Advance Cleaning Service

National Labor Relations Board - Board Decisions

Mar 13, 1985

274 N.L.R.B. 942 (N.L.R.B. 1985)

942 ADVANCE CLEANING SERVICE
Advance Cleaning Service and Dana Corn . Case 5-
CA- 16102
13 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 29 May 1984 Administrative Law Judge
Claude R. Wolfe issued the attached decision. The
Respondent filed exceptions and a supporting
brief.' The General Counsel filed an answering
brief.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,2 and
conclusions and to adopt the recommended Order
as modified.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Advance Cleaning Service, Baltimore,
Maryland, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 1(a).
"(a) Interfering with, restraining, or coercing
employees by discharging employees for striking or
otherwise engaging in protected concerted activi-
,,ty.
2. Substitute the attached notice for that of the
administrative law judge.
i The Respondent has requested oral argument The request is denied
as the record , exceptions, and bnefsadequately present the issues and the
positions of the parties
2 Pursuant to a Notice To Show Cause , the parties stipulated that
during the 12-month period prior to February 1984, a period which is
representative of its business operations , the Respondent provided j anito-
rial and maintenance services valued in excess of $50,000 for Carriage
Hill Village Apartments, a residential apartment complex located in Ran-
dallstown , Baltimore County, Maryland , during the 4-month period prior
to February 1984, the date of the complaint herein and a period repre-
sentative of its business operations, Carriage Hill Village Apartments de-
rived gross revenues in excess of $500,000 ($ 1-1/2 million on an annual
basis) from the operation of its residential apartment complex and pur-
chased and received at its Randallstown, Baltimore County, Maryland lo-
cation natural gas valued in excess of $140,000 ($420,000 on an annual
basis) from Baltimore Gas and Electric Company, which had received
said natural gas directly from points located outside the State of Mary-
land Based on the above stipulation of facts, the parties agree and we
find that , at all times material to the complaint issued in this case in Feb-
ruary 1984 , the Respondent was and had been an employer engaged in
commerce within the meaning of Sec 2 (2), (6), and (7) of the Act
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the Ntional Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT threaten employees with dis-
charge for engaging in protected concerted activi-
ty.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make Linda Follmer, John Lawrence,
and Mark Storie whole for any loss of earnings
they have suffered, with interest thereon.
ADVANCE CLEANING SERVICE
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge. This
case was tried at Baltimore, Maryland, on April 23, 1984,
pursuant to charges timely filed and a complaint issued
on February 27, 1984. It is alleged that Advance Clean-
ing Service (Respondent) violated Section 8(a)(1) of the
National Labor Relations Act (the Act) by threatening
to discharge and discharging Linda Follmer, John Law-
rence, and Mark Storie because they engaged in concert-
ed activity protected by the Act. Respondent admits dis-
charging the three, but denies the commission of unfair
labor practices.
On the entire record and my observations of the de-
meanor of the witnesses testifying before me, and after
consideration of the posttrial briefs filed by the parties, I
make the following
FINDINGS OF FACT
1. JURISDICTION
The pleadings establish that Respondent meets the
Board monetary standards and statutory requirements for
the assertion of jurisdiction , and is an employer engaged
in commerce within the meaning of Section 2 (2), (6), and
(7) of the Act.
