Mansion House Center Management Corp.

MANSION HOUSE CENTER Mansion House Center Management Corporation and Stephen Fath, Bruce Frohardt, Fred Walters, Ray- mond J. Himmaugh, Jay Forte, Painters Local 115, affiliated with Painters District Council 2, of the Brotherhood of Painters and Allied Trades of the United States and Canada, AFL-CIO. Cases 14- CA-5635-1, 14-CA-5635-2, 14-CA-5635-3, 14- CA-5635-4, 14-CA-5649, and 14-CA-5682 May 20, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On December 10, 1970, Trial Examiner Laurence A. Knapp issued his Decision in the above-entitled pro- ceeding, 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 at- tached Trial Examiner's Decision. He further found that Respondent had not engaged in certain other un- fair labor practices alleged in the complaint and recom- mended that such allegations be dismissed. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Ex- aminer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings,' conclusions,' and recommendations of the Trial Examiner.' I The Trial Examiner made no explicit finding that the Union at the times it demanded recognition represented a majority of the employees in the appropriate unit The record shows that the unit covered eight employees, that the Union prior to making its initial demand for recognition had signed authorization cards, the validity of which is not contested, from five unit employees, and that shortly after its initial demand it received such cards from two more unit employees None of the employees sought to, or did, revoke or rescind their cards Accordingly, we find that the Union at all times relevant represented a majority of employees in the appropriate unit ' The Board agrees that the remedial order to bargain is appropriate under standards established by NL R B v G,ssel Packing Co, 395 U S 575 and finds it unnecessary to decide whether such an order might also be appropriate on other grounds Chairman Miller concurs for reasons ex- pressed by him in United Packing, 187 NLRB No 132 ' The Respondent alleges , inter aka, that, even if otherwise appropriate, a bargaining order should not issue in this proceeding because the Union discriminates against Negroes At the hearing it made an offer of proof in support of its claim of racial discrimination and in its brief moves that the record be reopened for purposes of taking evidence on the discrimination issue The Trial Examiner in considering the matter concluded that even assum- ORDER 437 Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Re- spondent, Mansion House Center Management Corpo- ration, St. Louis, Missouri, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. ing all matters alleged in the offer of proof to be true the Respondent had, nevertheless, not made out a substantial case that the Union discriminates against Negroes We agree, for the offer of proof turns primarily on the asserted fact of racial imbalance in the Union's membership but does not allege the Union has, since segregated locals were abolished in 1968, denied membership to any applicant on grounds of race Furthermore, it is of some relevance here that one of Respondent's employees signed up by the Union was a Negro In view of the foregoing considerations, Respondent's motion to reopen the record is denied TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE; LAURENCE A. KNAPP, Trial Examiner: I heard this case in St. Louis, Missouri, on September 14-15, 1970,' pursuant to pretrial procedures in compliance with the National Labor Relations Act, as amended.' After the hearing briefs were filed by counsel for the General Counsel and for Respondent. Upon the entire record' and my observation of the tes- timonial demeanor of the witnesses, I make the following: FINDINGS AND CONCLUSIONS I THE BUSINESS OF RESPONDENT; THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that Respondent a Missouri corporation is engaged in the managerial operation of a residential and office building com- plex in St. Louis know as Mansion House Center, and that in the course of this business in the calendar year ending July 16, 1970, Respondent made sales or performed services valued in excess of $50,000, and purchased materials and supplies valued in excess of $50,000 shipped to it directly from points located without the State of Missouri. Respond- ent is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act, and assertion of jurisdiction herein is proper. The evidence establishes, and I find, that Painters Local 115, affiliated with the Painters District Council 2, of the Brotherhood of Painters and Allied Trades of the United States and Canada, AFL-CIO (hereinafter referred to as the Union), is a labor organization within the meaning of Section 2(5) of the Act. Charging Party Raymond J Himmaugh's last name appears to be incor- rectly spelled as "Himmaught" in the transcript Unless otherwise indicated, dates given are in 1970 The underlying charges were filed on various dates between June 4 and July 8 (one charge was thereafter amended), the complaint issued on July 27 (and was thereafter amended), and Respondent duly answered the com- plaint ' The unopposed motion of counsel for the General Counsel to correct the transcript of testimony, dated October 16, is hereby granted There are additional errors in the transcript which I do not correct either because they are obvious or, in any case, harmless 190 NLRB No. 78 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II THE ALLEGED UNFAIR LABOR PRACTICES On June 1, five of the eight painters then employed by Respondent signed Union "AUTHORIZATION FOR REP- RESENTATION" cards, on June 2, two more of such paint- ers signed such cards.' As Respondent's counsel conceded at the hearing, and as I hereinafter find, on June 2, and there- after, Respondent