Maintenance Contractors of King County

National Labor Relations Board - Board Decisions

Apr 6, 1977

228 N.L.R.B. 1182 (N.L.R.B. 1977)

1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Maintenance Contractors of King County and its
Affiliated Members: AAA Maintenance Company;
Aetna Building Maintenance ; Highlands Building
Maintenance; Kleenco; Quality Building Mainte-
nance ; Dependable Building Maintenance; Star
Maintenance Company; and Special Maintenance
Company and Service Employees Union Local No.
6, Service Employees International Union, AFL-
CIO. Case 19-CA-8604
April 6, 1977
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND
WALTHER
On December 9, 1976, Administrative Law Judge
Bernard J. Seff issued the attached Decision in this
proceeding. Thereafter, Respondents filed exceptions
and a supporting brief and the General Counsel filed
cross-exceptions, a supporting brief, and a brief in
support of the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions, cross-
exceptions, and briefs and has decided to affirm the
rulings, findings, and conclusions of the Administra-
tive Law Judge and to adopt his recommended
Order, as modified herein.
The Administrative Law Judge properly found that
Respondents violated Section 8(a)(1) of the Act by
(1) coercively interrogating employees as to the
Union and its meetings, (2) preparing notices to the
Union of the employees' intention to resign there-
from, and (3) telling employees that they would be
fired if they did not sign the resignation forms and
went on strike.
Respondents contend, inter alia, that they had the
lawful right to hire replacements for employees who
go out on strike and that it was therefore not
unlawful to so inform its employees. In view of the
circumstances set forth below, we hold this conten-
tion to be without merit.
On April 28, 1976,1 Respondents, including Quality
Building Maintenance,2 sent their employees a letter
which contained the following statements: "If there
i
i All dates below refer to 1976.
2 Herein called Quality
3 Said letter was addressed to the Umon and consisted of the sentence, "I
hereby resign from membership."
4 On May 14, Respondents also distributed to the employees another
letter the first paragraph of which states: "It has been reported that some of
you have been told [by the Umon ] that any member that resigns will be
required to pay an initiation fee when the new contract is signed This could
228 NLRB No. 145
is a strike, you can work whether you resign from
Union membership or not. If you don't resign from
the Union, the Union may fine you for working
during the strike . If you want to avoid fines, sign the
attached [resignation ] letter.3 The letter must be
received by the Union; well deliver it for you if you
give it to your supervisor or drop it at our office."
Respondents' letter also contained the following
statement : "You should know that the employer has
the right to hire a permanent replacement for any
employee who goes out on strike. If your job has
been taken by a permanent replacement , we will not
be required to fire the replacement to take you back.
If you have any doubts as to the correctness of this,
check it out with the National Labor Relations
Board." 4
On April 29 or 30, employees Shirley McDougal
and Joyce Holmes were asked by Harry Kohn,
Quality's operations manager , whether they had
signed the resignation forms. McDougal responded
in the negative and inquired as to "what would
happen if we didn't sign the letters." Kohn replied,
"You'll be fired." Holmes, who corroborated
McDougal's credited testimony as to the exchange,
credibly testified that on this occasion Kohn also
told Holmes that if she (Holmes) did not come to
work in the event of strike she would be "permanent-
ly replaced."
Kohn testified that, when some employees asked
what would happen if they failed to sign the
resignation letters, he "told most of them that if the
letter wasn't signed and in [Quality's] office by such
and such a date, in case of a strike, that they would
be replaced."
Phillip Stelly, a Quality employee, testified that,
shortly after receiving the April 28 letter, he informed
Kohn that he was not going to sign the resignation
letter and Kohn said that if, in the event of a strike,
"we have to get someone to replace you and if they
want to keep the job, you won't have a job."5
It is clear from the foregoing that, following the
distribution of Respondents' April 28 letter, Quality
Operations Manager Kohn coercively threatened
employees McDougal and Holmes that they would
be "fired" if they refused to sign the resignation
forms. Kohn also warned Holmes on the same
occasion that she would be "permanently replaced"
in the event of a strike, but he made no effort to
explain that his warning as to the risk of permanent
be true but it is not true when the employer insists on a waiver of initiation
fees for members who have recently resigned . This is what we will insist
upon in any new contract which follows a strike."
5 McDougal testified that, about the middle of May, Quality President
Larry Hardie similarly stated that "if we didn't sign the letters and there was
a strike , we would be permanently replaced and , then , after, if there was an
opening, we could be put on a different job."
