Kingswood Services

National Labor Relations Board - Board Decisions

Mar 29, 1991

302 N.L.R.B. 247 (N.L.R.B. 1991)

247
302 NLRB No. 34
KINGSWOOD 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.
2 In adopting the judge’s finding that the Respondent violated Sec. 8(a)(3)
by failing to hire the five discriminatees, we note that the Respondent’s allega-
tions here of employee deficiencies were belatedly made at trial and in its ex-
ceptions and thus only strengthen the inference of unlawful motivation. See
Shattuck Denn Mining Corp., 151 NLRB 1328, 1336 (1965), enfd. 362 F.2d
466, 470 (9th Cir. 1966). The reasons asserted by the Respondent for not hir-
ing the discriminatees are mere afterthoughts. Indeed, the Respondent’s presi-
dent, Howard, in his testimony, admitted that he did not even learn of the al-
leged employee shortcomings until after the charge was filed. When asked by
the judge if he knew anything about the discriminatees’ alleged past job defi-
ciencies before September 1, 1989, when he made his hiring decisions, How-
ard stated, ‘‘No . . . didn’t know anything . . . . I wasn’t even interested in
it.’’ In adopting the judge, we do not, however, rely on the judge’s statement
that the predecessor did not find the employee’s alleged shortcomings suffi-
cient to warrant discipline.
The judge further found, and we agree, that the Respondent was a successor
employer and that the Respondent violated Sec. 8(a)(5) and (1) of the Act by
refusing the Union’s demand for recognition and bargaining. In so finding, we
have adopted the judge’s finding that the Respondent had a substantial and
representative complement of employees, a majority of whom had been em-
ployed in unit positions by the predecessor employer. Accordingly, our finding
of successorship need not be premised on the judge’s discussion of the situa-
tion, not present here, where an employer, who does not draw a majority of
its employees from its predecessor, may be found to be a successor by virtue
of the fact that it refused, in violation of Sec. 8(a)(3) of the Act, to hire certain
of the predecessor’s employees in order to avoid being obligated to bargain
with a union.
The judge found that the Respondent was under an obligation to seek out
the Union and to discuss with it the initial terms and conditions of employ-
ment for the predecessor’s work force, in light of the Respondent’s determina-
tion, even before beginning to operate, that a majority of its employees would
be drawn from the predecessor’s work force. We do not adopt the judge’s
finding that the Respondent was obligated to seek out the Union and to discuss
with it the initial terms of the employees’ employment. This issue was not
raised in the complaint or litigated at trial.
In adopting the judge’s finding that a valid demand for bargaining was
made no later than September 1, 1989, we need not rely on the request-to-
bargain letter from the Union to the Respondent, dated August 29, 1989,
which was returned unopened to the Union marked ‘‘Refused.’’
Finally, in Conclusion of Law 3, we substitute the word ‘‘unit’’ for
‘‘union’’ in line 3. We shall conform the Order and notice to the language
normally used by the Board.
Kingswood Services, Inc. and Norma Shane and
Service Employees International Union, Local
551, AFL–CIO/CLC. Cases 25–CA–20128 and
25–CA–20141
March 29, 1991
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On August 17, 1990, Administrative Law Judge
Walter H. Maloney issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The General Counsel filed a brief in support of the
judge’s decision.
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 exceptions1 and briefs and has
decided to affirm the judge’s rulings, findings, and
conclusions2 and to adopt the recommended Order as
modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Kingswood Services, Inc., Fort Benjamin Harrison, In-
dianapolis, Indiana, 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) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights
guaranteed to them by Section 7 of the Act.’’
2. Insert the following as paragraph 2(d) and reletter
the subsequent paragraphs.
‘‘(d) Remove from its files any reference to the un-
lawful discharge of Larry Larsuel and notify the em-
ployee in writing that this has been done and that the
discharge will not be used against him in any way.’’
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.
WE WILL NOT discourage membership in or activi-
ties on behalf of Service Employees International
Union, Local 551, AFL–CIO/CLC, or any other labor
organization by discharging employees, refusing to hire
job applicants, or otherwise discriminating against
them in their hire or tenure of employment.
WE WILL NOT refuse to recognize and bargain col-
lectively in good faith with Service Employees Inter-
national Union, Local 551, AFL–CIO/CLC, as the ex-
clusive collective-bargaining representative of all of
our janitorial and service employees employed at Fort
Benjamin Harrison, Indiana, exclusive of office clerical
employees, guards, and supervisors as defined in the
Act.
WE WILL NOT refuse to furnish the Union, on re-
quest, with any information which is relevant to its re-
sponsibility to act as bargaining representative for our
employees.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
248 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The principal docket entries in this case are as follows:
Charge filed herein by Norma Shane, an individual, on September 6, 1989,
against the Respondent in Case 25–CA–20128, and amended on October 30,
1989; charge filed herein by Service Employees International Union, Local
551, AFL–CIO/CLC (the Union), on September 15, 1989, in Case 25–CA–
20141, and amended on October 27, 1989; consolidated complaint issued
against the Respondent by the Regional Director, Region 25, on October 31,
1989; Respondent’s answer filed on November 13, 1989; hearing held in Indi-
anapolis, Indiana, on May 16, 1990; briefs filed with me by the General Coun-
sel and the Respondent on or before July 30, 1990.
2 Respondent admits, and I find, that it is a North Carolina corporation
which maintains its principal office at Kingswood, Texas. Both at Ft. Ben-
jamin Harrison, Indiana, and at other military and air force installations in the
United States, the Respondent has been engaged in performing janitorial and
related services for agencies of the United States Government. In the perform-
ance of these duties during calendar year 1989, the Respondent derived gross
revenues in excess of $500,000 and performed services valued in excess of
$50,000 in States other than North Carolina and Texas. Accordingly, the Re-
spondent is an employer engaged in commerce within the meaning of Sec.
2(2), (6), and (7) of the Act. The Union is a labor organization within the
meaning of Sec. 2(5) of the Act.
WE WILL offer full and immediate reinstatement to
Wanda Gaston, Robert M. Taylor, Norma Shane, Patsy
Porter, and Larry Larsuel to their former or substan-
tially equivalent employment, without prejudice to
their seniority or to their rights which they previously
enjoyed, and
WE WILL make them whole for any loss of pay or
benefits which they may have suffered by reason of
the discriminations practiced against them, with inter-
est.
WE WILL notify Larry Larsuel that we have removed
from our files any reference to his discharge and that
the discharge will not be used against him in any way.
WE WILL recognize and bargain collectively in good
faith with Service Employees International Union,
Local 551, AFL–CIO/CLC, as the exclusive collective-
bargaining representative of all of our janitorial and
service employees employed at Fort Benjamin Har-
rison, Indiana, exclusive of office clerical employees,
guards, and supervisors as defined in the Act.
WE WILL furnish to the Union a list of all the names
and assignments of nonsupervisory unit employees em-
ployed by us at Fort Benjamin Harrison, Indiana.
KINGSWOOD SERVICES, INC.
Walter Steele, Esq., for the General Counsel.
Richard L. Darst, Esq., of Indianapolis, Indiana, for the Re-
spondent.
