Physicians & Surgeons Building, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1962

135 N.L.R.B. 1367 (N.L.R.B. 1962)

PHYSICIANS & SURGEONS BUILDING, INC. 1367
Physicians & Surgeons Building, Inc. and Building Service
Employees International Union , Building Service & Mainte-
nance Union Local No. 47, AFL-CIO. Case No. 8-CA-?490.
February 08, 1962
DECISION AND ORDER
On December 4, 1961, Trial Examiner A. Norman Somers issued
his Intermediate Report herein, finding that the Respondent engaged
in unfair labor practices and recommending that it cease and desist
therefrom and take affirmative action, as set forth in the Intermedi-
ate Report attached hereto. Thereafter, Respondent filed excep-
tions 1 to the Intermediate Report and a supporting brief.2
The Board has considered the Intermediate Report, the exceptions
and brief, and the entire record. The Board affirms the Trial Ex-
aminer's rulings and adopts his findings and conclusions.'
ORDER
The Board adopts the Recommended Order of the Trial Examiner
as its Order .4
I Respondent 's request for oral argument is denied because in our opinion the record;
exceptions , and brief adequately set forth the positions of the parties
2 In its brief Respondent requested that the record be reopened for the purpose of re-
ceiving in evidence affidavits supplied to the General Counsel by Respondent 's employees
Alber, Mullner, and Hall It urges that these affidavits contradict the General Counsel's
case in certain material aspects , that the General Counsel withheld them, and that Re-
spondent was not aware of their existence at the time of the hearing It is well settled
that the General Counsel is not required to produce the statements of individuals inter-
viewed by him in the course of his investigation unless he calls them as his witnesses at
the hearing , in which case he must make available their prehearing statements at the
request of any party in order to facilitate their cross -examination Statements of in-
dividuals not called by the General Counsel properly remain part of the Board's con-
fidential files International Longshoremen 's and Warehou8emen's Union Local 8, et al.
(General Ore , Inc.), 126 NLRB 172, 174, and cases cited in footnote 6. Allier and Mullner
were not called as witnesses by any party and Hall was called as Respondent ' s witness.
Respondent 's request to reopen the record to receive these affidavits is denied for the above
reasons and, in the case of Hall , for the additional reason that she did testify as Respond-
ent's witness. The Raser Tanning Company, 122 NLRB 640, footnote 3.
2 Respondent contends that It is not engaged in a business affecting commerce as found
by the Trial Examiner The complaint alleged and Respondent ' s answer admits that it
is engaged in the operation and rental of an office building whose annual revenues are
in excess of $380,000 . It also admits that of this amount, $169 ,000 or more is derived
from enterprises engaged in interstate commerce such as Westinghouse Broadcasting
Company, Inc., which owns and operates a radio and television station affiliated with
the National Broadcasting Company, and that the station's revenues are in excess of
$100,000 per year. At the hearing , Respondent 's president admitted that Westinghouse
occupies approximately one-third of the building 's area In agreement with the Trial
Examiner , we conclude that Respondent is engaged in commerce within the meaning of
the Act since its gross annual volume exceeds $100 ,000, of which at least $25,000 Is
income from a lessee such as Westinghouse whose business satisfies the Board ' s applicable
jurisdictional standard on a basis other than Indirect inflow or outflow . Mistletoe Operat-
ing Company, 122 NLRB 1534, 1536 ; Raritan Valley Broadcasting Company, Inc., 122
NLRB 90.
* The following is to be inserted in the Notice immediately after the sentence beginning
"This notice must remain posted . . "Employees may communicate directly - with
the Board ' s Regional Office ( 720 Bulkley Building , 1501 Euclid Avenue , Cleveland, Ohio ;
Telephone Number, Main 1-4465 ) if they have any question concerning this notice or
compliance with its provisions." '
135 NLRB No. 138.
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This case, with all parties represented, was heard before me in Cleveland, Ohio,
on September 26 to 29, 1961, on complaint of the General Counsel and answer of
Respondent . The issues were whether Respondent discriminatorily discharged three
named employees in violation of Section 8(a) (3), and in other ways invaded the pro-
tected rights of its employees in violation of Section 8(a)(1) of the Act. The
General Counsel and Respondent presented oral argument , and Respondent has
filed a brief, which has been carefully considered.
Upon the entire record , as corrected on notice of the parties , and my observation
of the witnesses , I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER; THE LABOR ORGANIZATION
Respondent, Physicians & Surgeons Building, Inc., is an Ohio corporation, which
owns and is located in the Investment & Insurance Building in Cleveland, where the
events here under review occurred . The gross rentals exceed $100 ,000 a year, of
which at least $25,000 is from business concerns which do an interstate business, ex-
clusive of indirect outflow or inflow of goods, in an amount in excess of the mini-
mum prescribed by the Board for assumption of jurisdiction.' It is found that Re-
spondent is engaged in a business affecting commerce within the meaning of the Act,
and that it will effectuate the policies of the Act to assert jurisdiction in this case.
