Ramelli Building Maintenance Service, Inc.

National Labor Relations Board - Board Decisions

Jun 15, 1976

224 N.L.R.B. 815 (N.L.R.B. 1976)

RAMELLI BUILDING MAINTENANCE SERVICE INC 815
Ramelh Building Maintenance Service , Inc and Lee
Roy Otis, Jr Case 15-CA-5801
June 15, 1976
DECISION AND ORDER
By MEMBERS JENKINS, PENELLO, AND WALTHER
On February 19, 1976, Administrative Law Judge
Walter H Maloney, Jr, issued the attached Decision
in this proceeding Thereafter, the Respondent filed
exceptions and a supporting brief The General
Counsel filed limited exceptions, a brief in support of
the limited exceptions, and 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 Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has considered the record and the at-
tached 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,' as modified herein
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that the Respondent, Ra-
melli Building Maintenance Service, Inc, Metairie
and Kenner, Louisiana, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order, as so modified
1 Substitute the following for paragraph 2(a) of
the recommended Order
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board s established policy not to over
rule an Administrative Law Judge s resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products Inc 91
NLRB 544 ( 1950) enfd 188 F 2d 362 (C A 3 1951 ) We have carefully
examined the record and find no basis for reversing his findings
The Administrative Law Judge omitted reference to the fact that Isadora
Carson was also disciplined with less than discharge when Respondent
learned that she and Patricia Lewis had committed a first offense of the
no sleeping rule However it is not clear from the record whether the Loyde
incident relied on by the Administrative Law Judge as further evidence that
Respondent treated Otis disparately occurred after Ramelli took over man
agement of the business in January 1975 We therefore do not rely on the
Lode incident in finding disparate treatment of Otis by Respondent
We find merit in the General Counsels exceptions to the remedy rec
ommended Order and notice of the Administrative Law Judge We shall
modify the remedy recommended Order and notice accordingly Franklin
Parish Broadcasting Inc 222 NLRB 1133 (1976)
"(a) Offer Lee Roy Otis immediate and full rein-
statement to his former position or, in the event his
former position no longer exists, to substantially
equivalent employment, without prejudice to his se-
niority or other rights previously enjoyed, and make
him whole for all losses that he may have suffered by
reason of Respondent's unlawful discriminatory dis-
charge of him in accordance with the recommenda-
tions set forth in the section of the Administrative
Law Judge's Decision entitled `The Remedy' as mod-
ified herein "
2 Substitute the attached notice for that of the
Administrative Law Judge
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We are posting this notice to comply with the provi-
sions of an order of the National Labor Relations
Board in which we were found to have committed
certain unfair labor practices
WE WILL NOT interrogate employees concern-
ing their union activities or the union activities
of other employees
WE WILL NOT threaten employees with a dis-
continuance of our operation if a union becomes
their bargaining agent
WE WILL NOT discharge or otherwise discrimi-
nate against employees in their hire or tenure in
order to discourage their support of and activi-
ties on behalf of Brotherhood of Railway, Air-
line, and Steamship Clerks, Freight Handlers,
Express and Station Employees, AFL-CIO, or
any other labor organization All of our employ-
ees are free to become or remain members of
this labor organization
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of rights guaranteed to them by Section 7 of
the National Labor Relations Act These rights
include the right to form, join, or assist labor
organizations, to bargain collectively through
representatives of their own choosing, and to en-
gage in other concerted activities for their mutu-
al aid and protection
WE WILL offer full and immediate reinstate-
ment to Lee Roy Otis to his former job or, if it
no longer exists, to substantially equivalent em-
ployment, and WE WILL make him whole for any
losses he has suffered by reason of the discrimi-
224 NLRB No 107
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nation which was practiced against him, with in-
terest thereon computed at 6 percent per annum
RAMELLI BUILDING MAINTENANCE
SERVICE, INC
DECISION
FINDINGS OF FACT
A Statement of the Case
WALTER H MALONEY JR Administrative Law Judge
This case came on for hearing before me at New Orleans,
Louisiana, on a complaint 1 issued by the Regional Direc
tor for Region 15 and amended at the hearing, in which
Respondent Ramelh Building Maintenance Service, Inc ,2
