Ship Shape Maintenance Co., Inc.

National Labor Relations Board - Board Decisions

Mar 29, 1971

189 N.L.R.B. 395 (N.L.R.B. 1971)

SHIP SHAPE MAINTENANCE COMPANY
Ship Shape Maintenance Co., Inc . and Service
Employees International Union , Local 536, AFL-
CIO. Cases 5-CA-4631 and 5-RC-7046
March 29, 1971
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND KENNEDY
On September 18,1970, Trial Examiner Benjamin K.
Blackburn issued his Decision in the above-entitled
consolidated proceeding, finding that Respondent
had engaged in certain unfair labor practices alleged
in the complaint and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision.
He further found that Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint and recommended that such allegations be
dismissed. The Trial Examiner also found that certain
conduct of Respondent had interfered with the
election held on January 9, 1970, in Case 5-RC-7046
and recommended that the election be set aside and
that Case 5-RC-7046 be thereafter closed by the
National Labor Relations Board in a manner consist-
ent with the Trial Examiner's recommended remedy
in Case 5-CA-463 1. Thereafter, the General Counsel
and Respondent filed exceptions to the Trial Examin-
er's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed.' The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in these cases, and hereby adopts the
findings,2 conclusions,3 and recommendations of the
Trial Examiner, except as modified below.
I In view of our determinations hereafter as to the authenticity of
certain union authorization cards which the Trial Examiner did not
consider properly authenticated, we find it unnecessary to pass upon the
question of whether the Trial Examiner improperly invoked the
sequestration rule with respect to the testimony of certain witnesses and
thereafter rejected the General Counsel 's offer of proof to establish the
authenticity of their cards
2 The general Counsel excepts to certain of the Trial Examiner's
credibility resolutions It is the Board's established policy, however, not to
overrule a Trial Examiner 's credibility findings unless , as is not the case
here , the preponderance of all the relevant evidence convinces us that they
are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188
F 2d 362 (C A 3)
3 The Trial Examiner recommended the issuance of a bargaining order
to remedy Respondent 's violations of Section 8(a)(3) and ( 1) despite the
fact that he found that the Union did not have valid authorization cards
from a majority of Respondent's employees in the bargaining unit on the
date of the Union's demand for recognition In those circumstances, such
order would not be appropriate Loray Corp, 184 NLRB No 57 As noted
395
The Trial Examiner rejected three union authoriza-
tion cards bearing the names of Albert Burger,
Beatrice Nails, and Rickey Garrett. To establish the
validity of these cards the General Counsel presented
two witnesses, Leslie Lewis and Willis Brooks,
business representatives and organizers for the Union.
They testified as to the general procedure by which
the Union acquired union authorization cards from
Respondent's employees. Lewis stated that he solicit-
ed authorization cards on the evenings of October 22
and 23, 1969.4 On October 22 he talked to Beatrice
Nails and Albert Burger about the Union and they
both filled out union cards and handed them back to
him.5 Brooks testified that he was soliciting authoriza-
tion cards for about 2 to 3 weeks beginning around
October 15 at Respondent's place of business and that
sometime between October 21 and 23 he explained to
Rickey Garrett that the Union was attempting to
organize Respondent's employees and asked him if he
would sign an application with the Union. He agreed
to do so and signed the card in Brooks' presence. On
these facts we find, contrary to the Trial Examiner,
that the General Counsel satisfied his burden of
proving the authenticity of the cards.6 We therefore
find that the General Counsel has sufficiently met his
burden of authentication with respect to 17 cards in
evidence, 2 more than enough to establish majority.
Accordingly, we conclude that the Union represented
a majority of the employees in an appropriate unit on
October 24, the date of the Union's demand for
recognition.
It is now settled that serious illegal activity accom-
panying an employer's refusal to grant recognition
and to bargain with the majority representative of its
employees destroys the necessary conditions for the
holding of a free and fair election .? Here , as the Trial
Examiner found and we concur, Respondent inten-
tionally turned the Board' s election process into a
travesty and deprived employees of their right to
determine for themselves whether they wanted to be
represented by the Union in their dealing with
heremabove, we are directing Respondent to bargain with the Union, but
we predicate our order on a finding that the Union did in fact represent a
majonty of the employees on the date of its demand for recognition and
that Respondent's pervasive unfair labor practices made such bargaining
order necessary
a All dates hereinafter are in 1969.
s We find that the cards of Beatrice Nails and Albert Burger are valid
despite the fact that both cards do not contain Respondent's name as the
name of the employer and that Burger's card is undated , as the record is
clear that each of them placed his name on the card at a time when he was
employed by Respondent at 500 -550 12th Street , SW, Washington, D C,
in response to the solicitation of one of the Union 's organizers, that Burger
signed his card on October 22, 2 days before the Union 's demand for
recognition , and that both Nails and Burger intended to disignate the
Union as their collective-bargaining representative in their relations with
Respondent
6 Don the Beachcomber, 163 NLRB 275; Northwest Engineering
Company, 158 NLRB 624
r NLRB v Gissel Packing Co, Inc, 395 U S 575
189 NLRB No. 58
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent by its complete elimination of all eligible
voters from the unit through its transfers of 10 unit
employees a week before the scheduled Board
election.
The foregoing unlawful conduct not only precluded
the holding of a fair election in the representation
proceeding the Union had instituted, but, in our
judgment, was of a sufficiently pervasive and exten-
sive character, considering that it totally removed all
eligible employees from the unit, to have likely served
its intended purpose of undermining the Union's
preexisting majority. In these circumstances we
believe that restoration of the status quo ante is
required in order to vindicate employee rights and
prevent Respondent from profiting from its own
unfair labor practices. We are further of the opinion
that the lingering effects of Respondent's past
coercive conduct render uncertain the possibility that
traditional remedies can ensure a fair election. We
therefore conclude, on balance, that the Union's
majority card designations obtained before the unfair
labor practices occurred provide a more reliable test
of employee representation desires, and better protect
employee rights, than would a rerun election. Accord-
ingly, we think that it is more appropriate to protect
employee interests by directing Respondent to recog-
nize and bargain with their designated representative.
In view of the foregoing, and on the record as a
whole, we find that by refusing to recognize and
bargain with the Union and engaging in extensive
unfair labor practices Respondent violated Section
8(a)(5) and (1) of the Act, and that to effectuate the
policies of the Act a bargaining order is required to
remedy its refusal to bargain as well as its other unfair
labor practices.8
THE REMEDY
We have found in agreement with the Trial
Examiner that Respondent engaged in conduct
violative of Section 8(a)(3) and (1) of the Act and
accordingly we adopt his remedial recommendations
in that regard. However, we have found, contrary to
the Trial Examiner, that the Union in fact represent-
ed a majority of the employees in the appropriate
unit and that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(5) and (1)
of the Act. We shall therefore direct the Respondent
to cease and desist from this unlawful conduct and
shall direct it to take certain affirmative action. In
addition, we shall now dismiss the petition in Case 5-
RC-7046 and vacate all proceedings in connection
therewith.
