Performance, Inc.

National Labor Relations Board - Board Decisions

Jan 22, 1974

208 N.L.R.B. 618 (N.L.R.B. 1974)

618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Performance , Inc. and Building Service Employees'
International Union, Local 254, AFL-CIO. Case
1-CA-8783 i
January 22, 1974
DECISION AND ORDER
By MEMBERS JENKINS, KENNEDY, AND
PENELLO
On November 19, 1973, Administrative Law Judge
Herbert Silberman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed a brief in support of the Administrative
Law Judge's 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 and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
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 and
hereby orders that the Respondent, Performance,
Inc., Cambridge, Massachusetts, its officers, agents,
successors, and assigns, shall take the action set forth
in said recommended Order.
' Case 1-RC-12495 was originally consolidated with the instant case for
the resolution of certain issues arising with respect to an election conducted
pursuant to an agreement for consent election Prior to the transfer of Case
I-CA-8783 to the Board, Case I-RC-12495 was severed and remanded to
the Regional Director for further appropriate action
DECISION AND REPORT AND
RECOMMENDATIONS WITH RESPECT TO
OBJECTIONS TO AN ELECTION
HERBERT SILBERMAN, Administrative Law Judge: These
consolidated proceedings were heard in Boston, Massachu-
setts, on September 10, 11, 12, and 13, 1973. Following the
close of the hearing briefs were filed by General Counsel
and the Employer.
The Pleadings
The amended complaint in Case I-CA-8783, issued on
June 19, 1973, as further amended at the hearing, alleges
that Performance, Inc., herein sometimes called the
Respondent, the Employer, or the Company, has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8(a)(1), (3), and (5) and Section 2(6)
and (7) of the National Labor Relations Act, as amended.
The complaint is based upon charges and amended charges
filed on January 10 and April 26, 1973, respectively, by
Building Service Employees' International Union, Local
254, AFL-CIO, herein referred to as the Union. In
substance, the amended complaint alleges that the Em-
ployer unlawfully discharged Joseph DeGuglielmo on
January 2, 1973, and Charles Harak on January 5, 1973,
because they joined and assisted the Union; that since
January 3, 1973, the Employer unlawfully has refused to
recognize and to bargain with the Union as the designated
representative of the employees in a described appropriate
unit; and that by reason of the foregoing and other
conduct set forth in the complaint the Company has
interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the
Act. Among other things, the complaint in effect requests
as a remedy in these proceedings that an Order issue
directing the Employer to bargain collectively with the
Union.
With respect to the representation proceeding, Case
i-RC-12495: i Pursuant to an agreement for consent
election, executed on January 24, 1973, and approved on
January 26, 1973, an election was conducted on February
22, 1973, among the employees in the following unit:
All full and regular part-time cleaners, janitors, floor
polishers employed by the Employer at Harvard
University, Cambridge, Massachusetts, but excluding
all office clericals, guards and supervisors as defined in
the Act.
The tally of ballots shows that of approximately 48
eligible voters, 14 votes were cast for the Union, 19 against
the Union, 18 ballots were challenged, and I ballot was
declared void. The challenged ballots were sufficient in
number to affect the results of the election. On February
28, 1973, the Union filed timely objections to conduct
affecting the results of the election.
The Regional Director caused an investigation of the
challenges and the objections to be made and on May 18,
1973, issued his report thereon and a revised tally of
ballots. In his report, the Regional Director sustained the
challenges to 13 ballots. No ruling was made with respect
to the remaining five challenged ballots because they were
no longer determinative of the results of the election.
The Regional Director in his report overruled all
objections to the election except the following: (1)
objections based on the fact that Joseph DeGuglielmo and
Charles Harak were discharged on January 2 and 5, 1973,
respectively, for reasons that would constitute violations of
Section 8(a)(1) and (3) of the Act, and (2) objections based
upon the allegation that during the month of January 1973,
the Employer gave three separate pay increases totaling 70
cents per hour to Mary DeGuglielmo which were timed so
i The representation petition was filed on January 2, 1973.
208 NLRB No. 100
PERFORMANCE, INC.
as to impinge upon her freedom of choice in the
representation election. In respect to the latter objection
the Employer asserts that Mary DeGuglielmo is a
supervisor, and not an employee, within the meaning of
Section 2(11) of the Act. As the issues raised by these
objections are substantially the same as the issues in Case
1-CA-8783 and as the resolution of these issues will
require determinations of credibility, the Regional Director
directed a hearing on the objections which he consolidated
with the hearing in Case I-CA-8783. The Regional
Director also directed that upon the issuance of the
Administrative Law Judge's Decision the representation
case shall be severed from the unfair labor practice
proceeding and remanded to the Regional Director for
further action in accordance with Section 102.62(a) and
Section 102.69 of the Board's Rules and Regulations and
article 5 of the agreement for consent election.
Upon the entire record in these cases and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF FHE FMPLOYER
The Employer, a Delaware corporation which maintains
its principal office and place of business in Westfield,
Massachusetts, is engaged in providing cleaning and
maintenance service to institutions and commercial build-
ings, including certain buildings of Harvard University
located in Cambridge, Massachusetts, which are the only
facilities involved in this case. Respondent in the course
and conduct of its business performs services in various
States of the United States including the Commonwealth
of Massachusetts. It annually receives revenues in excess of
$50,000 for services performed outside the Commonwealth
of Massachusetts. The Employer admits, and I find, that it
is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Building Service Employees ' International Union, Local
254, AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent performs building custodial services on a
contract basis. In January 1969 it began doing work for
Harvard University. Initially the Company serviced two
buildings; then in the fall of 1972 the number was doubled.