is alleged to have committed certain violations of Section
8(a)(1) and (3) of the Act Specifically, the complaint alleg-
es that Respondent unlawfully interrogated employees
concerning union sentiments, threatened employees with
discharge if they became union members, and discharged
the Charging Party, Lee Roy Otis, because he had engaged
in union activities Respondent denies the commission of
independent violations of Section 8(a)(1) of the Act and
asserts that Otis was discharged for sleeping on the job in
violation of a company rule Upon these contentions, the
issues herein were joined 3
B The Unfair Labor Practices Alleged
For the past 4 years, Respondent has held the janitorial
and maintenance contract at the Moisant International
Airport, which serves the Metropolitan New Orleans area
Respondent services both general airport facilities and the
offices and ticket areas utilized by individual carriers
i The principal formal entries in the docket are as follows
Charge filed by Lee Roy Otis the discriminatee named in the complaint
on September 4 1975 complaint issued on October 7 1975 Respondents
answer filed on October 20 1975 hearing held in New Orleans Louisiana
on December 3 1975 briefs filed by the General Counsel and Respondent
with me on January 12 1976
A related representation case (Case 15-RC-5755) contains inter alia the
following formal entries petition for election filed on August 25 1975 by
Brotherhood of Railway Airline and Steamship Clerks Freight Handlers
Express and Station Employees AFL-CIO (herein called Union) in a unit
composed of all of Respondents full time and regular part time employees
employed at the Moisant International Airport Kenner Louisiana and in
Respondents city routes with certain exclusions hearing held on petition
on September 17 1975 Decision and Direction of Election issued on Octo
ber 1 1975 election held on October 31 1975 in which Union received 23
votes and 50 votes were cast for no union objections to election filed by
Union on November 7 1975
2 Respondent admits and I find that it is a Louisiana corporation which
maintains its principal place of business in Metairie Louisiana It is en
gaged in the janitorial and maintenance service at the Moisant International
Airport located at Kenner Louisiana which service is valued in excess of
$50 000 During the same period of time the Mosiant International Airport
purchased goods valued in excess of $50 000 directly from points and places
located outside the State of Louisiana During the same period of time
Respondent performed services valued in excess of $50 000 for Delta Air
lines and Delta Airlines received in excess of $50 000 for transporting pas
sengers across state lines Accordingly Respondent is an employer within
the meaning of Sec 2(2) 2(6) and 2(7) of the Act The Union is a labor
organization within the meaning of the Act
Errors in the transcript have been noted and corrected
Respondent's principal office is located about 7 miles from
the airport on Papworth Street in Metairie but it also has a
small on-site office at the airport Respondent also holds
janitorial contracts for cleaning various buildings and
stores located in the New Orleans area The active direc-
tion of the business has been exercised by its president,
Robert C Ramelli, since January 1975 Prior to that time,
Ramelli's father managed the Company
Lee Roy Otis was a maintenance man at Allied Mainte-
nance, a company which was on strike He applied for a
position with Respondent on or about July 24 and was
interviewed at Respondent's Papworth Street office by
Robert Hillery, Respondent's personnel manager Ramelli
came into the room during the interview and told Otis that
he noticed from his application that he had been employed
for 5 years by Allied He asked Otis if they had a union at
Allied Otis pulled out his union card and said, "Yes
275 " 4 At this interview, Otis told Ramelli and Hillery that
he did not care much for unions Ramelli stated that he did
not care for unions, and that if a union came in at his place
of business, he would shut down the business and lay off
the employees He also told Otis that it was against compa-
ny rules to sleep on the job For the first offense, an em-
ployee would be laid off 4 hours, for the second offense, he
would be discharged 5
Otis was hired to strip and spray buff floors at the Mois-
ant International Airport at $2 10 per hour He worked
from 10 p in until 6 a in under the supervision of Shelby
Tapp Early in August, Otis signified to Respondent his
dissatisfaction with the hiring-in rate In August his rate
and that of other floormen was raised to $2 25 per hour At
a meeting held with floormen in mid-August, Ramelli told
them that he had really bent over backward to grant that
much of an increase After that meeting had concluded,
Otis spoke with Ramelli privately near the Delta ticket
counter and told him that he thought it was wrong that