Rhonda D. Glover, President, and Roger Williams, Financial
Secretary-Treasurer, of Indianapolis, Indiana, for the
Charging Union.
DECISION
STATEMENT OF THE CASE
WALTER H. MALONEY, Administrative Law Judge. This
case came on for hearing before me upon a consolidated un-
fair labor practice complaint,1 amended at the hearing, which
alleges that Respondent Kingswood Services, Inc.,2 violated
Section 8(a)(1), (3), and (5) of the Act. More particularly, the
consolidated complaint alleges that the Respondent, upon
taking over the performance of janitorial and maintenance
duties at Ft. Benjamin Harrison, Indiana, refused to recognize
and bargain collectively with the exclusive collective-bar-
gaining representative of its employees, refused to employ
five named individuals who had been employed by the pred-
ecessor employer who had performed these functions because
said employees had been union members and shop stewards,
and refused to supply the Union with information which was
relevant to the performance by the Union of its collective-
bargaining responsibilities. The Respondent denies that it is
the legal successor of the Company from whom it took over
the janitorial and maintenance responsibilities at Ft. Ben-
jamin Harrison, asserts a good-faith doubt as to the Union’s
majority status based, at least in part, on a petition presented
to it by certain employees disclaiming any interest in union
representation, and asserts further that it discharged or re-
fused to hire the five individuals named in the consolidated
complaint for economic or other reasons. Upon these conten-
tions the issues herein were drawn.
A. The Unfair Labor Practices Alleged
For 25 years, and possibly more, the Department of the
Army has performed janitorial and related services at Ft.
Benjamin Harrison through private contractors. The post is
the site of the Army Finance Center and a military school.
For 12 years prior to August 31, 1989, contracts for these
services were issued to Housekeepers Maintenance Service
and Supply, Inc. (Housekeepers), an Indianapolis concern
which specializes in cleaning military and naval installations
and other government buildings. Beginning in 1981, the
Army, acting in conjunction with the Small Business Admin-
istration, directly negotiated the janitorial contract at Ft. Har-
rison under a minority set-aside program. In 1989, in re-
sponse to a cost-cutting program dictated by the Gramm-
Rudman-Hollings Act, the Army opened up this contract to
limited competitive bidding. About 31 companies submitted
bids for a cleaning contract to begin September 1, 1989. In
addition to reinstituting competitive bidding, the Army cut
back on the scope of the new contract in its specifications.
The cleaning of certain buildings was excluded and cleaning
operations at other buildings were reduced in frequency and
scale. In terms of coverage, the difference between the
Housekeepers’ contract which expired on August 31, 1989,
and the one which replaced it beginning September 1, 1989,
was the difference between 3.2 million square feet and 2.5
to 2.7 million square feet. In monetary terms, the successful
bid went for about 75 percent of the amount of the most re-
cent Housekeepers’ contract.
The successful bidder on the new contract was the Re-
spondent, which is owned and operated by Reuben J. How-
ard Jr. The Respondent had previously performed small jani-
torial contracts at other military installations in various parts
of the United States but principally in and about Houston,
Texas. Until this contract was awarded, Howard maintained
his headquarters in Kingswood, Texas, near Houston, but
when he obtained the contract at Ft. Harrison, he moved to
Indianapolis and began to perform the contract as project
manager, giving it daily personal supervision. At the time the
Respondent received the Ft. Harrison contract, the contract
was the largest the Respondent had been called upon to per-
form.
249KINGSWOOD SERVICES
3 Howard had phoned Roger Williams, the financial secretary-treasurer of
the Union, to get a list of Housekeepers’ employees, but Williams did not
have such a list and could not provide one.
4 The copy of this list in evidence contains small notations next to the
names of each individual denoting whether the individual worked days, nights,
or standby and, in some instances, which building the individual worked (G.C.
Exh. 2).
5 This original unmarked part of this list is identical in format and appear-
ance to G.C. Exh. 2, except that it does not contain the notation of shift, build-
ing, and job assignment noted on G.C. Exh. 2.
The Charging Union had a collective-bargaining agreement
with Housekeepers, effective April 1, 1989, and running for
a period of 3 years. It was the latest of several contracts the
Union had concluded with Housekeepers during the 12 years
that this Company had provided janitorial services at Ft. Har-
rison. The Union had also concluded contracts with other
janitorial and maintenance contractors at Ft. Harrison who
had preceded Housekeepers. It should be observed that sev-
eral significant items governing the compensation of persons
employed by contractors at Ft. Harrison are set by the De-
partment of Labor under the provisions of the Service Con-
tract Act. Specifically, any contractor engaged in such activi-
ties must pay stated minimum wage rates which are estab-
lished by regulation and changed from time to time, and
must also pay certain stated fringe benefits, such as vaca-
tions, that are also prescribed by the Labor Department. All
bids submitted necessarily take these requirements into con-
sideration. Information concerning mandatory wages and
fringe benefits are a part of the bid package furnished to any
prospective bidder. These wage and fringe benefit require-
ments form a part of the contract which is ultimately signed
by the successful bidder with the Small Business Administra-
tion and the Department of the Army.
The Respondent received its first bid package from the
Army contracting office sometime in February 1989. Revi-
sions followed. The Respondent was notified sometime in
late July 1989, that it had been awarded the contract. After
the Respondent underwent a routine investigation by the
Army to determine that it was capable of performing the
contract, Howard was notified to come to Indianapolis to
sign the agreement. He did so on or about August 22. During
this trip, he inspected the post premises and reviewed the
work to be done. He met the Housekeepers project manager,
James Schaffer, and offered him a job as supervisor. This
amounted to a downgrading of Schaffer’s existing position
and salary. Howard explained to Schaffer that, since he
would personally be overseeing the operation, he could not
afford to pay Schaffer what the latter had been receiving
from Housekeepers as the principal onsite manager. Schaffer
said he would think about the offer and let Howard know his
answer. Schaffer also told Howard at this time that he had
a night job. He did offer to work for the Respondent for at
least 2 months during the transition period. Howard then in-
structed Schaffer to sign for certain equipment which would
be delivered.
When Howard walked about the buildings, he spoke with
several Housekeepers’ employees who were then at work. He
gave them job application forms and informed them that
other employees could pick up application forms at the
Housekeepers’ office in Building One. He asked the employ-
ees to whom he gave applications to mail them to his Texas
office, but they left them at the Housekeepers’ office. How-
ard discussed purchasing some trash barrels and cleaning
equipment from Housekeepers. He asked Army procurement
officials for the number of the Housekeepers’ main office,
stating that he wanted to obtain from Housekeepers a list of
their employees. He was informed that he would have to deal
with Housekeepers through the Army procurement office be-
cause of government regulations aimed at preventing collu-
sion between bidders.3 The Army did obtain a list of House-
keepers’ employees which it mailed to Howard at his office
in Texas.4
In addition to soliciting job applications from House-
keepers’ employees, the Respondent placed an ad in an Indi-
anapolis newspaper seeking additional applicants. The ad
gave a local Indianapolis number to call. That phone number
had an answering device attached and a recorded message
asking callers to leave their names and phone numbers.
