International Service Systems, Inc.

National Labor Relations Board - Board Decisions

Mar 30, 1990

298 N.L.R.B. 69 (N.L.R.B. 1990)

INTERNATIONAL SERVICE SYSTEMS
International Service Systems, Inc. and Local No.
679, Service Employees International Union.
Case 10-CA-23905
March 30, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On October 18, 1989, Administrative Law Judge
Lawrence W. Cullen issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed 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 brief and has
decided to affirm the judge's rulings,' findings,2
and conclusions and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, International
Service Systems, Inc., Atlanta, Georgia, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
i We correct the following inadvertent errors in the judge 's decision:
In sec. III,A, par. 3 of his decision, the judge inadvertently stated that
employee Mary Jenkins wore her "Justice for Janitors" button from
April 1988 without incident. The correct date is April 1987.
In sec. III,C, par. 1, the judge stated that the second page of G.C. Exh.
5 prohibits employees from wearing clothes with "suggestive slogans."
Rather, it is the first typewritten page of G.C. Exh. 5 that prohibits such
clothes.
In sec III,C, par. 2, the judge inadvertently stated that Supervisor
Sammy Sweat told employee James Elders he could wear his "Justice for
Janitors" T-shirt as long as it was covered by his "smock ." Sweat actual-
ly told Elders the T-shirt had to be covered by Elders' jogging suit
jacket.
2 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence 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 examined the record and find no basis for reversing
the findings.
J. Howard Trimble, Esq., for the General Counsel.
Herman L. Allison and Steven Green, Esgs•. (Constangy,
Brooks & Smith), of Atlanta, Georgia, for the Re-
spondent.
Robert S. Sarason, Esq., of Atlanta, Georgia, for the
Charging Party.
DECISION
69
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge.
This case was heard before me on March 21, 1989, at At-
lanta, Georgia. The hearing was held pursuant to a corn-
plaint issued by the Regional Director of Region 10 of
the National Labor Relations Board (the Board) on Feb-
ruary 15, 1989. The complaint is based on a charge filed
by Local 679, Service Employees International Union
(SEIU or the Charging Party or the Union) on January
24, 1989. The complaint alleges that International Serv-
ice Systems, Inc. (the Respondent) has maintained and
enforced a rule prohibiting its employees from wearing
union T-shirts or other union insignia in their work areas
in violation of Section 8(a)(l) of the National Labor Re-
lations Act (the Act). Respondent has by its answer filed
on February 17, 1989, denied the commission of any vio-
lations of the Act.
On the entire record in this proceeding, including my
observation of the demeanor of the witnesses who testi-
fied herein, and after considering the closing argument of
the Charging Party and the briefs filed by the General
Counsel and the Respondent I make the following
FINDINGS OF FACT
1. JURISDICTION
The Business of Respondent
The complaint alleges, Respondent admits, and I find
that the Respondent is, and has been at all times material
herein, a Delaware corporation, with an office and place
of business located at Atlanta, Georgia, where it is en-
gaged in providing janitorial services for owners and
managers of commercial businesses and buildings, that
during the past calendar year, a representative period of
all times material herein, Respondent purchased and re-
ceived supplies at its Atlanta, Georgia operations valued
in excess of $50,000 directly from suppliers located out-
side the State of Georgia and that Respondent is, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, the Respondent admits, and I
find that the Union is now and has been at all times ma-
terial herein, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
This case is concerned with the alleged maintenance
and enforcement of a rule by Respondent against the
wearing of union insignia and slogans by its employees at
two buildings where it performed janitorial services.
During the time periods set out infra there was a cam-
paign by the Union to organize janitorial service workers
in various buildings in downtown Atlanta, Georgia. This
organizational campaign was conducted under the head-
ing of "Justice for Janitors." The Respondent has service
298 NLRB No. 13
70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
contracts to clean various buildings and employs service
workers to perform this task . The complaint alleges that
Respondent has maintained and enforced a rule prohibit-
ing its employees from wearing union T-shirts or other
union insignia in their work areas. As the evidence de-
veloped there were two buildings involved in this case
where Respondent performed janitorial services and
maintained a janitorial work force ; they were the Geor-
gia-Pacific Building and the 55 Park Place Building.