Upon the basis of the foregoing findings of fact
and upon the record as a whole, we make the
following-
CONCLUSIONS OF LAW
I Ship Shape Maintenance Co., Inc., is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act
2. Service Employees International Union, Local
536, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3 By transferring Mazie Barnes, Jessie Berger,
Bertha Booker, Shirley Grady, Teddy Henderson,
Willie Lewis. Jr, Melvina Malone, Laura Phillips,
Shirley Twyman, and Hessie Woodard on January 2,
1970, in order to remove all eligible voters from the
unit and thus preclude the holding of a Board
election in Case 5-RC-7046 on January 9, 1970,
Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the
Act
By refusing on and after October 24, 1969, to
recognize and bargain with the Union as the repre-
sentative of the employees in the unit referred to in
paragraph 7, below, Respondent violated Section
8(a)(5) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
6. The allegation of the complaint that Respon-
dent violated Section 8(a)(1) of the Act on or about
October 22, 1969, by Supervisor King's taking
employees' union authorization cards and destroying
them in the presence of employees has not been
sustained.
7. All employees employed by Respondent at its
500-550 12th Street, S.W., Washington, D.C., loca-
tion working as maids, porter, janitors, charwomen,
waxers, and buffers, but exluding office clerical
employees, guards, and supervisors as defined in the
Act, constitute a unit appropriate for the purpose of
collective bargaining within the meaning of Section
9(b) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent, Ship
Shape Maintenance Co., Inc., its officers, agents,
successors, and assigns, shall:
1 Cease and desist from:
(a) Discriminating against its employees in order to
discourage membership in or activities on behalf of
Service Employees International Union, Local 536,
AFL-CIO, or any other labor organization.
(b) Refusing to bargain collectively with Service
Employees International Union, Local 536,
AFL-CIO, as the exclusive collective-bargaining
representative of its employees in the appropriate unit
described above under Conclusions of Law.
(c) In any manner interfering with, restraining, or
coercing employees in the exercise of rights guaran-
teed in Section 7 of the Act.
8 /bed
SHIP SHAPE MAINTENANCE COMPANY
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to any of the following named persons who
are still in Respondent 's employ immediate transfer in
their present job classifications and at their present
rates of pay from the building in which they are
presently working to 500-550 12th Street, SW.,
Washington , D.C., discharging , if necessary , employ-
ees presently employed at 500-550 12th Street, SW.,
Washington , D.C., to make room for them: Mazie
Barnes, Jessie Berger, Willie Lewis , Jr., Melvina
Malone, Laura Phillips, and Shirley Twyman.
(b) Make Mazie Barnes , Jessie Berger , Shirley
Grady, Willie Lewis, Jr., Melvina Malone, Laura
Phillips , Shirley Twyman, and Hessie Woodard whole
for any loss of pay suffered as a result of the
discrimination against them in the manner set forth in
the section of the Trial Examiner's Decision entitled
"The Remedy."
(c) Upon request , bargain collectively with Service
Employees International Union, Local 536,
AFL-CIO, as the exclusive collective -bargaining
representative of its employees in the appropriate unit
described above under Conclusions of Law, with
respect to rates of pay , wages, hours of employment,
and other terms and conditions of employment.
(d) Preserve and, upon request , make available to
the Board or its agents , for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(e) Post at its approximately 35 locations in or near
Washington , D.C., copies of the attached notice
marked "Appendix".9 Copies of said notice, on forms
provided by the Regional Director for Region 5, after
being duly signed by Respondent ' s representative,
shall be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days
thereafter , in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
IT IS FURTHER ORDERED the complaint be dismissed
insofar as it alleges that Respondent violated Section
8(a)(1) of the Act on or about October 22, 1969, by
9 In the event that this 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 be
changed to read "POSTED PURSUANT TO A JUDGMENT OF THE
UNITED STATES COURT OF APPEALS ENFORCING AN ORDER
OF THE NATIONAL LABOR RELATIONS BOARD"
397
Supervisor Woodrow King's taking employees' union
authorization cards and destroying them in the
presence of employees.
IS IT FURTHER ORDERED that the petition in Case
5-RC-7046 be dismissed and all proceedings there-
with be vacated.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all employees
these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other aid or protection
To refrain from any or all of these things.
WE WILL NOT discriminate against you in order
to discourage membership in or activities on
behalf of Service Employees International Union,
Local 536, AFL-CIO, or any other labor organiza-
tion.
WE WILL NOT refuse to bargain with Service
Employees International Union, Local 536,
AFL-CIO, as the exclusive collective-bargaining
representative of our employees in the appropriate
bargaining unit which is:
All employees employed by us at our 500-550
12th Street, SW., Washington, D.C., location
working as maids, porter, janitors, charwom-
en, waxers, and buffers, but exluding office
clerical employees, guards, and supervisors
as defined in the Act.
WE WILL NOT in any manner interfere with you,
or attempt to restrain or coerce you, in the exercise
of the above rights.
WE WILL immediately offer to transfer Mazie
Barnes, Jessie Berger, Willie Lewis, Jr., Melvina
Malone, Laura Phillips, and Shirley Twyman back
to 500-550 12th Street, SW., Washington, D.C., in
their presentjob classifications and at their present
rates of pay.
WE WILL pay to Mazie Barnes, Jessie Berger,
Shirley Grady, Willie Lewis, Jr., Melvina Malone,
Laura Phillips, Shirley Twyman, and Hessie
Woodard any money they lost as a result of our
discrimination against them with interest at 6
percent per annum.
WE WILL recognize Service Employees Interna-
tional Union, Local 536, AFL-CIO, as the
collective-bargaining representative of our em-
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees in the appropriate bargaining unit de-
scribed above.
WE WILL bargain, on request, with Service
Employees International Union, Local 536,
AFL-CIO, with respect to rates of pay, wages,
hours of employment, and other terms and
conditions of employment, and any agreement we
reach will be put in writing and signed.
All our employees are free to join Service Employ-
ees International Union, Local 536, AFL-CIO, or any
other labor organization.