rejected the Union's demand for recogni- tion as bargaining representative for a unit of employees con- sisting of the painters.' In the period June 3-12, Respondent terminated the employment of all eight of its painters. The question presented are whether Respondent's refusal to recognize the Union and its termination of the eight paint- ers violated the corresponding provisions of Section 8(a)(5), (3), and (1) of the Act. A further question is whether, with reference to one of these employeees, Respondent engaged in conduct violative of Section 8(a)(4) of the Act. A. Background Facts The Mansion House Center operated by Respondent con- sists of a complex of buildings covering some 6 blocks (7 acres of land) located on the riverfront in downtown St. Louis. The complex is composed mainly of three residential apartment house towers (containing some 1,250 apartments); three small office buildings occupied by commercial tenants; res- taurant, lounge, and swimming pool facilities; and basement garage facilities accomodating some 1 ,700 automobiles. Respondent is responsible for the necessary interior and exterior painting, with the interior painting mainly that of the apartments, corridors, and elevator lobbies, and the exterior painting mainly that of masonry surfaces, such as coverings at the apartment house entrances, and of the swimming pools. Interior painting, a least that of the apartments, proceeds on a year-round basis, while the exterior paintings, to the extent required each year, is performed in the spring and brought to an end when the outside temperature requires. It has been Respondent's practice, during at least a considerable portion of the time since the Center was opened in 1966, to utilize painting contractors to perform the interior, while perform- ing the exterior masonry and perhaps certain interior paint- ings directly through painters Respondent hires for that pur- pose. However, a painting contractor whom Respondent was utilizing for the interior painting in 1969 fell ill toward the end of that year, so that beginning about December 1969 Respondent had been performing the interior painting on its own account. As of February 1970, Respondent had three employees (Fath, Brown, and Mounce) engaged in such painting. Between early April and early June, Respondent engaged five additional painters (Frohardt, Walters, Forte, Himmaugh, and Dunham), most of whom were utilized for both interior and exterior painting. Seven of these painters were on Respondent's payroll on June 1; the last to be hired, Dunham, was engaged on June 3. B. Events Pertinent to the Refusal of Recognition At the instigation of employee Fath, Raftery, a business representative of the Union (accompanied by Cox, an official of the Union's parent International Union), met with Fath and four other of Respondent's painters in the late afternoon of June 1 at a lounge in the complex. During this meeting the five painters present signed union representation-authonza- tion cards, and during the course of the next day Fath secured the signatures of two additional painters to such cards.' In the morning of June 2, Raftery and Cox called at the office of Mr. Lashly, Respondent's president, and in due course, there ensued a conversation principally between Raf- tery and Lashly. At the outset, Reftery handed to Lashly a letter containing the Union's claim to representation of a majority of Respondent's painters, its request for recognition, and a request to schedule a date for collective-bargaining negotiations.' After Lashly had read this letter, Raftery handed him a form of recognition agreement which he asked Lashly to sign. After reading this document,' Lashly handed it back to Raftery and, according to the latter, said, "You know better than that, I won't sign anything like that," and made further remarks to the effect that Raftery had come without an appointment and was trying to "strong-arm" him into signing the recognition agreement. Raftery further tes- tified that "I ... tried to assure him that we weren't trying to strong-arm him, we would be happy to set up a meeting with him at his convenience ... and he told me that if I wanted a fight he would give me a fight, that if I got one step out of line he would cut my throat and ... several times he accused me of trying to strong-arm him into have an agreement. ... " Lashly testified that he told Raftery he was not pre- pared to sign the recognition agreement at this time, but denied that he accused Raftery of strong-arm tactics or that he made any threats about a "fight" or cutting Raftery's throat. The meeting ended upon the understanding that there would be a further meeting at the time fixed by Lashly.l° That time was later fixed by Lashly as June 10, at 10 a.m., at Lashly's office. (By the time Lashly and Raftery met at that date, Respondent had discharged the following five painters on the following date: Fath (June 3), Frohardt (June 3), Walters (June 4), and Himmaugh and Dunham (June 8). The first part of the meeting was devoted to an inconclusive dis- cussion of reinstatement of the discharges, with Raftery as- serting the belief that they had been terminated because of their union activities and Lashly asserting various legitimate reasons for their terminations. Then, according to Raftery, he renewed the Union's request for recognition and, in response, was told by Lashly that he would never sign an agreement, did not like Raftery personally, and would go to the Supreme Court before the Union would get recognition from Respond- ent. With respect to Raftery's renewed claim of majority representation rights, Lashly testified that he replied that Respondent employed only "one or two" painters on a per- manent basis but, while entering a general denial that he at ' For the text of the