Southwest Janitorial and Maintenance Corp.

National Labor Relations Board - Board Decisions

Mar 6, 1974

209 N.L.R.B. 402 (N.L.R.B. 1974)

402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Southwest Janitorial and Maintenance Corporation
and Service Employees International Union,
AFL-CIO, Local No. 551 . Cases 25-CA-5503 and
25-CA-5576
March 6. 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On September 27, 1973, Administrative Law Judge
Herbert Silberman issued the attached Decision in
this proceeding. Thereafter , Respondent filed excep-
tions and a supporting brief , and General Counsel
filed a brief in support of the Administrative Law
Judge' s Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
We agree with the Administrative Law Judge for
the reasons which he stated that Respondent com-
mitted 8 (a)(3) violations with respect to the termina-
tion of six of its employees ; namely, Eugenia
Haskins, Roxie Bridges, Sue Harper , Ann Beasley,
Wilma Ledell , and William Wingard . In addition, we
note that Respondent was previously found by the
Board to have unlawfully discharged2 employee
Eugenia Haskins because of her activities in behalf
of the same union as is involved here. Furthermore,
Respondent President William A . Elliott , Sr., was
found by the Board in the earlier case to have stated
"Well, we're going to have no union . . . I'm not
going to let no union in or let no Labor Board tell me
what to do." This statement of union animus was
made but a short time before the first of the
discharges took place in this case . Viewed against
this background , the fact that the unfair labor
practices involved herein are but a continuation of
the same pattern of conduct as was found unlawful
in the prior case involving this Respondent further
supports the Administrative Law Judge 's conclusion
that these discharges were for pretextual reasons in
1 Chairman Miller dissents from the finding that Respondent violated
Sec 8(a)(5) when it changed the work assignments and hours of work of
employees without negotiating with the Union In a letter dated Apnl 12,
1973. the Respondent informed the Union that employees' work hours
would be reduced because of cutbacks in the Government contract. About
the time the changes were made, around April 15, Union Representative
Sue Stone was involved in a series of discussions about the use of a seniority
list to implement the cutbacks . She admitted that she made no effort to
negotiate with the Respondent about these matters , even during the at least
violation of Section 8(a)(3). We note also that five of
the six employees (Wingard is the exception) found
herein to have been unlawfully discharged were
found previously to have been unlawfully discharged
by Murcole, Inc., the predecessor employer to
Respondent's maintenance contract, in the Board
decision at 204 NLRB No. 46. While that conduct
cannot be attributed to Respondent, it is clear that
the Respondent must have known of the union
sympathies of the five employees found to be
discriminatees in both Murcole and the instant
proceeding, especially in view of the ample evidence
of their participation in union activities that was
adduced at the hearing in the prior case against this
Respondent.
In finding Respondent' s reasons for discharge to be
pretextual, the Administrative Law Judge rejected
the testimony of the only witness for Respondent, its
vice president, William A. Elliott, Jr. Our review of
his record testimony demonstrates that it was
extremely vague and evasive. With respect to
Bridges, he said that he did not know who had
discharged her or why. As to others, he had no
personal knowledge of the circumstances of their
discharge; and in some of their cases he could offer
no explanation for the discharge. Elliott's most
positive testimony on the subject was that supervi-
sors "would have" or "must have" inspected areas of
deficient work, but he had no recollection of seeing
or receiving any reports from the supervisors about
any of such employee deficiencies. The character of
Elliott's testimony clearly warrants the inference,
which we draw, that Respondent was attempting to
conceal the true reason for the six discharges, that is,
their support of the Union. We note also that
Respondent's sole "evidence" to substantiate its
claim of poor performance by the discharged
employees was in the form of several inspection
reports which purportedly evidenced work deficien-
cies reported by their supervisors. Some of these
reports were unsigned by supervisors, others lacked
information as to who prepared them or the
circumstances of their preparation or the name of the
employee purportedly being graded, and none were
properly authenticated. Consequently, we agree with
the Administrative Law Judge that these reports were
without probative value and did not support Respon-
dent's claim of poor performance of the six discharg-
three meetings between the parties which occurred around that time. In the
Chairman 's view, the Union had sufficient opportunity to raise the issues
pertaining to the cutbacks during the seniority list discussions The
Chairman believes the Union should be estopped from asserting that this
unilateral change amounted to a failure to negotiate where the Union had
advance notice of the impending change and allowed it to be implemented
without demanding negotiations
2 Southwest Janitorial and Maintenance Corp, 205 NLRB No. 173.
209 NLRB No. 70
SOUTHWEST JANITORIAL & MAINTENANCE CORP.
es. For the above reasons, in addition to those given
by the Administrative Law Judge, we adopt his
findings that the six employees named above were
discharged in violation of Section 8(a)(3) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the, Respondent, Southwest
Janitorial and Maintenance Corporation, Monrovia,
California, its officers, agents, successors, and as-
signs, shall take the action set forth in the said
recommended Order.
