A & R Window Cleaning & Janitorial Services, Inc.

National Labor Relations Board - Board Decisions

Jan 23, 1980

247 N.L.R.B. 532 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A & R Window Cleaning & Janitorial Services, Inc.
and Guadalupe Villagrana. Case 13-CA- 17093
STATEMENT OF THE CASE
January 23, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On September 6, 1979, Administrative Law Judge
Paul Bisgyer issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
an answering brief.
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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, A & R Window Cleaning
& Janitorial Services, Inc., Cicero, Illinois, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
Respondent also has excepted to the Administrative Law Judge's finding
that employees refused to go to work at their regular 5 p.m. starting time on
November 23, 1977, because Respondent had announced that employees
would not be given holiday pay for Thanksgiving. Rather, Respondent claims
the employees' grievance was limited to the question of whether employees
would be paid for the day following Thanksgiving. We find no merit in this
exception as the record clearly and unmistakably shows that the employees
acted in response to the announcement that they would not be paid for
Thanksgiving because they had not been employed by Respondent for 90
days.
PAUL BISGYER, Administrative Law Judge: This proceed-
ing, with all the parties represented, was heard on June 26-
28, 1978, in Chicago, Illinois, on the complaint of the
General Counsel issued on January 26, 1978,' as subsequent-
ly amended, and the answer of A & R Window Cleaning &
Janitorial Services, Inc., herein called Respondent or Com-
pany. In issue is the question whether Respondent, in
violation of Section 8(a)(1) of the National Labor Relations
Act, as amended,2 discharged employees Guadalupe Villa-
grana, Luz Perez, and Raquel Paez on November 28, 1977,
because they engaged in a protected work stoppage for
mutual aid and protection. Although afforded the opportu-
nity at the close of the hearing, the parties waived oral
argument, but subsequently filed briefs with the Administra-
tive Law Judge in support of their respective positions.
Upon the entire record, and from my observation of the
demeanor of the witnesses, and with due consideration being
given to the arguments advanced by the parties, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent, an Illinois corporation with its principal
office and place of business in Cicero, Illinois, is engaged in
the business of providing janitorial and window cleaning
services to industrial and other commercial establishments.
In the regular course of its business, Respondent annually
performs services valued in excess of $1 million for various
business enterprises, more than $50,000 of which were
furnished to enterprises which themselves receive or ship
goods valued in excess of $50,000 directly in interstate
commerce.
It is admitted, and I find, that Respondent is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
The complaint is based on a charge filed on December , 1977, by
Guadalupe Villagrana, a copy of which was duly served on the Respondent by
registered mail on December 5, 1977.
Sec. 8(aX I) of the Act makes it an unfair labor practice for an employer
"to interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 7." Insofar as pertinent, Sec. 7 provides that
"[elmployees shall have the right to self-organization, to form, join, or assist
labor organizations, 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 and protection ....
247 NLRB No. 78
DECISION
532
A & R WINDOW CLEANING
II. THE LABOR ORGANIZATION INVOLVED
There is no question that Local 25, Service Employees
International Union, AFL-CIO, herein called the Union, is
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction; the Litigated Questions
As indicated above, Respondent is a contractor which
furnishes janitorial and window cleaning services to business
establishments at various locations. The principal stockhold-
ers of the Company are two brothers, Robert and Angelo
Velasquez, who are the president and vice president,
respectively. The next high ranking official is Kenneth
LaRoe, the director of corporate operations, who is in
charge of the Detroit operations where he spends 80 percent
of his time and the balance of his time at the Company's
main office in Cicero, Illinois.' At the time of the hearing,
Respondent employed some 165 employees at various
locations. Approximately 50 percent of its service contracts
cover Western Electric facilities. The instant case is only
concerned with Western Electric's Hawthorne facility.
On June 21, 1977,' before Respondent contracted with
Western Electric for janitorial services at the latter's Haw-
thorne plant, Respondent signed the Union's standard
agreement for a term running from March 28, 1977, to
March 30, 1980, covering "all janitorial, elevator and
security employees and working supervisors employed in
buildings which are now or may hereafter be serviced by the
Employer within the jurisdiction of the Union" and recog-
nizing the Union as the exclusive bargaining representative
of the employees in such unit. This agreement contains
familiar provisions relating to union security, dues checkoff,
a grievance procedure, a restriction on strikes and work
stoppages, and a schedule of wage rates and fringe benefits.
At this time, Respondent was performing janitorial services
for various companies at locations other than the Hawthorne
facility. The validity of this agreement is not questioned.
In about June, Respondent submitted a bid to Western
Electric to provide janitorial services at its Hawthorne
I LaRoe's functions include the establishment of policy and procedures, the
development of training programs for the personnel, and the performance of
management consultant studies and engineering evaluations on various
projects. On the basis of the record, I find, contrary to Respondent's
contention, that LaRoe is both a managerial employee and a supervisor within
the meaning of Sec. 2(11) of the Act, and therefore is an agent whose acts
involving the work stoppage are imputable to Respondent. Indeed, at the
hearing, Respondent's counsel, in answer to the Administrative Law Judge's
inquiry, conceded that LaRoe had "limited authority. He's an agent in some
capacity of the employer's as far as corporate matters are concerned. He
doesn't have all the indicia indicated in Section 2(11)." Counsel further
conceded that LaRoe had authority over employees "[a]s a policy matter...
I mean he is definitely in the policy hierarchy of the employer."
' All dates, unless otherwise indicated, relate to 1977.