cards, which authorize the Union to act as collective bargaining agent for the signers, see G C. Exh. 2-5, inclusive, and 9 and 10 , While Respondent's answer denies the complaint's allegation that a unit of its painters is an appropriate one for collective-bargaining purposes, it did not pursue this position at the hearing or in its brief Since other groups of Respondent's employees (electricians as one example, and janitors and maids as another) are represented on a craft basis, since painters tradition- ally constitute a distinct craft, and since there is no organization represent- ing or claiming to represent the painters on any more inclusive basis, I find the unit alleged to constitute an appropriate one for collective-bargaining purposes within the meaning of the Act ' No question is presented concerning the cards as valid authorizations of the Union to represent the signers for collective-bargaining purposes. Fath, Himmaugh, Walters, Forte, and Mounce signed on June 1, the June 2 signers were Brown and Frohardt See G C Exh 2-6, 9 and 10 There is no evidence that Dunham ever signed GCExh7 G C Exh 8 ° Other matters were the subjects of exchanges during this initial meet- ing (such as Lashly's reference to the painters, or some of them, as "itiner- ant," "transient," or "temporary" workers, and some disputes centering around Raftery's assertion that Lashly was a difficult man to make apoint- ments with) but these features of the meeting are too irrelevant to detail MANSION HOUSE CENTER 439 any time said he would not recognize the Union, did not directly deny making on this occasion the more specific state- ments which Raftery's testimony attributes to him. In the course of the meeting (apparently toward the end) Lashly expressed a desire to meet with Raftery's superior, Mr. Hunn, secretary of the Union, a meeting which Mr. Raftery agreed to arrange. Raftery did so and upon the appointed date (about a week after the June 10 meeting), Raftery and Hunn came to Lash- ly's office, but no meeting was held because of Mr. Lashly's failure to appear." There were no subsequent contact between the Union representative and Lashly. With respect to what happened at the June 2 and 10 meet- ings between Raftery and Lashly, after careful consideration I credit the testimony of Raftery as to what Lashly said on these occasions and reject Lashly's testimony to the extent that it may conflict with that of Raftery. I reach this result on the basis of my observations of the demeanor of both witnesses while testifying, and because, after considering the entirety of the testimony of each of these witnesses in the light of the record as a whole, there are various particulars in which I regard the testimony of Lashly as implausible whereas Raftery's testimony does not create similar doubts. Accordingly, I find that at the June 2 meeting Lashly rejected the Union's request for recognition in the threatening and antagonistic fashion Raftery described, did so again at the June 10 meeting, and in complaining that the union repre- sentative had had no appointment for the first meeting (as a result of which the second meeting was arranged), and in seeking to draw Mr. Hunn into a third meeting, was merely playing for time. C. Events Pertinent to the Terminations As previously noted, five of the painters signed union cards on June 1 and two more on June 2, and on the latter day, through Raftery's meeting with Lashly, Respondent neces- sarily learned of its employees' organizational activity. The next day, June 3, Respondent terminated the employment of Fath and Frohardt, on June 4 it discharged Walters; on June 8 it terminated Himmaugh and Dunham (each hired about a week before); and on June 12, after Lashly's second meeting with Raftery, the three remaining painters (Brown, Mounce, and Forte) were let go. The General Counsel contends that all these terminations were discriminatory, and as his proof places principal reliance on Lashly's animosity to the appear- nace of the Union as demonstrated at his meetings with Raf- tery, on the suddenness with which these terminations fol- lowed upon the union activity of the men, and on asserted implausible features of Respondent's explanations for various of these terminations. Respondent, on the other hand, denies that the union activity of the men had anything to do with their terminations and asserts that all were let go for good and sufficient lawful causes. I turn therefore to the corresponding evidence. Respondent's main witness with respect to all the termina- tions was its executive housekeeper, Mrs. Gaddy, who had exercised most of the supervisory responsibility over the painting operations since December 1969, when Respondent took over responsibility for painting due to the illness of the contractor previously responsible." " Respondent's testimony (that of Lashly and his secretary) is to the effect that Lashly was detained at home due td illness and that the union representatives were informed while waiting for Lashly that he might be unable to keep the appointment for this reason They left after working for some appreciable time " While Respondent's evidence identifies Mrs Gaddy as the person having supervisory authority over the painting, other of its evidence and of 1. As to Fath, Mrs. Gaddy testified that what led her to decide to discharge Fath was his messy work in painting certain apartments during the 10 days or 2 weeks preceding his discharge on June 3, so that Respondent was put to unusual effort and difficulty in cleaning up his paint spills or spatters. Such a list was contained in his letter of termination, and in attempted corroboration Respondent introduced cer- tain documentary evidence with respect to the necessary cleanup work performed by maintenance workers." But Mrs. Gaddy further testified that she had been more or less con- stantly criticizing Fath on these grounds since February; an item which she stressed heavily in her testimony was not contained in the list set forth in Fath's letter of termination, which she prepared; Fath was the senior of Respondent's painters and was termed the "head painter,"" he had received some compliments on his work and, according to him, only one criticism by Gaddy; and, on the evidence before me, Mrs. Gaddy could have had no way of ascertaining whether the alleged messy work in the cases she cited had been done by him or by Brown, the painter working with him. He also had not been warned of possible discharge. 