Anderson-Rooney Operating Co.

National Labor Relations Board - Board Decisions

Dec 22, 1961

134 N.L.R.B. 1480 (N.L.R.B. 1961)

1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) File with the Regional Director for the First Region, in writing, within 20
days from the receipt of this Intermediate Report, a report setting forth in detail
the steps which the Respondent has taken to comply herewith.
It is further recommended that unless the Respondent, within 20 days from the
receipt of this Intermediate Report, notifies said Regional Director in writing that
it will comply with the foregoing Recommendations, the National Labor Relations
Board issue an Order requiring it to take the action aforesaid.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Relations
Act, we hereby notify our employees that:
WE WILL NOT discourage membership in Boot and Shoe Workers' Union,
AFL-CIO, or in any other labor organization of our employees, by discharging
any of our employees because of their union or concerted activities, or in any
other manner discriminate in regard to their hire or tenure of-employment or
any term or condition of employment.
WE WILL NOT interrogate or threaten our employees concerning union
affiliation or activities in a manner constituting interference, restraint, or coercion
in violation of Section 8 (a)( I) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or coerce jour
employees in the exercise of the right of self-organization, to form labor organi-
zations, to join or assist Boot and Shoe Workers' Union, AFL-CIO, or any other
labor organization, to bargain collectively through representatives of their own
choosing, or to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any or all
such activities, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as authorized in Section
8(a)(3) of the Act.
WE WILL offer Everett Moore and Esther DeRoche immediate and full
reinstatement to their former or substantially equivalent positions, without
prejudice to any seniority or other rights or privileges previously enjoyed.
WE WILL make whole Everett Moore and Esther DeRoche for any loss of
pay they may have suffered as a result of our discrimination against them.
All our employees are free to become or remain, or to refrain from becoming
or remaining, members in good standing of Boot and, Shoe Workers' Union, AFL-
CIO, or any other labor organization, except to the extent that this right may be
affected by an agreement in conformity with Section 8(a)(3) of the National Labor
Relations Act.
BANGOR SHOE MFG. CO., INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This- notice must remain-posted for 60 days from the date hereof, and must nOt be
altered, defaced, or covered by any other material.
Anderson-Rooney Operating Company and Ninth and Detroit
Building Corporation and Building Service Employees Inter-
national Union, Local 245, AFL-CIO. Case No. 16-CA-1481.
December 22, 1961
DECISION AND ORDER
On August 14, 1961, Trial Examiner Arthur Leff issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
134 NLRB No. 136.
ANDERSON-ROONEY OPERATING COMPANY, ETC. 1481
from and take certain affirmative action, as set forth in the Inter-
mediate Report attached hereto. The Trial Examiner also found
that the Respondents had not engaged in certain other unfair labor
practices as alleged in the complaint and recommended that these
allegations be dismissed. Thereafter, the Respondents, Anderson-
Rooney Operating Company and Ninth and Detroit Building Cor-
poration, and the General Counsel filed exceptions to the Intermediate
Report and supporting briefs.
The Board' has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case,2 and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following modification.
THE REMEDY
The Trial Examiner found, and we agree, that employee Younger
was discriminatorily transferred from his job at the Sunray Building
to the Mid-Continent Building, and further that Younger's subse-
quent discharge from his Mid-Continent Building job was for cause.
As the discharge was not found to be unlawful, the Trial Examiner
did not recommend that the Respondents be ordered to reinstate
Younger.
We agree 3 that the Respondents should not be required to reinstate
Younger to his Mid-Continent job, but in order adequately to remedy
the discriminatory transfer, we find it necessary to direct Younger's
reinstatement to his former Sunray job. We shall also direct that the
Respondents make Younger whole for any loss of earnings he may
'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [ Members Rodgers, Fanning,
and Brown].
2 The Respondents have requested oral argument . The request is denied because the
record, including the exceptions and briefs , adequately presents the issues and positions
of the parties.
s Member Brown would find Respondents ' discharge of Younger violative of the Act in
view of Respondents' discriminatory transfer of Younger , a competent worker and the
known union leader, to a new location to perform more onerous duties, its precipitous
discharge of Younger only 6 calendar days later ( and after only 3 days ' work by Younger
at the new location ) ; its unexplained failure to apply its usual policy of giving prior
warning ; its application at the time of discharge of its "insubordination" rule to a situa-
tion not normally encompassed within the rule ; its assertion at the hearing for the first
time that the discharge was for incompetency ; and, its advancing at the hearing of
other grounds for discharge proved to have no bearing upon its decision . In Member
Brown's opinion at least one of the motivating factors for the discharge action was Re-
spondents ' desire to rid itself entirely of a union leader. Moreover , in Member Brown's
view, the "insubordination" by Younger directly arose out of his continuing protest over
Respondents ' just effectuated discriminatory transfer and its continuing act of illegal
discrimination against him and the discharge was the logical culmination thereof See
Minnesota Manufacturing Company, Inc., 132 NLRB 1398 ( employed Brand ). In view of
the foregoing , Member Brown would find that Younger's discharge at Mid -Continent con-
stituted a violation of 8(a) (3) and ( 1) of the Act , and he would order the conventional
reinstatement and backpay remedy. Lacking a majority for this position , Member Browm
accordingly joins in the Order hereinafter set forth.
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suffer by reason of Respondents' refusal to so reinstate him, liability
for such loss to commence 5 days after the date of Respondents' re-
ceipt of this -Decision and Order. Backpay shall be computed in
accordance with F. W. Woolworth Company, 90 NLRB 289.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Andersool-
Rooney Operating Company and Ninth and Detroit Building Cor-
poration, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Prohibiting, by rule or otherwise, union activities and/or the
solicitation of union membership on company premises during em-
ployees' nonworking time, including lunch and rest periods, except
for such reasonable regulations or controls as may be imposed thereon,
such regulations and controls, if any, are not to be of such a character,
however, as to impede, impair, or interfere with lawful union or con-
certed activities protected by the Act.
(b) Discouraging membership in Building Service Employees In-
ternational Union, Local 245, AFL-CIO, or in any other labor or-
ganization, by in any manner discriminating against employees in
regard to their hire or tenure of employment or any term or con-
dition of employment.
(c) In any like or related manner interfering with, restraining, or
coercing their employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist Building
Service Employees International Union, Local 245, AFL-CIO, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection, or
to refrain from any and all such activities, except to the extent that
such right may be affected by an agreement requiring membership in
a' labor organization as a condition of employment, as authorized in
Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Rescind immediately rule 4 of the Anderson-Rooney Operating
Company rules, or, in lieu thereof, revise such rule in such a manner
as to make it clear on the face thereof that the said rule will not be
interpreted, applied, or enforced to prohibit, impede, impair, or inter-
fere with lawful union activities or the solicitation of union member-
ship on company premises during employes' nonworking time, includ-
ing lunch and rest periods, and notify their employees accordingly.
ANDERSON-ROONEY OPERATING COMPANY, ETC. 1483
(b) Post, in the case of Respondent Ninth and Detroit Building
Corporation, at all buildings in Tulsa, Oklahoma, owned by said Re-
spondent, and, in the case of Respondent Anderson-Rooney Operating
'Company, at all buildings in Tulsa, Oklahoma, managed by said Re-
spondent, copies of the notice attached hereto marked "Appendix." 4
At the buildings managed by Respondent Anderson-Rooney Oper-
ating Company, other than those owned by Respondent Ninth and
Detroit Building Corporation, the notice shall omit the name of Ninth
and Detroit Building Corporation and shall be signed only by the
authorized representatives of Respondent Anderson-Rooney Oper-
ating Company. Copies of said notice, to be furnished by the Re-
gional Director for the Sixteenth Region, shall, after being signed by
the authorized representative of each Respondent where required, be
posted by the Respondents immediately upon receipt thereof, and be
maintained by them for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondents to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Offer Herbert Younger immediate and full reinstatement to
his former or substantially equivalent position at the Sunray Build-
ing, without prejudice to his seniority or other rights and privileges,
and make him whole in the manner set forth in "The Remedy" sec-
tion above.
