Fieldston Ambulance & Medical Systems, Ltd.

FIELDSTON AMBULANCE & MEDICAL SYSTEMS Fieldston Ambulance & Medical Systems, Ltd. and Joseph Franqui and Edward Mitchell and Local 531, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, Party in Interest. Cases 2-CA-15349 and 2- CA- 15350 May 14, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On February 14, 1979, Administrative Law Judge Thomas R. Wilks issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the Respondent, Fieldston Ambulance Systems, Ltd., New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Ad- ministrative Law Judge. I In the absence of exceptions thereto, we adopt, proforma, that portion of the Administrative Law Judge's recommended Order requiring the Respon- dent to reimburse employee Franqui for dues withheld prior to Franqui's execution of a checkoff authorization. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT deduct union dues from the pay of employees who have not executed checkoff authorizations. WE WILL NOT discriminate against any of our employees by denying their coverage under the collective-bargaining agreement with Local 531. International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, and by otherwise refusing to grant employees wage increases and/or other employment bene- fits because they are not members of the Union. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of their right to self-organization, to form labor organizations, to join or assist the above- named Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other con- certed activities for the purpose of collective bar- gaining or other mutual aid or protection or to refrain from any or all such activity. WE WIL offer Joseph Franqui and Edward Mitchell immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substanially equivalent positions without prejudice to their seniority or any other rights or privileges previously enjoyed, and WE WILL make them whole for any loss of earnings they may have suffered as a result of the unlawful discrimi- nation against them, with interest. FIELDSTON AMBULANCE & MEDICAL SYS- TEMS, LTD. DECISION STATEMENT OF THE CASE THOMAS R. WILKS Administrative Law Judge: Pursuant to unfair labor practice charges filed by Joseph Franqui and Edward Mitchell, individuals, a hearing in this matter was held upon a consolidated complaint issued by the Regional Director and an answer filed by Fieldston Ambulance & Medical Systems, Ltd. (Respondent).' Upon the entire record, including my observation of the demeanor of witnesses and consideration of briefs I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a New York corporation engaged in pro- viding ambulance and related services in New York, New York. All parties agree and I find that Respondent is an employer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 11. THE UNION Local 531, International Brotherhood of Teamsters, Chauffeurs. Warehousemen and Helpers of America, herein I On motion of the General Counsel a portion of the complaint dealing with an alleged discriminatee. Luis Rodriquez, was dismissed. 242 NLRB No. 34 185 DE[CISIONS OF NATIONAl. LABOR RELATIONS BOARD called "Union," is a labor organization within Section 2(5) of the Act. 111. 11ft NIAIR LABO()R PRA( II( tS The Union is the statutory representative of an appropri- ate unit of Respondent's full-time and regular part-time em- ployees at its New York facility, excluding office clerical employees, salesmen, guards. professional employees, confi- dential employees, and all supervisors as defined in the Act. The Union entered into two successive collective-bar- gaining agreements with the Respondent. The initial con- tract was in existence from May 1974 through May 1977. The second and current agreement runs from May 1977 through January 31, 1979. The contract contains a union- security proviso whereby employees are to become union members on the 31st day of employment. The parties stipu- lated that employees need not become members of the Union before they are entitled to contractual benefits under the contract. The General Counsel alleges in the complaint as amended and in part in the brief that: (I) Respondent de- ducted union dues from the paychecks of Joseph Franqui and Edward Mitchell before they had executed dues-check- off authorizations, in violation of Section 8(a)( 1) and (2) of the Act: (2) Respondent paid Franqui and Mitchell at low- er rates than other unit employees because Franqui and Mitchell were not union members, in violation of Section 8(a)(l) and (3) of the Act: (3) Respondent refused to pay' Franqui and Mitchell the holiday rate set forth in the col- lective-bargaining agreement because they were not union members, in violation of Section 8(a)( I) and (3) of the Act: and (4) Respondent discharged Franqui and Mitchell be- cause they' sought the assistance of the Union in resolving their dispute with Respondent over matters of wages and scheduling of hours of work, in violation of Section 8(a)( 1) and (3) of the Act. Sylvia Kann is a co-owner of Respondent and an admit- ted supervisor. Part of' her duties involve the dispatching of ambulances to and from St. Luke's Hospital. where she is