Boro Burglar Alarm Co.

BORO BURGLAR ALARM CO. Boro Burglar Alarm Company and Local 3, Interna- tional Brotherhood of Electrical Workers, AFL- CIO Central Electric Alarms, Incorporated and Local 3, International Brotherhood of Electrical Workers, AFL-CIO. Cases 29-CA-5286 and 29-CA-5287 January 24, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On August 19, 1977, Administrative Law Judge John F. Corbley issued the attached Decision in this proceeding. Thereafter, Respondent Central Electric Alarms, Incorporated, filed exceptions and a sup- porting brief, and the General Counsel filed a brief in reply. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs,' and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, except that the remedy is modified so that the interest is to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent Central Electric Alarms, Incorporated, Brooklyn, New York, its officers, agents, successors, and assigns shall take the action set forth in the Administrative Law Judge's recommended Order, except that the attached notice shall be substituted for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the complaint in Case 29-CA-5286 be, and it hereby is, dismissed in its entirety. I Respondent Central has requested that the hearing be reopened contending its president, who represented Respondent at the hearing, did not understand the importance of certain evidence as an attorney would have and failed to present it. We deny the request since Respondent expressly waived the right to appear by counsel at the beginning of the hearing and voluntarily elected to be represented by its president who was accorded considerable leeway in presenting Respondent's case and cross- examining witnesses. Tred-Air of California, Inc., 193 NLRB 672 (1971); Air Transport Equipment, Inc., 190NLRB 377 (1971). 2 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 234 NLRB No. 58 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives you as employees, certain rights including the rights to self- organization; to form, join, or help unions; to bargain collectively through a representative of your own choosing; to act together for collective bargain- ing or other mutual aid or protection; or to refrain from any or all such activities. Accordingly, we give you these assurances: WE WILL NOT threaten to have you blackballed from employment because of your union activi- ties. Nor will we do anything which interferes with any of your rights set forth above. WE WILL NOT refuse to hire you nor will we discharge you or take any other reprisal against you because you join, support or are sympathetic to any labor organization. WE WILL NOT in any other manner interfere with; restrain, or coerce our employees in the exercise of rights guaranteed in Section 7 of the Act. WE WILL offer to hire Max Weintraub and WE WILL make up all pay he lost as the result of the refusal to hire him, with interest, subject to certain limitations set forth in this Decision. CENTRAL ELECTRIC ALARMS, INCORPORATED DECISION STATEMENT OF THE CASE JOHN F. CoRBLEY, Administrative Law Judge: A hearing was held in this case on April 11 and 12, 1977, at Brooklyn, New York, pursuant to a charge filed' (in Case 29-CA- 5286) by Local 3, International Brotherhood of Electrical Workers, AFL-CIO (hereinafter referred to as the Union or the Charging Party), on November 2, 1976, which was served by registered mail on Respondent Boro on or about November 2, 1976; a charge (in Case 29-CA-5287) which was filed by the Union on November 2, 1976, and served by registered mail on Respondent Central on or about November 2, 1976; an order consolidating cases, com- plaint, and notice of hearing issued by the Regional Director for Region 29 on December 16, 1976, which was served on Respondents by registered mail on December 18 and 20, 1976; and an amended consolidated complaint and notice of hearing (hereinafter referred to, simply, as the complaint) issued by the Regional Director for Region 29 on March 11, 1977, which was thereafter served on Respondents on March 15 and 17, 1977. 389 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The complaint, which was further amended on the record at the hearing, alleges that Respondent Central has violated Section 8(a)(1) of the Act by threatening employ- ees with reprisals for their union activities and that both Respondents violated Section 8(a)(l) and (3) of the Act by refusing to hire Max Weintraub since August 1976 because of his leadership in union activities and because he engaged in other protected concerted activities. In their answers to the complaint, the Respondents have denied the commis- sion of any unfair labor practices. For reasons which appear hereinafter I find and con- clude that Respondent Central has violated the Act essentially as alleged in the complaint. As to Respondent Boro, I shall recommend that the unfair labor practice allegations against it be dismissed. At the hearing the General Counsel and Respondent Boro were represented by counsel. All parties were given full opportunity to examine and cross-examine witnesses, to introduce evidence and to file briefs. At the conclusion of the hearing the General Counsel and both Respondents presented oral argument. Subsequent to the hearing a brief has been received from the General Counsel which has been considered. Upon the entire record 1 in this case including the brief, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENTS Respondent Boro is and has been at all times material herein a corporation duly organized under and existing by virtue of the laws of the State of New York. Respondent Central is and has been at all times material herein a corporation duly organized under and existing by virtue of the laws of the State of New York. National Guardsmen Systems Company, herein called Guardsmen, is and has been at all times material herein a division of Equity Leasing Corporation, a corporation duly organized under and existing by virtue of the