Control Services

National Labor Relations Board - Board Decisions

Jun 24, 1991

303 N.L.R.B. 481 (N.L.R.B. 1991)

481
303 NLRB No. 83
CONTROL SERVICES
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.
The judge’s decision contains a number of inconsequential errors. In part
II,(b), par. 4, the meeting at Exxon-Linden took place in late December 1988,
not on December 2. In part II,(c), par. 2, the expiration date of the
Bloomingdale’s contract should be June 15 (not December 1), 1989. In part
II,(d), par. 1, the third sentence of the Respondent’s notice to employees
should read, ‘‘If you wish to continue working at this location [not occasion]
. . .’’ In part II,(d), par. 2 and subsequently, the last name of the employee
in question appears to be Jurado, not Juardo. In that same paragraph, Jurado’s
resignation date was June 30 (not 31), 1989.
In addition, the judge placed a number of occurences on the right dates but
in the wrong years. Thus, the record establishes that the year should be
‘‘1990,’’ rather than ‘‘1989’’ in: part II,(b) par. 9 (last sentence), and par. 10
(last sentence); part II,(c), par. 3, and par. 4 (first sentence); part II,(d), par.
4 (third sentence); part III,(a), par. 1, par. 6 (first and fourth sentences), par.
7 (first sentence), par. 8 (first sentence), par. 9 (first sentence), par. 10 (first
sentence); and Conclusions of Law 5 and 6. ‘‘1989’’ should appear instead
of ‘‘1988’’ in part III,(a), par. 6 (first and second sentences), par. 9 (first sen-
tence); and Conclusion of Law 5.
The General Counsel has requested that the Notice to Employees be issued
in Spanish as well as English. We grant the request because the record estab-
lishes that many of the Respondent’s employees speak Spanish.
2 This includes the charges in Cases 22–CA–16669 and 22–CA–16760(6),
contrary to the judge’s finding.
3 The charges in Cases 22–CA–16669, 22–CA–16720, and 22–CA–16839
were also sent by certified mail to Attorney Joel Keiler, who at the time was
representing the Respondent in its dealings with the Union. Both the original
and the amended complaints were also sent to Keiler by certified mail. The
record contains the certified mail return receipts, all of which were signed by
Keiler. Those charges and the complaints, then, were validly served on the Re-
spondent for that reason, in addition to the reasons discussed below. Star Gro-
cery Co., 245 NLRB 196, 197 (1979).
4 Rome Specialty Co., 84 NLRB 55, 56 (1949). The Board in that case held
that, even though the Board agent had served the charge by regular mail in-
stead of by registered mail, the charge had been received, and valid service
had been made. See also Olin Industries v. NLRB, 192 F.2d 799 (5th Cir.
1951).
5 The judge’s decision refers only to Sec. 102.113 of the Bord’s Rules. That
section relates to service of process and papers by the Board. In actuality, the
relevant sections are Secs. 102.14 and 102.114. The former provides that the
charging party is responsible for the service of the charges. The latter sets
forth the requirements for service of papers by parties. For the reasons set
forth here, we find that the requirements of these two sections were met.
The Respondent does not appear to argue that the charges were not timely
served as required by Sec. 10(b) of the Act. That issue, therefore, is not before
us.
Control Services, Inc. and Local 32B-32J, Service
Employees International Union, AFL–CIO.
Cases 22–CA–16669, 22–CA–16720, 22–CA–
16735(1,2), 22–CA–16740(1–11), 22–CA–
16758(1–6), 22–CA–16759(1,2), 22–CA–
16760(1–6), 22–CA–16771(1, 3–5), and 22–CA–
16839
June 24, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND RAUDABAUGH
On August 21, 1990, Administrative Law Judge
Raymond P. Green issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel and the Charging Party filed
answering briefs.
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-
clusions as modified herein and to adopt the rec-
ommended Order as modified.
1. The judge found, contrary to the Respondent’s an-
swer to the complaint and its contentions at the hear-
ing, that the charges in this case had been properly
served. The Respondent excepts, apparently solely on
the basis that service of the charges was not effected
pursuant to the requirements of Rules 4 and 5 of the
Federal Rules of Civil Procedure. There is no merit to
this contention, the short answer to which is that the
Federal Rules of Civil Procedure do not govern service
of process in Board proceedings. Moreover, we agree
with the judge that the charges were effectively served.
Many of the charges were sent to the Respondent at
its correct address, 333 Meadowland Parkway,
Secaucus, New Jersey, by certified mail, which is a
method of service expressly provided for in the
Board’s rules. Although other charges apparently were
not mailed to the correct address, the judge found, and
the record establishes, that Union Agent Robert
Sarason hand-delivered copies of all the then-existing
charges2 and the original complaint to the Respond-
ent’s correct address and left them with the recep-
tionist.
Thus, the record establishes that the Respondent ac-
tually received copies of all the charges.3 The Board
has long held that procedural requirements regarding
proof of service should be liberally construed, and that
when charges have in fact been received, technical de-
fects in the form of service do not affect the validity
of service.4 Accordingly, we find that, because the Re-
spondent actually received copies of the charges, any
technical defect in Sarason’s method of service did not
affect the validity of the service.5
Moreover, even if we were to find that the charges
sent to the wrong address were never received, the Re-
spondent still would not be prejudiced by the litigation
of those matters. That is because the allegations of
those charges were almost identical to the allegations
of charges that were sent to the Respondent’s correct
address. Thus, the charges in Cases 22–CA–16735 (1,
2) alleged that the Respondent unlawfully refused to
meet for negotiations until March 1990. Virtually the
identical allegations were made in the charges in Cases
22–CA–16771 (1, 3–5), which were mailed to the Re-
spondent’s correct address; the only difference con-
cerned the locations of the bargaining units for which
negotiations were sought. Likewise, the charges in
Cases 22–CA–16740 (1–4, 7, and 8) alleged an unlaw-
ful refusal to provide information. So did the charges
482 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The charges in Cases 22–CA–16740 (5, 6, 9, 10, and 11) contained allega-
tions that are not contained in the complaint. The service of those charges,
vel non, therefore is immaterial to this proceeding.
7 See Nickles Bakery of Indiana, 296 NLRB 927 (1989); Redd-I, Inc., 290
NLRB 1115 (1988).
8 The Respondent also contends that it was under no duty to bargain with
the Union at all, for a variety of reasons, all of which are devoid of merit.
In adopting the judge’s findings in this regard, we note, in addition, the fol-
lowing:
(1) The judge’s finding that the Respondent is estopped from contesting the
Union’s status as the successor to Local 389 finds further support in the fact
that the Respondent’s proposed contract, which it submitted in September
1988 (nearly a year after the merger of Local 389 into Local 32B-32J) names
Local 32B-32J (the Union) as the employees’ representative, and in the Re-
spondent’s continuing to deduct union dues as late as July 1989, long after
the merger. Further, the Union relied to its detriment on the Respondent’s fail-
ure to challenge the merger; it took no action to reestablish it status, other
than to collect authorization cards at two or three facilities in response to
Keiler’s unfounded suggestion to the Union’s negotiator that the Union no
longer represented a majority of unit employees. In addition, we find that by
continuing to treat Local 32B-32J as the representative of its employees after
having been informed by the Union’s agent that ‘‘New York [Local 32B-32J]
had taken over [Local] 389 [and] was calling all of the shots,’’ the Respondent
knowingly and intentionally waived its right to mount this belated challenge
to the Union’s representative status. Ventura County Star-Free Press, 279
NLRB 412 fn. 1, 419 (1986). Furthermore, we find that the Respondent, hav-
ing waited more than 6 months after effectively accepting the Union as the
successor to Local 389, is precluded by Sec. 10(b) from contesting the Union’s
successor status now. Sewell-Allen Big Star, 294 NLRB 312 (1989).
(2) Concerning the Respondent’s claim that the bargaining units are inappro-
priate because they include guards with nonguards, we note that the collective-
bargaining agreements in evidence contain wage scales that refer to various
categories of employees; not one mentions guards. (Indeed, two agreements
state that the unit consists of cleaning employees, a description that cannot be
construed as including guards.) The Board will not find that a unit includes
classifications of employees in which no employees ever worked (even if those
classifications were included in the parties’ recognition agreement) when, as
in this case, it may be inferred that the parties did not consider the employees
in question to be part of the unit. White-Evans Service Co., 285 NLRB 81,
82–83 (1987). If the Respondent actually has, as it contends, hired guards
since the close of the hearing, the guards may be excluded from the units by
means of a unit clarification proceeding. Atlanta Hilton & Towers, 278 NLRB
474 fn. 1 (1986). As for the Respondent’s argument that the units include su-
pervisors, we note that the unit descriptions in the contracts speak only of
‘‘employees,’’ a term which, under Sec. 2(3) of the Act, specifically excludes
supervisors. The record is bereft of evidence that the parties intended to in-
clude supervisors in the units, or that supervisors were in fact included in the
unit.
With respect to the Respondent’s nonmeritorious contention that the Union
‘‘abandoned’’ the unit employees, see, e.g., Pioneer Inn, 228 NLRB 1263
(1977), enfd. 578 F.2d 835 (9th Cir. 1978).
9 Under the Respondent’s implemented 1988 proposal, full-time employees
earned $6.97 per hour, compared to $5.67 per hour for part-time employees.
Thus, the Respondent contends that when it cut the wage rate to $5 per hour
and reduced hours, $1.30 of the wage reduction totaling $1.97 would have
taken place automatically because of the employees’ conversion from full-time
to part-time status.
10 The Respondent does not contend that the specific changes in wages,
hours, and benefits that it imposed effective July 1, 1989, were contained in
its September 1988 proposal.
11 A ‘‘most favored nation’’ clause is a mandatory bargaining subject, and
an employer may lawfully bargain to impasse over the inclusion of such a
clause in a collective-bargaining agreement. Dolly Madison Industries, 182
NLRB 1037, 1038 (1970). The question here, however, is not whether the Re-
spondent lawfully bargained to impasse over the ‘‘most favored nation’’
clause, but whether it lawfully reduced wages pursuant to the provisions of
the clause without notice to or bargaining with the Union. Cf. Colorado-Ute
Electric Assn., 295 NLRB 607 (1989).