A. The Incidents at the Georgia -Pacific Building
The General Counsel called as its witness Mary Jen-
kins, a service worker who had been employed by Re-
spondent at the Georgia-Pacific Building . Jenkins, testi-
fied that she had been involved with the Justice for Jani-
tors movement with the Service Employees Union and
obtained union authorization cards signed by other em-
ployees at the Georgia -Pacific Building and had worn
Justice for Janitors T-shirts and buttons and a Justice for
Janitors jacket to work and had seen other employees
wearing them to work.
She testified further that in September 1988 the em-
ployees decided to have a Justice for Janitors button day
and wear these buttons at work and that she passed out
these buttons to employees at the timeclock at the start
of the shift . She testified that Supervisor Bruce Johnson
told the 30 to 40 employees gathered there that they
could not wear the buttons on the building floors and
that the other employees removed their buttons, but she
kept hers on.
Jenkins also testified to another incident in early De-
cember 1988 at which John Gwin , Respondent 's branch
manager, was in Respondent 's office at the Georgia-Pa-
cific Building talking to John Knight, Respondent's
project manager at the Georgia-Pacific Building, and
that she went into the office to get some cleaning sup-
plies and said "Good evening Mr. Gwin" and Gwin
turned and saw her wearing a Justice for Janitors jacket
and said , "Mary don't wear that jacket up on the floor; it
will cause problems." She asked him what he meant by
this and he was silent. She then went on the floor and
started her work but did not take her jacket off. She tes-
tified further that the next day she called Gwin and
asked him what he meant by that and he said he wanted
to apologize as he was upset with Valerie Long (an or-
ganizer for the Union) and with James Elders (then an
employee of Respondent) about a labor charge he had
received. She asked Gwin whether there was a dress
code and he told her just not to wear the jacket on the
floor but did not respond to her question. She had worn
Justice for Janitors insignia since April 1988, but no one
had said anything to her about it until the September in-
cident. December 8 (1988) was the first day she wore her
Justice for Janitors jacket to work.
The Respondent called Bruce Johnson who had been
employed as a supervisor by Respondent at the Georgia-
Pacific Building until January 1989 when the Respondent
lost the cleaning contract for the building. Johnson testi-
fied that while employed by the Respondent at the Geor-
gia-Pacific Building he did not see more than six employ-
ees wear union insignia of any kind. He further testified
that he had never instructed Jenkins or any group of em-
ployees, either a large or small group or any individual,
to remove a union button or that they could not wear a
union button or hat or jacket on the floor . He also testi-
fied that no one in a position of authority over him has
ever told him that employees should not wear buttons on
the floor . He also testified that he saw employees wear
red and white insignia on the floor and did not report
this to his supervisors as they could see this for them-
selves. He testified that he did not recall a day in Sep-
tember (1988) when almost all of the employees showed
up wearing union buttons . He identified a rule posted by
Respondent concerning the dress code that contained a
prohibition against the wearing of shirts , jackets, etc.,
with "suggestive slogans" but testified he was never told
what the term "suggestive slogans" meant and he did not
apply it against the wearing of Justice for Janitors insig-
nia.
The Respondent also called its branch manager, John
Gwin, who acknowledged having told Jenkins not to
wear her Justice for Janitors jacket on the floor while
she was working in the Georgia-Pacific Building and tes-
tified that this was during a period when the Georgia-Pa-
cific Building management was concerned about the
Union bringing propaganda into the building. He testified
that he warned Jenkins not to wear her Justice for Jani-
tors jacket on the floor and told her to put her smock on
because there might be problems . He testified that he
was concerned that the Georgia -Pacific Building man-
agement might remove Respondent from the building as
the Georgia-Pacific vice president responsible for dealing
with Respondent was dissatisfied with the work being
performed by Respondent . He testified further that nei-
ther the Georgia-Pacific vice president nor anyone from
Georgia-Pacific had told him to prohibit Justice for Jani-
tors material on the floors and that he, himself, had
never told his supervisors that employees were not to
wear Justice for Janitors materials on the floors.
B. Analysis
I credit Jenkins ' testimony concerning the instances in-
volving Johnson and Gwin when employees including
herself were told not to wear union insignia on the
floors . I credit Jenkins ' explicit testimony over that of
Johnson concerning Johnson's ordering the employees to
remove the union buttons in September 1988. I also
credit Jenkins' testimony which was admitted and cor-
roborated by Gwin concerning Gwin's direction to her
to remove the Justice for Janitors jacket in December
1988.