laws of the State of New York. At all times material herein Respondent Boro has maintained its principal office and place of business at 900 Coney Island Avenue, Borough of Brooklyn, city and State of New York, herein called the Boro Brooklyn plant, where it is and has been at all times material herein engaged in the installation and servicing of electric alarms and burglar alarms for commercial and residential customers. At all times material herein Respondent Central has maintained its principal office and place of business at 2744 Atlantic Avenue, Borough of Brooklyn, City and State of New York, herein called the Central Brooklyn plant, where it is and has been at all times material herein t Errors in the transcript have been noted and corrected. I I so find as to Respondent Central, on the basis of the admissions of Louis Stabiner, former president of Respondent Central. While Stabiner sent the Association a letter, dated September 21, 1976, purporting to resign from the Association, this is a date after the unfair labor practices with which Central is charged. However, even after that date Central continued to abide by the Association's latest contract with the Union (effective from June 1,. 1974, to May 31, 1977) until the sale of Central's stock and assets to Equity Leasing on or about February 1, 1977. Since the sale, Central's new owners and management have assumed the contract for the two mechanics they still employ. engaged in the installation and servicing of electric alarms and burglar alarms for commercial and residential custom- ers. At all times material herein Guardsmen has maintained its principal office and place of business at 555 Fifth Avenue, Borough of Brooklyn, city and State of New York, where it is and has been at all times material herein engaged in the installation and servicing of electric alarms and burglar alarms for commercial and residential custom- ers. At all times material herein Equity Leasing Corporation has maintained its principal office and place of business at 40 W. 15th Street, Borough of Manhattan, city and State of New York. On or about January 31 or February 1, 1977, Equity Leasing Corporation purchased all of Respondent Cen- tral's capital stock from Dorothy Stabiner, wife of Louis Stabiner. On or about January 31, 1977, Equity Leasing Corpora- tion purchased from Respondent Central its vehicles, much of its equipment and its accounts, goodwill, physical inventory, and its service obligations. On or about January 31 or February 1, 1977, Respon- dent Central moved its operations from its Brooklyn plant located at 2744 Atlantic Avenue to 555 Fifth Avenue, Brooklyn, New York. Since January 31 or February 1, 1977, Equity Leasing Corporation has operated Respondent Central as a wholly owned subsidiary of Equity Leasing Corporation. Since January 31 or February 1, 1977, Respondent Central has at times done business under the name Central Alarms, Incorporated, and has at other times done business under the name National Guardsmen/Central Alarms. At all times material herein Respondent Boro and Respondent Central have been members of and have been represented for the purposes of collective bargaining by the Electric Alarm Trade Association, Incorporated, an em- ployer association - hereinafter referred to, simply, as the Association - which, inter alia, represents various New York State alarm industry employers for the purposes of collective bargaining with the Union.2 In representing its employer-members including Respon- dents Boro and Central, the Association has negotiated with the Union for many years and, on the basis of such negotiations, has arrived at a series of collective-bargaining agreements. In each such negotiation (the most recent being in 1974), the Association has bargained for a single contract binding upon all of its employer-members includ- ing Respondents Boro and Central. There is no showing that Stabiner sent a letter to the Union withdrawing from the Association nor has the Union ever released Central from its obligation under the contract. Even if Stabiner's letter to the Association could be considered an attempt to withdraw from the Association's multiemployer collective-bargaining unit without the required notification to, or agreement from, the Union, such attempt was ineffective since it was not made at an appropriate time for such withdrawal but rather occurred during the life of the contract which still had 8 months to run. Retail Associates, Inc., 120 NLRB 388, 395 (1958). 390 BORO BURGLAR ALARM CO. In these circumstances, I conclude that the Association is a single employer within the meaning of Section 2(2) of the Act.3 During the year preceding the issuance of the complaint, at least one member of the Association - New York Merchants Protection Company, the business of which was 99 percent devoted to commercial customers - purchased over $50,000 worth of goods and supplies from concerns located outside the State of New York, which goods and supplies were transported from out of the State to said company-member's place of business in New York. Also during 1976 the gross volume of business of this same employer exceeded $500,000. Inasmuch as the Association is a single employer within the meaning of the Act and since at least one employer- member of the Association is subject to the Board's jurisdiction on the basis of the Board's retail standard 4 or its nonretail standard,5 it follows that the entire Associa- tion, including each of its members such as Respondents Boro and Central, is an employer engaged in commerce or in an industry affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act.6 II. THE LABOR ORGANIZATION The Union is an organization in which employees participate and are admitted to membership and the Union exists for the purpose, in substantial part, of collective bargaining with employers concerning grievances, wages, hours, and other terms and conditions of employment.s I, accordingly, conclude that the Union