Reliable Maintenance Sales & Service, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1976

225 N.L.R.B. 580 (N.L.R.B. 1976)

580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reliable Maintenance Sales & Service , Inc. and Lo-
cal 551 , Service Employees International Union,
AFL-CIO and Eleanor Jackson and Karol Denise
Sharp . Cases 25-CA-7003, 25-CA-7268, 25-CA-
7084, and 25-CA-7382-7
June 30, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
Order of the Administrative Law Judge as modified
below and hereby orders that the Respondent, Reli-
able Maintenance Sales & Service, Inc., Indianapolis,
Indiana, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified:
1. Insert as paragraph 1(b) the following and re-
number the remaining accordingly:
"(b) Threatening to refuse to hire any individual
because of prior union activity."
2. Substitute the attached notice for that of the
Administrative Law Judge.
On March 30, 1976, Administrative Law Judge
Morton D. Friedman issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief.
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 brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified.
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
The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge It is the Board 's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty 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 credited testimony of Union Representa-
tive Stone and employee Luckett that General Manager Conner stated that
if he had known that Luckett had been a union steward in her former
employment he would not have hired her However , the Administrative Law
Judge inadvertently failed to make a specific finding as to whether or not
this statement was violative of Sec 8 (a)(I) We find that Conner's statement
was coercive and therefore violative of Sec 8(a)(1)
In the section of his Decision entitled "The Events ," par 58, the Adminis-
trative Law Judge found "that the part of Luckett's testimony to the effect
that Ragland asked her to assist him to get rid of the people he thought were
not doing their Jobs is 'guilding [sic] the lily ,' and is not credited " However,
in the section of his Decision entitled "Discussion and Conclusions," par
18, the Administrative Law Judge found "that at some time before the
actual terminations , Ragland did speak to Luckett and did inform
Luckett that he desired her to assist him to get rid of the people whom
Ragland determined were not doing their Jobs " Although there is an appar-
ent inconsistency in these findings , we find that the record otherwise amply
supports the Administrative Law Judge 's dismissal of an 8 (a)(5) allegation
that Respondent laid off employees out of seniority , thereby unilaterally
changing working conditions.
In the section of his Decision entitled "The Events," par 59, the Adminis-
trative Law Judge found that terminations occurred on July 25, whereas the
record reveals that employees were terminated on September 25
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT question any of our employees
about their union activities or membership or
their attitude toward Local 551, Service Employ-
ees International Union, AFL-CIO.
WE WILL NOT make threats of discharge or
threats to terminate our contract with GSA in
the event that our employees choose a union to
represent them. Nor will we make threats to dis-
charge any employee for wearing union buttons
on their uniforms with the proviso, however,
that such buttons may not be worn over our in-
signias.
WE WILL NOT Spy upon our employees nor give
our employees the impression that we are spying
on their activities with regard to any union ac-
tivities or any effort on their part to participate
in concerted or protected activities, including
discussions with personnel of the National La-
bor Relations Board, or the filing of charges
against the Respondent with the National Labor
Relations Board.
WE WILL NOT threaten to refuse to hire any
individual because of prior union activity.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their right to form, join, assist,
or be represented by Local 551, Service Employ-
ees International Union, AFL-CIO, or any
other labor organization, to bargain collectively
through representatives of their own choosing,
or engage in other concerted activity for the pur-
poses of collective bargaining or other mutual
aid or protection or to refrain from any or all
such activity.
225 NLRB No. 76
RELIABLE MAINTENANCE SALES & SERVICE
All our employees are free to become or remain or
refrain from becoming or remaining members of Lo-
cal 551 , Service Employees International Union,
AFL-CIO, or any other labor organization , except to
the extent that this right may be affected by an agree-
ment in conformity with Section 8(a)(3) of the Na-
tional Labor Relations Act, as amended.
RELIABLE MAINTENANCE SALES & SERVICE,
INC.
DECISION
STATEMENT OF THE CASE
MORTON D. FRIEDMAN, Administrative Law Judge: Upon
a charge filed in Case 25-CA-7003 on April 7, 1975, by
Local 551, Service Employees International Union, AFL-
CIO, herein called the Union, and a charge filed in Case
25-CA-7084 on May 14, 1975, by Eleanor Jackson, an in-
dividual, herein called Jackson, and a charge filed in Case
25-CA-7268 on August 6, 1975, by the Union, the Region-
al Director for Region 25, of the National Labor Relations
Board, herein called the Board, on September 29, issued an
order consolidating the aforesaid three cases, and a consol-
idated complaint alleging that Reliable Maintenance Sales
& Service, Inc., herein called the Respondent or Company,
violated and is violating Section 8(a)(1) and (5) of the Na-
tional Labor Relations Act, herein called the Act. Addi-
tionally, upon a charge filed in Case 25-CA-7382-7 by
Karol Denise Sharp, on November 25, 1975, the said Re-
gional Director issued an order consolidating the aforesaid
cases with Case 25-CA-7382-7 alleging additional viola-
tions of Section 8(a)(5) and (1) of the Act by the Respon-
dent.
In its duly filed answers to the foregoing complaints, the
Respondent, while admitting certain allegations of the
complaints, denied the commission of any unfair labor
practices.
Pursuant to notice, a hearing in this case was held before
me at Indianapolis, Indiana, on January 7, 8, and 9, 1976.
All parties were represented and were afforded full oppor-
tunity to be heard, to introduce relevant evidence, to pre-
sent oral argument, and to file briefs. Oral argument was
waived. Briefs were filed by counsel for the General Coun-
sel and the Respondent. Upon consideration of the entire
record herein,I and upon my observation of each witness as
he or she appeared before me, I make the following.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Texas corporation maintaining its
principal office and place of business at Arlington, Texas,
is engaged in the business of providing and performing
janitorial and maintenance services and related services to
i There being no opposition, counsel for General Counsel's motion to
correct record dated February 19, 1976, is granted in all respects
581
various commercial and government facilities throughout
the United States.
During the year immediately preceding the issuance of
the complaints herein, a representative period, the Respon-
dent performed services of a value in excess of $50,000 for
commercial customers, each of which during the same pen-
od either purchased and received goods directly in inter-
state commerce of a value in excess of $50,000, or manu-
factured, sold, and shipped merchandise directly in
interstate commerce of a value in excess of $50,000. During
the same period, the Respondent performed services of a
gross value in excess of $500,000 and also received goods
of a value in excess of $50,000, transported to its respective
facilities in interstate commerce directly from States other
than the State wherein each such facility was located.
It is conceded by the Respondent, and I find, that the
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It was stipulated at the hearing herein , and I find, that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
Ili. THE UNFAIR LABOR PRACTICES
A. Background and Issues
As noted above, the Respondent is engaged in the busi-
ness of supplying janitorial and custodial services to both
public and private facilities. A major portion of its business
is conducted with various agencies of the United States
Government at various government installations through-
out the United States. The facility of the Respondent in-
volved in the instant proceeding, is the new Federal Build-
ing located at 575 North Pennsylvania Street, Indianapolis,
Indiana, the same building in which the Board's Region 25
office is located. Shortly before the events herein occurred
the contract for the services rendered by the Respondent
was entered into with the General Services Administration,
which generally services the said building on behalf of the
United States Government. At the time that the Respon-
dent entered into this contract with the General Services
Administration, herein called GSA, it did not contemplate,
nor was the negotiation with GSA conducted, and the
method of payment for said services reached in the light of
any possible union organizing or union contract.
For the performance of the service for which the Re-
spondent had contracted with GSA, the Respondent en-
gaged a number of employees and supervisory personnel,
together with a local project manager, to manage the work
force and to oversee the performance of the work. The
duties of the project manager include reporting to the Re-
spondent at the Respondent's home office in Arlington,
Texas.
At approximately the middle part of March 1975,2 the
Union, through its business representative, Sue Stone, be-
gan an organizational drive among the Respondent's em-
2 Unless otherwise designated, all dates herein are in 1975
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees. Subsequent to this and up to and including the
month of October 1975, the events occurred which are al-
leged as violations of the Act.
The complaints, as consolidated, allege, in substance,
that the Respondent, through its various supervisory per-
sonnel, interfered with, coerced, and restrained the
Respondent's employees by threatening them with dis-
charge for engaging in union activity, by threatening to
discipline or discharge the said employees for wearing
union buttons on company supplied uniforms, for engag-
ing in surveillance of employees' union or otherwise pro-
tected activities, both with regard to attendance at union
meetings and by following employees when they attempted
to file charges at the Board office on the second floor of
the building involved herem; by offering employees eco-
nonuc benefits if they would cease union participation and
membership, and by telling employees that such employees
would not have been hired in the first instance had the
Respondent known that the employees had been members
of a union in previous employment. Additionally, the com-
bined, consolidated complaints allege refusals to bargain in
good faith by engaging in various dilatory tactics, by refus-
ing to consent to the inclusion in any agreement reached of
union-security or checkoff clauses, all for the purpose of
frustrating the Union and causing the loss of its majority
status. Furthermore, the complaints allege unilateral layoff
of employees out of seniority, without consultation with or
notification to the Union, the certified representative of the
Respondent's employees.
The Respondent's answers, while admitting jurisdiction,
denied the basic allegations of the complaints and with
regard to the refusal-to-bargain allegations, affirmatively
alleged that the refusal-to-bargain matters are now moot in
view of the fact that the Respondent and the Union have
entered into a collective-bargaining agreement since the al-
leged discriminatory events; that the Union was granted
every item that it requested in bargaining, including union
security and checkoff and, furthermore, Respondent con-
tends that it did not take unilateral action by laying off the
five employees involved because, in fact, the five employ-
ees were discharged for cause and, therefore, the Respon-
dent was not required to either notify or negotiate with the
Union with regard to these five individuals. Thus, the is-
sues are framed.
B. The Events
Inasmuch as the alleged refusal-to-bargain allegations
occurred in the context of the alleged interference, coer-
cion, and restraint both before the Union was selected by
the employees in a Board-conducted election, after the cer-
tification of the Union, and during the alleged bargaining
periods, the events as they occurred are recited basically in
chronological order so that the entire unfolding of this situ-
ation may be more clearly understood.
