Scientific Pest Control Corp., 1651 (1976)

Scientific Pest Control Corporation and Exterminators, Fumigators and Termite Workers, Local 155,

Service Employees International Union, AFL-CIO and Local 522, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Party to the Contract Local 522, International Brotherhood of Teamsters,

Chauffeurs, Warehousemen and Helpers of America and Exterminators, Fumigators and Termite Workers, Local 155, Service Employees International Union, AFL-CIO and Scientific Pest Control Corporation, Party to the Contract Cases 29-CA4236 and 29-CB-2058

June 23, 1976 DECISION AND ORDER

By MEMBERS JENKINS, PENELLO, AND WALTHER On November 20, 1975, Administrative Law Judge John M Dyer issued the attached Decision in this proceeding Thereafter, the Respondent Company, the Respondent Union, and the General Counsel filed exceptions and supporting briefs 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 only to the extent consistent herewith I Contrary to the conclusion of the Administrative Law Judge, the complaint, as amended on September 4, 1975, does allege an 8(a)(5) violation by Respondent Company Moreover, the issue was fully litigated at the hearing Thus the record discloses that in addition to the 8(a)(1), (2), and (3) misconduct found herein, Respondent Company refused to recognize and bargain with Local 155 on September 9, 1974, at a time when Local 155 represented a majority of Respondent's employees in an appropriate bargaining unit 2 In the circumstances, we find that, as of September 9, Respondent Company failed to honor an obligation under the Act to bargain with the majority representative of its employees and thereby violated Section 8(a)(5)1 This violation calls for a I The following inadvertence contained in the Decision of the Adminis trative Law Judge is hereby corrected In the first line of par 13 of sec II A the date January 7 is changed to September 7

2 Excluding office clerical employees guards, watchmen and supervisors 3 Trading Port Inc 219 NLRB 298 (1975) Member Jenkins concurs in the result bargaining order in favor of Local 155 as of September 9, 1974

As found by the Administrative Law Judge, Balz and Raupp, exterminator service routemen, were discharged by Respondent Company on October 18, 1974, at its St James, Suffolk County, New York, location at the request of Respondent Union because of their nonmembership in the Respondent Union, and Respondents thereby violated the Act 4 These employees have never been reinstated to their jobs at St James as they should have been and an order of reinstatement there is required to effectuate the policies of the Act On October 28 and 29, 1974, respectively, Balz and Raupp were rehired at Respondent Company's Port Washington, Nassau County, New York, location The reason they were not reinstated at St James, but were located at Port Washington instead, where they found it less convenient to work, is because Respondent Union supporters at St James opposed the return of these Local 155 adherents at St James and threatened a strike if they were rehired there On December 7, 1974, Balz and Raupp were terminated at Port Washington because they refused to apply for salesmen's licenses If the effect of the unlawful conduct herein is to be undone, and the preventive purposes of the Act is not thwarted, Balz and Raupp must be reinstated at St James, without loss of pay occasioned by the discharge and nonreinstatement at St James That is where they were discharged for refusing to join the Respondent Union at a time when they were not obligated to and only such reinstatement without loss of pay can serve to restore the status quo and reassure the employees of their statutory right to remain secure in their employment, free from reprisals however they choose to exercise the rights guaranteed them by Section 7 of the Act Respondent Company's rehire of Balz and Raupp at Port Washington rather than at St James where their return was opposed by Respondent Union adherents 5 only served to aggravate the impact of the unlawful conduct by Respondents and underscores the need for the remedy we deem necessary The discharge of Balz and Raupp at Port Washington does not negate the necessity for this remedial action It is not established in the record that Balz and Raupp would have suffered the same fate had 4 Although the Administrative Law Judge found that Respondent Com pany violated Sec 8(a)(1) (2) and (3) of the Act by discharging Balz and Raupp on October 18 pursuant to its unlawful contract with Respondent Union par 4 of his Conclusions of Law falls to include the 8(a)(2) finding, accordingly this Conclusion of Law is amended to reflect the 8(a)(2) viola tion 5 As for Respondent Company s duty to resist the pressures it yielded to see A clang Inc 193 NLRB 86 (1971) 224 NLRB No 212 they remained employed at St. James. It seems evident that the return of these discriminatees to St.

James even upon their discharge at Port Washington was not agreeable to Respondents.

Therefore, we shall order Respondent Company to reinstate Balz and Raupp at St. James without prejudice to their seniority or other rights and privileges.

And as we have found that both Respondents are responsible for the discrimination suffered by Balz and Raupp on October 18, we shall order them jointly and severally to make these employees whole for the loss of pay that they may have suffered by reason of the discrimination against them.' Backpay and restitution of fees are to be computed on a quarterly basis as in F. W. Woolworth Company, 90 NLRB 289 (1950). Interest in the amount of 6 percent is to be added to the backpay and to the amounts paid by the employees and/or deducted from their wages which is to be refunded, as in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), as further amplified in Seafarers International Union of North America, Great Lakes District, 138 NLRB 1142 (1962). Respondents will also be ordered to make available to the Board or its agents, upon request, payroll membership lists, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts due the employees.

ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that:

1. Respondent Scientific Pest Control Corporation, St. James and Port Washington, New York, its officers, agents, successors, and assigns, shall:

   1. Cease and desist from:

      (

      1. Unlawfully interrogating employees regarding their union activities and desires.

      (b) Threatening to discharge its employees and/or curtail or close its business or make working conditions more arduous if the employees join or support Local 155.

      (c) Promising unspecified benefits if its employees do not join or support Local 155.

      6 Respondent Union may terminate its liability for further accrual of backpay to Balz and Raupp by notifying the Respondent Company, in writing, that it has no objection to their reinstatement The Respondent Union shall not thereafter be liable for any backpay accruing after 5 days from the giving of such notice Absent such notification, the Respondent Union shall remain jointly and severally liable with the Respondent Company for all backpay to Balz and Raupp that may accrue until the Respondent Company complies with our Order to offer them reinstatement Respondent Company's further obligation to reimburse Raupp for losses suffered because of the unlawful reduction of his earnings on or about September 10, 1974, continues , of course, until Raupp's reinstatement as ordered herein (d) Discharging its employees and/or reducing their pay in order to discourage employees from joining or supporting Local 155.

      (e) Assisting or contributing support to Respondent Union, Local 522, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, and from otherwise interfering with the representation of its employees through a labor organization of their own choosing, by recognizing such labor organization as the exclusive representative of any of its employees for the purpose of collective bargaining at a time when another union represents the majority of its employees and Local 522 does not represent an uncoerced majority of the employees in an appropriate unit.

      (f) Giving effect to, or in any manner enforcing, the collective-bargaining agreement executed with Local 522 on September 16, 1974, and effective from September 13, 1974, or to any modification, extension, renewal, or supplement thereto, or any superseding agreements, or to checkoff authorization cards executed pursuant to such agreements, unless and until said labor organization has been certified by the Board as the exclusive bargaining representative of such employees; provided, however, nothing herein shall require Respondent Company to vary or abandon any wage, hour, seniority, or other substantive features of its relations with its employees which have been established in the performance of such agreements or to prejudice the assertion by employees of any rights they may have thereunder.

      (g) Refusing to bargain collectively with Exterminators, Fumigators and Termite Workers, Local 155,

      Service Employees International Union, AFL-CIO, as the exclusive bargaining representative of the employees in the appropriate bargaining unit.

      (h) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement in...