DECISION
STATEMENT OF THE CASE
HERBERT SILBERMIAN, Administrative Law Judge: These
consolidated proceedings were heard in Indianapolis,
Indiana, on August 9 and 10, 1973. Following the close of
the hearing a brief was received from General Counsel.
The operative facts herein are related to events described
in the findings made in the following cases: Murcole, Inc.,
204 NLRB No. 46, and Southwest Janitorial and Mainte-
nance Corporation, 205 NLRB No. 173. Official notice is
taken of the decisions of the Board in the cited cases.
Respondent did not retain an attorney to represent it in the
instant cases but appeared by its vice president, William A.
Elliott, Jr. Reference is made to the discussion in the last-
cited case with respect to the appearances by the
Respondent therein.
The complaint in Case 25-CA-5503, dated May 30,
1973, which is based upon a charge filed by Service
Employees International Union, AFL-CIO, Local No.
551, herein called the Union, on April 5, 1973, alleges that
Southwest Janitorial and Maintenance Corporation, herein
also called the Company, has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(1), (3), (4), and (5) and Section 2(6) and (7) of the Act.
The complaint in Case 25-CA-5576, dated June 20, 1973,
which is based on charges and amended charges filed by
the Union on May 21 and June 6, 1973, respectively,
alleges that the Company has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(1), (3), and (5) and Section 2(6) and (7) of the Act. The
two cases were consolidated by an order of the Regional
Director for Region 25, dated June 20, 1973.
In substance, the complaints considered together allege
that:
1. The Company unlawfully discharged Roxie Bridges
on December 19, 1972; Wilma Ledell on February 26,
1973; William Wingard on March 13, 1973; Eugenia
Haskins on April 26, 1973; Ann Beasley on April 30, 1973;
and Sue Harper on May 8, 1973, because they joined and
assisted the Union and engaged in other activities
protected by Section 7 of the Act.
2. An additional reason for the discharge of Roxie
403
Bridges was that she had threatened to go to the Labor
Board.
3. Since September 13, 1972, the Company unlawfully
has refused to engage in collective bargaining with the
Union as the designated representative of an appropriate
unit of its employees by: (a) refusing on and since October
20, 1972, to sign a written agreement entered into with the
Union; (b) refusing to process grievances involving the six
discharged employees and a grievance involving Betty
Noel, thereby modifying and revoking the grievance and
arbitration provisions of the oral agreement entered into
with the Union without complying with the provisions of
Section 8(d) of the Act; and (c) reducing the hours of work,
changing the dates upon which it pays its employees, and
increasing the workload of its employees without notifica-
tion to, or consultation or bargaining with the Union.
Respondent did not file a responsive answer in these
cases but sent a letter dated June 26, 1973, to the Board
which the General Counsel has chosen to accept and to
treat as a general denial.
Upon the entire record in the cases and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. JURISDICTION
The answer in these cases does not contest the jurisdic-
tion of the Board. I find, therefore, based upon the facts set
forth in the complaint and Respondent's admissions at the
hearing, that the Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent does not contest the allegations of the
complaint regarding the status of the Union. Accordingly,
I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
HI. THE UNFAIR LABOR PRACTICES
A. Background
During the times material herein, among other of its
operations, Respondent was performing custodial and
janitorial services at the Fort Benjamin Harrison Finance
Center at Indianapolis, Indiana, herein referred to as the
Finance Center, pursuant to a contract with the United
States Army. Respondent began work under the contract
on August 14, 1972. Prior thereto the custodial work at the
Finance Center was performed by another contracting
organization, Murcole, Inc., which had obtained a similar
contract from the United States Army as of July 1, 1971.
Murcole, Inc., replaced still another contractor known as
Ken Kleen. Upon beginning work at the Finance Center
Murcole, Inc., initially hired the entire work force
employed by Ken Kleen. As of the time Murcole, Inc.,
began work at the Finance Center the Union was engaged
in an organizational drive among the custodial employees.