(d) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to compute the amount of backpay due
under the terms of this Order.
(e) Notify the Regional Director for the Sixteenth Region, in writ-
ing, within 10 days from the date of this Order, what steps have been
taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed, insofar as it alleges that the Respondents discharged Herbert
Younger in violation of Section 8 (a) (3) and (1) of the Act.
I In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, as amended, we hereby notify our employees that :
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT interpret, apply, or enforce rule 4 of
the Anderson-Rooney Operating Company rules, or any other
rule, so as to prohibit, impede, impair, or interfere with the right
of our employees, protected by the Act to engage in lawful union
activities and/or the solicitation of union membership on com-
pany premises during nonworking time, including lunch and rest
periods, and shall review or amend our rules so as to make this
clear.
WE WILL NOT discourage membership in Building Service Em-
ployees International Union, Local 245, AFL-CIO, or in any
other labor organization, by discriminating in regard to the hire
or tenure of employment or terms or conditions of employment
of any of our employees.
WE WILL offer Herbert Younger immediate and full reinstate-
ment to his former or substantially equivalent position at the
Sunray Building, without prejudice to his seniority or other
rights and privileges, and make him whole for any loss of pay
he may suffer by reason of our refusal to so reinstate him.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their right to
self-organization, to form labor organizations, to join Building
Service Employees International Union, Local 245, AFL-CIO,
or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any and all such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment, as authorized in Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure
Act of 1959.
ANDERSON-ROONEY OPERATING COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NINTH AND DETROIT BUILDING CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge , as last amended on June 21, 1961, filed by Building Service Employ-
ees International Union, Local 245, AFL-CIO, herein called the Union , against
ANDERSON-ROONEY OPERATING COMPANY, ETC. 1485
Anderson-Rooney Operating Company and Ninth and Detroit Building Corporation,
herein called the Respondents, the General Counsel issued a complaint, thereafter
at the hearing amended in certain respects, alleging that the Respondents had engaged
in unfair labor practices affecting commerce within the meaning of Section 8(a)( I)
and (3) and Section 2(6) and (7) of the National Labor Relations Act, 61 Stat. 136,
herein called the Act. The Respondents in their answer denied the commission of
the alleged unfair labor practices and denied also the complaint's allegation that
they are engaged in commerce within the meaning of the Act. A hearing at which
all parties were represented was held before Arthur Leff, the duly designated Trial
Examiner, at Tulsa, Oklahoma, on June 21, 22, and 23, 1961. At the close of the
hearing, the'General Counsel and the Respondents argued the issues orally on the
record. At that time, also, ruling was reserved on a motion by the Respondents to
dismiss the complaint for insufficiency of proof. That motion is now disposed of in
accordance with the findings of fact and conclusions of law made below. The Gen-
eral Counsel and the Respondents filed briefs on July 17, 1961.1
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS of FACT
1. THE BUSINESS OF THE RESPONDENTS AND THEIR RELATIONSHIP TO EACH OTHER
AND TO EMPLOYEES INVOLVED IN THIS PROCEEDING
The Respondents are Oklahoma corporations having their places of business at
Tulsa, Oklahoma. The Respondent, Anderson-Rooney Operating Company, is
engaged at Tulsa in the business of building management. Among other things, it
provides building maintenance and cleaning services for various office buildings with
the owners of which it has management contracts. At some of the buildings it so
services, such as, for example, the Skelly Oil Building and the Pan-American Build-
ings, Anderson-Rooney carries on its own payroll the maintenance employees who
service such buildings. At others, the rank-and-file maintenance employees and the
lower echelons of supervision are carried on the payroll of the building owner,
although they perform their services under the general direction and supervision
of Anderson-Rooney officials. The latter is true of the Sunray Building and the
Mid-Continent Building, both of which are owned by the Respondent, Ninth and
Detroit Building Corporation. The principals of Anderson-Rooney have a substantial
ownership interest in Ninth and Detroit, and both corporations share a common office
and have at least some common corporate officers, among them the president. Ninth
and Detroit has no management setup of its own. The maintenance and cleaning
employees on its payroll are under the management and control of Anderson-Rooney
and regard themselves as employees of that company, even though they are paid by
check of Ninth and Detroit. Ultimate authority over their hire and tenure and terms
and conditions of employment is lodged in and is exercised by the Anderson-Rooney.
Ninth and Detroit employees are at times transferred to other buildings managed by
Anderson-Rooney, just as transfers in the opposite direction are at times effected.
Anderson-Rooney applies a uniform labor relations policy to all employees in build-
ings it manages, regardless of whether the employees are carried on in its own pay-
roll or on that of Ninth and Detroit. Both employees of Ninth and Detroit and
those directly employed by Anderson-Rooney are governed by an identical set of
posted company rules, styled Anderson-Rooney Operating Company rules-the
validity of some of which is at issue in this, proceeding. On the basis of the facts
set out above, it is quite clear, and it is found, that the Respondent, Anderson-Rooney
Operating Company, is not only the employer of the building maintenance and clean-
ing employees on its own payroll, but, along with Ninth and Detroit Building Corpora-
tion, is also a joint employer of the similarly classified employees on the latter's
payroll.
As announced by the Board in Mistletoe Operating Company, 122 NLRB 1534,
1536:
The Board has determined that it will effectuate the policies of the Act to assert
jurisdiction over all enterprises engaged in the management and operation
'(whether as owners, lessors, or contract managers) of office buildings, if the
gross revenue derived from such buildings amounts to $100,000, of which
$25,000 must be derived from organizations whose operations meet any of
the 'Board's jurisdictional standards, exclusive of the indirect outflow and indirect
inflow standards established in the Siemons Mailing case [122 NLRB 81].
I The Respondents also filed a motion to correct the transcript of testimony in a stated
respect . That motion is now granted.
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It appears that the Respondents' operating revenues during the 12-month period
preceding the issuance of the complaint, as well as the sources from which such
revenues were derived,2 meet the Board's Mistletoe dollar volume standards for
the assertion of jurisdiction. So much the Respondents do not dispute. The Respond-
ents contend, however, that satisfaction of the Mistletoe formula is alone not enough
to shown "legal jurisdiction." It argues that the General Counsel must in addition
affirmatively establish that the Respondents' activities involved in this case have a
tendency to affect or burden interstate commerce. A similar contention in effect
was considered and rejected by the Board in the Mistletoe case. The Respondents'
jurisdictional contention is overruled. It is found that the Respondents are engaged
in a business affecting commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Building Service Employees International Union , Local 245, AFL-CIO, herein
called the Union , is a labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction; sequence of events
This case is centrally concerned with the alleged discriminatory transfer and sub-
sequent discharge of Herbert Younger. Also in issue is the validity under the Act
of certain of Anderson-Rooney's working rules relating to employees' activities on
company premises.
Younger was hired by a representative of Anderson-Rooney on July 16, 1956, as a
maintenance cleaner. He was assigned to the Sunray Building where he was carried
on the payroll of Ninth and Detroit Building Corporation, the owner of that building.