SHIP SHAPE
MAINTENANCE CO., INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Room 1019, Federal Building, Charles Center,
Baltimore, Maryland 21201, Telephone
310-962-2822.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Trial Examiner: In Case
5-RC-7046 Service Employees International Union, Local
536, AFL-CIO, referred to herein as the Charging Party or
the Union, filed a petition on October 27, 1969, for an
election among a unit of janitorial workers employed by
Ship Shape Maintenance Co., Inc., referred to herein as
Respondent, at a building located at 500-550 12th Street,
SW., in Washington. The election was held, pursuant to a
Stipulation for Certification upon Consent Election
agreement , on Janury 9, 1970 The Charging Party filed
objections to conduct affecting the results of the election on
January 15, 1970, and the charge in Case 5-CA-4631 on
January 19. The General Counsel of the National Labor
Relations Board, by the Acting Regional Director for
Region 5 (Baltimore, Maryland), issued complaint in Case
5-CA-4631 on May 19, 1970 The complaint alleged the
Respondent had violated Section 8(a)(1), (3), and (5) of the
Act. It contained no allegation of any independent
violation of Section 8(a)(l). On May 20 the Acting Regional
Director issued his report on the objections in Case
5-RC-7046. In it, he noted " . . the similarity of the
objections with the alleged unfair labor practices" and the
fact that ". . complaint has issued in Case No.
5-CA-4631" and ordered consolidation of the two cases
. . for the purpose of hearing , ruling and decision by a
Trial Examiner and that thereafter Case No. 5-RC-7046 be
transferred to and continued before the Board in Washing-
ton."
Respondent duly filed its answer to the complaint in Case
5-CA-463 1, admitting certain allegations therein and
denying others , including the allegation that it had
committed unfair labor practices . Hearing was held before
me, pursuant to due notice , on July 7, 8, 9, and 10, 1 1970, in
Washington , D.C. At the outset of the hearing I granted
Respondent's motion for sequestration of witnesses.
Paragraph XIII of the complaint reads:
, Commencing on or about January 2, 1970, and
continuing through Janury 9, 1970, the Respondent
transferred and terminated all the employees out of the
unit described in par . VI above , for the purpose of
destroying the union's representative status, of interfer-
ing with the employees' rights to self-organization and
to engage in union activity, and for the further purpose
of preventing said employees from voting in the
National Labor Relations Board 's election referred to
in par. XI above.
Consequently , I ruled that any witness whose employment
had been terminated prior to January 2, 1970 , or, at most, a
day or two earlier was not a party to the proceeding and,
therefore , subject to sequestration under the rule. I placed
all parties on notice that, upon proper objection, I would
refuse to permit any such witness to testify if he had been in
the hearing room during the interrogation of another
witness. On the third day of the heanng I granted the
General Counsel's motion to amend the complaint by
adding an allegation of one independent violation of
Section 8(a)(1) of the Act . The principal issues litigated
were:
1. Did Respondent terminate or transfer all the
employees eligible to vote in the January 9 election and, if
so, what was its motive for doing so?
2. Did the Union represent a majority of the employees
on October 24, 1969, the date of its demand for
recognition?
3. Did Supervisor Woodrow King take authorization
cards away from an employee on or about October 22,
1969, thereby causing Respondent to violate Section 8(a)(1)
of the Act?
4. Should the election held on January 9 be set aside
because of Respondent's conduct considered under the first
issue above and/or because it ". . . failed to properly post
the official notice of election thus depriving the employees
[of ] the benefit of information pertaining to the election"?
All parties appeared at the hearing and were given full
opportunity to participate , to adduce relevant evidence, to
examine and cross-examine witnesses , to argue orally, and
to file briefs. Upon the entire record , including briefs filed
by Respondent and the General Counsel, and from my
observation of the demeanor of the witnesses while
testifying under oath, I make the following:
I The cover of the transcript of the fourth day of hearing is hereby
corrected to reflect the correct date of July 10, 1970
SHIP SHAPE MAINTENANCE CO. 399
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent , a Maryland corporation , is engaged in the
business of providing janitorial services in office buildings
in Washington , D.C., where it has some 35 buildings under
contract . In the year immediately preceding issuance of the
complaint in Case 5-CA-463, its gross revenue exceeded
$5,000 . Respondent admitted that the Board hadjurisdiction
over it based on the Board 's plenary jurisdiction in the
Distri ct of Columbia and that $5 ,000 annual gross revenue is
more than de mrmmis. I find , on the basis of these admitted
facts , that Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
the Charging Party is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Status of Marjorie Hyson
At times relevant herein, Respondent supervised its
employees at the 500-550 building through Woodrow King,
an area supervisor who was also responsible for other
buildings, and two leadmen whose responsibilities were
limited to 500-550. It is undisputed that Howard Dunn was
one of the leadmen and a supervisor within the meaning of
the Act. Whether Marjorie Hyson was the other has a
bearing on both the 8(a)(3) and 8(a)(5) issues which follow.
The General Counsel contends she was not. Respondent
contends she was.
Marjorie Hyson was hired on October 20, 1969, at $1.70
an hour and worked at that rate through November 7. On
November 10 her rate was raised to $1.85 an hour and the
time register for the 2-week penod ending November 22
from which I gleaned this fact bears the lettered notation
over her name "lead woman." I credit her testimony that
she had authority to hire, fire, and grant time off to
employees as well as oversee their work. I especially credit
her testimony, unqualified as to dates, that she hired
approximately 12 employees when
Well, a lot of girls would come there looking. Mr.
King had an ad in the paper, a lot of girls would just-a
lot of people would come in looking for work, and we
always needed someone. And whether Mr. King was
there or not, I could put them to words.
Therefore, I find that Marjorie Hyson was promoted to
leadwoman on November 10, 1969, and became a
supervisor within the meaning of the Act at that time. It
follows that she was not a supervisor during the October 20-
23 period when the Union was soliciting authorization
cards, that those cards are in no way tainted by any union
activities she may have engaged in at that time, and that she
must be numbered in the unit on October 24 and her card
counted for the Union as more fully developed in section C,
below. It also follows that she was not eligible to vote in the
January 9 election despite the fact that Respondent
included her name in the Excelsior list,2 as more fully
developed in section B, below.
B. The 8(a)(3) Issue
1. Facts
Respondent obtained the contract to clean the 500-550
building on October 19, 1969 , and began its chores on the
evening of October 20 . A company called Dynaclean had
held the contract before Respondent . The Charging Party
had been involved in a campaign to organize Dynaclean's
employees , going so far as filing a petition for an election
with the Board's Region 5. When Respondent took over the
building, the Charging Party shifted its target and began
soliciting authorization cards from Respondent's employ-
ees. Under date of October 24 the Charging Party sent a
letter to Respondent which claimed representation of a
majority of the employees at the 500-550 building and
demanded recognition . Simultaneously it mailed a petition
for an election to the Regional Office in Baltimore. The
petition was duly received and docketed as Case
5-RC-7046 on October 27, as already noted.
Sometime during November , James Netterstrom, Res-
pondent's president, decided to use the 500 -550 building as
a training ground for new employees before shifting them
to other buildings where Respondent holds cleaning
contracts . Some of those other buildings are organized,
some are not . Of those which are organized , the employees
in some are represented by the Charging Party, in others by
a sister local , Local 82 of the Building Service Employees
International Union , AFL-CIO.