Of the 52 employees hired by Murcole, Inc., by July 7,
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1971, 29 had signed authorization cards for the Union. On
July 1, the Union's representative, Sue Stone, informed
Murcole, Inc., that the Union represented a majority of the
employees and that she wished to discuss recognition with
the Company and to negotiate a collective-bargaining
agreement with it. A meeting between Mrs. Stone and a
representative of the Company was scheduled for and held
on July 7. Murcole, Inc., would not voluntarily recognize
the Union as the representative of its employees at the
Finance Center and on July 7 the Union filed a
representation petition with the Board. Shortly thereafter,
on July 13, 12 employees, including the 5 named below,
were laid off or discharged. Unfair labor charges were filed
against Murcole, Inc., with respect to the layoffs and with
respect to other matters. A hearing thereon was held in
November 1971. The decision in that case is reported at
204 NLRB No. 46. Insofar as that decision affects the
proceedings before me, the Board found that Roxie
Bridges, Wilma Ledell, Eugenia Haskins, Ann Beasley, and
Sue Harper had been unlawfully discriminated against by
Murcole, Inc., because of their membership in and support
of the Union. The Board ordered their reinstatement
together with appropriate backpay.
Following an election held in the representation proceed-
ing referred to above, the Union was certified as collective-
bargaining representative on April 11, 1972.1 Thereafter,
the Union and Murcole, Inc., entered into a 2-year
contract covering the employees in the certified unit which
is described as follows:
All regular and regular part-time employees of the
Employer at the Fort Benjamin Harrison Finance
Center, Fort Benjamin Harrison, Indiana; but exclud-
ing all managers, office clerical employees, professional
employees, guards and supervisors as defined by the
Act.
When the Respondent assumed the cleaning contract at
the Finance Center in August 1972 it hired the work force
which previously had been employed by Murcole, Inc. On
August 21, 1972, the Union wrote the Company advising
the Company of its representative status and requesting a
meeting for the purpose of renegotiating the collective-
bargaining agreement which had been entered into with
the Company's predecessor. Towards the end of August
Company Vice President, William A. Elliot, Jr., wrote to
the Union stating that the Company recognizes the Union
as the representative of its employees. Thereafter, there
were meetings between William A. Elliot, Jr., on behalf of
the Company and the Union. The bargaining between the
Company and the Union and other matters were the
subjects of an unfair labor proceeding tried before
Administrative Law Judge Thomas F. Maher on various
days between March 27 and April 18, 1973.2 The Board in
its decision, which affirmed and adopted the decision of
Judge Maher, found that a collective-bargaining agreement
had been reached between the Union and the Company on
October 18. It further concluded that the Company had
I Case 25-RC-4705
2 The charges in said proceeding were filed on November 10 and
violated Section 8(a)(5) of the Act by refusing to execute
the contract.
Additional findings in the prior case which are relevant
to the proceedings before me are that Company President
William Elliott, Sr., on November 26, 1972, addressed a
meeting of its employees at the Finance Center during
which meeting , among other things, William Elliott, Sr.,
said, "Well we are not going to have no Union ... I'm not
going to let no Union in or no Labor Board tell me what to
do." By the foregoing and by other conduct set forth in the
decision the Board found ` overwhelrrung evidence of
Respondent's stated antagonism against the Union." It
further found that three employees, including Eugenia
Haskins, "all well known Union adherents, each of them
having been the subject of a prior unfair labor practice
proceeding before the Board" (Murcole, Inc., 204 NLRB
No. 46) were the objects of Respondent's unlawful
discrimination.
The Board found further violations of Section 8(a)(5) of
the Act by reason of Respondent's refusal to process a
grievance concerning the discharge of an employee,
Respondent having taken the position that no contract
with the Union was in existence , and by reason of
Respondent 's unilateral actions on numerous occasions,
including on one occasion changing the employees' hours
of work without giving the Union an opportunity to
bargain about the matter.
B. The Unlawful Discharges
The complaints herein allege that on various dates
between December 19, 1972, and May 8, 1973, the
Company unlawfully discharged six employees. The union
sympathies and affiliations of five of these employees,
Bridges, Ledell, Haskins, Beasley, and Harper, were well
known and duly publicized to all interested persons by the
decision in the Murcole case. Respondent's animus towards
the Union and its employees who supported the Union is
described in the decision reported at 205 NLRB No. 173. I
take official notice of the findings in both cases.
Roxie Bridges
Roxie Bridges began her employment at the Finance
Center in 1969. She was unlawfully laid off by Murcole,
Inc., on July 13, 1971, but subsequently was reinstated. On
November 27, 1972, she was interviewed by Company
President William A. Elliott, Sr. Bridges credibly testified
that Elliott asked her why she wanted a union. She replied,
"[B Jecause we needed a union." Elliott responded "that he
didn't see why because we were all black folks that it
looked like we could get along." Bridges further testified
without contradiction that on December 19, 1972, she had
a discussion with supervisor Dennis Stone about obtaining
an electric carpet sweeper. Stone told her not to worry
about it. To this Bridges responded, "That's all right, the
union and the Labor Board will get it straightened out for
me." The next afternoon, December 20, 1972, Company
supervisor Dennis Stone telephoned Bridges and informed
September 13, 1972, by the Union
1
SOUTHWEST JANITORIAL & MAINTENANCE CORP.
her that she was terminated. She asked why and Bridges
answered that he did not know.