12 We find no merit in the Respondent’s argument that it bargained to im-
passe concerning the other five units. No bargaining took place regarding the
units at Exxon-Florham Park, Exxon-Clinton, Bloomingdales, and Continental
in Cases 22–CA–16758 (1–6), which were mailed to
the correct address.6 Because the allegations in the er-
roneously addressed charges are closely related to
those in the charges that were mailed to the Respond-
ent’s correct address—that is, the former involved the
same legal theories, factual situations, and defenses as
the latter—the former allegations could have been in-
cluded in the complaint, or added to it by way of
amendment, even if separate charges regarding those
matters had not been filed.7 That being the case, the
Respondent would not be adversely affected by the in-
clusion in the complaint of the allegations in the
charges in question, even if we were to find the serv-
ice of those charges to be materially defective.
2. The complaint alleges, and the judge found, that
the Respondent violated Section 8(a)(5) and (1) of the
Act on July 1, 1989, when it unilaterally reduced the
wages and hours of employees in the bargaining unit
at Exxon-Linden, and eliminated their health insurance.
The Respondent defends its action on the basis that it
bargained to impasse with the Union concerning the
Exxon-Linden unit in September 1988, and in Decem-
ber 1988 lawfully implemented its final offer. That
offer contained a management-rights clause and a
‘‘most favored nation’’ clause, which together, the Re-
spondent contends, permitted it to make the July uni-
lateral changes.8
The Respondent first argues that, under both the
terms of its 1988 offer and of the expired contract cov-
ering the employees at Exxon-Linden, it had the right
to reduce the hours of work of unit employees. Under
the Respondent’s reasoning, because part-time employ-
ees received lower wage rates and were not entitled to
health insurance coverage, the employees’ loss of
health insurance, and most of their reduction in
wages,9 were the direct result of its reduction in their
hours of work, which it effected pursuant to its rights
under the contracts.
Second, the Respondent relies on a ‘‘most favored
nation’’ clause contained in its final offer. Under that
provision, if the Union agreed to grant more favorable
conditions to a competitor of the Respondent, the Re-
spondent would immediately have the benefit of those
conditions. The Respondent contends that it lawfully
reduced the wage rates of employees at Exxon-Linden
pursuant to the ‘‘most favored nation’’ clause. We find
no merit to either of the Respondent’s arguments.10
The judge addressed only the Respondent’s defense
based on the ‘‘most favored nation’’ clause. He found
that, even if the parties had bargained to impasse, as
the Respondent claimed, it was ‘‘not logically pos-
sible’’ for the Respondent to implement the ‘‘most fa-
vored nation’’ clause because, by its nature, the clause
required the Union’s consent.11 Because the Union had
not given its consent, the judge found the unilateral
changes unlawful.
Even assuming that the Respondent had bargained to
impasse and thus was entitled to implement the terms
of its proposal at Exxon-Linden,12 we nevertheless
483CONTROL SERVICES
Towers until the January 1989 session, at which, according to the credited tes-
timony, the Union’s attorney, Ronald Raab, assured Keiler that the Union was
not, in fact, insisting on areawide recognition. The record does not establish
that impasse was reached on that or any other issue with respect to those units.
(However, we disavow the judge’s statement, in the last paragraph of part
III,(a) of his decision, that impasse had not been reached in July 1989 because
the Respondent had refused to meet and bargain; that refusal came in 1990,
not 1989.)
As for the unit at Automatic Switch, the Respondent has not shown that
the parties were at impasse in January 1989, when it implemented the terms
of its final (and only) offer. Attorney Keiler testified that those terms were
implemented at a meeting of employees that may have taken place after his
first negotiating session with Raab. Any impasse the parties may have reached
prior to that session was broken by Raab’s assurances to the Respondent that
the Union was not insisting on an areawide agreement. Because the record
does not establish that the Automatic Switch offer was implemented before the
impasse was broken, the Respondent has not carried its burden of dem-
onstrating that it lawfully implemented the terms of that offer. See Roman Iron
Works, 282 NLRB 725, 731 (1987), enf. denied on other grounds sub nom.
NLRB v. Koenig Iron Works, 856 F.2d 1 (2d Cir. 1988).
13 The judge properly relied on Bannon Mills, 146 NLRB 611, 613 fn. 4,
633–634 (1964), and its progeny.
In its exceptions, the Respondent contends that it was not required to com-
ply with the subpoenas, but only because they were not served pursuant to
the requirements of Rule 45, Federal Rules of Civil Procedure. There is no
merit to that exception. As the judge found, the subpoenas were properly
served pursuant to Sec. 11(4) of the Act. We note in addition that service of
the subpoenas was effected pursuant to Secs. 102.113 and 102.114 of the
Board’s Rules and Regulations. Thus, the Union served its own subpoena by
certified mail at the Respondent’s correct address, and the Respondent refused
to accept delivery. The Union’s subpoena therefore was served pursuant to
Sec. 102.114. Sarason also hand-delivered a copy of the General Counsel’s
subpoena to the Respondent’s principal office and left it with the receptionist
(who stated that she could not accept service). In this regard, Sarason was act-
ing as the agent of the General Counsel, and therefore effected service pursu-
ant to Sec. 102.113 which, inter alia, allows for service by the Board ‘‘by
leaving a copy . . . at the principal office or place of business of the person
required to be served.’’ Because Sec. 102.113 contains no requirement that
subpoenas be delivered only to agents for service of process, the receptionist’s
lack of authority to accept service is irrelevant. Shaw Industries, 255 NLRB
877 fn. 1 (1981), is not to the contrary. Although the Board there found that
service of the General Counsel’s subpoena was defective because, inter alia,
the subpoena was not served on anyone authorized to receive service in the
respondent’s behalf, there is no indication that the subpoena was left at the
respondent’s principal office, pursuant to 102.113 of the Board’s rules, or what
method of service was used.
14 That testimony was introduced before the judge made his exclusionary
ruling.
15 Because we rest our decision on the Respondent’s failure to show that
it made the unilateral changes pursuant to the ‘‘most favored nation’’ clause,
we are not required to, and do not, decide whether its actions would have been
lawful if it had made such a showing.
find, as did the judge, that the Respondent’s reduction
of wage rates at that facility was not justified by the
‘‘most favored nation’’ clause in that proposal. Our
reasoning, however, is different from the judge’s. We
find that, whether or not it would have been lawful for
the Respondent to have reduced wage rates pursuant to
the ‘‘most favored nation’’ clause, as it claims to have
done, the Respondent failed to demonstrate that the
July 1989 unilateral changes were, in fact, made pursu-
ant to that clause. In the first place, the Respondent’s
memorandum to the Exxon-Linden employees an-
nouncing the impending changes made no mention of
the ‘‘most favored nation’’ clause or of any facts indi-
cating that the reductions were being made to match
conditions in effect at any of the Respondent’s com-
petitors. Instead, the memorandum stated only that
‘‘Control Services is facing economic cutbacks at Lin-
den Technical Center.’’
In addition, although the Respondent sought to intro-
duce documentary evidence and testimony to the effect
that the changes in question were made in response to
information the Respondent had received concerning
conditions at one of its competitors, the judge properly
refused to admit that evidence because the Respondent
had refused to honor valid subpoenas for documents
that would have related to the unilateral changes.13
And although Attorney Keiler, who had represented
the Respondent at the time the changes were made,
previously testified14 that he had received evidence
that certain employees of another employer (presum-
ably a competitor of the Respondent) were receiving
lower wages than the Exxon-Linden employees, he
failed to state whether he received that information be-
fore or after the unilateral changes were made, or
whether the competitor’s employees were doing work
that was comparable to that performed by the Re-
spondent’s employees. Thus, even assuming Keiler’s
testimony was not implicitly stricken as a result of the
judge’s later ruling, it still does not establish that the
Respondent was acting pursuant to the ‘‘most favored
nation’’ clause when it made the unilateral changes.15
The judge did not deal with the Respondent’s other
contention—that it was contractually entitled to reduce
the employees’ hours of work and, consequently, to re-
duce their wage rates and take away their health insur-
ance coverage by converting them from full-time to
part-time status. That argument, however, does not
withstand scrutiny.
Section II,3 of the Respondent’s collective-bar-
gaining agreement with Local 389, Local 32B-32J’s
predecessor, at Exxon-Linden provided that ‘‘Nothing
contained in this agreement shall be deemed to con-
stitute a guarantee of any particular number of hours,
or any particular days of work per week for any em-
ployee.’’ Section VI of that agreement provided for
higher hourly wages for full-time than for part-time
employees. Section VII contained provisions for hos-
pitalization and major medical benefits for ‘‘regularly
employed full time (40 hours or more per week)’’ em-
ployees, but not for other employees. The agreement
also contained a ment rights/ment-rights clause (sec.
XVIII), which stated, in relevant part, that ‘‘the Com-
pany has the unqualified right to schedule hours of em-
ployment . . . [or] to relieve employees of duties be-
cause of lack of work[.]’’ The Respondent’s final
offer, which it implemented at Exxon-Linden, con-
tained the same provisions just cited, except that the
ment rights/ment-rights clause (sec. XVI) provided that
Whatever conditions of whatsoever kind which
have not been specifically mentioned in this
Agreement are reserved to the Employer which is
free to make unilateral changes concerning those
reserved items without the necessity of prior noti-
484 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 See Sec. 8(d) of the Act.
17 Ibid.
18 Suffolk Child Development Center, 277 NLRB 1345, 1348 (1985).
19 Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983).
20 United Technologies Corp., 300 NLRB 902 (1990), is distinguishable
from this case. There, the Board found that the union had waived its right to
bargain over an increase in Saturday overtime by agreeing to a ment
rights/ment functions clause that permitted the employer unilaterally to deter-
mine ‘‘shift schedules and hours of work.’’ [Emphasis added.] By contrast,
neither the Respondent’s contract with Local 389 nor its 1988 proposal al-
lowed the Respondent to determine unilaterally the number of hours employ-
ees would work.
21 Holiday Inn of Victorville, 284 NLRB 916 (1987); Kendall College of Art,
288 NLRB 1205, 1212 (1988).
22 A waiver of bargaining rights may be inferred from bargaining history,
but only if the matter at issue has been fully discussed and consciously ex-
plored during negotiations and the union has consciously yielded or clearly
and unmistakably waived its interest in the matter. Johnson-Bateman Co., 295
NLRB 180 (1989). There is no indication that those conditions were met in
this case.
23 Colorado-Ute Electric Assn., supra.
fication to the Union. The Employer specifically
has the unilateral right to subcontract or sell all or
any portion of its business. Such subcontracting or
sale shall not be a subject of lawsuit or unfair
labor practice charge.