' Harris, known to the employees as "Mr. Peanuts," is the superior of the
site supervisors at the Hawthorne facility and other locations of the
Respondent's customers in a specified area. He generally oversees the
janitorial work performed at these facilities where he spends several hours
each day and issues directives to the site supervisors. As will later be
discussed, he gave disciplinary notices to the dischargees, Perez and Paez, for
their involvement in the November 23 work stoppage, which warned them
that a repetition of their offense would result in their termination. Paz, as site
facility which were then being performed by another
contractor, Service Master. In August, Respondent was
awarded the contract effective September 27 with the
understanding, according to Respondent's President Robert
Velasquez, that it was to be a union operation.
On September 27, Respondent's President Velasquez met
with the former employees of Respondent's predecessor
contractor, Service Master. After identifying himself as the
president of the contractor which had taken over the
janitorial services at the T.A. Building, the merchandise area
and the hospital at the Hawthorne facility, he introduced
Marvin Harris as the regional supervisor in charge of this
operation; Miguel Paz Pinzon, commonly known as Paz, as
the site supervisor of the employees assigned to the T.A.
Building; and Zbigniew Zakraweaz, as the site supervisor of
the employees assigned to the merchandise area.' Following
the practice prevailing in the janitorial service industry, job
applications were distributed among service master's former
employees who were then interviewed by Regional Supervi-
sor Harris and Site Supervisor Paz.6 Some 28 employees,
including Guadalupe Villagrana, Luz Perez, and Raquel
Paez, the alleged dischargees, out of approximately 45
persons who attended the meeting were hired and were
informed that they would receive the same union wage rates
previously paid by Service Master.' Although Velasquez
testified that he was advised of such wage rates by the
Union, it is clear that they were considerably less than those
prescribed in the Union's above mentioned standard agree-
ment signed by Respondent.' On the same day, September
27, the hired employees began working for Respondent at
the Hawthorne facility.
On November 22, President Velasquez signed a memoran-
dum of understanding which he had received from the
Union during that month, containing the signature of the
Union's president. In this document, Respondent agreed to
be bound at its Hawthorne location by the terms and
conditions of the standard agreement except with respect "to
wage scale and fringe benefit contributions" in lieu of which,
effective September 26, lower wage rates and benefit contri-
butions are provided for the Hawthorne location.9 Accord-
ing to Velasquez, in negotiations respecting the memoran-
dum of understanding initiated between him and the Union's
business agent a week or 10 days before September 27, he
supervisor, does not perform manual labor but responsibly directs approxi-
mately 20 employees, most of whom are Spanish speaking persons, assigned to
the T.A. Building, while Site Supervisor Zakraweaz. known as Zbig,
responsibly directs the work of Respondent's Polish speaking employees in the
merchandise area. In disagreement with Respondent's contention, the
evidence plainly establishes that Harris. Paz, and Zakraweaz fall within the
definition of supervisors in Sec. 2(1 ) of the Act.
' Harris interviewed the English speaking applicants, while Paz interviewed
the Spanish speaking applicants.
During this meeting, there was some reference made to a union, which will
subsequently be discussed in connection with the question of the employees'
knowledge of Respondent's contractual relationship with the named Union.
I There is no evidence whether Respondent's predecessor was party to the
Union's standard agreement.
* Provision is also made in the memorandum of understanding for the
establishment of wage scales and fringe benefit contributions for "employees
of the Employer who are employed at job locations not presently covered
under the terms of the standard agreement or not listed" in this memorandum
of understanding, In addition, there is a provision for amending the latter
document "from time to time to list such job locations and the date of
commencement of service."
533
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accepted the business agent's proposed wage rates subject to
the Union's approval, which came when he received that
document in the mails in November. He admitted that the
wage rates therein prescribed, which were higher than those
previously paid by Respondent to its employees at the
Hawthorne facility, were applied subsequent to the execu-
tion of the memorandum of understanding.
As will presently be fully discussed, on November 23 the
employees reported for work at the T.A. Building, but
refused to go to work at their regular 5 p.m. starting time
because Respondent had announced that they would not be
given holiday pay for Thanksgiving. The work stoppage
ended 2 hours later when Respondent's Director of Corpo-
rate Operations LaRoe persuaded them to return to work.
On the following workday, Monday, November 28, the
Respondent admittedly terminated Luz Perez, Raquel Paez,
and Guadalupe Villagrana because of their participation in
the work stoppage. It is the General Counsel's position that
Respondent penalized these employees for engaging in
lawful concerted activity for their mutual aid and protection
over a condition of employment and hence violated Section
8(a)(l1) of the Act. Respondent, on the other hand, justifies
its action principally on the ground that the work stoppage
was unprotected as it was in breach of the no-strike clause in
its standard collective-bargaining agreement with the Union.
Countering this defense, the General Counsel argues that the
employees were neither informed nor were otherwise pos-
sessed of knowledge of the existence of a collective-bargain-
ing agreement between Respondent and the Union and that
therefore they could not be punished for exercising their
Section 7 rights. Alternatively, the General Counsel urges
that, even assuming that the work stoppage were unprotect-
ed, the named employees' conduct was condoned and may
not be revived to support their discharge. Respondent,
however, denies any condonation by a responsible official.
Another defense advanced by Respondent is that two of the
three discharged employees, Perez and Paez, had threatened
a "supervisor," Miguel Paz, with bodily harm and that they
thereby lost the protection of the Act.
We turn to the relevant evidence concerning the work
stoppage and the discharges.
B. The Evidence
1. The November 23 work stoppage
A day before Thanksgiving Day, which fell on November
24, Respondent posted a notice
s0 in its wire-enclosed office in
the T.A. Building, that employees would not be paid for this
holiday. On November 23, when Guadalupe Villagrana and
Raquel Paez reported early for work for their regular shift
from 5 p.m. to 1:30 a.m., they were informed by Supervisor
Paz that employees would not be paid for the Thanksgiving
'" The notice read, as follows: "NOTICE TO: AI.L A&R W'NDOW CLEANING A
JANITORIAL SERVICE EMPLOYEES. FRIDAY-NOVEMBER 25 IS A PAID
HOLIDAY FOR AAR EMPLOYEES. WFSTERN ELECTRIC-HAWTHORNE PI.ANT
WILL BE CLOSED ON THIS DAY."