The only witness who testified for Respondent in this
case was Vice President William A. Elliott. Jr. He testified
that he believed that the Company's project manager,
Robert Hurst, had discharged Bridges but he was not
certain of the fact. He also testified that he had no personal
knowledge regarding the reason for Bridges' termination.3
As Respondent offered no explanation for Bridges'
discharge I find that she was terminated because of her
union membership and sympathies and because of her
threat to bring a complaint to the Labor Board. Hoover
Design Corporation, 167 NLRB 461, reversed 402 F.2d 987
(C.A. 6, 1968).
Wilma Ledell
Wilma Ledell's employment at the Finance Center began
7 years ago. She was unlawfully discharged by Murcole,
Inc., on July 13, 1971, and later reinstated. On February
23, 1973, Respondent's supervisor, Cecelia English, tele-
phoned and informed Ledell that she was laid off. No
reason was given Led ell. No satisfactory explanation for
Ledell's termination was given by Respondent at the
hearing. Accordingly, I find that Ledell was terminated
because of her union membership and sympathies .4
William Wingard
William Wingard was hired by the Company on
February 3, 1973, as a wax stripper. He signed a union
authorization card on March 13. During his lunch break
on the next work day he informed several employees with
whom he was eating that he had "signed up for the union."
On March 16, 1973, Wingard was terminated by Supervi-
sor Dennis Stone who explained to Wingard that he was
acting upon the direction of Project Manager Hurst.
Wingard asked why he was being laid off and Stone replied
that he did not know. Wingard testified without contradic-
tion that during his period of employment with the
Company he had never been reprimanded but had been
3 William A Elliott. Jr, testified that the termination slip for Bridges
probably would reveal the reason for her discharge. However, the clip is
filed at the Company's home office in California and he did not bring it to
the hearing. Two so-called inspection sheets, dated 12/14/72 and 12/19/72,
were introduced in evidence by Elliott to support his position that Bridges
had been terminated for incompetence Even if the information on the
sheets were true. standing alone they do not furnish a reasonable basis for
concluding that Bridges was terminated because of the listed deficiencies.
Furthermore, the inspection sheet dated 12/19/72 has no name on it so that
it is uncertain that it pertains to Bridges
4 As in the case of Bridges, Respondent introduced in evidence certain
inspection sheets purporting to demonstrate the basis for Lcdell's termina-
tion In regard thereto, there was the following colloquy:
JUDGE Except as reflected by these documents you have no
knowledge as to why Mrs Ledell was discharged, is that correct9
W I rNFSs That would he correct.
Q. (By Mr Droker) Mr. Elliott. you do not know of your own
knowledge whether or not Mrs. Ledell was ever shown any of--
JuDGF It is not necessary . Those documents do not state why
she was terminated What meaning they have 1 don't know I attribute
no meaning to them whatsoever In fairness to the respondent. I am
permitting respondent to put into evidence whatever he has now
available that he chooses. As these documents do not indicate why she
was terminated and as Mr. Elliott doesn't know why she was
405
told by both Robert Hurst and Dennis Stone that he was
doing a good job. Elliott testified that he had no personal
knowledge as to why Wingard was discharged.5 I agree
with General Counsel that "the timing, lack of any
defence, small plant doctrine inference for knowledge (less
than 30 employees on his shift) can give rise to only one
conclusion, that his discharge must have been discrimina-
torily motivated."
Eugenia Haskins
Eugenia Haskins who had been working at the Finance
Center since 1966 was unlawfully laid off by Murcole, Inc.,
on July 13, 1971. She was subsequently reinstated. On
December 8, 1972, Haskins was again terminated unlaw-
fully but this time by the Respondent. In the prior case
reported at 205 NLRB No. 173 the Board found that
Haskins' termination was motivated by her union activi-
ties. Haskins was recalled to work on February 26, 1973.
However, the Board further found that she then was
assigned more arduous duties so that Respondent thereby
engaged in additional discrimination against her.
Haskins was again discharged on April 26, 1973 (8 days
after the conclusion of the hearing before Judge Maher),
and this last discharge is alleged as an unfair labor practice
in the instant complaint. Haskins testified that William A.
Elliott, Jr., telephoned her about 3 p.m. on April 26 and
informed her that she was being laid off "on account of the
work you did last night."
Elliott testified that the only reason for Haskin's
discharge was "lack of performance in her assigned work
area." He explained that he considers that there has been
lack of performance when anywhere from 10 to 25 percent
of the work is rejected.