Sometime later-the record does not disclose precisely when-Younger was pro-
moted to the position of a working leadman at the same building. His job as a lead-
man was not that of a supervisor within the meaning of the Act, although it involved
to some extent the direction of others in the performance of their work. In April
1961, Anderson-Rooney effected a reorganization of its supervisory structure. As
part of a resulting chain reaction, it transferred to the leadman's job at the Sunray
Building an employee theretofore on the Anderson-Rooney payroll who had been a
supervisor at the Pan-American Building. At the same time, it demoted Younger
from his leadman'position, to the position of a rank-and-file maintenance cleaner.
The Respondents concede that Younger had been until the time of his demotion an
entirely satisfactory employee as far as the performance of his physical duties was
concerned.
Younger's demotion became effective on April 17, 1961. He was notified of his
demotion a week earlier by Paul Young, the assistant building superintendent for
the Sunray and Mid-Continent Buildings 3 At that time, Young offered to transfer
Younger to the Skelly Oil Building, another building managed by Anderson-Rooney.
Young explained that he was offering Younger a transfer because he thought Younger
might prefer working in a building other than the one in which he had been reduced
in status. Younger declined the transfer, however, declaring he would be happier
remaining where he was Young acceded to Younger's desire.
Prior to Younger's demotion, the Union was not in the picture. The General
Counsel makes no claim that Younger's demotion was motivated by other than bona
fide business considerations.
Younger was admittedly upset by his demotion, and angry. On the night he was
notified of his demotion, he spoke to various employees about the desirability of
bringing in a union to protect employees job security. The next day, Younger called
upon Solmo Walters, the Union's business representative. Walters agreed to in-
stitute a union organizational campaign, and told Younger to talk up the Union
among employees every chance he got. Within the next several days, Walters mailed
to the AndersonyRooney building service employees (including those on the payroll
of Ninth and Detroit at the Sunray and Mid-Continent Buildings) a leaflet stressing
2 For example Sunray Oil Corp., and Mid-Continent Petroleum Corp, the tenants of the
buildings bearing their names.
R As noted above, the two buildings mentioned are owned by Ninth and Detroit Building
Corp Young is on the payroll of that corporation, but performs his duties under the
supervision of H. E. Kenslow, Anderson-Rooney's vice president and general manager of_
building maintenance and operations.
ANDERSON-ROONEY OPERATING COMPANY, ETC . 1487
the need of a union-supported seniority system to eliminate personal favoritism
and protect employees in their job security. Walters also sent the employees union
designation cards, soliciting their signatures. About the same time (April 14)
Walters wrote Vice President Kenslow of Anderson-Rooney, notifying him of the
start of the Union's organization campaign and directing his attention to the Act's
provisions safeguarding employees in their right to self-organization.
Shortly atter the receipt of the Union's letter, Kenslow called meetings of the
building service employees at the various buildings managed by Anderson-Rooney
and addressed the assembled employees. He also arranged to have supervisors at
the buildings speak to employees in groups and individually on the subject of the
Union's organizational campaign. In their talks, the Respondents' management and
supervisory employees assured,the employees that they had ample job security with
the Company, informed them in effect that the Union could offer them nothing more
along those lines than they already had, and cautioned them not to pay heed to any-
thing "agitators" might try to tell them to the contrary. The Respondents' repre-
sentatives also made it quite clear that the Company was opposed to union organiza-
tion and would prefer that the employees refrain from joining. At the same time,
however, they were'careful to advise the employees that the choice was one for the
employees to make. So far as appears, they refrained from making any statements
that might be viewed as coercive; the General Counsel dose not claim otherwise.
At the Sunray Building, Paul Young, accompanied by William Claxton, made the
rounds to speak to the building service employees individually about the Union.
When they came to Younger, Younger told them that he was supporting the Union.
The Respondents have never had an express ruling prohibiting union solicitation or
activities, as such, on company time or premises. Nor have they ever had any
company rule forbidding employees to talk to each other while at work. It is quite
common for employees to converse while at work on a variety of subjects unrelated
to their jobs, even though such conversations often result in brief interruptions of
work activity. The practice is an accepted one, is known to management, and has,
never been considered in itself cause for disciplinary action.
Younger, after he contacted the Union, spoke to various employees on the subject
of union organization, both during working hours and during employees' free
time. Younger testified that he never interrupted his own work activities to do so
nor the work activities of others. The Respondent at the hearing offered no
specific evidence to dispute Younger's testimony to that effect, except through one
witness. Eunice Wiens, a cleaning woman, testified that on two occasions, once-
when she was in the utility room getting ready to start her cleaning and once after-
she had already started cleaning, Younger approached her and spoke to her for-
several minutes about the Union, leading on each occasion to a brief interruption,
in Wiens' work activities. It appears from Wiens' further testimony, however, that
there was nothing unusual about the work interruption on either occasion, except for-
the subject matter of the conversation. Employees frequently paused in their work
to talk to each other for 5 minutes and sometimes more, testified Wiens, "I think we
all do that."
The fact that Younger was engaged in promoting the Union soon came to the-
notice of management. It was first reported to Young 2 or 3 days after Younger's.
demotion became effective, when employee Lois Kelly during a general conversa-
tion with Young about the Union mentioned peripherally that Younger had spoken
to her about the Union. As appears from Kelly's testimony, she on that occasion
had gone up to Younger while he was working, and while she was away from her-
station of work, and had engaged him in a conversation . While talking to her,
Younger had asked if she had received a letter from the Union and had signed the-
designation card that had been sent her. Kelly, as further appears from her testi-
mony, did not complain to Young that Younger had threatened her in any way; nor-
did she complain that Younger had otherwise said or done anything to disturb her.
Kelly also mentioned to Young that several other employees had told her that
Younger had spoken to them as well on, the subject of the Union. After his con-
versation with Kelly, Young, as his testimony discloses, went to the'employees whose
names Kelly had given him and asked them if they cared to make statements about
Younger's union activities. The employees to whom Young spoke confirmed that-
Younger had spoken to them about the Union • during working hours. But, as -
further appears from Young's own testimony, none of them told him that Younger-
had caused them to stop work or had threatened or otherwise interfered with them
in their work performance in any way. Young subsequently requested Kelly to go
to Kenslow 's office to tell him what she knew of Younger 's union activities . Kens- . .
low questioned her as to whether Younger , had threatened , her-she told him-
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Younger had not. Kenslow did not inquire whether Younger had distracted her
from her work.4
Prior to April 20, 1961, the Respondents knew of no employee, other than
Younger, who was actively engaged in promoting the Union's organizational efforts.
When Younger reported for work on the evening of April 20,5 Claxton told him
that he hated to lose him, but that he was being transferred to the Mid-Continent
Building. Claxton was unable, however, to give Younger any explanation for the
transfer. He suggested that Younger wait for Young and obtain it from him.
When, later, Younger asked Young why he was being transferred, Young told
him, "Well, Herb, you know you have been talking union off-the-job and on-the-
job." The precise formal reason assigned for the transfer, however, was that
Younger had violated rules 4 and 9 of Anderson-Rooney's company rules. These
are 2 of some 21 posted company rules listing employee offenses that may be con-
sidered sufficient grounds for disciplinary action. The specific rules adverted to
read as follows:
4. Threatening, intimidating, coercing or otherwise interfering with other
employees on company premises at any time including lunch and rest periods.
9. Distracting attention of others from work.
Younger objected to the transfer, expressing resentment at the action taken. He
declared at first he would refuse to report to the Mid-Continent Building. But later
he changed his mind and reported as directed.