About 30 persons did so and, from those callers, the Re-
spondent made about 20 long-distance return calls during
which it conducted telephonic job interviews. In some in-
stances, Respondent checked out references of job applicants
after speaking with the applicants. From this pool of callers
Howard and his wife, who assisted him in the initial job se-
lection process, determined to offer employment to about
four individuals who had no previous experience with
Housekeepers. They also determined to offer employment to
23 individuals who were working for Housekeepers and
whose names were on the list which the Army had furnished.
The names of 29 individuals were placed on a handwritten
list, entitled ‘‘Kingswood Sev. (employees)’’ which Howard
furnished to the chief of security at Ft. Harrison before the
commencement of business on September 1. (This hand-
written list, in cursive script, should not be confused with the
handprinted list on Housekeepers’ stationery which the Army
had mailed to Howard.)
The list of prospective employees contained the names of
23 Housekeepers’ employees. Of those 23 Housekeepers’
employees, only 13 were regular shift employees. Ten were
standby employees. All Housekeepers’ employees who
worked in secured portions of the post had to surrender their
military identifications at the conclusion of their workday on
August 31. Only those whose names appeared on Howard’s
list were admitted to those areas by the gate guard when they
arrived on September 1. Wanda Gaston’s name was among
the 29 individuals on the list. The names of the other four
discriminatees did not appear.
I credit the testimony of Schaffer that the list of employees
which Howard had in his possession on and before Septem-
ber 1, 1989, was a handprinted list of Housekeepers’ employ-
ees written on a Housekeepers letterhead and entitled ‘‘List-
ing of Housekeepers’ Maint. Employees’’ (G.C. Exh. 13).5
The list contained three columns of names. The first column
and a half were names of 39 full-time employees. Midway
in the second column was a list of admitted supervisors, enti-
tled ‘‘Staff,’’ and in the third column was a list of 24
‘‘stand-by’’ employees. A full-time employee was, under the
agreement between Housekeepers and the Union, an individ-
ual who normally worked a 35-hour shift. Standby employ-
ees, as their name suggests, had no regular assignment but
were on call to fill in for full-time employees who might be
absent from work for any one of several reasons. Standby
250 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Art. 2, sec. 5, of the contract provided:
It is understood that on-call, casual employees of the company shall not
be required to be Union members unless they have been on the payroll
of the Company thirty-one (31) days and work at least sixty-five (65)
hours in any month. However, all such employees shall be covered by
other terms of this agreement.
7 Howard did not deny this testimony by Schaffer when he took the stand.
The testimony of Schaffer is borne out by the fact that the list of employees
to be admitted to the premises which Howard furnished to the gate guards
contained the names of only 13 regular shift employees who had worked for
Housekeepers.
8 He should not be confused with another Housekeepers’ employee, Robert
P. Taylor.
9 As noted elsewhere, Gaston’s name was on the list of prospective employ-
ees to be admitted to the post but she was unaware of this fact.
employees worked regularly each week but normally not a
full 35-hour shift. Testimony in the record indicates that a
standby employee might work as few as 10 or as many as
20 or 30 hours in a given week. Some employees had
worked as standbys for years. The union-security clause of
the contract provided that full-time employees had to join the
Union after 30 days of employment. Standby employees
were only under this obligation if they worked 65 or more
hours in any month. However, the contract specified that
standby employees would be covered by its terms and condi-
tions and the Union acknowledged its obligation to represent
them and to bargain on their behalf.6
On September 1, Howard gave Schaffer the above-de-
scribed list of employees, handprinted on Housekeepers’ sta-
tionery, which he had been furnished by the Department of
the Army. Yellow highlight marks had been drawn through
the names of 15 regular employees and 2 standby employees.
Howard told Schaffer that the yellow highlighted names were
the only union employees he was going to hire and that the
rest of the employees to be hired would be either nonunion
employees on the list or applicants who had not worked for
Housekeepers. He also told Schaffer that he did not want to
hire any more union employees because he did not want to
recognize the Union. None of the names of the five
discriminatees had been highlighted in yellow.7
Schaffer explained in his testimony that Howard was un-
aware, at the time he made his initial selections, that many,
if not all, of the standby employees listed on the far right-
hand column on the page (including Wanda Gaston) were
also union members. Howard was under the erroneous im-
pression that only regular full-time employees of House-
keepers were union members. He and Howard went down
the list name by name as Schaffer told Howard who, in his
opinion, was and who was not in the Union. In at least one
instance—that of Wanda Gaston—Schaffer was misinformed
concerning union affiliation of a standby employee. During
this discussion, Schaffer recommended to Howard that the
name of Mardine Cruthard, which had been highlighted in
yellow as a possible hire, should be removed from the list
because she had been an unsatisfactory employee for various
reasons, including drinking on the job. Howard crossed off
her name and she was not hired. Schaffer also testified
credibly that Cruthard was the only Housekeepers employee
that he did not recommend for hire. He told Howard that
every other employee on the list was a qualified employee.
The Respondent’s employee roster, dated September 15, had
45 names on it, including the names of 11 standby employ-
ees. Of this overall number, some 25 had worked for House-
keepers.
The Union followed the bidding process with considerable
interest. Chief Steward Norma Shane attended the meeting
conducted by the Army contracting office at which bids were
opened and the contract tentatively awarded. Upon learning
that the Respondent was the successful bidder, she and stew-
ard Patsy Porter wrote Howard a certified letter, addressed
to his Texas office, dated August 23. The letter read:
According to the Office of Procurement, Fort Har-
rison, Ind., Kingswood Service, Inc., was awarded the
janitorial contract at Fort Harrison.
This letter serves an an official request for you to
meet with official representatives of the Collective Bar-
gaining Unit, Local 551, AFL–CIO, at Ft. Harrison.
We the union stewards represent the majority of the
employees of Housekeepers Maintenance Service &
Supply Company, Inc. We would like to meet with you
and/or your staff to discuss the current contract. We
would like to insure that Kingswood Service, Inc., and
the Local Union bargain in good faith.
A meeting with your company is very important and
is requested prior to the start of the contract on Septem-
ber 1, 1989. If you have any notices or requirements for
further negotiations reference the contract, we can meet
and discuss this and other concerns of ours (The Union)
before the start of the contract.
We the representatives of the union are looking for-
ward to meeting with you and are willing to cooperate
with you in the successful outcome of their contract.
[sic]
The letter was sent certified mail. The envelope bears a nota-
tion that the first notice of attempted delivery was September
5 because the letter bore an incorrect zip code on the enve-
lope. Howard admits that he eventually received the letter
when it was sent to him from Texas but this was sometime
after the September 1 startup date at Ft. Harrison.
On the evening of August 31, Shane received a call from
Patsy Porter, another steward, who informed Shane that she
had just seen a list of janitorial employees in the possession
of the guards at Ft. Harrison which apparently had been
given to the guards by Howard. A lot of names of House-
keepers’ employees were not on this list so they would not
be allowed to enter the premises the following day. Shane
called recently-appointed shop steward Wanda Gaston and
arranged that Shane, Gaston, Porter, and shop steward Robert
M. Taylor8 be present at Ft. Harrison the following morning
to discuss hiring of employees and other matters with How-
ard. Shane arrived at the post just before 7 a.m. the follow-
ing morning and the other stewards arrived at or about the
same time. In addition to the stewards, several of House-
keepers’ employees had reported for work. Those whose
names were on the employee list in the possession of the
gate guard were admitted to the premises and had gone
downstairs to the area near the office reserved for the jani-
torial contractor, where they were sitting at tables filling out
applications for jobs or for Army security badges and await-
ing interviews by Howard and Schaffer.