is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Synopsis of the Case Max Weintraub has been employed in the burglar alarm industry over 25 years as a journeyman mechanic. For 5 or 6 years preceding August 31, 1976, he had been working for Certified Burglar Alarm, which went out of business at that time. Certified had been a member of the Association. Weintraub learned that Certified was going out of business several weeks before the event. This case deals with the allegations that he was discriminatorily refused employ- ment by Respondent Boro and Respondent Central in August or September 1976 and with the further allegation of certain threats by Respondent Central in September 1976. B. Weintraub's Union Activities Weintraub has been a member of the Union since 1945. For the past 20 years he has been a union advisory board member. From 1960 to 1965 he was the secretary of the Union's burglar alarm division and for approximately 10 years preceding the hearing he was the chairman of that same division. As chairman he has been responsible on a 3 E.g., Broward County Carpenters' District Council (Broward Builders Exchange), 122 NLRB 1008 (1959). 4 Carolina Supplies and Cement Co., 122 NLRB 88 (1958). a Siemons Mailing Service, 122 NLRB 81 (1958). 6 Operating Engineers Local Union No. 3, AFL-CIO (California Associa- tion of Employers), 123 NLRB 922 (1959). liaison basis to handle problems which have arisen in Association shops between an Association member-em- ployer and the employees. He was chief spokesman for the Union in negotiations leading to some three or four contracts with the Association over the same period. He was also spokesman for the Union in the handling of grievances which arose between it and any Association member-employer. During the negotiations in 1974 - for the last contract entered into prior to the events in question here - the Association was represented by Kimmel (also Respondent Boro's attorney) and by officials of various Association members including Mendick, Glass, Rubin, and Stenzie. Stenzie, who was an alternate member of the Association team in 1974, is the president of Respondent Boro. Stenzie was a regular member of the Association negotiating team in the 1971 negotiations with the Union. The relationship between the Union and the Association over a period of years has been less than cordial. In the mid-1960's there were at least two strikes, one of which lasted 4 weeks and involved a dispute over the Union's demand to drop from a 40-hour to a 35-hour workweek, a demand which the Union eventually won. There was also a mid-contract employee walkout in about 1970 in a dispute over subcontracting of unit work by Association employer- members. The Union has also taken adamant positions in the handling of grievances. In one such grievance meeting in approximately May 1976, two principal items were on the agenda: (a) The request by Stabiner, president of Respondent Central, for replacement of his union steward, Anthony Datre. (b) A complaint raised, in part, by Weintraub himself that Thompson Burglar Alarm Co., another Associa- tion employer-member, was hiring employees not re- ferred by the Union and that these employees were working for Thompson on a nonunion basis. The Union with Weintraub as its spokesman turned down Stabiner's request to replace Datre on the ground that Datre was doing a good job enforcing working conditions under the Union's contract with the Association and was also trying to protect the job of a longtime Central employee who was suffering an emotional upset. Stabiner had complained that Datre was attempting to override Stabiner's authority. In respect to the Thompson matter, Paul Thompson, a Thompson official, reluctantly attended the session, admit- ted hiring two nonunion men and promised to remove them from the payroll.8 7 The Union's business representative, Paul J. Keim, credibly so testified. a The 1974-77 collective-bargaining agreement contains a nondiscrimi- natory referral provision. 391 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Weintraub's Unsuccessful Attempts to Obtain Employment From Respondent Boro As previously noted, Weintraub had been employed by Certified Burglar Alarm some 5 or 6 years as a journeyman mechanic. Certified was sold on August 31, 1976, to two other companies. At the time of its demise, Certified employed four mechanics - Weintraub, Sowetsky, Rotun- do, and Rallo. Sowetsky and Rotundo were hired by the other companies immediately and Rallo eventually. Wein- traub has not subsequently obtained any permanent employment. Weintraub was aware that Certified was going out of business sometime before this actually occurred, hence his efforts to obtain other employment began no later than early August 1976. At that time he went to Boro's office where he spoke with Stephen Stenzie, the son of the owner and principal, Raymond Stenzie. The senior Stenzie was out of the office at the time. Weintraub told Stephen that Weintraub was looking for a job. Stephen suggested that Weintraub return at a later time to speak with Raymond. Weintraub then left.9 Within a few days, or on or about August 9, 1976, Weintraub returned to Boro where Weintraub spoke with Raymond Stenzie, Boro's principal operating officer. l° Weintraub asked Stenzie for a job. Stenzie told Wein- traub that business was down and Stenzie said that he only needed someone on a temporary basis. Stenzie said that if he were going to hire anyone (permanently) it would be an apprentice and Stenzie pointed out that he had been after Weintraub (in Weintraub's union division chairman capac- ity) to get an apprentice card for an apprentice to work for Boro. Stenzie added that he started all of his men off as apprentices and that an apprentice was what he wanted - not a mechanic. Weintraub replied that it was the Union's policy not to issue cards for new people while journeymen were out of work (as Weintraub was about to be). Weintraub said that 9 These findings are based on the credible testimony of Stephen in this regard and the credible testimony of Raymond that Raymond did not speak with Weintraub on that occasion. For his part Weintraub testified that he spoke with both Stephen and Raymond on this occasion. I discredit Weintraub's testimony that he spoke with Raymond during this visit. Weintraub appeared to vacillate somewhat in his testimony on the point and it is more probable, contrary to Weintraub's discredited testimony, that he would not visit within a week to speak to Raymond - as he undisputedly did, which will appear - after, as Weintraub claimed, Raymond Stenzie turned him down for a job during their alleged interview on this first occasion. 