As above set forth, the Union began its organizational
drive sometime in the middle of March, and held meetings
with the Respondent's employees away from the
Respondent's facility during the months of March, April
and May.
On April 7, 1975, the Union filed the charge in Case 25-
CA-7003 alleging that the Respondent discharged employ-
ees Addie Sampson and Vernita Luckett on Wednesday,
April 2, because of their union activities on behalf of the
Union's organizational efforts. However, despite the filing
of the charge in that case, the Union on the same day filed
a petition for election.3 On April 28, the Respondent,
through its general manager, John A. Conner, entered into
a Stipulation for Certification Upon Consent Election.
This stipulation was signed by the Union on April 28. The
stipulation called for an election to be held on May 22,
1975. Accordingly, on May 7, a settlement agreement in
Case 25-CA-7003 was approved by the Regional Director,
having been signed by the Respondent on May 5.
On that same day, May 7, the date the settlement agree-
ment in Case 25-CA-7003 was approved by the Regional
Director, the Respondent discharged its employee Eleanor
Jackson.
On April 8, Conner, during a visit to the facility entered
the lunchroom provided by the Respondent for its employ-
ees in the basement of the building, walked around the
room, counted the employees wearing union buttons, and
remarked to the effect that now he knew how many em-
ployees he had to replace. At the same time , he told the
employees that they could not wear union buttons on their
uniforms while at work. Also, at approximately the same
date, Conner told some assembled employees that he did
not care about the Union; all he wanted was to get the job
done and if the Union came in he was going to drop the
contract and everybody would be without a fob.'
After Conner left the employees subsequent to telling
them that they could not wear buttons on the uniforms, he
had second thoughts with regard thereto and immediately
proceeded to the second floor offices of the Board and
spoke to Board Agent David Miller. He asked Miller
whether in view of the fact that although Respondent pur-
chased the uniforms, the Respondent was reimbursed by
GSA, and therefore, the uniforms belonged to GSA, was
the wearing of the buttons on the uniforms lawful. Accord-
ing to Conner, Miller informed Conner that he did not
have an immediate answer and was not quite certain about
the propriety of the wearing of the buttons on the uni-
forms. Thereupon, Conner went back to the Respondent's
basement office. Shortly thereafter Conner received a call
from Miller who informed him that the buttons could be
worn on the uniforms but not over the Respondent 's insig-
ma which was imprinted on the uniform. Thereafter, Con-
ner informed the employees, and evidently Ragland, that
buttons could be worn in the manner described by Miller.
3 Case 25-RC-5951
All of the foregoing from credited portions of the testimony of former
employees Frances Evans, Sharon Taylor, Johnson, and Jackson. Although
there were some discrepancies with regard to dates and exactly what was
said by Conner at the time, the import of what was said by Conner is the
same in the testimony of these witnesses I have taken in consideration, in
crediting this testimony, that all of these employees were discharged at one
time or another by the Respondent and that, therefore, there is a possibility
of prejudice which could have affected their testimony However, I have
also carefully reviewed these witnesses ' version of the basement confronta-
tion with that testified to by Conner and, although his version differs to
some extent, he did not specifically deny the portions of the testimony that
he threatened to close the facility or to discharge the employees if the Union
came in
RELIABLE MAINTENANCE SALES & SERVICE 583
Thereafter , Ragland informed employees that the buttons
could not be worn over the Respondent 's insignia.
At or about the same day, April 8 or 9, Conner again
addressed a group of employees and informed them that he
did not care about the Union , but that they would have to
come to Texas to negotiate.5
One of the employees who attended union meetings dur-
ing the April and May organizational drive was Sharon
Taylor. After she attended a meeting in April, Taylor was
engaged by Project Manager Ragland in a conversation in
the basement of the building . Ragland asked Taylor if she
had attended the union meeting. Taylor told him it was
none of his business and walked away. After attending a
meeting in May, Taylor was in the second floor cafeteria of
the building when Ragland approached and told her that
he had obtained a list of those who had attended the meet-
ing and Taylor 's name was on that list. Taylor told Rag-
land he had better recheck because her name should not
have been on the hst.6
Also, on approximately June 22 , Ragland stopped em-
ployee Karol Sharp and asked her where she had been the
night before . When Sharp asked Ragland what he meant
by that question , Ragland asked whether Sharp had at-
tended the union meeting . Sharp answered that it was none
of Ragland 's business.7
As noted above , a Stipulation for Certification Upon
Consent Election was signed by the Respondent on April?
and by the Union on April 28. Thereafter , despite the
charge filed in Case 25-CA-7003, the parties and the
Board representatives proceeded toward an election to be
held on May 22, 1975. Moreover , on May 7, 1975, the set-
tlement agreement in Case 25-CA-7003 was approved by
Regional Director having been signed by the Respondent's
representative on May 5. However, on May 14 , the charge
in Case 25-CA-7084 was filed by Eleanor Jackson alleging
that the Respondent terminated the employment of Jack-
son because of the latter's activities on behalf of the Union.
Despite the filing of the charge, the election was held, as
scheduled , on May 22 and the Union won the election. As
a result , the Regional Director for Region 25 thereafter
certified the Union as the collective-bargaining representa-
tive of the employees of the Respondent at the Indianapo-
lis facility.
Thereafter , on June 9, the Respondent 's business repre-
sentative, Sue Stone, addressed a letter by certified mail to
John Conner, as general manager of the Respondent, to
the Respondent 's Arlington, Texas, address , informing
Conner that the Union had been certified as the bargaining
representative of all regular full-time and part-time em-
ployees at the Federal Building, Indianapolis, Indiana, and
further informing Conner that the Union desired to meet
with the Respondent 's representatives for the purpose of
negotiating a collective -bargaining agreement . The letter
further requested that the Respondent should advise the
5 From the testimony of former employee Ralph Griffin Also, from cred-
ited portions of the testimony of Conner
6 From credited portions of Taylor's testimony not specifically denied by
Ragland
From credited portions of Sharp's testimony Ragland, in testifying, did
not deny this incident as related by Sharp
Union by June 20 of a convenient date and time for bar-
gaining.
Thereafter , by letter dated June 12 , Conner acknowl-
edged receipt of Stone's bargaining demand of June 9 and
advised Stone that the contract with GSA was a fixed-price
contract and that all government agencies were notified
that the Respondent had a "no-bargaining agreement" and
did not intend to have one and that , therefore , the pricing
and labor costs were based accordingly . Conner further
advised Stone , in this letter of June 12 , that any future
correspondence concerning the Union 's requests be for-
warded to the GSA building representative in Indianapolis
or to the General Services Administration Regional Office
in Chicago , Illinois. Responding to this letter , Stone ad-
dressed a further letter to Conner , dated June 20, stating
that Stone was in receipt of Conner 's June 12 reply to the
request to bargain and that the Union was aware of the
fixed price , GSA contract , but that it was the Union's de-
sire to negotiate on other negotiable items, nonmonetary in
nature , such as seniority , grievance procedures , etc. Stone
repeated her original request that the Respondent advise
her no later than July 1 of a convenient date for the pur-
poses and advising the Respondent further of the dates
which Stone would have open for such purpose.
On June 23 , having received this foregoing letter from
Stone , Conner addressed a second letter to Stone stating
that either Conner or Peter Langas , president of the Re-
spondent , would be happy to meet with Stone during their
next periodic visit to Indianapolis . He informed Stone that
under contract with GSA all costs were reimbursed, but
that there were no funds set aside by GSA for travel expen-
ses for union negotiations and, accordingly, the
Respondent 's representatives would have to work in their
meetings with the Union with a regularly scheduled trip to
the Indianapolis facility which trip would be before the end
of 1975. He further advised Stone that during any meeting
there must be in attendance a GSA representative from
either Chicago or Indianapolis.
Evidently , Stone , as representative of the Union, upon
receipt of Conner's June 23 letter , felt that the Respondent
was avoiding bargaining, especially in view of the fact that
Conner stated in his letter that the Respondent would be
"happy to meet with the Union sometime prior to the end
of the year." Accordingly , as a direct result thereof, Stone
filed a charge in Case 25-CA-7172 in which she charged
that the Respondent was failing to bargain by using dilato-
ry tactics. Despite this charge , on June 30, a settlement
agreement in Case 25-CA-7084 was approved by the Re-
gional Director and signed by Charging Party Jackson on
that day, the Respondent having signed the settlement
agreement in that case on June 26.
Evidently as a result of the filing of the charge in Case
25-CA-7172 alleging dilatory tactics, as noted above, on
July 7, Conner addressed a letter to Stone referring to her
letter of June 20, 1975, and a letter from the Board dated
June 26 , 1975, the date Stone filed the dilatory tactic
charge advising Stone that , in accordance with a telephone
conversation that Conner had with Board Agent David
Miller subsequent to the filing of the charge, Conner would
be available in Indianapolis on July 24, to discuss collec-
tive bargaining. He further added that since this was the
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only reason for his contemplated visit to Indianapolis that
this date be confirmed as satisfactory. On July 14, Stone
advised Conner that the July 24 date would be satisfactory
and requested that the negotiating committee members,
Othello Luckett and Nadine Thompson, be excused from
work on that day to attend the meeting. On July 21, Con-
ner answered Stone' s letter and said that arrangements
were being made for the meeting to be held at the NLRB
office at 9 a.m., on July 24. He further informed Stone that
if she had any other thoughts on that matter he would be at
a hotel in Indianapolis on the evening of July 23.8
As a result of this agreement to meet, the charge in Case
25-CA-7172, alleging dilatory tactics, was withdrawn by
the Union although the record does not reveal the date of
withdrawal.
On July 24, in a room at the Board's Indianapolis office,
the parties began negotiations. Present for the Union were,
as mentioned above, Stone, Luckett, and Thompson. Pres-
ent for the Respondent were Conner and Ragland, the
project manager.
At the outset of the meeting, the union representatives
presented as possible contract proposals two contracts al-
ready in effect with other employees servicing installations
at nearby Fort Benjamin Harrison. Conner read over the
contract with Best-Way, one of the employers, taking only
about 5 minutes and announced that it looked like a fairly
basic contract and that he would have his attorneys exam-
ine it . Stone then asked Conner if the attorneys were going
to negotiate the contract. Conner answered that he was
going to do the negotiation and had the final word and not
the attorneys. Stone then asked Conner if he would like to
go over the aforesaid contract clause by clause. Conner
answered that he did not see anything too much wrong
with the contract but that there were two clauses he would
not agree to. He stated that these were the union-security
and checkoff clauses.
