Apex Cleaning Service

National Labor Relations Board - Board Decisions

Aug 30, 1991

304 N.L.R.B. 983 (N.L.R.B. 1991)

983
304 NLRB No. 122
APEX CLEANING SERVICE
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
2 We agree with the judge’s conclusion that the employees in this case rea-
sonably believed that they had been discharged under an application of the
standard set forth in Ridgeway Trucking Co., 243 NLRB 1048 (1979), enfd.
622 F.2d 1222 (5th Cir. 1980). In this regard, see Brunswick Hospital Center,
265 NLRB 803, 810 (1982), in which the Board affirmed the following state-
ment in the judge’s decision:
In determining whether or not a striker has been discharged, the events
must be viewed through the striker’s eyes and not as the employer would
have viewed them. The test to be used is whether the acts reasonably led
the strikers to believe they were discharged. If those acts created a cli-
mate of ambiguity and confusion which reasonably caused strikers to be-
lieve that they had been discharged or, at the very least, that their em-
ployment status was questionable because of their strike activity, the bur-
den of the results of that ambiguity must fall on the employer. [Citations
omitted.]
Id. at 810.
3 The judge’s notice to employees inadvertently omitted the expunction lan-
guage included in his recommended Order. We have issued a new notice in-
cluding the expunction language.
Sue D. Gensemer and Charline J. Sandel, a Part-
nership d/b/a Apex Cleaning Service and
Ceveriano Hernandez Santiago. Case 21–CA–
27650
August 30, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On May 15, 1991, Administrative Law Judge
George Christensen issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Sue D. Gensemer and
Charline J. Sandel, a Partnership d/b/a Apex Cleaning
Service, Huntington Beach, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order, except that the attached notice
is substituted for that of the administrative law judge.
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 National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT discharge our employees for ceasing
work or refraining from work to exercise their right
under Section 7 of the Act to pressure us to consider
their complaints over their wages and/or their hours
and/or their working conditions and to seek adjustment
of those complaints.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL offer Leticia Castillo, Jose Alberto Seguro
Coria, Miguel Filomeo Cortez Vidal, Raymunda
Guzman, Guillermo Guzman, Julia Hernandez, Sonia
Hernandez, Irene Luna, Santiago Mendoza Guzman,
Victor Perez Rosas, Martin Sandoval, and Juan Manuel
Soto immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their senior-
ity or any other rights or privileges previously enjoyed
and WE WILL make them whole for any loss of earn-
ings and other benefits resulting from their discharge,
less any net interim earnings, plus interest.
WE WILL notify Leticia Castillo, Jose Alberto
Seguro Coria, Miguel Filomeo Cortez Vidal,
Raymunda Guzman, Gullermo Guzman, Julia Hernan-
dez, Sonia Hernandez, Irene Luna, Santiago Mendoza
Guzman, Victor Perez Rosas, Martin Sandoval, and
Juan Manuel Soto that we have removed from our files
any reference to their discharge and that their dis-
charges will not be used against them in any way.
SUE D. GENSEMER AND CHARLINE J.
SANDEL, A PARTNERSHIP D/B/A APEX
CLEANING SERVICE
Thomas A. Lenz and Jean Libby, Esqs, the General Counsel.
Camille A. Goulet, Esq. (Berman & Clark), of Santa Monica,
California, for the Respondent.
984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Read 1990 after further date references omitting the year.
2 The General Counsel seeks no relief under the Act on behalf of the three
supervisors.
3 While every apparent or nonapparent conflict in the evidence has not been
specifically resolved below, my findings are based upon my examination of
the entire record, my observation of the witnesses’ demeanor while testifying
and my evaluation of the reliability of their testimony; therefore any testimony
in the record which is inconsistent with my findings is hereby discredited.
4 At $34, the starting wage, approximately the current minimum wage of
$4.25 per hour, presuming an 8-hour workday.
5 Three supervisors and two cleaners testified they worked 12-hour shifts
with no breaks and no overtime pay; the owner-partners testified the
workshifts ended at varying times between 1 and 3 a.m., with time off during
workshifts for breaks, and on one occasion overtime was paid.
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge. On No-
vember 15 and 16, (1990),1 I conducted a hearing at Los An-
geles, California, to try issues raised by a complaint issued
on August 30 based on a charge filed by Ceveriano Hernan-
dez Santiago (Santiago) on August 2.