'o The complaint alleges, Respondent Boro's answer admits, and I find that Raymond Stenzie is and has been at all times material herein the president of Respondent Boro acting on its behalf and an agent thereof. :d The findings as to this incident are based primarily on the credible testimony of Weintraub as not denied by Stenzie. I credit Stenzie that he mentioned that he was only looking for a temporary employee. Weintraub did not deny that Stenzie said this - Weintraub said he did not recall this statement. I do not credit Stenzie's testimony that he offered Weintraub temporary employment, which Weintraub credibly denied. Weintraub's denial is bolstered by the fact that Weintraub has - since August 1976 - taken at least two temporary jobs from other employers in the Association - thus indicating his willingness to work on that basis, if a temporary job was offered and if such was the only job available. Weintraub's failure to ask for the temporary job - which, as Stenzie stated to Weintraub at the time, was the only job available - is explained by Weintraub's testimony that he did not believe any statement by Stenzie that Stenzie did not need a permanent journeyman since Weintraub thought (mistakenly) that Stenzie he understood that Boro had lost two mechanics recently and had not replaced them. Stenzie insisted that business was bad and that he could not hire anyone else. Weintraub did not believe him. Although, as I have found, Stenzie had mentioned that he needed someone on a temporary basis, Stenzie did not offer Weintraub this temporary job and Weintraub did not ask for it." At about this same time in the early part of August 1976, the Union's business representative, Keim, returned a call from Stenzie. When Keim spoke with Stenzie, Stenzie asked Keim for a permanent card for an apprentice. Keim refused on the ground that the Union was going to have several journeymen unemployed (because Certified was going out of business) hence Keim was not issuing new cards to anyone. Keim then named the four people to be unemployed including Weintraub and Sowetsky and asked Stenzie if Stenzie could use one of them. Stenzie told Keim Stenzie was interested in Sowetsky, because the latter was a good man. This, apparently, ended the conversation, but Sowetsky never reported to Stenzie, having obtained employment from one of the companies which had bought out Certified.12 Towards the latter part of August, while Rallo was driving Weintraub home in a Certified vehicle, Weintraub told Rallo that Weintraub had spoken to the job steward of Boro. Weintraub said that the steward informed Weintraub that Boro needed a journeyman and that Weintraub was sure Boro could use Rallo. Weintraub opined to Rallo that the reason Boro was not hiring Weintraub himself was because of Weintraub's position with the Union and the problems it brought about. Rallo replied that he would go see Stenzie. On or about August 16, or about a week after Stenzie spoke with Weintraub on August 9, Rallo went to Boro's office. He spoke with Raymond Stenzie and asked Stenzie for a job. Stenzie said that Boro had need for a temporary employee and he offered Rallo a job on that basis. There was no discussion whether the job might become perma- had lost two men in the past year - West and Plunkett - who had not been replaced. West had, in fact, been replaced by Lanza before the events in question here. While Plunkett, who left Stenzie in June 1976, had not been replaced as of August 9, 1976, Stenzie had hired Manzi, a shopman, in June and had, undisputably, sought an apprenticeship card from the Union (which Manzi eventually received) beginning at that time. At one point in his testimony Weintraub stated that Stenzie pointed out that Stenzie was seeking a temporary card for an apprentice whereas, elsewhere, as I have found, Weintraub testified that Stenzie said that what Stenzie really wanted was an apprentice or helper. The implication of this latter testimony is, of course, that Stenzie wanted a helper on a permanent basis - an implication supported by the fact that he had already hired Manzi and eventually got an apprenticeship card for Manzi. Hence, I conclude that Stenzie did not tell Weintraub that Stenzie wanted a temporary card for an apprentice but that Weintraub was confused about what Stenzie really said. Stenzie's actual statement was, as I have found, that he wanted a temporary journeyman and an apprentice - the latter, by implication, on a permanent basis. 12 These findings are based on a composite of the testimony of Keim and Stenzie in this regard which was not essentially in disagreement except as to the nature of the apprenticeship card which, according to Keim, was requested as a temporary card but, according to Stenzie, was requested as permanent. I credit Stenzie that he said permanent card, because, per Keim, the Union does not issue temporary cards - a fact which must have been known to Stenzie who has been in business since at least 1950 and has represented the Association in bargaining negotiations with the Union off and on for years. Further, Stenzie has since obtained a card for an apprentice, Paul Manzi, in October 1976, as will appear. 