stationed. Respondent maintains its garage at about 15 minutes travel time from that hospital. Lanning Kann, Sr.. son of Sylvia Kann. is the president and chief operating officer of the Respondent. Rick Richardson, while em- ployed by Respondent until mid-October 1977. held the po- sition of dispatcher at the garage and admittedly was a su- pervisor within the meaning of the Act and, thus, an agent of the Respondent at all times material during his employ- ment. Joseph Franqui obtained his employment with Respon- dent pursuant to the recommendation of Richardson, who was a friend of Franqui's mother, Rudene Franqui. He was considered by Richardson as a godson. Franqui was hired as a helper on June 15, 1977 (all dates herein are 1977). Several weeks later, he also assumed the duties of an ambu- lette driver. Franqui was hired at a rate of $125 per week and was told by Richardson that he would be raised to $138 when he assumed the duties of a driver. However, Franqui received no raise until September 12. the date upon which union dues commenced to be deducted from his paychecks. Franqui did not in fact join the Union or authorize any deductions of dues until October 5. Edward Mitchell applied for a job in an interview with Sylvia Kann in June. She referred him to Richardson. Mitchell commenced employment on July 26 as a helper and ambulette driver. Mitchell was told by Richardson that he was to start at a rate of $125 per week, and that after 30 days he would receive a wage increase to $135. Mitchell received no wage increase until October 3 despite his driver duties. He testified that he joined the Union and authorized dues deductions in the week ending October 10. Union dues were deducted from Mitchell's pay on or about October 3. The collective-bargaining agreement then in effect pro- vided for a wage rate of $128 for the first 30 days of em- ployment, and $138 a week thereafter, for helpers and ambulette drivers. In August, Franqui and Mitchell registered for an emer- gency medical technician training course which was to be held on Tuesday and Thursday evenings from September 20 through December. They notified Respondent of their enrollment and attempted to have Richardson modify their schedules so that they might be able to leave work earlier on those days to attend the course without any loss of work- time. Respondent's attempts to accomodate them proved unsatisfactory. They testified that their work schedules were ultimately reduced in order for them to attend the course, and that their wages were adversely affected. On October II, Franqui. Mitchell. Rudene Franqui. and Frank Vanderpool, a friend of the Franqui family, paid a spontaneous visit to the union offices where they met with union officers Biasucci and Kranitz. The employees set forth their complaints regarding their past wage rate differ- ential and scheduling problems. By happenstance, Lanning Kann was present at the union office in another room to resolve a dispute between Respondent and the Union con- cerning an alleged nonpayment of certain benefit funds owed by Respondent to the Union. Biasucci and Kranitz had interrupted their discussion with Lanning Kann in or- der to talk to these employees of Respondent who suddenly appeared on the scene. After listening to these employees, Biasucci summoned Kann to discuss the matter with these visitors. Kann listened to their complaints and, according to the uncontradicted and credible testimony of General Counsel's witnesses, responded by demanding to know why they had come to the union offices and further admonished them that their problem could have been resolved else- where. Mitchell and Franqui asserted that appeals previ- ously made to Sylvia Kann, to Richardson, and to the union steward at the garage were unavailing. Kranitz re- ferred to contractual provisos concerning outside training courses. Ultimately', Lanning Kann agreed to reimburse Franqui and Mitchell for lost wages and after some initial resistance he also agreed to work out an accomodation as to their work schedule. Kranitz told the employees to report for work the next day. Lanning Kann testified that his commitment to resolving the complaints of Franqui and Mitchell was made in "vague" terms All other participants to that meeting, in- cluding Krantiz. who was called as a Respondent witness, testified that a commitment was indeed made and I so find. If there was anything vague about it, it was kept within Kann's mind as he decided to return to his office and "look into" the matter and "get all the facts" and "investigate." He then ordered Richardson to terminate Franqui and 186 FIELDSTON AMBlI.ANCE & MEDICAL SYSTEMS Mitchell, shortly after his return to the office. According to Richardson's uncontradicted and credible testimon. l.an- ning Kann returned from the meeting and told him that he had been at the union office at a meeting with Franqui and Mitchell and had received a "lot of static." that Franqui and Mitchell were "screwing up the whole thing. Get rid of them," he said, adding that he could not deal with it. and that there was a "whole lot of hassle with the Union." Lanning Kann admittedly ordered Richardson to termi- nate Franqui and