At The Mid-Continent Building, Younger replaced one, James Bowen, who in
turn wasassigned to the Sunray Building to take Younger's place. The complaint
alleges, and the Respondents deny, that the job to which Younger was transferred
"called for additional and more disagreeable duties." Both jobs involved restroom
work, but the specific job duties were not the same . At Sunray, Younger's job
duties had been confined to mopping up the restroom floors. At Mid-Continent,
he was required, in addition, to sweep the floors and clean the sinks, mirrors,
cuspidors, stools, and urinals. The comparison based solely on the extent and
character of the job duties is a misleading one, however. The Sunray Building is
much larger than Mid-Continent. It has twice as many restrooms, each with an
area double that of Mid-Continent's and having two times as many fixtures. Be-
cause of the large area to be covered, zestroom cleaning work at the Sunray Building
has always been specialized, whereas at •Mid-Continent the practice has been to
have one man assigned to do all the cleaning work in all the restrooms. Bowen
testified that the total work content of the job he had done at Mid-Continent and
the one in which he replaced Younger at Sunray was "about the same." With that,
Younger did not disagree. He stated that the restroom work at Mid-Continent was
harder and more disagreeable to him only because he "wasn't used to doing that
kind of work at that time." It appears that Younger during his first year of employ-
ment of the Sunray Building had cleaned urinals and stools, but had not done so
since. Younger testified, however, that he did not regard that type of work as
objectionable in itself.
When Younger first reported for work at the Mid-Continent Building on Thurs-
day evening, April 20, he made it a special point almost immediately on his arrival
to announce to John Youngblood, the cleaning superintendent at that building, that
he was for the Union. Youngblood informed Younger that this was of no concern
to him as long as Younger did his work, but that he did not want Younger to talk
union while on the job. Youngblood reported that incident to his superior, Paul
Young, when he next saw Young the following Monday. That same Monday, Earl
Kenslow, Anderson-Rooney's general manager, received a letter from Younger,
mailed the previous Friday. In his letter, Younger declared in substance that he
intended to continue his organizing efforts in behalf of the Union as an unpaid
"in-plant organizer," but stated'that he would confine his activities "to times during
which [he] or workers with whom [he] may be talking are not being paid."
Younger's letter then went on to caution the Respondents to respect his employee
rights as guaranteed by the Act. The Respondents received in the same mail an
* Ken slow testified that a few days after Younger's demotion he learned that employees
were complaining that Younger was "disturbing" them by "agitating in favor of the
Union" and by "executing pressure to get them to agree to his thinking." Kenslow
Identified Young as the source of his information Young's testimony, however, does not
support Kenslow 's assertion that there were actual employee complaints of the character
mentioned. Kenslow's contrary testimony is not credited.
5Younger 's working hours were - between 4 :45 p.m. and 1 am.
ANDERSON-ROONEY OPERATING COMPANY, ETC. 1489
identical letter signed by George Dennison , who then was-and still is-employed
as a cleaning maintenance employee at the Sunray Building.
Younger was discharged within a week after his transfer to the Mid-Continent
Building. Actually, Younger worked only 3 days at that building, performing his
restroom duties on only two of them.
On the first day he reported-Thursday, April 20-Youngblood told Younger to
report the leadman to be shown his duties. The leadman took Younger around to
the restrooms to show him where they were, but otherwise gave him no detailed
instructions on how the job was to be done. Except for buffing out one room,
Younger did no actual work that day. The reason he was not put to work that day
may have been that he did not report until 7 p.m. As indicated above, Younger, with
the permission of Claxton, had remained at the Sunray Building beyond the usual
starting time for the purpose of ascertaining from Young the precise reason for
his transfer.
On Friday, April 21, Younger notified the Company about 2 p.m. that he was
ill, and did not report for work at all that day. However, the veracity of Younger's
testimony , that his absence from work that day was necessitated by illness, is
seriously to be doubted. The record shows that Younger, accompanied by Dennison,
called that Friday at the Union's office where he signed the letter adverted to above
with reference to his status as an "in-plant organizer." Dennison appeared as a
witness for the Respondent. His testimony discloses that Younger and he called
at the Union's office late that afternoon; that they left the union office after 5 p.m.;
that they then went to a tavern for some beers; and that Younger did not get home
until about 5: 30 p.m ., about an hour after his scheduled reporting time for work.
if Younger was in fact ill that day, Dennison was unaware of it .6 The Respondents
asserted at the hearing that their management officials-Young and Kenslow-be-
came aware on Monday that Younger had been out drinking beer with Dennison on
Friday when he should have been working. It is quite clear, of course, that the
Respondents might readily have inferred from the letters, dated April 21, which
they received from Younger and Dennison, that both employees had been at the
union hall that day. I have some doubt, however, whether they were actually aware
prior to Younger's discharge that Younger had been out drinking beer with Den-
nison . No mention of this was made to Younger by the Respondents' management
prior to Younger's discharge, and the testimony which the Respondents adduced at
the hearing to establish their asserted earlier knowledge is replete with contradictions.?
Saturday and Sunday, April 22, 23, were nonworking days for. Younger. On
Monday and Tuesday, April 24, 25, Younger reported for work at the Mid-
Continent Building. On both these days he was assigned to and performed rest-
room duties of the kind that had formerly been performed by Bowen at that building.
The Respondent contends that Younger did not properly perform his duties on
either of these days and that the quality of his work was poor. The evidence on
this phase of the case will be considered at length in a subsequent section of this
report.
O Younger , when he first testified, did 'not state the nature of his illness However.
when recalled as a rebuttal witness after Dennison testified, Younger stated that he had
had a cardiac history, that his arms and shoulders were aching that day, and that he had
been advised by his physician not to work when he suffered from such aches As a re-
buttal witness , Younger admitted that he had gone out with Dennison for some beers after
leaving the union hall and that he had not arrived at his home until 5.30 p in. However,
in his original testimony, Younger had inconsistently stated that he had gone home about
1:30 p.m., before reporting in sick, and had not been with Dennison after leaving the
union hall.
4 Dennison denied that he had told anyone from management where he had been with
Younger that Friday. But Claxton, the Sunray cleaning supervisor, testified that Denni-
son, who did not work that evening, nevertheless came to the building on a personal
errand, and while there mentioned to Claxton that Younger and he had been to the union
hall and had then gone out for beers. Claxton testified, however, that he did not report
to Young what Dennison had told him. Young, on the other hand, testified, inconsistently,
that Claxton did report the incident to him on Monday. Kenslow, who was responsible
for the final discharge decision as to Younger, gave self-contradictory testimony on this
point. At first he said he knew nothing at the time of the discharge about Younger's
whereabouts on April 21. Later, after prodding from counsel , Kenslow altered his prior
testimony to say that Young had informed him on Monday , April 24, that Younger had
been out drinking beer when he should have been working.
630849-62-vol . 134-95
1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Wednesday, April 26, Younger again called in sick, making his call about
2 p.m. According to Younger, his ailments that day were the same as on April 21.
The decision to discharge Younger was reached at a conference early that after-
noon attended by Kenslow, Young, and Youngblood. The testimony of the Re-
spondents ' witnesses is contradictory as to whether those participating in the dis-
charge decision were aware when the discharge decision was made that Younger
would not report for work that evening. Young, when he first appeared as a wit-
ness , testified that the discharge was made before Younger's call. However, at a
later point of the hearing, Young, recalled as a witness , testified , oppositely, that
before the decision was reached he already had knowledge that Younger had called
Kenslow's secretary and told her he would not report for work that day. Kenslow's
testimony on the same point was equally variable. At first, he testified that his
11 recollection" was that he "didn 't have that information at the time we reached the
decision to terminate [Younger]." Later, however, he testified that his secretary
had relayed to him before the discharge decision was made the information that
Younger would be absent that evening, and that this was a factor contributing to his
decision.