392 BORO BURGLAR ALARM CO. nent. Rallo accepted the offer and began work on August 26, 1976. At the time of the hearing in April 1977, Rallo was still employed by Boro. During Rallo's employment with Boro, Rallo has filled in for one permanent employee, Richard Damm, who was on sick leave for a month in November and December 1976. In October 1976, Stenzie received from the Union an apprenticeship card for Paul Manzi, who had been working for Respondent since June 1976 as a shopman, which is a nonunit job. Concluding Findings as to Boro Before proceeding to analyze the case against Boro, certain additional facts must be found and considered which bear on Weintraub's unsuccessful efforts to obtain employment from Stenzie in August 1976. As noted, Plunkett left Boro in June 1976 and was not then replaced by a journeyman. Raymond Stenzie prompt- ly hired a helper, Manzi, for whom he immediately sought to obtain a union apprenticeship card. As Weintraub testified, Stenzie prefers to start off new employees as apprentices. Stenzie could not get a card for Manzi nor use him in unit work until October. In the meantime, Stenzie had a predictable buildup of work backlog due to the vacations of his regular staff. To alleviate the situation Stenzie asked the Union beginning in June 1976 to refer him a journeyman for temporary employment. 3 The Union referred him an individual by the name of Katz to begin after July 4, but Katz never arrived - instead taking a job with Central. The Union also recommended an individual by the name of Sussel. Stenzie refused Sussel because Sussel was also in business for himself, hence, in Stenzie's judgment, a competitor. The Union then recom- mended an individual by the name of Vincent. Vincent was acceptable to Stenzie but never showed up to work for Boro, apparently because Vincent preferred to work for Thompson, another Association employer, previously re- ferred to. 1 4 When Keim told Stenzie in August that the four journeymen employed by Certified were soon expected to be available after Certified ceased operations and Stenzie told Keim he would take, or was interested in, Sowetsky, Stenzie did not specify whether he would take Sowetsky for permanent or temporary work. Sowetsky, as I have found, later went to work elsewhere and never reported to Boro. On or about August 9, 1976, when Weintraub spoke with Stenzie, Stenzie told Weintraub that he, Stenzie, preferred to start his employees off as apprentices and an apprentice 13 I so find based on the credible testimony of Stenzie in this regard. I do not credit the testimony of Keim that Stenzie did not ask Keim for the referral of a journeyman on a temporary basis in June, July, or August 1976. For Keim earlier testified that Stenzie did ask Keim for a temporary summer replacement in June. The General Counsel later attempted to rehabilitate Keim on the point by asking Keim the leading question whether Keim had earlier testified that Stenzie asked Keim "in June of 1976 ... for a temporary union card for an apprentice" which Keim answered in the affirmative. His credibility on the point is destroyed - not bolstered - because he gave no such prior testimony about such a request for a temporary apprentice card in June 1976. Keim had rather testified that Stenzie asked Keim for a referral "for a temporary man" in June 1976. Nor do I believe Keim's further testimony, to be adverted to infra, that he never referred any journeyman to Stenzie that summer. I reject the latter was what Stenzie wanted as a (permanent) employee at that time. Further Stenzie was still attempting to get an apprenticeship card for Manzi. Stenzie also told Weintraub that Stenzie would nonetheless take on a journeyman on a temporary basis at that time. When Rallo was hired by Stenzie later in August, Rallo was hired on a temporary basis. Although Rallo continued to be employed by Stenzie at the time of the hearing in April, this was due at least in part to his replacement of a Boro employee, who was out on Workmen's Compensation in the late fall of 1976. Moreover, Weintraub himself testified, and I find, that in this industry many jobs which were given out as temporary have become permanent. In October 1976, Stenzie eventually succeeded in obtain- ing an apprenticeship card for Manzi. From the foregoing it is clear that Stenzie's position since June 1976 and at all times thereafter was consistent. That is, Stenzi sought an apprentice and finally obtained a card for one - and he sought a journeyman on a temporary basis and ultimately hired one on such basis. It is in the context of the foregoing that the General Counsel's prima facie showing must be evaluated. As I have held, and as both Stenzie and Weintraub testified, Stenzie made it clear to Weintraub in their interview on or about August 9, 1976, that Stenzie would not hire Weintraub on a permanent basis. Further, as I have held, Stenzie told Weintraub that Stenzie had tempo- rary work for a journeyman. While, as I have also found, Stenzie did not offer Weintraub this temporary job, this is not the question with which we are concerned in this case. The threshold question is whether Stenzie turned down Weintraub for any job which Weintraub appliedfor. There is no credible probative evidence that Weintraub applied for a temporary job as journeyman. Weintraub simply walked out of Boro's office when Stenzie told him the only available journeyman's job was a temporary one. Wein- traub never asked for it, apparently because of his position that Stenzie was not telling him the truth when Stenzie said no permanent job for a journeyman was then open. Accordingly, I conclude that the General Counsel has failed to establish the essential element of the complaint that Stenzie refused to hire Weintraub. That is - since Stenzie had no permanent job to offer at the time - Stenzie cannot be faulted for refusing Weintraub what Stenzie did not have. And, while Stenzie told Weintraub of the temporary opportunity, Weintraub did not apply for it. I therefore find that Respondent Boro did not refuse to hire Weintraub, hence I do not reach or pass upon the testimony not only because of the foregoing contradiction but because neither Keim nor Weintraub (who also handled referrals) denied the specific (but unsuccessful) referrals from the Union credibly testified to by Stenzie, which will appear. Further, Weintraub testified on rebuttal that he could not 'recall" any such temporary referral request by Stenzie - which, of course, falls short of a denial that temporary referral requests were made. Finally, as to Keim, and totally aside from my foregoing comments about his testimony, his demeanor on the stand was characterized by a degree of uncertainty. 