Mitchell and further ordered Richardson to tell them that it was because of a lack of work. On October 12. Franqui and Mitchell reported for work and encountered Sylvia Kann, who told them in the pres- ence of Richardson and upon Richardson's confirmation that there was no work for them that day. Later, after they had returned home, Richardson telephoned Franqui and told him that he was laid off because of Respondent's "fi- nancial problems" and because his school attendance was causing confusion in the scheduling. Mitchell was also called and informed that he was laid off because of "finan- cial problems." Both were told to turn in their uniforms. On October 13, Mitchell and Franqui returned their uni- forms and encountered Richardson, who showed them let- ters addressed to them, copies of which he promised were to be forwarded to them later. The letters stated that they were laid off for economic reasons and that they were good employees. Richardson told Franqui that he had gotten Richardson "in trouble" and caused a "mess." They never received those letters. On October 25, a meeting was held at the union office with Franqui, Mitchell, William Martin, an attorney and friend of Mitchell's, Biasucci, Kranitz, Lanning Kann, and Sylvia Kann. The terminations were discussed, and the Kanns asserted for the first time to the employees that they were discharged, according to Sylvia Kann because of Mitchell's alleged tardiness of 17 occasions and Franqui's tardiness of 15 occasions as well as the assertion that Fran- qui had only been hired as a summer employee upon the understanding that he was to attend medical school. The last assertion was greeted with laughter by Rudene Fran- qui. Lanning Kann testified that when he returned from the October II meeting at the union offices, he engaged in an investigation. He was asked in direct examination just what he investigated, and he testified as follows: A. Well, I was told at the Union office that I had refused to make any shift changes so that these gentle- men could go to school. I was aware that I was not required to do this because of the positions they held. But in looking through the records I had found that I did make a shift change, and these gentlemen did not show up for their shift that they were changed to. And they showed up, but they were about an hour and a half or two hours late. That in conjunction with the fact of stealing of time, which is grounds for automatic dismissal, and the basis that I was being pulled on the carpet for going as far as I could to give them every benefit I could, I just felt it was wrong for them to continue employment with me. Q. You said you were being pulled on the carpet. Who was pulling you on the carpet? A. Well, I was at the Union and the next thing I fiound out I was the bad guy. I was the one who wouldn't give them time off to go to school. and I wasn't paying them proper wages, and I was being an employer with bad faith. so I investigated that matter. Thus, Lanning Kann clearly admitted that one of the bases for the discharge of Franqui and Mitchell was their engaging in concerted activities protected by the Act: i.e., the seeking of the assistance of the Union and the presenta- tion of complaints concerning working conditions. l.anning Kann's testimony with respect to the other bases is inconsis- tent. shifting, improbable. and accompanied b a hesitant and unconvincing demeanor. An abortive attempt was made in his testimony to estab- lish an economic basis for the layoffs: i.e., business was down. This was supported only with his testimony that the doctors usually take summer vacations which extend until Thanksgiving holiday. He did not testitly, however. that hu- man beings suspend the need for all hospital transportation during that incredibly excessive holiday period. Respondent strongly resisted efforts b counsel for the General Counsel for the production of documentary evidence concerning that period of time on the contention that a downturn in business profits was not its defense. Lanning Kann did not explain why he hired Franqui and Mitchell in June and July if business was supposedly at that time in a seasonal decline. He did not explain why he kept them on the pay- roll almost until the end of the slack period and then laid them off when the resumption of business was supposedly nearly at hand. Finally. LIanning Kann admitted that eco- nomics played only a small part, i.e., "25 percent," and then conceded that he would have discharged Franqui and Mitchell in any event. The assertion at the October 25 meeting that Franqui was hired as a temporary part-time employee is palpably unbelievable. He was not a part-time employee because he in fact worked on a full-time basis. I credit Franqui's testi- mony that he was never told that his tenure was in any way qualified. In this respect, he was corroborated by Richard- son. I discredit Lanning Kann's testimony that upon Fran- qui's hire he had scribbled "Hired for summer help" on the job application form in June. He failed to testify that he ever informed Franqui or Richardson that Franqui was a temporary summer employee. At the October II meeting, he did not raise any argument that