The four stewards saw Schaffer come into the building and
asked Schaffer if he would sign them in. Schaffer refused.9
They asked Schaffer if he would tell Howard they were at
251KINGSWOOD SERVICES
10 Gaston had only recently been named a shop steward. She exhibited to
Howard a letter from the Union making the appointment and Howard seemed
surprised.
11 It stood for ‘‘truck route.’’
12 As noted elsewhere, Gaston had worked standby for Housekeepers.
the gate and wished to speak with him. Schaffer agreed to
do so. A few minutes later, they were admitted and went
downstairs to the Respondent’s office. After waiting a few
minutes, they spoke with Howard. Shane introduced herself
and the other stewards10 and then asked him rhetorically how
he felt about coming to Ft. Harrison and putting a lot of peo-
ple out of work. She told Howard that everyone was really
upset and inquired whether he was going to hire the House-
keepers’ employees. Howard simply replied that he had not
thought about it.
Shane went on to ask Howard if he had received a copy
of the contract between Local 551 and Housekeepers in the
Army bid package. Howard admitted that he did but added
that he had not had time to read it. She also asked Howard
how he felt about unions, saying that she had heard a rumor
that Kingswood was trying to get rid of the Union. Howard
replied by pointing to Gaston and saying that she was in the
Union and he had hired her. Shane then asked Howard how
he had decided whom he was going to select for hire. How-
ard replied that he had gotten a list of Housekeepers’ em-
ployees while he was in Texas. He also said that he had
called Housekeepers to ask what ‘‘TR’’ meant next to the
names of certain employees.11 Shane said that the Union had
tried to bargain in good faith with Howard before the new
janitorial contract took effect. She showed him a copy of the
letter of August 23 which she and Porter had sent to Howard
in Texas on behalf of the Union. He said he had not received
it. When she asked Howard for a list of the persons who had
been hired, he said he would get a list for her but he never
did.
Shane asked Howard to meet with the Union. Howard re-
plied by saying that there had been a change of command
at Ft. Harrison, implying that he was totally absorbed with
the details of setting up the new janitorial operation, but
promised that he would contact the union stewards after the
first week to have a meeting. He took the names and ad-
dresses of Shane and Porter.
Gaston remained after the other stewards had left. She was
irritated that Schaffer had put her name on the hiring list for
a job which called for day work on Mondays, Wednesdays,
and Fridays and night work on the other two days. She com-
plained that Schaffer knew that she was going to school and
could not work day shifts. Howard did not think that her
schedule posed any problem. He wrote next to her name
Monday, Wednesday, and Friday nights, and Tuesday and
Thursday during the day, telling her that she could work full
time on that basis. He told her to come back the following
Tuesday to see what could be worked out. Before she left,
she filled out the forms that were necessary to obtain an
Army identification badge.
When Gaston arrived at the post on Tuesday morning,
Howard told her that he did not know of the limitations on
her availability and also did not know that she was a union
steward. Gaston replied that Schaffer knew that she could not
work day shift 3 days a week. Howard told her to wait a day
or two while the Company got organized and said that she
would be the first person on his standby list.12 Gaston also
asked Schaffer for the list of employees which Howard had
promised to give to Shane, spelling out that what she wanted
was a list of persons who had agreed to accept job offers
from Kingswood. Schaffer walked away and did not return.
Gaston returned the following day but did not receive a job
offer. The Respondent has never called her.
The Union made other efforts to contact Howard in writ-
ing. On August 29, Henry Franklin, president of the Union,
wrote a certified letter to Howard at his Kingswood address.
The letter stated:
Please be advised that Service Employees Inter-
national Union AFL–CIO–CLC, Local #551, is the au-
thorized representative of the employees of House-
keepers Maintenance Service and Supply, Inc., at the
Finance Center at Fort Benjamin Harrison, Indiana.
We further advise you that SEIU Local #551, as of
September 1, 1989, will continue to be the authorized
representative of the employees at the Finance Center
at Fort Benjamin Harrison, Indiana.
We feel that it would be beneficial for both parties,
the Union and the Company, to meet to discuss our
current contract. I feel that an early meeting is impera-
tive.
The Respondent never replied to this letter.
On September 11, Franklin sent a telegram to Howard, in
care of James Schaffer, which was addressed to Building
One at Ft. Benjamin Harrison. The telegram stated:
We have made several attempts in contacting you by
mail in Texas and in Indianapolis. We have been noti-
fied that several of our bargaining unit members have
been discharged upon your award of service contract.
We would like a meeting with you to discuss this situa-
tion with you as soon as possible. Please contact one
of our officers as to when a meeting can be scheduled.
The telegram then gave the phone numbers of the union of-
fice. A Western Union confirmation letter sent to the Union
on September 12 stated that the telegram went undelivered
because an attempted delivery, made on September 12 at
2:27 p.m., was refused by a guard. Since the initial contact
made by Shane on September 1, Howard has refused to com-
municate with the Union or any of its stewards.
Larry Larsuel worked at Building 710, a day care center
located outside the security perimeter of the post. He did not
need specific clearance to enter that building. He simply ob-
tained the keys to the building from a Mrs. Thompson and
went to work. He performed his cleaning chores on the sec-
ond shift which ran from 4:30 p.m. to midnight. His super-
visor was Cliff Stevenson, who was carried over in a super-
visory position from Housekeepers by the Respondent. Ste-
venson checked on Larsuel once or twice each night. On
September 1, the first night of the new operation, Larsuel
simply went to work as usual. The following Monday was
a holiday but he continued to clean the building on the fol-
lowing Tuesday. Stevenson, then in the employ of the Re-
spondent, saw him once or twice during this period of time
and told him to keep on working. Stevenson reported
Larsuel’s presence on the job to Howard. Larsuel had no
other contact with the Respondent until Wednesday, Septem-
ber 6.
252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
According to Howard, he had assigned this job to Wanda
Bennett, but Bennett could not get to work during the first
part of September until 10:30 p.m. because she had baby-
sitting problems. When she arrived on Friday evening, Sep-
tember 1, she found that the day care center had been
cleaned. She found the same thing when she arrived at work
at 10:30 p.m. on September 5 and left a note to that effect
which Howard received on Wednesday morning. On
Wednesday afternoon when Larsuel reported for work, Ste-
venson told him to come to the office. When he arrived,
Howard told him that he had not been permanently hired but
that the Company might possibly send him back to the day
care center or elsewhere to work. Larsuel asked Howard if
the Union had contacted him about getting jobs for the dis-
placed Housekeepers’ employees. Howard replied that it had
not done so but added that he was pretty sure that he would
either contact the Union or the Union would get in contact
with him about it. They also discussed the fact that Larsuel
was also working at another job in order to make support
payments. Larsuel gave Howard his daytime phone number
because Howard said he would contact him. He told Larsuel
that he was shorthanded that evening and asked him to re-
move trash from Building One. Larsuel finished out the shift
on this assignment.
Katina Brown, one of the Respondent’s supervisors, called
Larsuel the following day to tell him not to come to work.