Except for the project manager, John Pepernik, all
company personnel who work at the Harvard buildings are
part-time employees and most are high school or college
students.2 A day's shift, which begins about 5 p.m., is from
4 to 5 hours. To accommodate the needs of its student-
employees the Company has flexible arrangements regard-
2 The Company does not employ students who attend Harvard
University
3 Harak testified that his immediate supervisor, Patel, informed him that
619
ing the number of days and the particular days they work
each week. The employees also are permitted extended
unpaid vacations, which generally correspond with their
school vacations. Thus, Claudia McNulty, whose testimo-
ny is uncontradicted. testified that she was hired in
October 1971 on the basis that she would work 3 or 4 days
each week. According to McNulty, Pepernik told her that
the Company "ran very loosely and that the days that I
work, I could determine myself." Similarly, Charles Harak
testified that when he was hired he told Pepernik. "1 would
be working three nights a week or some weeks two nights if
I had a lot of school work. He said that was fine, that the
company was very flexible about that kind of thing and
also they would he flexible about when I could leave for
vacation." According to Harak, he worked 2 or 3 days each
week choosing the days to meet his convenience.3
Between mid-November 1972 and mid-January 1973,
when the events which give rise to these proceedings
occurred, the Company employed about 56 persons to
clean the Harvard buildings. John Pepernik, the project
manager , was in overall charge. He reported to Harold
Kraus, a vice president of the Company, whose offices are
in Westfield, Massachusetts, and in Connecticut. Subordi-
nate to Pepernik were the supervisors for each building,
namely:
Patel-Lund Hall
Ron Fantasia-Roscoe Pound Law School
Martin Zafran-William James Hall
Robert Russo-Science Center
Kraus testified that the supervisors were responsible for
getting the daily cleaning done and for protecting the
property of both Harvard University and the Company.
A uniform rate of $1.90 per hour was paid the rank-and-
file employees while the supervisors were paid $2.50 per
hour. In December 1972, the Company established the
position of assistant supervisor at the rate of $2.40 per hour
and three appointments to the position were made. An
assistant supervisor was assigned to each building except
Roscoe Pound Law School which was the smallest of the
four buildings that the Company had under contract. An
issue is whether Mary DeGuglielmo, who was promoted to
the position of assistant supervisor in late December, is a
supervisor within the meaning of Section 2(11) of the Act.
B. Status of Mary DeGuglielmo
Mary DeGuglielmo began working for the Company in
January 1972. On December 22, 1972, Pepernik informed
her that she was being promoted to assistant supervisor to
work in Gund Hall under Patel, effective upon her return
from her Christmas vacation on December 26. According
to Mary DeGuglielmo, Pepernik did not then define her
duties as assistant supervisor. After she assumed the
position and it appeared to her that Patel was not
permitting her to exercise the responsibilities she believed
attached to the job, she telephoned Pepernik and asked
him to define her duties. Pepernik informed her that she
was to unlock the doors of the rooms to be cleaned; after
she was satisfied that the work was done properly she was
it was unnecessary to give notice as to the days he intended to work. Patel
told him, "Just chow up."
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to lock the doors; she was to guard against anything being
stolen; and "Patel will take care of everything else." 4 She
inquired if she had authority to schedule breaks, to issue
orders regarding work, or to discipline employees. Pepernik
told her that Patel would attend to such matters, that she
was "to be sure the rooms were clean and nothing was
stolen."
Mary DeGughelmo testified that as an assistant supervi-
sor she directed three or four employees by instructing
them to clean rooms and watching to be sure that they
didn't steal. If any work was overlooked or improperly
done she would instruct a member of her group to correct
the matter. As assistant supervisor she did manual work
about half her working time which, however, was limited to
dusting.
Mary DeGuglielmo testified without contradiction that
Patel, not she, gave the employees in her work group their
specific task assignments which were removal of trash, dry
mopping, or dusting. Similarly, she testified that she did
not schedule employees' hours of work, nor their break-
times, nor did she give them time off, nor hire, fire,
discipline, or reprimand employees. Furthermore, she was
never told that she had such authority. On a number of
occasions she requested Patel to remove employees with
whom she was dissatisfied from her crew and in several
such instances Patel effected substitutions. According to
Mary DeGuglielmo's uncontradicted testimony, it was
Patel's daily practice about midpoint during each work
shift and at the end of each shift to inspect the rooms
which were cleaned by her crew.5
Despite the fact that Mary DeGuglielmo was paid only
10 cents per hour less than Patel and the other building
supervisors, the evidence establishes that as an assistant
supervisor her principal function was to act as an inspector
and her authority over other employees was limited to
issuing routine directions to members of her work crew to
correct the oversights her inspections uncovered .6 Accord-
ingly, I find that Mary DeGuglielmo was not a supervisor
as the tern is defined in Section 2(11) of the Act.
When Pepernik informed Mary DeGuglielmo of her
promotion to assistant supervisor he also said her wages
would be increased from $1.90 to $2.25 per hour. However,
it was increased by Kraus to $2.40 per hour, which was the
rate then being paid to the other assistant supervisors.7 On
January 29, 1973, her wage rate as well as that of the other
assistant supervisors was raised to $2.60. The complaint
alleges that these wage increases were given to Mary
DeGugltelmo to influence her vote in the election. I find no
4 According to Pepernik, on December 22, when he informed Mary
DeGuglielmo about her promotion , he "told her how I wanted the buildings
cleaned for security purposes " She was to open the doors to two or three
rooms After they were cleaned to her satisfaction and everything was
secure she was to lock the doors and then repeat the process for the next
group of rooms To the extent that there are conflicts between Pepermk's
and Mary DeGughelmo 's testimony I credit Mary DeGugltelmo
5 Pepernik testified that Mary DeGuglielmo had authority to make
recommendations regarding the discipline of employees When asked what
he had told her in that respect , he testified that a few days after she began
her new position he said to her, "If you have any problems, somebody
doesn ' t want to do something, come to me or go to Mr. Patel with whatever
it is If you want to get rid of somebody, if somebody does something, let me
know and I will see what I can do about it" This instruction did not
constitute a delegation of authority to make effective recommendations
within the meaning of Section 2(l 1) of the Act
support in the record for this allegation and recommend
that it be dismissed.
C. The Organizational Campaign
Following an anonymous telephone call suggesting that
it would be a good idea for the Union to organize the
Company's employees, Frederick J. Cadigan, an assistant
business agent of the Union, went to Harvard University
on November 27 or 28, 1972, where he spoke with John
Pepernik. Cadigan informed Pepernik that he intended to
organize the Company's employees. Several times thereaf-
ter Cadigan and James Moore, another union business
agent, visited the buildings at Harvard University which
the Company had under contract and spoke with employ-
ees about the Union.