there was no point in adjusting the fall work schedule of an employee who was hired to work for only the summer, a supposedly slow sea- son. Clearly, Lanning Kann was initially concerned about what he perceived as a disruption-a training course that lasted through December--and whatever he ma) have originally had in mind for Franqui's tenure, he had by Oc- tober I assumed a stance toward Franqui as a permanent employee. With respect to the allegation of tardiness, L.anning Kann's first reference to tardiness came within the context of his investigation which was admittedly prompted by the employees' union activities: i.e., the presentation of com- plaints concerning working conditions with the assistance of the Union. At that time. Lanning Kann purportedly sud- denly realized that he had alread, accommodated the em- 187 DECISIONS OF NATIONAIl LABOR RELATIONS BOARD ployees and that they had abused his efforts hb coming in tardy on the schooldays. The employees' testimony is far more credible. Sylvia Kann did not contradict testimony that Franqui and Mitchell had continuing complaints as to the schedule. Lanning Kann admittedly took an initial position that he was not obliged to accommodate them. He did not contra- dict testimony of Vanderpool that he made arguments at the October I meeting about the disruptive nature of a modified schedule, and that he stated that he was running a business, not a place for people to attend school. That he would have taken such a position. forgetting that he had already recently acceded to the schedule change, is highly improbable and, within the entire context of this case, un- believable. Moreover, the documentary evidence supports the testimony of Franqui and Mitchell that they did not work on schooldays after an initial period wherein they at- tempted to comply with their work schedule and arrive at the school after their class has started. I credit them that any accomodation to them was in the form of an involun- tary reduction of their workweek by the elimination of Tuesday and Thursday work assignments. As to the assertion of tardiness raised by Sylvia Kann at the October 25 meeting, i.e., 17 occasions for one employee and 15 occasions for the other, Lanning Kann made no such reference in his testimony describing his October I I "investigation." He testified in that regard to a tardiness of several hours on the schooldays after the supposed pre-Oc- tober I 11 accommodation. This would have occurred on or about October 4. He then testified that Franqui and Mitch- ell were so tardy on that date that they did not even report at all. If they did not report at all they would not have been merely a couple of hours late. His only other reference to tardiness is that which supposedly occurred after the com- mencement of the start of the training course on September 20 and which led up to the accomodation on the school- days; i.e., on or about October 4. With respect to the Octo- ber 25 meeting, he testified that he gave as the reasons for the discharge the falsification of timecards and the depres- sion in business. Unlike Sylvia Kann. Lanning Kann at that meeting referred to no other tardiness. Kranitz testified that the excessive tardiness issue was, indeed, also raised but that he objected that tardiness was not a valid issue because the Respondent had never previously notified the employ- ees of such allegation. Therefore, he initially refused to re- view the timecards which Respondent proffered to him at the October 25 meeting. Kranitz testified that later he did in fact review the timecards and concluded that the employees were indeed excessively tardy. However, this assumes that the employees had a fixed starting time. I credit the uncon- tradicted testimony of the employees that their starting times varied from day to day based upon word received by them on the telephone from Sylvia Kann or Richardson as to the precise time they were to report for work. I therefore conclude that the variance in starting times reflected in the timecards is meaningless with respect to whether or not they were excessively tardy. In any event, the overall at- tendance record of the two employees was not raised until October 25, and was not reviewed by Lanning Kann in his October I I investigation, and the employees were never previously warned about tardiness. I finally credit their tes- timony that they were not, in fact, excessively tardy. As to the alleged tardiness that occurred on or about the date of the pre-October II accomodation. it would have occurred on or about October 4, and even if it did occur, it was obviously condoned by October II. With respect to the allegation that Franqui and Mitchell had falsified timecards, Lanning Kann testified that during his October II "investigation" he considered the "stealing of time" to be so serious as to constitute grounds for "auto- matic dismissal." Yet. Kann testified that he was aware as early as the end of July that Richardson was permitting Franqui and Mitchell to remain "on the clock" at times when there was no work and at times when they were idling around the garage. Kann testified that some employees complained of favoritism toward Franqui and