Civic Center Cleaning Co., Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 760 (N.L.R.B. 1980)

760 DECISIONS OF NATIONAL
Civic Cnter Cleaning Co., Inc. and International
Brotherhood of Painters and Allied Trades of
the United States and Canada, Local 327, AFL-
CIO. Case 6-CA-12895
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On June 23, 1980, Administrative Law Judge
Karl H. Buschmann issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief in answer to Respondent's ex-
ceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Civic Center Cleaning Co., Inc., Pittsburgh, Penn-
sylvania, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer Francis Michael Harmuth immediate
employment in the position he would have re-
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950). enfd 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings
In par. 2(a) of his recommended Order, the Administrative Law
Judge required Respondent to reinstate Francis Michael Harmuth to his
former position. Since the violation centers upon Respondent's refusal to
hire Harmuth, we shall modify the recommended Order, and conform
the notice accordingly, to incorporate the remedy traditionally ordered
by the Board, i.e., that Harmuth be offered the employment that he was
denied.
Respondent contends that it is unable to offer employment to Francis
Michael Harmuth because its cleaning contract with Woodward State
Hospital has terminated. We are of the opinion that resolution of this
contention is best left to the compliance stage of this proceeding
Member Jenkins would compute the interest due on backpay in ac-
cordance with his partial dissent i Olympic IMedical Corporation. 250
NLRB No. 11 (198))
LABOR RELATIONS BOARD
ceived absent Respondent's discrimination against
him or, if that position is no longer available, to a
substantially equivalent position, and make him
whole for any loss of pay that he may have suf-
fered by reason of Respondent's discrimination
against him in accordance with the recommenda-
tions set forth in the section of the Administrative
Law Judge's Decision entitled 'The Remedy."'
2. Substitute the attached notice 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
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The National Labor Relations Act gives em-
ployees the following rights:
To organize themselves
To form, join, or help unions
To bargain as a group through representa-
tives they choose
To act together for collective bargaining
or other mutual aid or protection
To refuse to do any or all of these things.
WE WILL NOT threaten any employees that
those who have filed unfair labor practice
charges with the National Labor Relations
Board will not be hired.
WE WILL NOT refuse or fail to hire employ-
ees, or otherwise discriminate against them,
because they have filed unfair labor practice
charges with the Board.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL offer Francis Michael Harmuth
immediate employment in the position he
would have received had we not discriminated
against him or, if that position is no longer
available, to a substantially equivalent position,
and make him whole for any loss of pay, with
interest, that he may have suffered by reason
of our discrimination against him.
CIVIC CENTER CLEANING CO., INC.
252 NLRB No. 110
CIVIC CENTER CLEANING CO. INC.
DECISION
STATEMENI 01 TIHE CASE
KARI. H. BUSCHMANN, Administrative Law Judge:
This case arose upon a charge filed on November 6,
1979, as amended on January 29, 1980, by International
Brotherhood of Painters and Allied Trades of the United
States and Canada, Local 327, AFL-CIO, (herein the
Union). The complaint issued on January 29, 1980,
against Civic Center Cleaning Co., Inc., herein the Re-
spondent, and was subsequently amended on March 10,
1980. It charged Respondent with a violation of Section
8(a)(l) of the Act, because of threats to an employee that
individuals who had previously filed charges with the
National Labor Relations Board would not be hired, and
with a violation of Section 8(a)(4) and (1) of the Act, be-
cause Respondent refused to hire Francis M. Harmuth
because he had filed charges with the Board.
Respondent, admitting all jurisdictional allegations in
the complaint, as well as the supervisory status of
George Mandros, denied the commission of any unfair
labor practices.
A hearing was held on March 25, 1980, in Pittsburgh,
Pennsylvania. Briefs were filed by counsel for the Gener-
al Counsel and by Respondent on April 30 and May 6,
1980, respectively.
Upon the entire record in this case, and from the de-
meanor of the witnesses, I make the following:
FINDINGS OF FACT
Civic Center Cleaning Co., Inc., is a Pennsylvania cor-
poration located in Pittsburgh, Pennsylvania, and is en-
gaged in janitorial and housekeeping services. In the fall
of 1979, Civic Center was selected as the successful
bidder for janitorial services at Woodville State Hospital,
effective November 1, 1979. Its predecessor was McGin-
ley Maintenance, Inc., which had performed that service
until October 1979 and which, as the unsuccessful
bidder, had lost the contract.
The record contains testimony describing in detail sev-
eral encounters between George Mandros, Respondent's
vice president, and the employees of McGinley. During
a particular meeting in the Geriatrics Building which oc-
curred on October 26, 1979, Respondent expressed an in-
terest in hiring these employees for the Woodville State
Hospital contract. It was established policy in the janito-
rial industry to hire employees fired by other mainte-
nance companies. Most of the McGinley employees, in-
cluding Francis M. Harmuth, wanted a job with Civic.
They were concerned about wages, seniority, benefits,
and their union contract with International Brotherhood
of Painters and Allied Trades of the United States and
Canada, Local No. 327, AFL-CIO. Mandros told the
employees that he intended to bring his own union in,
but that he did not have the answers to some of their
questions concerning seniority, sick leave, or other bene-
fits.