" It is noted that one of the provisions in the Union's standard agreement
(art. V, sec. I) provides for a paid Thanksgiving holiday without any
requirement of employment for a specific period. The Respondent assert that
the employees were not eligible for holiday pay because, under its policy, they
had not been in its employ for 90 days as of November 23.
holiday because they had not been in the Company's employ
the required 90 days." Villagrana and Paez protested that
this was contrary to the promise previously made to the
employees and demanded an explanation which he was
unable to give, suggesting, instead, that they seek an
explanation from "the big boss." When employees Luz Perez
and Ella and Luther Williams arrived for work, they were
informed by Villagrana and Paez of the Company's decision
not to give employees Thanksgiving holiday pay. They, too,
questioned Paz about the denial of holiday pay but without
receiving any satisfaction. As other employees reported for
work, they were advised of the situation, which they
discussed among themselves. In answer to an employee's
question, Luther Williams told the employees that, under
state law, they were entitled to holiday pay. The upshot of
all this was that, despite Paz' exhortation to go to work, the
employees refused to do so until they first spoke to a
company official concerning the denial of holiday pay. It is
quite clear that Perez, Paez, Villagrana, and Ella and Luther
Williams were the most vocal supporters of the work
stoppage.
Paz, thereupon, telepholed Respondent's main office to
speak to President Velasquez or Paz' immediate superior,
Regional Supervisor Harris. However, Director of Corporate
Operations LaRoe answered the telephone and advised Paz
that Velasquez and Harris were not there but that he would
try to contact them. In reply to LaRoe's inquiry, Paz related
that the employees refused to go to work because they were
denied Thanksgiving holiday pay. LaRoe told Paz to make
every effort to persuade the employees to return to work
while he (LaRoe) would try to communicate with Velasquez
and Harris. Since LaRoe was unable to locate Velasquez or
Harris, he left a message at their respective homes. When
Paz called back about a hour later, LaRoe informed him of
his inability to reach either Velasquez or Harris, and Paz
advised him that the employees persisted in their work
stoppage. In response, LaRoe stated that he would be at the
facility in 10 minutes. Subsequently, LaRoe received a call
from Western Electric Inspector Robert Kaczmarek," urg-
ing Respondent to take measures to end the work stoppage.
There is uncontradicted testimony, which I credit, that
after Paz completed a telephone call to "the boss," not
otherwise identified, he turned the telephone over to Ella
Williams, saying that "the boss" wanted to speak to her." In
the ensuing conversation, "the boss" confirmed to Ella
Williams that the employees would not be given holiday pay
for Thanksgiving and asked to speak to her husband. When
Luther Williams got on the telephone, the cause of the work
stoppage was discussed with "the boss" adhering to the
Company's position that the employees were not entitled to
holiday pay because they had not worked long enough for
the Company. Luther Williams, however, voiced his dis-
agreement, asserting that state law required the payment of
" Kaczmarek, s Western Electric's agent, generally oversees the Respon-
dent's performance of its service contract at the Hawthorne facility.
" The record does not indicate whether this was one of the calls to LaRoe.
Although President Velasquez testified he first learned of the work stoppage
when he arrived at home between 8:30 and 9 p.m. November 23, Paz testified
that he was able to locate Velasquez at 6 p.m. and informed him of the work
stoppage and that the employees wanted to speak to a high company official.
Neither Ella Williams nor her husband, Luther, who also spoke to "the boss"
on this occasion, could identify to whom they had spoken.
534
A & R WINDOW CLEANING
holiday pay. Concluding their conversation, "the boss"
stated that, if the employees refused to return to work, they
should leave, but added that he would come to the facility in
a short while. Perez conveyed the substance of Luther
Williams' conversation with "the boss" in Spanish to the
Spanish-speaking employees and urged them to continue the
work stoppage until a company official arrived. Paz also
announced to the employees that a company official was
coming down to speak to them.
After waiting a while without anyone from the Company
making an appearance, Luther Williams called the main
office again and was told by the same individual that he
would be there in a few minutes. The Williamses continued
to wait along with the other employees. However, between
6:30 and 7 p.m., they decided to leave, informing Paz they
were quitting because the Company refused to pay them for
the Thanksgiving holiday." The other employees, neverthe-
less, remained in the office.
At about this time, Western Electric Inspector Kaczma-
rek entered Respondent's Hawthorne office where the
employees were waiting. He first approached Raquel Paez
and politely asked her to hand over a stick which she was
holding under her left armpit and which she readily
relinquished. This stick was roughly 3 feet long and 1-Y
inches in diameter and was customarily used by the cleaning
employees to keep washroom doors open. Kaczmarek
thereupon addressed the employees, stating that he was not
associated with the Respondent but that he had called its
office and was advised that someone would come to the
facility to talk to them within a half an hour. Kaczmarek
also told them that, if they then went to work, they would be
reassembled when Respondent's official arrived or they
could remain in the office and wait for that individual. With
the possible exception of two or three employees who
returned to work, most of the work force decided to wait.