Mitchell in this regard and that he then instructed Richardson to send them home after he. Kann, discovered them idling. Kann said nothing to Mitchell and Franqui then or at any later them, and he next raised the matter at the October 25 meet- ing. Kann testified that he told Richardson on October I to tell Franqui and Mitchell that they were laid off for lack of work because he was not able to prove the allegation of misconduct "in court." and furthermore, he did not wish to cause them to be disqualified for unemployment compensa- tion. He also testified that at the October 25 meeting he had raised the allegation of timecard falsification. Franqui, Mitchell. and Rudene Franqui testified that there was no such reference to the timecard falsification issue at the Oc- tober 25 meeting. Kranitz testified that some time before the October 25 meeting, he telephoned Lanning Kann and asked the reason for the termination of the two employees and that Kann told him that they had engaged in "hanky panky." i.e.. failure to clock out while idling at the garage. but that Kann also said he could not prove it. Kranitz said that he sent a representative of the Union to investigate and the representative reported back that some "people" at the garage informed him of the truth of the allegations. He did not know the identity of the "people." despite the fact that in earlier testimony on direct examination, he said it was the steward who so informed him. Kranitz testified that he never subsequently raised the issue with Franqui and Mitchell because he also could not prove it. He testified as to the October 25 meeting and although he referred to the tardiness discussion, he made no reference to the timecard falsification as an element of that discussion. Thus, as of October 1 I, there is no evidence that Franqui or Mitchell was ever warned or reprimanded in regard to idling when clocked in. It appears from Kann's testimony that Richardson was aware of it. There is no evidence that Franqui and Mitchell were ever warned by Richardson in this regard or that they had acted without his knowledge and approval. Richardson was clearly their supervisor. I conclude that as of October I I., Lanning Kann had uncov- ered nothing new with respect to the timecard conduct, and that even if the two employees did engage in conduct as alleged it was condoned by Lanning Kann as of October I I, until he was confronted with the employees' grievances. There is also inserted in Lanning Kann's confusing, in- consistent, and convoluted testimony regarding the bases for the discharge the suggestion that another basis was that these employees' request for a change in shift schedule to accommodate a training course would cause them to be 188 FIEI.DSFON AMBULANCE & M)I(AL SYSTEMS given undue preference oer other emploees and would disrupt the schedule. This testimony is inexplicable in view of his almost simultaneous testimony that he did in fact accommodate the emploees in such request prior to Octo- ber I I.Kann also admitted that when he discussed the mat- ter on Octohber I I. Kranitz told him something of which he testified he was already aware: i.e.. "I was required to send or to allow men time to go to school as per our Union agreement."' Thus. Respondent had contractually com- mitted itself to the easibilit' of adjusting its schedules. Re- spondent offered no evidence as to how an accommodation in this instance would have been so disruptive that its onl course of action was discharge. Finally. Lanning Kann could have simply refused the request without recourse to discharge. It is my conclusion that this final factor was merely raised as a make-weight argument conjured up in the midst of Kann's confusion on the witness stand, That confusion was manifest in his demeanor as well in his testi- mons and. thus. rendered him a most unreliable witness. I conclude that the only cause for the discharge of Joseph Franqui and Edward Mitchell was their union actiities: i.e.. seeking and obtaining the aid of the Union in the pro- cessing of their complaints concerning wages. terms. and conditions of employment. All other causes advanced bh Respondent are pretexts and do not rise to the dignit of justifiable business reasons. Assuming that justifiable busi- ness reasons did exist for the discharge prior to October I I. Respondent almost by his own admission would not have considered them had it not been foir the union activit. Thus, had it not been for the union activities. Mitchell and Franqui would not have been discharged. Conclusions I. The deduction of union dues Respondent from on or about September 12 to on or about October 5 deducted union dues from Franqui's pay prior to his union membership and in the absence of any authorization by him. By such conduct, Respondent vio- lated Section 8(a)(1) and (2) of the Act in that such conduct gave unlawful support and assistance to the Union. Pros- pect Gardens of Norwalk, Inc., 177 NLRB 136. 140 (1969): Hope Industries, Inc., 198 NLRB 853 (1972): Howard Cre- ations Inc.. 212 NLRB 179 (1974): Jo-Jo Management Corp. dhb/a Glorias Manor Home for Adults. 