Thereafter, the parties went over the proposed contract
in greater detail. Conner stated that he felt disciplinary
action should be given to any one who made unauthorized
use of government telephones. The union representative
consented to change the contract to agree to that portion.
But, the parties kept referring back to union security and
checkoff and ultimately engaged in very lengthy discus-
sions regarding these two items. Conner stated at one point
that he did not feel he could discharge an employee for not
wanting to pay union dues. Conner explained that a num-
ber of valued employees had informed him that they did
not desire to join the Union and pay dues and that they
would quit rather than do so. He stated that he did not feel
that he should collect the Union's money for them pur-
suant to checkoff.
At one point during the day Conner suggested that
union security and checkoff be put to a vote of the employ-
ees because he had been informed that people would quit
their job rather than pay union dues. He told Stone at
another point in the discussions that it was perfectly all
right with him if she collected dues after 7 p.m., at night
outside the front door of the building. Thereupon, at either
8 All of the foregoing from written documents received in evidence by
stipulation
that point or another point in the negotiations, Stone stated
that the Union would give up checkoff if the Respondent
would give the Union time to collect dues while the em-
ployees were on duty. During the discussions, according to
credited testimony of Stone, Conner stated that he did not
feel that he should be required to do their job or assist the
Union in doing its job. Furthermore, he turned around to
the committeewomen, who were present for the Union,
and asked if they knew what union security meant and if
each one of them knew exactly what it was about or had
been involved in a union before. Both Luckett and Thomp-
son replied that they had been involved in a union before
and Luckett said she had been a union steward in her for-
mer employment before coming to her present employ-
ment with the Company. Conner stated that if he had
known this he would not have hired Luckett in the first
instance.
The discussion and various suggestions with regard to
union security and checkoff were repeated over and over
during the entire day. At one point during the morning
discussion Conner did state that he had formerly been with
another employer and that they had so much trouble with
checkoff and union security that he "would never have
another one."
Additionally, during the morning session , Conner indi-
cated that the only reason that he was there at all at that
time was because of the Board charges pending against the
Respondent. During the same period of time, according to
Stone, she told Conner that it was her hope that they could
bargain in good faith. She further told Conner that she
understood the situation of the Company and realized that
they were not talking about monetary issues but were dis-
cussing only nonmonetary issues and there was no reason
why they could not come to an agreement. There also came
a period during these discussions when Conner stated that
he was not required, or thought he was not required, to
bargain on those subjects and Stone answered that she was
really not too sure herself. However, evidently bargaining
and concessions on Respondent's part did take place. Vir-
tually all of the articles in the "Best-Way Inc.," contract
with the Union for work being done at Fort Benjamin Har-
rison, Indiana, which was being used as the proposed con-
tract were consented to by Conner on behalf of the Re-
spondent. Finally, while the parties were once again
discussing union security and checkoff, they agreed to ask
Board Agent David Miller, who was handling the charges
filed against the Respondent, whether the Board would or
could conduct an election to determine whether the em-
ployees wanted union security and checkoff and to further
ask Miller whether union security and checkoff were man-
datory subjects of bargaining. Miller was then asked to the
bargaining meeting. He told the parties that there was such
a thing as a "UD election" in which employees could de-
termine whether they wanted a continuation of union se-
curity. He further stated that he was uncertain with regard
to whether union security and checkoff were mandatory
subjects of bargaining, inasmuch as he was not familiar
with the cases regarding that subject. At that point Miller
left the room and Stone told Conner that she would not
agree to a union-security election of any type. They discon-
tinued discussing union security, Conner finally stated that
RELIABLE MAINTENANCE SALES & SERVICE 585
he would think it over and he would possibly make a tele-
phone call to his attorneys that night. He asked that the
parties schedule a meeting for the next morning, July 25.
During the discussion on union security, Conner stated
that his bookkeeping system would not allow him to de-
duct dues from the checks, and that he did not have any
room on the paycheck stub to deduct dues. Thereupon,
Luckett, who happened to have with her a paycheck stub,
demonstrated that there was room. However, Conner stat-
ed that it might be a great burden on the Respondent inas-
much as the GSA contract did not provide sufficient funds
to cover him for the expenses of the extra bookkeeping.
Stone argued that it was just a matter of deducting one
additional column and writing one additional item on the
check, and that as a payroll function it certainly was not
that difficult. She also contended that if she was to collect
the dues herself, more time would be consumed than if
dues were on the checkoff because the nonavailability of
union representatives to collect dues could lead to com-
plaints and confusion. Conner suggested that perhaps the
stewards could collect the dues and Stone explained that
only the officers are bonded and permitted to handle mon-
ey.
However, Stone admitted, in testifying, that aside from
union security and checkoff, Conner acknowledged several
times throughout the day and at the end of the meeting
that he saw nothing wrong with the proposed contract, that
it was a basic contract but that he could not agree to union
shop and checkoff. Stone further testified that at one point
during the afternoon session, Conner stated that if there
was necessity for bargaining sessions, Stone could come to
Texas and bring the committee with her. At this point,
Stone reminded Conner about the matter of bargaining in
good faith. Conner replied that he was only in Indianapolis
for that specific purpose. Stone asked if Conner wanted to
schedule another meeting during the next week. Conner
answered, "Yes, if you want to come to Texas to meet."
Nevertheless, when the meeting ended, the parties agreed
to meet the next day, July 25.
Before the day's meeting ended, Conner stated that he
would think it over during the night, but that he could not
see the feasibility of putting union security to a vote as he
did not think that it would prove anything, and again men-
tioned that he did not see the point of losing 12 or 13 good
workers. He further told Stone and the union representa-
tives that his percentage factor on his performance rating
had climbed considerably during the period of time, and
this was due to the good workers whom he would lose if
they had to become members and pay union dues. It
should be noted that earlier in the day, Stone, as the
Union's chief spokesman and business agent, told Conner
that the Union would not consent to the taking of a vote
on union security.
In any event, the parties met the next morning but noth-
ing was accomplished or discussed that had not been dis-
cussed the day before; no further agreements were
reached. In fact, the meeting on the morning of July 25
took but a short period of time. However, before the meet-
ing on July 25 ended there was agreement that further pro-
posals could be submitted by telephone or communicated
through the mail. Before he left, Conner stated that the
"Best-Way" contract looked like a good contract except
for union security and checkoff, and that he could agree to
the contract without these two items.
Immediately after the meeting on July 25 ended, Stone
went to the Board office and obtained literature relating to
mandatory subjects of bargaining. She also obtained a
copy of a typical maintenance-of-membership clause. She
then proceeded downstairs to Conner's office where she
told him about the maintenance-of-membership clause and
asked if he would consider that. Conner answered that it
sounded like something that he might be able to consider.
He asked Stone to put it in writing and send it to him at his
office in Texas, to which Stone agreed. Shortly after that
Conner left .9
According to the testimony of Lucy May Ayers, Sharon
Ann Taylor, and Helen Bertram, at approximately noon on
July 24, during a break in the bargaining meeting between
representatives of the Union and the Respondent, a num-
ber of employees including Ayers, Taylor, Bertram, and
Frances Jean Evans, were sitting in the cafeteria having
their lunch when Conner approached them eating ice
cream and told the assembled employees that he would
offer them $4 an hour, instead of the wages which they
were then receiving and which were considerably less, if
they would quit supporting the Union and give up their
membership in the Union.
In testifying, this incident was denied by Conner, who
stated that he did go into the cafeteria at some time during
the day, the cafeteria being located across from the Board
office on the second floor of the building, to have a quick
bite to eat, and spoke to two employees, none of those
mentioned above, but did not say anything about any raise
in wages. Conner testified that this would have been a use-
less gesture inasmuch as the Union was already certified
and he was compelled to bargain with it, and, secondly, he
knew as well as the Union knew, that there was no room
for any wage increases under the GSA contract by which
Respondent was bound. Accordingly, Conner testified that
he could not have made such a statement inasmuch as it
would have availed him nothing and the employees would
have known they could not have a wage rate raise. The
explanation given by Conner would seem to be logical and
had the ring of truth under the circumstances and I credit
it. On the other hand, this portion of the testimony of Tay-
lor, Ayers, and Bertram left the impression that they
agreed among them to relate the alleged incident to bolster
their discharge cases, hereinafter discussed.1°
As heretofore set forth, at the conclusion of the second
9 From credited portions of the testimony of Sue Stone and Othella Luck-
ett Although Conner denied that he at any time during the bargaining
meetings on July 24 and 25, or at any other time, told any employee that he
would not have hired her had he known she had engaged in union activity
while working for any former employee, the balance of the testimony recit-
ed by Stone and Luckett was not materially controverted by the testimony
of Conner with regard to the two negotiating meetings Accordingly, I find
and conclude, upon my observation of Stone, that she was a very forthright
witness who made no attempt to exaggerate and conclude that Conner actu-
ally made this statement to Luckett , whose testimony regarding this incident
was substantiated by Stone
10 If in other parts of this Decision I credit these employees and do not
fully credit Conner in all respects , I note that it has been held that it is not
Continued
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
day's negotiation meeting on July 25, Conner invited Stone
to send to him in Texas a modification of union security in
the form of an agency shop clause and that the Respondent
would give the matter consideration. However, no date was
set for a further meeting. In accordance with this invita-
tion, and Stone's agreement to accept the same, Stone, on
behalf of the Respondent, prepared a modified combined
maintenance of membership and union-security clause,
which would have required that after the date of the execu-
tion of the agreement and after a 30-day probationary pen-
od any employee hired after that date would have to be-
come and remain a member of the Union in good standing
as a condition of continued employment, and that those
employed by the Respondent before the execution of the
agreement , who have not joined and do not desire to join
the Union need not do so as a condition of continued em-
ployment with the Respondent. However, it would also
provide that those employees who did become members of
the Union would have to remain members in good stand-
ing for the life of the agreement.