2. Frohardt had done some satisfactory painting in March in a medical building which Respondent, or Mr. Lashly man- ages and, after quitting that job, was hired by Mrs. Pulcher, Lashly's secretary, to work at the Center, where he began work some 6 weeks or 2 months prior to his termination on June 3. During his employment at the Center, he was engaged principally in interior painting. In discharging Frohardt, Mrs. Gaddy gave him a letter tersely listing various ground for his termination," which, in the main, add up to criticism of the quality of his performance as a painter. Frohardt admitted that Mrs. Gaddy had voiced some of these criticisms to him on the job but offered ex- tenuating explanations respecting some of them. He was never warned of any disciplinary measures, however, in the event of continued unsatisfactory work. 3. Walters was hired about early April and was discharged by Mrs. Gaddy on June 4. At noon on June 2, Walters, with Mrs. Gaddy's permission went home on the ground of illness, worked a full day on June 3, and on June 4 reported for work about midday without having previously notified Mrs. Gaddy that he would not report on time that morning In discharg- ing Walters, Mrs. Gaddy gave him a written termination paper specifying his failure to notify her of his intended ab- sence that morning as the reason for his discharge. The paper goes on to state that Respondent had a definite schedule of work to be completed and "this type action cannot be tole- rated."" 4. Himmaugh was hired about June 1 by Mrs. Pulcher, Mr. Lashly's secretary, and on the basis of his testimony, not specifically contradicted by Mrs. Pulcher, I find that Mrs. Pulcher told him at the time of his hire that there would be work "parttime" for 3 or 4 months. While employed, Him- maugh did both interior and exterior painting. In terminating the General Counsel's shows that Ward, Respondent's manager of engineer- ing and maintenance, and Mrs Pulcher, Lashly's secretary, likewise had some supervisory authority In short, this was not an area in which super- visory authorities and responsibilities were clearly or sharply defined " For various reasons, including the absence of comparable data for other painters or for other periods, this documentary evidence is not particularly persuasive " Fath had started painting apartments (his exclusive work) in June 1969 as an employee of the then contractor and went on Respondent's payroll in December 1969 "GCExh 16 " Frohardt testified that he was still ill that morning but did not call in because he hoped to avoid taking the full day off and because his home lacked a telephone 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Himmaugh on June 8, Mrs. Gaddy told him he was a good painter whom she hated to lose but did not give him any specific reason for the discharge. Mrs. Gaddy testified that she discharged Himmaugh (and Dunham, see below) on June 8 because the work for which they had been hired, apparently referring to the outside painting, had been completed Him- maugh testified, however, that there was some extenor paint- ing remaining to be done on June 8, and on the basis of all the pertinent testimony it cannot be said that all exterior painting previously planned for completion had been finished on June 8. In this connection , in about mid-May, Mrs. Gaddy, apparently at the direction of maintenance manager Ward, ordered some 200 gallons of exterior paint, which was delivered on May 21. About late June, or early in July, Maintenance Manager Ward directed that the unused por- tion of the order, some 160 gallons, be returned to the supply firm, having decided that there had been completed all the outside work which the temperature factor permitted. 5. Dunham was hired on June 3 and discharged, with Himmaugh, on June 8. According to Mrs. Gaddy, he was discharged for the same reason as Himmaugh." 6. Forte was hired on May 8 and was terminated on June 12 by Mrs. Gaddy, who told him that morning that his job would terminate at noon that day. He performed both in- terior and exterior painting but apparently was engaged primarily in exterior painting in the latter part of his period of employment. As to the reason for Forte's termination, Mrs. Gaddy testified that, although she could not recall who had hired Forte, he had been engaged strictly on a temporary basis and was terminated because the work for which he had been hired ("canopies, corridors, and swimming areas") had been completed. Forte, on the other hand, testified that Maintenance Manager Ward spoke to him on three occasions while he was performing exterior work (apparently during the approximate period of May 28 - June 6) and variously told him on one or another of these occasions that he liked Forte's work, that he was going to let a number of painters go but would keep four men for year-round work, and that he wanted to retain Forte on that basis." Ward testified that he told Forte and two others doing outside painting with him that if they did a good job on the outside work he would try to keep them on for apartment painting when the outside work was completed. 