Larsuel asked her if he was going to be hired. She said that
she did not know. Thereafter, the Respondent never con-
tacted Larsuel. He was paid for the time he worked and, after
lodging a protest, received from the Respondent holiday pay
for the Labor Day holiday.
Cheryl Meyers was a former Housekeepers’ employee who
was hired by the Respondent to operate a truck route on the
day shift. She testified that she had discussed with other em-
ployees whether they wanted to continue to have union rep-
resentation. The reported response was that they did not want
to have $14 in dues deducted monthly from their paychecks.
She obtained a sheet of yellow lined paper from the company
office at the post and assertedly drafted a heading, dated 9–
6–89, which read:
To Kingwood Ser. Inc. [sic]
We the following employers [sic] request that no union
dues of $14.00 be deducted from our earning. We are
not represented by union (Local #55) or no individual.
Thank you
She circulated the document at the noon lunchbreak on Sep-
tember 6 and obtained signatures from 14 individuals. As a
group they went to the office and gave the petition to How-
ard. She told Howard that the employees did not want any
dues deducted from their pay. His response was that no one
had given him any authorizations to deduct union dues and
none would be deducted. He also told them that he had not
signed any agreement with the Union and that there was
nothing in his contract with the Government which required
him to do so. He added that they would receive the same
wage rate and fringe benefits regardless of whether there was
a union contract.
Meyers left the petition with Howard so that the signatures
of night-shift employees could be added. Three more signa-
tures appear on the document which were not there when
Meyers parted with it. Presumably they are night-shift em-
ployees who signed at Howard’s suggestion. Meyers denied
that Howard said anything to the employees about the Union
and testified that the idea for circulating the petition came
exclusively from the employees. I credit the testimony of
Norma Shane to the effect that, in the course of one of sev-
eral phone conversations that she had with Meyers, she told
Meyers that she had heard that the latter had written up a
letter concerning the Union. Meyers’ reply was that she did
not write the petition, but that Howard had done so and she
had merely signed it. Meyers professed that she did not
know what was on the paper.
A charge was filed against the Respondent on September
6 by Shane alleging that the Respondent violated Section
8(a)(1) and (3) of the Act. There are no individual names
mentioned on the charge sheet other than that of Shane. The
first charge was received by the Respondent at its Texas of-
fice on September 12. A second charge was filed by the
Union against the Respondent on September 15 alleging a
violation of Section 8(a)(1) and (5) of the Act. No names of
any individual employees appear on that charge sheet. It was
received by Schaffer at Ft. Harrison on September 19. After
receiving the charge filed by Shane, Howard inquired of
Schaffer what kind of an employee she was. Shane is
Schaffer’s sister-in-law. He told Howard that she was an av-
erage employee who had lost some time during the year be-
cause of illness.
Howard also made inquiry, about that same point in time,
into the performance of other Housekeepers’ employees who
are now named in the complaint. I credit Schaffer’s testi-
mony that he made no adverse comments concerning any
employee other than Cruthard, that he specifically rec-
ommended the hiring of Gaston and Larsuel, and that he told
Howard that the other alleged discriminatees were fair, aver-
age employees. The Respondent discovered a desk calendar
at the office which Housekeepers had left behind. The cal-
endar contained daily entries relating to the attendance of
Housekeepers’ employees. Howard went through the calendar
and determined that some of the discriminatees had what, in
his judgment, were poor attendance records as Housekeepers’
employees. On this basis, as well as other factors discussed
supra, he reaffirmed his original decision not to hire them.
B. Analysis and Conclusions
1. The successorship question
Respondent asserts that it is not the legal successor in in-
terest to Housekeepers and thus is under no obligation either
to adhere to the contract concluded by Housekeepers with
the Union or to recognize the Union as the bargaining agent
of its own employees. The General Counsel makes no con-
tention concerning the obligation of the Respondent to ad-
here to the previous contract. He does contend that the Re-
spondent is the successor in interest to the janitorial and
maintenance contractor who provided these services at Ft.
Harrison on and before August 31, 1989, and, as such, is ob-
ligated to recognize the Union and negotiate the terms and
conditions of a new contract covering its own employees.
In NLRB v. Burns Security Services, 406 U.S. 272 (1972),
the Supreme Court held that mere change in ownership is not
such an unusual circumstance that a new owner of a continu-
253KINGSWOOD SERVICES
13 The Board had held that the successor was also obligated to honor the
terms and conditions of the contract between the union and the predecessor
employer, but this portion of the Board’s Order was not enforced.
ing enterprise is entitled to deny recognition to a recently
certified bargaining agent of the employees of the former
owner of the enterprise. The facts in Burns are remarkably
similar to those presented by the record in this case. In
Burns, an incumbent plant guard service, whose employees
had recently voted for union representation, lost the contract
to perform those services at the aircraft manufacturing plant
where the employees in question had worked. The replace-
ment guard service hired a majority of the employees of its
predecessor to perform essentially the same guard and patrol
duties which they had performed at the plant for their former
employer. The Supreme Court held that the new employer
was obligated to honor the certification given to the union
to represent the employees of the former employer, although
it did not find that there was any obligation to abide by the
terms and conditions of the contract which had been pre-
viously concluded.13
Recently, the Supreme Court held that the same obligation
exists whether the union’s status is predicated on a Board
certification or on some other basis which entitles an incum-
bent union to a presumption of majority support. Fall River
Dyeing Co. v. NLRB, 482 U.S. 27 (1987). As the Court
noted:
Thus, to a substantial extent the applicability of
Burns rests in the hands of the successor. If the new
employer makes a conscious decision to maintain gen-
erally the same business and to hire a majority of its
employees from the predecessor, then the bargaining
obligation of § 8(a)(5) is activated. This makes sense
when one considers that the employer intends to take
advantage of the trained work force of its predecessor.
[Emphasis in the original.] [Fall River Dyeing, supra at
41.]
The Court went on to hold that the bargaining obligation
arises when the successor employer has hired a substantial
and representative complement of its own employees. It fur-
ther held that the Board’s continuing demand principle, obvi-
ating any necessity on the part of an incumbent union to
make constant and repeated bargaining demands to preserve
its status, was a valid and reasonable interpretation of Sec-
tion 8(a)(5) of the Act.
In determining the existence of a successor employer who
is obligated to recognize and bargain with the incumbent
union which its predecessor had recognized, the Board has
fashioned and utilized a seven-point test. It looks to see if
there is substantial continuity in business operations, the
plant, the work force, the jobs and working conditions, the
supervisors, the machinery, equipment, and methods of pro-
duction, and the product or service. Band-Age, Inc., 217
NLRB 449 (1975), enfd. 534 F.2d 1 (1st Cir. 1976); Western
Distributing Co., 236 NLRB 1224 (1978); Aircraft Magne-
sium, 265 NLRB 1334 (1982); Pinkerton’s, Inc., 295 NLRB
538 (1989); Vermont Foundry Co., 292 NLRB 1003 (1989).