employees were not getting a raise He also told Ramelli
that he would advise employees to get a union because he
felt that Ramelli was not going to do anything for them 6
Otis then began his efforts to organize Respondent s em-
ployees He obtained union literature and union designa
tion cards from a union representative named Rev An
drew Jackson, distributed them to janitors, maids, and
maintenance men throughout the airport, and obtained sig-
natures from 43 employees In the course of this effort, he
walked through the airport with Union Business Agent Bo-
relli and showed him about the premises so that he might
meet with employees and discuss their complaints He also
organized a meeting of night shift employees on Concourse
B during their lunchbreak, which normally occurred at 2
a in About 20 employees attended Otis was the main
spokesman at the meeting The thrust of his remarks was to
encourage employees to sign cards and join the Union
Utilizing the cards which Otis had obtained, the Union
filed a representation petition on August 25 seeking an
election among Respondent's airport and route employees
4 Local 275 Service Employees International Union AFL-CIO
5 Ramelli denies the portion of the conversation relating to the closing of
the business and the two step disciplinary procedure for sleeping I credit
Otis version
6 Ramelli denies the portion of the conversation in which Otis told him he
would urge employees to get a union I credit Otis
RAMELLI BUILDING MAINTENANCE SERVICE INC
Late in August, Ramelh asked Tapp, the night shift su-
pervisor, to have Otis call him When Otis did so, Ramelli
told him to come to the office When he arrived, Ramelli
offered Otis an opportunity for extra work Specifically,
Ramelli offered him a routejob cleaning a building at $10
per night According to the proposed arrangement, Otis
would report to Papworth Street office at 5 p in each eve-
ning, pick up a truck, and go from there to clean a building
on Canal Street He would then report for work at 10 p in
at his regular shift at the airport Ramelli also indicated
that he might have additional extra jobs in the future at
different rates Otis agreed to this proposal
On the evening of September 2, Otis reported for work at
the airport as usual at 10 p in and was assigned by Tapp to
clean the National Airlines operations room Otis proceed-
ed to the area, began to work, and about midnight fell
asleep on two chairs in the pilots' ready room which is
located adjacent to the operations area Tapp found him
asleep, woke him up, and reprimanded him for being
asleep on the job Otis completed his shift and, at the end
of the shift, found Tapp on Concourse A Tapp handed
him a pink slip and told him that he was not firing him
Referring to the slip as a warning, Tapp told Otis that if he
caught him sleeping again he would automatically termi-
nate him
Otis reported to the Papworth Street office at 5 p in the
following evening to begin his routejob Hillery met him as
he entered the premises and remarked that Tapp had
caught him sleeping the previous evening 7 Ramelli then
came into the room, told Otis that he was fired, and direct-
ed him to return his company uniform shirt and pick up his
paycheck He also handed him a second pink slip, which is
actually a form utilized by the Department of Employment
Security of the State of Louisiana for the separation of
employees in cases where the employer alleges that termi-
nation has occurred under circumstances warranting a dis-
qualification for unemployment compensation Ramelli
wrote on the form that Otis was fired for sleeping on the
job
C Analysis and Conclusions
I Independent violations of Section 8(a)(1) of the Act
I credit the testimony of Argie Toney to the effect that,
sometime in September, she had a conversation with the
afternoon shift supervisor Willard Knouckum, in which
Knouckum asked her if she heard that Tapp s people (the
late night shift) were getting a union When Miss Toney
professed ignorance, Knouckum stated inquisitively, "I
heard they signed some cards " He also asked Miss Toney
if she had signed a card, and she said she had not His
persistence in this inquiry makes it more than a casual
piece of conversation and carries a coercive impact Ac-
cordingly, I conclude that it violates Section 8(a)(1) of the
Act
I have credited the testimony of Otis that, at his employ-
ment interview, Ramelh, the president of the Company,
7 Tapp said that he had not reported Otis dereliction to the main office
and suggested that his assistant supervisor Rosa Lee may have done so
817
asked him about his union affiliations and stated that he
would close his operation if a union came in These re-
marks constitute both illegal interrogation and an illegal
threat on Ramelli's part, and as such they violate Section
8(a)(1) of the Act
2 The discharge of Lee Roy Otis
Respondent demonstrated his union animus in a hard