7. and 8. Respondent hired Mounce as a painter in Febru- ary and in that month put Brown, previously on the janitorial staff, to work as a painter. Both were engaged primarily in apartment painting. On the morning of June 12, Mrs. Gaddy told them that they would be laid off that evening because Respondent was going to utilize a painting contractor, and when they were so laid off Mrs. Gaddy introduced them to a Mr. Chamness, the contractor, who offered them jobs.19 Mrs. Gaddy testified that Respondent terminated these two because it had engaged Chamness as the contractor. Chamness testified that on May 26 he was hired by Mrs Pulcher to work for Mr. Lashly as a painter in a medical building, that he finished the work there in about 3 weeks, that he then, about mid-June, received a call from Mrs. " Dunham did not testify and there is no evidence that he signed a union card or engaged in any other union activity " Forte also testified that when he was hired Mrs Pulcher told him that there would be year-round work for a steady painter Mrs Pulcher, not recalling Forte in particular , testified that what she told applicants (Mrs Pulcher initially interviewed applicants who appeared in response to Re- spondent's newspaper "ads" for painters, of whom Forte was one) was that the work involved was "spring clean-up" and that permanent employment could only be as a replacement on "the regular staff of two painters," con- cerning which she made no promises 1B Mounce later accepted but Brown did not Pulcher to come to Mansion House to talk to Mr. Lashly about doing contract work there, that he had two meetings on successive days with Mr. Lashly, that Mrs. Gaddy recom- mended Brown and Mounce to him while also giving him some applications of nonemployees she possessed, that he met Brown and Mounce on their last day of work for Respondent (June 12), and that he first met with Lashly on a Wednesday and began work the next week. On cross-examination he testified that June 8 was "roughly" the date he started paint- ing apartments at the Center. Lashly testified that he talked to Chamness in about mid-May, while Chamness was work- ing at the medical building, to come down to the Center "to paint" (Chamness' testimony concurs that there was such a conversation about him coming to work at the Center as an employee after the medical building work was finished), and that he subsequently talked to Chamness about "taking over" at the Center as a contractor, but he could not recall the dates when he engaged Chamness or when Chamness took over as a contractor. Bearing in mind the fact that Chamness could not have taken over as a contractor until after June 12, the date of Respondent's termination of Brown, Mounce, and Forte, I am satisfied that Chamness did not begin work as a contractor prior to Monday, June 15, and that, since there obviously was an interval of only a few days between the time he began as a contractor and his conversations with Lashly on this subject, Lashly first approached him on this subject after June 2, the date of the Union's demand for recognition. In short, I believe that the time sequences given in Chamness' direct examination are generally correct and credit them.20 D. Further Analysis and Findings Respecting the Discharges and Refusal of Recognition The antagonistic manner in which Lashly received and rejected the union claim of majority representation and re- quest for recognition plainly manifested his deep-seated op- position to union organization of Respondent's painters. This circumstance, coupled with the termination in the following days of Respondent's entire painting staff, gives rise to a strong inference that the discharges were discriminatorily motivated and designed to provide Respondent with an ave- nue of escape from the recognition demand. The primary question, therefore, is whether Respondent's evidence con- cerning the terminations makes out a case that they were for nondiscriminatory reasons sufficiently persuasive to over- come the inference of illegality arising from the General Counsel's evidence. I conclude that this question must be answered in the negative, because of what I consider are various unpersuasive aspects of Respondent's explanations viewed in the light of all pertinent evidence and circum- stances. In the first place, I am unimpressed with certain of Re- spondent's evidence with respect to the engagement of Cham- ness as a contractor. Thus, while he could not recall the corresponding dates involved, Lashly nevertheless unjustifia- bly endeavored in his testimony to create the impression that this arrangement had taken form in May, prior to the Union's demand for recognition and his consequent knowledge of the employees' union activity, when, as I have found, this was not the case and as Lashly must have known. Further in this connection, if this arrangement had been made or was the subject of negotiations with Chamness prior to June 2, it would be expected that Lashly would have so informed the union representatives on that date. In the circumstances, '" Mrs Gaddy's testimony (which I credit) that Chamness took posses- sion of the keys to the paintroom on June 12 and began work as a contractor the following week, and Respondent's hiring of Dunham on June 3, further sustain these findings MANSION HOUSE CENTER 441 Lashly's efforts to portray this arrangement as having an earlier genesis indicate that he sought at the hearing to place a better face on these circumstances than facts he knew war- ranted. I am similarly unimpressed with Respondent's contention that it let Himmaugh and Dunham go on June 8, and Forte on June 12, because the work which they were hired to do was completed. Assuming this contention refers to the outside masonry painting, Respondent's receipt of a large quantity of masonry paint as