Siemons Mailing Service, 122 NLRB 81; Carol Management Corporation, et al.,
133 NLRB 1126.
The Charging Party, hereinafter called the Union, is a labor organization within
the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The issue and certain preliminary observations concurring the evidence
The case concerns three cleaning women in Respondent's building, whose employ-
ment terminated on the workday immediately following the one in which they had
signed union cards. The termination occurred after heated discussion with Mary
Mihalic, the floor-lady of the building, who was their supervisor, over their having
signed the cards. Apart from the circumstances which illuminate the motive for the
terminations, there is testimony directly implicating those acting for Respondent in
statements, which if credited, constitute "direct evidence" that the union affiliation,
if not the sole cause, was at least a "contributing" cause for the termination, and
this, in law, is a sufficient basis for liability. N.L.R.B. v. Parker Brothers and Com-
pany, Inc., 209 F. 2d 278, 279 (CA. 4). In resolving such conflicts as the record
may present concerning whether the statements were made, the exigencies which
require keeping a document of this character within reasonable bounds render it
impracticable to detail every conflict in testimony (although analysis indicates that
there are very few which are serious, if even genuine). But all conflicts, whether
here specifically mentioned or whether omitted from this report, have been con-
sidered and weighed, as has also the entire record, and the resolutions are based
upon the criteria of persuasiveness recognized in our general jurisprudence and
upon which the rational mind must draw in any event-such as the consistency of
the testimony within itself and with established facts of record, the probabilities,
and those attributes of bearing, forthrightness, etc., which are subsumed under the
category of "demeanor," with the requisite allowance for the "subjective involve-
ments in its application." Sears, Roebuck and Co., 123 NLRB 1236, 1240.
Another observation: the complainants are foreign born and most of their testi-
mony was given through interpreters-Karin Kupp and Time Kurdelaid in Estonian,
and Susan (Zsuzsanna) Bodaheli in Hungarian. One of the difficulties is that the
interpreters, who are themselves closer to the respective languages of the complain-
ants than to English, translated the testimony in a manner which, though faithful
to the sense, would seem frequently to have been more in the idiom of the original
tongue than the one in which they were translating-so that some malapropisms of
i These include Westinghouse Broadcasting Co., owner and operator of a TV-radio
station affiliated with NBC network, and having an annual revenue of over $100,000 a
substantial portion of which being for advertising time used by advertisers of national
products.
PHYSICIANS & SURGEONS BUILDING, INC. 1369
expressions attributed to a given speaker, while not impairing the sense , are more
likely the interpreter's rather than the speaker's. And by way of final observation,
the complainants, though not sufficiently versed in English to testify in it, have, in
varying degrees, a limited understanding of the language , which was adequate for
their day-to-day contacts with Floorlady Mihalic, whose unique attributes for con-
veying meaning would seem often to transcend the word barrier anyway. So it may
be assumed that all conversations that Mihalic had with the complainants were in
English, except in a few instances , to be specifically noted, where her remarks were
translated to the complainants by some cleaning woman in German, and in one
instance where she addressed Bodaheli in Hungarian.
B. The signing of the cards and the conversations of the complainants with
Floorlady Mihalic, culminating in their terminations
On March 24, 1961, which was a Friday, Respondent's cleaning women were
visited at the building by two union representatives. This occurred toward the
close of the cleaning women 's 6-hour shift, which ended at 11:30 p.m. Six of them,
including the three complainants, signed cards .2
Floorlady Mihalic had been away from work that day because of a brief illness.
On her return the next working day, which was Monday, March 27, Mihalic had
three rounds of conversations with the complainants, the first one about 2 hours
after starting time, the second about 9, and the last at the end of the shift about 11:30
(with complainant Bodaheli missing from the last one, for reasons later appearing).
Kupp and Kurdelaid worked on the fifth and sixth floors . The first conversation
was with each of these two separately, and the second and third took place in the
presence of each other.3 In the first conversation about 7:30, Mihalic called
Kurdelaid into the corridor and asked whether she had signed a union card. Kurde-
laid admitted she had. Mihalic then asked her who else had done so, but Kurde-
laid refused to say. Mihalic angrily remarked that the women should have talked
to her first, and sent Kurdelaid back to her work. About the same time, she ap-
proached Kupp and asked her whether she had signed. Kupp replied she had,
and Mihalic asked her whether anyone else had signed . Kupp professed not to
know, whereupon Mihalic left.
During the second conversation, about 9 o'clock, Mihalic talked to Kupp and
Kurdelaid together.4 This time her manner was cordial, and she indeed embraced
Kurdelaid, and praised the prowess of Estonian women as cleaners. She asked them
why they had joined the Union. Kupp, who knows English better than Kurdelaid,
and who talked for both, replied it was in order to receive more pay. Mihalic stated
that they would receive raises when the building was more fully occupied. She
repeated to both what she had earlier stated to Kurdelaid-that they should have
asked her first before signing. She then stated that the "boss" did not want anyone
in the Union, because it was "no good" and caused "lots of expenses," that he would
"fire [them] right away" for what they had done, but that she wanted to help them
retain their jobs, which they could do by withdrawing or recalling their cards.
When the shift ended at 11:30, Mihalic met all the cleaning women at the dressing
room on the third floor. The exceptions were Mary Dutka, one of the three women
other than the complainant who had signed a card on the 24th but who was not
working on the 27th, and Bodaheli, whose conversations with Mihalic earlier that
shift will be recounted later. Mihalic asked where "Suzie" was and was told she had
left the building in tears, whereupon Mihalic commented, "Suzie liked the Union."
2 Another member of the cleaning department who signed was Lembit Flediil, son of
complainant Karin Kupp He was one of the two male employees of the cleaning depart-
ment, whose shift began when that of the cleaning women ended
9 During her first and second conversations with these two complainants, Mihalic
brought upstairs with her Elizabeth Mullner, a utility employee then working on the lower
floors, for the purpose of translating in German, if necessary. So far as appears, that
facility of Mullner's was not in fact used in the conversations with Kupp and Kurdelaid.
4 Mihalic admitted that in the interval between the first and second conversations, she
had spoken on the telephone with Respondent's president, Dr Shapero, and, among other
things, told him what she had learned of the women's signing up On the morning of
that same day, Joseph Murphy, president of the Union, had informed Dr. Shapero on the
telephone that a majority of the personnel had signed cards, and the two agreed to a
meeting for the purpose of negotiating a contract. On the basis of the criteria spelled
out in the introductory section of this report, Murphy's testimony concerning his tele-
phone conversation with Dr. Shapero the morning of March 27 is credited as against the
latter's denial.