But, before Stone sent the foregoing in a letter dated
August 8, she filed with Region 25 on August 6 the charge
in Case 25-CA-7268 alleging dilatory tactics and bad-faith
bargaining, claiming that the Respondent's refusal to ac-
cept union security and checkoff was for the purpose of
curtailing bargaining and alleging generally "other bad
faith tactics." On August 7, the Acting Regional Director
addressed the usual form letter to the Respondent inform-
ing the Respondent of the charge filed in Case 25-CA-
7268 and further informing the Respondent that Board
Agent Miller was assigned to the case. Thus, it was not
until after the unfair labor practice charges had been filed
in Case 25-CA-7268 that Stone mailed to the Respondent
the modified union-shop and maintenance-of-membership
clause.
Stone testified that she did not receive any reponse to
her letter of August 8, which contained the proposed modi-
fied union-security clause, until she received a letter, here-
inafter summarized, from Respondent's counsel dated Oc-
tober 7. However, on August 15, Conner wrote a letter
addressed to Region 25, attention David Miller, explaining
the situation as Conner saw it at that time. In this letter he
stated that he made a special visit to Indianapolis on July
24 and 25 for the express purpose of bargaining and that he
had made every effort to come to some agreement to initi-
ate a workable agreement with the Union, but that the
parties were still unable to agree concerning the union-
security or checkoff clauses. He further reminded Miller
that the latter was requested to come to the negotiating
meeting to answer "the legality of the clauses," and that at
that time they were all in agreement that these clauses were
not mandatory clauses to be included in a union contract.''
In the letter Conner further stated that the Respondent
strongly protested the allegation of the charge that it had
engaged in bad-faith bargaining and dilatory tactics during
these 2 days of bargaining. Conner further pointed out that
uncommon "to believe some and not all of a witness ' testimony " N L R B
v Universal Camera Corp, 179 F 2d 749, 754 (C A 2)
11 In this respect it is evident that Conner was mistaken as to what Miller
had told the parties at the July 24 meeting
he did not immediately refuse to consider checkoff or
union-shop security, but protested these two clauses only
after reading in its entirety the Union's proposed contract.
All other items of the contract were agreed upon. Conner
stated further in the letter that he felt that he had made
every effort on the Respondent's part to come to a work-
able agreement and had also suggested that the union rep-
resentative reconsider their position and forward a con-
tract exempting these two items, which contract
Respondent would sign . Conner acknowledged to Miller
the receipt on August 11 of the modified proposal, as stat-
ed above, but that this modification was not acceptable to
the Company. Conner further stated to Miller, in the letter
of August 15, that the Company felt that it was being ha-
rassed unnecessarily by the Union's local representative
and that some action should be taken to protect the Com-
pany from this harassment since Respondent had already
agreed to 90 percent of the agreement but that, apparently,
the Union's opinion was that unless the Respondent agreed
to 100 percent of the Union's proposal, the Respondent
was bargaining in bad faith.
Additionally, in testifying, Conner stated that he as-
sumed that this answer would be sent to the Union, or, in
the alternative, that the Union would be apprised of the
content of the same by Board Agent Miller. Conner further
testified that because he was under the impression that this
would be done, he did nothing further about the matter,
expecting to hear further from someone with regard to the
next step. Conner additionally testified, as was borne out
by the testimony of Stone, that at no time did he refuse to
discuss union security or checkoff, but merely explained on
July 24 and 25 why he could not consent to these clauses
being included in the contract. His reasons, again, were
economic, being the expense of the bookkeeping operation
of keeping records for the checkoff and, secondly, reluc-
tance to lose key employees by reason of their having to
join the Union when such employees did not want to do so.
On August 25 the Respondent was informed by GSA
that it would have to reduce its man hours from 93,000 to
54,000 per year. In order to do this, Conner originally fig-
ured that it would require a layoff of approximately 19
employees. Accordingly, on September 19, in accordance
with the GSA request, Conner issued instructions to Proj-
ect Supervisor Ragland, by intercompany communication,
to reduce the work force to the extent required by termi-
nating employees who were most recently hired effective
October 1, 1975. Thus, Conner instructed Ragland to con-
form to the seniority provisions tentatively agreed upon by
the parties at the July 24 and 25 negotiating meetings.
However, events intervened which resulted in the discharge
of five employees before the deadline date of October 1,
which employees were more senior than employees who
were retained after the effective date of the layoff. On Sep-
tember 25, Ragland discharged employees Evans, Sharp,
Taylor, Bertram, and Ayers. According to the General
Counsel these people were laid off out of seniority and
were not discharged. In order to better assess whether these
individuals were discharged or laid off, it is necessary to
review the manner in which they were terminated.
There is no question but that the Respondent had posted
rules with regard to proper times and places for taking
RELIABLE MAINTENANCE SALES & SERVICE 587
breaks and for smoking. Thus, as early as February 18,
1975, the Respondent informed all of its employees that
the breaks would have to be taken only in designated break
areas and that the employees would not be permitted to
loiter in lobbies, corridors, or in the rest of the building.
Furthermore, this set of rules prohibited smoking except
during breaks and when the employees were not actually
engaged in cleaning . Moreover, the employees were
warned not to move from area to area while smoking ciga-
rettes and dropping ashes in other peoples' ashtrays. At
another undated time , the Respondent posted a list of
breaktimes for the employees depending on their shifts. On
April 10, 1975, another notice was posted to the employees,
signed by Ragland, stating that if an employee became ill
while working, the employee was to leave the floor and
come downstairs to the Respondent's basement office;
and, if an employee was unable to come downstairs be-
cause of illness, such employee was required to send a mes-
sage by a coworker to the office, whereupon appropriate
steps would be taken to see that the employee would have
a doctor or be taken home. The employees were specifical-
ly instructed not to remain on the floor or in the restrooms
in the event of becoming ill on the job.
On April 10, 1974, Ragland posted a further notice in
which he stated that if any employee was found fighting
while on the clock or in the building no matter who was
responsible or who started such fight, the employees in-
volved would be subject to immediate termination. Fur-
thermore, on an undated notice posted by Ragland, the
employees were warned not to use any government tele-
phones, and if any employee was so found the employee
would not only be charged for the call but would also be
terminated. All of the employees who were terminated ad-
mitted, in testifying, that they were acquainted with the
Respondent's rules and regulations above set forth with
regard to employee conduct.
Although it is somewhat difficult to piece together each
event that led to the claimed discharges, it is apparent from
the testimony of both the employees who were terminated
and from the testimony of Ragland that each of the em-
ployees so terminated had at times violated one or more of
the rules above set forth.
Lucy Ayers was probably the least involved of all the
terminated employees in rule breaking although, on cross-
examination, she did admit that she had been warned, at
times, about smoking at improper times and places. Ac-
cording to Ragland, Ayers was terminated for being out-
side her work area and smoking in the restrooms at im-
proper times and places on September 24. Additionally,
located in the building was a very delicate and intricate
computer used by one of the government agencies. Smoke
could set off this computer and throw off its computations.
According to Ragland, Ayers was caught smoking on the
first floor, which "kicked off" the computer. According to
Ayers, she had no advance notice of any layoff, except that
Ragland, at some of the daily meetings with the employees,
did make some reference to possible layoffs in the future,
but said nothing definite.
Ayers testified that she smoked at no other place but the
restrooms during her breaks which occurred twice each
day. According to Ayers she was called into Ragland's of-
fice on September 25. Sharon Taylor was already in the
office when she went in. Ragland asked if Ayers had been
smoking on the floors, and she answered that she had been,
but only on her breaks. Ragland further told her that an
employee that worked on the floors with Ayers had called
down and said that he saw Ayers, Sharon Taylor, and Kar-
ol Sharp smoking in the bathroom. At that time Ayers told
Ragland that was impossible inasmuch as Taylor, at least,
did not smoke. Then Ragland asked Taylor if she had been
smoking and Taylor answered that she did not smoke. Tay-
lor also told Ragland that she sat in the bathroom for a
while with her head down, because she had had a headache
and was nauseous and was almost vomiting. At that Rag-
land told Taylor, "Haven't I told you not to do this?" And
Taylor answered that she could not have made it down-
stairs because she might have vomited all over the floor.
Then Ragland stated that he would have to terminate her.
Then he questioned Karol Sharp, who was just entering the
room about smoking at an improper time and place. Sharp
protested, according to Ayers, stating that she had only
smoked on her breaks. Ragland then said that he would
have to terminate her also.
Additionally, Ayers also testified that on one occasion
when she went into the bathroom, Ruth Warren entered
and asked Ayers to sit down with her and smoke a ciga-
rette. Ayers told Warren that she could not do this inas-
much as she knew that Warren was a supervisor. Warren
then said that it made no difference, that Ayers could take
a cigarette as well as Warren. Thereafter, they both stood
and talked and smoked. This, obviously, was not on her
break period.
Ayers did sign a union card sometime in April but this
card was never exhibited or shown in any way to the Re-
spondent. Ayers attended some union meetings during the
months of April and May, but she did not take an active
part in the union organization aside from the foregoing.
As noted above, Sharon Taylor was discharged along
with Ayers and Sharp. Taylor testified, as did Ayers, that
she was told by Ragland that she was reported to have
been smoking on the third floor. However, Taylor denied
that this was so because she did not smoke and had not
smoked for a number of years. Taylor testified she ex-
plained to Ragland that she had been in the bathroom on
the day and at the time reported, but that was because she
had been ill and had to go to the bathroom and could not
make it to the basement office to report her illness. Instead,
she went into the bathroom and vomited. Thereafter, she
put her head down on the sink, with a cold wet towel on
her head, and laid her head on the edge of the sink for
about 5 or 10 minutes and then, feeling better, she proceed-
ed to :etum to work.
Taylor admitted in testifying that she did not report this
to Ragland. However, Taylor did state that she had been ill
with the same illness on several occasions before; she had
brought notes from her doctor; and Ragland was aware of
these spells of illness. Furthermore, Ragland admitted that
at one time he had received some notice to the effect that
Sharon Taylor was subject to these spells. Nevertheless,
Ragland insisted, according to Taylor, Ayers, and Sharp,
that Taylor was discharged for smoking.