late as May 21, certain of Ward's testimony respecting when he decided to terminate the outside painting, and the hiring of the two painters (for outside work, accord- ing to Respondent) as late as June 1 and 3, are factors scarcely compatible with any plan of Respondent's, determined upon prior to June 2, to bring the outside painting to an end a few days later. Nor did Respondent offer any evidence that the 85 degrees temperature level which it asserts would require (when reached, I presume, on a sustained basis) cessation of outside masonry painting had, in fact, been attained at the time of the corresponding terminations. Respondent likewise did not inform Himmaugh that this was the reason for his termination, or inform him when he was hired about a week earlier that such a brief period of employment was all he could expect, Rather, he was told there was several months' work ahead, albeit "part time." Indeed, when Himmaugh was terminated on June 8, outside painting of the character he was performing remained to be done. Furthermore, the notice of termination given to Walters when he was dis- charged on June 4 referred to a schedule of work to be com- pleted, meaning, presumably, the outside work in which he was then engaged. In the case of Fath, assuming that Fath performed substan- tial sloppy work in his last 10 days to 2 weeks, I consider Respondent's case weakened by the efforts Respondent's wit- nesses also made to portray his incompetence in these re- spects as having prevailed for some months, by its failure or inability to prove that he was more derelict in these respects than others, by its inability to establish that it was he rather than another painter working with him who was responsible for the asserted deficiencies in painting the apartments listed in his notice of termination, and by the fact that he was given no warning of possible discharge or other disciplinary action although he had had relatively long service and, on this record, obviously had performed and was capable of credita- ble work. In the light of these substantial doubts concerning the credibility of Respondent's explanation for various of the terminations, I conclude that the inference of discriminatory motivation arising from the facts previously alluded to has not been overcome, that this unlawful motivation formed a basis for all the terminations, and hence that they were in violation of Section 8(a)(3) and (1) of the Act.21 On the other hand, I do not find that Forte was denied reinstatement in violation of Section 8(a)(4) of the Act, as charged in the complaint, for the reasons set forth in the note below." As to the charge of refusal to bargain, Respondent in truth met the Union's demands for recognition by rejecting them and reinforcing its rejections by discharging the entire com- plement of employees in the bargaining unit. Such action amounted to a refusal to bargain in violation of Section 8(a)(5). Furthermore, the coercive effects of such discharges are so serious and pervasive in character as to render the cards a more reliable measure of employee desires than an election and, by the same token require a bargaining order to repair their effect even if Respondent had not violated Section 8(a)(5) by its rejection of the Union's demands. N.L.R.B. v. Gissel Packing Co., 395 U.S. 575. III THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section II, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, inti- mate, 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. IV THE REMEDY Having found that Respondent engaged in the unfair labor practices found above, my recommended Order set forth be- low requires that it cease and desist therefrom and take cer- tain action designed to effectuate the policies of the Act. Such affirmative action will include recognition and bargaining, upon request, with the Union as the representative of its employees in the appropriate unit previously described herein. These recognition and bargaining provisions are in- cluded in the order despite two grounds of opposition thereto asserted by Respondent at the hearing, which I will assume Respondent has standing to interpose even though it did not refuse the Union recognition on either of these bases. The first of these contentions is that even if Respondent unlawfully refused to recognize the Union, the Union is not entitled to a bargaining order, that is, it may not be accorded the status of bargaining representative, on the asserted ground that it excludes nonwhite persons from membership. In this connection, counsel for Respondent disclaimed any attempt to prove that there are any such restrictions in the constitution or bylaws of the Union. He then made an offer of proof, which is to the effect that the Union's jurisdictional territory includes a goodly portion of the St. Louis metropoli- tan area, that the population of this area is about 50 percent nonwhite, that the Union has approximately 375 active mem- bers, of whom 3 are black members who became members by transfer from a former Negro local union when that local disbanded in 1968; that no nonwhite persons have become members of the Union since those three transferees,21 and that Brown, a black person who signed a union card in this case, " Dunham's discharge violated the Act despite the absence of evidence that he signed a union card or engaged in any other union activity The essence of the situation is that, with reason to know from the Union's demands that a majority of the painters had aligned themselves with the Union, Respondent set about to clear out its entire painting staff without regard to what particular painters had designated the Union Any of the discharges served to discourage union membership or activity irrespective of the union activity of any particular dischargee " Forte