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
•Mihalic then asked each of the four women then present, who had signed , whether
they would; withdraw their cards. Marie'Vegh and Dorothy Hall, the two women
,then working,,other than the complainants , who had signed , yielded to Mihalic's
proposal. Kurdelaid replied she was, uncertain. Mihalic then asked Kupp if her
son, Lembit Hediil, had signed and, though he had in fact done so (supra, footnote 2),
Kupp replied he had not. Mihalic then asked Kupp if she would recall her card.
Kupp replied the women should have a meeting by themselves first, in, which they
would make a joint.decision. Mihalic then ordered Kupp and Kurdelaid to leave
at once. Kurdelaid protested and Mihalic then asked her why she had signed. To
the response' that this was a "free country" where "everyone do what she think is
right [sic]," Mihalic retorted, "'Your free country is Estonia , you can go back there,"
followed by "Out! Out!" Kurdelaid asked, whether she was -being "fired or laid
off," and Mihalic replied, "Fired." Kupp asked,for the reason, and Mihalic replied
that they were "troublemakers" and "were bringing in other troublemakers." Kur.
delaid stated she would be back the next day "because I think I am not at fault."
Mihalic then stated she would "make sure those two women, Mrs. Kupp and
Kurdelaid, won't be here tomorrow"; that they "brought in gangsters" and were
"causing trouble. You won't get any work any more in Cleveland. Out! Outs" At
the same time she denounced them as "poor workers." Kupp asked Mihalic for a
layoff slip, and Mihalic replied she would not give them any because they had been
"troublemakers."
Doubt of Mihalic's capacity to resort to such extremes and contradictions of utter-
ance was dispelled by her performance on the witness stand. She is a flamboyant
personality of volcanic temperament, shifting from effusive sentimentality to un-
bridled denunciation with a penchant for volunteered protestations about the good-
ness of her heart and loftiness of her principles, and at the same time unwittingly
giving the game away-so that the observer got the sense of a Dickens character
come to life, with an added daub from Damon Runyon. She testified she came to
the complainants in order to talk to them about mounting complaints of their de-
linquencies during her absence. But at the same time she admitted that "they come
at me, and they says, `we signed the union, we're going to get a $1.50 an hour,'
whereupon she replied, 'I don't come up for that I come up to tell you about your
complaints."' It is hardly likely that an employee would thus volunteer such infor-
mation before being asked and in this instance before even being addressed. That
Mihalic initiated the inquiry in each instance is- corroborated also by her testimony
that the cleaning women told her they had been pressured into signing by the union
representatives and had agreed to withdraw their cards. This normally happens in
response to some overtures to them on that score from management. Illustrative
is Dorothy Hall, the employee cited by Kurdelaid and Kupp as having consented to
having her card withdrawn, who was produced as a witness by Respondent. She
corroborated the testimony of Kupp and Kurdelaid that it was Mihalic who initiated
the suggestion she do so, after Mihalic questioned her on whether she signed.5
As to Bodaheli, Mihalic's initial conversation with her about 7:30 took place
jointly with the other women then working on the first and second floors-Mullner
(supra, footnote 3) and Joanna Alber. (Mary Dutka, who regularly worked on those
two floors, and had signed a card, was absent that day, as previously stated ) Mi-
halic called them in a group and asked whether they had signed up with the Union.
Each denied having done so-Alber and Mullner truthfully, and Bodaheli concealing
the fact that she had signed. Mihalic shook the hand of each. She told Alber, "You
are from my people," and Bodaheli, "You are also from my city." She then praised
Bodaheli's performance as a cleaner , remarking that the "TV floor" (which was the
mezzanine or second floor, where Bodaheli worked) had shown a marked improve-
ment from the time that Bodaheli was put to work there.
The second conversation, occurring about 9, was again in the presence of Alber
and Mullner (This time Alber acted as interpreter between Mihalic and Bodaheli,
communicating to Bodaheli in German and to Mihalic in English.) Mihalic, "mad
and nervous," and departing from the cordial manner in which she had in the past
spoken to Bodaheli, accused Bodaheli of having lied, saying another cleaning woman
informed her that Bodaheli had told the other women on the lower floors to sign.
Bodaheli asked that the informer confront her, and Mihalic sent for Dorothy Hall.
She then asked Hall to "tell in front of Suzie what you told me." Hall replied it was
a "shame" to have thus falsely accused Bodaheli. At this point , the latter offered
her keys up to Mihalic. Retracting her accusation, Mihalic patted Bodaheli on the
5 None of the other employees present at the events of that evening, who are still em-
ployed by Respondent, were produced as witnesses.