Netterstrom is familiar, through personal experience in
prior cases , with the Board 's election process. When he
received the petition in Case 5-RC-7046 he referred it to
his attorneys . At some point or points between receipt of
the petition and December 2, Netterstrom conferred with
William Shooer , the Board agent to whom Case 5-RC-7046
was assigned . The record is unclear whether this conversa-
tion or these conversations took place at the conference
which resulted in a Stipulation for Certification upon
Consent Election on December 2. However , there is no
dispute that at no time did Netterstrom or his attorneys
reveal to the Board agent or to the Union that Respondent
considered the 500-550 building a training site and that,
consequently, employees would work there only temporari-
ly. Also, Respondent never revealed this decision to the
Charles E. Smith Company , the realty management firm
with which it had contracted to clean 500-550, or to
employees at that building.
On December 2 a stipulation for certification was
executed by the parties . It provided that the payroll period
for eligibility would be the week ending November 22,
1,969. It provided that the election would be held on Friday,
January 9, 1970, from 7: 30 to 8 p .m. in the basement
storeroom at the 500-550 building. It provided that the
election would be held in a unit of
All employees employed by the Employer at its 500-
2 Excelsior Underwear Inc, 156 NLRB 1236 In fact, both Dunn's and
Hyson 's names appear on the list
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
550 12th Street, S.W., Washington, D.C. location
working as maids, porters, janitors, charwomen, waxers
and buffers but excluding office clerical employees,
guards and supervisors as defined in the Act.3
The stipulation for certification was executed by Thomas
Canafax, Jr., an attorney with the firm of Arent, Fox,
Kintner, Plotkin & Kahn, on behalf of Respondent and by
George Tucker, its president, on behalf of the Union. It
was approved by the Regional Director for Region 5 on
December 3. On December 5 Netterstrom mailed to
Shooer the list required under the Board's Excelsior rule. It
purported to list employees of Respondent at 500-550 as of
November 22. It contained the names, addresses, and
social security numbers of 32 persons.
The Board's Regional Office in Baltimore mailed copies
of the official notice of election in Case 5-RC-7046 to
Respondent at the 500-550 building on Tuesday, Decem-
ber 30, 1969. When he received them, Woodrow King
immediately posted two copies on a wall in the storeroom
at 500-550 to which employees report when they check in
and check out.
By January 2 only 16 of the 32 persons named on the
Excelsior list were still employed by Respondent. Of the
other 16, 4 had quit. They, with the last date of employment
indicated for each, are Mary Logan, November 18; 4 Sheila
Young, November 26; Beatrice Nails, December 22; and
Jasper Faggart, December 30. Mrs. Logan quit because she
thought the job entailed too much work for too little pay.
Miss Young went into the hospital on Thanksgiving Day
and never returned to the job thereafter. The record does
not reveal why Miss Nails and Mr. Faggart quit.
Three more of the departed 16 had been discharged by
January 2 They are Wylene Barnes, December 9;
Josephine Brown, December 11; and George Aughtry,
December 29. All three testified. Mr. Aughtry said that he
did not know why he was fired. Mrs. Barnes was not asked
why, nor did she volunteer a reason. Mrs. Brown was asked
what King told her when he discharged her. She replied:
A. Well, the first night, I was sitting in the hall, I
was talking about the union, he didn't say anything. The
next night I come in, he just told me to go downstairs
and get my pay.
Q. Is that all he said?
A. That's all he said.
I do not credit this testimony of Mrs. Brown, considering
her impeached by an affidavit she gave to Shooer on April
27, 1970, in connection with the investigation of the charge
in Case 5-CA-463 1. The affidavit reads, in pertinent part:
I was employed at the GHI Building [i.e., 500-550;
Group Health Insurance is a major tenant] by Ship
Shape Maintenance Co. from early September 1969 to
shortly before Christmas 1969 when I was laid off
It contains no suggestion that Mrs. Brown thought at the
time she gave the affidavit she had been discharged for
talking about the Union. There is no other evidence in the
3 Respondent admits that a unit so described is appropriate for
collective bargaining I so find Respondent employs no office clerical
employees or guards at 500-550
4 Apparently Mrs Logan was included on the Excelsior list by mistake
5 The record does reveal that three other persons who probably should
have been on the Excelsior list, namely Albert Burger, Alfonzo Berger, and
W T Berger, quit on December 24 All three worked on November 13,
record of any discrinunatory motive for the involuntary
terminations of Mr. Aughtry, Mrs. Barnes, or Mrs. Brown,
nor did the General Counsel make any effort to prove such
a motive.
Of the other nine on the Excelsior list who were gone by
January 2, the record only reveals that their employment
terminated without indicating whether they quit or were
fired. They are Calvin Wilbon, Jr., November 26; Martha
Hardy, December 5; Clarcy Newman, December 8;
Patricia Adams, December 9; Willie Mae Kilgore, Decem-
ber 10; Pearlme Wright, December 11; Edward Lowe,
December 17; Carlton Poles, December 17; and Larry
Tillman, December 17.5
The fact that half of the persons named on the Excelsior
list left Respondent's employ in a little over a month is not
significant. The nature of Respondent's business is such
that it always has a high turnover of employees. Respon-
dent employs approximately 600 persons at all its locations.
In 1969 it employed approximately 1,800 different individu-
als, only 300 of whom were relatively permanent employ-
ees. Between January 1 and July 9, 1970, it employed 149
different persons at 500-550.
On the evening of January 2, 1970, 15 of the other 16
persons named on the Excelsior list worked their last shift at
500-550. The record does not reveal whether or not five of
them were told they were being transferred. With respect to
Catherine Nails, Harry Wilbon, and Howard Dunn, the
supervisor, it merely shows that they quit. With respect to
Hattie Mae Davenport and Walter White, it merely shows
that their employment terminated. The other 11 persons on
the Excelsior list were told they were being transferred. Ten
of them were ordered' to report on Monday evening,
January 5, to one or another of Respondent's other
buildings. Bertha Booker's sister got sick over the weekend
and, since Mrs. Booker was unable to find another
babysitter, she did not report as ordered. Teddy Henderson
did not report because he decided not to for reasons
unexplained in the record. January 2 was the last date on
which Mrs. Booker or Mr. Henderson worked for
Respondent at any location. Eight of the other nine
reported to their new assignments on Monday, January 5.
Laura Phillips went to 1329 E Street. Shirley Twyman went
to 1666 Connecticut Avenue. The other six went to 808 17th
Street. They are Mazie Barnes Jessie Berger , Shirley Grady,
Willie Lewis, Jr., Melvina Malone, and Hessie Woodard.