The complaint alleged and the answer thereto admitted at
all pertinent times Sue D. Gensemer (Gensemer) and
Charline J. Sandel (Sandel) were owner-partners operating a
janitorial service under the name Apex Cleaning Service
(Apex) out of their home in Huntington Beach, California,
providing cleaning services to commercial buildings in the
area.
The complaint further alleged and the answer thereto de-
nied Apex discharged its entire work force, consisting of
three supervisors and 12 cleaners in their crews, on July 18;
that Apex discharged the 12 cleaners2 for engaging in con-
certed activities protected by the Act; that Apex failed or re-
fused to reinstate the 12 cleaners after July 18; and that Apex
thereby violated Section 8(a)(1) of the National Labor Rela-
tions Act (Act). In its defense Apex asserted the 12 cleaners
voluntarily quit its employment on July 18 and never re-
quested reinstatement thereafter.
The issues created by the foregoing are whether:
1. The 12 cleaners voluntarily quit their employment;
2. If not, were they discharged;
3. If so, did Apex discharge the 12 cleaners for engaging
in concerted activities protected by the Act, thereby violating
Section 8(a)(1) of the Act;
4. If so, does their failure to request reinstatement subse-
quent to their discharges bar their reinstatement and reim-
bursement for lost wages.
Counsel were afforded full opportunity to adduce evi-
dence, examine and cross-examine witnesses, argue, and file
briefs. Counsel for the General Counsel argued orally prior
to the close of the hearing and Apex submitted a posthearing
brief.
Based on my review of the entire record, observation of
the witnesses, perusal of the oral argument, the brief and re-
search, I enter the following
FINDINGS OF FACT3
I. JURISDICTION
The complaint alleged, the answer thereto admitted, and I
find at all pertinent times Apex was an employer engaged in
commerce in a business affecting commerce within the
meaning of Section 2 of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Immediately prior to the events which triggered the ces-
sation of their employment on July 18, Santiago, Porfirio
Priego Solis (Solis), and Irma Hernandez Carballo (Carballo)
were employed by Apex to supervise the work of cleaners
Leticia Castillo (Castillo), Jose Alberto Seguro Coria (Coria),
Miguel Filomeo Cortez Vidal (Vidal), Raymunda Guzman
(R. Guzman), Guillermo Guzman (G. Guzman), Julia Her-
nandez (J. Hernandez), Sonia Hernandez (Hernandez), Irene
Luna (Luna), Santiago Mendoza Guzman (S. Guzman), Vic-
tor Perez Rosas (Rosas), Martin Sandoval (Sandoval), and
Juan Manuel Soto (Soto).
The entire work force had little or no command of the
English language and communicated in the Spanish lan-
guage: the two owner-partners had a limited command of the
Spanish language and had to try to communicate with the
work force in what was termed ‘‘broken Spanish’’
(Gensemer with somewhat more success than Sandel) with
considerable difficulty.
The three supervisors were paid bimonthly salaries; the 12
cleaners were paid a daily wage of between $34 and $38 a
day;4 the workshifts started at 6 p.m. and ended at a time
which is in controversy, as well as whether the cleaners and
supervisors received any breaks or meal times off work dur-
ing the workshifts.5 The workweek was Monday through Fri-
day.
The supervisors were required to pick up and transport the
cleaners in their crews to their initial jobs (unless the clean-
ers had other means of transportation to the initial jobsite)
and from job to job in either their autos or (in one case) an
auto supplied by Apex. The supervisors were given a car al-
lowance, over and above their salaries. Equipment and mate-
rial were furnished by Apex to the supervisors for accom-
plishing the work assigned to their crews.
The three supervisors went to the partners’ office/residence
prior to the start of the workshift each day to pick up keys
to the buildings they were assigned to clean and secure
equipment and supplies. The supervisors went to the initial
jobsites and began cleaning activities with their crews, there-
after going from jobsite to jobsite and cleaning buildings on
routes laid out by Gensemer until all the buildings they were
assigned to clean were serviced. The three supervisors then
returned the keys to the partners’ office/residence.
For some time, prior to July 18, the cleaners had been dis-
cussing their dissatisfaction with their wages and working
conditions among themselves and with their supervisors. In
a general meeting of the cleaners and the supervisors about
a week prior to July 18, all present agreed they were receiv-
ing too little pay for too much work and should join in de-
manding the partners increase their wages and alleviate their
working conditions.