I find that the Respondent accordingly maintained and
enforced (however sporadically) an unwritten rule
against the wearing of union insignia while working in
the Georgia-Pacific Building . I further find that no spe-
cial circumstances have been shown that would justify
the maintenance and enforcement of such a rule and that
Respondent thereby violated Section 8(a)(1) of the Act.
See Reynolds Electrical Co., 292 NLRB 947 (1988), and
Sunbeam Corp., 287 NLRB 996 (1988), in which the
Board stated at 997, "An employer violates the Act
when it requests its employees to remove union insignia,
even if the request does not amount to an express order."
INTERNATIONAL SERVICE SYSTEMS 71
C. The Incidents at 55 Park Place
The General Counsel called two witnesses , Robert
Elam and James Elders, in its case . Robert Elam testified
as follows: He worked for Respondent at the Park Place
Building from September 22, 1988 , until shortly after the
first of 1989 . He signed up employees for Justice for
Janitors and wore a Justice for Janitors shirt and jacket
to work. About 3 weeks after his hire date of September
22, 1988 , he was cleaning a floor wearing a Justice for
Janitors T-shirt . Supervisor Steve Newton asked him
whether anyone had told him anything about wearing a
T-shirt and he replied "No." He then came downstairs to
get some cleaning materials to take back upstairs and Su-
pervisor Beverly Hill told him that Supervisor Sammy
Sweat had told her that he (Elam) could not wear a Jus-
tice for Janitors T-shirt at 55 Park Place and she called
Supervisor Steve Newton and Building Security Guard
Ron Neal over and Neal explained that Justice for Jani-
tors people had painted the bathroom upstairs in red
causing a thousand dollars in damages . As he only had
30 minutes remaining on his shift , they permitted him to
wear his shirt for the remainder of his shift . After this
incident he continued to wear his Justice for Janitors
shirt at 55 Park Place and no one said anything else to
him about it . He identified General Counsel 's Exhibit 5
which was a notice posted on the bulletin board. The
second page stated that employees could not wear
clothes with "suggestive slogans."
James Elders worked for Respondent from November
2-20, 1988 . Elders testified as follows ; he reported initial-
ly to Beverly Hill and then to Ed Knuckles . He was in-
volved in the Justice for Janitors campaign . He gave out
literature and talked to the janitors to obtain union cards
and kept them informed concerning the Justice for Jani-
tors campaign . There was a union newsletter and he
wrote an article for it. He wore his Justice for Janitors
T-shirt to work everyday and also wore a Justice for
Janitors' button and was told by Supervisor Sammy
Sweat that he could not wear the button. When he pro-
tested to Sweat that he saw nothing in the dress code
prohibiting it, Sweat then took him to the bulletin board
and pointed to the prohibition against "suggestive slo-
gans" contained in General Counsel 's Exhibit 5. Sweat
then told him he could wear his Justice for Janitors T-
shirt as long as he had his smock over it. There are only
two handwritten pages in,General Counsel 5 but there
was a third handwritten page that contained a prohibi-
tion against "tee shirts or buttons with suggestive slo-
gans." The handwritten pages signed by Sweat were not
posted until a couple of days after this incident.
On another occasion Elders heard Supervisor Beverly
Hill tell employee Julie Perryman at the timeclock to
take off her Justice for Janitors T-shirt. Both Perryman
and Elders protested this to Hill. Elders also wore a cap
with the insignia SEIU (Service Employees International
Union) to work everyday with a union button on it and
no one said anything to him about it.
The Respondent called on its behalf Supervisors Bev-
erly Hill and Steve Newton , Branch Manager John
Gwin and Security Guard Ronnie Neal. Both supervi-
sors, Hill and Newton, testified there was never a third
handwritten page in the dress code (G.C. Exh . 5). Hill
testified she was not aware of the Justice for Janitors
movement until the red paint damage in the ladies' rest-
room on the 11th floor occurred on May 25, 1988. She
and her supervisor cleaned up the paint which was paint-
ed as a "Justice for Janitors" slogan on the wall. One
woman came in and asked what it said while she was
cleaning it and she told her "Justice for Janitors." She
also testified she had never seen union buttons, hats, T-
shirts, or jackets before this incident and had never re-
ceived any instructions about how to conduct herself
during the union campaign.