MAINTENANCE CONTRACTORS OF KING COUNTY 1183
replacement was not a threat of discharge. In
addition, Kohn, who admitted that he told some
employees that, in the event of a strike, they would
be replaced if they did not sign the resignation forms,
gave no indication that "replacement" was not
synonymous with "discharge."
Although the statements in the April 28 letter and
those made to employees Stelly and McDougal,
standing alone, may arguably be regarded as an
accurate description of an employer's right to hire
permanent replacements, they must be realistically
viewed in light of Quality's unlawful threat to fire
employees who refuse to resign from the Union and
participate in a strike. Considered in the context of
such coercive conduct as well as Respondents' other
unfair labor practices, the statements regarding
Respondents' right to hire replacements in the event
of a strike must also be deemed unlawful because the
threat of discharge made to McDougal and Holmes
revealed a discriminatory intent to coerce employees
into resigning from the Union and refraining from
striking lest they be terminated. Accordingly, we
agree with the Administrative Law Judge that
Respondents' threat to fire employees and warnings
as to their replacement violated Section 8(a)(1) of the
Act .6
We turn now to Respondents' contention that there
is no justification for the first paragraph of the
recommended notice which requires Respondents to
notify employees that they "will not discharge any
[employees] for supporting" the Union. As the
Administrative Law Judge made no finding that
Respondents discriminatorily discharged employees,
we shall grant the request to delete the paragraph in
question from the notice.
Finally, the General Counsel, who otherwise agrees
with the findings of the Administrative Law Judge,
contends that he erred in finding (1) that at the time
the April 28 letter was sent, employees were told that
Respondents would return their resignation forms if
no strike occurred; (2) that none of the facts were
returned; (3) that the first paragraph of Respondents'
May 14 letter was "prompted" by a statement of the
Union that a new initiation fee would be required
from any employee who resigned from and later
desired to rejoin the Union; and (4) in failing to find
that the Respondents' May 14 statement that it
would "insist upon a waiver of initiation fees in any
contract which follows the strike" constituted a
misstatement of Board law and was therefore
violative of Section 8(a)(1) of the Act.
We find it unnecessary to pass on the first three
contentions as favorable action thereon would not
alter the Administrative Law Judge's conclusions of
law.7 The remaining contention is without merit
because, in our view, even if we assume from its May
14 letter that the Respondent had an unlawful
intention to insist on the waiver of initiation fees to
the point of impasse, such a statement to employees
with regard to that intention would not constitute a
separate violation of Section 8(a)(1) of the Act.
Clinch Valley Clinic Hospital, A Division of Bluefield
Sanitarium, Inc., 213 NLRB 515 (1974), cited by the
Administrative Law Judge, is inapposite because in
that case the Respondent threatened employees that
their employment status would be terminated if they
did not abandon the strike and return to work.8
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dents, Maintenance Contractors of Kings County,
Seattle, Washington, and its Affiliated Members,
their officers , agents , successors, and assigns, shall
take the action set forth in the said recommended
Order, as modified herein:
1. Substitute the following for paragraph 2(a):
"(a) Return to the employees any signed resigna-
tion forms which are in Respondents' possession and
expunge any reference thereto from the employees'
personnel records."
2. Substitute the attached notice for that of the
Administrative Law Judge.
6 In joining in this finding, Member Penello attaches no significance to
the fact that Kohn, the Respondent's operations manager, made no effort to
explain that his warning as to the risk of permanent replacement was not a
threat of discharge.
7 We note that the Administrative Law Judge recommended that if the
signed resignation forms "have been included in the employee's personnel
records that they be expunged from the employees ' files " In order further to
effectuate the policies of the Act, we shall modify the recommended Order
and notice by requiring Respondents to return to the employees any such
forms, which are in Respondents ' possession, and to expunge any reference
thereto from their personnel records.
8 Member Fanning would find that Respondents in their May 14 letter
misstated the law in violation of Sec. 8(a)(1) of the Act by asserting that they
would insist upon a contractual provision waiving the payment of union
initiation fees for employees who resign from and subsequently seek to
rejoin the Union . Respondents ' unlawful intention to bargain to impasse
concerning this nonmandatory subject is shown by evidence that Quality
Operations Manager Kohn assured employee Ruth Claybo that she would
not be required to pay another initiation fee if she resigned from the Union
and thereafter applied for readmission . See Clinch Valley Clinic Hospital,
supra at 524.
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 having found,
after a hearing, that we violated Federal law has
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ordered us to post this notice and abide by the
following. We notify you that:
WE WILL NOT interrogate our employees about
their presence at union meetings, thus creating the
impression of surveillance of these meetings.
WE WILL NOT encourage you to sign resigna-
tions from the Union.
