing "a man down from Nash- ville" (an apparent reference to the Union 's international vice president) and with the statement that the Respondent would operate on a nonunion basis. In the context of other remarks indicating an antiunion attitude , the singling out of the Union 's presi- dent for nonreemployment may fairly be found to reflect a determination not to hire him because of his leadership of the Union . I find, therefore , that Respondent in violation of Section 8(a) (1) and ( 3) of the Act discriminated against Ray Sullivan as an applicant for employment on and after January 8 , 1962, the date of his application. Although I have found that General Counsel failed to sustain his burden of proof with respect to a general claim of discrimination , with respect to one job-that TENNSCO CORP. 305 filled by Hamilton-the proof goes beyond a mere showing that Respondent hired an "outsider." Hamilton was hired in April as a painter, but the record establishes that he was inexperienced, and that as late as August, Springer was still training him. The record further establishes that of the former Cline-Diebold employees, four were painters-Springer, Greer, Baker, and McCord. Respondent hired Springer in Janu- ary 1962. Of the others, Greer at least had made repeated personal applications for work, and Greer, Baker, and perhaps McCord were embraced in a mass application which Sullivan and Greer submitted by mail on March 19 on behalf of all the union officers and members.' Moreover, Greer was only 37 years old, not a disqualifying age whether considered in comparison with others hired by Respondent (including the 41-year-old Springer), or in the light of Respondent's concern not to have a crew of "old" men in 10 years. The ages of Baker and McCord are not disclosed by the record. I find, on a consideration of the facts set forth above, that General Counsel sus- tained his burden of establishing discrimination in the hiring of Hamilton rather than Greer. Liebtag himself, when Cline-Diebold shut down late in November, had stated to Greer and employee Alton Hayes (according to their testimony, which I credit over Liebtag's rather qualified denial) that he thought a new owner would rehire the former employees "because it would be foolish to go out on the street and hire new men who didn't have any experience." The difference between Hamil- ton's case and that of the other five men is that here the record affirmatively establishes Hamilton's lack of qualifications, whereas in the other cases any finding to that effect would be based on pure speculation. Moreover, the explanation offered by Respond- ent-a desire to leaven experience with youth so as not to have an "old" staff in 10 years-may or may not have substance in the other five cases, but has none in Hamilton's case in view of the availability of the 37-year-old Greer. In making this finding I am not relying on Greer's testimony as to his interview with Liebtag early in January, for I credit Liebtag's denial of the remark attributed to him that Greer because of his prominence in the Union would not be among the first to be hired. This is not to be construed as a finding that Greer deliberately lied on the witness stand, for as I view the matter Greer understood the antiunion remarks of Liebtag and Bowen as an indication that because of his role as union secretary they would view his job application unsympathetically. By the time of the hearing many months later this may well have ripened into a conviction on Greer's part that Liebtag made explicit what had at most been implicit. See Sears, Roebuck and Company, 123 NLRB 1236 at 1240. In sum , I find that the hiring of Hamilton differs from the other five "new" hirings in that in this instance General Counsel established the lack of qualifications of the man hired and the absence of a significant age barrier to the hiring of the former employee. When an employer, guilty of union animus which led him into other violations of the Act including discrimination against the union president, hires an inexperienced painter who requires more than 4 months' training on the job, in pref- erence to a man only 37 years old with 8 or more years' experience, who was sec- retary of the Union, it seems reasonable to infer that the preference for the "green hand" over the "seasoned" man (Remington Rand, supra) is attributable to the latter's union activity .2 It may well be that in passing over Greer in favor of Springer in January 1962, Respondent was motivated by Greer's prominence in the Union. Certainly the age factor does not explain the hiring of the elder man, who was well below Greer on the old seniority roster. But the record is silent as to their comparative abilities, and the General Counsel did not urge that the hiring of Springer was the result of discrimination against Greer. I therefore find on this record that the discrimination against Greer occurred in April, not in January. 