The Respondent contends that both its former con-
tract with Local 389 and its 1988 proposal, as imple-
mented, gave it the right to reduce employees’ hours
of work. The Respondent further contends that, be-
cause it was entitled to reduce hours, it had the deriva-
tive right to convert the employees from full-time to
part-time status, with accompanying wage reductions
and loss of health benefits, without bargaining with the
Union. We disagree with the Respondent on both
counts.
Hours of work are, of course, mandatory subjects for
collective bargaining.16 So are wage rates17 and health
benefits.18 Accordingly, the Respondent was legally
obligated to bargain with the Union over changes in
the employees’ working hours (and the effects of those
changes on wage rates and health benefits) unless the
Union had waived, contractually or otherwise, its right
to bargain over those subjects. We find no such waiv-
er.
The waiver of a statutory right will not be inferred
from general contract language; such waivers must, in-
stead, be clear and unmistakable.19 We find no evi-
dence of a contractual waiver of the Union’s right to
bargain over changes in hours, wage rates, or health
benefits in either the Respondent’s contract with Local
389, or in the Respondent’s 1988 proposal. As we
have noted, both the former contract and the proposal
stated that employees were not guaranteed any par-
ticular number of hours of work per week. Those pro-
visions, however, mean no more than what they say:
employees had no contractual right to any given num-
ber of hours of employment. They cannot be inter-
preted to mean that either Local 389 or Local 32B-32J
had waived its statutory right to bargain over changes
in the numbers of hours to be worked by unit employ-
ees, at least insofar as such changes would automati-
cally result in a lowering of wage rates and a loss of
medical benefits.
Still less is it possible to construe the ment
rights/ment rights clause of the contract with Local 389
as a waiver of the Union’s right to bargain over
changes in hours. In the first place, that clause refers,
in pertinent part, only to the Respondent’s right to
schedule (not to reduce) hours of work,20 and to re-
lieve employees of duty (not to reduce their hours) be-
cause of lack of work. Second, a ment rights/ment-
rights clause is not, in itself, a term or condition of
employment that outlives the contract that contains it,
absent some evidence of the parties’ intentions to the
contrary. Thus, any waiver of a union’s bargaining
rights that is bottomed on a ment rights/ment-rights
clause normally is limited to the time the contract is
in force.21 Therefore, to the extent the Respondent re-
lies on the ment rights/ment-rights clause of the former
contract, that reliance is misplaced, because there is no
evidence that any such waiver inferred from that clause
was intended to survive the contract.
The Respondent’s reliance on the ment rights/ment-
rights clause in its 1988 proposal is even wider of the
mark. That proposal, it will be recalled, was imple-
mented after the Respondent asserted that the parties
were at impasse in the negotiations regarding the
Exxon-Linden unit. There is no indication in the
record, however, that either the ment rights/ment-rights
clause or the subject of changes in hours of work ever
came up in those negotiations; to the contrary, it ap-
pears that the only issue discussed was the scope of
the recognition clause (the topic over which impasse
was reached).22 Moreover, the ment rights/ment-rights
clause in the Respondent’s proposal arrogates to the
Respondent the right to make unilateral changes, with-
out notifying the Union, in any condition of employ-
ment not mentioned in the ‘‘agreement.’’ The upshot
of the Respondent’s position, then, is that it was privi-
leged to reduce unit employees’ hours of work and,
concomitantly, to cut their wages and eliminate their
health insurance, all pursuant to a clause that had not
even been discussed with, let alone agreed to by, the
Union, and which does not advert in any way to the
matters at issue except insofar as they come within the
extensive rubric of conditions not mentioned in the Re-
spondent’s proposal. A more abject failure to meet the
‘‘clear and unmistakable’’ standard for establishing
waiver of statutory bargaining rights does not readily
come to mind. As the Board has stated, ‘‘Where an
employer proposal seeks the union’s waiver of statu-
tory rights . . . impasse is no substitute for con-
sent.’’23 Consequently, even if the parties bargained to
impasse regarding Exxon-Linden, the Union still did
485CONTROL SERVICES
24 Member Cracraft agrees that neither the ment rights/ment-rights clause of
the Respondent’s expired contract with Local 389 nor the ment rights/ment-
rights provision of the Respondent’s 1988 proposed contract constituted a
waiver of the union’s right to bargain over changes in hours. She relies, how-
ever, only on the grounds that it has not been established that the ment
rights/ment-rights clause of the Local 389 contract survived the expiration of
the contract, and that the Union did not agree to the ment rights/ment-rights
clause contained in the 1988 proposal. Kendall College of Art, supra, 288
NLRB 1205, 1212. Accordingly, Member Cracraft finds it unnecessary to de-
cide whether United Technologies Corp., supra, is distinguishable from this
case.
25 To whatever extent the Respondent may have been precluded from intro-
ducing relevant evidence on this subject by the judge’s Bannon Mills ruling,
the problem created was one the Respondent brought on itself by refusing to
comply with the subpoenas. Bannon Mills, 146 NLRB 611 (1964).
26 With respect to those eight alleged discriminatees about whom Sarason
was permitted to testify, we find no need to decide whether the Respondent’s
refusal to comply with subpoenas interfered with the General Counsel or
Union’s ability to call those individuals to testify. It is well-established that
an administrative law judge has the discretion to admit and consider relevant
hearsay evidence in deciding unfair labor practice issues if the hearsay evi-
dence is ‘‘rationally probative in force and . . . corroborated by something
more than the slightest amount of other evidence.’’ RJR Communications, 248
NLRB 920, 921–922 (1980). Sarason’s testimony is probative, partially cor-
roborated by employee Jurado’s testimony, and, as previously stated, the Re-
spondent does not contest its veracity.
Chairman Stephens agrees that the judge properly found that Jurado was
constructively discharged. However, he would not find that the other named
employees were constructively discharged on the basis of Sarason’s hearsay
testimony. Unlike the majority, Chairman Stephens does not find that Jurado’s
testimony, which addressed only her own reasons for quitting, sufficiently cor-
roborated Sarason’s testimony that the latter may be admitted as evidence.
Chairman Stephens would not foreclose all possibility of finding that those
employees were constructively discharged, however. In his view, once one or
more constructive discharges resulting from unlawful unilateral changes have
been identified and the violation found, any other possible constructive dis-
charges may properly be treated like other damages to employees resulting
from such unlawful changes. That is, both the identities of the employees ad-
versely affected by the changes and the extent of their damages are matters
that may be left to compliance proceedings. Accordingly, Chairman Stephens
would permit the named employees other than Jurado, like any former employ-
ees who have not yet been identified, to testify in compliance proceedings con-
cerning the circumstances of their separation from the Respondent’s employ,
and to be found to have been constructively discharged if the record would
support such a finding.
27 E.g., White-Evans Service Co., supra at 81–82.
28 See, e.g., NLRB v. Malta Construction Co., 806 F.2d 1009, 1011 (11th
Cir. 1986); Fabric Services, 190 NLRB 540, 541 (1971).
29 Fabric Services, supra, 190 NLRB at 542.
In any event, Supervisor Timothy Pernell, who made the unlawful state-
ment, conceded that, although the Exxon superintendent told him the employ-
ees should remove the dots from their badges, Pernell went beyond that in-
struction and told the employees to remove the dots from their uniforms and
faces as well.
not waive its right to bargain over reductions in hours
of work.24
In summary, we find that the Union did not waive
its right to bargain over changes in hours, wages, and
health benefits, and that the Respondent was not con-
tractually entitled to effect the changes in question at
Exxon-Linden without first bargaining with the Union.
Because we also find that the Respondent failed to
show that it reduced the Exxon-Linden employees’
wages pursuant to the ‘‘most favored nation’’ clause in
its 1988 proposal, we affirm the judge’s finding that
the unilateral changes were unlawful.
3. The judge also found that several named employ-
ees at the Respondent’s Exxon-Linden facility, who re-
signed their employment rather than work under the
unlawfully imposed conditions discussed above, were
constructively discharged in violation of Section
8(a)(3) and (1). In this regard, Rita Jurado testified that
she resigned from the Respondent’s employ because of
the unlawful changes. In addition, because of the Re-
spondent’s refusal to comply with valid subpoenas, the
judge allowed Sarason to testify that several other indi-
viduals had informed him that they also resigned rather
than continue to work at Exxon-Linden under the new
conditions. The Respondent made no attempt to rebut
Sarason’s testimony.25 On the contrary, the Respond-
ent concedes in its brief in support of exceptions that
‘‘it appears that the employees quit because of Con-
trol’s lawful reduction in their total hours and elimi-
nation of health insurance.’’
As previously stated, the Respondent is mistaken in
the view that its unilateral changes were lawful. Ac-
cordingly, we affirm the judge’s finding that Jurado
and the eight employees named by Sarason were con-
structively discharged in violation of Section 8(a)(3) of
the Act.26 In affirming the judge, however, we rely on
the theory of constructive discharge applicable to em-
ployees who quit after being confronted with a choice
between resignation or continued employment condi-
tioned on relinquishment of statutory rights.27 In the
instant case, the employees were required to work
under conditions that were established in derogation of
the right to bargain. We do not rely on Adscon, Inc.,
290 NLRB 501 (1988), cited by the judge, which rep-
resents a different theory of constructive discharge that
is not applicable to the circumstances of this case.
4. The judge found that the Respondent violated
Section 8(a)(1) of the Act by informing employees at
its Exxon-Florham Park facility that they had to re-
move union insignia (small green dots, worn to show
union solidarity) if they wanted to work. We adopt that
finding. It is well established that employees have the
protected right to wear union insignia at work absent
a showing of ‘‘special circumstances,’’ such as an ad-
verse impact on production or discipline that might re-
sult from the exercise of that right.28 No such special
circumstances have been shown here.
In support of his finding, however, the judge appar-
ently rejected the Respondent’s contention that a su-
pervisor for the client, Exxon, had given ‘‘explicit in-
structions’’ that the dots should not be displayed on
the employees’ badges ‘‘or elsewhere.’’ In affirming
the judge, we disavow any inference that, had the Re-
spondent been acting on ‘‘explicit instructions’’ from
Exxon, it could lawfully have prohibited employees
from wearing the dots. A desire to please a customer
does not, alone, provide a business justification for in-
fringing employees’ statutory rights.29 Unless ‘‘special
circumstances’’ exist, an employer violates Section
8(a)(1) by prohibiting the wearing of union insignia,
486 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
30 There is no merit to the Respondent’s contention that it did not know the
green dots had anything to do with the Union. Pernell admitted that he had
been informed that the Union had told the employees to wear the dots.