WE WILL NOT coercively question you about
union support or union activities.
WE WILL NOT rely on unsubstantiated rumors
or speculation as a justification for questioning
employees of their intentions in the event a strike
is called.
WE WILL NOT directly or indirectly threaten to
fire you unless you sign resignation forms
prepared by the Respondents.
WE WILL return any signed resignation forms
which are in our possession and expunge any
reference thereto from the employees' personnel
records.
MAINTENANCE
CONTRACTORS OF KING
COUNTY AND ITS
AFFILIATED MEMBERS
DECISION
STATEMENT OF THE CASE
BERNARD J. SEFF, Administrative Law Judge: This case
was heard before me at Seattle, Washington, on September
16, 1976, based on a complaint issued on June 15, 1976,
which alleges that Respondent AAA, Respondent Aetna,
Respondent Highlands, Respondent Kleenco, Respondent
Quality, Respondent Dependable, Respondent Star, and
Respondent Special had been members of Respondent
Maintenance, a multiemployer bargaining group existing
for the purpose of dealing with the Union concerning
wages, hours, and other terms and conditions of employ-
ment of employees employed by the employer; it is further
alleged that Respondents engaged in unfair labor practices
affecting commerce within the meaning of Sections 8(a)(I)
and 2(6) and (7) of the Act. It is further alleged that Harry
Kohn occupied the position of operations manager and has
been and is now an agent of Respondent Quality acting on
its behalf and is a supervisor within the meaning of Section
2(11) of the Act. It is further alleged that on or about April
28, 1976, Respondents sent letters to all unit employees,
attaching a prepared union resignation form and offering
to collect such forms from the employees and deliver them
to the Union. It is also alleged that on or about May 14,
1976, Respondents sent letters to all unit employees stating,
inter aka, that Respondents would insist upon a waiver of
initiation fees for resigned union members in any new
contract which follows a strike. There are other allegations
which allege that Kohn interrogated employees concerning
their intentions regarding withdrawal from the Union.
Upon the entire record, including my observation of the
demeanor of the witnesses , and after due consideration of
the briefs filed by the Company and the General Counsel, I
make the following:
FINDINGS OF FACT
1. JURISDICTION
The Companies are all engaged in the business of
providing maintenance employees, also referred to as
janitors, to clean business buildings in various locations in
Seattle, Washington. Respondents, during the past 12
months, in the course and conduct of their business
operations, purchased equipment and supplies directly
from suppliers located outside the State of Washington of a
value exceeding $50,000. It is admitted and I find that
Respondents are and have been at all times material
herein, employers engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act. I also find that the
Union is a labor organization within the meaning of
Section 2(5) of the Act.
It. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
It is undisputed that the Employers have had a
bargaining relationship with the Charging Union of more
than 20 years' standing. The contract in effect through
April 30, 1976, is identified in the record as General
Counsel's Exhibit 5. The successor contract, currently in
effect, is Respondent's Exhibit 3. Both contain union-shop
provisions.
The current collective-bargaining agreement was signed
on June 9, 1976, after more than 25 negotiating meetings
held between February and June 1976. As the old contract
was nearing an end the Respondent Employers became
concerned about a strike. Respondents' employees do not
work at premises owned or occupied by their employers. It
was testified by General Counsel's witness, Joyce Holmes,
that many employees work at buildings at night without
even the presence of a supervisor. Thus, a failure to report
for work without advance warning not only made it
difficult for Respondent to attempt to supply substitutes or
replacements, but also, without warning, Respondent may
not learn that employees did not work until the customer
found its premises not cleaned on the following day.
Because of this concern, Respondent admittedly distrib-
uted the letter identified in the record as General Counsel's
Exhibit 3. Later, Respondent distributed General Counsel's
Exhibit 4, containing a statement concerning a proposal to
waive initiation fees in any new contract for any employee
who resigned from membership during the strike, which
was prompted by the Charging Union's statements that a
new initiation fee would be charged by any employee who
resigned from membership. General Counsel's witness,
Claybo, was so concerned about the Union's position on
this point that she asked Kohn for assurance that she
wouldn't have to pay an initiation fee again if she resigned.
None of the above facts has been disputed.
The Respondent points out that the testimony of Joyce
Holmes that Larry Hardie twice asked her if she had gone
MAINTENANCE CONTRACTORS OF KING COUNTY 1185
to a union meeting stands uncontradicted. On the first
occasion , Hardie explained that he had learned the Union
was making degrading remarks about his Company. On the
other occasion, Hardie did no more than ask the question
and, when Holmes replied in the negative, he left.