3. As to Section 8(a) (5): In urging that Respondent unlawfully refused to bargain with the Union, General Counsel advances as one theory the contention that Re- 'McCord had paid no dues since November. The copy of the letter introduced in evi- dence bears the year 1961, an obvious typographical error 'It should be noted that Respondent in hiring Hamilton may have discriminatorily passed over not only Greer but also McCord and Baker. The record is silent as to their ages, and vague as to their availability. I therefore find discrimination in this instance only as to Greer. It should also be noted that Greer's name was added to the charge and complaint by amendments in August 1962. As I find the discrimination against him occurred with the hiring of Hamilton in April, the amendment was well within the 6-month limitations period . Aside from that, amendments were unnecessary to encompass Greer's case . N.L R.B. v. United States Gypsum Company, 206 F 2d 410, 412 (C A 5) ; N.L R.B. v. Clay M. Bishop et al, d/b/a New Hyden Coal Co , 228 F 2d 68, 71-72 (CA 6), 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent was bound to recognize the Union because Respondent was a successor to Cline-Diebold in the sense that the "employing industry " remained the same. I reject this theory as unsupported by the record. Cline-Diebold had completely shut down; its employees were unemployed as of December 1, 1961 ; as of that date, no plans existed for any further operation of the plant , and it was the purest coincidence that the next occupant of the plant produced items similar to those manufactured by Cline-Diebold . Respondent did not succeed to the "business" of Cline-Diebold, pur- chased no accounts receivable , and had different sources of supply. The cases in this area generally turn on matters of degree (compare the decisions of the Fifth Circuit in N.L.R.B. v. Alamo White Truck Service, Inc., 273 F. 2d 238, and in N.L.R.B. v. Auto Ventshade, Inc., 276 F. 2d 303), but on this record I find the scale tipping heavily against application of the "employing industry" concept. See Diamond National Corporation , 133 NLRB 268; Piasecki Aircraft Corporation v. N.L.R.B., 280 F. 2d 575, 586, 589, 592 (C.A. 3), cert. denied 364 U.S. 933. The case stands quite otherwise on the General Counsel 's alternative theories that Respondent cannot be heard to assert a good-faith doubt of the Union's ma- jority status and that in any event a bargaining order should issue to remedy Re- spondent 's violations of Section 8(a)(1) of the Act. According to Liebtag 's own testimony , of the first five employees hired in Jan- uary, he knew that four were "strong members" of the Union . Of the 15 employees hired since that time, 10 were known to Liebtag as having been union members during their employment with Cline-Diebold , for he knew that they had executed voluntary checkoff authorizations. Under the settled principle that, in the absence of evidence to the contrary , a state of affairs once shown to exist is presumed to continue , the presumption arises that the majority of Respondent 's employees were union adherents at the time they were hired , and that Liebtag was aware of that fact. This presumption finds further support in the evidence which establishes that with one exception ( Clarence McElhiney ) those employees had paid union dues through December, although all of them were not employed by Cline-Diebold in that month, and several had been laid off for 2 months at that time. The presumption that the majority of the employees were union members, and were known as such to Liebtag, is not based on any finding of "successorship," al- though some of the considerations which underlie the "successorship" concept are similar to those giving rise to the presumption here. If the employees ' union mem- bership during their Cline-Diebold employment had been contractually required, or if the extent of such membership had been unknown , or if the Union 's majority had been tenuous, the presumption might not arise in this case, and my rejection of the "successorship" argument would end the matter. But in this case Respondent, though not bound as a successor to Cline-Diebold , is bound by the law to recognize a union enjoying majority status, at least in the absence of a good-faith doubt of such status. And Liebtag, the responsible company official on the scene, had personal knowledge that the great majority of the employees had been union adherents . He knew, too, that the work processes and the supervision had undergone no appreciable change, and nothing in the record suggests that the substitution of an absentee Illinois owner for one based in Ohio had any legitimate impact on the employees ' adherence to the Union. Given the presumption that the Union continued to command the support of those who had been paying dues by voluntary checkoff, we next turn to see if the record contains evidence rebutting this presumption . Although Respondent in its answer to the complaint and in its counsel 's letter of August 7, 1962, expresses a doubt of this majority, nothing in the testimony of Liebtag or of any other witness expresses any such doubt or any reason or basis for such doubt . The union dues book, introduced in evidence by General Counsel, does suggest a possible loss of majority, for as the table, supra, shows, only 5 of the 20 employees are still dues- paying members . Of the remaining 15 employees , 8 who had paid dues as late as December 1961, stopped paying in some subsequent month. But, assuming arguendo that the cessation of dues payments would ordinarily rebut the presumption of con- tinued adherence , it does not do so in this case because it followed