At this meeting, Mandros, according to the testimony
of Harmuth, stated that he had a list of employees who
had been fired by McGinley and who had filed charges
with the National Labor Relations Board. In his testimo-
ny, Mandros denied the existence of such a list or his ref-
erence thereto. Although the other McGinley employees
who testified were also present at the meeting, only Har-
muth recalled Mandros' reference to this list Moreover
the record contains the testimony by several witnesses
relating to other lists in Mandros' possession. Because
Harmuth may have been confused concerning Mandros'
reference to a list of employees who had been fired by
McGinley or who had filed charges with the Board, and
because Harmuth's was the sole testimony among several
witnesses to this incident, I have not credited his testimo-
ny in this regard.
During this meeting, Mandros requested Shirley Cos-
tello, one of the McGinley employees, to compile a list
of McGinley employees who desired employment with
Respondent. Costello passed out two sheets, one on
yellow paper which several employees, including Har-
muth, signed, and one on white paper on which most
employees-but not Harmuth-listed their names. Cos-
tello handed both lists to Mandros.'
Several days after that meeting, Costello called Man-
dros to remind him that he had promised to hand out job
applications. On October 29, after the employees had
heard nothing from Respondent, Harmuth, at the behest
of Costello, decided to call Mandros. Because of Har-
muth's inability to read Costello obtained the telephone
number and placed the call for Harmuth from the east
lobby at Woodville. The telephone was equipped with an
amplification device so that it was possible for Costello
and another employee, Mary Krawczynski, to overhear
the conversation. All three testified that in reply to Har-
muth's question, whether he would hand out job applica-
tions, Mandros replied that he would not hire trouble-
makers or employees who had filed unfair labor practice
charges with the Board.2 Upon hearing Mandros' remark
concerning troublemakers, Harmuth was visibly worried
and upset.
A month earlier, on September 10, 1979, Harmuth had
actually filed an 8(a)(1) charge against McGinley Mainte-
nance, Inc. (Case 6-CA-12731) and an 8(b)(1)(A) charge
against the Union (Case 6-CB-4842).
Of approximately 23 former McGinley employees who
had worked at Woodville, Respondent hired 8 individ-
uals, including Costello and Krawczynski. Harmuth was
not hired.
In November, Costello approached Mandros at the
west utility room at Woodville State Hospital. Krawc-
I These lists are surrounded by a great deal of confusion. Mandros tes-
tified that during a meeting with the employees he received only one list
on white paper which did not contain Harmuth's name (Resp. Exh. 4).
Costello initially testified that she had circulated a list which definitely
contained Harmuth's name She subsequently recalled that two lists wvere
circulated, that Harmuth signed only one of them and that she handed
both lists to Mandros. When asked why she circulated two lists, she ex-
plained that she simply attempted to make sure that she had all the
names Her testimony was corroborated by Harmuth I credit their con-
vincing and earnest recollection of these events.
2 Because all three employees testified unequivocally and convincingly
about this conversation. I have credited their estimony, rather than Man-
dros' denial of such a remark Respondent has pointed to several appar-
ent inconsistencies between the testimony iof these witnesses and their af-
fidavits In my opinion, such inconsistencies were superficial and do not
affect the credibility of the testimony the substance of which was consisl-
ent and plausible.
761
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
zynski was also present and corroborated Costello's rec-
ollection of the conversation. She testified as follows
about that conversation:
A. Yes. I was talking to Mr. Mandros and I was
asking about if he would hire Mike. You know, for
a job, you know, hire him for a job, and he says,
and he says, well, he said, you know, I'll see, you
know but I can't go 'round hiring people that cause,
you know, troublemakers and go to Labor Rela-
tions Board, and he said, if you don't be quiet,
you'll lose your job. In other words, you'll get
fired, put it that way.
On December 4, 1978, Harmuth and Wanda Allen de-
cided to go to the Civic Center's office to fill out job ap-
plications. Mandros engaged them in a conversation and
asked if they knew why McGinley had lost its contract
at the hospital. Allen, whose testimony was fully cor-
roborated by Harmuth, recalled the conversation as fol-
lows:
He wanted to know why I felt McGinley lost
their contract. And I told him that they hadn't lived
up to their contract with the state. They hadn't had
double buckets, they didn't buy smocks, and things
like this. And he said he didn't feel this was the
reason. He thought it was more political-And I
didn't know what he meant by more political. And
he kept saying, no, no, more political. I asked
George if he meant when Mike and I went to the
National Labor Relations Board and filed charges
with the Company and he said yes. And I said is
that why we're not getting hired, and he said I
don't know what I can do for you. I told George
that we voluntarily dropped the charges against the
Union and with the Company and we got along
after that. And he said he still didn't know what he
could do for us. He asked the buildings we worked
in, if he could talk to the nurses for the buildings
we worked in and he'd get back to us.