On December 6, 1972, Charles Harak telephoned
Cadigan and arranged to meet with him the next day. After
a lengthy discussion Harak volunteered to assist the Union
in its campaign. Cadigan suggested that it would be
advisable to form an organizing committee among the
employees. Harak offered to be a member of the
committee and subsequently suggested Joseph DeGugliel-
mo, Mary DeGuglielmo, and Claudia McNulty as other
members of the committee. These four became the most
active advocates of the Union among the Company's
employees.
John Pepernik advised Harold Kraus of Cadigan's visits
and kept Kraus informed of the developments in the
Union's organizational campaign. With the assistance of
Attorney Thompson, Pepernik drafted a letter individually
addressed to the Company's employees which was distrib-
uted on December 1, 1972. The letter purports to reflect
the Company's attitude regarding the Union' s organiza-
tional campaign. It points out that the Company "provides
good employment with flexible hours at fair rates of pay,"
that "we are reasonable on time-off requests and humane
in our relationship with our employees," and that a union
would disrupt the informality and personal approach
between the Company and its employees. The letter also
mentions that if the Union obtains authorization cards
from a majority it may seek recognition without an
election. It concludes with a personal request "to consider
our good relationship of the past and refuse to sign any
Union card."
On December 4, 1972, Kraus held a meeting with the
Company's supervisory employees in Cambridge at which,
among other things, they discussed what the supervisors
6 In late January or early February 1973 Kraus , together with Company
Attorney Thompson and Peperntk , met with Mary DeGughelmo for the
specific purpose of discussing her status It was their position that she was a
supervisor and Kraus remarked that as she was a supervisor he objected to
her talking about the Union During that meeting Mary DeGuglielmo
complained about an employee Kraus asked for her recommendation and
she said the employee should be suspended for a week discharged.
discharged, Kraus suggested that she . Patel , and Pepermk should meet and
reach a decision in the matter Ultimately, the employee was suspended for
2 days This single incident does not establish that Mary DeGughelmo had
the authority to make effective recommendations regarding the discipline of
employees
7 Mary DeGughelmo testified that about 2 weeks after she was first
informed of her promotion. Pepermk told her that her rate would be $2 40
per hour.
PERFORMANCE, INC. 621
could do and could not do under the law in connection
with the Union's campaign.
Mary DeGuglielmo testified that in the first week of
December 1972 she had a conversation with John Pepernik
who informed her about the Union's organizational effort.
He advised DeGughelmo that union representation would
be bad for personal relationships between the employees
and management and said, "[I ]f you hear anything going
on about the union or whatever is involved, please tell me
about it." Mary DeGuglielmo agreed.
D. The Discharge of Joseph DeGuglielmo,.
Joseph DeGuglielmo was one of the four employees who
actively promoted the Union and solicited authorization
cards. He began his employment in July 1971. DeGugliel-
mo testified that in the summer of 1972 he arranged with
Pepernik that he would no longer be required to sweep
certain stairwells in William James Hall. Nevertheless, on
December 28 Pepernik directed him to sweep those
stairwells. When DeGuglielmo objected to the assignment
because of their prior agreement, Pepernik said that he did
not care about the agreement and that DeGuglielmo was to
clean the stairwells. DeGuglielmo continued to protest the
assignment until Pepernik said, "If you don't want to do
them, then go home." DeGuglielmo left the premises.
About a half hour later DeGughelmo returned and again
spoke with Pepernik. DeGuglielmo apologized for what he
had done. Pepernik accepted the apology and told
DeGuglielmo to return to his job. The two then began to
discuss the Union's organizational effort. DeGuglielmo
stated that the employees had become interested in the
Union because many had worked for more than a year and
a half and had received no increase in wages and because
the employees were not being given a minimum of 20 hours
of work per week. Pepernik said that because of the
Union's campaign the Company was unable to do
anything about these complaints. Pepernik then described
what might happen if a union became the employees'
representative. He said that he would no longer be able to
hire students, that the friendly relationships would end,
and that "things would be strict." Also, during their
conversation, DeGuglielmo told Pepernik that he was
interested in what the Union had to say. Pepernik
responded that he was aware of this because he knew that
when DeGuglielmo had left the premises earlier that
evening after their quarrel DeGuglielmo had gone to
Harvard Square to talk with the union agent and he also
knew that DeGuglielmo had had other meetings and
conversations with the union agent in Harvard Square.
After they finished their conversation, according to
DeGuglielmo, he returned to work for the balance of the
shift. DeGuglielmo was paid as if he had worked the full
shift on the night of December 28.
The next night, December 29, DeGuglielmo reported for
work at the usual time. DeGuglielmo testified that he
believes Pepernik saw him when he punched in on the 10th
floor of William James Hall where the timeclock is kept.
Later that evening, while he was washing the windows in
the lobby of the building, Pepernik walked through the
lobby with two other people, Jack Brooks and Mike
Collins, and, according to DeGuglielmo, Pepernik saw him
washing the windows. DeGuglielmo worked a full shift on
the night of December 29 doing his normal cleaning tasks.
No other employee was assigned in his place which would
have happened had his absence been anticipated. During
that evening Supervisor - Martin Zafran mentioned to
DeGuglielmo that Zafran thought DeGuglielmo had quit.
DeGuglielmo replied that he and Pepernik had worked out
their differences and everything was all right.
On January 2, which was the next workday, between 8
p.m. and 9 p.m., Pepernik called DeGuglielmo aside.
Pepernik told DeGuglielmo that he wanted DeGuglielmo
"to lay low for awhile." Pepernik said that headquarters
did not want DeGuglielmo around and DeGuglielmo
should wait until the union matter blew over . DeGuglielmo
protested that he was going to school, was married, had a
child, and needed to earn money. Pepernik tried to
reassure him and said that "we will take care of that."