Respondent's commission of unfair labor practices , particularly the threat to close the plant rather than recognize the Union . Under settled law a union 's loss of support fol- lowing such an unfair labor practice is attributable to the unfair labor practices, and must be disregarded in determining majority status . Equally well settled is the corollary that an employer may not be heard to assert a good-faith doubt of majority where his own unfair labor practices give rise to the doubt and to the possible loss of majority . These settled propositions , to be sure , have been laid down in cases where the employees making up the majority and affected by the coercive statements were actually employed at the time of the illegal utterance . But the logic and the TENNSCO CORP. 307 equitable principles underlying the propositions are equally applicable here, although the employees in question were merely applicants for employment at the time. Stated otherwise, the Employer's repeated threat in early January that he would close the plant rather than deal with a union had the same impact on the union membership of applicants or prospective employees that it would have had on exist- ing employees. This is particularly true here, where the applicants in question are not "at large" but are a restricted group composed of persons who recently worked in this plant, and where the Employer's unlawful threat is uttered to several such persons, including union leaders. In these circumstances I find that assuming the eight employees who stopped paying union dues in January 1962, or thereafter there- by indicated a desire to forsake the Union, such a loss of adherents does not affect the Union's majority in the eyes of the law, and can give rise to no good-faith doubt of majority by Respondent because it is attributable to Respondent's unfair labor practice .3 At all times since Respondent started operations, therefore, the Union was the de jure representative of a majority of the production and maintenance employees,4 and entitled to recognition as such upon request. I find no bargaining request was made until the Union's letter of August 2, 1962, for Sullivan's effort to interview Speyer, at which interview Sullivan might have intended to make such a request, proved abortive through no fault on Speyer's part. The letter of August 2 is an unequivocal bargaining request, and the response of company counsel on August 7 is an unequivocal refusal, based on an asserted doubt of majority. As previously developed, an employer may not be heard to assert a goodfaith doubt of majority where any lack of majority is attributable to his own unfair labor practices. I therefore find that Respondent was under a duty to recognize the Union as of Au- gust 7, 1962, and that the refusal to recognize at that time violated the Act. The refusal to bargain just found occurred alter the basic pleadings were on file in this case. It is nonetheless plainly cognizable under National Licorice Company v. N.L.R.B., 309 U S. 350, 357, 369; N L.R.B. v. Fant Milling Company, 360 U.S 301, 306-309. Even if it were not, under the circumstances here presented, and particularly in the light of Liebtag's remark to several employees or applicants that Respondent would close the plant rather than deal with the Union, I should and Respondent guilty of an anticipatory refusal to bargain. A request to bargain was palpably futile in the light of Liebtag's anticipatory refusal. The law does not require a useless act, and Respondent having told the union offcc rs that it would never recognize or bargain with the Union, could not avoid the charge of "refusal to bargain" merely because the Union did not make the patently futile request. Cf. Williston on Contracts, Third Edition, Section 699. Finally, even assuming that no bargaining request had been made, a bargaining order would be appropriate to remedy the violation of Section 8(a)(1). See Grey- stone Knitwear Corp., 136 NLRB 573, and the last six cases cited at footnote 4 thereof. Particularly relevant here is Piasecki Aircraft Corporation v. N.L.R.B., 280 F. 2d 575, 590-592 (C.A. 3), cert. denied, 364 U.S. 933, where the court enforced a Board order directing Piasecki to bargain with a union as part of a remedy for Piasecki's dis- criminatory refusal to hire union members employed by Bellanca, a prior employer at the Piasecki premises. This case differs from Piasecki in that here the Employer hired the former employees but only after engaging in unfair labor practices calcu- lated to destroy their adherence to the Union. To permit Respondent to avoid its bargaining obligation because of this distinction would be to permit it to profit by its own wrong. Finally, it should be noted that in Diamond National Corporation, 133 NLRB 268, a case quite similar to that before us, the Board reversing Trial Examiner Heming- way, declined to issue a bargaining order. In that case the Board, in finding that the Company had acted in good faith in seeking an election, adverted to "the absence of any unfair labor practices either before or after the insistence upon an election which would have made a free election impossible, and which also indicates that Respondent was not motivated by a desire to gain time in which to undermine 3 One of the former Cline-Diebold employees