Controlling weight is not accorded to any single factor. Pre-
mium Foods, 260 NLRB 708 (1982). A successorship situa-
tion may exist where the work force of the new employer
does not contain as many as 50 percent of the employees of
the predecessor and has a majority complement of new em-
ployees. As the Board stated in Lincoln Private Police, 189
NLRB 717 at 720 (1971):
We do not mean to imply that successorship can never
be found where the new employer hires less than a ma-
jority of its predecessor’s work force—indeed, the
Board has held otherwise in prior cases.
Where successorship factors exist, the fact that the successor
enterprise is quantatively smaller or less productive than its
predecessor is immaterial. J-P Mfg., 194 NLRB 965 (1972).
In light of the evidence found in the record in this case,
it should be emphasized that the existence of a successorship
situation does not depend on whether a majority of employ-
ees an employer carries over from its predecessor are union
members. The facts concerning which carryover employees
are or are not union members are often difficult, if not, im-
possible for an employer to ascertain legitimately. They are
also of no consequence as far as an ongoing bargaining obli-
gation is concerned. Indeed, if an employer attempts to ar-
range its new work force so that the new bargaining unit will
not contain a majority of union members and does so by re-
fusing to hire members of a predecessor work force whom
it believes to harbor union sympathies, the new employer is
guilty of a violation of Section 8(a)(1) and (3) of the Act for
which a bargaining order may be issued as a remedy, even
in the absence of a violation of Section 8(a)(5) of the Act.
Piasecki Aircraft Corp. v. NLRB, 280 F.2d 575 (3d Cir.
1961). Once a new employer is determined to be a successor
of a unionized employer under the criteria set forth above,
the Board will presume that the majority status of the incum-
bent union continues, unless, as discussed more in detail
infra, that presumption is later overcome by objective evi-
dence adduced in a noncoercive context.
In the present case, the Respondent was carrying on the
same activity in which its predecessor was engaged, namely,
janitorial and maintenance activities. Because its contract was
smaller and the work to be performed was less, the Respond-
ent did not do as much for the Army as Housekeepers did
but this difference was only quantitative. The kinds of jobs
it did and the kind of service it rendered were the same. If
there was any difference between the way Respondent’s em-
ployees swept floors, emptied waste baskets, and cleaned toi-
lets and the way that Housekeepers performed these func-
tions, this difference in technique is not apparent from this
record. The same skills were employed. The situs of the
work was the same and the prime contractor was identical.
Respondent purchased some equipment and materials from
Housekeepers with which to begin its operation, but this fac-
tor is of little importance in an ongoing enterprise which is
labor intensive. Respondent carried over two former super-
visors into supervisory positions, namely, Schaffer and Ste-
venson, and hired Housekeepers’ quality control inspector as
a third supervisor. Twenty-three of the twenty-nine persons
to whom Howard was willing to offer jobs on the first day
of the Respondent’s operation were former Housekeepers’
employees. In 2 weeks, Howard had hired a work force of
45 of whom 25 had been Housekeepers’ employees. Some
of these individuals continued to work at the identical jobs
they had been performing for the former contractor.
254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 Respondent has taken several ambivalent positions concerning its willing-
ness to bargain with the Union. On the one hand it claims that, by virtue of
Howard’s statement to Shane in his office on September 1 to the effect that
he would get back to her after a week or so, he agreed to bargain and thereby
fulfilled his obligation, even though he never contacted her and never dis-
cussed anything with her or any other union official. On the other hand, he
testified that he did not want to bargain with the Union because he felt its
filing of a charge on September 6 meant that he should present his position
to the Board, not to the Union. A refusal to bargain because a charge has been
filed is, in and of itself, a violation of the Act. Respondent’s other defense
to the 8(a)(5) allegation is discussed infra in the text of this decision.
There was no hiatus between the end of the Housekeepers’
operation and the beginning of Respondent’s contract. Re-
spondent was seeking to ‘‘hit the ground running.’’ It was
making every effort on September 1 to begin its cleaning
contract on that day, albeit on a reduced schedule mandated
by the revised Army specifications. To a casual observer
there may very well have been no break in the janitorial and
maintenance effort at Ft. Harrison. In light of these factors,
it is clear that the Respondent was the successor in interest
to Housekeepers. The Union, which had represented House-
keepers’ employees for many years (and in fact had rep-
resented the employees of Housekeepers’ predecessors), had
a contract with Housekeepers which was in effect on August
31, 1989, a fact which Howard well knew since he had in
his possession a copy of that contract. Accordingly, the
Union was entitled to a presumption of continuing majority
status when Respondent hired a representative complement
of its employees.
Respondent was willing and able to make 29 job offers on
September 1 to specified individuals whose names appeared
on the list which Howard furnished the post security. This
was the list which enabled applicants to gain access to his
office. In 2 weeks Respondent’s work force had reached a
total of 45. As noted previously, former Housekeepers’ em-
ployees made up a majority of both totals. From these fig-
ures I conclude that a substantial and representative com-
plement of employees had been decided upon, if not actually
hired, by the Respondent even before it commenced its oper-
ations at Ft. Harrison. In Stewart Granite Enterprises, Judge
Nelson said, with Board approval:
It does not automatically follow from the conclusion
that an employer owed a successor’s duty to recognize
and bargain with the incumbent union that the succes-
sor employer must bargain with the union before setting
‘‘initial terms’’ affecting the traditional conditions of
employment in the unit. Under Burns, an employer may
unilaterally establish and implement such terms unless
it is ‘‘perfectly clear’’ even before the successor has
hired his ‘‘full complement’’ that his new operation
will employ mostly employees of the predecessor. In
the latter instance, the successor-employer’s general
duty to recognize and bargain with the incumbent union
includes the duty to ‘‘initially consult’’ with the union
before implementing such changes. [255 NLRB 569 at
575.]
Howard testified that the Respondent’s normal method of
starting up a new contract is to hire mostly new employees
and retain only a few people who have already been working
at the location. Notwithstanding that general operating pol-
icy, in the instant case Howard decided, even before begin-
ning to operate, that the new unit would include, if possible,
a vast majority of employees drawn from its predecessor’s
work force. In light of this determination, the Respondent
was under an obligation to seek out the Union and discuss
with it the initial terms of their employment. Since both
Housekeepers and the Respondent were under an obligation
stemming from various Federal statutes and regulations to
provide the same basic wage and fringe benefit package to
their employees, the differences with regard to such items
might be minimal but a collective-bargaining agreement nor-
mally goes far beyond basic economic items. Since the Re-
spondent’s duty to bargain with the Union arose on the first
day of its Ft. Harrison operation, if not before, the existence
of that duty removes any quibble about whether union offi-
cials made timely and clear cut demands for recognition and
bargaining. In fact they did. By letters dated August 23 and
29, by Shane’s verbal exchange with Howard on the morning
of September 1 at Howard’s office during which she exhib-
ited to him a copy of the August 23 demand letter, and by
a telegram sent to Howard on September 11, the Union de-
manded recognition and bargaining. Regardless of those ef-
forts, the Respondent was already under a bargaining obliga-
tion. When, on September 1 and thereafter, it refused to
honor that obligation, it violated Section 8(a)(1) and (5) of
the Act.14
2. The refusal of the Respondent to hire Wanda Gaston,
Robert M. Taylor, Norma Shane, Patsy Porter, and
Larry Larsuel
The five discriminatees named in the complaint had all
been employees of Housekeepers. Wanda Gaston went to
work for Housekeepers in March 1982. She was a standby
employee on the night shift and, as such, filled in at various
jobs within the bargaining unit. Robert M. Taylor had
worked for Housekeepers for 12 years. At first he did ordi-
nary janitorial work. During the last 9 years of his employ-
ment by Housekeepers he operated an elevator which carried
both passengers and freight. Norma Shane went to work for
Housekeepers in 1980. At various times she worked on both
shifts and did various jobs in Building 101 (the enlisted
men’s club) and in Building One (the finance center). From
time to time she also operated the elevator and drove a truck
route. Patsy Porter had been employed doing janitorial work
for 23 years at Ft. Harrison. She worked for Housekeepers
throughout its contracts and also for its predecessors. During
this period of time she performed various cleaning functions
at Building One. Larry Larsuel first came to work at Ft. Har-
rison in 1975. He was a supervisor for EC Professional, a
predecessor of Housekeepers, was employed by Best Way,
another predecessor, and then worked for Housekeepers
throughout the period of its contracts. He has performed vir-
tually every janitorial function at the post. Of these five indi-
viduals, only Gaston was on Howard’s initial list of people
to whom jobs would be offered. The others were formally
never offered positions. Larsuel was, in fact, hired and
worked 3 days, after which he was discharged.