Gimbel Bros., 147 NLRB 500 (1964), on which the Respondent relies, is
distinguishable from this case. In Gimbel Bros., the Board adopted the trial
examiner’s finding that the employer did not restrain or coerce employees, or
interfere with an election, by asking employees not to wear flowers that had
been distributed by the joint petitioners on the morning of the election. On
the facts of that case, the trial examiner rejected the contention that wearing
the flowers identified the sympathies of the employees. Here, by contrast, the
green dots were worn by the employees expressly as a show of solidarity and
to show that they wanted a union.
31 However, we have adopted the judge’s findings that the Respondent un-
lawfully refused to provide certain information requested by the Union.
Among the items of information requested were the names of unit employees
and their seniority dates. Under the terms of the Order, the Respondent will
be obliged to furnish that information. Thus, even though we find no unlawful
unilateral change in the Respondent’s refusal to provide access to seniority
lists, the Union will receive the information it sought.
whether it does so on its own or at the behest of an-
other employer.30
5. The judge concluded that the Respondent violated
Section 8(a)(5) of the Act by unilaterally changing an
existing condition of employment, established in ex-
pired contracts, when it denied the Union continuing
access to unit employees working at the
Bloomingdale’s and Automatic Switch facilities and
when it denied the Union access to seniority lists for
those employees. We affirm this conclusion only as to
the Union’s access to employees. The complaint did
not allege and the General Counsel has not argued that
the Respondent unilaterally changed an established
practice of access to seniority lists, at customer sites
or elsewhere. The expired contracts make no specific
reference to such access. We shall modify the rec-
ommended notice and Order by deleting provisions for
access to seniority lists.31
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Con-
trol Services, Inc., Secaucus, New Jersey, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 1(d).
‘‘(d) Denying the Union access to the Respondent’s
employees, where such a denial of access would con-
stitute a unilateral change in terms and conditions of
employment of employees represented by the Union.’’
2. Substitute the following for paragraph 2(a).
‘‘(a) On request, bargain with the Union as the ex-
clusive representative of the employees in the fol-
lowing appropriate bargaining units concerning terms
and conditions of employment and, if understandings
are reached, embody the understandings in signed
agreements:
‘‘(a) All employees except window cleaners
employed by the Respondent at the Exxon Re-
search and Engineering site in Linden, New Jer-
sey.
‘‘(b) All cleaning employees except window
cleaners employed by the Respondent at the
Exxon Research and Engineering site in Clinton,
New Jersey.
‘‘(c) All employees except window cleaners
employed by the Respondent at Exxon Research
and Engineering facilities in Florham Park and
Morristown, New Jersey.
‘‘(d) All employees employed by the Respond-
ent at Bloomingdale’s Department Stores, Hack-
ensack, New Jersey.
‘‘(e) All employees employed by the Respond-
ent at the Automatic Switch Company premises
on Hanover Road in Florham Park, New Jersey.
‘‘(f) All cleaning employees except window
cleaners employed by the Respondent at the Con-
tinental Plaza, in Hackensack, New Jersey.’’
3. Substitute the attached notice for that of the ad-
ministrative 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 refuse to meet and bargain with Local
32B-32J, Service Employees International Union,
AFL–CIO at reasonable times.
WE WILL NOT refuse to furnish relevant information
requested by the Union for purposes of collective bar-
gaining.
WE WILL NOT withdraw recognition from the Union.
WE WILL NOT deny the Union access to our employ-
ees where such a denial of access would constitute a
unilateral change in terms and conditions of employ-
ment of employees represented by the Union.
WE WILL NOT unilaterally reduce the wage rates or
hours of employment or eliminate the medical insur-
ance benefits or any other benefits of employees with-
out bargaining with the Union.
487CONTROL SERVICES
WE WILL NOT bar our employees from wearing
union insignia.
WE WILL NOT discharge or constructively discharge
any of our employees because of their membership in
and/or activities on behalf of the Union.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL, on request, bargain with the Union as the
exclusive representative of the employees in the fol-
lowing appropriate bargaining units concerning terms
and conditions of employment and, if understandings
are reached, embody the understandings in signed
agreements:
(a) All our employees except window cleaners
employed at the Exxon Research and Engineering
site in Linden, New Jersey.
(b) All our cleaning employees except window
cleaners employed at the Exxon Research and En-
gineering site in Clinton, New Jersey.
(c) All our employees except window cleaners
employed at Exxon Research and Engineering fa-
cilities in Florham Park and Morristown, New Jer-
sey.
(d) All our employees employed at
Bloomingdale’s Department Stores, Hackensack,
New Jersey.
(e) All our employees employed at the Auto-
matic Switch Company premises on Hanover
Road in Florham Park, New Jersey.
(f) All our cleaning employees except window
cleaners employed at the Continental Plaza, in
Hackensack, New Jersey.
WE WILL offer Luiza Bezerra, Rita Jurado, J.
Bentencourt, A. Diaz, L. Dessnatos, J. Malinowaski, J.
Pinkiewicz, J. Pinton, R. Wasilco, A. Zasadzki, and
any other employees in the Exxon-Linden bargaining
unit who were constructively discharged, immediate
and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other
rights or privileges previously enjoyed, and make them
whole for any loss of earnings and other benefits suf-
fered as a result of the discrimination against them,
with interest.
WE WILL remove from our files any reference to the
unlawful discharges and notify the employees in writ-
ing that this has been done and that the discharges will
not be used against them in any way.
WE WILL make whole employees in the bargaining
units for any losses in earnings and/or benefits that re-
sulted from the unilateral changes we made in wage
rates, hours, benefits, or any other terms and condi-
tions of employment, with interest.
CONTROL SERVICES, INC.
Gary A. Carlson, Esq. and Steve Kessler, Esq., for the Gen-
eral Counsel.
Richard B. Slosberg, Esq., for the Respondent.
Larry Engelstein, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in Newark New, Jersey, on April 11 and 12, 1990.
The charges were filed on various dates from November
1989 to March 1990 and a first amended consolidated com-
plaint was issued by the Regional Director for Region 22 on
March 27, 1990. In substance the General Counsel makes the
following allegations:
1. That the Union has been recognized and is the collec-
tive-bargaining representative pursuant to Section 9(a) of the
Act in the following separate bargaining units.
(a) All employees except window cleaners employed
by Control Services, Inc. at the Exxon Research and
Engineering site in Linden, New Jersey.
(b) All cleaning employees except window cleaners
employed by Control Services, Inc. at the Exxon Re-
search and Engineering site in Clinton, New Jersey.
(c) All employees except window cleaners employed
by Control Services, Inc. at Exxon Research and Engi-
neering facilities in Florham Park and Morristown, New
Jersey.
(d) All employees employed by Control Services,
Inc. at Bloomingdale’s Department Stores, Hackensack,
New Jersey.
(e) All employees employed by Control Services,
Inc. at the Automatic Switch Company premises on
Hanover Road in Florham Park, New Jersey.
(f) All cleaning employees except window cleaners
employed by Control Services, Inc. at the Continental
Plaza, in Hackensack, New Jersey.
2. That since November 21, 1989, the Respondent has
failed and refused to bargain with the Union in the six units
described above.
3. That in late November 1989 and thereafter, the Re-
spondent has withdrawn recognition from the Union in the
above-described units and has since December 1989 refused
to accept correspondence from the Union.
4. That the Respondent has refused to furnish certain in-
formation necessary for bargaining requested by the Union in
December 1989 and January 1990.
5. That the Respondent on or about July 1, 1989, without
affording the Union an opportunity to bargain, reduced the
wages, hours, and benefits of the employees in the Exxon-
Linden bargaining unit.
6. That as a consequence of the actions described in para-
graph 5, the Respondent constructively discharged certain
488 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 After the hearing concluded, the Respondent, on July 10, 1990, made a
motion to reopen the record to show that it had hired ‘‘guards’’ after the hear-
ing had closed. As the Union has never purported to represent any guards of
this employer and as there is no indication that it presently seeks to represent
guards, the Respondent’s offer of proof is irrelevant. The historical bargaining
units in the present cases did not include guards and it is not within the power
of the employer to unilaterally change the bargaining units to include guards.
This is particularly true as the Respondent wants to assert that such a change
would therefore disqualify the Union from representing any employees because
of Sec. 9(b)(3) of the Act. This attempt by the Respondent to hoist itself by
its own petards is rejected as is its motion.
Similarly I deny the Respondent’s posttrial motion to receive into evidence
a copy of the Union’s New Jersey Independent Agreement. While the Re-
spondent asserts that this document proves that the Union represents guards
and nonguards at other employers, it does not claim nor is there any evidence
to show that the Union is seeking to represent any unit of guards and non-
guards employed by this Respondent. Therefore the document is irrelevant to
any legitimate issue in this case.
named employees as well as other employees whose identi-
ties were unknown to the General Counsel.
7. That in January 1990, the Respondent, without affording
the Union an opportunity to bargain, altered the existing
terms and conditions of employment of the employees at the
Bloomingdale’s and Automatic Switch locations by denying
union representatives access to the premises where those em-
ployees were working.
8. That the Respondent, on or about December 5 and 6,
1989, ordered its employees at the Exxon-Linden jobsite to
remove union insignia.
9. That the Respondent, on June 15, 1989, unlawfully dis-
charged Luiza Bezerra because of her membership in and/or
activities on behalf of the Union.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits that is a New Jersey corporation
with its principal place of business in that State. It admits
that during the 12 month period preceding the issuance of the
complaint, it has performed services valued in excess of
$50,000, outside the State of New Jersey. Further, the Re-
spondent concedes and I find that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act. The Respondent also admits and I find that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
The Respondent contends that the charges on which the
complaints are based, were not served on the Respondent.
With respect to this contention, the initial charge in these
cases was filed on November 29, 1989, and the last charge
was filed on March 1, 1990. The formal papers which were
received into evidence as General Counsel’s Exhibit 1 show
that in all cases the charges were sent to the Respondent at
its correct address, 333 Meadowland Parkway, Secaucus,
New Jersey 07084, by certified mail with return receipts re-
quested. (In many cases a copy of the charges were also
mailed to the Company’s attorney Joel Keiler.) In a signifi-
cant number of cases, the evidence shows that the envelopes
containing the charges were either unclaimed or refused by
the Company on delivery by the postman. As a consequence,
on February 26, 1990, Union Agent Robert Sarason hand de-
livered all of the extant unfair labor practice charges to the
Company’s offices at the above noted address where he left
them with the receptionist. (That included all of the instant
charges except for Cases 22–CA–16669, 22–CA–16760(6),
and 22–CA–16839.)