Marjorie Hyson, the supervisor, reported to 808 17th Street,
as ordered, on Wednesday, Janury 7. Thus, she worked her
last shift at 500-550 on Tuesday, January 6. All those
transferred were working for Respondent at their new
locations on January 9. Thereafter, Marjorie Hyson quit
around January 14, Shirley Grady quit at the end of
January, and Hessie Woodard quit in March. Mrs. Woodard
quit because she did not get a promised raise . Neither Mrs.
Hyson nor Miss Grady testified as to her reason for
then did not work again until December I However , when they returned
on December I each picked up the same employee number he had carried
prior to November 13 If it made any difference in this case , which it does
not, I would infer from the employee numbers contained in Respondent's
records that all three were off on November 22, the eligibility date, under
circumstances which gave them a reasonable expectation that they were
returning to work rather than that they were rehired on December I
SHIP SHAPE MAINTENANCE COMPANY
quitting The record does not reveal whether or not the
other six transferees are still employed by Respondent.
Four employees who were not on the Excelsior list
because they were hired after November 22, 1969, also
worked their last shift at 500-550 on January 2. T. Williams
was transferred to 808 17th Street. The employment of J.
Murphy, M. E. Brown, and M. L. Gant terminated. The
record does not reveal why.
Respondent performed its chores at 500-550 during the
week of January 5 with a full complement of approximate-
ly 30 employees, all hired after November 22, 1969, and,
therefore, ineligible to vote in the January 9 election
Barton Widom, the Board agent assigned to conduct the
election, arrived at 500-550 at approximately 7 p.m on
January 9 to run the election. He proceeded to the
basement storage area where the election was to be held. A
few minutes later he was joined by Andrew Levy, an
attorney with the firm of Arent, Fox, Kintner, Plotkin &
Kahn. Levy said there was no point in holding the election,
all the employees had been transferred to other locations,
and, therefore, there were no longer any employees in the
unit who were eligible to vote. Widom replied that he was
going to open the polls at the appointed hour and keep
them open the appointed length of time regardless. Widom
had with him the Excelsior list. He was planning to use it as
the eligibility list in conducting the elction. Levy took the
list from Widom, drew an X through each name on it, and
returned it to Widom. About this time R. J. Meachum, a
representative of the Charging Party, showed up. Widom
explained what had happened. He repeated his intention of
keeping the polls open for the agreed length of time even
though, probably, no one would show up to vote. He
explained to Meachum that, if any of the persons on the
Excelsior list did, in fact, show up, he would be constrained
to let them vote under the challenged ballot procedure
since , technically, they would not be on the eligibility list.
About this time Netterstrom showed up. Meachum
complain (A that the Board's notice of election had not been
posted properly. Widom went with Netterstrom and
Meacham to the storeroom where King had posted the
notices. Widom observed that one of the notices posted by
King; had peeled off the wall to an extent where it was no
longer readable. The other, while also peeling, was still
readable. Widom, Netterstrom, and Meachum returned to
the area where Widom had set up his voting booth. Levy
and Meachum each initialed the Excelsior list to indicate
that they had inspected it.
The hour of 7:30 p.m. having now arrived, Levy,
Netterstrom, and Meachum left the area, and Widom
began his half hour vigil. There was no observer present for
either side. During the time that the poll was open only one
person named on the Excelsior list,s Jessie Berger,
appeared. Widom let her cast a challenged ballot. Two or
three other employees of Respondent came to the polls
Widom ascertained that each had been hired after
November 22, 1969. He pointed out to them that, by the
terms of the agreement between Respondent and the
Union, they were not eligible to vote. They left without
making any further effort to vote. Widom closed the polls
6 Several were in the budding that evening , having come there in the
mistaken belief that they could pick up their paychecks there Netterstrom
401
at 8 p .m. as scheduled . Levy, Netterstrom, and Meachum
returned to the area for the count of the ballots. Widom
issued a tally of ballots which reads:
(All 32 names
crossed off
list by Em-
ployer)
Approximate number of
eligible voters
Void ballots
Votes cast for Petitioner
Votes cast against parti-
cipating labor organiza-
tion
Valid votes counted
Challenged ballots
Valid votes counted plus
challenged ballots
Challenges are sufficient
in number to affect the
result of the election.
2. Analysis and conclusions
0
1
1
At the General Counsel 's request , I have taken official
notice of the decision of Trail Examiner Frederick U. Reel
in Ship Shape Maintenance Co., Inc., Case 5-CA-4630,
issued on July 17, 1970. The General Counsel stresses the
fact that Reel discredited James Netterstrom , Respondent's
president . Respondent argues
In that case , Trial Examiner Frederick U. Reel found
that the Employer , who is also involved in this case, had
recognized . . . Local 82 . . . as the bargaining
representative of custodial employees in various
buildings which the Company services , and that it has
carried on informal and relatively untroubled contract
negotiations with the union 's president for several years.
I do not rely on Reel's decision in any way. I do not
discredit Netterstrom 's testimony . As is developed below,
the fault I find is not with the truth of what Netterstrom
said but with its scope . As to Respondent 's point , the record
made before me is sufficient to establish it without
gave three or four of them a lift to the building where their checks were
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
depending on Reel's finding in a situation unrelated to the
one before me.
As posed by the pleading and developed at the hearing,
the issue in this phase of the case is whether Respondent
discriminated against any employees within the meaning of
the Act by what it did on January 2, 1970. While the
language of paragraph XIII of the complaint, set forth
above, can be read as alleging that Respondent discnmi-
nated against all 30 rank-and-file employees named on the
Excelsior list, the General Counsel has not attempted to
amend paragraph XIII to expand its time reference to cover
events which took place prior to January 2, he has not
challenged Respondent' s assertion that it suffers from a
high turnover of employees, and he has not attempted to
present any evidence of discriminatory motive on Respon-
dent's part for whatever it did prior to January 2. Therefore,
whether the General Counsel has proved that Respondent
violated Section 8(a)(3) of the Act hinges on what the
record reveals about the events of January 2. There can be
no doubt that those events turned the Board's election
process into a travesty and deprived employees of their
right to determine for themselves whether they want to be
represented by a union in their dealings with Respondent.
To base a decision that Respondent is guilty on this fact
alone, however, would make what happened here a per se
violation of the Act. An employer, it is well established, has
a right to treat his employees in any way he chooses for any
reason or even for no reason at all, so long as the reason is
not one of those proscribed by the Act. I am aware of no
modification to that general rule where what the employer
does incidentally results in the removal of eligible voters
from a unit shortly before a Board election,7 even in the
extreme case where, as here, all the voters disappeared. As
the interference with Board election processes cases make
clear,8 the touchstone is not that the Board's processes were
incidentally involved but that the respondent's purpose was
to deter employees from resorting to them, thereby
interfering with their right freely to use the Board's
processes. Thus, for the General Counsel to prevail, the
record must support a finding that Respondent did what it
did on the evening of January 2 in order to keep its
employees from voting on January 9. Since there is no
evidence of why 5 of the 7 on the Excelsior list who worked
their last shift for Respondent that night terminated their
employment, the question boils down to why Respondent,
at the end of the shift, transferred I 1 of the 16 employees
remaining on the Excelsior list when the evening's work
began.