The evening of July 18, Santiago’s crew began work at his
initial worksite, the Coast Optical building in Huntington
Beach, at about 6 p.m. Shortly after the crew commenced
985APEX CLEANING SERVICE
6 Carballo was the only supervisor who had not spoken in support of the
employees’ requests and had been informed by the partners she was scheduled
to receive a salary increase earlier that evening.
work, Santiago left the building to go to his auto. As he
came out of the building, Solis, Carballo, and their crews ar-
rived and Solis suggested to Santiago the three crews pro-
ceed to the partners’ home and office to present to the part-
ners the employees’ complaint they were required to perform
too much work for too little pay and to request a pay raise
and less onerous work requirements. Santiago responded fa-
vorably to the suggestion, went back into the building and
requested his crew join the other two crews outside the
building. In the ensuing discussion all three supervisors and
all 12 cleaners discussed Solis’ suggestion and agreed to pro-
ceed to the partners’ home and office to present to the part-
ners their complaint and requests. There was neither a dis-
cussion of nor decision about what the employees would do
if the partners failed or refused to address or resolve their
complaint and requests. Santiago locked the door to the
Coast Optical building, reset the alarm system, the three
crews entered autos, and proceeded towards the partners’
home and office. As their autos were leaving, Gensemer ar-
rived in her auto and, perceiving the crews were departing
in their autos, swung about and followed the auto Santiago
was driving to her home and office.
When Gensemer arrived at her home and office and
parked her auto behind the auto driven by Santiago, she hur-
ried inside her home and office to stop Sandel before she left
in her auto. Gensemer caught Sandel as she was pulling out
of the garage, told her there was something amiss and re-
quested she park her auto and come back inside the house.
While Sandel was complying with Gensemer’s request,
Gensemer went to the front of the house where the employ-
ees had assembled and asked what was going on.
Solis advised her the employees thought they were receiv-
ing too little pay for their work and wanted more money.
Santiago echoed Solis’ remarks. Gensemer responded with a
request the employees go to work. Receiving either no or a
negative response, Gensemer addressed her request to
Carballo,6 though in incorrect Spanish. Solis intervened, tell-
ing Carballo not to respond to Gensemer’s request, to retain
a solid front supporting the group’s complaint and requests.
Gensemer demanded Solis surrender to her the keys to the
buildings he was scheduled to service that evening. Solis ini-
tially held back but then surrendered the keys. Santiago and
Carballo surrendered their keys without opposition. Some-
time during these exchanges, an unidentified employee shout-
ed in English the partners were cheap.
When Sandel came out of the house and asked Gensemer
what was happening, Gensemer told her the employees
thought the partners were cheap and didn’t want to work for
them. Sandel reentered the house and began recruiting for the
employees.
Gensemer demanded and secured the Apex materials and
equipment in the supervisors’ personal autos and told the em-
ployees to leave the partners’ premises or she would summon
the police.
The employees complied with Gensemer’s demand and
dispersed.
When the employees subsequently requested and received
their final paychecks, they were neither offered reinstatement
nor did they request reinstatement. The employees have not
been offered reinstatement subsequently.
Prior to the close of the hearing the General Counsel stat-
ed if the partners had any doubt about the 12 cleaners’ desire
to have their jobs back, he was making an unconditional
offer on their behalf to return to work. Counsel for Apex re-
jected the offer on the ground the 12 were replaced, there
were no openings, and there were questions regarding the
ability of some of the cleaners to meet Apex’s work require-
ments in view of disability claims they filed subsequent to
the July 18 cessation of their employment.
Solis and Santiago conceded they were denied unemploy-
ment compensation by the state agency administering unem-
ployment claims and the agency. A copy of the agency’s rul-
ing in the case of Santiago (identified as ‘‘C. Hernandez’’
in the ruling) stated his claim was rejected because ‘‘you quit
your last employment because you were dissatisfied with the
wage you were receiving.’’ On the accompanying applica-
tion, in the portion filled out by Apex, Sandel stated ‘‘quit
without notice’’ and Santiago unequivocally denied he en-
tered cross marks opposite the blocks labelled ‘‘Voluntary
Quit’’ and ‘‘Voluntarily quit.’’