Pepernik indicated that either there would be additional
monies added to DeGuglielmo's check or to his wife's
check. DeGuglielmo asked how long was he supposed to
lay low and Pepernik replied, probably a couple of days.
DeGuglielmo left and went to Gund Hall where his wife,
Mary, was working and told her what had happened.
DeGuglielmo telephoned Pepernik on January 3 and 4 to
ask whether he could return to work and each time was
informed not yet. On Friday, January 5, DeGuglielmo
went to the Company's office in Harvard University. He
learned that Charles Harak had been discharged that night.
When DeGuglielmo spoke to Pepernik the latter tried to
reassure him and said he probably would be back at work
by Monday. On Monday, January 8, DeGuglielmo again
spoke with Pepernik about returning to work. The latter
advised DeGuglielmo that he had better find a better job.
Pepernik explained, "[T ]hey don't want you here."
Mary DeGuglielmo testified that on the night of January
2, 1973, after she had learned that her husband had been
terminated, she spoke to Pepernik. According to Mary
DeGuglielmo, she asked Pepernik why he was blaming
Joseph DeGuglielmo for "what' s going on ." She said that
her husband did not start the Union, that it was Charles
Harak, that there were many more people involved in the
Union and Pepernik might just as well discharge the entire
crew. Pepernik asked her to relax. He explained that he
was under a lot of pressure from Mr. Kraus to remove
Joseph DeGuglielmo because Joseph DeGuglielmo was
convincing too many people about the Union. Pepernik
said that if Joseph DeGuglielmo would just lay low for
awhile until it was all over Pepernik was sure that Joseph
DeGuglielmo would have his job back. Pepernik promised
that he would try to supplement Mary DeGuglielmo's
earnings with extra hours in order to make up for the pay
her husband was losing.
John Pepernik 's version of the events differs substantial-
ly from the DeGuglielmos' Pepernik testified that prior to
January 2, 1973, he had no knowledge that Joseph
DeGuglielmo had been soliciting employees to sign union
authorization cards or otherwise had been engaged in
activity on behalf of the Union. According to Pepernik, on
December 28 he instructed DeGuglielmo to clean the
stairwells which DeGuglielmo refused to do. He then told
DeGuglielmo, "I will give you an alternative. You can go
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
home or do the stairs , but if you go home, don't bother to
come back because you are terminated ." DeGughelmo left.
Pepernik testified that he did not see DeGuglielmo again
that night . According to Pepernik , DeGughelmo was
discharged on the night of December 28, 1972 , because of
his refusal to clean the stairwells.
Pepernik testified that the next night , Friday, December
29, he observed DeGuglielmo on the 10th floor of William
James Hall about 5 p.m. That is the time when , and the
place where , the employees normally report for work.
Pepernik testified that he had no conversation with
DeGughelmo then . About 8 : 30 p.m . that night Pepernik
again saw DeGughelmo but this time in the lobby of
William James Hall. They had a brief conversation.
DeGughelmo asked for his job back and Pepernik , who did
not want DeGuglielmo to return because he considered
that DeGughelmo had been "disrupting my crew," replied,
"Why don ' t you go get a better job . There are places that
pay a lot more than I do." DeGuglielmo answered , "I like
it here." To which Pepernik responded , "I like it here, too,
but I can't have you." Pepernik testified that he did not ask
DeGuglielmo what he had been doing on the premises
from 5 p .m. to 8 : 30 p.m because "[ i]t is not uncommon for
people to come in to see someone else." Pepernik further
testified that when he spoke with DeGuglielmo at 8:30
p.m. on December 29, he did not know that DeGuglielmo
had worked that night . It was later in the evening when he
was reviewing the timecards for payroll purposes , which he
does every Friday , and he saw that DeGuglielmo's card
had been punched in and out, that he discovered that
DeGuglielmo purportedly had worked . DeGuglielmo was
paid for December 29.
On the next workday, Tuesday, January 2 , 1973, about 9
a.m., Pepernik telephoned Kraus According to Pepernik,
he told Kraus that DeGuglielmo had quit on December 28,
and that DeGuglielmo had returned and worked the next
night and therefore was paid . Pepernik wished advice with
respect to this problem . Kraus told Pepernik , "You made
the right decision . Unfortunately he [DeGuglielmo]
worked , but just don 't let him back and that should solve
the problem."
That same evening, January 2, shortly after 5 p.m.,
Pepernik saw Joseph DeGuglielmo at work in William
James Hall. Pepernik testified , " I told him to leave the
building . I didn ' t need him any more . He quit and I didn't
want him back ." DeGughelmo then left . DeGuglielmo was
paid for January 2. The reason , according to Pepernik,
was, "If I like a person , and I know Joe quite well. We are
quite friendly. I just said , 'O.K. I will give you the four
hours pay. You came in.' It was an appeasement . I don't
like people mad at me."
Harold Kraus testified about the telephone conversation
with John Pepernik in the morning of January 2, 1973.
According to Kraus, Pepernik "was in somewhat of a
disturbed condition regarding this particular discharge."
Pepernik 's concern was that after DeGuglielmo had been
discharged on December 28, he returned and worked on
the night of December 29. Pepernik did not see DeGugliel-
mo on the 29th and learned that DeGuglielmo had worked
when Pepermk reviewed the timecards for payroll purpos-
es. Kraus advised Pepernik that although the Company
had no obligation to DeGuglielmo who had been dis-
charged on the 28th , nevertheless , it should pay him for the
29th because he had worked that night. Also, Kraus
recommended to Pepernik that because Pepernik had not
been in touch with DeGughelmo over the weekend, that
when DeGuglielmo reported for work on January 2
Pepernik should make it clear to DeGuglielmo that
DeGuglielmo had been discharged . However, because "of
the situation . . . we paid him [ DeGuglielmo ] the four
hours [on January 2] because he did come in, because that
is the policy I felt was the right thing to do" The
significant difference between the testimony of Kraus and
Pepernik is that Pepermk testified that he spoke with
DeGughelmo on December 29 and then specifically
informed DeGuglielmo that he had been discharged, while
Kraus testified that Pepernik had not seen DeGughelmo
on the 29th and expected DeGughelmo to report for work
on the night of January 2. Also , Kraus testified that he
instructed Pepernik to pay DeGughelmo for January 2
while Pepernik did not testify that he received such
instruction from Kraus but gave an entirely different
explanation for the fact that DeGuglielmo was paid for
January 2.