However, despite the testimony of all three of these mndm-
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
viduals to the effect that Ragland told Taylor that she was
being discharged for smoking, although her illness was dis-
cussed at the exit interview, Ragland testified that Sharon
Taylor was terminated for sleeping in the restroom on sev-
eral occasions. He further testified that she was also in-
volved in a conflict that was going on between two groups
of employees. He stated that she was siding with Ayers and
Sharp against Evans and Bertram. This, according to Rag-
land, helped create a conflict which resulted in loss of pro-
duction. Ragland also stated there were other times when
Taylor was ill and did not report her illness to supervision
and her overall performance was very poor. This occurred
at a time when GSA representative, Lyons, who was a
GSA supervisor in the building, brought to Ragland a
progress report. At that time, a call came down from the
third floor saying that three of the Respondent's employees
were in the restrooms sleeping and smoking. Thereafter,
upon this report from Lyons, Ragland investigated and
found that there was no toilet tissue or paper towels in the
third floor restroom. He claimed that when he called Tay-
lor in on September 25 she told him that Lucy Ayers and
Karol Sharp were in the restroom at that time and they had
been sleeping and smoking all along. In connection with all
of the foregoing, it should be noted that although Ruth
Warren, the supervisor involved, who allegedly was smok-
ing in the restroom with Ayers, testified on behalf of the
Respondent, but did not testify to or deny the smoking
incident.
Also terminated on September 25 were Karol Sharp and
Frances Evans. According to Ragland, Evans was termi-
nated because she had been placed on probation for fight-
ing and smoking in the restroom out of the assigned work
area in violation of company rules. Moreover, she had
been involved in a fight in the building sometime between
September 5 and 9, and on September 9 Evans was caught
smoking in the NLRB hearing room by Ragland and was
thereafter placed on probation. Additionally, the Federal
police reported to him that Evans had threatened Karol
Sharp with a knife, and had also threatened other employ-
ees. Ragland then put both Sharp and Evans on probation
1 week before the terminations and told them he would not
tolerate this. In fact, it was so apparent that these employ-
ees were at odds with each other that Ragland had to place
them on different floors.
Both Evans and Sharp admitted that there were times
when they were arguing and had had fights and had been
placed on probation. However, they further testified that
one of the incidents which Karol Sharp had reported to the
Federal police took place outside of, and away from, the
building. This evidently was the knife threatening incident.
In testifying, Evans admitted that she was placed on 90
days' probation in May 1975 for getting into a fight with
employee Sharp. Again, in September, approximately 2
weeks before she was discharged, Evans was again put on
probation because of what she called "a little difference"
outside the building, again with Sharp. Ragland had
brought both of them to his office thereafter and placed
them on a second 90-day probation. Evans admitted that
approximately I week before she was discharged she was
caught by Ragland smoking in an unauthorized area,
which was a room adjoining the Board's hearing room on
the second floor of the building. According to Evans, Rag-
land at that time said, "Ali ha, I caught you smoking."
According to Evans, Ragland then said something to the
effect that he might let it pass or he might put Evans on
probation again At that time, employee Helen Bertram
was with Evans in the room. According to Evans, Ragland
said nothing specifically to Bertram at the time.
Evans also testified that after Ruth Warren became su-
pervisor, approximately July 1, Evans smoked in Warren's
presence in the Board room and elsewhere. Warren also
smoked in those places as often as once or twice a day.
Like the other employees, who were either terminated or
laid off, Evans signed a union authorization card in April
and attended three union meetings between April and
May. However, she took no further active part in the union
organizational drive.
According to Ragland, Karol Sharp and Evans were al-
ways at each other, using profane language while on the
job. As noted before, Karol Sharp was placed on probation
for fighting with employee Evans as early as April 1975.
However, according to Sharp, on September 25 when Rag-
land called her into his office and ultimately stated that she
was discharged, Ragland asked Sharp why the latter had
been smoking in the bathroom on the third floor at an
unauthorized time . Ragland explained to Sharp, upon her
questioning, that he received a telephone call informing
him that three of his employees were smoking in the bath-
room on the third floor. Sharp told Ragland that she was
smoking because she needed a cigarette, Taylor then told
Ragland she did not smoke. Nevertheless, Ragland termi-
nated all three at that time.
Prior to September 25, according to Sharp, she had
smoked in the restrooms but only on breaktime. She also
stated that Ruth Warren was in the restrooms smoking af-
ter July 25 on many occasions. Sharp stated that this oc-
curred about three times a week. She also saw Warren
sleeping in the restrooms at one time. Sharp further testi-
fied that she never received any advance notice that she
would be terminated.
However, Sharp did testify that I week before she was
terminated she was put on probation for 90 days. In her
cross-examination Sharp did admit that she had had con-
flicts with Evans and had called the Protective Service Pa-
trol (Federal police) and told them Evans had a knife and
was looking for Sharp Sharp testified that this call was
made from Sharp's home and the occurrences were outside
the building. However, Sharp admitted that she was put on
probation for this matter, but that she was never spoken to
or warned about being out of her assigned work area when
she was smoking. Moreover, Sharp insisted that it was at
Ragland's request that she looked for Warren and found
the latter smoking and sleeping in the ladies' room. Sharp
testified she reported this to Ragland, but nothing was ever
done to Warren as far as Sharp knew.
The final individual terminated out of seniority on Sep-
tember 25 was Helen Bertram. According to Ragland, Ber-
tram had been out of her area many times and had had a
drinking problem. For instance, according to Ragland, and
admitted by Bertram, she was drunk on the day of the
RELIABLE MAINTENANCE SALES & SERVICE 589
election and Ragland placed her on probation for that.
Also, at another time , Bertram was placed on probation for
sitting down and smoking during other than designated
rest periods and, moreover , her overall work performance
was poor.
According to Bertram , on September 25, when she was
called into Ragland's office , Ragland told her "Helen, you
are fired , I don 't want to fire you, but it would not seem
right to fire the rest of the girls and not fire you." Accord-
ing to Bertram , about 2 weeks before she was fired, Ber-
tram and Evans were sitting in the Board hearing room
and Evans was smoking a cigarette , when Ragland sudden-
ly entered , looked at them , and told them that they should
know better than to be sitting and smoking . He then placed
them on 90-day probation for being drunk on the day of
the union election in May.
Like the others, Bertram had signed a union card, had
attended several meetings , but had taken no active part in
the union organizational drive and did not represent the
Union at any time in any of the discussions with the Re-
spondent.
It should be noted in connection with all of the fore-
going, that despite the reports that Ruth Warren , a supervi-
sor, had been smoking at improper times and places in the
company of other employees , that the Respondent had
done nothing to rectify this matter, nor had Ragland in any
manner whatsoever , according to any of the employees,
warned or disciplined Warren in any way. In fact , Warren
was still working for the Respondent at the time of the
hearing herein and testified with regard to the same. How-
ever , in her testimony , Warren was not asked and did not
deny any of these matters of which she was accused by the
employees.
Ragland testified that at the time he discharged the five
individuals above named , on September 25, Othello Luck-
ett, whom he knew to be one of the union bargaining repre-
sentatives , was standing at the door of the room and heard
everything that was spoken . Also present were Ruth War-
ren and Ann Vickers, the Respondent 's secretary at the
office of the facility . Luckett denied in her testimony that
she was present , or that immediately after the discharges,
as testified by Ragland , Ragland told her about these peo-
ple and that he had had problems with them all along.
Despite Luckett 's denial that she was present in the of-
fice at the time of the terminations on September 25, I
credit Ragland in this respect because Ann Vickers, the
former secretary who no longer works for the Respondent,
and had no apparent reason to be other than objective
testified that she left the Respondent's employ voluntarily
on October 20, to take a position with another government
agency in the building . She stated , positively , that she was
present at the discharge on September 25 of the five indi-
viduals and that Luckett was also present during the entire
time that Ragland was talking to and ultimately discharged
the individuals.
Although Luckett at first denied that she had any knowl-
edge beforehand of any layoff or discharge , she later testi-
fied on rebuttal , after Vickers and Ragland had testified,
that soon after Ragland received the order from Conner
that there would have to be a layoff of some individuals,
Ragland asked Luckett to cooperate with him to get rid of
the people he thought were not doing their jobs , instead of
following seniority . According to Luckett , she refused.
However , in view of the fact that I have credited Vickers to
the effect that Luckett was present and was informed
about the discharges as of the date of the discharges, I do
not credit this portion of Luckett's testimony , and find that
Ragland informed Luckett of forthcoming discharges with-
out giving details. I also conclude that the part of Luckett's
testimony to the effect that Ragland asked her to assist him
to get rid of the people he thought were not doing theirjobs
is "guilding the lily," and is not credited . Accordingly, I
find and conclude by Luckett's own testimony , that she
was informed by Ragland that there would be a discharge
or layoff although there were no details given as to who the
people were who were to be included.
Immediately after the terminations on July 25, Evans
proceeded to the Board 's office on the second floor of the
building, and as she entered the hallway outside the Board
office , she was met by Supervisor Warren . According to
Evans, Ragland was standing but a few feet away from the
entrance to the Board offices at the time . Warren, accord-
ing to Evans, stated that Ragland wanted to know what
Evans was doing there and Evans indicated she was going
to file a charge. I credit Evans in this respect inasmuch as
Warren did not specifically deny the remarks attributed to
her by Evans. Additionally , I do not credit Ragland 's deni-
al of the event . However , again I do not fully credit all of
Evans' testimony . I do not accept Evans' testimony to the
effect that Warren told her that Warren did not think it
would be right for Evans to leave the building without fil-
ing a complaint.