McDougal testified only concerning the second query by
Hardie. Kohn also admittedly asked employees Don and
Hazel Holmes if they were going to attend a union meeting.
The record shows that Kohn admittedly told several
employees, in answer to their questions, that, if he did not
receive a letter of resignation, he would conclude that it
would be necessary to hire replacements in the case of a
strike. He explained that he asked the employees their
intentions so that he could make plans to fill their positions
in case they struck.
The complaint alleges that Kohn told an employee that
she would be fired if she did not resign. The testimony of
Kohn on the one hand, and Joyce Holmes and McDougal
on the other, are in direct contradiction on this point.
Kohn testified that he did not tell McDougal she would be
fired if she did not sign a resignation . Joyce Holmes
testified that McDougal asked Kohn, "What would
happen, Harry, if I don't sign the letter?" and Kohn
replied, "You will be fired." McDougal testified that she
put the question to Kohn in the plural, saying, "I asked
Harry what would happen if we didn't sign the letters and
he said you'll be fired."
Holmes and McDougal admitted that they regarded his
statement that a permanent replacement would be hired for
them if they went out on strike as the equivalent of being
told that they would be discharged.
Respondent takes the position that the testimony of
Joyce Holmes and McDougal, who said they'd be fired
unless they resigned, should not be credited over Kohn's
denial , since both witnesses admittedly were and are
unable to distinguish between a statement that the
employer has a right to hire a permanent replacement for
an employee who goes out on strike and being told that
they would be fired if they go out on a strike.
It is not denied by Kohn that he asked some employees
their intentions regarding resigning.
In evaluating the credibility of the three witnesses
involved in this situation, I am taking into consideration
the fact that the employees are not sophisticated people,
comfortable with legal verbiage. It is not difficult to
understand that they did not regard the fact that they were
handed letters written on the company stationery, inform-
ing them that they would be replaced if they went out on a
strike. It becomes clear that their statements were reason-
able under the circumstances. I credit the testimony of
Holmes and McDougal that Kohn did tell them if they did
not sign the resignation forms they would be fired. In the
framework of the events as they developed the distinction
which Respondent makes between the testimony of Kohn
and McDougal and that of Holmes makes it seem that the
legal nicety which Respondent calls to the attention of the
Administrative Law Judge is too subtle to have been easily
understood by the employees who credibly gave the
testimony they did. I credit the testimony of Holmes and
McDougal.
Respondent points out that the statement of Kohn
cannot be judged in a vacuum. It happened in a context
where the employees were clearly informed, in writing,
more than once, of their Section 7 rights and that
Respondent would not interfere with their choice to strike
if that is what they wished to do. It is Respondents' main
reliance that whatever Kohn said was in effect merely
asking them whether the employees intended to report for
work or strike so that he could take the necessary steps to
arrange for replacement employees if that were necessary.
Furthermore, Respondent in its brief states that "Kohn,
like any other reasonable person, did not expect to have
any employee say he or she would report work behind a
picket line without resigning, so as to protect themselves
from union retaliation."
Both the General Counsel and Respondents' counsel rely
heavily on the Board's decision in Cumberland Shoe
Company, 160 NLRB 1256 (1966). The Respondent points
out that in Cumberland Shoe, the Board found that conduct
by employer-agent Bransford constituted unlawful interfer-
ence. In the circumstances of that case, employees had
come to Bransford's office for advice on how to get their
union cards back. The Board observed (at 1259):
Once an employee entered Bransford's office , Brans-
ford literally took command of the situation and
shepherded the employee through the process of
drafting and mailing the withdrawal letter, and then
informing the employee that a copy of the letter would
be kept in his personnel file. Inherent in the situation
was, in our view, an influence exerted by Bransford
upon such employees to complete the process of
withdrawing from the Union which interfered with the
rights of employees not to do so if, at any point, they
chose not to complete the process.
Respondent, in its brief, states: "Execution of the
resignation letters did not take place in the office of the
Respondent, nor did any representative of Respondent
shepherd or otherwise exert any influence upon employees
to complete the process of signing a resignation or do
anything in any way which indicated that employees were
not free to change their minds."
Respondent also points out that the cases of Cumberland
Shoe and the instant Employers were quite different and
easily distinguished. Thus, in Cumberland Shoe, the
employer had committed unfair labor practices, in particu-
lar a discharge grounded in union activities and a threat to
close the plant made to discourage employees from
selecting the union as their representative. The record also
shows that, different from Cumberland Shoe, there is no
showing of any effort to discourage employees from
bargaining through the Union. The Respondent told the
employees that they would bargain only with the Union.