testified that when on the afternoon of June 12, subsequent to his termination at noon, he attempted to hand to Mrs Gaddy a copy of the charge he had filed that day with the Board's Regional Office, Mrs Gaddy told him he did not "need to go to the Labor Board, we were going to call you back " Mrs Gaddy denied having any conversation with Forte on this occasion Assuming that Mrs Gaddy made such remarks, I would have difficulty in concluding, were it necessary to decide this question, that they constitute sufficient proof that Respondent failed to reinstate Forte because he had filed the charge Forte did not make any specific request for reinstate- ment to Mrs Gaddy on this occasion and at this time Respondent had turned or was turning the painting operation over to Chamness But it is unnecessary to pass on this question since I find that Forte's discharge violated other sections of the Act and the remedial relief is the same in either case " The corresponding language of counsel's offer is that "no non-white persons have been admitted to membership" since 1968, but it was clear to me at the hearing that counsel did not mean by this language that nonwhite persons had been refused membership but rather meant only that no non- white persons had become members of the Union since 1968 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is not a member of the Union or of the apprentice program operated by the Union. The proof so offered fails to establish that the Union excludes nonwhites from membership. With it not asserted that the Union has any such constitutional restriction, and with it clear that the Union has some non- white members, Respondent cannot make out a case of "de facto" segregation merely on the basis of the population divi- sion it refers to. Rather, Respondent would have to establish that in actual practice the Union has received membership applications from blacks or other nonwhites and has rejected them on racially discriminatory grounds. Respondent's offer of proof does not go this far and, obviously, such facts will not be assumed.24 Respondent opposes a bargaining order on a further ground. Its accompanying offer of proof is that in negotiating contracts with employers the Union has standard wage rate requirements, and one of these is that the rate for mainte- nance painting (the sort Respondent performs) be a least 80 percent of the rate fixed for construction painting in the agreement negotiated by the Union with the local construc- tion industry bargaining group. Respondent contends that the Union's inflexible position relative to the maintenance painting rate establishes that it does not bargain in conform- ity with the Act's requirements, and could only lead to the filing of a corresponding charge against the Union by Re- spondent, or a strike. Passing over other defects in this chain of reasoning, it is sufficient to point out that there is no justification whatever for relieving Respondent of its bargain- ing obligation because of the possibility that the Union might violate its corresponding duty. At bottom, what is involved here is the right of Respondent's employees to bargain collec- tively through their chosen representative, and they may not be shorn of that right in advance of its exercise on such speculative grounds as Respondent advances. In short, the Act must be allowed to operate, with the outcome, in the respects put forth by Respondent, left to abide the actual events. I have found that Respondent discriminatorily discharged Stephen J. Fath, Eddie Brown, Bruce Frohardt, Raymond Himmaugh, Jay P. Forte, Fred S Walters, Wilburn Mounce, and Paul Dunham. In this connection, the record indicates that some of these employees would have been released as the exterior and perhaps certain other non-regular painting was completed, but on this record it is impossible to determine either what specific employees would have been terminated for this reason or when such terminations would have taken place. It also appears that in addition to the arrangement made with Chamness in June, Respondent was using the services of a contractor at the time of the hearing. In these circumstances, my recommended order requires Respondent to offer all the foregoing discriminatees immediate reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent ones, without prejudice to their seni- ority or other rights and privileges, dismissing, if necessary, any employees hired since the initial discrimination and ter- minating, if necessary, any corresponding painting contract it may have; and that if there is not sufficient work available for those discriminatees who accept reinstatement the follow- ing procedure shall be adopted: All available positions shall be distributed among the dis- criminatees in accordance with such nondiscriminatory cnt- eria as Respondent would have followed in effecting reduc- tions in force, and those discriminatees, if any, for whom no jobs were available after such distribution shall be placed on " In Nat Harrison Associates, Inc, 177 NLRB No 24, the Board rejected a similar contention on the ground that sufficient evidence of discriminatory membership policies was not presented a preferential hiring list, priority on such list being deter- mined in accordance with the said nondiscriminatory criteria. My recommended Order also requires Respondent to reim- burse the discriminatees for any loss of pay they may have suffered by reason of Respondent's discrimination against them, by paying to them a sum of money equal to the amount they would normally have earned as wages from the dates of their discharges to the dates of Respondent's offers of rein- statement (or placement on a preferential hiring list), less their net earnings during that period. Backpay shall be com- puted on the basis of