On September 29, 1975, Ragland sent an interoffice
memo to the Respondent 's office , at Arlington , Texas, with
the layoff list. He stated in that list , "We would have gone
by seniority , but, since enough people volunteered to be
laid off , saying they were unable to do the extra work, it
was not necessary. There were a number of women termi-
nated for a number of reasons, but this was a problem that
had been going on for a while . Fortunately , they were
caught in the act of smoking and sleeping in the third floor
restroom at this opportune time. We do not anticipate any
trouble from these women ." On December 1, 1975, while
the charge filed by Karol Sharp in Case 25 -CA-7382-7
was being investigated and after the Respondent had re-
ceived notice of such charge , and the complaint had al-
ready been issued , the Respondent evidently requested of
Ragland the reasons for the discharge of the five individu-
als. In the case of Ayers, Evans, Bertram , and Sharp, Rag-
land informed Conner , by interoffice memo dated Decem-
ber 1, that these individuals had been terminated for
smoking in the restrooms and being out of their assigned
work area. With regard to Sharon Taylor , Ragland in-
formed Conner that Taylor was terminated for sleeping in
the restroom , while on Company time. He further stated
that Lucy Ayers, Frances Evans, Sharon Taylor , and Karol
Sharp were all on probation at the time of the discharge,
and that all were known to have started trouble throughout
the building for a period of 4 to 6 months before the dis-
charge ; that each had been warned repeatedly . He further
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated that he had checked the restrooms himself and they
had not been cleaned and were out of necessary supplies.
He stated that these were the primary reasons for the ter-
minations.
In order to further assess Ragland's attitude toward the
employees, it was evident that there was "bad blood" be-
tween Ragland and some of the employees, Ragland testi-
fied he was of the opinion that when Jackson came into the
Board office on May 14, Ragland allegedly sent Humphrey
to check on Jackson's whereabouts because Ragland had
been informed, and assumed, that Jackson was circulating
a petition to have Ragland removed from his job. Addi-
tionally, it should be noted, that as hereinbefore set forth,
once in April and once in May, Ragland interrogated Tay-
lor about her union activity. Also in June Ragland simi-
larly interrogated employee Sharp.
C. Discussion and Conclusions
Counsel for the General Counsel contends that the total-
ity of the conduct as set forth above, including the termina-
tions of the five employees on September 25, indicates that
the Respondent approached the bargaining with the Union
with an intention not to bargain and that Respondent not
only delayed and engaged in dilatory tactics in order to
prevent bargaining and to thwart the Union with the pur-
pose of causing it to lose support among the Respondent's
employees, but also, refused to bargain in good faith with
regard to the Union's proposal for union-security and
checkoff clauses. Additionally, General Counsel contends
that the terminations on September 25 were violative, in
that they constituted a change in the terms and conditions
of employment which had already been agreed upon in
that they were made unilaterally without consultation, dis-
cussion or any form of negotiation with the Union before
they were accomplished. This is so, according to counsel
for the General Counsel, because the said terminations
were actually part of the layoff which occurred on Septem-
ber 25 in accordance with the demand by GSA for Re-
spondent to reduce its work staff and, accordingly, the Re-
spondent violated its agreement with the Union to lay off
employees in accordance with seniority. General Counsel
further contends that the earlier alleged 8(a)(1) threats, in-
terrogations, and acts of surveillance indicated an attitude
which further bolsters his conclusion that the Respondent's
negotiations were conducted in bad faith and that the Re-
spondent had no intention of reaching an agreement with
the Union.
The Respondent, on the other hand, as noted above, de-
nied the commission of any unfair labor practices in the
sense that none of the alleged violations of interference,
coercion, and restraint occurred, or if the incidents did oc-
cur, they did not occur in the context in which the General
Counsel alleges them to have occurred; they do not indi-
cate a refusal to bargain or a state of mind in which the
Respondent intended not to reach an agreement with the
Union. Respondent points out that it did discuss, on July
24 and 25, the Union's proposal for union security and
checkoff and that Conner explained fully why the Respon-
dent could not accept and adopt the proposal for these two
clauses. Respondent further contends that it did not en-
gage in dilatory tactics and that if any delays occurred,
they occurred through misunderstanding on Respondent's
part of its obligations and not because of any intention by
Respondent to thwart bargaining. With regard to the com-
plaint allegations that the Respondent refused to bargain
with regard to the terminations of the five employees, as set
forth heretofore, the Respondent argues that these termina-
tions were discharges for cause and were not mere layoffs.
Therefore, the Respondent was not under obligation to
bargain with the Union concerning them.
I have heretofore found that Conner, on April 8, 1975,
on his visit to the Indianapolis facility did count the em-
ployees, state that now he knew how many people he
would have to replace and, furthermore, did initially
threaten the employees with discharge if they wore buttons
on their uniforms. However, on that same day, after con-
sulting with Board Agent Miller, Conner explained to the
employees that they were allowed to wear the buttons pro-
vided they did not cover the Respondent' s insignia on the
said uniforms. I find and conclude that by these initial
actions the Respondent's general manager and policy setter
for the Indianapolis facility did actually engage in threats
which constituted interference, coercion , and restraint in
violation of Section 8(a)(1). Moreover, by former Supervi-
sor Humphrey's own admission, she was sent by Ragland
in May, at the time that former employee Jackson went to
the Board's office to file a charge, for the purpose of check-
ing upon Jackson and to determine whether Jackson was,
in fact, in the Board's offices on the second floor of the
facility. This constituted unlawful surveillance in violation
of Section 8(a)(1) of the Act.
Additionally, it is apparent from the record that the em-
ployees did not hold Ragland in high regard nor did he, for
the most part, hold a number of the employees in very high
regard as employees. However, it should also be noted, that
as testified to by Conner, the Respondent's payment for
the services rendered to GSA in maintaining the building
and performing janitorial services therein, was based on
awards made by GSA on a month-to-month basis and the
amount awarded depended upon the efficiency of the ser-
vice rendered by the Respondent, as observed by GSA in-
spectors. This, indeed, was an extremely important factor
to the Respondent because the awards made could make or
break the Respondent insofar as profits were concerned
with regard to this particular contract. Accordingly, it can
be safely assumed, that there was resentment among the
Respondent's employees toward Ragland, quite normal
under the circumstances, because these employees were
closely watched and driven hard by Ragland in order to
get the job done efficiently to earn a profitable award. Ac-
cordingly, I find and conclude that much of what Ragland
was suspicious of on the date that he sent Humphrey to
look for Jackson was that Jackson did, indeed, come into
the building to circulate a petition to have him removed.
Ragland, under the circumstances, might well have been
alarmed that Jackson was not only keeping the employees
from their work but was also circulating such petition. But
this suspicion did not excuse Humphrey's surveillance of
Jackson.
RELIABLE MAINTENANCE SALES & SERVICE 591
Furthermore, Ragland did not deny that on three occa-
sions, once in April, once in May, and once in June he
interrogated employees, as set forth above, regarding their
union activities , and, specifically , about attendance at
union meetings . Accordingly , I find and conclude that on
these occasions Ragland did engage in acts of coercion and
restraint, which acts interfered with the employees' Section
7 rights and thereby constituted violations of Section
8(a)(1) of the Act.
However, despite all of the foregoing , the Respondent
did consent and stipulate to an election. This, perhaps, re-
flects that the Respondent was not basically antiunion, but
concerned specifically about how union organization was
going to effect its operations inasmuch as the contract un-
der which the Respondent was engaged by GSA provided
that if any profit was to be made, such profit depended on
the Respondent's performance, and the efficiency rating
periodically received from GSA. Thus, the record reflected
that for the period from February 17 through May 9, a
period of almost 3 months, the entire fee received , in addi-
tion to the Respondent 's actual operating costs, amounted
to only $981.75. This was certainly a very small amount
considering Respondent 's investment in time and effort.
However, it must be remembered that around the first of
April the Respondent hired Ragland as its project manager
in Indianapolis at the building involved and from May 10
through August 17, 1975, the Respondent's efficiency of
operation increased to the point that for a 14-week period,
a little more than 3 months, the Respondent's evaluation
by GSA resulted in an award fee of $6,382.26, a consider-
able increase over the earlier initial period. This, then, re-
flects the efficiency which Ragland was able to generate
among the Respondent's employees and quite possibly re-
sulted in their attitude toward Ragland. The fact that he
checked closely on them, enforced working rules, and per-
haps caused the employees to work harder than they felt
they should have been required to work could well have
caused resentment.
However, General Counsel alleges that Respondent,
nevertheless, engaged in tactics which were dilatory in na-
ture in order not to reach an agreement. As noted above,
shortly after the certification of the Union, a letter was sent
by the Union to the Respondent requesting a date for bar-
gaining to which the Respondent replied almost immedi-
ately that the Union should bargain with GSA inasmuch as
this was a cost rated contract. I cannot conclude that this
in and of itself was a dilatory tactic. It could well have
been an answer which arose out of Respondent's own igno-
rance of its duties under the Act or a miscalculation or
belief on the part of the Respondent that GSA and not the
Respondent was the proper bargaining party. When the
Respondent was reminded in a second letter by the Union
that the Respondent was the party to negotiate the contract
with the Union, the Respondent then almost immediately
sent a response to the effect that the contract did not pro-
vide for reimbursement for the cost of trips to Indianapolis
for the purpose of bargaining, but that Respondent would
be happy to bargain upon its next inspection trip to India-
napolis prior to the end of the calendar year 1975. The
question then becomes whether this was a ruse on the part
of the Respondent or whether the Respondent sincerely
did not believe that there was any immediate necessity on
its part to negotiate a contract inasmuch as the Union rec-
ognized the fact that money, or rather wage rates, could
not be a factor in the bargaining because the wages of the
employees were fixed by the Respondent's contract with
GSA. Thereafter, upon receipt of this second reply from
the Respondent, the Union filed the charge, later with-
drawn, that Respondent was engaging in dilatory tactics.
Upon receiving notice of this charge, the Respondent im-
mediately responded and July 24 was set for a meeting,
which meeting is outlined above.
At the July 24 meeting, the Union, as set forth above,
submitted its proposal in the form of two separate con-
tracts between the Union and employers doing similar
work for other government installations in the Indianapolis
area. It required but a few minutes for Conner, repre-
senting the Respondent at the bargaining table, to approve
virtually the entire contract, with some minor suggestions
with regard to inconsequential language changes, the only
exceptions being the union-security and the checkoff claus-
es contained in these two agreements.