14 These specific incidents are based on the credible testimony of Stenzie in this regard. To the extent the testimony of Keim is contrary I do not credit it. In any event, Keim did not deny these specific referrals (he was not asked). 393 DECISIONS OF NATIONAL LABOR RELATIONS BOARD question of whether Boro may or may not have maintained an animus against Weintraub's union activities.15 In view of all the foregoing, I shall recommend that the unfair labor practice allegations of the complaint against Boro be dismissed. D. Weintraub's Unsuccessful Efforts To Obtain Employment With Respondent Central On or about August 26, 1976, Respondent Central's then president, Stabiner, advised Union Steward Anthony Datre at Central that Central needed another mechanic and Stabiner asked Datre to have a journeyman referred from the Union.16 Datre responded that Datre would do so as soon as possible. The Union's custom under the referral provisions of its contract was for the steward to forward such referral requests to Union Business Representative Paul Keim or its burglar alarm division chairman, Weintraub. Datre thereafter spoke with both Keim and Weintraub and learned that Weintraub was available. On or about August 31, 1976, Datre reported back to Stabiner at the shop. Datre told Stabiner that Datre had a man for Stabiner. When Stabiner asked who this was, Datre replied that it was Weintraub. Stabiner rejoined that Stabiner would not hire Weintraub. Datre asked why. Stabiner explained that, "Max is a troublemaker." Stabiner continued that he would not hire Weintraub, that no one else wanted to hire Weintraub, and that Weintraub had made his own bed and would have to sleep in it. Stabiner went on that Weintraub was a boss and that Central had no room for another boss. When Datre asked Stabiner to explain, Stabiner stated that Weintraub conducted union business on company time and was always talking when he should be working. Datre said this was not true and that Datre understood that Weintraub was an excellent employ- ee and further understood that an ex-employer, King of Certified, had contacted Stabiner and recommended Wein- Is Stenzie's conversation with Weintraub on this occasion belies such animus, in any event. Thus, if Stenzie had been opposed to hiring Weintraub for a temporary journeyman'sjob - the onlyjourneyman'sjob available - Stenzie would not have mentioned the existence of that job to Weintraub. 1s The initial complaint alleges, Respondent Central's answer admits, and I find, that Louis Stabiner was and had been at all times material herein the president of Respondent Central acting on its behalf and an agent thereof. 17 Stabiner must have been concerned with Weintraub's union activities, generally, because the only probative evidence that Weintraub conducted union business on company time is Weintraub's own testimony that he has done so for only about 2 or 3 hours over a 4-to-5-year period. 1s These findings are based on the credible and undisputed testimony of Datre in this regard as partially corroborated by Maiorana, another former Central employee, who recalled that in a single incident (not two as I have found) Stabiner refused Datre's request to hire Weintraub because Stabiner considered Weintraub a troublemaker, said that Weintraub was blackballed and threatened that Datre would be next. I credit Datre's version because Datre's considerably greater certainty as to details and dates (Maiorana only remembered that it occurred in the fall of 1976) and the fact that Datre, as steward, was testifying in respect to a matter involving his responsibility as a iteward (to initiate referral requests). Stabiner, a nonlawyer, represented himself at the hearing despite my offer to him of an opportunity to retain counsel. He also testified on his own behalf and on behalf of the General Counsel. When testifying on his own behalf he complained that certain remarks he had made to the General Counsel in October 1976 in an unsigned, unsworn statement were not brought out at the hearing. He did not testify, however, in respect to the incidents described by Datre and in part by Maiorana. He limited his traub. Stabiner stated that Stabiner did not believe the recommendation and only believed what he saw. This apparently ended the conversation, which was witnessed by employees McNamara and Katz. It is obvious, and I find, that Stabiner was telling Datre that Stabiner considered a "troublemaker" to be someone involved in union affairs, that Stabiner did not desire to employ such an individual, and that Stabiner did not believe any other Association employer would either. '7 Further bearing on Stabiner's use of the word "trouble- maker" to describe Weintraub was Stabiner's obvious reaction to Weintraub's position as union spokesman several months before in rejecting Stabiner's grievance which sought to have Datre removed as Central's Union steward. That the Datre matter still rankled Stabiner will be made yet more patent by what follows. In September 1976, the Union was seeking to have the Association agree to the Union's proposal for a rotation system whereby unemployed journeymen would replace the Association members' employees I day per week and thus share their employment. About a week after the August 31, 1976, exchange just described, that is, on or about September 7, 1976, Stabiner spoke with Datre in the presence of several other unit employees and asked Datre whether he thought that the Union was "going to shove this rotation down our throats" and whether Datre thought this was right. Datre turned and responded by asking whether Stabiner thought that it was "right that the employers should blackball Max Weintraub." Stabiner replied, "Yes, he is blackballed and you're next on the list, Tony." 18 Also, on or about September 7, 1976, Weintraub himself went and asked Stabiner for a job. Stabiner told Weintraub Central had no room for Weintraub.' 