This statement is contained in General Counsel's Exhibit 3.
With respect to the General Counsel's reliance on City
Supply Corporation, 217 NLRB 950, 953, it states as
follows:
It is well established that the lending of assistance by an
employer in an employee's withdrawal from a union, or
the suggestion of the means and manner by which this
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
can be accomplished, encourages and assists employees
in their withdrawal and thereby interferes with, res-
trains, and coerces such employees in the excercise of
their statutory right to retain union membership, and is
in violation of Section 8(a)(1) of the Act.
Respondent points out in its brief:
City Supply involved an entirely different factual
context from the instant case . There the employer was
attempting to evade collective bargaining with the
union , attempted to bargain directly with the employ-
ees in order to accomplish this , and the procuring of
withdrawal of authorization cards by employees was an
integral part of an unlawful plan to defeat the
collective-bargaining status of the union and the
principle of collective bargaining . Again, in the instant
case , there is no context of unfair labor practices or of a
design to undermine the union's status as a bargaining
representative or to defeat the collective-bargaining
principle.
Respondent also argues that:
... the employer merely brought to the employees'
attention their right to support or not support a strike.
There was no effort on the part of the employer to
avoid bargaining . Only an effort to correctly apprise its
employees of their rights guaranteed them by Section 7
of the Act.
Respondent further argues that:
The cases relied upon by the General Counsel do not
establish that giving information with respect to an
employee's right to resign, if that is the employee's free
choice , is a per se violation of Section 7 rights . It is clear
from these cases that the Board does not ignore the
relevant factual context of employer action nor does it
imply mechanical per se rules to such conduct . In light
of the clear written assurances contained in GC-3 and 4
to the employees that their Section 7 rights would be
respected , the action of preparing a sample resignation
letter and agreeing to be a conduit if the employee
freely chose to accept such service is not an act of
interference with Section 7 rights , it is an act only of
assuring that employees know the full extent of such
rights and are free to exercise them. If the employer has
the lawful right to hire permanent replacements, it is
certainly not unlawful to tell its employees of his rights
.... If an employer is free to hire permanent
replacements for employees who strike , clearly Section
8(c) protects his rights to speak of his rights and to let
them know what these rights are.
C. The Letter of April 28
The following is a quotation from the General Counsel's
brief:
On April 28, Respondents sent a three page letter to
all employees represented by the Union. [G.C. Exh. 3.)
In substance , the letter began by outlining employee
choices in the event of a strike. The letter further stated
that if the employee chose to work during a strike,
"there is one thing you must do to protect yourself
against union charges , fines, etc. You must resign from
union membership in order to be free from union
discipline."
The third page of the letter contained a sample
resignation form as follows:
(Employee Address)
(Date)
Service Employees International Union,
Local 6, AFL-CIO
150 Denny Way
Seattle, WA 98109
Gentlemen:
I hereby resign from membership.
Yours truly,
In the body of the letter, the following instructions
were set forth:
3. If you want to avoid fines , sign the
attached letter.
4. The letter must be received by the Union;
we'll deliver it for you if you give it to your
supervisor or drop it at our office. [Emphasis
supplied.]
Subsequent to the mailing of the April 28 letter,
Larry Hardie, President of Respondent Quality, in-
structed his bookeeper [sic] Jerry Scouten to call all of
Quality's janitorial employees . Using an employee
roster, Scouten thereafter called each employee at
home . She asked each employee if they had received
the letter and if they "understood" the letter . Although
Scouten denied that she asked employees whether they
had decided to sign, or whether they would work
during a strike , she admitted asking employees whether
they had made a "decision ." Each employee response,
which varied from "undecided," "no" or "yes," was
dutifully recorded next to the employee's name on the
roster . Approximately 52 to 60 employees out of 75
mailed or hand carried the union resignation forms to
Quality's office.
Scouten was told by Hardie that the letters received
were to be kept at Quality's office . In the event of a
strike , the letters were to be delivered to the Union by
Quality. If no strike occurred and negotiations culmi-
nated in a contract , the letters were to be mailed back
to the employees.
Although Larry Hardie was present in the hearing room
and during Scouten's recital, he was never called by
Respondent's counsel to testify in this regard . Therefore,
Scouten's testimony should be credited in full.
By prearrangement the other Respondents followed the
same procedure: Resignation forms were collected at their
respective Respondents' offices. Respondent Star Mamte-
MAINTENANCE CONTRACTORS OF KING COUNTY 1187
nance received 6 signed resignation forms , Respondent
AAA received 15, Respondent Aetna received 30 to 40,
and Respondent Kleenco received 30. Although Highlands
sent letters to employees , no resignation forms were
returned to their office.