Respondent's explanation for the transfers is that 500-
550 was its training building and the employees were
needed elsewhere. The General Counsel levels his heaviest
attack on this contention. He stresses the fact Netterstrom
never told anyone that 500-550 was a training building. He
points to Netterstrom's admission that Respondent never
had another training building, and to his admission that
Respondent is not doing a very good job of cleaning 500-
550. He ridicules Netterstrom's estimate that 30-60 days
7 Cf The Hertz Corporation , 184 NLRB No 49
8 E g , International Molders' and Allied Workers Union, Local 125,
AFL-CIO (Blackhawk Tanning Co ), 178 NLRB No 25
9 Cf The Black Hawk Corporation v N L R B , 431 F 2d 900
are required to train janitors and maids, 90 days to train
floor cleaners, arguing
Even without prior experience, assuming that
training is necessary, the duration required to train
people for cleaning duties couldn't possibly reach the
proportions as set forth by Netterstrom.
He contends that Respondent's defense is a pretext and
should be totally discredited.
I disagree. As already indicated in the Facts section
above, I find that Netterstrom did, in fact, decide sometime
in November to use 500-550 as a training building even
though he never revealed that decision to anyone involved
in Case 5-RC-7046. In reaching this conclusion I have
especially relied on Netterstrom's uncontroverted testimo-
ny that he chose 500-550 because it contained large
unpartitioned areas which made it easy for supervisors to
keep an eye on what employees were doing. But the fact
that Respondent, did, in fact, consider 500-550 a training
building does not resolve the issue, for the gravamen of the
complaint is not merely that all the eligible voters were
transferred but that they were transferred on the evening of
January 2, just I week before the election was scheduled.
Netterstrom was called as a witness by both the General
Counsel and Respondent. Under direct examination by the
General Counsel he testified that not he but Melvin
Shumaker, Respondent's general manager, operations
manager, and vice president, made the decision to transfer
the employees. Netterstrom stated baldly that those
transferred were needed in other buildings. However, he
testified he had no personal knowledge of why or when
Shumaker made the decision to transfer employees or the
basis on which he selected the ones to leave 500-550. The
General Counsel subpenaed Shumaker. Shumaker did not
appear in response to the subpena. He was not called as a
witness by Respondent. Therefore, the record does not
contain the testimony of the key official with firsthand
knowledge of the specific conditions in other buildings
which required Respondent to transfer so many employees
at one time from 500-550 only 7 days before they were due
to exercise their rights under the Act, or the specific
qualifications, unrelated to his eligibility to vote in the
election, of each of those selected for transfer which caused
Shumaker to pick that employee rather than one ineligible
to vote. Shumaker's failure to appearjustifies the inference
that his testimony would not be favorable to Respondent.
In my view, the General Counsel made out a prima facie
case when he proved the extent and the timing of the
transfers. The burden of going forward with the evidence to
establish its defense then shifted to Respondent. This it
failed to do when it did not call Shumaker to testify.9
I find that Respondent transferred 10 of the 14 eligible
voters 10 on the Excelsior list still in its employ on January 2,
1970, in order to remove all remaining eligible voters from
the unit, thereby precluding the holding of a Board election
in Case 5-RC-7046 on January 9. In drawing this inference
as to Respondent's motive from the record as a whole, I rely
on the large percentage of eligible voters who were
transferred as contrasted with the one ineligible employee
io The other two persons named on the list who were still in
Respondent's employ at 500-550 on that evening were , of course , Howard
Dunn and Marione Hyson , supervisors
SHIP SHAPE MAINTENANCE COMPANY
transferred, the fact that the transfers, thanks to the
unexplained termination of the employment of the other
four eligible voters that same evening, resulted in
elirm nation of all eligible voters from that unit, and the fact
that Netterstrom never revealed his decision to turn 500-
550 into a training building to either the Union or the
Board during the preelection processing of Case
5-RC-7046. I especially rely on Respondent's failure to
present any evidence as to the specific circumstances which
caused it to need so many trained employees at its other
buildings and required it to transfer them on January 2
rather than a week later. By transferring these 10 employees
at that time for that reason, I find, Respondent violated
Section 8(a)(3) and (1) of the Act.
C. The 8(a)(5) Issue
The complaint alleges a violation of Section 8(a)(5) of the
Act on a Gissel 11 theory. In order to prevail under Gissel
the General Counsel must prove (1) that the Union
represented a majority of unit employees on October 24,
1969, the date of its demand for recognition and (2) that
Respondent has committed unfair labor practices so
pervasive as to preclude the likelihood of holding a fair
election. My finding above that Respondent violated
Section 8(a)(3) and (1) of the Act by transferring 10
employees on January 2, 1970, supplies the second element.
The issue considered here is whether the General Counsel
has met his burden with respect to the first.
Respondent's payroll for the period ending Friday,
October 24, 1969, contains 37 names, including that of
Howard Dunn, the admitted supervisor. However, it also
shows that Juanita Brown had filled out a W-4 form in
anticipation of going to work but had not worked at all,
that Gladys Thomas had terminated after working October
20, that Ulyses Garrett and Gregory Ziegler had terminated
after working October 21, that Sylvia Walker had
terminated after working October 22, and that Juanita
Jackson, Della Williams, and Constance Williams had
terminated after working October 23. Subtracting 1
supervisor, I no-show, and 7 terminations prior to October
24 from 37 establishes that there were 28 employees in the
unit on October 24. The payroll also shows that Wylene
Barnes 12 and Rickey Garrett terminated after working the
evening of October 24.
The General Counsel produced 18 authorization cards at
the hearing. One bears the name of Della Williams and is
dated October 23, 1969. It cannot be counted toward the
Union's majority since Mrs. Williams terminated her
employment the same night she signed the card and was
not, therefore, in the unit on the crucial date.
The other 17 cards all bear the names of employees in the
unit on October 24. They are all dated October 21, 22, or 23,
1969, with the exception of the cards bearing the names
Albert Burger and Teddy Henderson. Burger's card is
undated. It was not properly authenticated and is in the
rejected exhibit file for reasons discussed in detail below.
" NLRB v Gissel Packing Co, 395 U S 575
12 This is the same Wylene Barnes whose name appears on the Excelsior
list The name is entered as "N Barnes" on the list but there can be no
doubt the N is a typographical error since the social security number of
the Excelsior list is the same as the social security number on Mrs Barnes'
403
Henderson's card bears the date October 10, 1969.
Henderson signed the card while working for Respondent.