9 Other than the general denials of his answer to the complaint, his attack on the credibility of General Coun- sel's witnesses Datre and Maiorana - who testified as to testimony to a description of what he told the General Counsel at the time the unsigned, unsworn statement was given by him. This means, of course, that he has not presented any contrary testimony as to the incidents theuselves. While Stabiner later affirmed the truth of certain other parts of this statement, his affirmation was limited to the remarks thereon concern- ing his own feelings as to Weintraub. However - again - he did not affirm the remarks in the statement which dealt with the incidents recounted by Datre and Maiorana. In his closing statement Stabiner attacked the credibility of Datre and Maiorana as being that of disgruntled former employees who have subsequently formed their own business to "raid" Central's former custom- ers. I reject this contention. While both Datre and Maiorana have been unemployed since Central was sold to Equity Leasing and are predictably upset by that circumstance, the fact remains that their testimony is undisputed. They did attempt to form their own business and were contacted by some of Central's former customers. But they have been unsuccessful in getting a business going according to the only evidence in the record on these matters - their testimony. Stabiner also attacked Datre's testimony on the ground that Datre said employee McNamara was a witness to the September 7 "blackball" conversation, whereas McNamar was on leave at the time. Here again the only evidence in the record regarding McNamara's being absent is Datre's own testimony correcting his earlier testimony when Stabiner showed Datre what purported to be the payroll record for that week (which payroll was not placed in evidence). Datre's ready correction of his testimony was consistent with the sincerity and candor which both he and Maiorana otherwise demonstrated on the stand. I conclude that both testified credibly and to the best of their ability. 19 Weintraub credibly so testified without dispute. 394 BORO BURGLAR ALARM CO. certain events found above (which occurred on August 31 and September 7, 1976), and his claims as to his feelings regarding Weintraub, Stabiner offered no defense to the allegations of the complaint against him. His answer's denial, of course, serves no purpose other than to put the General Counsel to the burden of proving the complaint against him. Credibility matters have already been disposed of. Stabiner's claims in respect to his somewhat favorable feelings for Weintraub do not meet the General Counsel's proof. Thus, Stabiner affirmed a prior statement by him in the General Counsel's investigation that there was a resentment against Weintraub among the Association's members because of Weintraub's support for the Union but that Stabiner never heard anyone say that Weintraub should not be hired or that he should be squeezed out of the industry. Stabiner also said he would hire Weintraub if a job were available but would hire others first because he did not like Weintraub's personality. Stabiner concluded that he had heard Weintraub performed his work well. But, despite this lukewarm testimony in Stabiner's favor, there is no dispute as to what Stabiner told Datre in the presence of other employees on August 31 and September 7, 1976. In the light of said statements on those dates, as well as Stabiner's prior conflicts with Weintraub on union matters - the most recent being Stabiner's unsuccessful grievance in the spring of 1976 - it is clear that Stabiner refused to hire Weintraub on August 31, 1976, and thereafter on September 7, 1976, because of Weintraub's support for the Union and that Respondent Central thereby violated Section 8(aXI) and (3) of the Act.2 By Stabiner's threat in the presence of several employees on September 7, 1976, to have his active union steward, Datre, blackballed just as Weintraub had purportedly been blackballed - because of Weintraub's union activities, as Stabiner had explained the week before to Datre - Respondent Central has unlawfully interfered with, re- strained, and coerced employees in the exercise of their rights to support a union, as guaranteed by Section 7 of the Act, and Respondent Central has thereby violated Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent Central, set forth in section III, above, occurring in connection with its operations and those of the Association described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. THE REMEDY The recommended Order will contain the conventional provisions for cases involving unlawful discrimination in 20 Cf. Chef Nathan Sez Eat Here, Inc., 181 NLRB 159 (1970). enfd. 434 F.2d 126 (C.A. 3). It is well settled that an applicant for employment is an employee within the meaning of the Act. Briggs Manufacturing Company, 75 NLRB 569, 570 (1947); Phelps Dodge Corp. v. N.L. R.., 313 U.S. 177 (1941). violation of Section 8 (aX3) and (1) of the Act with certain modifications dictated by the circumstances of this case. This will require Respondent Central to cease and desist from the unfair labor practices found and to post a notice to that effect which will also state the affirmative action which Respondent Central will be required to take to remedy its unlawful refusal to hire Weintraub. Normally, Respondent Central would be required to offer Weintraub immediate and full employment in the position he was denied on August 31, 