The space which the Company cleans is inspected daily
by a government inspector. Work which is done improper-
ly or not at all is rejected. At times the government imposes
a financial penalty upon the Company for rejected work.
The Company is notified in detail regarding rejected work
on what is referred to as "Form 1107." Elliott testified that
the Company receives 4 to 7 such forms every day. Each of
terminated I don't see that there is anything in the record that reflects a
defense on respondent's part So far as I am concerned there is no
defense at to the discharge of Mrs Ledell.
WITNESS Your Honor, the inspection sheets I assume would reflect
the reason why she was terminated.
JLDGE. I know but we don't base law on assumptions . We base it on
facts. The facts could be reflected by your records For instance the
termination slip, but you tell me that the termination slip is in
California and you did not choose to obtain it to offer it in evidence
here
win:rss No sir I said that I didn't wish to obtain it. I said that I
overlooked it in the subpena and the records it was an oversight on in.
part
JUDGE: You will suffer the consequences of the oversight, Mr
Elliott I am sorry. I cannot be sympathetic with you on the grounds
that you are unaware of what is taking place here . You are fully aware
of it This is the second proceeding that your company has been
involved in in this area in a relatively short period of time . You have
chosen not to he represented by an attorney . that is your own
choice
a At the hearing Elliott produced an unsigned document entitled
"Inspection Sheet" which has the following written under the date 3/16/73.
"William Wingard Constantly refuse to follow instruction . Terminated
March 15, 1973 "
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the forms may refer to several items. Thus, on May 1, 1973,
the Company received five Form 1107s which detailed
about 14 rejections. Also, according to Elliott, sometimes
he or another supervisor inspects the areas which are
rejected, but this is not always the case.
Elliott testified that Haskins lack of performance
occurred on April 19, 23, and 25 .6 On each of these dated
the Company prepared an "inspection sheet" for Haskins
which presumably reflects the portion of the applicable
Form 1107 relating to Haskins' assigned work area. The
April 19 inspection sheet shows that Haskins failed to
sweep certain portions of her area. Elhott testified that he
did not inspect the area which was the subject of the
report, and did not know if any other supervisor had
inspected the areas The inspection sheet for April 23
shows that dust mopping was rejected with respect to
13,536 square feet. This report was not shown to Haskins
and Elliott testified that he had no recollection as to
whether the Company had made any inspection to verify
that the work had not been done. The last inspection sheet
dated April 25 shows dust mopping was rejected for 10,896
square feet and dust mopping was not performed for
24,816 square feet. Elliott testified that he "could not
possibly say yes or no" as to whether he had mspected the
areas personally. Also, when asked whether he spoke to
Haskins about the reported deficiencies he testified, "I am
more than positive that I would have" but had no
recollection of doing so. As Haskins' testimony indicates
there were no such conversations I reject Elliott's specula-
tion that he possibly spoke with her about the reported
deficiencies. Also, according to Elliott, the Company has
not been penalized for the alleged rejections reflected by
the April 19, 23, and 25 inspection sheets. Elliott further
acknowledged that in mid-April Haskins was assigned to a
new area. Prior to the change Haskins was required to
sweep between 90,000 and 110,000 square feet in 8 hours,
but after the change she was required to sweep about
72,000 square feet in 4 hours. Additionally, the work
became more difficult because after the change each floor
was swept once every 3 days instead of everyday.
To justify Haskins' discharge Elliott testified that the
extent of her rejected work was greater than that of other
sweepers. However, no evidence to support this bare
assertion was offered by Respondent.
Elliott testified that prior to mid-Apnl he had no
complaint about Mrs. Haskins work. In mid-April her
hours were cut in half but her work assignments were
reduced by only 25 percent. Also the work became more
difficult because the floors were being swept every third
day instead of everyday. In the circumstances it is natural
that Haskins would not be able to perform the increased
work load as efficiently as she had been doing her work
prior to the change. I find Elhott's asserted reason for
discharging Haskins untruthful. I find further that Haskins
was discharged on April 26 because of her union activities
and membership.
6 Elliott testified that prior reports had "an overall bearing" but he relied
primarily upon the April reports in reaching his decision It is to be noted
that the Board found that when Haskins was recalled on February 26, 1973,
she was unlawfully assigned more arduous duties There is no evidence that
Respondent has remedied such discrimination
7 This inspection report was shown to Haskins
Ann Beasley
Ann Beasley began working at the Finance Center in
1966. She was one of the individuals who was unlawfully
discharged on July 13, 1971 by Murcole, Inc., because of
union activities and was ordered reinstated by the Board in
its decision cited above. Mrs. Beasley was discharged by
Respondent on April 30, 1973. She died on June 17, 1973,
after being confined in.a hospital for 3 weeks.