All five discriminatees were members of Local 551 and all
were stewards. James Jimmerson, president of Housekeepers,
received a letter, dated August 21, 1989, from Rhonda Glov-
er, vice president of Local 551, informing Jimmerson that
Taylor, Gaston, and Larsuel had been appointed stewards.
Larsuel had been informally appointed to this post a month
255KINGSWOOD SERVICES
15 An exception might exist in the case of Spencer Lewis and two other
Housekeepers’ employees. Their names were on the initial list of persons to
whom job offers would be made but they either did not show up for an inter-
view or declined an offer which was made.
16 In his brief the General Counsel persisted in referring to the six
discriminatees in this case. I count only five.
17 One justification advanced by the Respondent was that the names of the
people not hired were placed on the list furnished to Howard by the Army
in such a position that he had filled all available jobs before reaching them
on the roster. The contention is too silly to warrant extended discussion.
or so before the letter was sent. Shane and Porter had been
stewards for a long time. Shane had also served as sergeant-
at-arms for the Union and was a member of its executive
board. She became a steward in 1988 and later was ap-
pointed chief steward. Porter had been a union steward at Ft.
Harrison for over 20 years and, in this capacity, had proc-
essed grievances on behalf of employees with various jani-
torial contractors. The names and signatures of Shane and
Porter appear on the contract between the Union and House-
keepers which was furnished to Howard by the Army as part
of the bid package.
Having had possession of the Housekeepers’ contract for
an extended period of time, Howard surely was aware that
the signatures of Shane and Porter were affixed to that con-
tract and thus had actual knowledge of their status. Schaffer
was well aware of the identity of the shop stewards under
the Housekeepers’ contract, although he professes that he did
not know that Gaston had been appointed. Having hired
Schaffer as a supervisor, the Respondent was chargeable with
Schaffer’s knowledge. Pinkerton’s, Inc., supra. When all of
the discriminatees except Larsuel came to Ft. Harrison on the
morning of September 1, the Respondent became apprised
beyond peradventure of doubt as to who the leading union
spokesmen were. This knowledge then indisputably extended
to Gaston. Howard later expressed surprise concerning the
extent of her union involvement. His surprise corresponded
with his revised feeling about offering her employment. At
this time the hiring process was still fluid and jobs were still
available on the Respondent’s payroll, but none of the
discriminatees were hired.
While the General Counsel argues that Howard singled out
union leaders as individuals whom he would not hire, the
finding of a violation need not rest on this premise. It is
enough if the General Counsel establishes that the five
discriminatees were not hired or were discharged because of
their union membership, sympathies, or inclinations. I have
credited the testimony of Schaffer that Howard deliberately
restricted the hiring of former Housekeepers’ employees to
13 or so because he did not want to have a union majority
among the members of his work force. Since this is so, it
follows that any Housekeepers’ employees who were not
hired—up to the number which Howard needed to complete
his reduced personnel roster—were discriminatees.15 Of this
number allegations were made in the complaint concerning
only five16 so a finding will only be made relative to those
persons.
The pretextual reasons given by the Respondent for not
hiring or for discharging these five need give us only scant
pause. Long after the decision was made to keep them off
the Respondent’s payroll and sometime after a charge had
been filed, Howard cast about for reasons designed to justify
and support his original determination. Some discriminatees
were faulted for playing cards during their break times al-
though, as Schaffer pointed out, everyone played cards. Two
or three had minor attendance problems, one as the result of
illness. None of these problems were bad enough to prompt
Housekeepers to take any disciplinary action. The rationale
behind keeping a group of standby employees in reserve is
to meet the problem of absenteeism as it regularly arises.
The Respondent adopted and followed this practice much as
its predecessors did. In none of these instances were any
cited individual shortcomings relied upon to arrive at initial
decisions not to hire. Since it is motive, not abstract justifica-
tion, which determines the existence of a discrimination
under the Act, any afterthoughts advanced by the Respondent
in defense of its position are essentially immaterial to the
issue at hand.17
Larsuel was actually hired by the Respondent although the
hiring took place without Howard’s knowledge. Supervisor
Stevenson saw Larsuel at his regular job on the first evening
of the Respondent’s contract and told him to keep on work-
ing. The Respondent ratified this action by paying Larsuel
for the days he worked. When Larsuel’s presence was dis-
covered, Howard told him that he might have something for
him and took Larsuel’s daytime phone number so that the
Respondent could contact him. The following day Supervisor
Brown phoned Larsuel and told him not to come to work
that day. No one ever contacted Larsuel thereafter to offer
him employment, even though hiring was still in progress
and jobs were available. The reasons advanced at the trial for
failing to retain Larsuel were also pretextual. Howard said
that he did not want to hire Larsuel because Larsuel was
working elsewhere and he did not want to employ someone
who had another job. However, several of his employees, in-
cluding Schaffer and DeCicco, had others jobs and Howard
knew it. Yet he continued to use them. Howard also claimed
that Larsuel left the job before the midnight quitting hour on
the days that he worked for the Respondent. This information
came to Howard from the employee to whom the job had
been given but who could not arrive at work until 10:30 p.m.
In short, Howard was saying that he found Larsuel an unsat-
isfactory employee because he went home early from a job
he was not supposed to be filling in the first place. These
afterthoughts are no more convincing than the ones used to
justify the exclusion of the other stewards from the Respond-
ent’s payroll.
Gaston was offered a position which she could not accept
because she went to school during the daytime. She com-
plained aloud that Schaffer was well aware of the limitations
on her availability. Interestingly enough, Gaston, a standby
employee, worked at different jobs on different evenings for
Housekeepers and did not work at all when every job was
filled. However, she was offered a regular fixed assignment
by the Respondent rather than a more flexible standby posi-
tion. She was told to come back the following week and the
Company would work out something to accommodate her
educational program. The Respondent never worked out any-
thing for her, although Schaffer testified credibly that posi-
tions were available which she could have filled. In light of
these considerations, I conclude that she and Larsuel, Porter,
and Shane were denied employment by the Respondent be-
cause of their membership in and activities on behalf of the
Union and that Larsuel was discharged for the same reasons.