calendar quarters in accordance with the method prescribed in F. W. Woolworth Company, 90 NLRB 289, and interest at the rate of 6 percent per annum shall be added to het backpay, in accordance with Isis Plumbing & Heating Co., 138 NLRB No. 97. In view of the gravity of Respondent's various violations of the Act, the recommended Order contains a broad injunc- tive provision restraining further violations. CONCLUSIONS OF LAW 1. By discriminating against employees with regard to their tenure of employment because of their union activities, Re- spondent violated Section 8(a)(3) and (1) of the Act. 2. By refusing to recognize or bargain with the Union, Respondent violated Section 8(a)(5) and (1) of the Act. 3. The foregoing are unfair labor practices affecting com- merce within the meaning of the Act. Upon the basis of the foregoing findings of facts and con- clusions of law and upon the entire record of the case, pursu- ant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER25 Mansion House Center Management Corporation, of St. Louis, Missouri , its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in a labor organization by discriminating in regard to hire, tenure, or other conditions of employment. (b) Refusing to recognize or to bargain collectively with Painters Local 115 , affiliated with Painters District Council 2, of the Brotherhood of Painters and Allied Trades of the United States and Canada , AFL-CIO, as the exclusive repre- sentative of the employees in the appropriate unit, viz. All painters, employees of Respondent , excluding office clerical employees, professional employees , guards and supervisors as defined in the Act, and excluding all other employees (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization , to form labor organizations, to join or assist any labor organization, to bargain collectively through represent- atives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. " In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations , and Recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes MANSION HOUSE CENTER 443 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Upon request, recognize and bargain collectively with the above-named Union and embody in a signed agreement any understanding reached. (b) Offer Stephen J. Fath, Eddie M. Brown, Bruce E. Fro- hardt, Raymond J. Himmaugh, Jay P. Forte, Fred S. Walters, Wilburn Mounce, and Paul Dunham reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, in the manner set forth in the section hereof entitled "The Remedy." (c) Make the aforesaid persons whole for any losses of pay they suffered by reason of the discrimination against them, in the manner set forth in the section hereof entitled "The Remedy." (d) Notify any of the above named persons if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying all payroll records, social security payment records, timecards, personnel records, and all other records necessary to analyze the amount of backpay due under the terms of this Recom- mended Order. (f) Post at its place of business in St. Louis, Missouri, copies of the attached notice marked "Appendix."26 Copies of said notice, on forms provided by the Regional Director for Re- gion 14, after being duly signed by Respondent's representa- tive, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 14, in writing within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.27 The complaint is dismissed as to unfair labor practices not specifically found herein. the National Labor Relations Board has found that we vi- olated the National Labor Relations Act and has ordered us to post this notice. The Act give all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through representatives of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all such of these things. WE WILL NOT do anything that interferes with, re- strains, or coerces employees with respect to these rights. WE WILL NOT discourage membership in or affiliation with Painters Local 115, affiliated with Painters District Council 2, of the Brotherhood of Painters and Allied Trades of the United States and Canada, AFL-CIO, or any other labor organization, by discnminatonly dis- charging any of our employees, or by discriminating in any other manner in regard to their hire or tenure of employment or any terms or conditions of employment. WE WILL offer Stephen J. Fath, Eddie M. Brown, Bruce E. Frohardt, Raymond J. Himmaugh, Jay P. Forte, Fred S. Walters, Wilburn Mounce, and Paul Dun- ham reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent po- sitions, without prejudice to their seniority or other rights and privileges, and we will make them whole for any loss of earnings suffered as a result of their dis- charges, in the manner provided in the Board's Order. WE WILL NOT refuse to but will recognize and bargain collectively with Painters Local 115, affiliated with Painters District Council 2, of the Brotherhood of Paint- ers and Allied Trades of the United States and Canada, AFL-CIO, as the exclusive bargaining representative of all the following employees: All painters, employees of Respondent, excluding office clerical employees, professional employees, guards and supervisors as defined in the Act, and excluding all other employees. 36 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " " In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all sides had a chance to give evidence Dated By MANSION HOUSE CENTER MANAGEMENT CORPORATION (Employer) (Representative) (Title) This is an official notice and must not be defaced by any- one. 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. Any questions concerning this notice or, compliance with its provisions may be directed to the Board's Office, 210 North 12th Boulevard, Room 448, St. Louis, Missouri, Tele- phone 314-622-4144.