McElhiney, had stopped paying dues before the unfair labor practice, but eliminating him from the Union's ranks still leaves the Union with 13 out of 20 Springer testified that his cessation of dues payments was not the result of Liebtag's statement . Such evidence is of little, if any, value, even as to Springer (see N.L.R.B. v. Donnelly Garment Company, 330 U S 219, 231), but in any event has exclusion from the Union's ranks would not affect its majority status 4 The parties stipulated that a unit composed of production and maintenance employees would be an appropriate unit. 708-006-64-vol. 141-21 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union," and also to the fact that the employer there had been bargaining "for other plants which it owns, which indicates no opposition to the collective bargaining principle." The obvious distinctions dictate a contrary result here. The complaint alleges and, of course, Respondent freely concedes that it set wage rates and other conditions of employment without bargaining with the Union. This unilateral action is part and parcel of Respondent's refusal to recognize the Union, rather than a separate violation. Although Respondent was legally obligated to bargain, it was not bound in any way by the Union's contract with Cline-Diebold, and it remains free to negotiate with the Union, in good faith, over terms and condi- tions of employment. I shall, therefore, not recommend an order directing the Company to undo the actions unilaterally taken. III. THE REMEDY I shall, of course , recommend that Respondent cease and desist from its unfair labor practices , bargain with the Union upon request , post appropriate notices, and preserve and make available appropriate records necessary to effectuate the backpay remedy provided for Greer and Sullivan . Because of the deep -seated hostility which Respondent betrayed toward the Union , including a threat to close its doors rather than deal with the Union , I find that a broad order prohibiting all interference with the employees ' Section 7 rights is appropriate to preclude other invasions thereof. With respect to Greer, having found unlawful discrimination against him in the hiring of Hamilton on April 23, 1962, I shall recommend that Respondent offer him employment and make him whole for wages lost since that date in accordance with the formula approved in F. IF. Woolworth Company, 90 NLRB 289, with interest computed in the manner and amount prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. With respect to Sullivan , I have found an intent to discriminate against him from the time Respondent opened operations , but the record does not disclose at what point , but for that discrimination , Sullivan would have been hired. Under settled law an employer violates Section 8(a) (3) and (1) when his discrimi- natory motivation becomes a factor (not necessarily the sole factor) in the determi- nation to discharge or not to hire. See, e .g., N.L.R.B. v. Jamestown Sterling Corp., 211 F. 2d 725, 726 (C.A. 2); N.L.R B. v. Minnesota Mining & Manufacturing Company, 179 F. 2d 323, 327 (C.A. 8). In view of the testimony that Sullivan, classified as a spotwelder , had performed many tasks in the shop , I find that the discrimination against him was an operative factor in his nonhire at least on April 19, 1962, when another former spotwelder was hired , and possibly as early as January 9, 1962, when operations commenced . I shall , therefore , recommend an order direct- ing that Sullivan be offered employment and that he be made whole, in accordance with the Woolworth and Isis formulas , supra, for wages lost because of the discrimi- nation against him, leaving to compliance negotiations or to formal backpay pro- ceedings the determination of the precise date on which the discrimination against him was a factor in his nonhire. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, as found above, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 4. By discriminating against E. Ray Sullivan and John T. Greer in denying them employment because of their union activities, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. 5. By refusing to bargain with the Union as exclusive bargaining representative of its production and maintenance employees, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the Respondent, Tennsco Corp., its officers, agents, successors, and assigns, shall: 1. Cease and desist from- (a) Threatening to close its doors rather than recognize or bargain with a union. (b) Discriminating against, or threatening to discriminate against, any employee TENNSCO CORP. 309 or applicant for employment because of membership in, or activities on behalf of, Stove Mounters' International Union of North America, AFL-CIO, Local No. 160. (c) Refusing to bargain with said Stove Mounters ' Local No. 160, as the exclusive representative of Respondent 's employees in the appropriate unit , which comprises all Respondent 's production and maintenance employees , excluding guards, professional employees , and supervisors as defined in the Act. (d) In any other manner interferring with , restraining, or coercing its employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer E. Ray Sullivan and John T . Greer positions substantially equivalent to those each of them filled at the plant prior to their termination in November 1961, and thereafter regard each of them for all intents and purposes as having been employed on the date he would have been hired but for the discrimination against him. (b) Make the aforesaid Sullivan and Greer whole in the manner set forth in the section of the Intermediate Report entitled "The Remedy" for losses sustained as the result of the discrimination against them. (c) Upon request , bargain collectively with Stove Mounters ' International Union of North America, AFL-CIO, Local No . 