Pepernik 's version of DeGuglielmo's discharge is implau-
sible. According to Pepernik , after DeGuglielmo 's employ-
ment was unequivocally terminated in the early evening of
December 28 the latter , without Pepernik 's knowledge,
worked the next night . This is an unlikely circumstance. If
nothing else had intervened , there was no reason why
DeGuglielmo would work on the night of the 29th since he
could not expect to be paid after having been terminated.
Second , as DeGuglielmo 's work station included the lobby
of William James Hall it is not likely that he could have
worked an entire shift on December 29 without being
observed and stopped by Pepernik or Supervisor Zafran.
Third , if DeGuglielmo had been finally terminated on
December 28, Pepernik would have informed Supervisor
Zafran of DeGuglielmo 's discharge and arrangements
would have been made for someone else to do the work
ordinarily assigned to DeGughelmo . Thus, DeGuglielmo's
working presence on December 29 could not have gone
unnoticed. Fourth , according to Pepernik , he observed
DeGuglielmo in William James Hall at the beginning of
the shift on the 29th and then again at the end of the shift
when he engaged DeGuglielmo in a conversation. His
testimony is incredible that he had no curiosity as to why
DeGuglielmo was in the building and that he did not ask
DeGughelmo that question , particularly as the Company
was so much concerned with building security . Fifth,
Pepernik testified that on December 29 he specifically told
DeGuglielmo that he had been discharged and he was not
to return . In this circumstance , there is no explanation for
the fact that Pepernik telephoned Kraus in the morning of
January 2 , 1973, to inquire what should be done when
DeGuglielmo returned to work that evening. Finally, the
testimony of Kraus contradicts Pepernik in that Kraus
testified that he understood from his conversation with
Pepernik that Pepernik did not speak to DeGughelmo on
the 29th and therefore expected DeGuglielmo to return to
work on January 2 and that he, Kraus, instructed Pepernik
to pay DeGuglielmo for January 2, while Pepernik testified
PERFORMANCE, INC. 623
that on December 29 he reaffirmed to DeGuglielmo that
the latter had been terminated and gave a different
explanation for the fact that DeGuglielmo was paid for
January 2. Not only do I find Pepernik's version of
DeGuglielmo's discharge unbelievable, but I consider that
Pepernik was generally an unreliable witness. He was
uncertain in his recollection as to various material events
about which he was questioned and his testimony in
significant respects was inconsistent with the testimony of
Harold Kraus. Pepernik appeared to be uncomfortable as a
witness and left the impression with me that he was
shaping his testimony to fit the outlines of Respondent's
defense rather than describing the events as they hap-
pened.
I find that both Joseph DeGuglielmo and Mary
DeGuglielmo were direct, forthright, and truthful witness-
es. I credit their testimony. Accordingly, I find that Joseph
DeGuglielmo was discharged on January 2, 1973, because
of his activities on behalf of the Union and in order to
discourage employee membership in and support of the
Union. Such discharge constitutes unlawful discrimination
within the meaning of Section 8(a)(3) of the Act and
further serves to interfere with , restrain, and coerce
employees in the exercise of the rights guaranteed in
Section 7, in violation of Section 8(a)(l) of the Act.
E. The Discharge of Charles Harak
Charles Harak began working for the Company at the
end of October or in early November 1972. His supervisor
was Patel. When he was hired he advised Pepernik that he
would be unable to work five nights per week, that he
would usually work three nights and when he had a lot of
school homework he might work only two nights in a week.
Pepernik said that that was acceptable because the
Company was very flexible about days of work and
vacations. After Harak began working his supervisor,
Patel, informed him that it was not necessary for him to
give advance notice as to the days he would be at work.
According to Harak, Patel told him, "Just show up. So
after that I showed up two or three days a week."
Harak was the first of the Company's employees to
contact union business agent Cadigan. Upon the instruc-
tions of Cadigan, Harak recruited an informal organiza-
tional committee consisting of himself, Joseph and Mary
DeGuglielmo, and Claudia McNulty. From December 7
until his termination Harak actively solicited employees to
sign union authorization cards and generally promoted the
Union among the employees.
Harak testified that about December 15, during a
conversation with Pepernik about a possible transfer to
another building, he informed Pepernik that he was
assisting the Union in its organizational effort. Pepernik
admitted that he learned from Harak of the latter's interest
in the Union and that he spoke with Harold Kraus about
the subject. Harak also informed Supervisor Martin Zafran
about his union interest and activities . Further, Mary
DeGuglielmo testified that on January 2, after her husband
had been discharged, she told Pepernik that he should not
blame her husband for starting the union movement
because the person responsible was Charles Harak.
Charles Harak was discharged on January 5, 1973, when
he returned to work after his Christmas vacation. Accord-
ing to Harak, upon reporting for work his supervisor, Patel,
told him to see Pepernik . Pepernik informed him that he
was no longer needed by the Company because as of
January 4 Pepernik had hired someone to replace him.
Pepernik did not give Harak any further explanation for
his discharge.
Pepernik admitted that he knew about Harak's union
activities . However, Pepernik denied that Harak's union
interest influenced the decision to discharge Harak.
Pepernik testified that Harak was discharged because he
was absent for 3 consecutive days, January 2, 3, and 4,
without excuse and without having informed the Company
that he would not be at work. Pepernik testified that before
Harak left for his Christmas vacation, "[h ]e said he would
be back on the 2nd ." When asked to be more specific as to
what Harak told him about the day he would return from
his Christmas vacation, Pepernik testified that Harak said,
"I'll be back right after New Years." Thus, according to
Pepernik , he expected Harak to be at work on January 2.
About 9 p.m. on January 4, after Harak had failed to
report for work on both January 2 and 3 and it was
obvious that Harak was not going to be at work on
January 4. Pepernik telephoned Kraus. Pepernik informed
Kraus that he wanted to discharge an employee because of
absenteeism and inquired whether because of the organiza-
tional activities taking place there would be any problem.