Newton testified concerning the incident wherein
Elam was told he could not wear his Justice for Janitors
shirt and contended that it was the 55 Park Place Build-
ing management rather than the Respondent who did not
want the Justice for Janitors shirts worn in the building.
Security Guard Ronnie Neal who is employed by Barton
Protective Services testified that there was red paint in
the ladies' restroom on the 17th floor on May 25, 1988,
and there were Justice for Janitors fliers posted through-
out the building . He stated he was called to speak to
Elam several times . On one occasion he was called by
Respondent 's Supervisor Hill and Newton , and he told
Elam that the 55 Park Place Building management did
not want Justice for Janitors slogans worn in the build-
ing because it was making the tenants feel unsafe as a
result of the paint incident and other things that had oc-
curred in the city (Atlanta, Georgia) concerning the Jus-
tice for Janitors campaign . Respondent's supervisors
called him to talk to Elam because they were aware of
the problem and stood there 'while he talked to Elam in
accordance with his instructions from the building man-
ager. Branch Manager Gwin testified there has never
been a rule prohibiting union insignia, he never told his
supervisors not to allow Justice for Janitors slogans in
the building. He was called by the building management
concerning the paint incident. '
E. Analysis
I credit the testimony of Elam and Elders. I find that
there is substantial evidence and a prima facie case that
Respondent through its supervisors Hill and Newton,
maintained and enforced an unwritten rule prohibiting
the wearing of Justice for Janitors slogans in violation of
Section 8(a)(1) of the Act. This was a direct violation of
the Section 7 rights of its employees to engage in con-
certed activities. I find no special circumstances have
been shown which would justify this conduct notwith-
standing the desires of the building management and the
red paint incident which was perpetrated by persons un-
known regardless of the suspicions of Respondent's
agents. See Reynolds Electrical Co. and Sunbeam Corp.,
supra.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The unfair labor practices as found above in section
III in conjunction with the business of Respondent have
an effect of burdening commerce within the meaning of
Section 2(6) and (7) of the Act.
72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by
maintenance and enforcement of a rule against the wear-
ing of union insignia at work at the Georgia-Pacific and
55 Park Place buildings.
4. The above unfair labor practices have the effect of
burdening commerce within the meaning of Section 2(6)
and (7) of the Act.
THE REMEDY
Copies of said notice, on forms provided by the Regional
Director for Region 10, after being signed by Respond-
ent's authorized representative, shall be posted by Re-
spondent 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 Respond-
ent to ensure that said notices are not altered, defaced, or
covered by any other material.
(c) Mail a copy of said notice to each of its employees
who were employed at the Georgia-Pacific Building at
the time of the violations.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
Having found that the Respondent has violated the
Act, it shall be ordered to cease and desist therefrom and
to take certain affirmative actions including the posting
of an appropriate notice designed ` to effectuate the poli-
cies of the Act, the rescission of its unlawful rule and the
mailing of a notice to each of its employees at its Geor-
gia-Pacific Building at the time of this incident as it no
longer maintains a presence in this building.
On these findings of fact and the conclusions of law
and on the entire record, I issue the following recom-
mended'
ORDER
The Respondent, International Service Systems, Inc.,
Atlanta, Georgia, its officers, agents , successors, and as-
signs, shall
1. Cease and desist from
(a) Unlawfully maintaining and enforcing a rule pro-
hibiting the wearing of union insignia while working in
its employ.
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the unlawful rule prohibiting its employees
from wearing union insignia while working in its
employ.
(b) Post at its office at 55 Park Place in Atlanta, Geor-
gia, copies of the attached notice marked "Appendix."2
1 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
2 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
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 protect-
ed concerted activities.
WE WILL NOT maintain or enforce unlawful rules pro-
hibiting our employees from wearing union insignia.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
rights guaranteed them by Section 7 of the Act.
WE WILL rescind the unlawful rules prohibiting our
employees from wearing union insignia.
Our employees have the right to join and support
Local Number 679 Service Employees International
Union or to refrain from doing so.
INTERNATIONAL SERVICE SYSTEMS, INC.