While Conner admitted that he had had prior experience
with another company with regard to union security and
checkoff, and that this experience had not been very satis-
factory, he further explained to Union Representative
Stone and the two committeewomen who accompanied
Stone, Luckett and Johnson, that there was not sufficient
moneys in the contract to warrant the extra expense of
keeping records for union checkoff. He also pointed out
that there was not room on the paychecks for a place not-
ing checkoff. Although it was then demonstrated by Luck-
ett that there was room on the check, nevertheless, there is
no question but that checkoff would have required some
extra bookkeeping on the Respondent's part, which the Re-
spondent, through Conner, fully explained. Conner also ex-
plained that 12 or 13 employees, whom Conner did not
name, told him they did not wish to join the Union under
any circumstances, and would quit if they had to join the
Union and pay dues. Conner told the Union that these
individuals were key employees who performed good work
and whom he could ill afford to lose because, again, the
profit that the Respondent could realize under the GSA
contract depended on the efficiency rating given it on a
monthly basis by GSA.
While it is well established that both union security and
checkoff are mandatory subjects of bargaining, it is also
true that the parties, including Stone, were uncertain of this
and again called on Board Agent Miller to give them ad-
vice which Miller wisely refused to do.
By reason of all of the foregoing, I cannot find on the
basis of Conner's bargaining attitude on July 24 and 25
that he engaged in surface bargaining or refused to consent
to union security and checkoff as a dilatory tactic, or that
the bargaining generally was not conducted in good faith
with the intention of not reaching an agreement with the
Union. As noted, it took but a few moments, according to
the General Counsel's own witnesses, for Conner to agree
to the entire union proposal with exception of the union-
security clause and the checkoff clause. While I accept the
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony that Conner indicated that if there were any fur-
ther bargaining meetings they would have to be held in
Texas rather than Indianapolis, and while I do not doubt
that Conner was not enamored of the idea of dealing with
the Union as reflected in his remark to Luckett regarding
her employment, under all of the circumstances, I do not
find that his bargaining conduct on the 2 days of July 24
and 25, standing alone, constituted a refusal to bargain in
violation of Section 8(d) and 8(a)(5) of the Act.
In arriving at this conclusion I have not failed to consid-
er Conner's bargaining attitude and conduct in the light of
his unlawful conduct at the outset of the Union's organiza-
tional drive as heretofore found. But, as noted above,
thereafter Respondent did consent to the election which
the Union won. Nor do I find that Conner' s original un-
lawful conduct was so egregious that it necessarily reflect-
ed an unwillingness to reach any agreement with the Union
or that the earlier conduct necessarily stamped as decep-
tion for the purpose delay Conner's refusal to consent to
the proposed union-security and checkoff clauses.
However, whether the Respondent thereafter engaged in
such dilatory tactics as to indicate an intention of not en-
tering into any contract is another issue which must be
resolved. As noted above, after the close of the bargaining
meeting which occurred on the morning of July 25, Conner
informed Stone that if she would draft a revised union-
security provision in the nature of maintenance of mem-
bership he would consider such provision and that she
should mail such proposal to him at his Texas office. Pur-
suant to this offer on the part of the Respondent, Stone
thereafter did draft a revised union-security clause which
constituted, in effect, a combined maintenance-of-mem-
bership and 30-day union-security requirement on the part
of new employees, but excused from union membership
and payment of dues any employees who were not mem-
bers of the Union on the date of the contract. However,
before mailing this amended proposal to the Respondent
on August 8 Stone, on behalf of the Union, on August 6,
filed the charge in Case 25-CA-7268 alleging dilatory tac-
tics and bad-faith bargaining in the refusal on the part of
the Respondent to agree to union security and checkoff in
order to curtail bargaining. While there was nothing im-
proper in a legal sense in the filing of this charge and while
it is true that the Union may have had cause to believe that
Conner had engaged in unlawful conduct in telling Luckett
that he would not have hired her had he known of her prior
union activity, it would seem that the accusation that the
Respondent had refused to bargain in good faith because
of its refusal to agree to union security and checkoff under
the circumstances heretofore related, was, I find, tanta-
mount to playing a cat and mouse game, and, at least,
reflected an attitude on the part of the Union that failure
to consent to 100 percent of its proposal constituted bad-
faith bargaining.
Possibly as a result of the filing of this charge, the Re-
spondent failed in any immediate sense to reply to the
Union's proposal for a revised maintenance-of-member-
ship clause. However, as heretofore set forth, on August 15,
1975, Conner, on behalf of the Respondent, addressed a
lengthy letter to Board Agent David Miller, stating, in re-
ply to the notice of the filing of the charge in Case 25-CA-
7268 that he, Conner, had made every effort to come to an
agreement to initiate a workable union contract covering
the employees at the Indianapolis Federal building. He re-
cited the 7-1/2 hours of continuous bargaining which took
place on July 24 and the 1-hour meeting on July 25 and
reminded Miller that with regard to the union security and
checkoff the parties had asked Miller whether this was a
mandatory subject of bargaining and that Conner, at least,
was under the impression that they were not mandatory.
Conner further informed Miller despite this he still dis-
cussed back and forth the various possibilities with regard
to the subjects of bargaining and did, in fact, set forth fully
the reasons why he could not agree to the proposed union-
security and checkoff clauses. He stated, I find truthfully,
that he did not immediately refuse to consider checkoff or
union security but merely protested and agreed almost im-
mediately to all other items. He further stated that he had
received the modified clause in the mail on August 11 and
that the modification was not acceptable to the Respon-
dent. Conner further stated in the letter of August 15 that
he felt that the Respondent was being harassed unneces-
sarily, in view of the fact that the Respondent had already
agreed to 90 percent of the Union's proposal and "appar-
ently the Union's opinion is that unless we agree 100 per-
cent, we are not bargaining in good faith."
It should be noted that no complaint was issued on the
charge in Case 25-CA-7268 until after the reduction in
force occurred on September 25, under circumstances
above and hereinafter related. Undoubtedly, the issuance
of the complaint in Case 25-CA-7003, 7084, and 7268 did
spur the Respondent into further action. On October 7,
1975, Respondent's attorney addressed a letter to the
Union, attention Sue Stone, in which Respondent's counsel
enclosed a copy of Respondent's answer to the aforesaid
complaint and explained that the differences between the
parties may have been somewhat exaggerated and that an
acceptable contract would not be elusive. Counsel ex-
plained that the Respondent had 51 contracts spread over
the entire country and that it was quite difficult for the
Respondent to attend each location at the will of any par-
ticular party. He suggested, therefore, that a meeting be
held in Indianapolis on October 20, 1975. After a response,
on October 10, 1975, by Stone, to Respondent's counsel,
that October 20 or 21 would be satisfactory, a meeting was
finally held on or about October 20, 1975, and agreement
was reached in which the Respondent fully capitulated, as
noted above, and agreed to the original checkoff and
union-security provisions submitted in the first instance by
the Union on July 24. Accordingly, a contract was thereaf-
ter drafted and signed containing all the provisions re-
quested by the Union, which contract was made effective
November 1, 1975. Accordingly, at the time of the hearing
herein, the Union and the Respondent were operating un-
der a full collective-bargaining agreement.
As noted above, in late August the Respondent was noti-
fied by GSA that it had to reduce its man hours drastically.
In accordance with this, Conner informed Ragland, in
writing, about the reduction and instructed Ragland to ef-
fectuate the reduction in force in accordance with senior-
ity. Before discussing the merits of the actual terminations
of employment of each of the five individuals alleged to
RELIABLE MAINTENANCE SALES & SERVICE
have been laid off out of seniority, and therefore in viola-
tion of the previously agreed-upon method of layoff, it
would be well to note that in addition to the seniority lay-
off provision of the Union's proposed contract, to which
Conner on behalf of the Respondent agreed on July 24 and
25, the proposed agreement also contained a provision for
discharge without notice to the Union which stated in ef-
fect that no employee should be discharged without just
cause , and that the employer may discharge an employee
without notice for, among other things, physical violence,
immoral conduct, violation of government security rules,
and intoxication. The said article of the same proposed
contract further provided that in cases where an employer
is not performing properly the Union should be notified. It
also provided that upon a discharge for cause the steward
should be advised of such action at the time the action was
to be taken or as soon thereafter as the steward could be
reached for such notification, and that the employer would
notify the Union of all terminations or discharges and the
reasons therefore at the time of the notification to the em-
ployees.
It would seem that inasmuch as the Respondent agreed
to everything in the contract as proposed by the Union on
July 24, except union security and checkoff, that its agree-
ment to the seniority provisions also included agreement to
the discharge provisions. Accordingly, the terminations on
September 25 of the five employees, above named, must be
regarded in the context of these contractual provisions in
order to determine whether the terminations constituted
unilateral changes in working conditions in violation, as
alleged, of Section 8(a)(5) of the Act.
It is unnecessary at this point to again set forth in detail
the testimony of the five individuals who were terminated
on September 25 and the testimony of Ragland who made
the determination to terminate them. It must be noted,
however, that were it not for the admissions made by the
employees in their testimony with regard to alleged viola-
tions of company rules and regulations, I would tend to
discredit all, or most, of Ragland's testimony because it
was in great part ambiguous and, to a lesser extent, incon-
sistent . However, in the individual cases, it is undoubtedly
true that each employee terminated, to a certain extent,
engaged at one time or another close to the date of Septem-
ber 25 in conduct which would have warranted discipline
or, indeed, discharge. Additionally, it is apparent that, at
some time before the actual terminations , Ragland did
speak to Luckett, who he did not know was a union stew-
ard, but did know was a bargaining representative of the
Union, and did inform Luckett that he desired her to assist
him to get rid of the people who Ragland determined were
not doing their jobs. Although Ragland did not mention
specifically the names of any individuals at that time, it
must be concluded that Ragland spoke to Luckett, a repre-
sentative of the Union, and that this, at least, put the
Union on notice that a termination of inefficient individu-
als, or at least individuals who were not performing proper-
ly, was being contemplated
We come now, therefore, to the actual date of the dis-
charges, September 25. I have heretofore determined that
Luckett was, indeed, present at the time of the termina-
tions, and that she saw and heard what occurred. As noted
593
above, Ann Vickers, whom I credit completely because she
left Respondent's employ voluntarily had no reason to fear
reprisal from the Respondent and had no ax to grind with
regard to the events herein, testified that Luckett was, in-
deed, present. Therefore, I conclude that Luckett, again,
had full knowledge as a representative of the Union of
what was occurring at that time. Furthermore, although I
have not completely credited Ragland in other respects, I
credit him to the effect that although he did not know
whether Luckett was a steward at the time, he did know
that she was an active representative of the Union because
of her activities as a negotiator on behalf of the Union.