Later in the evening, about 7 o'clock, Director of
Corporate Operations LaRoe arrived at the facility." Before
addressing the employees, he asked Supervisor Paz who
knew English and Spanish to serve as an interpreter so that
the Spanish speaking employees would understand what he
had to say to them. Employee Marco Nunez volunteered. In
answer to LaRoe's inquiry, Nunez told him that the
employees were concerned about not being given Thanksgiv-
ing holiday pay. With Nunez, as interpreter, LaRoe intro-
duced himself as Director of Corporate Operations and
proceeded to explain that, under the Company's policy, the
employees were not eligible for holiday pay because they had
not been in the Company's employ for 90 days. He then
urged them to return to work, adding that, if they did not,
they should leave or else he would punch out their
' Although named in the unfair labor practice charge as unlawfully
discharged employees, Ella and Luther Williams were not included in the
complaint issued herein and the legality of their separation is not in issue.
"Although Respondent does not contend that it discharged Perez and Paez
because they physically prevented employees from going to work, it asserts in
its brief that they had engaged in such conduct before LaRoe's arrival. 1,
however, credit the denials of these employees that they had committed such
acts and find from my evaluation of all the evidence that their actions were
nothing more than peaceful efforts to persuade their coworkers to cooperate in
supporting the work stoppage in protest to the Company's refusal to grant
them holiday pay for Thanksgiving.
"Although LaRoe testified that he did not believe that any employee
questioned him about the employees being given the full 8 hours pay,
timecards, as he had the authority to do. This elicited
inquiries from Villagrana, Perez, Paez, and other employees
whether they would be paid for the full 8 hours since they
had already missed 2 hours work. LaRoe replied that they
would be paid for the full 8 hours if they completed their
work by the end of their shift.' When LaRoe was then asked
about the employees being paid for the upcoming Christmas
holiday, he stated that he would confer with President
Velasquez about it and assured them that they would receive
timely notice whether or not it would be granted.
During this meeting, subjects of insurance, the wage rate,
and the Union were also raised. According to LaRoe's
testimony, an employee complained that he was not receiv-
ing the wage rate he thought he would be paid and that, in
response, he (LaRoe) placed the blame on the Respondent's
predecessor contractor, Service Master. When asked by the
General Counsel for an explanation of the answer he had
given to the employee, LaRoe testified that "[a]pparently
. . . Service Master. . . did not put the people in the union
per se .... " Clarifying the situation, LaRoe, in effect,
explained to the employees that they did not have a union'
because their prior employer, Service Master, had failed to
forward their signed union cards to the Union but added
that the employees would have one in the future. At the
close of the meeting, the employees returned to work. Their
next paycheck included pay for the full 8 hours they were on
the timeclock on November 23.''
2. Regional Supervisor Harris' warnings to employees
Perez and Paez
Following the termination of the work stoppage, Regional
Supervisor Harris learned from his wife about that occur-
rence and promptly proceeded to the Hawthorne facility
arriving there before 9 p.m. At the Company's Hawthorne
office, Supervisor Paz informed him what had happened and
that the employees' refusal to go to work was on account of
being denied Thanksgiving holiday pay. Harris then called
LaRoe who apprised him of his successful efforts in ending
the work stoppage. After this conversation, Harris directed
Paz to bring Perez and Paez separately to him, which he did.
In the presence of Supervisor Zakraweaz, Western Electric
Inspector Kaczmarek and Paz, Harris voiced his disapprov-
al to Perez of her involvement in the work stoppage and
questioned her respecting her participation. Perez answered
that she had simply transmitted to the Spanish speaking
employees what employee Luther Williams had asked her to
Regional Supervisor Harris, as will later be discussed, testified that at the
subsequent supervisory meeting held by President Velasquez on November 28,
LaRoe proposed that the employees should be paid for a full 8 hours they
were scheduled to work on November 23.
" This probably explains why, even from LaRoe's own testimonial account
of this meeting, he made no mention of the existence of a collective-bargaining
contract which prohibited any work stoppage. Although the Union is not
explicitly identified in the testimony, it appears to be the labor organization
named above.
'' The foregoing narration of the events on November 23 is based on a
composite of the testimony of all the witnesses, which I find reflects what
probably had occurred. Whatever variances there are in the testimony of these
witnesses, they are minor and do not affect my ultimate determination.
535
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tell them. Harris then stated that since she did not have a
union he was going to give her a warning notice 9 and with
that introduction handed her such a paper dated November
23 and signed by him, which recited the following:
You were involved in a work stoppage on the above
date which lasted for 2 hrs. I want this to serve as a
warning that if you are involved in any type of stoppage
or slowdown we, the Company of A & R Janitorial, will
terminate you on the spot, of the infraction by punching
your card out.20
Perez refused to sign the warning notice, as Harris request-
ed, asserting that she was unable to read English. There-
upon, Harris read the warning notice to her. Perez, however,
still declined to sign and Harris noted her refusal on the
paper. As Perez was leaving the office to return to her job,
Harris jokingly told her to have a happy Thanksgiving. This
provoked her cynical response that she could not understand
how he could issue a warning notice and simultaneously
wish her a happy Thanksgiving.2
Raquel Paez was next summoned to the office, arriving
there around 9 p.m. There, Harris questioned her about her
participation in the work stoppage and handed her an
identical warning notice as the one previously given to
Perez, which she refused to sign unless it was explained.
With Paz as an interpreter, Harris stated that she had been
threatening employees with a stick, although the warning
notice made no mention of such alleged misconduct. Paez,
obviously thinking that the warning notice mentioned the
threat, thereupon chided Paz for its purported inclusion in
the warning notice as he very well knew that it was untrue
and Harris was not even in the office at the time of the
alleged occurrence. Paz denied that he informed Harris
about such a threat. This led to a verbal exchange between
Paz and Harris with each blaming the other for the threat
charge. Paez further asked Harris why other employees who
were involved in the work stoppage were not given warning
notices. In response, Harris said that he would hold a
meeting with the employees at lunchtime where he would
distribute warning notices to the other employees."