256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 F. W. Woolworth Co., 90 NLRB 289 (1950).
19 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.
These actions constitute a violation of Section 8(a)(1) and (3)
by the Respondent.
3. The Respondent’s good-faith doubt of the Union’s
majority status
It is well settled that an employer who wishes to assert a
good-faith doubt of the continuing majority status of a labor
organization must do so in a context free and clear of unfair
labor practices. Abbey Medical/Abbey Rents, Inc., 264 NLRB
969 (1982), enfd. 709 F.2d 1514 (9th Cir. 1983); Bolton-
Emerson, Inc., 293 NLRB 1124 (1989), enfd. 899 F.2d 104
(1st Cir. 1990). In this case, the unfair labor practices com-
mitted by the Respondent occurred even before the com-
mencement of its operation at Ft. Harrison on September 1,
1989. It failed to negotiate with the Union about initial terms
and conditions of employment of its employees and it at-
tempted to arrange the composition of its work force so that
union adherents would constitute only a minority of the bar-
gaining unit. These unfair labor practices make it impossible
for the Respondent to assert a good-faith position on any
labor issue, including the status of the Union as the bargain-
ing representative of its employees. Accordingly, it may not
challenge the Union’s presumption of continuing majority
status by asserting a good-faith doubt of such status.
4. The refusal to furnish information to the Union
At their brief and confrontational meeting on September 1,
Shane asked Howard for a list of the employees hired by the
Respondent. Howard said he would furnish the list but he did
not do so. Gaston asked Schaffer for the list of the Respond-
ent’s employees on the following Tuesday when she visited
the office, whereupon Schaffer simply disappeared. The Re-
spondent has never furnished this information. The identity
of bargaining unit members is the kind of information which
the Board has routinely required employers to provide to col-
lective-bargaining representatives so that they can fulfill their
responsibilities as bargaining agents. American Oil Co., 164
NLRB 29 (1967); Brooklyn Union Gas Co., 220 NLRB 189
(1975). By failing and refusing to furnish the Union with a
requested list of employees, the Respondent herein violated
Section 8(a)(5) of the Act.
CONCLUSIONS OF LAW
1. Kingswood Services, Inc. is now and at all times mate-
rial herein has been an employer engaged in commerce with-
in the meaning of Section 2(2), (6), and (7) of the Act.
2. Service Employees International Union, Local 551,
AFL–CIO/CLC is a labor organization within the meaning of
Section 2(5) of the Act.
3. All janitorial and service employees of the Respondent
employed at Ft. Benjamin Harrison, Indiana, but excluding
all office clerical employees, guards, and supervisors as de-
fined in the Act, constitute a union appropriate for collective
bargaining within the meaning of Section 9(b) of the Act.
4. At all times material herein the Union has been the ex-
clusive collective-bargaining representative of all the employ-
ees in the unit found appropriate in Conclusion of Law 3 for
the purpose of collective bargaining within the meaning of
Section 9(a) of the Act.
5. By refusing to recognize and bargain collectively with
Service Employees International Union, Local 551, AFL–
CIO/CLC as the exclusive collective-bargaining representa-
tive of its employees employed in the unit found appropriate
in Conclusion of Law 3, the Respondent has violated Section
8(a)(5) of the Act.
6. By refusing to furnish the Union with a list of employ-
ees employed in the appropriate collective-bargaining unit,
the Respondent herein has violated Section 8(a)(5) of the
Act.
7. By discharging Larry Larsuel and by refusing to employ
Wanda Gaston, Robert M. Taylor, Norma Shane, and Patsy
Porter because of their membership in and activities on be-
half of the Union, the Respondent has violated Section
8(a)(3) of the Act.
8. The aforesaid unfair labor practices have a close, inti-
mate, and adverse effect on the free flow of commerce with-
in the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I will recommend that it be required
to cease and desist therefrom and to take certain affirmative
actions designed to effectuate the purposes and policies of
the Act. Since the unfair labor practices committed by the
Respondent indicate an attitude on its part to behave in total
disregard of its statutory obligations, I will recommend to the
Board a so-called broad 8(a)(1) order designed to suppress
any and all violations of that section of the Act. Hickmott
Foods, 242 NLRB 1357 (1979). The proposed Order will
also recommend that the Respondent be required to offer to
Wanda Gaston, Robert M. Taylor, Norma Shane, Patsy Por-
ter, and Larry Larsuel reinstatement to their former or sub-
stantially equivalent employment and to make them whole
for any loss of earnings which they may have sustained by
reason of the discriminations practiced against them, in ac-
cordance with the Woolworth formula,18 with interest thereon
at the rate prescribed by the Tax Reform Act of 1986 for the
overpayment and underpayment of federal income taxes. New
Horizons for the Retarded, 283 NLRB 1173 (1987). I will
also recommend that the Respondent be required to post the
usual notice, advising its employees of their rights and of the
results in this case.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended19
ORDER
The Respondent, Kingswood Services, Inc., Fort Benjamin
Harrison, Indianapolis, Indiana, and its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in or activities on behalf of
Service Employees International Union, Local 551, AFL–
CIO/CLC, or any other labor organization by discharging
employees, refusing to hire job applicants, or otherwise dis-
criminating against them in their hire or tenure.
(b) Refusing to recognize and bargain collectively in good
faith with Service Employees International Union, Local 551,
257KINGSWOOD SERVICES
20 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
AFL–CIO/CLC as the exclusive collective-bargaining rep-
resentative of all of the Respondent’s janitorial and service
employees employed at Ft. Benjamin Harrison, Indiana, ex-
clusive of office clerical employees, guards, and supervisors
as defined in the Act.
(c) Refusing to furnish the Union, on request, any informa-
tion which is relevant to the Union’s responsibility to act as
bargaining representative for the Respondent’s employees.
(d) By any other means or in any other manner interfering
with, restraining, or coercing employees in the exercise of
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative actions necessary to ef-
fectuate the purposes and policies of the Act.
(a) Offer to Wanda Gaston, Robert M. Taylor, Norma
Shane, Patsy Porter, and Larry Larsuel full and immediate re-
instatement to their former or substantially equivalent em-
ployment, without prejudice to their seniority or to other
rights previously enjoyed, and make them whole for any loss
of pay or benefits suffered by them by reason of the dis-
criminations found herein, in the manner described in the
remedy section of this decision.
(b) Recognize and bargain collectively in good faith with
Service Employees International Union, Local 551, AFL–
CIO/CLC as the exclusive collective-bargaining representa-
tive of all of its janitorial and service employees employed
at Ft. Benjamin Harrison, Indiana, exclusive of office clerical
employees, guards, and supervisors as defined in the Act.
(c) Furnish to the Union a list of the names and assign-
ments of all of the nonsupervisory employees employed by
the Respondent at Ft. Benjamin Harrison, Indiana.
(d) 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.
(e) Post at the Respondent’s Ft. Benjamin Harrison, Indi-
ana place of business copies of the attached notice marked
‘‘Appendix.’’20 Copies of the notice, on forms provided by
the Regional Director for Region 25, 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, defaced, or covered by any
other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.