On Thursday morning, April 27, 1961, Young telephoned Younger at his home
to notify him of his discharge. Young told Younger, according to the latter's un-
contradicted testimony, that he and Kenslow had decided to terminate Younger be-
cause Younger had had "some disagreement" with Youngblood. Younger disputed
that that was the true reason, charging that he was really being discharged because
of his union activities. But Young denied that accusation, stating, "No, Herb, I
will admit that you were transferred because of union activities, but this is between
Johnny Youngblood and yourself." The termination papers of Younger, in evidence,
state that he was terminated for "violation of Rule 14" of the Anderson-Rooney
Company rules. That rule reads as follows:
14. Insubordination .-Refusal to obey orders of supervision or refusal to
perform job assignments.
B. The issues
The issues in this case , as joined by the pleadings and as litigated at the hearing,
are as follows:
1. Whether the Respondents' transfer of Younger from the Sunray Building to
the Mid-Continent Building on April 20 , 1961 , was violative of Section 8(a)(1)
and (3) of the Act.
2. Whether, in light of the effect given by the Respondents in their transfer of
Younger to rules 4 and 9 of the Anderson-Rooney Company rules, the two stated
rules must now be viewed in their full scope as invalidly infringing upon employees'
rights guaranteed by Section 7 of the Act, and hence as independently violative of
Section 8(a) (1).
3. Whether the Respondents discharged Younger on April 27, 1961, because of
his union activities in violation of Section 8(a) (1) and ( 3), as the General Counsel
claims, or for cause , as the Respondents insist.
Each of the foregoing issues will be considered and resolved separately below
in the order stated, although all of them-particularly the first two-involve in
large measure interrelated and interdependent considerations crossing the lines of
division.
C. Consideration of the Respondent's defenses and concluding findings with
regard to Younger 's alleged discriminatory transfer
Although now disputed by the Respondents, there can be little doubt that the
Respondents ' decision to transfer Younger from the Sunray Building to the Mid-
Continent Building was directly related to and an outgrowth of Younger's union
activities at the Sunray Building. Indeed , Younger's testimony is undisputed that
he was in effect so told by Young on the date of his transfer, and that the same
reason was reiterated to him by Young as the underlying motive for the transfer
(though not for his discharge) when he was notified of his discharge a week later.
The Respondents ' present position is that they were led to transfer Younger, not
because of his union activities on working time as such , but principally because
Younger in the pursuit of such activities had engaged in independent conduct viola-
tive of rules 4 and 9 of the Anderson -Rooney Company rules. At the hearing,
Kenslow and Young, who together made the transfer decision , also gave two other
reasons-Younger's poor "attitude ," and an asserted falling off in the quality of his
work performance at the Sunray Building after his demotion from the leadman
ANDERSON-ROONEY OPERATING COMPANY, ETC. 1491
position. Young in his testimony referred to these added reasons as "secondarily"
entering into the transfer decision.
The two added reasons require little discussion. I am satisfied that they are
simply makeweight. The Respondents' witnesses did not elaborate at all on what
they meant by Younger's attitude, and as for the asserted deficiencies in the "quality"
of Younger's work, they gave little more than conclusory testimony. Claxton,
Younger's supervisor at the Sunray Building, although stating that Younger's work
was not as good after his reclassification as before, admitted that he did not at any
time between Younger's demotion and his transfer reprimand Younger about the
quality of his work. And Young, who advised Younger as to the reasons for his
transfer, admitted he did not tell Younger that the quality of Younger's work had
anything to do with his transfer. If in fact Claxton had been dissatisfied with
Younger's work and this had contributed significantly to the transfer decision, I
think that Claxton and Young would not have maintained silence on the subject.
The primary ground on which the Respondents now defend the transfer action-
Younger's asserted violation of rules 4 and 9-requires more extended consideration.
It will be recalled that rule 4 makes it a disciplinary offense for an employee to
threaten, intimidate, coerce, or otherwise interfere with other employees on company
premises. Rule 9 makes it an offense to distract the attention of others from work.
The Respondents do not dispute, on the contrary they insist, that the rules were
neither designed nor intended as no-solicitation rules. The record shows without
dispute that the Respondents freely permit employee solicitations of various kinds,
such as for flower funds and football pools, during working time on company prem-
ises The Respondents in their brief concede that neither of the two rules has ever
been explained to employees as being applicable to union activity as such; further,
that prior to Younger's transfer, they had never been applied to a situation involving
union activities.
Kenslow testified that he decided to transfer Younger for violation of rules 4
and 9, largely as a disciplinary measure. He did so, he testified, on the recommenda-
tion of Young and on the basis of reports from Young of employee complaints that
Younger was disturbing them by agitating in favor of the Union during working
hours, "executing pressure on them to agree with his thinking," and distracting and'
interfering with them to the extent where they had to quit work. Kenslow's testi-
mony as to the reported complaints has been discredited, however. As shown above,.
Young's testimony discloses that he received a "complaint" from only one employee,,
Kelly, and that she had done no more than mention that Younger was engaging in
union activities while on the job. Kelly's own testimony reveals that she was not "dis-
turbed" by anything Younger said to her. The only other employees to whom
Young spoke were those whom Young himself approached to question them about,
what they knew of Younger's union activities. Young's own testimony makes it
clear that none of the employees to whom he spoke told him that they had been
threatened, intimidated, or coerced by Younger. Nor did they tell him that Younger
had otherwise interfered with or distracted them to the point where they had to stop-
work The employees simply confirmed that Younger had spoken to them about
the Union while at work.
Under the law, absent a valid prohibitary rule,8 union activities do not lose the
protection of the Act solely because they occur on working time. New Orleans
Furniture Manufacturing Company, 129 NLRB 244; Cook Paint and Varnish Com-
pany, 129 NLRB 427. Here, the Respondents had no express rule prohibiting such
union activities. Nor was Younger ever told prior to his transfer that union solicita-
tion, without more, was considered to fall within the application of rules 4 or 9, or
was otherwise forbidden. Even if the rules were designed to cover union activities
as such-and the Respondents now in their brief somewhat inconsistently with testi-
mony of their own witnesses disclaim such a design-the language used in the rules.
was too vague fairly to put Younger on notice to that effect. It is true that the
absence of a valid no-solicitation rule does not privilege an employee in the course
of his union activities to violate other plant rules. Thus, for example, if the Re-
spondents' employees had been given to understand that they were not supposed
to talk during working time about nonwork subjects, it would have provided no
excuse for Younger that the subject of his conversations concerned the Union.
Underwood Machinery Company, 74 NLRB 641, 648. But such clearly is not
the case here. As has been seen, the Respondents had no specific rule against talk-
ing; rules 4 and 9 had never been so construed; and in practice the Respondents did
not regard it a disciplinary offense for employees to engage in conversations while
at work, though this might result in some interruption of their work activity. The
8 For the standards governing the assessment of validity, see Walton Manufacturingi
Company, 126 NLRB 697.
1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents say in their brief that union talk is different from other talk because it
is more likely to be disruptive of work activity. This may provide legal justification
for forbidding by plant rule the one while allowing the other. But in the absence
of a specific plant rule or at least a warning putting employees on notice to that
effect, it is not proper for an employer to treat an employee differently under other-
wise like circumstances simply because the subject of his conversation happens to
concern union organization rather than some other.