Following the issuance of the warning notices to Perez
and Paez, President Velasquez, who assertedly learned of the
work stoppage about 8:30 or 9 p.m. from the message
previously left by LaRoe at Velasquez' home, telephoned the
Hawthorne facility shortly thereafter. Velasquez spoke to
Supervisor Paz who informed him of the work stoppage and
its termination by LaRoe. Advising Paz that a supervisory
meeting was scheduled for early Monday morning, Novem-
,' Here, too, it is noted that no mention was made by Harris either verbally
or in the written warning notice that the strike was unlawful and in violation
of a contractual no-strike clause.
" Whether or not Harris also commented that Perez, Paez, Villagrana, and
the Williamses had barred the door to keep employees from returning to
work, it is sufficient to note that, not only is such conduct not mentioned in
the warning notice Perez and Paez received from Harris, but I have previously
found that they did not engage in such conduct during the work stoppage.
:' The foregoing findings are based on substantially uncontradicted
testimony except that Harris denied mentioning the Union during this
interview while Perez testified that he did. I find that Perez' testimony is more
accurate and credit it. In any event, my ultimate determination would not be
different even if I were to accept Harris' denial.
2~ The foregoing narration is based on Paez' more convincing testimony
than Harris' version which, at any rate, if accepted does not require a result
different from that I ultimately reach in my concluding findings. Harris
ber 28, at the main office, Velasquez directed Paz to have
Regional Supervisor Harris call him at work. Between 9:30
and 10 p.m., Harris telephoned Velasquez and apprised him
of the issuance of the warning notices to Perez and Paez
while Velasquez informed Harris of the scheduled superviso-
ry meeting on the following Monday morning.
As a result of this conversation with Velasquez, Harris
notified Paz to cancel the lunchtime meeting with the
employees. In the meantime, around 10 p.m., some eight
employees had assembled in the office, with the rest of the
employees intending to join them after they had finished
their lunch. Paz then announced that the meeting was called
off because Harris was unable to attend but that Harris
would meet with them the following Monday.
At the supervisory meeting, presently to be discussed,
Velasquez authorized the issuance of a warning notice to all
the employees, which Harris had contemplated doing at the
employee lunchtime meeting. Such a notice addressed to the
employees was subsequently posted, stating:
ON FRIDAY NOVEMBER 23RD, 1977 [sic] THERE WAS A
WORK STOPPAGE HERE AT HAWTHORNE WORKS FOR
TWO (2) HOURS.
IF ANY ONE IS INVOLVED IN STOPPAGE OR SLOW
DOWN YOU WILL BE TERMINATED IMMEDIATELY.
3. The discharge of Perez, Paez, and Villagrana
On Monday morning, November 28, President Robert
Velasquez and Vice President Angelo Velasquez held a
meeting with Director of Corporate Operations LaRoe,
Regional Supervisor Harris, and Site Supervisors Paz and
Zakraweaz, where the work stoppage was discussed, as was
the fact that it was conducted to protest the denial of
Thanksgiving holiday pay, although the employees were not
entitled to it under the Company's 90-day eligibility policy.
Considerable discussion centered around the active involve-
ment of Perez, Paez, and Villagrana in the work stoppage
and assertedly their threats of bodily harm to be visited upon
Supervisor Paz, which were allegedly made after the
employees had returned to work." Velasquez testified that,
on the basis of the information thus developed, and noting
that he had had some problems in the past with these
employees,2' he made his decision to discharge the three
named employees principally because of the threats made to
Paz and because the work stoppage violated the Company's
collective-bargaining agreement with the Union. In this
connection, employee Nunez' name was brought up as an
testified that, in response to his inquiries concerning her involvement in the
work stoppage, she claimed that she had only acted as an interpreter; that he
then read the warning notice to her in English without using Paz as an
interpreter; and that he then explained to Paez that she had a stick, closed the
door and stood in front of it, preventing some of the employees who wanted to
go to work from leaving the office. It is noted that, although Harris testified
that during this interview Paz said nothing, Paz himself testified that on this
occasion, when Paez stated that she did not understand the warning notice, he
explained to her that the paper was the result of what had occurred earlier in
the day.
" The evidence relating to these alleged threats will be separately
considered in the concluding findings of this Decision.
1 These problems, which relate to inconsequential matters affecting two of
the named employees, are not urged in the Respondent's brief as a cause for
the discharges. Manifestly, these two employees would not have been
discharged but for the work stoppage.
536
A & R WINDOW CLEANING
active participant in the work stoppage, but Velasquez
decided that his activity was essentially that of an interpreter
which did not warrant his termination. As for Ella and
Luther Williams, whose names were also mentioned, Velas-
quez saw no need for further action since he viewed their
departure from the Hawthorne facility on November 23 as a
quit.
Also considered on this occasion were the subjects of
Christmas holiday pay and pay for the full 8 hours of the
employees' workday, which included the 2 hours they were
engaged in the work stoppage. These matters, which had
previously been raised by the employees with LaRoe on
November 23, were presented by LaRoe at the supervisory
meeting. Velasquez decided to grant the employees a
Christmas bonus in lieu of holiday pay for which they were
not eligible under the Company's policy, although the
bargaining contract (art. VI, sec. 1) listed Christmas as a
paid holiday. Accordingly, Velasquez ordered that a notice
be posted on the bulletin board, notifying employees of the
granting of such a bonus. In addition, Velasquez approved
LaRoe's proposal to pay the employees for 8 hours on
November 23. Velasquez testified that he gave his approval
in order to avoid any difficulties with the Government or the
Union. At Harris' suggestion, Velasquez also authorized the
posting of the previously quoted notice to all the employees
warning them that a repetition of a work stoppage would
result in their discharge.