PHYSICIANS & SURGEONS BUILDING, INC. 1371
shoulder and told her to "go on to work and forget everything." Bodaheli then
continued on the job.6
It has been previously mentioned that at the end of that shift, Mihalic, in re-
sponse to her inquiry about Bodaheli, had been told that she had left the building
in tears, whereupon Mihalic remarked that "Suzie liked the Union." Here we have
a slight conflict over just when Bodaheli's employment terminated. Bodaheli testi-
fied she was terminated on the next day's shift about 2 hours after she started to
work, as the climax of a discussion by Mihalic with her and the other two women
then working on the first and second floors-Alber and Mary Dutka, who, as re-
lated, had been away the preceding evening. (Mullner, the utility employee, had
been Dutka's replacement only for that previous evening. ) In that conversation on
the 28th, Alber repeated her truthful denial that she had joined, Dutka untruth-
fully denied having signed , and Bodaheli finally owned up to having done so, where-
upon Mihalic sent her home, in a manner to, be detailed later. Mihalic, on the
other hand, testified that when she saw Bodaheli on the job, she told her that she
thought the matter had been "well taken care of last night." Her version of the
previous night's occurrence was that she had induced Bodaheli to agree to stay on
to the end of the shift, but that Bodaheli "kept on working and stirring up trouble
and I asked her maybe on second thought it best she leave." Her explanation of
the "trouble" was that Bodaheli was "leaving the brooms in front of doors, and
wanted somebody to fall"-an incongruous picture for the humble, middle-aged wom-
an one saw in Bodaheli on the stand, who so far as the record shows, had never ex-
hibited spiteful tendencies or the kind of disposition which such conduct would have
reflected. Her leaving the building in tears at the end of that shift, and Mihalic's
response, when told about it, that "Suzie liked the Union," would suggest either that
the two had interveningly had a fresh encounter about the Union, or that Bodaheli,
still distraught over Mihalic's violence of manner and language , left the building
before Mihalic could again put her through the traces, as she was about to do with
the others in the manner previously described, from which Mihalic concluded that
Bodaheli "liked the Union." The following would seem to be the reasonable re-
construction of events on the basis of the combined testimonies of Mihalic and
Bodaheli and the attendant circumstances: Mihalic, on March 27, had indeed de-
cided that this was the end of the road for Bodaheli no less than for Kupp and
Kurdelaid, whom she discharged after they balked at withdrawing their cards. (In
her conversation with Kupp's son, Hediil, in the 11:30 p.m. shift, to be detailed later,
she referred to all three complainants as having been discharged.) But she did not
announce her decision to Bodaheli until shortly after the beginning of the next day's
shift, to which we now turn.
Bodaheli testified that on the 28th, Mihalic again called her a liar and ordered her
to "take her coat and go home"; that she then pleaded with Mihalic that since this
was Easter week, each should forgive the other's "lie"-Mihalic's that Bodaheli had
induced some of her fellow employees to sign, and hers that she had not signed at
all; that Mihalic again ordered her out; and that shortly afterward Mihalic met her
in the washroom, whereupon she explained that her affiliation with the Union went
back 31/2 years, during a prior employment, showing a card to prove it; and that then
Mihalic in "poorly spoken Hungarian" replied, "You will sit at home and not have
to work," adding with a throat-slitting gesture, "You are Khrushchev"; and after
making other statements in English, which Bodaheli did not understand (no one
being there to translate), Mihalic finally gave Bodaheli her hand, with the remark,
"Good riddance."
Mihalic admitted that Bodaheli appealed to her on the basis of the Easter season,
but explained the "lying" to which Bodaheli owned up was about not "doing [her]
work." This version is undermined by the probabilities as a whole, and specifically
by Mihalic herself in two respects: first, as previously mentioned (supra, foot-
note 6), she did not dispute the testimony that her conciliatory gesture to Bodaheli
the evening before was made after Hall, summoned by Mihalic, disclaimed having
9 Bodahell originally denied having offered to turn in her keys, but on rebuttal admitted
having done so in distraction over Mihalic's accusation and unaccustomed hostility to
her Respondent relies upon this to support its contention that Bodaheli's employment
was terminated by her own resignation The contrary is indicated by Mihalic's testi-
mony, corroborating that of Bodaheli, that she induced Bodahell to stay on Mihalic
testified that this came after she had complained about Bodaheli's work-which is an-
other matter, and is in any event undermined by her failure to deny that her conciliatory
overture immediately followed Hall's exoneration of Bodaheli on the score of her role in
the Union . On either version, Bodaheli withdrew her proffer of resignation after Mihalic's
conciliatory gesture
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
informed Mihalic that Bodaheli had played a special role in regard to the signing
of the cards; and secondly, as in the case of Kupp and Kurdelaid, she admitted that
she had discussed "the union business" with Bodaheli .7 Also neither Mullner, who
was present at the conversations with Bodaheli on the 27th, as she had been at those
with the other two complainants (supra, footnote 3), nor Alber, who had been
present at the conversations with Bodaheli on both days (she having acted as inter-
preter on the 27th, as previously stated) was called to testify, although each was
still employed by Respondent at the time of the hearing. And Hall, though pro-
duced by Respondent as a witness concerning other matters , was not examined by
Respondent about the events on the 27th, in which she was named as a participant,
including the one affecting Bodaheli, already narrated ; and to the extent that she
was examined by the General Counsel concerning them , she discredited Mihalic's
testimony on at least two scores-Mihalic 's denial that she had interrogated em-
ployees about having signed a union card , and the denial that she had initiated the
suggestion for their withdrawal. The weight of credibility is clearly in favor of
Bodaheli's version of her discharge on the 28th, and it is accordingly credited.
C. Events and conversations after the discharge of the three complainants
1. Mihalic's conversations with Lembit Hediil
As previously related, during her roundup of the cleaning women at the end of
the shift on Monday, Mihalic asked Kupp whether her son, Lembit Hediil, had
signed, and she denied it though he had in fact done so (supra, footnote 2). Earlier
that shift, after her second conversation with Mihalic and before he left for work,
Kupp had called Hediil at home. When he reported for work at 1 1 :30 p.m.,
Mihalic came to him and asked whether he had signed a union card. The youth
responded, "Don't talk to me, I quit" and then denied he had signed. She asked
what he knew about the union situation in general, and he professed total ignorance.
On the way to the coffee vending machine, she again asked whether he had signed,
and again he denied having done so. As she left she took her coffee with her, say-
ing he might put poison in it.