Section 102.113 states:
Methods of service of process and papers by the Board;
proof of service.—(a) Charges, complaints and accom-
panying notices of hearing, final orders, administrative
law judges’ decisions, subpoenas, and other process and
papers of the Board, its members agent, or agency may
be served personally or by registered or certified mail
or by telegraphy or by leaving a copy thereof at the
principal office or place of business of the person re-
quired to be served. The verified return by the indi-
vidual so serving the same, setting forth the manner of
such service, shall be proof of the same, and the return
post office receipt or telegraph receipt therefor when
registered or certified and mailed or when telegraphed
as aforesaid shall be proof of service of the same.
In accordance with the above, I conclude that the unfair
labor practice charges were properly and timely served when
they were mailed by the Regional Office by certified mail.
I also conclude that they were delivered in the normal course
of business by the United States Postal Service and to the
extent that they were not ‘‘received’’ by the Respondent, this
was due to the Respondent’s refusal to accept such mail.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Bargaining History
The Respondent for some time maintained a collective-
bargaining relationship with a predecessor union named
Service Employees International Union, Local 389. That rela-
tionship involved six of the Respondent’s work locations,
these being: Exxon-Linden; Exxon-Florham Park;
Bloomingdale’s; Continental Towers; Exxon Clinton; Auto-
matic Switch
The collective-bargaining agreements between the Com-
pany and the Union covered each of the above locations as
a separate bargaining unit. The contracts were to expire on
various dates in 1988 and 1989 and essentially, the employ-
ees covered were the cleaning personnel. None of the con-
tracts purported to include guards and in fact, none of the
units contained guards or security type of employees.1 Local
389 merged into the Charging Party, Local 32B-32J, Service
Employees International Union effective on September 1,
1987.
B. The Contract Negotiations
On September 15, 1988, the Respondent’s attorney, Joel
Keiler met with Union Agent Nicholas Caprio Sr. Caprio
told Keiler that New York had taken over Local 389 and was
calling all the shots. Caprio said that his hands were tied and
that he had to have an areawide agreement with the Re-
spondent for all of New Jersey north of Interstate 95. Keiler
testified that he told Caprio that the Company could not
agree to an areawide agreement. According to Keiler, Caprio
replied that his hands were tied and that unless there was an
areawide contract there could not be any contract. At that
489CONTROL SERVICES
2 The Respondent offered into evidence a letter dated September 19, 1988,
which simply confirms Keiler’s version of the September 15 meeting. I re-
jected the letter essentially because the Respondent refused to produce various
documents in response to subpoenas properly served on it before the hearing.
Also, as the letter is basically redundant to Keiler’s unrebutted oral testimony,
the letter itself is not particularly relevant. I therefore reject the Respondent’s
posttrial motion to receive this letter into evidence.
point, according to Keiler, he tendered the Company’s pro-
posal regarding the Exxon-Linden unit and said that because
they seemed to be at an impasse over the recognition clause,
the Company’s proposed contract was therefore its final
offer. Keiler testified that Caprio merely stated OK. None of
the Union’s witnesses controverted Keiler’s testimony as to
this meeting.2
Keiler testified that in November 1988, he called Caprio
Sr. and asked for a meeting over Automatic Switch. Keiler
testified that Caprio asked if he was going to take the same
position. Keiler states that when he answered affirmatively,
Caprio said that a meeting would be a waste of time because
if the Company did not agree to the areawide contract there
was no point in negotiating. Keiler told Caprio that he at
least wanted to give his proposal for Automatic Switch and
that they agreed to meet on December 2.
On December 2, 1988, the meeting was canceled by
Caprio and Keiler left his contract proposal regarding the
Automatic Switch unit at the travel agency next door to the
Union’s office.
Also on December 2, 1988, the Company held a meeting
with the bargaining unit employees at Linden and told them
that it was putting into effect the Company’s ‘‘final offer.’’
As a result, the employees at this location received a wage
increase. Similarly, in January 1989, the Company gave the
employees at Automatic Switch wage increases consistent
with the company proposal left at the travel agent on Decem-
ber 2, 1988.
On January 19, 1989, a meeting was held between the
Union and the Company. According to Keiler, the Union’s
attorney, Ronald Raab, said that the Union had to have the
areawide agreement. Keiler states that when he pointed out
that the recognition clause was illegal, Raab agreed. Accord-
ing to Keiler when he asked why Raab was pushing this
thing, Raab replied that the Union can not organize new lo-
cations individually. According to Keiler, Raab asked if the
Company’s proposals for Florham Park and Clinton were the
same and Keiler replied that they were.
Ronald Raab testified that he met with Keiler once in Jan-
uary 1989 and on another occasion in May 1989. His testi-
mony, which I credit, was that on both occasions he told
Keiler that although the Union would prefer having an
areawide contract, it was not insisting on one and was will-
ing to bargain on an individual basis in each of the separate
bargaining units. Raab further testified that Keiler expressed
doubt that the Union continued to represent the employees at
the Automatic Switch, Exxon-Linden, and Exxon-Florham
Park locations. Raab states that he thereupon told Union
Agent Caprio to get new authorization cards which were
mailed to Keiler in May 1989. (According to Luiza Bezerra,
the shop steward at Exxon-Linden, in the spring of 1989 she
solicited and obtained union authorization cards from about
19 of the bargaining unit employees. She testified that about
12 or 13 employees did not sign.)
Subsequent to a meeting of the negotiators held on or
about May 4, 1989, the Union did not pursue further negotia-
tions until September 1989 when it called in Robert Sarason,
an International representative to assist the Local Union.
On November 21, 1989, Union Agent Sarason sent six
separate letters to the Company, each of which requested the
renewal of negotiations at the six respective bargaining units.
Sarason states that on November 30, 1989, he called
Keiler who said that he had sent a response to the Union’s
letter. According to Sarason, Keiler said that he would not
be able to meet until March 1990 and that when asked why
the delay, Keiler said because of the Union’s delay and be-
cause his schedule was filled up until then. Sarason states
that a series of meetings were arranged for early March
1989, but that he told Keiler that he was reserving his right
to file an unfair labor practice charge regarding the Com-
pany’s unwillingness to meet at an earlier time.
Keiler’s testimony was that Sarason telephoned him and
asked if he had received the Union’s letter. According to
Keiler, he did not respond whereupon Sarason said, ‘‘Hello,
hello.’’ Keiler states that he remained silent, whereupon
Sarason said aren’t you going comment on it. Keiler states
that he told Sarason that there was nothing to comment on
and mentioned that he had sent a reply letter. He states that
when Sarason asked what was in the letter he replied,
‘‘When you get it you can read it.’’ Keiler states that when
pressed about the letter, he told Sarason that it basically said
that he had not heard from the Union for over 6 months and
that he was very busy until March. According to Keiler,
when Sarason said that such a delay was an unfair labor
practice, he ignored Sarason’s comment and did not reply.
Keiler states that when Sarason said that he would file an un-
fair labor practice charge, Keiler said that he did not want
stop him because he made his living from charges being
filed. At the conclusion of the phone conversation, Keiler
states that they agreed to meet on March 1, 2, and 5–8, 1989.
On December 4, 1989, Sarason sent a letter to Keiler
which confirmed the meeting dates. Also on the same date
the Union sent a series of identical letters to Keiler, each of
which requested certain information as to each of the respec-
tive bargaining units. In pertinent part the letters requested:
(1) The most current list of employees with the fol-
lowing information.
Full Name
Address
Seniority Date
Hourly wage Paid
Position
Hours worked
(2) A copy of the health insurance plan, if any, a
listing of employees and the type of coverage they
have, and the cost of such coverage.
(3) A copy of the life insurance plan, if any, a listing
of employees and the type of coverage they have, and
the cost of such coverage.
(4) A copy of the drug prescription plan, if any, a
listing of employees and the type of coverage they
have, and the cost of such coverage.
(5) The most current and comprehensive set of rules
and regulations that has been distributed to the Control
employees at this particular work-site.
490 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On December 13, 1989, Sarason called Keiler to ask if he
had gotten the requests for information. This generated some
give and take as to when the Company would respond.
On December 14, 1989, Sarason remailed the previous let-
ters requesting information by certified mail because among
other things, Keiler in the previous day’s conversation, said
that he had not received the first set of letters yet. With re-
spect to the new set, the evidence shows that Keiler refused
to accept delivery of five of the six letters. (There is a return
receipt signed by Keiler showing delivery of the letter re-
garding the Exxon-Clinton unit on December 28, 1989.)
On January 10, 1990, Sarason sent a letter to the Com-
pany’s president, Edward Turen, complaining that the Re-
spondent’s attorney was not accepting the Union’s certified
mail. Enclosed with this letter were copies of the previous
letters sent to Keiler requesting information. In addition, the
Union by letter dated January 10, 1990, to Turen requested
the following information regarding the employees in each of
the bargaining units.
1. Full name
2. Address
3. Seniority date
4. Regular hourly wage paid.
5. Number of hours worked each week for each
week since June 1, 1989.
6. Gross compensation paid for each week since June
1, 1989.
7. The number of hours that this employee worked
for Control at locations other than the above designated
location.
8. The amount of vacation benefits paid to each unit
employee in 1989, and to each bargaining unit em-
ployee who separated from Control during 1989, and
for all such employees, their seniority dates.
9. All changes in wage rates, or regularly scheduled
hours, for any bargaining unit employee during 1989.
10. All changes in insurance benefits, or policies
provided bargaining unit employees in 1989.
The letter requesting the additional information (described
immediately above), was sent by Express Mail, return receipt
requested. The envelope shows that it was delivered, but re-
fused by the addressee.
According to Sarason, on January 16, 1990, he called
Keiler who said that he had received a copy of the Union’s
requests for information. Sarason states that when he asked
Keiler when the information would be provided, Keiler said
that he did not know when they were going to provide it.
According to Sarason, when he told Keiler that failure to
provide the information in a timely fashion would cause the
Union to file an unfair labor practice charge, Keiler re-
sponded that he did not care if the Union filed charges; that
more charges meant more money for him.