Respondents collectively , therefore , had 151 resignation
forms in their possession . All of the resignation forms were,
according to Respondent 's company officials , mailed back
to the employees at various dates after the collective-
bargaining negotiations were successfully concluded.
The president of the Union , Marc Earls , testified that
between the dates of April 30 and May 27 , the Union did
not receive a single resignation form from any of Respon-
dents' employees nor did any of Respondents ' employees
request to resign from the Union.
D. May 14 Letter
Again quoting from the General Counsel's brief it states
as follows:
In GC-4 the Respondent told its employees that it
would insist upon a waiver of any initiation fees for
employees who resigned during the strike if there was a
strike . This is alleged in the complaint as an interfer-
ence with Section 7 rights . The Respondent admits
making such a proposal but denies the General
Counsel 's legal conclusion.
According to Respondent , its reason for informing the
employees of its position on waiver of initiation fees was
for the purpose of assuring to employees their ability to
freely exercise their full choices provided in their Section 7
rights. The Respondent had previously agreed to a full
union shop in its former contract and again agreed to one
in its current contract. Had the Respondent wished to be
more subtle or evasive, it simply would have changed its
proposal from a union shop with a waiver of initiation fee
proviso to a maintenance of membership proposal or,
indeed, to an open shop . Far from indicating an action
which interfered with employee rights , its conduct was
entirely consistent with the purpose of reaching an
agreement and also with protecting those employees who
might make the lawful choice of not supporting a particular
strike by choosing to free themselves from retribution by
the Union.
On May 14 , Respondents sent another letter to all unit
employees . The alleged violative portion of this letter is as
follows:
1. Payment of Another Initiation Fee:
It has been reported that some of you have been told
that any member that resigns will be required to pay an
initiation fee when the new contract is signed. This
could be true but it is not true when the employer
insists on a waiver of initiation fees for members who
have recently resigned . This is what we will insist upon in
any new contract which follows a strike. [Emphasis
supplied.]
Ruth Claybo, a janitorial employee employed by Re-
spondent Quality, talked to Harry Kohn on the phone
several days after receiving the letter . Her uncontradicted
testimony is as follows:
So I asked him if I signed this (letter) and resigned
from the Union, would I . . . have to pay the initiation
fee again because I have to work and he said, no, I
wouldn't have to repay . So then I went and signed it.
Employee Joyce Holmes, on April 29 or 30, received a
telephone call from Quality's bookkeeper Jerry Scouten.
Scouten asked Holmes whether she was going to sign the
letter . Holmes replied that she had to think about it.
Later that same day, Joyce Holmes and her sister Shirley
McDougal , also an employee of Respondent Quality, went
together to Quality 's office to turn in their timecards. Larry
Hardie , Harry Kohn, and Jerry Scouten were at the office
when they arrived . Scouten asked Holmes whether she was
going to sign the letter, stating that she was sure she could
count on her. Holmes replied, "Well, I wouldn't count on
that." After this exchange of conversation, Larry Hardie
asked McDougal and Holmes if they had been to the union
meeting . When Holmes replied affirmatively , Hardie stated
he heard that the Union had been degrading Quality.
Holmes declined comment . At some point in that meeting
the following conversation took place, according to
McDougal:
Harry asked if we signed our letters and brought them
with us, and Joyce and I both said no, and I asked
Harry what would happen if we didn't sign the letters,
and he said, "You'll be fired," and I said "Would you
really do that?" and he said , "Yes."
The record also shows that several days after a union
meeting held on May 27 , McDougal and Holmes drove up
to Quality's office . Hardie was seated in his car outside the
office and he asked them whether they had been to the
union meeting. According to McDougal:
We said no, even though you know , we had been to it,
but we just didn't want to discuss it.
Phillip Stelly , an employee of Quality, spoke with Kohn
at Quality's office shortly after receiving the April 28 letter.
Stelly testified to the following conversation which is
uncontradicted in the record:
He (Kohn) asked me have I signed the letter , and I told
him no. He asked me was I going to sign it and I told
him no . So I asked him, "What happens if we go on
strike?" and he said, "If we have to get someone to
replace you and if they want to keep the job , you won't
have a job."
When Kohn was questioned about this conversation, he
recalled talking to Stelly concerning the letter when
questioned by the General Counsel but failed to recall what
was said.
Kohn admitted , upon being questioned by the General
Counsel, that he spoke with every employee "at one time or
another" concerning the letter, and further admitted
speaking to some employees on more than one occasion.