Elliott testified that Beasley seemed to have been a
conscientious employee. However, he discharged her
because of work rejections on 20 and 30. According to
Elliott, he spoke to Beasley about the April 20 rejection.
The latter expressed her concern about the rejection
because it was the first she had ever received.8 He told
Beasley "to sweep as much as she possibly could and don't
worry about completing the full assignment that particular
night." He explained that he wished to see "how far her
progress was going and how well she was doing." Between
April 20 and 30 nothing further was said to Beasley about
her work performance. Nevertheless, on April 30 another
inspection sheet was written indicating that approximately
47,000 square feet of dustmopping by Beasley had been
rejected. Elliott testified that Dennis Stone "would have"
inspected the area. Elliott had no recollection of receiving
any report from Stone about the alleged deficiency. Also,
the inspection sheet bears no signature so that Elliott could
not testify that Stone had made any inspection of Beasley's
alleged deficiency. I find Elliott's explanation for Beasley's
discharge contrived and unconvincing. Accordingly, I find
that Respondent discharged Beasley on April 30, 1973,
because of her union membership and sympathies.
Sue Harper
Sue Harper began working at the Finance Center on
March 17, 1969. She was unlawfully discharged because of
her union activities on July 13, 1971, by Murcole, Inc., and
was later reinstated. On the night of May 3, 1973, she
started her work late because she had a conversation with
William Elliott, Jr., which lasted 30 to 45 minutes. Also,
she was told to mop the bathroom floors with vinegar and
water and not to use soap which made the task more
difficult. For both reasons she did not complete her work
that night. In the morning on May 4 she telephoned
Supervisor Cecelia English and advised that she would not
be at work that night.9 On Monday morning, May 7, 1973,
Cecelia English notified Harper by telephone that she was
fired. Harper asked why. English replied that she did not
know, that Harper would have to ask Elliott. Several times
Harper tned to contract Elliott but was unsuccessful.
Elliott testified that Harper was discharged because she
failed to fmish her work on May 3 and failed to show up
for work the following 2 or 3 days "without any call ins."
As I credit Harper that she did inform the Company that
she would be absent on May 4 and as Harper gave a
8 Elliott testified that I or 2 weeks after April 15 he added an additional
sweeper because the employees could not perform the work assigned to
them (The hours of work had been reduced without a proportional
reduction in the assigned tasks.)
9 This testimony is uncontradicted.
SOUTHWEST JANITORIAL & MAINTENANCE CORP.
reasonable explanation for her failure to complete her
work on May 3,1 do not credit the reasons given by Elliott
for Harper's discharge. Therefore, I find that Harper was
unlawfully discharged because of her union activities and
membership.
C. Conclusions
I have found that the Company was unable to establish
any acceptable reason for discharging the six employees
named above. In view of the Company's animus toward
the Union and its sympathizers and its history of unfair
labor practices, I find that the six employees were
discharged because of their union membership, sympa-
thies, and activities to discourage membership in the
Union. Accordingly, I further find that the Company
thereby has violated Section 8(a)(3) of the Act. As such
discriminations against employees also served to interfere
with, restrain, and coerce employees in the exercise of the
rights guaranteed in Section 7, I also find that Respondent
thereby has violated Section 8(a)(1) of the Act.
The complaints also allege violations of Section 8(a)(5)
of the Act. One such allegation concerns Respondent's
refusal to execute the collective-bargaining agreement
negotiated on or before October 18, 1972. This allegation
duplicates findings in the prior case reported at 205 NLRB
No. 173. The order in that case fully remedies the alleged
violation. No purpose would be served by issuing an
identical order in this case. Accordingly, I shall make no
such recommendation. 10
The instant complaints allege two additional violations
of Section 8(a)(5) on the part of Respondent. At the
hearing the parties stipulated that the Union had requested
the Company to entertain grievances relating to the six
discharges discussed above and the discharge of another
employee, Betty Noel, and the Union also requested the
Respondent to participate in an arbitration proceeding
relating to such discharges. Respondent has refused to
entertain such grievances and has refused to arbitrate the
grievances. Among the reasons advanced by the Company
for such refusals is that it denies the existence of a contract
with the Union. During all times material hereto the Union
was the recognized collective-bargaining representative of
the appropriate unit described above. Furthermore, addi-
tional bargaining obligations have accrued by reason of the
contract entered into between the Company and the Union
on October 18, 1972. In these circumstances Respondent's
refusals to entertain the grievances advanced by the Union
on behalf of employees in the recognized unit and to
arbitrate the grievances constitute failures on Respondent's
part to fulfill its collective-bargaining obligations under the
Act and thus violate Section 8(a)(5).11
The complaint also alleges that the Company effected
changes in terms and conditions of employment for the
unit represented by the Union without giving the Union an
opportunity to bargain with respect thereto. Thus, on
March 23, 1973, the Company wrote to the Union advising
that the employees payday will be changed from the 12th
10 Canton Sign Co, 186 NLRB 237
11 For the reasons stated in Tucker Glass Company, Inc, 189 NLRB 499,
and Atlanta Daily World, 192 NLRB 159, 1 find that it would effectuate the
policies of the Act to recommend an Order designed to remedy the
407
of the month to the 15th and from the 27th of the month to
the 30th. Although the letter expresses regret at any
inconvenience the change might cause, the Company gave
the Union no opportunity to bargain about the subject.