Sarason states that on February 27, 1990, he called Keiler
and asked if he was going to provide the requested informa-
tion before the bargaining began on March 1. According to
Sarason, Keiler replied that the Company had not yet decided
whether to give the information or even to bargain. Keiler
said that the Company might just wait until the unfair labor
practice case was finished in the court of appeals before
commencing to bargain. According to Sarason, when he said
that the Union would seek relief, Keiler said what kind of
relief could you seek besides filing another charge and wait-
ing 2 years to get a decision.
Sarason states that on February 28, he called Keiler and
asked if he had made a decision. According to Sarason,
Keiler said that the Company had decided to litigate rather
than negotiate a contract and that it was not going to do
both. Then Sarason said that he was going to file more
charges, Keiler said that he was neither going to give the in-
formation requested nor bargain on March 1, 1990.
Keiler testified that during a phone conversation with
Sarason, he told the latter that he was thinking about whether
he would show up for the negotiations scheduled in March.
He states that he told Sarason that because the NLRB has
decided to issue a complaint, and because Newark was such
a rotten place, nobody in his right mind would go there
twice; once to negotiate and once to have a trial over why
they did not negotiate. Keiler states that he said that if he
had to go to Newark, he would would go only once and
would make up his mind the following day.
According to Keiler, on February 28, 1990, he called
Sarason back and told him that as long as he had to defend
a refusal to bargain complaint, he was not going to bargain.
Consequently, he canceled the March 1 meeting.
No meetings have been held between the parties since the
meeting of May 4, 1989. Also the Company has not turned
over to the Union any of the information requested.
On March 7, 1990, Sarason sent a letter to Keiler reading:
On February 27, 1990 you canceled the scheduled
negotiations. Please be advised the Union has filed un-
fair labor practice charges regarding your refusal to bar-
gain.
C. Refusal to Grant Access
The collective-bargaining agreement covering the employ-
ees at Automatic Switch, which expired on October 31,
1988, reads:
21. The Union’s representatives shall at all times be
permitted to confer with the employees at and on the
premises of the Employer.
22. Eor the purposes of determining the workers em-
ployed by the Employer who should be members of the
Union under the terms of this Agreement, the Union
shall have the right to inspect the Employer’s com-
pensation payroll records.
The contract covering the Bloomingdale’s unit, which ex-
pired on December 1, 1989, has the same provision.
On January 10, 1989, Sarason went to Bloomingdale’s to
speak to the bargaining unit employees but was not let in by
Bloomingdale’s security personnel at the direction of the Re-
spondent.
Sarason states that during a phone call he had with Keiler
on January 16, 1989, he mentioned that when he had gone
to Bloomingdale’s he had been denied access. According to
Sarason, Keiler said that Sarason had no right to be there and
that he also would not be allowed access to Automatic
Switch to talk to employees regarding grievances or union
business. Sarason states that when he told Keiler that the
Union had a right to inspect seniority lists, Keiler said that
491CONTROL SERVICES
3 Sec. 11(4) of the Act provides in pertinent part that ‘‘Complaints, orders
and other process and papers of the Board . . . may be served either person-
ally or by registered or certified mail or by telegraph or by leaving a copy
thereof at the principal office or place of business of the person required to
be served. In Pasco Packing Co., 115 NLRB 437 (1956), the Board held that
valid service was made where the Respondent willfully refused to accept reg-
istered mail. See also M. J. Santelli Mail Services, 281 NLRB 1288, 1293
(1986), where the ALJ held that there was valid service of subpoenas where
the Respondent refused to accept the envelopes in which they were mailed.
4 See also Hedison Mfg. Co. v. NLRB, 643 F.2d 32 (1st Cir. 1981); NLRB
v. C. H. Sprague & Co., 428 F.2d 938 (1st Cir. 1970); NLRB v. American
Art Industries, 415 F.2d 1223 (5th Cir. 1969); Feld & Sons, Inc., 263 NLRB
332 (1982); Louisiana Cement Co., 241 NLRB 536, 537 fn. 2 (1979); Midland
National Life Insurance Co., 244 NLRB 3, 6–7 (1979). Contra see NLRB v.
International Medication Systems, 640 F.2d 1110 (9th Cir. 1981), where the
court held that where a Respondent refused to obey a subpoena, the Board’s
only remedy was to seek enforcement in a Federal District Court.
5 Regarding R. Wasilco, I did not permit the Respondent to produce evi-
dence which it attempted to offer for the purpose of showing that this person
was a supervisor. I did not permit the Respondent to adduce such evidence
because the Respondent refused to comply with the General’s Counsel sub-
poena which called for it to produce, among other things, records showing the
job classifications of its employees at Exxon-Linden during 1989.
the Union had absolutely no right to look at seniority lists
and that he was not going to let it do so.
D. Reduction in Wages, Hours, and Benefits at Exxon-
Linden and the Alleged Constructive Discharges
In June 1989, the Company distributed a memorandum to
its employees at the Exxon-Linden location. This read:
Control Services is facing economic cutbacks at Lin-
den Technical Center. Due to these cutbacks we are
forced to reduce benefits and wages being currently of-
fered effective July 1, 1989. If you wish to continue
working at this occasion it will have to be with reduced
benefits and at an hourly wage rate of $5.00 per hour
for 4 hours per night.
Please let Lillian Lopez . . . know by the end of
your shift today if you will be returning to work on
Monday July 3, 1989. If you do not let us know we
will be replacing your position effective midnight to-
night.
Rita Juardo testified that on June 31, 1989, she quit at Lin-
den because of the reduction in her wage rate, hours, and
benefits.
Because of the Respondent’s refusal to furnish information
to the Union, the Union did not have an up-to-date list of
the Respondent’s employees. Also it had no means to com-
pletely determine which employees left employment at or
around the time that the reduction in wages and benefits oc-
curred.
Prior to the outset of the trial the Union issued a subpoena
duces tecum to the Respondent. This subpoena (along with
a subpoena issued by the General Counsel), was served ini-
tially by registered mail which was refused. The Union’s and
the General Counsel’s subpoenas were then personally served
by Sarason when he left them at the Company’s headquarters
on April 4, 1989. (The Union’s subpoena was accompanied
by a check for a witness fee and travel expenses.)3 Among
other things, the Union’s subpoena required the Respondent
to produce at the hearing, documents regarding the Respond-
ent’s employees at the Exxon-Linden location showing their
working hours, the names of the employees who terminated
in June, July, and August 1989, and any changes in wage
rates or other changes in 1988 and 1989. Similarly, the Gen-
eral Counsel’s subpoena called for the Respondent to
produce the paroll records for every individual employed by
the Respondent at the Exxon-Linden location during 1989.
Because the Company refused to supply to the Union the
names and addresses of its employees and because of the
Company’s contumacious refusal to honor valid and properly
served subpoenas, I permitted Sarason, pursuant to Bannon
Mills, Inc., 146 NLRB 611 (1964), and its progeny,4 to tes-
tify that certain employees had told him that they had re-
signed because of the reduction in wages, hours, and benefits
put into effect at the Exxon-Linden location. Such employees
included J. Bentencourt, A. Diaz, L. Dessnatos, R. Juardo,
J. Malinowaski, J. Pinkiewicz, J. Pinton, R. Wasilco,5 and
A. Zasadzki.
The Company’s defense to the above is that because it had
proposed a most favored nation’s clause and because nego-
tiations had reached an ‘‘impasse,’’ back in December 1988,
it was free to put into effect the reductions at Exxon-Linden.
It therefore argues that even if employees resigned because
of these reductions, the General Counsel has not made out
a case of constructive discharges. For the reasons discussed
below, I reject all of these arguments.
E. Union Insignia
In December 1989 the Union held a meeting at the Ham-
ilton Park Hotel across street from the Exxon Florham park
location. Employees were given little green dots to wear to
show unity. (The dots were about one-fourth inch in diameter
or the size of paper punch holes.)
According to Ruby Winston the Union’s shop steward at
the Exxon Florham Park location, on December 6, 1989, Su-
pervisor Timothy Pernell asked her to remove the dots. She
states that when she told him that the Union told the workers
that they could wear the dots, Pernell said that he wanted
them removed or she would not have a job the next day. Ac-
cording to Winston, after some give and take about the dots,
Pernell said that they had no union; that she had no rights;
and that it was his show which he would run as he wanted
to.
According to Pernell, one of the Exxon night-shift super-
intendents asked him why employees had green dots on their
badges whereupon Pernell, went to leadman, Guy Nicaise, to
ask what the green dots were for. According to Pernell,
Nicaise told him that the Union had given out the green dots,
whereupon he called Joe Salvatoriello and asked what to do.
Pernell states that Salvatoriello told him that the employees
could not wear the dots on their badges if the customer did
not want them to.
Pernell testified that at some point after December 5, 1989,
he told about four employees including Ruby Winston to
take the dots off their badges. In relation to his conversation
with Winston, he states that he told her that the Company
was an outside contractor working in someone else’s build-
ing and that they were the ones that were making the rules
and regulations in reference to the badges which did not be-
long to Control. According to Pernell, when Winston said
she would not take off the dots, he told her that if she did
not, he was not going to let her work. Pernell denies telling
Winston that there was no union at the location or that she
was going to get a refund of her union dues.
492 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Regarding the green dots, it is noted that although the vast
majority of the Respondent’s employees work at night, the
majority of Exxon’s people work during the day. Also, as the
green dots were very small, their presence on the badges can
only be described as insignificant. Moreover, although
Pernell testified that Exxon’s superintendent asked about the
dots, he did not testify that Exxon had given explicit instruc-
tions barring them from being displayed either on the badges
or elsewhere.
F. The Discharge of Luiza Bezerra
Luiza Bezerra was the Union’s shop steward at the Exxon-
Linden bargaining unit.
As noted above, the Company held a meeting with the em-
ployees at this location in December 1988 where it an-
nounced that a wage increase would be given. According to
Bezerra, when ment rights/ment said that they were going to
give a raise, she stood up and said that the money was not
important; that it was much more important to have the
Union because the employees wanted to keep their jobs. She
states that the company spokesman said that the Union just
wanted the people’s money and that she repeated that the
employees wanted to keep the Union.
In the spring of 1989 (probably around May), Bezerra at
the Union’s direction, solicited the employees at Exxon-Lin-
den to sign new union authorization cards that were ulti-
mately turned over to the Company. She obtained cards from
about 19 employees whereas about 12 or 13 did not sign.