On all the evidence, I am persuaded that Younger's conversations with fellow
employees would not, but for their union content, have been regarded by the Re-
spondents as so offending rules 4 and 9 as to warrant disciplinary measures. I am
further satisfied that the Respondents disparately invoked rules 4 and 9 in Younger's
case, not out of a desire to preserve plant discipline, but by way of reprisal for
Younger's union organizational efforts which they feared and to which they were
opposed. In short, I find that the Respondents simply seized upon the asserted
violations of rules 4 and 9 as a pretext for action in truth inspired by unlawful anti-
union considerations.
The Respondents contend that no matter what their motive for the transfer might
have been, no finding of unlawful discrimination may be made here, because (1)
Younger's acceptance of the transfer constituted an admission by him that it was
proper, and (2) the work assigned to Younger at the Mid-Continent Building was
in any event substantially the same as the work he had performed at the Sunray
Building. There is obviously no merit to the Respondents' first point. The record
shows that Younger accepted the transfer over objection. Even had he not, his
election to accede to the transfer rather than quit may not properly be viewed either
as constituting a waiver of a statutory violation or as supporting an inference favor-
able to the Respondents on the issue of discrimination. Majestic Metal Specialties,
Inc., 92 NLRB 1854, 1866, footnote 21. As for .the Respondents' second point, the
record shows, to be sure, that the pay, the hours of work, the accessability, the gen-
eral character of the work, and the total work effort called for were no different in
the two jobs; further, that Younger did not regard his specific job duties at Mid-
Continent as offensive or objectionable, even though in certain respects they were
different from those he had been called upon to perform at the Sunray Building.
In that sense, the complaint's allegation that the new job "called for additional and
more disagreeable duties" cannot be said to be supported. But at the same time it
cannot be ignored that Younger wanted to remain at the Sunray Building, had
earlier expressed himself to that effect, and the Respondents prior to his union
activities had acquiesced in his desire to do so. No issue of constructive discharge is
here involved. The degree, if any, to which Younger's new job may have been more
onerous than his old one is thus not crucial. There can be no doubt that Younger's
transfer to his new job brought about some changes in his conditions of employ-
ment, both as to the location of the job and as to the specific job duties involved,
and that but for the unlawfully motivated transfer such changes would not have
occurred. Moreover, by transferring Younger from the larger Sunray Building,
where he was known, to the smaller Sunray Building, where he was not known, the
Respondents in effect restricted Younger's opportunities for effective organization.
In these circumstances, a finding of unlawful discrimination concerning Younger's
conditions of employment, within the meaning of Section 8(a) (3 ), is adequately justi-
fied. In any event, apart from any question of discrimination, I think it quite clear
that the Respondents' action in imposing the unwanted transfer upon Younger as a
disciplinary penalty for engaging in protected union activities constituted an infringe-
ment of Younger's statutory rights guaranteed by Section 7, and, as such, was inde-
pendently violative of Section 8(a) (1) of the Act.
It is concluded and found that by transferring Younger from the Sunray Building
to the Mid-Continent Building, the Respondents violated Section 8(a)(1) and (3)
of the Act.
D. As to the validity of the rules at issue
As stated above, rules 4 and 9 of the Anderson-Rooney Company rules, as written,
do not purport to prohibit union solicitation or activity as such, and prior to the
transfer of Younger they had never been so interpreted or applied. On their face,
they cannot be said to be invalid. Clearly, it is proper for an employer, without
running afoul of the Act, to prohibit by rule employee conduct that distracts atten-
tion of others from work (rule 9). An employer may also validly forbid employees
from "threatening, intimidating, coercing or otherwise interfering with other em-
ployees on company premises at any time including lunch and rest periods" (rule
9)-provided, however, that .the prohibition in its application to employees' free time
is not deemed to take in ordinary union activity unaccompanied by coercive or other
improper conduct. The finding made above that Younger was unlawfully discrimi-
ANDERSON-ROONEY OPERATING COMPANY, ETC. 1493
nated against for engaging in union activities on company time was predicated
essentially on two subsidiary findings-(1) Younger had not theretofore been put
on fair notice by sufficiently defined rule, warning, or otherwise, that union solici-
tation, as such, was prohibited on company time, and (2) there was an unlawfully
motivated discriminatory application of rules 4 and 9 in his situation, since the
conduct in which he engaged was of a kind generally permitted and, but for its union
content, would not have been regarded by the Respondents as,a sufficiently serious
infraction of the rules to call for disciplinary action.
The General Counsel, I take it from his complaint, would agree that the rules in
question cannot be condemned on their face. His theory appears to be that since
the Respondents in Younger's case actually interpreted and applied the rules as a
restraint on union solicitation as such, the rules must now be read with the gloss of
the effect thus given them. And as so interpreted, the General Counsel contends,
they must now be viewed as in the nature of an unlawful no-solicitation rule under
the standards declared by the Board in Walton Manufacturing Company, 126 NLRB
697, because the scope of the prohibition is otherwise such as to extend beyond
working time to employees' free time on company premises; for example, to lunch
and rest periods.
With regard to rule 9, I do not think such a construction by employees is possible,
even in the light of the Respondents' application of the rule in Younger's case. For
that rule by its unambiguous wording is restricted to "distracting attention of others
from their work." and this necessarily implies that at least the employee being
solicited must be on working ,time, a condition which provides a basis for a pre-
sumptively valid no-solicitation rule under the Walton standards.
The situation with regard to rule 4 is different, however. That rule by its ex-
press language applies not only to activity on working time but "on company premises
at any time including lunch and rest periods." The words "otherwise interfering with"
contained in the rule are sufficiently ambiguous to allow a construction that bare
union solicitation, without more, is prohibited. In point of actual fact, as was
brought home to employees by Younger's transfer, the Respondents did so construe
and apply "otherwise interfering with" in Younger's case. It is true that Younger's
union solicitation activities occurred in part during working hours. But the rule as
written makes no distinction between working time and employees' free time. At
the hearing, the Respondent's management officials testified that, although they
would consider it a violation of the rule for an employee simply to speak to others
about a union during working time, their construction of the rule would be quali-
fied by other considerations in the case of union solicitation during employees' free
periods. But the standards they stated they would apply in the latter situation were
vague, indefinite and open to subjective application, depending on considerations
such as whether an employee was "disturbed" by what was said to him. The Re-
spondents' employees ought not be required to speculate on whether the rule which
is worded broadly to apply to conduct on "company premises" and which has now
been given effect to as proscribing union solicitation at least on company time, would
be interpreted differently in a situation where such solicitation occurs during em-
ployees' free time, and, if so, under what conditions. Considering the effect given
it in Younger's case, the rule as it now reads constitutes, I find, an invalid restraint
on the exercise by employees of their right to engage in union activities. I do not
find, however, that this renders the entire rule invalid, but only so much of it as would
appear to extend its prohibition to otherwise protected union or concerted activities
on employees' free time. The remedial order recommended below will be con-
fined accordingly.
E. The alleged discriminatory discharge
Younger's termination papers state he was discharged for violating rule 14, which
reads: "Insubordination-Refusal to obey orders of supervision or refusal to per-
form job assignments." The Respondents make no claim that Younger prior to his
discharge ever openly flouted supervisory authority or expressly refused to comply
with any direct order given him. The specific derelictions for which he was dis-
charged, they say, consisted of his failure while at the Mid-Continent Building to
perform his assigned job duties properly. According to the Respondents, Younger's
attitude toward his work, as reflected by his performance, amounted in their judg-
ment to an unwillingness, tantamount to a refusal, to carry out his job duties as
directed, thus subjecting him to the application of rule 14 as that rule is interpreted
by them. As noted above, the Respondents' management officials, Kenslow and
Young, also assigned late in the hearing as a contributing reason for Younger's dis-
charge his two absences during the 5 working days he was employed at Mid-
Continent. That reason, however, was not mentioned to Younger at the time of his
discharge, nor is it referred to in his discharge papers. And, as further noted above,
1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARI'
the testimony of the Respondents' witnesses as to the added reason was at variance
with earlier testimony they gave . The Respondents now in their brief place no em-
phasis on Younger's absences, but rely almost entirely on Younger's asserted work
•derelictions to support their defense that Younger was discharged for cause, and
not, as the General Counsel claims , for antiunion reasons.