She returned not long afterward and asked Hediil whether anyone had been to
see him the preceding Friday, and he claimed no one had. She approached him
again shortly afterward, this time in anger, and asked whether he was sure he
"hadn't signed the union card," saying "someone had seen [him] out in the hallway
Friday . waving [his] arms and telling everybody to sign up that went by
that night." The lad explained that his mother had sent for him to act as interpreter
between her and the organizer, but assured her that he had not seen anyone, and
that he had not asked anyone to sign.
During the same shift she spoke to him about the three complainants. With an
ambivalence similar to that exhibited on the witness chair, she accused them of hav-
ing "stabbed her in the back" during her absence, claimed that she had discharged
them "because of poor work," and complained that they should have told her about
the visit of the union representatives. She remarked that they could gain nothing
through the Union, and if that had been possible, she would have gone along with
them. When Hediil pointed out that as a supervisor, she could not have joined
anyway, she remarked they had "no right to sign union cards without [Dr. Shapero's]
consent," since it was he and not the Union who paid the wages. In the same
7 The Irrepressible Mihalic had a way of blurting out admissions even on direct, which
taxed the normally ample patience of counsel for Respondent, who had put her on the
stand In the same breath in which she replied "no, sir" to whether she had at any
time discussed "the union business" with Bodaheli, she erupted with, "They all came and
told me that the men [the union representatives] forced themselves in the sub-
basement, and talk[ed] too fast and so long [that they] signed the card." The
cold record only partially conveys the harassed counsel's efforts to keep this witness of
his within the bounds he had intended:
Q. Now, you didn't answer my question
A. But they were telling me this.
Q Now, I'm asking you whether Susanna discussed union business with you?
A. Yes, sir. She says, "There was men there " They all told me there was men
there. I didn't see the men
Q. There was no discussion about any union card or signing or withdrawing or
anything like that?
A. No, sir.
PHYSICIANS & SURGEONS BUILDING, INC. 1373
mutually contradictory manner, she complained that Kupp and Kurdelaid had
"thrown in" their keys and "walked out on her," and that "this time she was tired
of covering up for them," yet she also said she wanted Kupp and Kurdelaid back,
and inquired of Hediil if his mother "would still insist upon joining the union." She
then told him she wanted to write his mother an apology for the way she had acted
and to ask her and Kurdelaid to come back. In the course of looking for pen and
paper, she abandoned her plan to write and suggested that Hediil instead first ask
his mother and Kurdelaid if they would come back, and to call her about it at 3 the
following afternoon, so that she could meanwhile talk to Dr. Shapero. Hediil
called Mihalic on Tuesday afternoon. He told her his mother was willing to return,
but she cut him off with the explanation that Dr. Shapero did not want her back.
At some unspecified time after that day, Mihalic finally elicited an admission
from Hediil that he had signed a card, whereupon she asked if he would bring it
in to her, so that she "would put it in the office with the rest of them," adding that
"Frank, the houseman, had turned his in." 8 The record shows no followup on this
suggestion, Hediil having resigned sometime in May.
2. The raise in hourly pay granted April 1
On April 1, Respondent raised the pay of the cleaning personnel by 10 cents an
hour. Dr. Shapero testified that this was pursuant to Respondent's policy of giving
a pay raise once a year. Respondent had indeed raised these employees 10 cents
an hour in 1959 and 1960, but the record does not indicate just when, during those
years, the raises had been granted. Assuming Respondent would have granted the
employees a raise in normal course sometime in 1961, the record indicates that this
was a raise other than in normal course, and that it was here specifically timed as
a countermeasure to the organization movement. This appears from the fact that
Mihalic promised a raise during her conversation on the 27th when Kupp and
Kurdelaid indicated, in response, to Mihalic's inquiry, that the desire for more pay
was a reason for their having signed a union card and that it was granted within a
few days thereafter, and also from the explanation that Dr. Shapero gave to Union
President Murphy for the discharges and the raise.
3. The explanation given the union representatives by Dr. Shapero for the discharges
and the raise
The explanation previously referred to was given by Dr. Shapero at a conference
held with the union representatives about May 12 at the office of the then attorney
for Respondent. This conference climaxed a series of contacts beginning with the
morning on March 27, when, as related previously (supra, footnote 4), Union Presi-
dent Murphy informed Dr. Shapero on the telephone that a majority of Respondent's
personnel had signed up with the Union, and Dr. Shapero assented to a meeting.
Murphy's later contacts were with Respondent's then attorney. These culminated
in the drafting of a contract, which Dr. Shapero signed, but the effectiveness of
which he conditioned on the ability of the union representatives to get the personnel
to sign up a second time, for which he offered the use of Respondent's auditorium for
a meeting with the employees during working time. The union representatives took
the doctor up on the suggestion-with dire results to them soon to be described.
The point here is that at the conference in his then attorney's office, which took place
about 2 days after the meeting in the auditorium, Dr. Shapero acknowledged to the
union representatives that the discharges of the three complainants the last week
in March and the raise on April 1 had been a "mistake" and he attributed the action
to his having been "green" in labor relations matters. But he said he would never-
theless not take the complainants back because the employees who replaced them
had been "loyal to him in this particular dispute," and he felt a reciprocal obligation
of loyalty to them. The quoted expression derives content from the meeting in
Respondent's auditorium 2 days earlier, to which we now turn.
4. The meeting in Respondent's auditorium
In taking up Respondent's offer to meet with the employees in its auditorium, the
union representatives had apparently not reckoned with Mihalic. Her intrusion at
the meeting, held May 10, and what she said there are not considered as a separate
specification of unfair labor practice-first, because the complaint does not allege it
as such, and secondly, because of the dubious validity under Section 8(a)(2), of
9 The record shows Respondent to have on its roster one Frank Hoover, classified as a
maintenance employee
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the arrangement to which the union representatives thus assented, whatever the con-
siderations of expediency which prompted it. It is considered solely for the bearing
upon the motive for the terminations of the complainants of certain remarks made by
Mihalic at that meeting and also upon what Dr. Shapero meant in expressing his
gratitude for the loyalty to him "in this particular dispute" of the persons who re-
placed the complainants.