On or about June 9, 1989, Bezzera’s baby had a fever and
the babysitter could not take care of her. According to
Bezerra, she called Rita Juardo, a coworker with whom she
normally drives to work, and asked her to tell the supervisor
that she would not be able to get to work that day because
she had to go to the doctor. In this regard, Juardo testified
that when she arrived at work, she told Lillian Lopez and her
assistant, Richard Wasilco, that Bezerra was not coming in
because her child was sick.
On June 12, 1989, Bezerra was discharged. When she
asked why, Wasilco said that Lillian Lopez told him that it
was because she did not call in on the day that she was out.
Regarding the discharge of Bezerra, Lillian Lopez, who at
time of trial was on temporary leave of absence, testified that
she discharged Bezerra because of her failure to call in when
she did not come to work. Lopez denied that Juardo told her
that Bezerra was going to be absent.
The record in this case shows that Bezerra had three prior
warnings between the period from June 2, 1988, to May 16,
1989. On the other hand, the record also shows that other
employees in similar situations have been treated somewhat
differently. For example, although Pierre Francois was ulti-
mately discharged on October 11, 1988, for not calling in
when absent, the record shows that his discharge occurred
only after he had violated the call in rule on ‘‘numerous oc-
casions’’ and that he had previously been suspended for
‘‘disregard of these rules.’’ In another case, an employee
named Annie Bing received a 3-day suspension for not call-
ing in before 3 p.m. when she was absent. Also, the evidence
shows that when employees have left the jobsite during work
hours without authorization, they have received suspensions.
III. DISCUSSION
A. The Refusal-to-Bargain Allegations
As it is obvious that the Respondent has refused to meet
and bargain with the Union since at least March 1, 1989, I
shall first deal with the Respondent’s defenses to the 8(a)(5)
allegations for the sake of convenience.
The Respondent asserts that the Charging Party, Local
32B-32J, is not a valid successor to Local 389 and therefore
the Company is under no obligation to bargain with the al-
leged successor. In this regard, the evidence established that
Local 389 merged into Local 32B-32J in September 1987,
and that the Respondent by its Attorney Joel Keiler, entered
into negotiations with Local 32B-32J in September 1988 as
the representative of its employees in the respective bar-
gaining units. Indeed at no time during 1988 or 1989 did the
Respondent ever assert to the Union that it questioned the
validity of the merger. Accordingly, the Respondent is le-
gally estopped from contesting the validity of the Unions’
merger and may not raise this issue as a defence to its re-
fusal to bargain. El Torito-La Fiesta Restaurants, 284 NLRB
518, 520 (1987), affd. in part and remanded in part in unpub-
lished decision 852 F.2d 571 (9th Cir. 1988); Knapp-Sherrill
Co., 263 NLRB 396 (1982).
The Respondent argues that the Company has no obliga-
tion to bargain because the Union admits to membership per-
sons who are guards. Assuming this to be true, this would
not, in my opinion, give rise to a defence. Section 9(b)(3)
of the Act precludes the Board from establishing bargaining
units containing guards and nonguards and also precludes the
Board from certifying a union for a unit of guards if that
union has nonguards as members or is affiliated with a
nonguard union. While the Board may conclude that this pro-
vision would preclude an 8(a)(5) bargaining order in a unit
of guards when the involved union has nonguards as mem-
bers, Supreme Sugar Co., 258 NLRB 243, 245–246 (1981),
there is nothing in the statute which would preclude a union
having both guards and nonguards as members from rep-
resenting a unit of nonguard employees. As the Union in the
present case has not represented any bargaining unit of the
Respondent which contained guards, and as there is abso-
lutely no evidence that the Union would seek to do so in the
future (or agree to an expansion of the existing units to in-
clude guards), it is clear to me that this defense has no merit.
The Respondent asserted at the hearing that the Union had
abandoned its representational rights. However, the Respond-
ent produced no credible evidence to establish such abandon-
ment and it seems to have abandoned this theory in its brief.
Therefore, I reject this defence.
Section 8(d) of the Act imposes on employers and unions
the mutual obligation to ‘‘meet at reasonable times and con-
fer in good faith with respect to wages, hours, and other
terms and conditions of employment, or the negotiation of an
agreement or any question arising thereunder.’’
When the Union requested the resumption of bargaining in
November 1988, the Company through its attorney refused to
meet until March 1989, almost 4 months later. While it may
be that the Union was remiss in allowing a hiatus in bar-
gaining from May 4 to November 1988, the Employer could
have, but chose not to file an unfair labor practice charge
against the Union under Section 8(b)(3) of the Act. In my
opinion, the Union’s delay in bargaining (probably welcomed
493CONTROL SERVICES
by the Employer), is not a sufficient excuse to allow the Re-
spondent to unduly delay the negotiations further. I therefore
conclude that the Respondent violated Section 8(a)(5) by re-
fusing to meet and bargain with the Union until March 1,
1989. Embossing Printers, 268 NLRB 710, 721 (1984);
Interstate Paper Supply Co., 251 NLRB 1423 (1980); and
Imperial Tile Co., 227 NLRB 1751, 1754 (1977). In the lat-
ter two cases, the Board rejected the argument that the com-
pany attorneys had crowded schedules. Thus in Interstate,
supra, the Board cited Radiator Specialty Co., 143 NLRB
350, 369 (1963), and stated that the ‘‘Act does not permit
a party to hide behind the crowded calendar of his nego-
tiator, whether he be a busy labor attorney or an overworked
company officer.’’
I further conclude that the Respondent refused to bargain
when it canceled the scheduled meetings for March 1989. In
this regard, the Respondent violated Section 8(a)(5) by noti-
fying the Union that it would not bargain so long as the
Union’s unfair labor practice charges were pending. Such a
precondition to bargaining is unlawful under Patrick & Co.,
248 NLRB 390, 393 (1980).
It also is clear to me that by canceling the March 1989
meetings and refusing to meet thereafter, the Respondent in
effect, has withdrawn recognition from the Union for each of
the respective bargaining units. As there is no evidence to
support any possible contention that the Employer had a
good-faith reason to doubt the Union’s majority status, I con-
clude that such de facto withdrawal of recognition constitutes
a violation of Section 8(a)(5) of the Act. Terrell Machine
Co., 173 NLRB 1480 (1969), affd. 427 F.2d 1088 (4th Cir.
1970), cert. denied 398 U.S. 929 (1970); NLRB v. King
Radio Corp., 510 F.2d 1154 (10th Cir. 1975), cert. denied
423 U.S. 839 (1975); Koenig Iron Works, 681 F.2d 130 (2d
Cir. 1982).
The evidence establishes that the Company refused to
comply with the Union’s requests on December 4, 1988, and
January 10, 1989, for information. As the information re-
quested was clearly relevant for collective-bargaining pur-
poses, I conclude that the Respondent violated Section
8(a)(5) in this respect also. See NLRB v. Truitt Mfg. Co., 351
U.S. 149 (1956); Coalite, Inc., 278 NLRB 293, 300 (1986);
American Marine Decking Systems, 277 NLRB 433, 434
(1985).
The evidence shows that the Respondent was responsible
for the inability of the Union’s agent to have access to the
represented employees at the Bloomingdale’s location on
January 10, 1989. Moreover, when Sarason spoke to Keiler
about this on January 16, Keiler told him that the Union
would not be allowed to have access to the employees at ei-
ther the Bloomingdale’s or Automatic Switch locations. Ad-
ditionally, Keiler told Sarason that the Respondent would not
permit the Union to inspect the seniority lists at the work lo-
cations.
In Gilberton Coal Co., 291 NLRB 344 (1988), the Board
held that the access provisions of a collective-bargaining
agreement survived the expiration of the contract and there-
fore the Respondent could not, without prior bargaining, uni-
laterally change such provisions. As the evidence in the
present case shows that the Employer’s refusal to allow ac-
cess to the Union was undertaken without prior notice or ne-
gotiation, this constitutes a unilateral change, in violation of
Section 8(a)(5) of the Act. See also NLRB v. Great Western
Coca-Cola Bottling Co., 740 F.2d 398 (5th Cir. 1984).
It is alleged and I agree that the Respondent violated Sec-
tion 8(a)(1) and (5) of the Act when, effective July 1, 1989,
it unilaterally reduced the wages and hours of its employees
in the Exxon-Linden bargaining unit and eliminated their
health insurance. In essence, the Respondent argues that it
had a right to do so under an alleged ‘‘most favored nations
clause.’’
In or about December 1988 the Company tendered a con-
tract proposal to the Union which contained a provision read-
ing:
The Union agrees that if during the term of this Agree-
ment it enters into any contracts or side letters with any
competitor of the Employer, of if any Arbitrator’s
award or decision is made providing for lower wages,
longer hours, or for any terms and conditions more fa-
vorable to the Employer than those described in this
Agreement, then the Employer shall immediately have
the benefit of such provisions or awards or decisions
and they shall automatically become part of this Agree-
ment and supersede any less favorable, to the Em-
ployer, provisions of this Agreement.
The Respondent contends that when an ‘‘impasse’’ was
reached regarding the Linden unit during the earlier negotia-
tions with Caprio Sr., the Company, in December 1988 put
into effect the terms and conditions of the contract that it had
tendered to the Union including the most favored nations
clause. The problem with this theory is that even if there was
an impasse at that time, it simply is not logically possible
for an employer to unilaterally put into effect a most favored
nations clause. This is because such a clause, by its very na-
ture, requires the Union’s consent and such consent therefore
cannot be unilaterally imposed.
When the Employer unilaterally reduced wages, hours, and
benefits at the Exxon-Linden location in July 1989, there was
no impasse in the negotiations as the Respondent had refused
to meet and bargain. As such, this action by the Employer
is concluded to have violated Section 8(a)(1) and (5) of the
Act.
B. The Constructive Discharges
I have concluded above that the Employer violated the Act
by unilaterally reducing the wage rates and hours of its em-
ployees at the Exxon-Linden unit as well as by eliminating
their medical insurance benefits. There was evidence that
some but not all the employees in this bargaining unit quit
their jobs because of these unlawful changes which effec-
tively reduced their earnings by almost a half.
In Adscon, Inc., 290 NLRB 501, 502 (1988), the Board
stated:
The Board has held that a constructive discharge oc-
curs when an employee quits because an employer has
deliberately made working conditions unbearable. Two
elements must be proven to establish a constructive dis-
charge. First, the burdens imposed on the employee
must cause and be intended to cause, a change in work-
ing conditions so difficult or unpleasant as to force the
employee to resign. Second, it must be shown that
494 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
those burdens were imposed because of the employee’s
union activities.