According to the Respondents ' witnesses , the decision to discharge Younger,
reached on April 26, had its origin in a specific recommendation to that effect made
by Youngblood, Younger's immediate supervisor at the Mid-Continent Building.
The decision, they state, was bottomed entirely on that recommendation, supported
,by reports from Youngblood concerning Younger's unsatisfactory work performance
and poor attitude toward his job during his brief tenure at the Mid-Continent
Building. Kenslow, Young, and Youngblood all so testified.
Youngblood was the Respondents' key witness on this phase of the case. Young-
blood testified generally that Younger, during the 2 days he actually performed
restroom duties at Mid-Continent, had failed properly to perform his cleaning
,duties and had required the assistance of others to do or redo work which in the
past had always been performed by one man. To Youngblood, Younger's job
performance and general attitude evinced an unwillingness on Younger's part to
apply himself fully to his work as he could and should have done. He therefore
decided to, and did, recommend Younger's discharge.
As for his specific complaints about Younger's job performance, Youngblood
in his testimony elaborated as follows: About 7 p.m., Monday, April 24, after
Younger had ostensibly completed his restroom duties on several floors of the build-
ing, Youngblood inspected the restrooms on the floors Younger had already covered.
He found that many of the stools were still dirty, the lavatories were dirty, and floors
which Younger was supposed to have cleaned and mopped still had cigarette butts
on them. Youngblood took Younger back over the floors he had done and showed
him what he had missed. Younger's only excuse was that he did not think he
.would have enough time to get everything done that day. Youngblood told Younger
that he wanted a good job out of him, and that he would give him help to complete
his work if necessary. Younger's only comment was, "Well, I'll do what d can."
That evening Youngblood did put another man on restroom duties to help out
Younger with his work. Youngblood had no further occasion to speak to Younger
that night. The next night, April 25, Younger worked the job alone. His job
:schedule was to start at the top of the building and work down. By 11 p.m., Younger
was already on the lobby floor, although the work to which he was assigned normally
could not be completed if done right until about 12:30 a.m. Youngblood in the
meantime had inspected the restrooms and found they were even worse than the
night before. He again spoke to Younger and reprimanded him about the poor
quality of his work. Younger took issue with Youngblood's criticism. Youngblood
then took Younger upstairs through some of the restrooms and showed him various
fixtures that he had either missed completely or failed to clean properly. He directed
Younger to start at the bottom of the building and work up, checking all the rest-
rooms and redoing all work that needed redoing, and at the same time assigned two
other employees to start at the top and work down with similar instructions. Later
that night, Youngblood again censured Younger for the manner in which Younger
had done his work, stating that the Company could not afford to have others do work
Younger was supposed to do. Again, Younger's only comment was, "I'll do what
I can."
At the hearing, the General Counsel made no effort to impair through cross-
examination or otherwise Youngblood's account of the faults he found with Younger's
job performance. Younger, who appeared as a rebuttal witness, did not contra-
dict Youngblood's testimony that on both Monday and Tuesday he had left rest-
rooms dirty after supposedly cleaning them, requiring their redoing. Nor did he
offer any explanation or excuse for the job derelicitions attributed to him, except
with respect to one detail of relatively minor consequence which Youngblood in his
testimony had not particularly stressed.9 It is noted, moreover, that Youngblood's
testimony concerning the occurrences of April 24 and 25 is supported to a substantial
extent, although not fully, by Younger's own testimony as given during the presenta-
tion of the General Counsel 's case-in-chief.10
b This related to the use of Ajax as a cleaning agent on certain restroom fixtures.
Youngblood testified that Younger had used Ajax tom lean certain fixtures on Tuesday
although he had been earlier told not to do so According to Younger, however, nothing
was said to him about Ajax until Tuesday.
10 Thus, Younger's testimony is in agreement with Youngblood's that the two had a
conversation about Younger' s work on April 24, after Younger had covered several floors
ANDERSON-ROONEY OPERATING COMPANY, ETC. 1495
On this state of the record, the Respondents' asserted reason for its discharge
action cannot lightly be rejected as subterfuge, notwithstanding the close proximity
.of the discharge to the discriminatory transfer. The situation would have been
.vastly different had the record supported the General Counsel's position, as set forth
in his opening statement, that the Respondents transferred Younger to the Mid-
Continent Building to "set him up" for discharge, "knowing that he could not do his
work." But the record does not. Younger made no claim while testifying that
he was unable to perform the work assigned him at Mid-Continent. It does appear
that Younger's job at Mid-Continent involved a broader range of specific job duties
than those he had been recently doing at Sunray. But Younger was not new to such
duties; all or substantially all of them had been included in work he had done at
Sunray in the past. It had been, to be sure, some years since he had himself done
many of the work tasks required of him at Mid-Continent, and it may be, as he says,
that he was no longer accustomed to them. But it is nevertheless fair to assume that
Younger, as a former leadman, was at least generally familiar with the quality stand-
ards the Respondents required. The General Counsel argues in his brief that the
Respondents could not reasonably expect Younger to become expert in his new
work in 2 days. That argument would have carried greater force if the faults found
with Younger's work concerned the speed of his performance, but here they involved
basically carelessness and neglect.
.It is quite true, as the General Counsel stresses, that Younger, but for his dis-
criminatory transfer, would not have been at Mid-Continent at all. But though
Younger was wronged by the discrimination which brought him to that building,
this did not give him any special immunity from disciplinary action once he was
there. Younger perhaps might have refused to accept the transfer and invoked
his remedies under the law.ii Having, however, elected to accept the transfer, he
remained bound to his full employee responsibilities and subject like any other
employee to disciplinary action for breach thereof.,
That is not to say, of course, that Younger's discriminatory transfer to the Mid-
,Continent is irrelevant to the discriminatory discharge issue. It does bear im-
portantly-though not conclusively-on the issue of whether, as claimed by the
General Counsel, the reason given was but a cover for action in truth unlawfully
motivated. The transfer is a clear reflection of the Respondents' antipathy toward
Younger because of his union activities. It would be unreasonable to suppose that
the antipathy ended with the transfer; if anything, I think the Respondents ' receipt
,several days later of Younger's letter announcement that he was an "in-plant or-
-ganizer" must have whetted it. On all the record, it may be fair to assume that the
Respondents entertained a desire to rid themselves, if they could, entirely of Younger,
whose union activities they feared and resented, and were pleased to have an oppor-
tunity present itself for doing so. But that alone is not enough to establish that the
discharge was unlawfully discriminatory. The mere fact that an employer may want
to part company with an employee whose union activities have made him persona
un grata does not per se establish that a subsequent discharge of that employee must
be unlawfully discriminatory. If the employee himself obliges his employer by
'providing a valid independent reason for discharge-i.e., by engaging in conduct
,for which he would have been discharged anyway-his discharge for that reason
cannot properly be labeled a pretext and ruled unlawful.
Save where the reason itself is unlawful, it is not for the Board to substitute its
judgment for that of management as to what constitutes proper cause for discharge.