In order that Perez, Paez, and Villagrana would have
sufficient notification that they were not to report for work
at their regular time (5 p.m.), Velasquez directed that
telegrams be sent to their homes and that Supervisor Paz call
them on the telephone. When the three of the discharged
employees nevertheless came to work, they were informed
by Paz of their termination and, after some conversation,
they departed. Subsequently, they received their paychecks
for the week of the November 23 work stoppage, which
included full 8 hours' pay for that day.
C. Concluding Findings
Respondent concedes that Perez, Paez, and Villagrana
were discharged "because they instituted and maintained
. . [a] work stoppage." However, it argues, in opposition to
the General Counsel's position, that the work stoppage was
unprotected as it was in breach of a valid no-strike clause in
its standard agreement with the Union,2' which required the
employees to use its grievance procedure to resolve their
dispute with Respondent. I find no merit in Respondent's
contention.
Putting aside for the moment Respondent's defense that
the work stoppage violated the contractual no-strike clause,
there is no doubt that the employees' refusal to work in
order to protest Respondent's denial of Thanksgiving holi-
" Art. XVII, sec. , of the standard agreement provides that "During the
term of this agreement, there shall be no strikes, lockout or picketing." The
agreement also contains conditions under which the Union could be relieved
of liability for an unlawful work stoppage.
" N.LR.B. v. Waco Insulation. Inc., 567 F.2d 596, 602 (4th Cir. 1977),
enfg. in this respect 223 NLRB 1486 (1976).
'1 The Administrative Law Judge made it clear at the hearing that,
notwithstanding Respondent's failure to plead affirmatively that the work
stoppage violated a contractual no-strike provision, he would receive evidence
to support such a defense. Moreover, contrary to the premise of Respondent's
day pay was a form of concerted activity for mutual aid and
protection guaranteed employees by Section 7 of the Act and
that a discharge for exercising that statutory right violated
Section 8(a)(l) of the Act. Therefore, the critical question
here presented is whether the standard agreement or the
subsequently executed memorandum of understanding sup-
posedly signed by Respondent on November 22, embodying
that agreement, was applicable to the Respondent's Haw-
thorne employees at the time of their work stoppage on
November 23. In my opinion, neither agreement barred the
employees from engaging in such otherwise protected
activity because, as I find below, the employees were never
informed by Respondent of the existence of any collective-
bargaining agreement with the Union binding on them; nor
were they otherwise aware of such a contractual relationship
between those parties when the employees resorted to the
work stoppage. The controlling principle was aptly enunciat-
ed in a comparable situation in Waco Insulation,' where the
court held that "absent knowledge of the collective bargain-
ing agreement between . . . [the employer and the union],
the spontaneous work stoppage by .. [the discharged and
other employees] to present their wage demands to manage-
ment constituted a protected concerted activity."2'
Guided by this principle, I find that at the time of the
work stoppage the employees were unaware of the existence
of a collective-bargaining agreement binding on them. I do
not credit President Velasquez' testimony that at the
September 27 meeting, when he hired the former employees
of the prior service contractor, he made those employees
aware of the existence of a union contract' Not only was this
evidence convincingly contradicted by the dischargees Perez
and Paez,' but it is highly unlikely that Velasquez would
apprise the employees of the Company's bargaining contract
with the Union if for no other reason than the contract
prescribed a wage scale considerably higher than that he
intended to pay and actually did thereafter pay them.
Probably, the most that Velasquez said on this occasion
when, as Velasquez also testified, in response to the inquiry
of several employees who stated that they had previously
signed union cards while employed by the former service
contractor, he (Velasquez) indicated that the Hawthorne
operation was going to be a union shop. Further suggesting
that Velasquez did not disclose the existence of a collective-
bargaining contract at the September 27 meeting is the fact
that, in addition to wage rates, other significant provisions in
the standard agreement were not enforced at Hawthorne
during the period preceding the work stoppage, such as
holiday pay, union security, dues checkoff, and apparently
fringe benefit contributions. Indeed, Respondent's denial of
Thanksgiving pay, which caused the work stoppage, was
viewed by Respondent, as late as November 28 following the
work stoppage, as a company policy matter rather than a
term and condition of employment embodied in a bargaining
argument in its brief, the Administrative Law Judge also made perfectly clear
the relevance of evidence concerning the employees' knowledge of the
existence of a collective-bargaining agreement and not specific knowledge of
the incorporation of a no-strike clause in such a known agreement.
" Perez and Paez also credibly testified that they had never seen the
Company's standard agreement with the Union or the parties' memorandum
of understanding.
2" It appears that reduced fringe benefit contributions by Respondent were
set forth in the memorandum of understanding.
537
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract. On that date, Respondent similarly treated the
matter of Christmas holiday pay. With respect to the
November 22 memorandum of understanding, Respondent
does not even claim it had apprised employees of its terms.
Moreover, it is clear that, although Velasquez testified that
he had agreed to the terms of the memorandum about 2
months before its execution, the wage rates therein pre-
scribed which were higher than those paid employees, if not
the fringe benefit contributions also, were not put into effect
before the work stoppage.
Another factor demonstrating the absence of an operative
bargaining contract applicable to the Hawthorne facility is
the indisputable fact that Director of Corporate Operations
LaRoe, in urging the employees to return to work on
November 23, made no mention to the employees of the
existence of a bargaining contract which prohibited work
stoppages, rendering them vulnerable to discharge. Indeed,
on this occasion, in answering an employee's complaint
about his wage rate which he thought would be higher,
LaRoe remarked that the reason was that the employees did
not have a union yet, although they would have one in the
future. Similarly, before LaRoe's arrival, when Supervisor
Paz tried to persuade the employees to end their work
stoppage, he, too, did not refer to any bargaining contract
which prohibited their action. This is easily understandable
in view of Paz' admission under cross-examination that prior
to the November 23 work stoppage a majority of the
employees had asked him when the Union was coming in
and that he replied that he did not know.