An identical ruling was issued by the agency to Carballo
(identified as ‘‘I.C. Hernandez’’ in the ruling) and Solis
(identified as ‘‘P P Solis’’ in the ruling). Their applications
and Apex’s comments thereon were not introduced into evi-
dence. There was no evidence any of the three were afforded
a earing before an impartial representative of the agency or
the agency official who rejected the three applications con-
sidered the issue of whether the three ceased work in support
of their crews and their effort to secure improved wages and
working conditions, or whether the rejecting agency official
rejected the applications solely on the basis of Apex’s rep-
resentations and, in any event, there was no evidence the 12
cleaners, who are the persons seeking relief in this case, were
accorded like treatment by the agency.
B. Analysis and Conclusions
1. The alleged quit
Any failure or refusal by a group of employees to perform
assigned work is a ‘‘voluntary quit.’’
Section 7 of the Act, however, grants employees the right
to ‘‘engage in . . . concerted activities for the purpose of
. . . mutual aid or protection’’ and it is hornbook law em-
ployees who quit work in exercise of that right do not lose
their status as employees when and while exercising that
right.
Insofar as the rulings of the state unemployment agency
vis-a-vis the three supervisors are concerned, in the absence
of the factors recited in the last two paragraphs of my recita-
tion of the facts in this case, I find those determinations have
no bearing on my determination of whether the 12 cleaners
retained employee status and were not voluntary quits within
the meaning of the Act.
The evidence establishes the 12 cleaners had no plan or
intention to quit Apex’s employ when they either ceased
work or refrained from commencing work on July 18 and did
so in a concerted effort to pressure the partners to consider
and adjust their complaint over their wages and hours.
I therefore find and conclude at all pertinent times, includ-
ing July 18 and times subsequent, the 12 cleaners retained
986 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Cf. Champ Corp., 291 NLRB 803 (1988).
8 Seminole Mfg. Co., 272 NLRB 365 (1984); Modern Iron Works, 281
NLRB 1119 (1986).
9 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 objec-
tions to them shall be deemed waived for all purposes.
their status as ‘‘employees’’ of Apex within the meaning of
the Act and were not voluntary quits within the meaning of
the Act.
2. The alleged discharge
As the Board stated in Ridgeway Trucking Co., 243 NLRB
1048 (1979), and has restated in subsequent cases:
The test for determining whether [an employer’s] state-
ments constitute an unlawful discharge depends on
whether they would reasonably lead the employees to
believe they had been discharged and the fact of dis-
charge does not depend on the use of formal words of
firing. . . . It is sufficient if the words or actions of the
employer would logically lead a prudent person to be-
lieve his tenure has been terminated.
In this case, after failing to address the employees’ com-
plaint and requested adjustment thereof, Gensemer engaged
in an angry exchange with Solis, seized the keys which
would enable the employees to perform any work for Apex,
and ordered them off the premises under threat of arrest if
they failed to comply.
This conduct amply supports a conclusion the 12 cleaners
reasonably believed they had been discharged, as the em-
ployees who testified and their supervisors stated, and I so
find and conclude.7
3. Protected concerted activities
Under Section 8(a)(1) of the Act, it is an unfair labor prac-
tice for an employer to discharge employees for exercising
a right guaranteed in Section 7 of the Act. As noted above,
one of those rights is the right to engage in concerted activi-
ties for the purpose of mutual aid or protection, which by
definition includes the right to cease or refrain from work for
the purpose of pressuring an employer to consider and adjust
a complaint over wages and/or hours and/or working condi-
tions.
I have entered findings and conclusions the 12 cleaners
were discharged and that they were discharged for ceasing or
refraining from work to pressure the Apex partners to con-
sider and adjust their complaints over their wages and hours,
an engagement in concerted activities in exercise of the of
the 12 cleaners guaranteed by Section 7 of the Act.
I therefore further find and conclude Apex discharged the
12 cleaners on July 18 for engaging in concerted activities
protected by Section 7 the Act, thereby violating Section
8(a)(1) of the Act.
4. Reinstatement and backpay
I have entered findings Apex did not offer reinstatement
to the 12 cleaners at any time after their July 18 discharge.
The 12 cleaners did not directly request reinstatement there-
after, but did so indirectly through the filing of the charge
which led to this proceeding and the General Counsel’s ad-
vice to Apex on November 16 the 12 cleaners desired rein-
statement, which was rejected by Apex.