274 NLRB No. 141
ADVANCE CLEANING SERVICE 943
II THE ALLEGED UNFAIR LABOR PRACTICES
A Facts Found'
Respondent has a contract to provide cleaning services
for the Carriage Hill Village Apartments These services
generally involve interior cleaning, but Respondent's em-
ployees are also required to shovel snow when neces-
sary. I credit Edna Delong, Respondent' s business man-
ager, that she had informed the employees in 1983 of
their snow shoveling obligations Employees obviously
knew of their duty, even had Delong not so advised
them, because they had shoveled snow in 1983 and start-
ed shoveling when directed to on January 18, 1984,
without any protest or exclamations of surprise. It is not
at all clear that overtime for shoveling snow, or for any
other work, was mandatory, or, if it was, that employees
had been so informed. The Carriage Hill Village Apart-
ments' snow plan, promulgated by its manager, Edward
Paylor, is the only documentary evidence relating to
snow control, and that plan's mention of hours of work
for snow removal, read in context with surrounding
paragraphs, seems to apply to Carriage Hill employees,
but not unambiguously to Respondent's employees. Re-
spondent's employees are not represented by any labor
organization
The essential facts are really quite simple 2 About 7.30
a,m. on January 18, 1984, Dana Corn, cleaning crew su-
pervisor, and crew members Linda Follmer, Mark
Storie, John Lawrence, and Melissa Burton rode to work
together in a company car. It was not snowing at the
time. When they arrived at the Carriage Hill Village
Apartments at 8 a m . they began their usual routine of
cleaning apartment interiors and hallways While they
were so engaged, there began a heavy snowfall. About 9
a.m., Apartment Manager Paylor told Corn to put her
crew to shoveling snow because it was getting deep. By
9:30 a.m all of Corn's crew was shoveling snow, as was
Corn. Shortly thereafter, probably about 10 a.m. and no
later than 11 a m., Corn called Delong and asked if the
crew could leave early inasmuch as the company vehicle
had no snow tires Delong referred her to Paylor who
told Corn that Respondent's crew would have to work
until 4, 7, or 9, possibly even midnight, if the snow con-
tinued Corn then called and so told Delong, who an-
swered her by a later call that everybody would be off
the job by 7 p.m In midmorning, some time prior to this
latest talk with Delong, Corn had made telephone ar-
rangements for her boyfriend to pick her, and others
riding in the company car, up at 4 p.m. Accordingly,
Corn told Delong that she would not work past 4 p m.,
nor would other employees. This last call seems to have
been some time between I and 2 30 p.m After Corn re-
ported the intentions of employees not to work after 4
pm, Delong directed her to find out which employees
would stay and which would not Corn inquired and was
told by Storie, Follmer, Lawrence, and Burton that they
would not stay Corn then told this to Delong on the
telephone Delong told her that anyone who did not
work after 4 p.m would not be needed the next day.
Corn reported Delong's ultimatum to the other employ-
ees who, all but Burton, stood fast in their intention to
leave at 4 p m. Burton called Delong and expressed a
willingness to stay, but explained that Corn had also
called Burton's boyfriend to come at 4 p.m. and Burton
would have no ride if she did not leave with the crew.
Delong directed Burton to go with the others because
Respondent could furnish her no transportation, and as-
sured her she was not to be fired. Burton returned to
work on January 19, 1984. Richard Russell, the only
member of Corn's crew not yet named in this decision,
elected to and did stay with the relief crew sent out by
Delong about 4 p m. to finish the snow shoveling, which
they did about 5:30 p m Corn, Follmer, Lawrence,
Burton, and Storie left at 4 p.m in the vehicle of Corn's
boyfriend I credit Delong that the only reason given her
by Corn for employees not staying was the fact the boy-
friends were coming to pick them up I do find, howev-
er, that the three did not want to work for various good
reasons including illness and lack of suitable clothing for
outside work in the snow.
In passing , I do not credit Burton's most improbable
claim that she read the three-page snow plan aloud,
word by word, to the assembled employees at Carriage
Hill on January 18, 1984, in an effort to dissuade them
from leaving early Moreover, Burton impressed me as a
witness (now crew supervisor), anxiously and conscious-
ly coloring her testimony, including the attribution of
considerable foul language to fellow employees and
others, to make it more effective At no time during her
testimony did she impress me as a witness of believable
recollection to be relied on. Accordingly, Burton is not
credited unless her testimony is corroborated by others
Respondent admits the discharge of Corn, Follmer,
Lawrence, and Storie on January 18, 1984. The dis-
charge of Corn is not alleged as unlawful because the
General Counsel asserts she was a statutory supervisor at
the time of her discharge There is no evidence Follmer,
Lawrence, or Storie was replaced, and the parties stipu-
lated, and I find, that Follmer, Lawrence, and Storie
were offered unconditional reinstatement to commence
February 27, 1984. Lawrence accepted Follmer and
Storie declined.