When Harak reported for work the next day Pepernik told
Harak that he was dismissed because of his absences on 3
consecutive days.
Harold Kraus testified that on the night of January 3
Pepernik telephoned him and, among other things,
informed him that he had expected Harak back on January
2 and as of that night, January 3, Harak had not yet
returned . Kraus advised Pepernik that if Harak did not
return the next night , or at least "call us," there "certainly
was grounds for discharge." According to Kraus, Pepernik
spoke to him again about the same subject on January 4.
Kraus also testified that at no time prior to Harak's
discharge did he learn from Pepernik that Harak was
active in the Union's campaign . Pepernik's testimony is to
the contrary.
The reason given by the Company for Harak's discharge
is not credible. According to Pepernik and Kraus , as well
as various employees who were witnesses at the hearing,
the Company's policy regarding leaves for vacations was
flexible. Employees were permitted to be absent from work
during periods they were on vacation from school.
Pepernik did not know when Harak 's school vacation
ended and did not ask him that question . According to
Pepernik , when Harak left on vacation Harak did not tell
Pepernik that he would return on any particular day but
merely said that he would return after the New Year. At
most , it was an expectation on Pepernik's part that Harak
would return on January 2; there was no clear understand-
ing to such effect . Further, in the light of Harak's loose
employment arrangement whereby he worked any two or
three nights during the week that he chose so that 2
consecutive days' absence was not unusual, no explanation
is given as to why 3 consecutive days' absence was
considered critical by the Company or by Pepernik. Also,
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harak was treated differently from Claudia McNulty. The
latter testified that when she left for her Christmas
vacation about December 16, 1972, she informed her
supervisor, Patel, that she probably would be back to work
on January 2 or 3. However, she did not return until
approximately January 13, did not inform the Employer
that she would overstay her leave, and nothing was said to
her about the matter.
Of significance in assessing the reason for Harak's
discharge are the following circumstances: On December
29 the Union sent a telegram to the Employer advising that
it represented the Employer's Cambridge employees and
requesting a meeting for the purpose of negotiating a
collective-bargaining agreement and on January 3 the
Employer mailed a reply to this telegram in which it stated
that it had received the Union's telegram on January 2 and
that it declined to recognize the Union because "we have a
good faith doubt that your Union represents an uncoerced
majority of our employees in a unit appropriate for the
purposes of collective bargaining." On January 2 the
Union filed its representation petition, On the night of
January 2, after the Company had received the Union's
telegram asserting its representative status, the Employer
discharged Joseph DeGughelmo. On the same night
Pepernik learned from Mary DeGuglrelmo that Charles
Harak was the leader of the union movement. Harak was
not at work on January 2. When he returned on January 5,
he was discharged.
The Company' s unconvincing reason for Harak's dis-
charge, its opposition to the representation of its employees
by the Union, the knowledge Pepernik had of Harak's
union activities, and the timing of Harak's discharge-as
soon as possible after the Union's demand for recognition
was received, and the Company had learned of Harak's
leadership in the organizational effort-justify the infer-
ence , which I make, that Harak was discharged not for the
reason asserted by the Respondent but because of his
union activities and to discourage employees from support-
ing and joining the Union. Accordingly, I find that Harak's
discharge on January 5, 1973, was an unlawful discrimina-
tion in violation of Section 8(a)(3) of the Act and interfered
with, restrained, and coerced employees in the exercise of
rights guaranteed in Section 7, in violation of Section
8(a)(1) of the Act.
F. Interference, Restraint, and Coercion
The complaint alleges that various conduct, summarized
above, infringed upon rights guaranteed employees in
Section 7 of the Act. I find that the allegations of the
complaint have been sustained with respect to the
following incidents, each of which I find constitutes a
violation of Section 8(a)(1) of the Act:
(a) In the first week of December 1972 John Pepernik
engaged Mary DeGuglielmo in a conversation about the
Union during which Pepernrk expressed the opinion that
the organization of the employees would be "bad for the
personal relationship . . . between the employees and
management." He then asked Mary DeGuglrelmo to report
to him anything she might hear "going on about the
union." In the context of his expressed opposition to the
Union, Pepernik's request that Mary DeGuglielmo report
to him what she right hear about the employees' union
activities would tend to cause employees to fear that such
information was being sought by the Company in order
that it might discourage those activities by discharging or
engaging in other reprisals against the employees who
supported the Union . As was pointed out in N. L.R.B. v.
Louisiana Manufacturing Company, 374 F.2d 696 , 701 (C.A.
8), "asking [employees ] to report union supporters, is very
suspect and usually coercive in effect."
(b) Mary DeGuglielmo testified that on January 2, 1973,
after she learned that her husband had been discharged,
she spoke to John Pepernik about the matter . During their
conversation Pepernik informed her that he had been
pressed to discharge Joseph DeGuglielmo by Company
Vice President Kraus "because Joe was convincing too
many people about the union ." Informing employees that
one of their number has been discharged because of his
union activities tends unlawfully to inhibit employees from
engaging in union activities or other activities protected by
the Act.
(c) Joseph DeGuglielmo testified that , during his
conversation with John Pepernik on December 28, Peper-
nik said that were the Union to become the employees'
representative "he would no longer be able to hire
students , that he would no longer be able to have friendly
relationships with the employees that we had had in the
past . That things would be strict ." Such threats of reprisals
in the event the employees ' self-organizational activities
should be successful are a patent violation of Section
8(a)(1).