He began working for Respondent on October 21. He did
not work for Dynaclean, Respondent's predecessor at the
500-550 building. Therefore, I find that the date of October
10 which it bears was written in error, that Henderson
actually signed it on October 21, 22, or 23, and that it is
countable toward the Union's majority on October 24.
The cards produced by the General Counsel are not
models of precision and care in the manner in which they
have been filled out. Respondent objected to various of
them for various reasons, including the facts that part of the
information called for had been filled in on some by a
person other than the employee whose authorization card it
purported to be, that the employee had failed to fill in
Respondent's name as the name of his employer, that the
employee had filled in the name of another employer for
whom he also worked as the name of his employer, that the
employee had entered his name in the blank calling for him
to "Print" his name and not the blank calling for his
"Signature," and that the employee had lettered rather than
signed his name in cursive writing in entering his name on
the card. I find no merit in any of these objections. In the
case of each card I have received into evidence, the record
is clear that the employee placed his name on the card at a
time when he was employed by Respondent at 500-550 in
response to the solicitation of one of the Union's
organizers, intending thereby to designate the Union as his
collective-bargaining representative in his relations with
Respondent.
In the cases of George Aughtry, Wylene Barnes , Bertha
Booker, Josephine Brown, Marjorie Hyson, Mary Logan,
Laura Phillips, Hessie Woodard, and Sheila Young, the
General Counsel had each identify the card which bears
that name. Each testified that the name had gotten on the
card in the manner already described. Each card was
received into evidence.
The General Counsel called Leslie Lewis, one of the
Union's organizers, to testify that the cards bearing the
names of Alfonzo Berger , Albert Burger , Shirley Grady,
Beatrice Nails, and Catherine Nails had been signed in his
presence. After direct and voir dire examination, I ruled as
follows
I am not persuaded , gentlemen, from the testimony
that I have heard that this witness has any independent
recollection sitting here today of the signing of these
cards by any of these five persons. Therefore, on the
ground that they have not been properly authenticated,
I reject [them].
The General Counsel called Willis Brooks, another of the
Union's organizers, to testify that the cards bearing the
names of Rickey Garrett, Teddy Henderson, and Pearline
Wright had been signed in his presence. After direct and
voir dire testimony, I rejected the cards of Rickey Garrett
and Teddy Henderson on the same ground. On the other
hand, I received the card bearing the name Pearline Wright
into evidence on the ground that Brooks' testimony had
authorization card Mrs Barnes has an interesting work history and one,
apparently, not untypical of Respondent 's employees She was hired on
October 20 , Respondent 's first day at 500--550 and terminated October 24,
the last workday of that first week She was rehired on November I I and
as already found in section B, above, discharged on December 9
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
established its authenticity . The part of Brooks ' testimony
which persuaded me that a difference could properly be
drawn between Pearline Wright on the one hand and
Garrett and Henderson on the other was the following
questions asked by Respondent 's counsel and Brooks'
replies thereto:
Q. What does Pearlme Wright look like?
A. Pearline Wright is-I know her very well, she is
light-skinned , slightly stout.
Q. How do you know her?
A. Well, I can recall her, because I talked to her
more than I did to the others . [Emphasis supplied.]
The General Counsel subsequently called Alfonzo
Berger , Shirley Grady, Teddy Henderson , and Catherine
Nails to authenticate the cards bearing their names. Each
testified that his name had gotten on the card in the manner
already described . Each card was received into evidence.
On July 9, 1970, the third day of the hearing, the General
Counsel called Catherine Nails as his witness to authenti-
cate her authorization card and interrogated her while
Beatrice Nails and Della Williams, with General Counsel's
knowledge , sat in the hearing room . He then called first
Della Williams and then Beatrice Nails to authenticate the
cards bearing their names . In each case Respondent
objected . In each case I sustained the objection on the
ground that the General Counsel had violated the rule of
sequestration . In each case the General Counsel made an
offer of proof, which I rejected, that, if permitted to testify,
the witness would testify that her name had gotten on the
card in the manner already described.
Neither Albert Burger nor Rickey Garrett ever appeared
at the hearing . Therefore , the cards bearing their names,
along with the cards bearing the names of Beatrice Nails
and Della Williams, remain in the rejected exhibit file. The
General Counsel has succeeded in authenticating only 14 of
the cards he produced. He needs 15 to establish that the
Union represented a majority of unit employees on October
24, 1969 . Since he has failed to meet his burden of proof in
this respect, I find that Respondent did not violate Section
8(a)(5) and (1) of the Act by refusing, on and after October
24, 1969, to recognize and bargain with the Charging Party
as the representative of its employees in the 500-550 unit.
D The 8(a)(1) Issue
On cross-examination , Shirley Grady testified that she
filled out not one but three authorization cards for the
Union while working for Respondent at 500-550. The
following question and answer ensued.
Q. Do you have any idea what happened to the
other two?
A. Well, one of them, Mr. King got ahold to and
what he did with it, I don't know, because I had a lot of
them in my hand, he took them away from me and told
me I wasn't supposed to have them , because I was, you
know, passing, you know, some out for the employees
and everything, and he took them away from me.
Respondent's counsel pursued the matter. Miss Grady's
testimony was confusing on such points as whether she or
the organizer was coming into the building with the cards,
whether she had gotten the cards from the organizer that
night or the night before, and whether the cards had been
signed or unsigned . Finally, she summarized her account as
follows:
Q. (By Mr. Keiler) And you passed them out
between 6 00 o'clock and 10:00 o'clock the night
before, and you got them signed, then collected them,
and then you were bringing them back the next night
for Mr. McCollum9
A. THE WITNESS- No. Some of them were leaving
the building , some of them . In other words , what I'm
trying to say, those cards were not signed on duty, they
were all signed outside of the building , the outside of the
building, because Mr. King had fired a couple fellows,
in other words, for signing the papers that he took away
from me, he had fired a couple before this, before he
taken the papers from me. So, I never did sign anything
on duty, or anything like that, because the union men,
they did not even come into the building, they didn't
come into the building , they wasn ' t allowed in there.
On the basis of Miss Grady's testimony, the General
Counsel amended the complaint to allege that Respondent
violated Section 8(a)(1) of the Act in that "on or about
October 22, 1969, Respondent through and by its
supervisor King . . . threatened, restrained, coerced
employees who engaged in Union activities by taking said
employees' Union Authorization Cards and destroying
same in the presence of said employees and other
employees."
Woodrow King testified that, on one occasion when the
Union's organizers were soliciting Respondent's employees
at 500-550 to sign authorization cards, one of them came
into the lobby of the building. A guard employed by Group
Health Insurance asked him to leave . The organizer gave a
stack of blank authorization cards to one of Respondent's
female employees whom King could not otherwise identify
and asked her to pass them out for him. The employee
showed them to King and asked what she should do with
them. King told her to do whatever, she wanted. The
employee threw the cards into a trashcan and went to work.