1976, and September 7, 1976, with backpay less net earnings but plus interest from the date he could have begun employment (September 1, 1976) until he would be offered employment under the terms of this Order, as previously described. However, inasmuch as the stock in Respondent Central - although it is still a corporate entity engaged in the same business as before - was sold on or about January 1, 1977, or February 1, 1977, with some employees being laid off (e.g., Datre and Maiorana) at that time, it is unclear whether Weintraub would have likewise been laid off for economic or other nondiscriminatory reasons unrelated to the discrimination found above. Hence, it shall be left to the compliance stage of the proceeding for the making of the determination whether Weintraub would have been laid off on or about February 1, 1977, or whether he would have remained thereafter to work for Central's new owners. If it is determined that Weintraub would have remained in Central's employ after the foregoing date or if Central has since hired any new employees, Respondent Central shall offer him immediate and full employment in the same position in which he was unlawfully denied employment as aforesaid, if necessary, laying off any new hires. If he is not entitled to employment because of failure of satisfaction of either of these conditions, Respondent Central shall estab- lish a preferential hiring list with his name at the top and he shall be offered the next journeyman's job which becomes available. In any event, Respondent Central shall make Weintraub whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment to him of the sums of money equal to amounts he would have earned from September 1, 1976, to February 1, 1977, if his employment would have ended for nondiscrimi- natory and economic reasons on that date. If it would not then have ended, backpay will also run from February 1, 1977, to the date of his offer of employment, as condition- ally required above. If he would have been laid off on February 1, 1977, and the new hire of any other employee has been made since, his backpay will recommence on the date of the first such new hire of another employee. Any and all backpay due under the Order will be computed on a quarterly basis in the manner established by the Board in FK W. Woolworth Company, 90 NLRB 289 (1950), and include interest at the rate of 6 percent as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962).21 It will also be recommended in view of the nature of the unfair labor practices in which Respondent has engaged (see N. LR. B. v. Entwistle Mfg. Co., 129 F.2d 532, 536 (C.A. 21 The conditions attaching to Weintraub's reinstatement and backpay rights under the terms of this Order are similar to those set forth in an analogous situation by the Board in Calcite Corporation. 228 NLRB 1048 (1977). 395 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4, 1941), that Respondent Central be ordered to cease and desist from infringing in any manner upon the rights guaranteed employees by Section 7 of the Act. CONCLUSIONS OF LAW 1. The Association, including its employer-members, such as Respondents Central and Boro, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By refusing to hire Max Weintraub because of his union activities on August 31, 1976, and September 7, 1976, Respondent Central has violated Section 8(aX1) and (3) of the Act. 4. By threatening employees on September 7, 1976, to have them blackballed from employment because of their union activities, Respondent Central has violated Section 8(a)(1) of the Act. 5. Respondent Boro has not violated Section 8(aXl) and (3) of the Act as alleged in the complaint. 6. The unfair labor practices found above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 22 Respondent Central Electric Alarms, Inc., sometimes doing business as National Guardsmen/Central Alarms, Brooklyn, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in, activities in behalf of, or sympathies toward Local 3, International Brotherhood of Electrical Workers, AFL-CIO, or any other labor organization, by discriminating in regard to hire or tenure of employment or in any other manner in regard to any term or condition of employment of any of Respondent's 22 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, 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. employees in order to discourage union membership, activities, or sympathies. (b) Threatening employees that they will be blackballed from employment because of their union activities or in any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer Max Weintraub employment in the position in which he has been denied employment, or a substantially equivalent position, without prejudice to his seniority or other rights and privileges, as if he had been hired and began work on September 1, 1976, or place him on a preferential hiring list and make him whole for any loss of earnings he may have suffered, said offer of employment (or placement on a preferential hiring list) and backpay to be subject to the limitations and conditions set forth in The Remedy section of the Administrative Law Judge's Deci- sion herein. (b) 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 reports and all other records necessary to analyze the employment rights and backpay due under the terms of this Order. (c) Post at its place of business in Brooklyn, New York, copies of the attached notice marked "Appendix." 23 Copies of this notice on forms provided by the Regional Director for Region 29, after being duly signed by Respondent's representative, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that such notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 29, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS HEREBY ORDERED that the complaint herein be, and it hereby is, dismissed to the extent it alleges any unfair labor practices not found herein. 23 In the event that this 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 396