Also quite revealing is the fact that the warning notices
issued by Regional Supervisor Harris to Perez and Paez for
their involvement in the work stoppage did not allude to any
violation of the Company's no-strike contract with the
Union as the reason for the warning. Even more incompre-
hensible is the fact that on November 28, when President
Velasquez decided to terminate Perez, Paez, and Villagrana
supposedly for breaching the no-strike clause in the Respon-
dent's bargaining agreement, the notice he also authorized to
be posted on that occasion, warning all the employees for
their November 23 work stoppage, omitted any reference to
the unlawfulness of that work stoppage under the contract.
All this suggests that Respondent's defense that the work
stoppage was unprotected is actually an afterthought.
Finally, if the no-strike contract were really applicable to the
Hawthorne operation, there is nothing in the record to
explain why Respondent did not call upon the Union to take
immediate steps to terminate the work stoppage less it be
Art. XVII of the standard agreement with the Union provides in sec. 2:
No action or suit of any kind or description shall lie by the Employer
against the Union, or any officer, representative of agent thereof, because
of a strike, work stoppage or picketing in violation of this Agreement if:
(a) The Union has not authorized or instigated the strike, work
stoppage or picketing, and
(b) The Union promptly denounces such strike, work stoppage or
picketing and makes an earnest effort to termninate the same within a
period of five (5) day.
" In view of this determination, there is manifestly no need to pass upon the
General Counsel's alternative contention that, in any event, Respondent had
condoned the employees' actions and that therefore the alleged unprotected
work stoppage may not be resurrected to justify the discharge of the named
employees. However, should the Board decide to reach this question, I find,
contrary to Respondent, that Director of Corporate Operations LaRoe's
successful inducement of the employees to return to work without any
held legally liable for the employees' actions under the terms
of the contract.' °
In sum, I find, on the basis of all the evidence, that at the
time the employees engaged in the spontaneous 2-hour work
stoppage in protest to the denial of Thanksgiving holiday
pay and refused to go to work unless they first spoke to a
company official, the employees were totally without infor-
mation from Respondent or any other source of the
existence of any collective-bargaining agreement applicable
to the Hawthorne facility and binding on them. This
determination is not precluded by the evidence relied upon
by Respondent that at the September 27 meeting, at which
the employment of the prior service contractor's employees
was discussed, employee Nunez told Velasquez he was a
union member and Velasquez remarked that he could retain
his membership as the Hawthorne facility was a union job.
Nor is employee knowledge of the existence of a bargaining
agreement or of a contractual grievance procedure estab-
lished by the comment of Jose Guerrero to employee Perez
as the former was leaving the office to go to work at the time
of the work stoppage that the employees should do likewise
and thereafter file a complaint with the Company. Similarly,
such knowledge is not shown by Perez' statement to
Supervisor Paz some 8 days prior to the work stoppage that,
if Paz created any problems for the employees, they would
complain to the Union about him.
Accordingly, I conclude that neither Respondent's stan-
dard contract with the Union nor the subsequently executed
memorandum of understanding was applicable to the Haw-
thorne facility as to render the November 23 work stoppage
unprotected. It follows that Respondent violated Section
8(a)(l) of the Act by discharging Perez, Paez, and Villagrana
on account of their involvement in the work stoppage.3"
As indicated previously, Respondent makes an alternative
argument that, in any event, its discharge of Luz Perez and
Raquel Paez was independently justified by their threats to
harm the Company's supervisor, Paz,32 which were made
after the employees had returned to work. According to
President Velasquez, this subject was discussed at the
November 28 supervisory meeting when he decided upon the
threats as one of the two reasons for terminating these
employees and Guadalupe Villagrana. I find this contention
unsupported by credible testimony.
Admittedly, the alleged threats were not made directly to
Paz. Paz testified that he left the Hawthorne facility an hour
earlier than his regular 1:30 a.m. departure time because he
was nervous and upset as a result of being told by Site
qualification or indication to the employees that Respondent intended
subsequently to consider punishment of the alleged instigators establishes
condonation under Board and court decisions. See, for example, Bentex Mills,
213 NLRB 296(1974).
As Curiously, Respondent also contends that Paz is not a supervisor within
the meaning of the Act.
Do Paz further testified that he received permission to leave early from
Western Electric Inspector Kaczmarek, as he was required to do for security
reasons. However, although Paz testified that he had spoken on the telephone
to President Velasquez at midnight and informed him that everything was
normal and that the employees were working, there is nothing in his
testimony that he requested permission from Velasquez, his employer, to leave
the facility early because of threatened assaults. Velasquez, on the other hand,
testified that in a telephone call Paz made to him after 9 p.m. Paz requested
permission to leave early because Perez and Pbez had threatened to get him in
the parking lot. Oddly enough, Supervisor Zakraweaz had not named Paez to
538
A & R WINDOW CLEANING
Supervisor Zakraweaz about 8 p.m. (November 23) to be
careful since it was possible that Perez might hurt him and
as a result of similar advice he received from employee Jose
Guerrero about 11 p.m. to be careful because Perez wanted
to hit him. Zakraweaz, however, testified that after the end
of the workday and Paz' early departure, Perez approached
him and inquired where Paz was. Zakraweaz further
testified that when he informed her that Paz had already left,
Perez made some disparaging remarks about Paz and said
that if Paz gave her or the employees any more problems,
she would "punch him" and, in so saying, directed her fist
into the open palm of her other hand. As for the alleged
threat against Paz made to Guerrero, Guerrero was not
produced as a witness to attest to it.