sell campaign which portrayed the Union as an untruthful,
expensive, money-grubbing organization whose advent at
the Company would create an uncertain job situation lead-
ing to strikes and impoverishment of the Ramelli work
force Respondent's animus spilled over from the area of
fair comment protected by Section 8(c) of the Act into the
illegal statements outlined above There is little doubt that,
during his 5 weeks of employment with Ramelli, Otis was
the prime mover of an organizational campaign that led to
the filing of a representation petition on August 25 Otis
had a public meeting of night shift employees for organiza-
tional purposes on an open concourse at the airport and
was the principal spokesman at the meeting He collected
signatures on 43 union designation cards signed by em-
ployees on both the afternoon and late night shifts and
turned them in He also publicly walked through the air-
port with Union Representative Borelli to show Borelli
about the area and to introduce him to individual employ
ees for the purpose of discussing grievances I credit Otis'
statement that he told Ramelli, following a discussion in-
volving the dissatisfaction of floormen with the existing
wage rate, that he would advise employees to get a union
because he felt Ramelli was not going to do anything for
them In short, the record amply supports a finding that
Otis was discharged by an employer who was strongly an-
tiunion, who knew Otis was strongly prounion, and who
took the discharge action in question within 10 days after
receiving from the Regional Office a notice that a represen-
tation petition had been filed
In the face of animus, company knowledge, and suspi-
cious timing, Respondent contends that it discharged Otis
for sleeping on the job The sole remaining question is
whether this defense is pretextual Respondent claims that
early in January 1975 it changed its earlier policy of giving
employees a written warning for the first offense, reserving
discharge as the penalty for the second offense It posted a
notice to the effect that discharge would automatically fol-
low from a first offense of sleeping on the fob, but there is
no evidence as to when or how long this notice, or succes-
sive notices, remained on the bulletin board There is evi-
dence from Respondent's witness Tapp that he permitted
employees to sleep during the half hour lunch period which
takes place each night from 2 a in until 2 30 a in, and that,
despite the change in announced policy, he continued to
adhere to the old practice in disciplining employees for
prohibited sleeping He did so in Otis' case
I credit Otis' testimony that Respondent' s management
told him at his hiring-in interview that sleeping would be
dischargeable conduct the second time it occurred, not on
the first offense I credit Brice's testimony to the same ef-
fect It is clear from at least two other incidents involving
Patricia Lewis and Patricia Loyde that the more lenient
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practice was in fact followed in two cases in which they
were guilty of sleeping on company time Lewis' infraction
occurred not many weeks before Otis was terminated and
long after Ramelli took over the business and ostensibly
tightened up the punishment for sleeping Shortly after Otis
was terminated, work leader Rosa Lee was fired for sleep-
ing but was rehired a week later as a route inspector, indi-
cating that layoff was the most severe punishment ever to
have been meted out to any employee for the first offense
of sleeping Indeed, the record contains no evidence that
any employee other than Otis was ever permanently dis-
charged for sleeping under any circumstances
Had the Respondent contented itself with the discipline
i nposed on Otis by his immediate supervisor for the inci-
dent in question, this case would not be here However,
when information reached company headquarters that a
basis existed for removing a union activist from the pay-
roll, Ramelli took advantage of it immediately and im-
posed upon Otis a sanction which amounted to disparate
treatment in comparison with what had occurred when
other employees were guilty of the same infraction, and
which contravened Respondent's own established practice,
a practice which it continued to follow irrespective of post-
ed announcements to the contrary In light of these factors,
I conclude that Respondent discharged Otis because of his
union activities and did so in violation of Section 8(a)(3) of
the Act
Upon the foregoing findings of fact, and upon the entire
record herein considered as a whole, I make the following
CONCLUSIONS OF LAW
1 Respondent Ramelli Building Maintenance Service,
Inc, is an employer engaged in commerce and in opera-
tions affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act
2 The Brotherhood of Railway, Airline, and Steamship