(d) Joseph DeGuglielmo also testified that , in the same
conversation with John Pepernik on December 28, Peper-
nik told DeGughelmo that Pepernik knew that DeGugliel-
mo had been in Harvard Square that afternoon talking
with the union agent and that Pepernik knew that
DeGughelmo had had other meetings with the union agent
in Harvard Square . These remarks create the impression
that the Employer was spying on the employees' activities
in relation to the Union . As there was no legitimate reason
for the Employer to do so the employees would fear that
the Employer was seeking to discover which employees
were actively assisting the Union in order that the
Employer might curb such activities by engaging in
reprisals against those employees. As stated in Hendrix
Mfg. Co. v. N.L.R. B., 321 F .2d 100, 104, In . 7 (C.A. 5):
Surveillance becomes illegal because it indicates an
employer 's opposition to unionization, and the furtive
nature of the snooping tends to demonstrate spectacu-
larly the state of the employer's anxiety . From this the
law reasons that when the employer either engages in
surveillance or take steps leading his employees to
think it is going on , they are under the threat of
economic coercion , retaliation, etc.
G. The Refusal To Bargain
On December 29, 1972, the Union sent a telegram to the
Company, which the Company states it received on
January 2, 1973, informing the Company that it represents
its employees who work at Harvard University and
requesting a meeting for the purpose of negotiating a
PERFORMANCE, INC.
collective-bargaining agreement. On January 3. the Com-
pany mailed its reply advising that it declined to recognize,
meet with, or otherwise deal with the Union as the
representative of any of its employees.
In the period between December 29 and January 3, there
were 57 employees, including Mary DeGuglielmo, in the
unit which the parties have stipulated is appropriate for the
purposes of collective bargaining. As of said date 32 of the
employees in the unit had signed and delivered to the
Union cards authorizing the Union to represent them in
collective bargaining with the Company. Thereafter, an
election was conducted by the Board on February 22,
1973. The Union did not receive a majority of the ballots
cast. However, the Union filed objections to conduct
affecting the results of the election. 1 find that the
objections based upon the discharges of Joseph DeGugliel-
mo and Charles 1-larak have merit. I further find that for
the reasons stated below the Company has violated Section
8(a)(5) of the Act by its refusal on and after January 3 to
recognize and to bargain collectively with the Union as the
majority representative of an appropriate unit of its
employees.
The discharge of employees for their union membership
or support particularly, as in the instance of DeGuglielmo
and Harak, employees who are the leaders in the union
movement, is a powerful, but unfair and unlawful, means
of combating an organizational drive. A threat then hangs
over the remaining employees that if they support the
Union they too will be subject to peremptory removal from
their jobs. Such threat is a forceful constraint on the
exercise by employees of their statutory rights to engage in
self-organizational activities. It interferes with the opportu-
nity the statute gives employees to make a rational,
considered and free choice in a representation election.
Also, the fears generated in employees by the discharge of
coworkers are pervasive, difficult to extinguish, and quick
to reappear under only slight stimulus. Thus, the effect of
the Employer's unlawful conduct in discharging DeGu-
glielmo and Harak was to vitiate the election held on
February 22, 1973, and I shall recommend that it be set
aside . I find further that the Company's unlawful conduct
served to undermine the Union's majority (to the extent
that the results of the February 22 election can be
considered as a reflection of the employees' sentiments
regarding union representation). This damage to the
employees' self-organizational efforts cannot readily be
repaired. Any future campaign among the Company's
employees for an election would be seriously hampered by
the fear that the union proponents in such campaign would
suffer the same fate as was meted to Joseph DeGuglielmo
and Charles Harak. The lingering effects of the Company's
unfair labor practices make improbable that the imposition
of the conventional reinstatement and backpay order and
the posting of notices to remedy the unfair labor practices
would permit a fair election to be conducted. In the
circumstances, I find that the Union's designation as
collective-bargaining agent by a majority of the employees
having signed authorization cards provides a more reliable
reflection of the employees ' representational attitudes and
desires and better protects their rights under the Act, than
625
would another election . Accordingly, I shall recommend a
bargaining order in this case.
IV. 1HE REPRESENTATION PROCEEDING
For the reason stated above I recommend that the
objections to the conduct of the election filed by the Union
in Case i-RC-12495 should be sustained . As I shall
recommend in Case l -CA-8783 that an order issue
requiring the Company to bargain collectively with the
Union, upon request , I recommend that the petition in
Case 1-RC-12495 he dismissed and all prior proceedings
held thereunder be vacated.
V. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Company set forth in section III,
above, occurring in connection with its operations de-
scribed in section I. above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
Vi. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I shall recommend that it
cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the
Act.
Having found that Respondent unlawfully has refused to
bargain collectively with the Union, I shall recommend
that it be ordered to bargain collectively with the Union,
upon request, with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment of the employees in the appropriate unit described
below. I shall also recommend that any understanding
reached between the parties shall be embodied in a signed
agreement . Because the Respondent is being directed to
bargain collectively with the Union, although no designa-
tion of representative was made in accordance with the
procedures of Section 9 of the Act, I shall further
recommend that the notice herein contain language
advising the employees of their right to a decertification
election . See N.L.R.B. v. Priced-Less Discount Foods, Inc.,
405 F.2d 67 (C.A. 5, 1968), and 407 F.2d 1325 (C.A. 6,
1969); Ace Foods, Inc., 192 NLRB 1220.
Having found that the Company unlawfully terminated
Joseph DeGuglielmo on January 2, 1973, and Charles
Harak on January 5, 1973, I shall recommend that the
Respondent offer each of them immediate and full
reinstatement to his former job or, if such job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
make each of them whole for any loss of earnings he may
have suffered by reason of the discrimination against him
by payment to him of a sum of money equal to that which
he normally would have earned from the aforesaid date of
his discharge to the date of the Company's offer of
reinstatement, less his net earnings during such period. The
backpay provided herein shall be computed by calendar
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quarters in accordance with the method prescribed in F
W. Woolworth Company, 90 NLRB 289. Interest at the rate
of 6 percent per annum shall be added to the net backpay
and shall be computed in the manner set forth in Isis
Plumbing & Heating Co., 138 NLRB 716.