225 NLRB 1133 (1976). As to the deduction of dues from the pay of Mitchell, the evidence does not clearly establish that such deduction pre- ceded his execution of a written authorization which, ac- cording to his testimony. he made some time during the week ending October 10. 2. Disparity of wages based on union membership The General Counsel has adduced evidence that demon- strates that Franqui and Mitchell were granted wage in- creases at the time dues were deducted from the paychecks ' He qualified this by inierpreling the contract to give a preference to ambulance personnel "over and above people who are working on invalid coaches." Presumably he was referring to the ambulettes which were driven by Franqui and Mitchell as invalid coaches. but he did not clarify this point. of' both employees. However, with respect to Franqui. he did not become a union member at that time. Nevertheless. the General Counsel argues that it must be inferred that wage increases were contingent upon union membership. Lanning Kann's explanation for the delay in wage increases is not convincing: i.e.. that an outside clerical service had in early October improperly calculated and implemented the collective-bargaining agreement which was to have been ef- fective as of May. He testified that the error affected only new employees and was not brought to his attention until the October presentation of grievances. From his testimony apparently all other employees therefore were receiving the appropriate wage increases provided by the recent contract. Why Franqui received an increase as of September 12. a month in advance of the supposed discovery of the error. was in no way explained. However. neither of the employ- ees was told that his wage increase was delayed because he was not a union member. Franqui was told that he would receive raise when he assumed a driver's duties. Yet. he was not given a raise despite his driving duties. Mitchell was told when he was hired that he would receive a raise after 30 days of employment. When Mitchell subsequently complained to Richardson. he was referred to Sylvia Kann who instructed him to write the word "drier" on his time- card. He did so but still did not receive a raise despite his driver duties. Indeed, the contract itself contains a union- security clause requiring union membership on the 31st das of employment of new drivers. However, there is no evi- dence that this proviso was entforced by the Union or Re- spondent with respect to Franqui and Mitchell. Richardson's conduct is illuminating. On or about Sep- tember 6. Richardson told Joseph Franqui and Rudene on separate occasions, in answer to their inquiries, that new employees were not entitled to union membership until their 90th day of employment. In fact. union dues were deducted for the two employees on or about their 90th day of employment. Franqui did not in fact join the Union on September 12, but he assumed that union membership was conferred upon him on that date because union dues were then and thereafter deducted. As noted above, he did not apply for nor did he execute union membership or dues deduction authorization until October 5. However. the Re- spondent by deducting dues was in effect treating Franqui as though he had joined the Union. There is no rational basis upon which to conclude that wage increases due Franqui and Mitchell pursuant to the contract and, indeed, promised to them were delayed other than because they were not considered to be union members. The reasons of- fered to them by Sylvia Kann and the excuse tendered by Lanning Kann at the trial are inconsistent and palpably false. The natural consequence of Respondent's conduct was to convey to the employees that they would not receive contractual benefits granted to other employees unless the) were members of the Union. Thus. Respondent by its con- duct. if not by its intent, unlawfully encouraged union membership and discriminated against Franqui and Mitch- ell in the terms and conditions of their employment because of their nonunion membership in violation of Section 8(a)(1) and (3) of the Act. Compare Go nor .N'ews Compatn. Inc. ..N'.L.R.B.. 347 U.S. 17 (1954): Rockawal' .\'es.x Sup- pl, Cotlamnv. Inc., 94 NLRB 1056 (1951). 189 I)-C(ISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The refusal to pas holiday rate The evidence in the record indicates that the holiday rate of pay was not paid to Franqui on Labor D)ay. However, the contract sets forth the extra pay for holidays is to be paid to all employees after the completion of 90 days of employment. It is not qualified as to union membership. There is no evidence that other employees who were union members received such benefit prior to their 90th day of employment. As Franqui had not completed his 90th day of employment, he was not entitled to extra pay for work per- formed on Labor Day. The General Counsel does not argue in his brief that the failure to pay Franqui extra pay for Labor Day constitutes a violation of the Act. I conclude that it does not and I find no violation with respect to that allegation of the complaint. 