Clerks, Freight Handlers, Express and Station Employees,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act
3 By discharging Lee Roy Otis because he engaged in
union activities, as found above, Respondent herein violat-
ed Section 8(a)(3) of the Act
4 By the acts and conduct set forth in Conclusion of
Law 3, by interrogating employees concerning union activ-
ities, and by threatening employees with termination of the
Employer's operation if a union should come into the
Company, Respondent herein violated Section 8(a)(1) of
the Act
5 The aforesaid unfair labor practices have a close, inti-
mate, and substantial effect on interstate commerce within
the meaning of Section 2(6) and 2(7) of the Act
REMEDY
very heart of the Act Accordingly, I will recommend to the
Board a so-called broad 8(a)(1) order J C Penney Co,
172 NLRB 1279 fn 1 (1968), Adam and Eve Cosmetics,
Inc 218 NLRB, 1317 (1975) The recommended order will
also provide that Respondent be required to offer Lee Roy
Otis reinstatement to his former or substantially equivalent
employment and to make him whole for any loss of earn-
ings, to be computed in accordance with the Woolworth
formula8 Former or substantially equivalent employment
necessarily includes a route job from which Otis was dis-
charged together with the termination of his regular night
shiftjob at the airport I will also recommend that Respon-
dent be ordered to post the usual notice informing employ-
ees of their rights and of the results of this case
Upon the foregoing findings of fact, conclusions of law,
and pursuant to Section 10(c) of the Act, I make the fol-
lowing recommended
ORDERS
The Respondent, Ramelli Building Maintenance Ser-
vice, Inc , Metairie, Louisiana, its officers, agents, succes
sors, and assigns, shall
1 Cease and desist from
(a) Coercively interrogating employees concerning their
union activities and the union activities of other employees
(b) Threatening employees with discontinuance of the
Employers operation if a union should become their bar
gaining agent
(c) Discouraging membership in, or activities on behalf
of, Brotherhood of Railway, Airline, and Steamship Clerks,
Freight Handlers, Express and Station Employees, AFL-
CIO, or any other labor organization, by discharging or by
discriminating against employees in their hire or tenure
(d) By any other means or in any other manner interfer-
ing with, restraining, or coercing employees in the exercise
of rights guaranteed to them by Section 7 of the Act
2 Take the following affirmative actions designed to of
fectuate the purposes and policies of the Act
(a) Offer to Lee Roy Otis immediate and full reinstate-
ment to his former position or in the event his former
position no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or other rights previ
ously enjoyed, and make him whole for any loss of pay
suffered by him by reason of the discrimination found
herein, in the manner described above in the section enti
tled `Remedy "
(b) Preserve and, upon request, make available to the
Board, or its agents, for examination and copying, all pay
roll and other records necessary to analyze the amount of
backpay due under the terms of this order
(c) Post at Respondent's place of business at Metairie,
Louisiana, and at its airport office at Kenner, Louisiana,
Having found that Respondent has engaged in certain
unfair labor practices, I will recommend that it be ordered
to cease and desist therefrom, and that it be required to
take certain affirmative action designed to effectuate the
purposes and policies of the Act Because the violations
herein include a discriminatory discharge, they go to the
s F W Woolworth Company 90 NLRB 289 (1950)
In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board the findings
conclusions and recommended Order herein shall as provided in Sec
102 48 of the Rules and Regulations be adopted by the Board and become
its findings conclusions and Order and all objections thereto shall be
deemed waived for all purposes
RAMELLI BUILDING MAINTENANCE SERVICE, INC 819
copies of the attached notice marked "Appendix " 10 Cop celpt thereof, and shall be maintained by the Respondent
ies of said notice on forms provided by the Regional Direc- for 60 consecutive days thereafter, in conspicuous places,
tor for Region 15, after being duly signed by representa- including all places where notices to employees are cus-
tives of Respondent, shall be posted immediately upon re- tomarily posted Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
1° In the event the Board s Order is enforced by a Judgment of the United faced, or covered by any other material
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 (d)
Notify the Regional Director for Region 15, in writ
Judgment of the United States Court of Appeals Enforcing an Order of the ing, within 20 days from the date of this Order, what steps
National Labor Relations Board Respondent has taken to comply herewith