Respondent's unlawful activities, including the discrimi-
natory discharges of Joseph DeGuglielmo and Charles
Harak, go to the very heart of the Act and indicate a
purpose to defeat self-organization of its employees. The
unfair labor practices committed by Respondent are
potentially related to other unfair labor practices pro-
scribed by the Act, and the danger of their commission in
the future is to be anticipated from Respondent's conduct
in the past. The preventive purpose of the Act will be
thwarted unless the recommended Order herein is coexten-
sive with the threat. Accordingly, in order to make effective
the interdependent guarantees of Section 7 and thus
effectuate the policies of the Act, an order requiring
Respondent to cease and desist from in any manner
infringing upon the rights of employees guaranteed in the
Act is deemed necessary. N.L.R.B. v. Express Publishing
Co., 312 U.S. 426; N.L.R.B. v. Entwistle Manufacturing Co.,
120 F.2d 532 (C.A. 4).
Upon the basis of the foregoing findings of fact and
upon the entire record in these cases, I make the following:
CONCLUSIONS OF LAW
1. By discharging Joseph DeGughelmo and Charles
Harak on January 2 and 5, 1973, respectively, thereby
discouraging membership in the Union, Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) of the Act.
2. By failing and refusing at all times on and after
January 3, 1973, to bargain collectively with the Union as
the exclusive representative of the employees in the
appropriate unit described below, Respondent has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) of the Act.
3. By reason of the foregoing, and by reason of
Respondent's coercive interrogation of employees, its
conduct in creating the impression among employees that
it was engaged in the surveillance of their union activities,
and its threats of reprisals against employees if they
selected the Union as their collective-bargaining represent-
ative, the Company has interfered with, restrained, and
coerced employees in the exercise of the rights guaranteed
in Section 7 of the Act, and thereby has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby recommend the following:
ORDERS
Respondent, Performance, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from.
(a) Coercively interrogating employees about their
knowledge of the union activities among the Company's
employees or asking employees to report on the union
activities of other employees.
(b) Creating the impression among employees that it is
engaged in the surveillance of their union activities.
(c) Threatening employees with more onerous conditions
of employment or other reprisals should the Union, or any
other labor organization, be selected as their collective-
bargaining representative.
(d) Discouraging membership in Building Service Em-
ployees' International Union, Local 254, AFL-CIO, or any
other labor organization, by discharging any of its
employees, or by otherwise discriminating against any of
its employees in regard to their hire, tenure of employment,
or other terms or conditions of employment.
(e) Refusing to bargain collectively with the above-
named Union as the exclusive collective-bargaining repre-
sentative of all employees in the appropriate unit described
below.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act, except to the extent that such rights
may be affected by an agreement in conformity with
Section 8(a)(3) of the Act, as amended.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with Building
Service Employees' International Union, Local 254,
AFL-CIO, as the exclusive representative of all the
employees in the below-described unit and, if an agree-
ment is reached, embody i t in a signed contract. The
appropriate collective-bargaining unit is:
All full and regular part- time cleaners, janitors, floor
polishers employed by Performance, Inc., at Harvard
University, Cambridge, Massachusetts, but excluding
all office clericals, guards and supervisors as defined in
the Act.
(b) Offer Joseph DeGughelmo and Charles Harak
immediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority and other
rights and privileges, and make them whole for any loss of
earnings they may have suffered by reason of the unlawful
discrimination against them in the manner set forth in the
section of this Decision entitled "The Remedy."
(c) Preserve and, upon 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 recommended Order.
8 In the event no exceptions are filed as provided by Sec 102 46 of the 102 48 of the Rules and Regulations, be adopted by the Board and become
Rules and Regulations of the National Labor Relations Board , the findings , its findings, conclusions , and order , and all objections thereto shall be
conclusions, and recommended Order herein shall, as provided in Sec. deemed waived for all purposes
PERFORMANCE, INC.
(d) Post at ils offices in Cambridge, Massachusetts,
copies of the attached notice marked "Appendix."9 Copies
of said notice, on forms provided by the Regional Director
for Region 1, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that Case 1-RC-12495 be
severed from Case 1-CA-8783 and that Case 1-RC-12495
be remanded to the Regional Director for Region 1, for
further action in accordance with the recommendations
herein contained, and in accordance with Section 102.62(a)
and Section 102.69 of the Board's Rules and Regulations
and Article 5 of the Agreement for Consent Election.
v 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF '1 HE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT question employees about their union
activities or about the union activities of other
employees
WE WILL NOT request employees to report to us
about the union activities of -other employees.
WE WILL NOT Spy on the union activities of our
employees or create the impression among our employ-
ees that we are keeping their union activities under
surveillance.
WE WILL NOT threaten employees with more onerous
conditions of employment or other reprisals should
they designate a labor organization as their collective-
bargaining reps esentative.
WE WILL, NOT discharge, or otherwise discriminate
against, any of our employees in order to discourage
membership in or support of Building Service Employ-
ees' International Union, Local 254, AFL-CIO, or any
other labor organization.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
627
rights guaranteed in the National Labor Relations Act,
which are as follows:
To engage in self-organization;
To form, join, or help unions;
To bargain collectively through representa-
tives of their choosing;
To act together for collective bargaining or
other mutual aid or protection;
To refuse to do any or all of these things.
WE WILL offer to Joseph DeGuglielmo and Charles
Harak reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other rights
and privileges, and WE WILL make them whole for any
loss of earnings they may have suffered by reason of
our unlawful discrimination against them, together
with interest at the rate of 6 percent per annum.
WE WILL, upon request, bargain collectively with
Building Service Employees' International Union,
Local 254, AFL-CIO, as the exclusive representative of
all our employees in the unit described below, and if an
agreement is reached we will embody it in a signed
contract. The appropriate unit is:
All full and regular part-time cleaners, janitors,
floor polishers employed by us at Harvard
University, Cambridge, Massachusetts, but ex-
cluding all office clericals, guards and supervisors
as defined in the Act.
Employees, pursuant to Section 9(c)(1) of the National
Labor Relations Act, may, at an appropriate time, petition
the National Labor Relations Board at the office set forth
below for an election to decertify the Union as their
collective-bargaining representative. The filing of such a
petition can only be done as the voluntary act and choice
of the employees and on their own initiative, without
encouragement or assistance from any representative of
management.
Dated By
PERFORMANCE, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office,
Seventh Floor, Bulfinch Building, 15 New Chardon Street,
Boston, Massachusetts 02114, Telephone 617-223-3300.