Miss Grady's testimony confused me. King's impressed
me with its clarity and straightforwardness . It struck me as
the more inherently credible version of what happened on
the occasion in question . Therefore, I credit King over Miss
Grady and find that Respondent did not violate Section
8(a)(1) of the Act in this episode.
IV. THE OBJECTIONS TO THE ELECTION
The Union 's first objection to the election is that the
conduct already considered in section B, above, affected its
results. In view of the findings and conclusions already
reached in connection with Respondent's transfer of 10
employees on the night of January 2, 1970, the Union's
contention can hardly be gainsaid.
The Union's second objection is that Respondent posted
the Board's notice of election in a place where employees
would not see it. In support of this position, the Unicii
elicited testimony from some but not all of the employees
who testified for the General Counsel that they did not see
the notice posted anywhere in 500-550. The notices were
not mailed from Baltimore until Tuesday , December 30,
1969. In view of the holiday season and the present state of
the United States mails, they may well not have arrived at
SHIP SHAPE MAINTENANCE COMPANY
500-550 12th Street , SW., in Washington until January 2,
1970, or even later . All but one of the witnesses relied on by
the Union were last in the building prior to the election, at
the latest , on January 2. Some of them were last there
before December 30. Therefore , their testimony has little, if
any, probative value . Widom 's testimony that he saw the
notices on the storeroom wall the night of the election in a
peeling-off condition at least suggests that they had been
there for several days. In the face of it , the testimony of
Marjorie Hyson , who was last in the building on Tuesday,
January 6, 1970 , only establishes that she did not see what
was on the wall . King's testimony that the storeroom is the
room where employees check in and out is uncontroverted.
I also credit his testimony that he posted copies of the
notice as soon as he received them . Therefore , I find that
Respondent posted the notice of election in accordance
with the Board 's usual requirements.
I recommend that the Union 's first objection to conduct
affecting the results of the election be sustained , that the
second be overruled that the election held on January 9,
1970 in Case 5-RC-7046 be set aside, and that Case
5-RC-7046 be thereafter closed by the Board in a manner
consistent with the remedy in Case 5-CA-4631 hereinafter
recommended.
Upon the foregoing findings of fact, and upon the entire
record in this case , I make the following:
CONCLUSIONS OF LAW
1. Ship Shape Maintenance Co., Inc., is an employer
engaged in commerce with the meaning of Section 2(6) and
(7) of the Act.
2. Service Employees International Union, Local 536,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By transferring Mazie Barnes, Jessie Berger, Bertha
Booker, Shirley Grady, Teddy Henderson, Willie Lewis, Jr.,
Melvina Malone, Laura Phillips, Shirley Twyman, and
Hessie Woodard on January 2, 1970, in order to remove all
eligible voters from the unit and thus preclude the holding
of a Board election in Case 5-RC-7046 on January 9, 1970,
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act
5 The allegations of the complaint that Respondent
violated Section 8(a)(5) and (1) of the Act by refusing, on
and after October 24, 1969, to recognize and bargain with
the Union as the representative of the employees in the unit
referred to in paragraph 6 below and that Respondent
violated Section 8(a)(1) of the Act on or about October 22,
1969, by Supervisor King's taking employees' union
authorization cards and destroying them in the presence of
employees have not been sustained.
6 All employees employed by Respondent at its
500-550 12th Street, SW, Washington, D.C., location
working as maids, porters, janitors, charwomen, waxers,
and buffers, but excluding office clerical employees,
guards, and supervisors as defined in the Act, constitute a
unit appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act.
405
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices , I will recommend that it cease and desist
therefrom and take certain affirmative action which will
effectuate the policies of the Act.
I have found that Respondent violated Section 8(a)(3)
and (1) of the Act by transferring 10 named employees on
January 2, 1970. However, Bertha Booker and Teddy
Henderson quit for personal reasons having nothing to do
with employees ' rights under the Act while Shirley Grady
and Hessie Woodard left Respondent 's employ thereafter
under similar circumstances . Thus, insofar as this record
reveals, only Mazie Barnes, Jessie Berger, Willie Lewis, Jr.,
Melvina Malone, Laura Phillips, and Shirley Twyman were
still working for Respondent at the time of the hearing, and
some of them may have since left under circumstances
which do not require their inclusion in a remedy specifically
designed to undo illegal transfers. Therefore , I will limit my
recommendation that Respondent offer immediate trans-
fers back to the 500-550 building to such of these six named
employees as are still in Respondent 's employ. On the other
hand , while Bertha Booker and Teddy Henderson could
not have suffered any monetary loss through Respondent's
decision to transfer them , Shirley Grady and Hessie
Woodard may have since they actually worked at their new
locations for a time and thus may have suffered some
diminution of earnings as a result of the transfer . Therefore,
I will include Shirley Grady and Hessie Woodard with
Mazie Barnes, Jessie Berger, Willie Lewis , Jr., Melvina
Malone, Laura Phillips, and Shirley Twyman in my
recommendation that Respondent make discriminatees
whole for any loss of earnings they may have suffered as a
result of the discrimination against them by paying to them
sums of money equal to that which they normally would
have earned as wages from January 2, 1970, until the date
each left Respondent 's employ or the date of Respondent's
offer of transfer back to 500-550 12th Street, SW.,
Washington, D.C., less any earnings from Respondent
during such period , with backpay and interest thereon to be
computed in the manner prescribed in F. W. Woolworth
Company, 90 NLRB 289 , and Isis Plumbing & Heating Co.,
138 NLRB 716.
The real import of the unfair labor practices Respondent
committed is not that a few employees were transferred
from one building to another, probably at no loss of
earnings . It is that Respondent intentionally made the
holding of a Board election impossible , thereby subverting
the very purpose for which the Act was passed and striking
at the rights of all its employees , present and past, in this
particular unit or out of it . The usual 8(a)(3) remedy of
reinstatement and backpay already provided is obviously
totally inadequate to correct such a situation . Equally
obvious is the fact that , as a result of Respondent 's unfair
labor practices , the holding of a meaningful election is now
impossible among Respondent 's employees at 500-550.
Therefore , as the more important element of the remedy in
this case , I will recommend that Respondent be required to
recognize and bargain with the Union as the representative
of its employees in the appropriate unit described in the
Conclusions of Law , above, as a remedy for the 8(a)(3) and
405A DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1) violations I have found and despite the fact that I have
not found a violation of Section 8(a)(5) of the Act.
Finally , the unfair labor practices I have found are
serious violations of the Act which demonstrate Respon-
dent's disdain for the rights of its employees and a
likelihood that violations will be repeated in the future.
Consequently , I will also recommend that Respondent
cease and desist from interfering with the Section 7 rights of
employees in any manner.
Upon the basis of the above findings of fact, conclusions
of law , and the entire record in the case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended , I hereby make the following:
[Recommended Order omitted from publication.]