Perez denied having had the conversation to which
Zakraweaz testified and categorically denied telling him or
anyone else that she intended physically to harm Paz. In
view of the inconsistency between Paz' and Zakraweaz'
testimony with respect to the time sequence, and the absence
of any contradictory testimony by Guerrero regarding his
alleged conversation with Perez, I accept Perez' denial that
she threatened to harm Paz. Indeed, it appears that
Zakraweaz probably erroneously identified Perez to Paz as
the one who made the threat since he testified that the
offender was the employee who was holding the stick during
the work stoppage. The evidence discloses that it was Paez
who held the stick. For this reason, Paez, although not
identified by Zakraweaz to Paz as the one who made the
threat, gave testimony in which she denied that she told
Zakraweaz or any one else that she would do physical harm
to Paz. I credit her denial. Finally, it is noted that, after Paz
testified that he was afraid of Perez and Paez because of the
information he received from Zakraweaz and Guerrero, Paz
admitted, under further examination, that he really was not
afraid but added that he wanted to avoid problems."' I find
that, as Perez and Paez were not guilty of the misconduct
attributed to them, they did not forfeit the protection the
Act afforded them to engage in concerted activity for mutual
aid and protection. While I question Respondent's good-
faith belief that these employees actually made serious
threats of physical assaults upon Paz, such an honest belief
does not relieve Respondent of liability for its Section 8(a)(1)
violation, as found above."
IV. THE REMEDY
Pursuant to Section 10(c) of the Act, as amended, it is
recommended that Respondent be ordered to cease and
desist from engaging in the unfair labor practices found and
like and related conduct and that it take certain affirmative
action designed to effectuate the policies of the Act.
It has been found that the Respondent unlawfully dis-
charged employees Perez, Paez, and Villagrana because of
their involvement in protected concerted activities. To
remedy this unfair labor practice, it is recommended that
Respondent offer these employees immediate and full
Paz as having made the threat and, according to Zakraweaz' testimony, when
Paz left the facility, Paz did not tell him why he was leaving early.
" Perez is approximately 5 feet tall and weighs 130 pounds, while Paez is 5
feet 2 inches tall, weighing 125 pounds. Paz is taller and weighs more than the
two women.
" N.LR.B. v. Burnup d Sims, Inc.. 379 U.S. 21 (1964).
reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and that
Respondent make each of these employees whole for any
loss of earnings they may have suffered by reason of their
unlawful discharge by payment to each of them of a sum of
money equal to that which they normally would have earned
from the date of their discharge to the date of the offer of
reinstatement, less their net earnings during the said period.
Backpay shall be computed with interest on a quarterly basis
in the manner prescribed by the Board in F. W. Woolworth
Company. 90 NLRB 289 (1950), and Florida Steel Corpora-
tion, 231 NLRB 651 (1977); see also Isis Plumbing &
Heating Co., 138 NLRB 716 (1962). To facilitate the
computation, as well as to clarify the named employees'
right to reinstatement, Respondent shall make available to
the Board, upon request, payroll and other records necessary
and appropriate for such purposes. The posting of an
appropriate notice is also recommended. In view of the fact
that most of Respondent's employees working in the T.A.
Building at the Hawthorne facility and who engaged in the
work stoppage are Spanish-speaking persons with little
knowledge of the English language, the notice ordered to be
posted shall be in both languages.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. 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 discharging Luz Perez, Raquel Paez, and Guada-
lupeVillagrana for engaging in protected concerted activities
for mutual aid and protection, Respondent engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
4. The aforesaid unfair labor practices affect 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, and pursuant to Section 10(c) of the
Act, as amended, I hereby issue the following recommended:
ORDER"'
The Respondent, A & R Window Cleaning & Janitorial
Services, Inc., Cicero, Illinois, its officers, agents, successors,
and assigns shall:
1. Cease and desist from:
(a) Discharging, disciplining, issuing warning notices, or
otherwise discriminating against employees for engaging in
protected concerted activity for mutual aid and protection
with respect to paid holidays, wages, hours, or other terms
and conditions of employment.
" 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.
539
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights which are guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Rescind the warning notices issued to Luz Perez and
Raquel Paez on November 23, 1977, and delete from their
personnel files any reference thereto.
(b) Offer Luz Perez, Raquel Paez, and Guadalupe
Villagrana immediate and full reinstatement to their former
jobs, or, if those 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 their
unlawful discharge, in the manner set forth in the section of
this Decision entitled "The Remedy."
(c) 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 and
useful in analyzing the amount of backpay due and the right
to reinstatement and employment under the terms of this
recommended Order.
(d) Post at its main office in Cicero, Illinois, and at its
office at the Western Electric Hawthorne Works the
attached notice marked "Appendix."3 7 Copies of said notice,
in English and Spanish, and on forms provided by the
Regional Director for Region 13, after being duly signed by
Respondent's authorized representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, where notices to employees are custom-
arily posted. Reasonable steps shall be taken to insure that
" 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."
said notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 13, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge, discipline, issue warning
notices, or otherwise discriminate against any employee
for engaging in protected concerted activity for mutual
aid and protection with respect to paid holidays, wages,
hours, or other terms and conditions of employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights which are guaranteed to them in Section 7
of the Act.
WE WILL rescind the warning notices issued to Luz
Perez and Raquel Paez on November 23, 1977, and
delete from their personnel files any reference thereto.
WE Wll.l. offer Luz Perez, Raquel Paez, and Guada-
lupe Villagrana immediate and full reinstatement to
their former jobs, or, if those 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 suffered by reason
of their unlawful discharge.
A & R WINDOW CLEANING & JANITORIAL
SERVICES, INC.
540