Inexplicably, the record does not reflect why Luckett did
not report either the earlier notice of contemplated dis-
charge or the events of the discharge to union officials,
specifically to Stone; or, if she did make a report to the
Union, why the Union took no action.
Although counsel for the General Counsel contends that
the alleged breaches of Respondent's rules and Re-
spondent's working regulations were denied by all of the
employees, at least as of the dates on which they were al-
leged to have occurred by Ragland, I find and conclude
that this summary of the testimony is not exact. For in-
stance, in the case of employee Taylor, she denied that she
was sleeping in the restroom on September 24. However,
she admitted that she had been ill that day, had gone to the
restroom and vomited, and then had remained with her
head on the sink for some time until she had felt better.
This incident was undoubtedly reported to Ragland. It is
true that, at the exit interview of Taylor, Ragland accused
her of smoking at an improper time and place, and Taylor
denied that she smoked. Nevertheless, I find and conclude
that by not reporting her illness to the Respondent Taylor
did, indeed, violate a published working rule mentioned
earlier in this Decision. Also, that employees Sharp and
Evans were twice placed on probation for fighting was ad-
mitted by both. While it is true that they were not immedi-
ately discharged on such occasions, and were placed on
probation, the fact that it was reported to Ragland that
they were smoking in an unauthorized place the day before
their discharge would indicate that Ragland at this junc-
ture felt that he had given these employees sufficient op-
portunity to correct the various defaults in their behavior
and that the report of their smoking was sufficient for him
to discharge them for cause. Bertram admitted that on the
day of the election in May she was drunk and disorderly.
However, Bertram denied she was smoking in an unas-
signed smoking area at an improper time, which was the
reason given her for her discharge. Ayers denied that she
was smoking in the restroom on September 24 out of her
work area. However, Ragland told each of these five em-
ployees the reasons they were discharged, including Ayers'
smoking.
There is no question that the Respondent 's rules re-
quired that the employees smoke only at their break pen-
ods and in places which were set forth for them to smoke.
The fact that Supervisor Warren might have smoked out of
turn and in an improper place along with some of the other
employees does not necessarily indicate condonation on
the part of Ragland or any other Respondent official.
There is no showing in the record or any testimony to the
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
effect that Warren's smoking at an unauthorized time or
place did not result in Warren being warned or repri-
manded. In fact, it is very possible that Warren reported
the improper smoking on the part of the other employees
to Ragland and at the same time attempted to hide from
Ragland the fact that she, too, was improperly smoking.
The complaint herein does not allege these discharges to
have been antiunion discharges in violation of Section
8(a)(3) of the Act. Accordingly, the General Counsel does
not and cannot argue that the reasons given for the dis-
charges were pretextual in the sense that the true reason for
the discharges was to discourage membership in the Union.
Rather, the General Counsel's theory would seem to be
that the reasons given for the discharges were pretextual in
order for the Respondent to rid itself of employees whom
Respondent considered undesirable because they were in-
efficient. Counsel for the General Counsel argues that con-
tracts, such as the one contemplated by the parties hereto,
provide that discharges must be for cause and layoffs must
be based on seniority; that an employer can, by pure fiat,
determine whether a termination is to be viewed as a layoff
or a discharge. While this may be true to an extent, the
contract herein also provides for the employees to report to
their union in the event that they think that they were im-
properly discharged so that the Union can investigate the
matter. In this case this was not done. Rather, employee
Sharp eventually filed a charge alleging violations of Sec-
tion 8(a)(5) and (1) of the Act, the theory of the General
Counsel being that this was in derogation of the contract
and therefore a change in working conditions made unilat-
erally in violation of Section 8(a)(5) of the Act.
Counsel for General Counsel seeks to analogize the facts
of the instant case to the foregoing theory of violative dis-
charge by arguing that the reasons advanced by Respon-
dent for the claimed discharges were pretextual and were
utilized in an attempt to conceal the true reasons for termi-
nation; namely, to lay off out of seniority individuals who
were, in the opinion of Ragland, less efficient than other,
more junior employees, thereby unilaterally changing
agreed-upon terms and conditions of employment, which
unilateral action constituted refusal to bargain violative of
Section 8(a)(5) of the Act.
I have heretofore disposed of the contention that the
Union was not apprised of contemplated discharges, hav-
ing found that Luckett, by her own admission, was told by
Ragland that he was going to get rid of people he thought
were not doing theirjobs. Had Luckett not been so notified
by Ragland, the failure to notify might have constituted
some evidence that a unilateral change in working condi-
tions was being contemplated. Additionally, it has been
determined that Luckett was, indeed, present at the dis-
charges. Finally, although the Respondent did, in a sense,
tolerate without discharge earlier deficiencies and rule
breaking on the part of the five individuals involved, I con-
clude that on September 24 he did discover two employees,
Evans and Bertram seated and apparently to him, smoking
in a prohibited area at a nonbreaktime. While he might
have been mistaken in his conclusion that he thought Ber-
tram was smoking, he nevertheless came to that conclusion
understandably. He did not have to be correct in his con-
clusion so long as he believed it to be true.
With regard to the other three employees terminated,
Ayers, Taylor, and Sharp, it was reported to him that they
were smoking at nonbreaktime in the bathroom. Although
Ayers and Sharp denied that they were smoking at the time
of which they were accused, and Taylor denied that she
ever smoked at all, nevertheless, three things stand out un-
denied. One is that Taylor was in the washroom ill at the
time reported. The second is that Ayers and Sharp did not
deny they were in the bathroom at the time they were ac-
cused by Ragland of wrongfully smoking. The third matter
is that Ragland's testimony that he investigated the bath-
room immediately after the smoking allegedly occurred
and found it unkempt and with no towels remains uncon-
troverted.
Accordingly, even though Ragland might have tolerated
rule breaking for sometime and even though he had placed
Evans and Sharp on probation rather than discharging
them only a week or two before, it is reasonable, under all
the circumstances, to conclude that mistaken, or not, Rag-
land discharged these individuals for cause on September
25 and did not consider them part of the layoff.
Additionally, although Ragland informed Conner on
September 29 that "fortunately" he discovered the women
smoking and sleeping in the third floor restroom at an "op-
portune time," this does not necessarily mean that he
seized on these incidents to lay off these individuals out of
seniority. It could equally denote that he found it his duty
to discharge these employees under all the circumstances,
and in view of their prior record of warnings and being
placed on probation, that the discharges were fully war-
ranted and would have been made absent the necessity for
a layoff.
Accordingly, I find and conclude that as to this aspect of
the complaint, the General Counsel has failed to prove the
alleged violations by a preponderance of the credible evi-
dence.12
However, there is an additional allegation in the com-
plaint, by way of an amendment made at the outset of the
hearing, to the effect that Ruth Warren, deliberately pro-
ceeded to the Board Office after the discharges to check on
employees to see if they were going to file charges and that
she was sent by Ragland. That she was observed doing this
by employee Evans was not denied by Warren. As a matter
of fact, Warren did not deny that she asked Evans what
Evans was doing there and told Evans that Ragland want-
ed to know what Evans was doing in the Board Office on
September 25. Accordingly, I find and conclude that this
incident did occur and that Respondent thereby not only
unlawfully interrogated Evans with regard to the protected
activity of going to the Board office with regard to her
discharge, but also the Respondent conducted unlawful
surveillance of Evans in this respect, which surveillance
also constituted interference, coercion, and restraint in vio-
lation of Section 8(a)(1) of the Act
12 Although I cannot find that the fact that the charge as to the alleged
wrongful layoffs was filed by an individual rather than the Union consti-
tutes any evidence one way or the other, I conclude that the Union 's offi-
cals did learn of the discharges at some time before the filing of the charge,
and yet neither filed a charge nor attempted to contact the Respondent to
discuss the matter
RELIABLE MAINTENANCE SALES & SERVICE 595
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described 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.
V. THE REMEDY
Having found, as set forth above, that the Respondent
has engaged in certain unfair labor practices, it will be rec-
ommended that it cease and desist therefrom and take cer-
tain affirmative action set forth below designed to effectu-
ate the policies of the Act.
It having been found that Respondent by threats, inter-
rogations, and surveillance has interfered with, restrained,
and coerced employees in violation of Section 8(a)(1) of
the Act, I shall recommend that Respondent cease and
desist therefrom.
Upon the basis of the foregoing findings of fact and con-
clusions of law and upon the entire record in this case, I
make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By interfering with , restraining , and coercing employ-
ees in the exercise of rights guaranteed in Section 7 of the
Act, Respondent has engaged in and is engaging 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 Sec-
tion 2(6) and (7) of the Act.
5. The Respondent has not engaged in dilatory tactics or
otherwise refused to bargain in good faith in violation of
Section 8 (a)(5) and (1) of the Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record , and pursuant to Section 10(b) of
the Act, I hereby issue the following recommended:
ORDER 13
Respondent, Reliable Maintenance Sales & Service, Inc.,
Indianapolis, Indiana, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Interrogating employees concerning their union ac-
tivities; threatening employees with reprisals including
threats to close the Respondent's facility if its employees
select a union to become their bargaining representative;
threatening employees with discharge for wearing union
buttons on their uniforms; and engaging in acts of surveil-
lance and giving employees the impression of surveillance
of the employees' union activities.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
rights to form, loin, assist, or be represented by Local 551,
Service Employees International Union, AFL-CIO, or any
other labor organization, to bargain collectively through
representatives of their own choosing or to engage in other
concerted activity for the purpose of collective bargaining,
or other mutual aid or protection, or to refrain from any
and all such activity except to the extent that such rights
may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as au-
thorized by Section 8(a)(3) of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Post at its facility at the Federal building located at
575 North Pennsylvania Street, Indianapolis, Indiana, at
places where notices to employees are customarily posted,
copies of the notice attached hereto marked "Appendix." 14
Copies of said notice, on forms provided by the Regional
Director for Region 25, after being duly signed by
Respondent's representative, shall be posted by Respon-
dent, 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 Re-
spondent to ensure that said materials are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director for Region 25, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein be, and
it hereby is, dismissed insofar as it alleges violations of the
Act not found herein.
17 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
14 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"