4. The discharges Inasmuch as I have concluded that Respondent dis- charged Franqui and Mitchell on October II because they presented their grievances concerning wages and terms and conditions of employment with the assistance of the U nion, I find that Respondent violated Section 8(a)(l) and (3) of the Act. Upon the basis of the above findings of fact. and upon the entire record in this case. I make the following: CON( LUSIONS OF I.AW I. Respondent 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 meaning of Section 2(5) of the Act. 3. By its conduct set forth in section I. above, the Re- spondent has engaged in and is continuing to engage in violations of Section 8(a)( 1), (2). and (3) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Tint RtMi)Y Having found that Respondent violated Section 8(a)(1). (2), and (3) of the Act. I will recommend that Respondent be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Respondent contended at the hearing that Edward Mitchell was offered reinstatement at the October 25 meeet- ing. According to the testimony of General Counsel's wit- nesses. whom I credit, Lanning Kann merely indicated that he would consider reinstatement. Kann's own testimony fell short of demonstrating that a clear, unequivocal, and un- conditional offer of reinstatement was made. Cf. Kenston Trucking Companvy Inc., et al., 223 NLRB 502 (1976). Ac- cordingly. the order should require Respondent to offer Joseph Franqui and Edward Mitchell immediate reinstate- ment to their former or substantially equivalent jobs with- out prejudice to their seniority or other rights and privi- leges, and to make them whole for any loss of earnings they may have suffered as a result of the discrimination against them and the unlawful deduction of union dues from the pay of Franqui. Any backpay found to be due shall be computed in accordance with the formula set forth in F. W. Wioolworth Compan'v, 90 NLRB 289 (1950), and Flordia Steel Corporation, 231 NLRB 651 (1977),1 As I have found that Respondent has unlawfully assisted the Union by checking off dues without benefit of a signed checkoff authorization from employee Franqui. I shall rec- ommended that it be ordered to cease and desist from ren- dering such assistance and support to the Union. In view of the nature of the violations herein, it will be further recommended that Respondent be required to cease and desist from infringing in any other manner upon the rights guaranteed employees by Section 7 of the Act. On the basis of the foregoing findings of fact. conclusions of law, and the entire record herein, and pursuant to Sec- tion 10(c) of the Act. I hereby' issue the following recom- mended: ORDER4 The Respondent, ieldston Ambulance & Medical Sys- tems. I.td.. New York, New York, its officers. agents, suc- cessors. and assigns, shall: 1. ('ease and desist from: (a) Rendering assistance to l.ocal 531. International Brotherhood of Teamsters. ('hauffeurs, Warehousemen and Helpers of America. by deducting union dues from the pay of employees who have not executed checkoff authoriza- tions. (b) Discriminating against any of the employees by de- nying them coverage under the collective-bargaining agree- ment with the above-named Union and by otherwise refus- ing to grant employees wage increases and/or other employment benefits because such employees are not mem- bers of the Union. (c) Discouraging membership in or activity on behalf of the above-named Union or any other labor organization, or discouraging concerted activities engaged in for employees mutual aid or protection, by discharging or otherwise dis- criminating against employees in any manner with regard to their rates of pay. wages, hours of employment, tenure of employment. or any term or condition of employment. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, or to join labor organizations, to join or assist the above-named labor organization or any other labor or- ganization. to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer Joseph Franqui and Edward Mitchell immedi- ate and full reinstatement to their former jobs or, if those See, generally. Isis Plumbing & Heating (C,.. 138 NLRB 716 (19621. In the event no excepilns are filed as provided by Sec. 102.46 of the Rules and Regulalions of the National abor Relations Board. the findings. conclusions. and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted hb the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waised for all purpioses. 190 FIELDSTON AMBULANCE & MEDICAL SYSTEMS jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them and the unlawful deduction of dues from the pay of Joseph Franqui in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amount of moneys due under this Order. (c) Post at its Inwood Avenue, New York, New York, facility copies of the attached notice marked "Appendix."' I 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 Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by its autho- rized representative, shall be posted by Respondent imme- diately 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 insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 2. in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that so much of the complaint as alleges unfair labor practices not found herein, be dis- missed. of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" 191