160, as the exclusive representative of the employees in the above -described appropriate unit , with respect to grievances, labor disputes , wages, rates of pay, hours of employment , or other conditions of employ- ment , and embody in a signed agreement any understanding reached. (d) 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 E. Ray Sullivan and John T. Greer. (e) Post in its establishment at Dickson , Tennessee , copies of the attached notice marked "Appendix ." 5 Copies of said notice , to be furnished by the Regional Direc- tor for the Twenty-sixth Region , shall, after being duly signed by Respondent, be posted for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees customarily are posted . Reasonable steps shall be taken by Respondent to insure that said notices are not altered , defaced , or covered by any other material. (f) Notify the Regional Director for the Twenty-sixth Region, in writing, within 20 days from the receipt of this Intermediate Report and Recommended Order, what steps Respondent has taken to comply therewith .6 ' If this Recommended Order should be adopted by the Board , the words "As ordered by" shall be substituted for the words "As recommended by 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 inserted immediately following "As ordered by" 6 If this Recommended Order should 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 Respondent has taken to comply herewith." APPENDIX NOTICE To ALL EMPLOYEES As recommended by a Trial Examiner of the National Labor Relations Board, and in order to conduct our labor relations as required by the National Labor Rela- tions Act, we notify our employees that: WE WILL NOT close or threaten to close our plant rather than recognize or bargain with Stove Mounters ' International Union of North America, AFL- CIO, Local No. 160. WE WILL NOT refuse to hire or otherwise discriminate against any employee because of his union membership or activities. WE WILL NOT in any other manner interfere with our employees in the exer- cise of their right to join or assist Stove Mounters' International Union, Local No. 160. WE WILL offer immediately to E. Ray Sullivan and John T. Greer jobs com- parable to those they formerly filled in this plant, and give them backpay for money they lost because of our discriminatory failure to hire them when jobs were available for them. WE recognize Stove Mounters ' International Union, Local No. 160, as the representative of our production and maintenance employees. WE WILL bar- 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gain collectively with that Union, upon its request, with respect to wages, hours, and other terms and conditions of employment , and if agreement is reached, sign a contract with that Union. TENNSCO CORP., Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) NOTE.-We will notify any of the above -named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. 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, 7th Floor, Falls Building , 22 N. Front Street, Memphis, Tennessee , Telephone No. Jackson 7-5451 , if they have any question concerning this notice or compliance with its provisions. Local 568, Hotel , Motel & Club Employees Union , AFL-CIO and Sydney Axelrod and Warwick Hotel , Inc., Party to a Contract. Case No. 4-CB-800. March 11, 1963 DECISION AND ORDER On October 18, 1962, Trial Examiner Sydney S. Asher, Jr., issued his Intermediate Report in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices and had not engaged in others and recommending that it cease and desist from the unfair labor practices found and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter Respond- ent and General Counsel filed exceptions to the Intermediate Report and briefs in support of their exceptions. 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, the briefs, and the entire record in the case and finds merit in General Counsel's exceptions. Accordingly, the Board adopts the Trial Examiner's findings, conclusions, and recommendations only to the extent that they are consistent with the following. 1. General Counsel alleged in his complaint that Respondent caused hotels in the Philadelphia area to refuse to employ Sydney Axelrod as an extra banquet waiter in violation of Section 8 (b) (2) of the Act by virtue of an unlawful arrangement, understanding, and practice between Respondent and the hotels requiring that such waiters be referred to jobs or cleared for employment by Respondent as a condi- tion of employment, and the refusal of Respondent either to refer Axelrod to jobs or approve his employment by the hotels. The Trial Examiner rejected this allegation and found that, although the hotels did generally use Respondent's facilities for recruiting extra banquet 141 NLRB No. 29.