The meeting in the auditorium began about a half hour after the beginning of the
5:30 p.m. shift, and was attended by the cleaning and maintenance personnel, includ-
ing two cleaning women who were hired after the discharge of the complainants.
These were Melba Jackson and Mary Collier. During Union President Murphy's
reading of the contract, Mihalic entered the auditorium and seated herself between
them. At one point, Dutka the employee who had concealed the fact of her affilia-
tion at the time that Mihalic discharged Bodaheli on March 28, said that "If Dr.
Shapero were to come to the meeting and say it was all right for the girls to join a
union they would join, but they were confused." Murphy asked why, and Dutka
said it was because "Mary [Mihalic] told them they couldn't belong in the union."
Mihalic then "jumped into the conversation," and excitedly stated that it was up
to them whether they wanted to join. At the same time, she exclaimed that "We
didn't want ,a union, the girls are happy," and repeated the accusation that she had
made to Kupp's son, Hediil, that "They stabbed me in the back when I was off
sick." To emphasize their ingratitude, she recited her previous kindnesses to each
employee, and specifically cited the case of the night janitor (inferentially the per-
son whom she had mentioned to Hediil as having turned his union card over to her
(supra, footnote 8), saying that when he had been ill "She sat up with him all
night." Jackson, one of the cleaning women hired after the complainants were
discharged, then rose and said the Union had not helped when she had been laid
off on a previous job, out of regular seniority, as she claimed. Mihalic then com-
plained the women were being kept too long from their work, and everyone then
scurried, to use Mihalic's language, "push-button" fast, leaving the representatives
with an empty auditorium.
A week later, Respondent, over the signature of Dr. Shapero, circulated a letter
among the employees asking them to sign under either of two columns, the one on
the left reading "I wish the Union to represent me," the other opposite it, "I do not
wish the Union to represent me." All signed under the "I do not wish" column.
5. Mihalic's statements on the reemployment of Kupp
Respondent's answer to the complaint, dated August 16, 1961, recites that "Kupp
has been offered reinstatement on probationary basis subject to her work perform-
ance being equal in quality to that of the other workers." Just before this happened,
Dr. Shapero, as Mihalic testified, told her about it, saying that she, Mihalic, "was a
bad girl." Whether the bad girl had reformed is a matter of inference. When Kupp
returned, Mihalic called her a liar, saying, "I didn't fire you because you wanted to
join the Union, but because you are a poor worker," to which she added that Kupp
had been a "good worker" until after she signed a union card during Mihalic's ill-
ness. Mihalic testified, "I wanted to prove to her that I didn't lay her off on ac-
count of the so-called cards and she would have to do better work, otherwise she
would be laid off again." The chores given to Kupp were in excess of those she
had had before her discharge.9 She was discharged on September 21 on direct
orders of Dr. Shapero; he testified he had received a complaint from a tenant
about the condition of the washroom on one of Kupp's floors, and although before
this he had always left these matters to be handled by the supervisory personnel,
this time he issued direct orders for Kupp's dismissal, with the result that when
Mihalic announced the termination to Kupp, she could not tell her the reason for it.
D. Concluding findings
This is not the typical case where "direct evidence" of antiunion motivation for
the discharge, judicially described as "rarely obtainable ," 19 is lacking and motive
depends on the inference to be drawn from the totality of the circumstances. Here
the motive inheres in the very statements found to have been made by Mihalic from
the time she embarked upon the course of action on March 27, beginning with her
b Before the discharge, Kupp shared her two floors with Kurdelaid on a full-time basis
When she was taken back on August 16, Rupp handled them alone, aided-by a utility
woman 2 nights a week
10 Hartsell Mills Company v N L R B , 111 F 2d 291, 293 (C A 4).
PHYSICIANS & SURGEONS BUILDING, INC. 1375
inquiries of the employees about having signed a union card and culminating with,
the discharges of Kupp and Kurdelaid at the end of that shift when they demurred
to her suggestion that they withdraw from the Union, and her decision, on reaching
the conclusion that Bodaheli "liked the Union," to terminate her as well, which she
announced to that employee in the early part of the next day's shift. It inheres also
in her denunciation of the signers of the cards, in her conversations with Kupp's
son, Hediil, and at the meeting in the auditorium of May 10, as having "stabbed her
in the back," and as having betrayed Dr. Shapero as well. While she also dis-
paraged the quality of their work, it is clear that her expression of opinion on that
score shifted in each instance on the basis of whether they adhered to the Union or
not. Thus, in her conciliatory gestures to Kupp and Kurdelaid prior to suggesting
that they could return to their jobs if they withdrew their cards, she praised their
performance. She did the same with Bodaheli in the first conversation with her,
when Bodaheli denied having signed a card. The contradictory nature of her as-
serted opinions concerning the performance of these employees is further reflected
in her conversations with Kupp's son, Hediil, in which, in the same breath in which
she said she was tired of covering up for these employees, she expressed the desire
to have Kupp and Kurdelaid back. Even if these expressions of disparagement of
their performance were to be taken as sincere, it is clear that their having signed
union cards was so inextricably bound up with the other factors mentioned by her
as to lead inescapably to the conclusion that whatever else may have contributed to
the discharges, they would not have taken place but for the fact that the complain-
ants had signed up with the Union, and, as in the case of Kupp and Kurdelaid, had
not responded to her suggestion that they withdraw, or as in Bodaheli's case, did not
present a likely prospect of withdrawal.