Q. Did you ever get a job with Civic?
A. No.
Analysis
Considering the first issue, whether Respondent had
threatened an employee that those employees who had
previously filed charges would not be hired by Respond-
ent, the record is clear that Mandros had made such a
statement, as alleged in the complaint, on October 29,
1979. Harmuth had asked Mandros over the telephone
about employment applications, and Mandros stated that
he would not hire troublemakers or people who filed
charges with the Labor Board. Mandros made similar
statements on subsequent occasions. Such conduct clear-
ly constituted an interference with concerted and pro-
tected activities. Accordingly, I have no difficulty in
concluding that Respondent committed an independent
8(a)(1) violation.
With regard to the next issue, whether Respondent re-
fused to employ Harmuth because he had filed charges
with the Board against his former employer, General
Counsel relies basically on Mandros' repeated statements
to that effect and the fact that Harmuth was not hired.
Respondent, on the other hand, argues that the record
herein does not show that Mandros had actual notice of
Harmuth's charges which he had filed with the Board,
and that Harmuth was simply not hired because Re-
spondent did not need any employees in the "scrubber"
classification. Respondent is correct in stating that the
record does not contain any direct evidence that Re-
spondent knew of Harmuth's unfair labor practice
charges filed with the Board. However, the record does
contain testimony that Respondent hired Robert Fife
who had done the work of a scrubber and who apparent-
ly had a special talent involving the Geriatric Ward at
the hospital. In any case, these and other factors pointed
out by Respondent would be convincing and plausible in
evaluating Mandros' actions if it were not for Mandros'
repeated statements to various individuals, including Har-
muth, Allen, and Costello, as overheard by Krawczynski,
that he would not consider troublemakers or individuals
who had filed charges with the Board for employment.
In each of the three instances related above, Mandros
did not make these statements as idle remarks, but as a
direct and sole response to Harmuth's interest in being
employed. Not once during Harmuth's several requests
for employment did Mandros simply say that he was not
interested in "scrubbers." To the contrary, Mandros had
only one explanation for his lack of interest in accepting
Harmuth as an employee and that was that he would not
hire people who filed charges with the Board. Indeed,
during his conversation with Allen and Harmuth on De-
cember 4, Mandros attributed McGinley's loss of the
contract at the hospital to the fact that the two employ-
ees had filed charges with the Board. Under these cir-
cumstances, the inference is compelling, Respondent did
not consider Harmuth for employment because Mandros
considered him to be a troublemaker for having filed
unfair labor practice charges against his previous em-
ployer and the Union. Section 8(a)(4) of the Act specifi-
cally prohibits an employer's discriminatory conduct
against individuals who have filed charges with the
Board.
CONCLUSIONS OF LAW
1. Respondent, Civic Center Cleaning Co., Inc., is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. By threatening an employee that those employees
who were troublemakers and who had filed unfair labor
practice charges with the Board would not be hired, Re-
spondent violated Section 8(a)(I) of the Act.
3. By failing and refusing to employ Francis Michael
Harmuth, because he had filed unfair labor practice
charges against his previous employer and the Union,
Respondent discriminated against an employee, in viola-
tion of Section 8(a)(4) and (1) of the Act.
THF. REMEDY
Having found that Respondent engaged in unfair labor
practices in violation of Section 8(a)(1) and (4) of the
Act, I recommend that Respondent be ordered to cease
762
CIVIC CENTER CLEANING CO., INC.
and desist from its unlawful practices. I further recom-
mend that Respondent be ordered to post an appropriate
notice and take affirmative action in order to effectuate
the policies of the Act.
In addition, I recommend that Respondent offer Fran-
cis Michael Harmuth immediate reinstatement with back-
pay and interest thereon, to be computed in the manner
prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB 651
(1977).3
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I recommend the issuance of
the following recommended:
ORDER 4
The Respondent, Civic Center Cleaning Co., Pitts-
burgh, Pennsylvania, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Threatening employees that those who had filed
unfair labor practice charges with the National Labor
Relations Board would not be hired.
(b) Failing or refusing to hire employees or otherwise
discriminate against any employees because they had
filed unfair labor practice charges with the Board.
3 See, generally. Isis Plumbing & Heating Co., 138 NLRB 716 (19621
4 In the event no exceptions are filed as provided by Sec 10246 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec 102.48 of the Rules and Reguletions, be adopted hy the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed aied for all purposes
(c) In any like or related manner unlawfully interfering
with, restraining, or coercing employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Offer Francis Michael Harmuth immediate and full
reinstatement to his former position or, if such position
no longer exist, to a substantially equivalent position, and
make him whole for any loss of pay that he may have
suffered by reason of Respondent's discrimination against
him in accordance with the recommendations set forth
herein under "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agent, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records, and reports, and all other records rel-
evant and necessary to a determination of compliance
with paragraph (a) above.
(c) Post at its Pittsburg, Pennsylavania, office and
plant copies of the attached notice marked "Appendix." s
Copies of said notice, on forms provided by the Regional
Director for Region 6, after being duly signed by Re-
spondent's authorized representative, shall be posted by
it immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
s In the event that this Order is enforced by a Judgement of the
United States Court of Appeals, the words in this notice reading "Posted
by Order of the National Labor Relations Board" shall read "Posted Pur-
suant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
763