' The facts set forth herein are derived from the credited aspects of the
testimony of all witnesses , the exhibits , stipulations of the parties, and
consideration of the logical consistency and inherent probability of the
facts found Although I may not, in the course of this decision , advert to
all the record testimony , it has been weighed and considered , and to the
extent that testimony not mentioned herein might appear to contradict
the findings of fact, that evidence has not been disregarded but has been
rejected as incredible , lacking in probative worth , redundant , or irrele-
vant
2 No witness seemed entirely reliable as to exact times events occurred
Accordingly , I have assigned the times in accord with what seems to be
the most probable sequence
Conclusions
Follmer, Storie, and Lawrence were engaged in a con-
certed refusal to work overtime on January 18, 1984, and
Respondent knew it This had never happened before
and there was no reason to believe on January 18 that
the refusal would be repeated. These employees were
not engaged in a partial or intermittent strike, but were
engaged in a single concerted refusal to work overtime
which is presumed to be a protected strike activity Poly-
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tech Inc, 195 NLRB 695 (1972), Embossing Printers, 268
NLRB 710 at 724 (1984), SME Cement, 267 NLRB 763
fn. 1 (1983).3 This presumption is deemed rebutted
"when and only when the evidence demonstrates that
the stoppage is part of a plan or pattern of intermittent
action which is inconsistent with a genuine strike or gen-
uine performance by employees of the work normally
expected of them by the employer." Polytech at 696. The
employees' individual reasons for stopping work at 4
p.m are irrelevant. See, e.g, Smithfield Packing Co., 258
NLRB 261, 263 (1981), and Respondent has neither prof-
fered nor adduced any evidence that the refusal to work
after 4 p.m. on January 18, 1984, was part of any plan or
pattern of intermittent action The presumption has not
been rebutted, and I find the discharge of Follmer, Law-
rence, and Storie for their refusal to work late violated
Section 8(a)(1) of the Act. I further find that inasmuch as
a threat to discharge for engaging in statutorily protect-
ed activity perforce requires a finding that it reasonably
tends to interfere with, restrain, and coerce employees in
the pursuit of that activity, and by so doing violates Sec-
tion 8(a)(l) of the Act, Delong's threats of discharge for
refusal to work overtime, relayed through Crew Super-
visor Corn, violated the Act.
CONCLUSIONS OF LAW
1. Advance Cleaning Service is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. By discharging Linda Follmer, John Lawrence, and
Mark Storie because they had engaged in protected con-
certed activities, Respondent had interfered with, re-
strained, or coerced employees in the exercise of rights
guaranteed in Section 7 of the Act, and is thereby en-
gaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
3. By threatening to discharge employees because they
engage in protected concerted activities, Respondent has
violated Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
3 To the extent that every individual's thoughts are private and prob-
ably never completely known to another each of his or her decisions is
an individual decision, but when two or more employees, having each
made an individual decision , join together in group action toward a com-
monly desired objective that action is concerted activity regardless of
each individual's reasons for joining in it The Act is concerned with con-
certed activity, not concerted thought Any contention that a failure of
all participants in a group activity to entertain identical reasons for en-
gaging in that activity renders the activity individual rather than concert-
ed is plainly without merit So too is Respondent's argument that here
employees did not act concertedly because they decided individually not
to work overtime. Whatever reasons they might have entertained for not
wanting to work overtime the alleged discriminatees and Corn acted as a
group in refusing to stay past 4 p in This action was concerted because it
was a shared activity, Meyers Industries, 268 NLRB 493 (1984), and pro-
tected because it concerned hours of work Respondent knew the activity
was concerted , knew it concerned a refusal to work overtime, and threat-
ened to discharge and did discharge employees for engaging in this pro-
tected concerted activity
THE REMEDY
In addition to the usual notice posting and cease-and-
desist requirements, my recommended Order will require
Respondent to make Linda Follmer, John Lawrence, and
Mark Storie whole for any loss of earnings they may
have suffered as a result of their unlawful discharge
during the period from January 18, 1984, to February 27,
1984, with interest thereon to be computed in the manner
prescribed in Florida Steel Corp., 231 NLRB 651 (1977).4
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
ORDER
The Respondent, Advance Cleaning Service, Balti-
more, Maryland, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Interfering with, restraining, or coercing employees
by discharging or in any other manner discriminating
against employees for striking or engaging otherwise in
protected concerted activity.
(b) Threatening employees with discharge for engag-
ing in protected concerted activity.
(c) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole Linda Follmer, John Lawrence, and
Mark Storie for any loss of earnings each of them may
have suffered by reason of the unlawful action against
-him in the manner set forth in the section of this decision
entitled "Remedy."
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its premises at Baltimore, Maryland, copies
of the attached notice marked "Appendix."6 Copies of
the notice, on forms provided by the Regional Director
for Region 5, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
° See generally Isis Plumbing Co, 138 NLRB 716 (1962)
5 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall, as provided in Sec 102 48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
8 If 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
' , ADVANCE CLEANING SERVICE 945
that the notices are not altered, defaced, or covered by (d) Notify the Regional Director in writing within 20
any other material. days from the date of this Order what steps the Re-
spondent has taken to comply.