Respondent's liability is thus complete even if the complainants' joining the
Union had merely been a contributing cause of the discharge. Fairness to the
complainants requires, however, that we not leave any implication of a belief in the
sincerity of Respondent's claim that it deemed the complainants poor workers. The
record indicates that Respondent's true opinion is reflected in the praise bestowed
upon them by Mihalic on the 27th, in the course of her multiple shifts in position
depending upon whether she thought they would be loyal to the Union. Mihalic's
bill of complaint against them was fraught with such exaggeration and inherent im-
probability as to lead to the conclusion that they were contrived, with the result
that even if "direct evidence" of discriminatory motivation for the discharges were
here lacking the inference that such was the motivation, flowing from the sequence
of events and the totality of the circumstances would be strengthened by the char-
acter of the defense on that score. This is without regard to the veracity of the
testimony given by Respondent that it had been receiving complaints from tenants on
the floors on which the complainants worked. The crucial consideration is
whether the tenants' gripes notwithstanding, Respondent was satisfied with the work
of the complainants. The character of the testimony of the complainants in their
entirety and the circumstances taken as a whole lend credence to their avowals,
here credited, that except for certain matters of minor import at the outset of their
employment, when they were still being shown the ropes, there had been no com-
plaints made to them about their work, and that such comments as were made to
them had been in praise of their performance, rather than disparagement.
There is an interesting counterpoint in the mercurial actions of Mihalic toward
the employees and the calm, indeed courteous, demeanor of the levelheaded Dr.
Shapero to the union representatives. Even if he had disapproved of Mihalic's con-
duct, Respondent would still be answerable therefor because she undisputedly had
the authority to take the action which she did. Further, Dr. Shapero ratified her con-
duct, as appears in his acknowledgement to the union representatives that the action
had been a "mistake" and in his refusal to take the complainants back out of a
feeling of obligation to the persons who replaced them because they had been "loyal
to him in this particular dispute " With some regret, it must here be added that it is
difficult to escape the conviction that Mihalic, in the only way she knew how, was
actually carrying out the bidding of Dr. Shapero. One would infer this from the way
her actions interlaced with the events in which he was involved. On the morning of
the 27th, he was informed by the union representatives that a majority of the clean-
ing personnel signed That same evening, Mihalic proceeded to find out who had
signed, and then communicated to him over the telephone the information she ac-
quired. After this came the suggestion that those who signed could retain their jobs
if they withdrew their cards, followed by the discharge of those present that night
who did not do so. The inference, based on the probabilities, is rather cogent that
the maneuvers in each instance were directed by Dr. Shapero-an inference strength-
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ened by the fact that after Mihalic sent the feeler through Hediil concerning whether
his mother and Kurdelaid were willing to come back, Dr. Shapero vetoed the proposal.
It is found and concluded that Respondent discharged Karin Kupp and Time Kur-
delaid on March 27 and Susan Bodaheli on March 28 because they had affiliated
with and supported the Union, thereby discriminating against them in violation of
Section 8(a)(3), and interfering with employees' rights as protected by Section 7,
in violation of Section 8 (a) (1) of the Act.
It is also found that Respondent, in further violation of Section 8(a)(1) of the
Act, interfered with, restrained, and coerced its employees in the exercise of their
rights under Section 7, by interrogating employees concerning their own and that of
other employees' affiliation and support of the Union, threatening employees with
discharge if they did not forego such affiliation or support, and promising a wage
increase as an inducement to employees to refrain from or forego such affiliation and
support, and actually granting a raise as such inducement."
III. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices, I will
issue a recommended order that Respondent cease and desist therefrom (here of a
broad character in view of the nature of the infractions, including discriminatory
discharges, which go to the "very heart of the Act." N.L.R.B. v. Entwistle Mfg. Co.,
120 F. 2d 532, 536 (C.A. 4)). As affirmative action to redress the injury done,
Respondent will be required to offer to the three employees found to have been
discriminated against immediate and full reinstatement to their former or substan-
tially equivalent positions (The Chase National Bank of the City of New York, San
Juan, Puerto Rico, Branch, 65 NLRB 827, 829), without prejudice to their seniority
and other rights and privileges, and to make them whole for any pay losses sustained
by reason of the discrimination against them, within the principles enunciated in
F. W. Woolworth Company, 90 NLRB 289, as upheld in N.L.R.B. v. Seven-Up Bot-
tling Company of Miami, Inc, 344 U S. 344. While the earnings received by Karin
Kupp during her brief employment by Respondent after the discharge of March 27,
1961, go to the reduction of the backpay liability, in the same manner as do all
interim earnings during the discrimination period, the reemployment given Kupp
did not fulfill the remedial requirements of full reinstatement in the sense contem-
plated by the Act; the "probationary" character of that employment, as admitted in
the answer, and Mihalic's testimony concerning its purpose, as well as the congeries
of circumstances culminating in her termination, indicate a discriminatory standard
from the start, as well as a purpose to find a colorable pretext on which to terminate
her.
Respondent contends that even if the complainants had not been discharged in
March, they would have been laid off in normal course as a result of reduced work
requirements. The contrary is indicated-up to the date of the hearing at least-
by the fact that despite some attrition in the work force, the three employees who
were hired in the cleaning department after the discharge of the three complainants
were still on the job.12 Changes in the work requirements occurring after the close
of the hearing are matters for consideration at the stage of compliance-with the
usual reservation in the Agency of the power to make such supplementary orders
as may be warranted by conditions not now apparent.