In my opinion the conditions set forth in Adscon, supra,
have substantially been met in the present case. The unilat-
eral reduction in the pay of the employees and the elimi-
nation of their health insurance was unlawful and carried out
in the context of the Respondent’s refusal to recognize, deal
with, or negotiate with the Union. Further, it would be rea-
sonable to expect that a reduction in pay of this magnitude
(even absent the loss of medical insurance), would result in
the ‘‘voluntary’’ termination of many of the bargaining unit
employees. Thus, where the result of an action is clearly
foreseeable, I must conclude that it was intended.
Based on the above, I conclude that the General Counsel
has established that employees in the Exxon-Linden bar-
gaining unit were constructively discharged on or about July
1, 1989. In this respect, I conclude that the General Counsel
has proven his case as to the persons who told Sarason that
they had resigned because of the unilateral changes. I also
conclude that there may have been other employees who
were similarly discriminated against but whose identities are
presently unknown because of the Respondent’s failure to
furnish information to the Union and because of its failure
to comply with valid subpoenas. Accordingly, I reject the
Respondent’s contention that the General Counsel should be
required to seek enforcement of the subpoenas in order to
obtain evidence in support of the 8(a)(3) allegations. Clearly
such a holding would result in a substantial delay in the
processing of this case, which otherwise was proven by sec-
ondary evidence. In effect, the Respondent, which I believe
is seeking to avoid or delay its statutory obligations, would
be aided and abetted in its goals if the General Counsel was
required to enforce the subpoenas through a separate action
in the Federal courts.
C. Union Insignia
The record establishes that in December 1989 at the
Exxon-Florham Park location, the Respondent prohibited em-
ployees from wearing small green dots which were intended
to show union solidarity.
I conclude that the Respondent’s prohibition on wearing
these insignia in the work area did not serve any legitimate
business concern. As there was no showing that the insignia
contained messages that were vulgar, obscene, or otherwise
offensive, or that they were worn in such a way as to ob-
scure the employee badges, I shall conclude that the Com-
pany has violated Section 8(a)(1) of the Act by enacting the
prohibition. NLRB v. Malta Construction Co., 806 F.2d 1009
(11th Cir. 1986); Cannon Industries, 291 NLRB 632 (1988);
Page Avjet Corp., 275 NLRB 773 (1985); Albertson’s, Inc.,
272 NLRB 865 (1984); Dixie Machine Rebuilders, 248
NLRB 881, 882 (1980).
D. The Discharge of Luiza Bezerra
Bezerra was the Union’s designated shop steward in the
Exxon-Linden bargaining unit. In December 1988, when the
Employer put into effect wage increases at this location,
Bezerra announced at a meeting that retaining the Union as
the employees representative was more important to the em-
ployees (at least in her opinion), than more money. In the
spring of 1989, Bezerra solicited the employees at this loca-
tion to sign new union authorization cards. In summary, she
was the most active union supporter at the Exxon-Linden lo-
cation; a fact known to the Employer.
The evidence also establishes that this employer dem-
onstrated antiunion animus as noted above. Thus, the record
in this case clearly demonstrates a desire to delay and avoid
its legal obligations to bargain with the Union. In these cir-
cumstances, the General Counsel has made out a prima facie
case of illegal discrimination against Bezerra.
The Company defends the discharge of Bezerra by assert-
ing that she failed to call in on a day that she was absent
from work. However, the credible evidence of Bezerra and
Juardo shows that Juardo did inform Supervisor Lillian
Lopez that Bezerra would not be in on the morning in ques-
tion. Moreover, the evidence also indicates that other em-
ployees who failed to call in when absent did not suffer dis-
charge, thereby indicating to me disparate treatment. As stat-
ed by the court in Restaurant Corp. of America v. NLRB,
827 F.2d 799 (D.C. Cir. 1986).
It bears repeating that the ‘‘essence of discrimination in
violation of section 8(a)(3) is treating like cases dif-
ferently.’’ [Citations omitted.]
Accordingly, under Wright Line, 251 NLRB 1083 (1980),
enfd. 622 F.2d 899 (1st Cir. 1981), cert. denied 495 U.S. 989
(1982), the burden is shifted to the Respondent to establish
that it would have discharged Bezerra for good cause despite
her protected activity. Since I find Respondent’s evidence in
support of its defence to be unpersuasive, I shall conclude
that the Company violated Section 8(a)(3) and (1) by dis-
charging her.
CONCLUSIONS OF LAW
1. Control Services Inc. is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. Local 32B-32J, Service Employees International Union,
AFL–CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. At all times material herein the Union has been the ex-
clusive representative of certain employees of the Respond-
ent in units appropriate for the purposes of collective bar-
gaining (as described above), within the meaning of Section
9(a) of the Act.
4. By refusing to meet and bargain with the Union at rea-
sonable times, the Respondent has violated Section 8(a)(1)
and (5) of the Act.
5. By refusing to furnish relevant information requested by
the Union in December 1988 and January and February
1989, for purposes of collective bargaining, the Respondent
has violated Section 8(a)(1) and (5) of the Act.
6. By withdrawing recognition from the Union in the
aforesaid bargaining units on or about March 1, 1989, the
Respondent has violated Section 8(a)(1) and (5) of the Act.
7. By denying or causing the denial of access to the Union
to Respondent’s employees and by denying the Union access
to seniority lists, the Respondent has violated Section 8(a)(1)
and (5) of the Act.
8. By unilaterally reducing the wages and hours of the em-
ployees at the Exxon-Linden bargaining unit and by elimi-
nating their medical insurance on July 1, 1989, the Respond-
ent has violated Section 8(a)(1) and (5) of the Act.
495CONTROL SERVICES
6 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.
9. By constructively discharging employees in the Exxon-
Linden bargaining unit, on or about July 1, 1989, the Re-
spondent has violated Section 8(a)(1) and (3) of the Act.
10. By barring employees from wearing union insignia at
the Exxon-Florhan Park bargaining unit, in December 1989,
the Respondent has violated Section 8(a)(1) of the Act.
11. By discharging Luiza Bezerra on June 12, 1989, be-
cause of her membership in and/or activities on behalf of the
Union the Respondent has violated Section 8(a)(1) and (3) of
the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged em-
ployees, it must offer them reinstatement and make them
whole for any loss of earnings and other benefits, computed
on a quarterly basis from date of discharge to date of proper
offer of reinstatement, less any net interim earnings, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
With respect to the constructive discharges found to be
violative of Section 8(a)(1) and (3) of the Act, it is presently
unknown as to whether there were other employees at the
Exxon-Linden bargaining unit who may have resigned as a
result of the Respondent’s unlawful reduction in wages,
hours, and benefits. In large part the reason that this informa-
tion is not available is because the Respondent unlawfully
failed to provide information to the Union (including the
names and addresses of employees), failed to allow the
Union to have access to employees and seniority lists and re-
fused to comply with valid subpoenas which would have dis-
closed this information.
I shall therefore leave to compliance the task of deter-
mining whether there were any other employees at the
Exxon-Linden location who resigned for similar reasons. In
this regard, it is recommended that if it is revealed, by exam-
ination of the Respondent’s records, or otherwise, that certain
other employees at Exxon-Linden ceased employment within
a reasonable period of time after the Company announced the
wage and benefit reductions (in June 1989), it should be pre-
sumed that such employees resigned because of the reduc-
tions and therefore were constructively discharged. Respond-
ent would, however, be permitted to rebut such presumption
by coming forward with appropriate evidence showing that
such employees resigned or were terminated for other rea-
sons. I would further recommend that such a presumption at-
tach to any employee who left prior to August 1, 1989, that
being deemed a reasonable period of time.
Also, in relation to the employees at Exxon-Linden, in-
cluding those who remained employed as well as those con-
structively discharged, it is recommended that they be made
whole for any losses they may have suffered because of the
unilateral reductions in wages, hours, and benefits. In con-
nection with the elimination of medical insurance, it is rec-
ommended that the Respondent make whole any employee,
whether constructively discharged or in its continued em-
ployment, for any medical costs incurred which would other-
wise have been paid for or reimbursed by the eliminated
medical insurance plan.
Because of the Respondent’s egregious misconduct, dem-
onstrating a general disregard for the employees’ funda-
mental rights, I find it necessary to issue a broad Order, re-
quiring the Respondent to cease and desist from infringing
in any manner on rights guaranteed employees by Section 7
of the Act. Hickmott Foods, 242 NLRB 1357 (1979).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, Control Services Inc., Secaucus, New
Jersey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to meet and bargain with the Union at reason-
able times.
(b) Refusing to furnish relevant information requested by
the Union for purposes of collective bargaining.
(c) Withdrawing recognition from the Union.
(d) Denying the Union access to the Respondent’s employ-
ees and to seniority lists.
(e) Unilaterally reducing the wages and hours of the em-
ployees in the Exxon-Linden bargaining unit and eliminating
their medical insurance.
(f) Barring employees from wearing union insignia.
(g) Discharging or constructively discharging employees
because of their membership in and/or activities on behalf of
the Union.
(h) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the employees in the appropriate bargaining
units described above, concerning terms and conditions of
employment and, if understandings are reached, embody the
understandings in signed agreements.
(b) Offer Luiza Bezerra, Rita Juardo, J. Bentencourt,
A. Diaz, L. Dessnatos, J. Malinowaski, J. Pinkiewicz,
J. Pinton, R. Wasilco, A. Zasadzki, and any other employ-
ees in the Exxon-Linden bargaining unit who were construc-
tively discharged, immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed, and make
them whole for any loss of earnings and other benefits suf-
fered as a result of the discrimination against them, in the
manner set forth in the remedy section of the decision.
(c) Make whole the employees in the bargaining units de-
scribed above, for any losses in earnings and/or benefits that
resulted from the unilateral changes in wage rates, hours,
benefits, or any other terms and conditions of employment.
(d) Remove from its files any reference to the unlawful
discharges and notify the employees in writing that this has
been done and that the discharges will not be used against
them in any way.
496 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
(e) 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 analyze the
amount of backpay due under the terms of this Order.
(f) Post at its facilities including the locations of each of
the bargaining units involved in these cases, copies of the at-
tached notice marked ‘‘Appendix.’’7 Copies of the notice, on
forms provided by the Regional Director for Region 22, 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.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.