Although Kohn maintained that all conversations were
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
initiated by employees, he admitted that apparently once
the employee contact was initiated , he did ask employees
whether they had signed the letters . Furthermore, Kohn,
when asked about a specific phone conversation with
employee Joyce Holmes regarding the letter , testified: "I
asked all of the employees what their intention was so that
plans could be made to fill their positions in case of a
strike, yes."
Kohn further admitted that some employees asked him
what would happen if they failed to sign the letter.
According to Kohn's answer : "I told most of them that if
the letter wasn 't signed and in our office by such and such
a date , in case of a strike , that they would be replaced."
Concluding Findings and Analysis
The arguments advanced by Respondent's counsel to the
effect that Respondents , because of the special circum-
stances that apply in this industry , were justified in
attempting to find out the intentions of the employees as to
what they would do if a strike were called . The Companies
were engaged in the business of providing maintenance
workers in office buildings who reported for work at night.
It is therefore argued that it was necessary for each
Company to know in advance the intentions of its
employees because otherwise if an employee or employees
did not show for work , Respondent would not know about
this until the next day when its customer would notify it
that its building had not been cleaned . Therefore, Respon-
dent states that in view of the peculiar nature of
Respondent's business it had a legitimate business reason
for attempting to find out which of its employees would
come to work in the event that a strike was called and a
picket line was established around the buildings where the
employees were employed . In the case of Da-Lite Screen
Company, Inc., 154 NLRB 926, 930 ( 1965), the Trial
Examiner stated:
Respondent has advanced no reason to justify
Ellison 's inferentially admitted interrogation of these
job applicants relative to their union sympathies,
activities , or desires . Respondent errs in asserting that
interrogation is permissible absent threats or promises.
I find, in the light of Board and court decisions , absent
proper safeguards and absent explanation , that such
inquiries did constitute interference , restraint, and
coercion and were violative of Section 8(a)(l) of the
Act.
In the instant case Respondent made no effort to prove
that its actions were predicated on an explicit or otherwise
clear intimation that the employees did in fact intend to
strike . It did not make inquiry to the Union of its
intentions . Nor did it grant to all employees in its letter a
specific assurance that no reprisals would be taken against
employees who answered the question in the affirmative.
At first blush , the arguments offered by Respondent's
counsel do not appear to be unreasonable . While there are
some circumstances that would permit a respondent to
ascertain if employees would cross a picket line in the event
of a strike , such is not the case in the instant matter.
In the case of W A. Sheaffer Pen Company, Division of
Textron, Inc., 199 NLRB 242, 243, the Board stated:
In the circumstances of this case , to make privileged the
Respondent's use of the questionnaire 6 weeks before
the expiration of the contract , and at the very outset of
bargaining, would severely limit and pervert the Section
7 rights of the employee applicants . Accordingly, as
Respondent lacked a valid justification for the use of
the questionnaire , its interrogation of job applicants
must be deemed violative of Section 8(a)(1) of the Act.
As the General Counsel 's brief states:
... Furthermore , an employer cannot rely on unsub-
stantiated rumor or mere speculation as a justification
for questioning employees concerning their intentions
in the event a strike is called . [Citations omitted.] These
are matters of affirmative defense and Respondents
produced not a scintilla of evidence in this regard.
Therefore, their offered defense should be held to be
without merit.
The General Counsel further argues that Kohn's threat
to fire Shirley McDougal is borne out in the record . Shirley
McDougal's testimony that Kohn told her that she would
be fired if she failed to sign the letter was corroborated by
witness Joyce Holmes and should be credited . Although
Kohn generally denied that statement , he failed to deny
that specific conversation , and Hardie and Scouten,
witnesses to the conversation, were never called by
Respondents to deny Kohn's statement made in their
presence.
Furthermore Shirley McDougal and Joyce Holmes
testified, without any contradiction , that they were ques-
tioned on three separate occasions , twice by Hardie and
once by Kohn , about their attendance and activities at the
union meetings . This testimony should be credited in full
and I find that these questions constitute violations of
Section 8(a)(1).
The General Counsel points out that not a single
employee of any Respondent had requested information
about withdrawing from the Union . Respondent solicited,
prepared, and offered to collect their resignation forms
prepared by Respondents . From these facts the General
Counsel argues that unknown by the employees, Respon-
dents, by previous design, planned to use the resignation
forms as their own potential strikebreaking weapon in the
event of a strike . I agree.