Unless the ground advanced is inherently implausible, is unsupported by credible
-evidence, or is established by the record to have been simply used as a pretext to
disguise action primarily motivated by unlawful considerations, its rejection by the
Board is not warranted. In the instant case, the reason assigned-Younger's failure
to perform his work properly-clearly cannot be viewed as providing an implausible
basis for valid discharge; however, one may differ with the Respondents' estimate
of the gravity of Younger's offense. Moreover, the reason relied on is supported, as
has been seen , by virtually undisputed testimony. The issue thus boils down to
whether the record as made fairly supports a finding of pretext.
of the building, and that thereafter Youngblood assigned another employee to help him
out with his work. Although their accounts of what was said at that time are by no
means identical. Younger's testimony contains enough to indicate that he must have been
criticized about his work performance. For example, Younger admitted that Youngblood
cautioned him, inter alia, to pick up cigarette butts from the floor and to be sure to get
the floors good and clean before he mopped them. As for the events of April 25, Younger's
testimony does not vary substantially from that of Youngblood.
21 Cf. Waples-Platter Convpany, 49 NLRB 1156; Acne Industrial Police, 58 NLRB 1842.
1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There are undoubtedly circumstances present in this case that tend to cast doubt
on the bona fides of the Respondents' asserted basis for the discharge. The Re-
spondents' antipathy toward Younger, as reflected by the discriminatory transfer, has
already been mentioned. There are others as well. Thus, the record shows that the
Respondents' usual policy was to warn an employee before discharging him.
Younger, although reprimanded by Youngblood, was never formally warned that he
faced discharge, and the Respondents at the hearing failed adequately to explain their
failure to do so.12 Further, the record may suggest a shifting of ground by the Re-
spondents, from one stated at the time of the discharge that could not be proved, to
another relied upon at the hearing that could. Thus, the specific reason which Young
first declared to Younger was that Younger had had "some disagreement" with
Youngblood. Actually, it is undisputed that the two never had a quarrel, and the
only evidence of any disagreement is that Younger on his last day of work had
taken issue with Youngblood's accusation that he had missed certain fixtures alto-
gether, until Youngblood had demonstrated otherwise. Younger's termination papers
as prepared by the Respondents also make no express reference to Younger's failure
to perform his work properly as a reason for the action taken, reciting only Younger's
alleged violation of the insubordination rule. Yet, the Respondents made no attempt
to prove any positive act of insubordination by Younger. It does appear to be a
somewhat strained construction of the insubordination rule to say, as the Respondents
do, that Younger's failure constituted a "refusal" on his part to obey orders or perform
job assignments. There is evidence, moreover, that rule 14 is not normally cited by
the Respondents in cases of discharge for poor performance, but more specific rea-
sons are given, such as "failure to meet minimum requirements," or "can't learn," or
"lazy." In Younger's situation, however, the Respondents explain that they believed
from all the circumstances that Younger was willfully laying down on his job, and
that they considered his failure to apply himself to be tantamount to a refusal to do
his job, thus bringing his conduct within the ambit of rule 14. That explanation
cannot be rejected out of hand as having no possible basis, and particularly so since
other evidence reflects that Younger was malcontent at the time as a result of his
demotion and later transfer, whether with or without justification is here
unimportant.13
In the final analysis, determination must turn on whether the circumstances sug-
gesting pretext are in strength sufficient to overcome and discredit the testimony of
the Respondents' witnesses as to the primary motivating reason for the discharge.
In assessing the evidence, I attach particular weight to the fact that Youngblood's
account of the events leading to the discharge stands on this record virtually un-
challenged, thereby adding reliability to his testimony as to what actually induced
the action taken. On the issue of pretext the case is an exceedingly close one and by
no means free from doubt. But, on the record as a whole, and bearing in mind that
the burden of proof is on the General Counsel, I simply am not fully persuaded that
the circumstances upon which the General Counsel relies, highly suspicious though
they are, mount to sufficient probative stature to warrant an inference, contrary to the
testimony of the Respondents' witnesses, that Younger's union activities weighed more
heavily in the Respondents' decision to discharge him than did the reason Respondents
give. Accordingly, I find that the General Counsel has failed to sustain the allega-
tions of his complaint relating to Younger's discharge, and shall recommend
dismissal of such allegations.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, to the extent they
have been found unfair labor practices, have a close, intimate, and substantial rela-
12The only explanation offered was that Younger had in effect already been warned
and given a second chance when he was transferred to the Mid-Continent Building. As
found above, however, that disciplinary action was not based on his work performance-
nothing was said to Younger of this at the time-but on his union activities on company
time and premises in asserted violation of rules 4 and 9 The Respondents in their brief
offer an added reason, that they felt Younger's "attitude on the job" and his "refusal
to do [his] work properly" was not a matter that could be corrected by a warning or a
punitive suspension. That reason perhaps makes some sense, but it is unsupported by any
record testimony.
is Younger's two absences within a 5-day period, though found not to have been relied
upon by the Respondents as a basis for discharge, may be viewed nevertheless as con-
firmatory evidence reflecting adversely on Younger's actual attitude toward his job at
the time.
HARLEY BAG COMPANY, INC. 1497
tion to trade , traffic , and commerce among the several States, and tend to lead to labor
disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents engaged in certain unfair labor practices, I
shall recommend that they cease and desist therefrom, and from like and related
conduct, and take certain affirmative action designed to effectuate the policies of
the Act.
Having found that the Respondents have published and maintained a plant rule,
known as rule 4 of the Anderson-Rooney Company rules, which, in the light of the
interpretation and effect given such rule by the Respondents, prohibits, purports to
prohibit, and/or may now reasonably be construed by the Respondents' employees as
prohibiting, union activities or solicitation of union membership on company prem-
ises at any time, including employees' nonworking time, thereby trenching upon
employees' statutory rights, I shall recommend that the Respondents be ordered to
rescind such rule, or, in the alternative, if the Respondents so elect, to revise such
rule so as to make it clear on its face that the rule will not be interpreted, applied,
or enforced to impair or impede union solicitation activities on company premises
during employees ' nonworking time, including lunch and rest periods.
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. Building Service Employees International Union, Local 245, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the terms and conditions of employment of
Herbert Younger by means of his transfer from the Sunray Building to the Mid-
Continent Building, thereby discouraging membership in the above-named Union,
the Respondents engaged in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
3. By the foregoing conduct , and by publishing and maintaining a plant rule which,
in the light of the interpretation and effect given it by the Respondents, prohibits,
purports to prohibit, and/or may reasonably be construed by the Respondents' em-
ployees as prohibiting , union activities or the solicitation of union membership on
company premises at any time , including employees' nonworking time, the Respond-
ents have interfered with , restrained, and coerced employees in the exercise of their
statutory rights within the meaning of Section 8 (a)( I) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
5. The Respondents did not engage in unfair labor practices by reason of their
discharge of Herbert Younger on April 27, 1961, as alleged in the complaint.
[Recommendations omitted from publication.]
Harley Bag Company, Inc. and International Brotherhood of
Pulp, Sulphite and Paper Mill Workers , AFL-CIO. Case No.
11-CA-1769. December 22, 1961
DECISION AND ORDER
On October 2, 1961, C. W. Whittemore issued his Intermediate
Report herein, finding that the Respondent , Harley Bag Company,
Inc., had engaged in and was engaging in certain unfair labor prac-
tices within the meaning of Section 8(a) (3) and ( 1) and recommend-
ing that it cease and desist therefrom and take certain affirmative
action , as set forth in the Intermediate Report attached hereto.
134 NLRB No. 137.