The Board consistently has held it is incumbent upon the
employer who has committed an unfair labor practice by dis-
charging employees for engaging in concerted activities pro-
tected by the Act to offer reinstatement to those employees
and to reimburse those employees for any wage and other
losses they may have suffered between the dates they were
discharged and the dates they are reinstated and that the em-
ployees are under no duty to request reinstatement prior to
their receipt of the Employer’s reinstatement offer.8
I therefore reject any contention the 12 cleaners are not
entitled to reinstatement and reimbursement for their wage
and other losses between July 18 and the date they are rein-
stated by virtue of their failure to address a direct request to
Apex for reinstatement following their July 18 unlawful dis-
charges.
CONCLUSIONS OF LAW
1. At all pertinent times Apex was an employer engaged
in commerce in a business affecting commerce within the
meaning of Section 2 of the Act.
2. At all pertinent times Sue D. Gensemer and Charline J.
Sandel were the owners, supervisors, and agents of Apex act-
ing on its behalf within the meaning of Section 2 of the Act.
3. Gensemer and Sandel, d/b/a Apex, violated Section
8(a)(1) of the Act by discharging Castillo, Coria, Vidal, R.
Guzman, G. Guzman, J. Hernandez, S. Hernandez, Luna, S.
Guzman, Rosas, Sandoval, and Soto for exercising their right
under Section 7 of the Act to engage in concerted activity
for the purpose of their mutual aid and protection.
4. The aforesaid unfair labor practices affected commerce
as defined in Section 2 of the Act.
THE REMEDY
Having found Apex engaged in unfair labor practices, I
recommend Apex be directed to cease and desist therefrom
and take affirmative action designed to effectuate the pur-
poses of the Act.
Having found Apex unlawfully discharged Castillo, Coria,
Vidal, R. Guzman, G. Guzman, J. Hernandez, S. Hernandez,
Luna, S. Guzman, Rosas, Sandoval, and Soto, I recommend
Apex be ordered to reinstate those 12 employees to their
former positions, if necessary terminating the services of any
employees hired to replace them, and make them whole for
any loss of earnings and benefits they suffered as a result of
their unlawful discharges, less any interim earnings, with the
sums due and interest thereon calculated in the manner set
out in F. W. Woolworth Co., 90 NLRB 280 (1950), Florida
Steel Corp., 231 NLRB 651 (1977), and Isis Plumbing Co.,
138 NLRB 716 (1962). I also recommend Apex be ordered
to expunge from its records and files any reference to the
discharges of the 12 employees named above and they be no-
tified in writing, both in English and Spanish, that this has
been done and evidence relating to their unlawful discharges
shall not be used against them. I further recommend that the
notice attached hereto be prepared and posted both in English
and Spanish.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended9
987APEX CLEANING SERVICE
10 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
ORDER
The Respondent, Sue D. Gensemer and Charline J. Sandel,
a Partnership d/b/a Apex Cleaning Service, Huntington
Beach, California, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging its or their employees for exercising their
right under Section 7 of the Act to cease working or to re-
frain from working for the purpose of securing consideration
and adjustment of their complaint and requests for adjust-
ment concerning their rates of pay, wages, hours, and work-
ing conditions.
(b) Interfering with, restraining, or coercing its or their
employees for engaging in any like or related activities pro-
tected by the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Castillo, Coria, Vidal, R. Guzman, G. Guzman,
J. Hernandez, S. Hernandez, Luna, S. Guzman, Rosas,
Sandoval, and Soto immediate and full reinstatement to their
former positions, if necessary terminating employees hired to
replace them, with full seniority and all other rights and
privileges restored, and make them whole for any loss of
earnings or other benefits they may have suffered by virtue
of the unlawful discrimination against them in the manner set
out in the remedy section of this decision.
(b) Expunge from its or their records and files any ref-
erence to the discharges of the 12 employees named above
and notify them in writing, in both English and Spanish, this
has been done and evidence relating to their unlawful dis-
charges shall not be used against them in the future.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to determine the
payments which will make whole the 12 employees named
above for the discrimination practiced against them.
(d) Post at its facilities at Huntington Beach, California,
and all other locations where notices to employees are cus-
tomarily posted copies of the attached notice, in Spanish and
English, marked ‘‘Appendix.’’10 Copies of the notice, on
forms provided by the Regional Director for Region 21, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.