The General Counsel places special emphasis on the fact
that the Respondents' unlawful conduct here is their
assertion that resigned union members need not pay
initiation fees upon reapplication for membership because
.,we will insist upon a waiver of initiation fees in any
contract which follows the strike." The General Counsel
argues that this statement is clearly a material misrepresen-
tation of the law as the issue of internal union assessments
is merely a permissible subject of bargaining . Thus, an
employer's insistance to impasse on such matters would
violate Section 8(a)(l) and (5) of the Act. From this
premise the General Counsel states that misleading or
distorted explanations of the National Labor Relations
MAINTENANCE CONTRACTORS OF KING COUNTY 1189
Act, when communicated to employees , involved material
misrepresentations of violations of Section 8(a)(1). In
support of this conclusion General Counsel cites the case
of Clinch Valley Clinic Hospital, A Division of Bluefield
Sanitarium, Inc., 213 NLRB 515 (1974), which involves a
letter sent to striking nurses telling them they would forfeit
reinstatement rights by failing to return to work . However,
in the instant case Respondents wrote to their employees
and told them that if they went on strike Respondents
would hire replacements for them . To uninitiated employ-
ees not familiar with the use of the word replacement,
which is a work of art in the field of labor relations, such a
statement carries with it the implication that going on
strike would cost them their jobs . Under these circumstan-
ces this material misstatement of the law had the effect of
illegally inducing employees to abandon their rights in
protected concerted activity. I so find.
The General Counsel concludes that the law is clear that
while questions about employee strike intentions are not,
per se, unlawful , the employer must establish that (1) he
had a reasonable basis to fear an imminent strike , and (2)
questions about employee strike intentions must be
accompanied by assurances against reprisal . Based on the
foregoing it is clear and I find that Respondents were guilty
of a number of violations of Section 8(a)(1) of the Act.
At the time the Employers sent letters to their employees,
the letters referred to supra, the employees were told that if
no strike occurred all the letters of those employees who
replied would receive their letters back . The letters were
not returned to the employees . Under these circumstances
I will recommend that if the said letters have been included
in the employees' personnel records that they be expunged
from the employees ' files.
The instant case has a special aspect which is deserving
of comment . Not only were the employees asked to signify
their intention of crossing a picket line in the event there
was a strike but they were also asked to sign a letter
prepared by all Respondents notifying the Union that they
wanted to resign . This letter was coupled with the initial
letter and formed part of a package. A more blatant
example of interference with employees' Section 7 rights is
hard to imagine . I find that this action is violative of
Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
By coercively interrogating employees, and by preparing
notices to the Union of their intention to withdraw from it,
and by threatening to replace any employees who go out
on strike , and by interrogating employees as to union
meetings , Respondents have violated Section 8(a)(1) of the
Act.
REMEDY
Having found that Respondents have engaged in certain
unfair labor practices, I find it necessary to order
I In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
Respondents to cease and desist therefrom and to take
certain affirmative action designed to effectuate the
policies of the Act.
Because of the fact that the employees involved in these
cases work at night and oftentimes don't come into the
office, I will further recommend that notices be sent to
each of the employees at their homes.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER'
The Respondents, Maintenance Contractors of King
County, and its Affiliated Members, Seattle, Washington,
their officers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Threatening to discharge any of the employees for
supporting Service Employees Union Local No. 6, Service
Employees International Union, AFL-CIO, or any other
union.
(b) Interrogating our employees about their presence at
union meetings , thus creating the impression of surveil-
lance of these meetings.
(c) Encouraging employees to sign resignations from the
Union.
(d) Coercively questioning you about union support or
union activities.
(e) Relying on unsubstantiated rumors or speculations as
a justification for requesting employees of their intentions
in the event a strike is called.
(f) Directly or indirectly threatening to fire you unless
you sign resignation forms prepared by the Companies.
(g) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) The employees were told that if no strike occurred,
those who replied to the letters would receive them back.
The letters were not returned. Under these circumstances I
will recommend that if the said letters have been included
in the employees' personnel files that they be expunged
from the records of the employees.
(b) Post at their plants in Seattle, Washington, copies of
the attached notice marked "Appendix." 2 Copies of the
notice, on forms provided by the Regional Director for
Region 19, after being duly signed by Respondents'
authorized representatives, shall be posted by the Respon-
dents immediately upon receipt thereof, and be maintained
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondents to insure that the notices are not altered,
defaced, or covered by any other material.
2 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor 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."
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify the Regional Director, in writing, within 20 begin their work, but are employed in several building
days from the date of this Order, what steps the Respon- located throughout the general area of Seattle, Washing-
dents have taken to comply herewith. ton, that copies of these notices shall be sent to the homes
IT Is Also ORDERED that because of the fact that of all the employees involved in this matter.
employees do not report to a central point before they