Similarly, by letter dated April 12, 1973, the Company
informed the Union that the number of hours of work for
the employees in the unit will be reduced to an average of 4
hours per night and that there might be some layoffs.
Again, the Union was given no opportunity to bargain with
the Company with respect to these changes. I find, as
alleged in the complaint, that such unilateral actions on the
Company's part constitute further violations of Section
8(a)(5) of the Act.12
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Company set forth in section III,
above, occurring in connection with its operations referred
to 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 that Respondent has engaged in unfair
labor practices, I shall recommend that it cease and desist
therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Having found that the Respondent unlawfully dis-
charged Roxie Bridges on December 19, 1972, Wilma
Ledell on February 26, 1973, William Wingard on March
16, 1973, Eugenia Haskins on April 26, 1973, Ann Beasley
on April 30, 1973, and Sue Harper on May 8, 1973, I shall
recommend that Respondent offer each of these employees
(except Ann Beasley who died after the charges in these
cases were filed) immediate and full reinstatement to her
former job, or if that job no longer exists, to a substantially
equivalent position, without prejudice to her seniority or
other rights and privileges, and make each of them
(including Ann Beasley or her estate) whole for any loss of
earnings she may have suffered by reason of the discrimi-
nation against her by payment to her of a sum of money
equal to that which she normally would have earned from
the aforesaid date of her discharge to the date of
Respondent's offer of reinstatement, 13 less her net earnings
during such period. The backpay provided for herein shall
be computed on the basis of calendar quarters, in
accordance with the method prescribed in F. W. Woolworth
Company, 90 NLRB 289. Interest at the rate of 6 percent
per annum shall be added to such net backpay and shall be
computed in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716.
Respondent's unlawful activities, including the discrimi-
natory discharges of employees, go to the very heart of the
Act and indicate a purpose to defeat self-organization of its
foregoing unfair labor practices
12 A remedial Order is appropriate See fn 11, supra
1; In the case of Ann Beasley the Company's backpay obligation
terminated when she became incapable of working
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees. The unfair labor practices committed by
Respondent are potentially related to other unfair labor
practices proscribed by the Act, and the danger of their
commission in the future is to be anticipated from
Respondent's conduct in the past. The preventive purposes
of the Act will be thwarted unless the recommended Order
herein is coextensive with the threat. Accordingly, in order
to make effective the interdependent guarantees of Section
7 and thus effectuate the policies of the Act, an order
requiring Respondent to cease and desist from in any
manner infringing upon the rights of employees guaranteed
by the Act is deemed necessary. N.L.R.B. v. Express
Publishing Co., 312 U.S. 426; N.L.R.B. v. Entwistle Mfg.
Co., 120 F.2d 532 (C.A. 4, 1941).
Upon the foregoing findings of fact and the entire record
in these cases, I make the following:
CONCLUSIONS OF LAW
1. By discnminatorily discharging Roxie Bridges on
December 19, 1972, Wilma Ledell on February 25, 1973,
William Wingard on March 16, 1973, Eugenia Haskins on
April 26, 1973, Ann Beasley on April 30, 1973, and Sue
Harper on May 8, 1973, thereby discouraging membership
in the Union, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
2. Also by discharging Roxie Budges because she
threatened to bring a complaint to the Labor Board,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(4) of the Act.
3. By effecting changes in the terms and conditions of
employment for the employees in the collective-bargaining
unit which Respondent recognizes is represented by the
Union without giving the Union prior notice thereof or an
opportunity to bargain collectively with respect thereto and
by refusing to entertain grievances from the Union with
respect to the employees in said collective-bargaining unit
and by refusing to arbitrate such grievances the Company
has failed to fulfill its statutory collective-bargaining
obligations and thereby has engaged in and is engaging in
unfair labor practices with the meaning of Section 8(a)(5)
of the Act.