Upon the foregoing findings and the entire record, I hereby make the following:
CONCLUSIONS OF LAW
1. By discriminating, in the manner heretofore found, in respect to the hire
and tenure of employees in order to discourage membership, affiliation with, or
support of the Union , Respondent engaged in and is engaging in an unfair labor
practice within the meaning of Section 8(a) (3) of the Act.
2. By the above, and by interfering with, restraining, and coercing employees in
the exercise of the rights guaranteed in Section 7 of the Act, in the respects hereto-
fore found , Respondent engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
ii No finding of a violation will be based on Mihalic 's blacklist threat to I{urdelaid.
Mihalic was then spraying with all she had, but, in the light of the record as a whole,
I am satisfied the employees were given no reason to believe that she meant it or that it
reflected Respondent's policy-as distinguished, for example, from the threat of discharge.
1i While two of the newly hired employees are women and the third an additional man,
the presumption , applicable in the absence of a contrary showing, is that the three new
hirings were intended to fill the gaps in the cleaning personnel created by the severance
of the three complainants.
PHYSICIANS & SURGEONS BUILDING, INC. 1377
3. The foregoing unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings and conclusions, and the entire record, and pursuant
to Section 10(c) of the Act, I recommend that the Respondent, Physicians & Surgeons
Building, Inc., its officers, agents, successors, and assigns, shall.
1. Cease and desist from:
(a) Discouraging or otherwise discriminating against any employee in order to
discourage membership in, affiliation with, or support of Building Service Employees
International Union, Building Service & Maintenance Union Local No. 47, AFL-CIO.
(b) Interrogating employees concerning whether they or any other employees have
signed union cards or have in any other manner supported or assisted the above-
named or any other labor organization.
(c) Threatening employees with discharge or other reprisals for affiliating with
or supporting, or for refusing to withdraw affiliation or support of, the above-
named or any other labor organization.
(d) Promising or granting raises or other benefits as inducements against affiliat-
ing with or supporting, or as inducements to employees to withdraw their affiliation
or support from, the above-named or any other labor organization.
(e) In any other manner interfering with, restraining, or coercing employees in
the exercise of the right to self-organization, to form labor organizations, to join
or assist the above-named or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in any other concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any and all such activities.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Offer Karin Kupp, Ilme Kurdelaid, and Susan (Zsuzsanna) Bodaheli immedi-
ate and full reinstatement to their former or substantially equivalent positions, with-
out prejudice to their seniority or other rights and privileges, and make them whole
for any losses in pay they may have suffered as a result of the discrimination against
them, in the manner set forth in the section entitled "The Remedy."
(b) Upon request, make available to the Board and its agents, for examination
and copying, all payroll records, social security payment records, timecards, per-
sonnel records and reports, and all other data helpful in analyzing backpay due
and the right of reinstatement under the preceding provision.
(c) Post at its building in Cleveland, Ohio, copies of the notice attached hereto
marked "Appendix." 13 Copies of said notice, to be furnished by the Regional
Director for the Eighth Region, shall, after being duly signed by an authorized
representative of the Respondent, be posted by the Respondent 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 Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Eighth Region, in writing, within 20
days from the receipt of this Intermediate Report and Recommended Order, what
steps it has taken to comply herewith.14
13 In the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, there shall be substituted for the words
"Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United
States Court of Appeals, Enforcing an Order "
14 In the event of adoption of this Recommended Order by the Board, the prescribed
period will be 10 days from receipt of the Board's Order
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor-Management
Relations Act, we hereby notify our employees that:
634449-62-vol. 135-88
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discharge or otherwise discriminate against any employee in
order to discourage membership in, affiliation with, or support of Building
Service Employees International Union , Building Service & Maintenance Union
Local No. 47, AFL-CIO.
WE WILL NOT interrogate any employees concerning whether they or any
other employees have signed union cards or have in any other manner sup-
ported or assisted the above -named or any other labor organization.
WE WILL NOT threaten any employees with discharge or other reprisals for
affiliating with, or supporting , or for refusing to withdraw affiliation or support
from , the above-named or any other labor organization.
WE WILL NOT promise or grant raises or other benefits as inducements
against affiliating with or supporting , or as inducements to employees to with-
draw their affiliation or support from , the above-named or any other labor
organization.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their right to self-organization , to form a labor
organization , to join Building Service Employees International Union , Building
Service & Maintenance Union Local No. 47, AFL-CIO, or any other labor or-
ganization , to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection , or to refrain from any and all such
activities.
WE WILL offer Karin Kupp , Time Kurdelaid , and Susan (Zsuzsanna) Boda-
heli immediate and full reinstatement to their former or substantially equivalent
positions , without prejudice to their seniority or other rights and privileges, and
make them whole for any loss of pay suffered as a result of the discrimination
against them.
PHYSICIANS & SURGEONS BUILDING, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representa tive ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Belle Steel Company, Inc. and International Brotherhood of
Boilermakers , Iron Ship Builders, Blacksmiths , Forgers and
Helpers, and its Local 651, AFL-CIO. Case No. 1-CA-3317.
February 28, 1962
SUPPLEMENTAL DECISION AND ORDER
On June 8, 1961, the Board issued a Decision and Order in the
above-entitled case, finding, inter alia, that the Respondent had dis-
charged Joseph F. Miller in violation of Section 8(a) (1) and (3) of
the Act, and ordering it to make Miller whole for any loss of pay
suffered by reason of its discrimination against him.'
By a stipulation executed on September •13, 1961, by all the parties,
the Respondent agreed to comply with the Board's Order except that
it reserved its right to contest the amount of backpay found to be due.
After efforts to settle the backpay issue failed, the Regional Director
for the First Region, on October 18, 1961, issued a backpay specifi-
cation, and, on November 3, 1961, the Respondent filed an answer
1131 NLRB 1083
135 NLRB No. 114.