4. By reason of the foregoing Respondent has inter-
fered with, restrained, and coerced employees in the
exercise of rights guaranteed by Section 7 of the Act, and
thereby has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) thereof.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in these
proceedings and pursuant to Section 10(c) of the Act, I
hereby issue the following recommended:
ORDER 14
Respondent, Southwest Janitorial and Maintenance
Corporation, its officers, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, terminating, laying off, or otherwise
discriminating against employees in regard to their hire,
tenure of employment, or any term or condition of their
employment in order to discourage membership in Service
Employees International Union, AFL-CIO, Local No.
551, or any other labor organization, or in order to retaliate
against employees for seeking to use the processes of the
National Labor Relations Board.
(b) Refusing to negotiate with Service Employees
International Union, AFL-CIO, Local No. 551, as the
designated and recognized collective-bargaining represent-
ative of its employees in an appropriate collective-bargain-
ing unit, concerning grievances relating to employees in
said unit and where required under a collective-bargaining
agreement refusing to arbitrate grievances.
(c) Effecting changes in paydays, hours of work, or other
terms and conditions of employment of the employees in
the appropriate collective-bargaining unit represented by
Service Employees International Union, AFL-CIO, Local
No. 551, without giving the Union advance notice of the
contemplated changes and a full and complete opportunity
to engage in collective-bargaining concerning such
changes.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Roxie Bridges, Wilma Ledell, William Win-
gard, Eugenia Haskins, and Sue Harper immediate
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority and other rights and privileges.
(b) Make Roxie Bridges, Wilma Ledell, William Win-
gard, Eugenia Haskins, Ann Beasley, and Sue Harper
whole for any loss of earnings they may have suffered by
reason of Respondent's unlawful discrimination against
them in the manner set forth in the section of this decision
entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amounts of backpay due under
the terms of this recommended Order.
(d) Upon request, bargain collectively with Service
Employees International Union, AFL-CIO, Local No.
551, as the duly designated and recognized collective-
bargaining representative of the employees in the collec-
tive-bargaining unit described below concerning grievances
or other terms and conditions of employment. The
appropriate unit for the purposes of collective bargaining
is:
14 In the event no exceptions are filed as provided by Sec 102 46 of the 102 48 of the Rules and Regulations, be adopted by the Board and become
Rules and Regulations of the National Labor Relations Board, the findings, its findings, conclusions , and order, and all objections thereto shall be
conclusions, and recommended Order herein shall, as provided in Sec deemed waived for all purposes
SOUTHWEST JANITORIAL & MAINTENANCE CORP.
All regular and regular part-time employees of the
Employer at the Fort Benjamin Harrison Finance
Center, Fort Benjamin Harrison, Indiana; but exclud-
ing all managers, office clerical employees, professional
employees, guards, and supervisors as defined by the
Act.
(e) Post at its Fort Benjamin Harrison Finance Center
facility copies of the attached notice marked "Appen-
dix".15 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 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 25, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
15 In the event that the Board's order is enforced by a judgment of the
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 Lnited States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge, terminate, layoff or other-
wise discriminate against any employees in regard to
their hire, tenure of employment, or any term or
condition of their employment in order to discourage
membership in Service Employees International Union,
AFL-CIO, Local No. 551, or any other labor organiza-
tion, or in order to retaliate against employees for
seeking to use the processes of the National Labor
Relations Board.
WE WILL NOT make or effect any change in hours of
work, payday, or any other term or condition of
employment of our employees in the appropriate
collective-bargaining unit represented by aforesaid
Union without first giving the Union prior notification
thereof and an opportunity to bargain collectively with
us concerning any such proposed change.
WE WILL NOT refuse to entertain or to bargain
collectively with the aforesaid Union concerning any
409
grievances affecting employees in the appropriate
collective-bargaining unit represented by the Union, or
where required under a collective -bargaining agree-
ment we will not refuse to arbitrate grievances. We
recognize Service Employees International Union,
AFL-CIO, Local No. 551, as the collective -bargaining
representative of the employees in the following unit:
All our regular and regular part-time employees
at the Fort Benjamin Harrison Finance Center,
Fort Benjamin Harrison , Indiana ; but excluding
all managers , office clerical employees , profes-
sional employees, guards and supervisors as
defined by the Act.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
right to self-organization , to form, join, or assist labor
organizations, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
WE WILL offer Roxie Bridges, Wilma Ledell, William
Wingard, Eugenia Haskins and Sue Harper immediate
reinstatement to their former jobs or, if such jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges.
WE WILL make the aforesaid employees and Ann
Beasley, or her estate, whole for any loss of earnings
they may have suffered by reason of our unlawful
discriminations against them.
SOUTHWEST JANITORIAL
AND MAINTENANCE
CORPORATION
(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, ISTA
Center - 6th Floor, 150 W. Market Street, Indianapolis,
Indiana 46204, Telephone 317-633-8921.