Syufy Enterprises

National Labor Relations Board - Board Decisions

Sep 26, 1975

220 N.L.R.B. 738 (N.L.R.B. 1975)

738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Syufy Enterprises, a Limited Partnership and Service
Employees International Union, Theater Janitors
Union Local 121. Case 20-CA-9199
September 26, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
On December 30, 1974, Administrative Law Judge
Allen Sinsheimer, Jr., issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
Charging Party filed exceptions and supporting
briefs, and Respondent filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
Respondent is the owner and operator of numer-
ous theaters in California, including four which are
the only ones involved in this proceeding. Two of
these, Cine 21 and Automovie Drive-In, are located
in Vallejo, and two, Century 21 and Four-Plex, are in
Pleasant Hill. Prior to 1973, the first three of the
above theaters were part of a multiemployer bargain-
ing unit represented by several unions, including Ser-
vice Employees International Union, Theater Jani-
tors Union Local 121 (herein the Union). In 1973 the
Union and Respondent agreed to sever the two
theaters in Vallejo and the Century 21 in Pleasant
Hill (Four-Plex was not then in existence) from the
multiemployer unit and negotiate a separate collec-
tive-bargaining contract for the janitorial employees
at those theaters. (From November 1971 to February
1973, Respondent had subcontracted the janitorial
work for the three theaters here involved to Solano
Janitorial Service. Beginning in February 1973 Re-
spondent directly employed the same janitors at the
above three theaters.) Separate bargaining between
Respondent and the Union was carried on from
about March to December 1973, but no agreement
was reached concerning a new collective-bargaining
contract. Respondent insisted during negotiations
that it wished to utilize an independent contractor to
provide its janitorial services because of the econom-
ic burden of the existing practices. The Union indi-
cated its opposition to any change in manning.'
In December 1973 the Union's representative, Fig-
one, met with Haigh, Respondent' s assistant in
charge of construction, concerning janitorial service
for the Vallejo and Pleasant Hill theaters. Haigh
stressed Respondent's desire to hire an independent
janitorial contractor for the theaters, and Figone
furnished the names of some, including American
Building Maintenance Company (herein ABM).
Haigh communicated with ABM and sought a
contract for janitorial services covering only the two
Pleasant Hill theaters, the Century 21 and the Four-
Plex. However, Averbuck, the ABM's representative,
after speaking with Figone, said that the latter in-
sisted that the contract cover Respondent's theaters
in Vallejo as well as in Pleasant Hill. Haigh there-
upon negotiated an agreement with ABM covering
the Vallejo and Pleasant Hill theaters. In order to
hold down costs to Respondent, it was agreed that
Respondent would furnish its own supplies and han-
dle its own window cleaning.
The contract contained the following provision
concerning supervision:
SUPERVISION
Regular supervision. is maintained over all
working personnel. Our service operates 24
hours a day. Our Supervisory staff has been pro-
moted to their positions on merit and length of
experience. It is American's job to see that all
American activities are properly coordinated
with the Customers' operations, modify assign-
ments if and when necessary, instruct, inspect
and correct the working personnel, make needed
adjustments, check requisitions and dispense
supplies and equipment, train new employees,
make "on the job" inspections with or without
the Customer's own representative, and do ev-
erything possible to assure complete harmony
between American's employees and American's
customers.
ABM's division manager and Averbuck's supervi-
sor, Isheim, testified that inclusion of the above su-
pervision provision was standard in ABM contracts
and that he knew of no special arrangements with
Respondent to delete the provision. At the same time
he conceded that Averbuck had authority to make
oral representations concerning contract provision
binding on ABM. Averbuck testified that he told
Haigh that ABM "had supervisors who would super-
vise employees . . . and that they would do it," but
that Haigh said that, "the managers should be able to
tell the janitors what to do in case anything came up
1 The Union 's unfair labor practice charge filed in August 1973 alleging
that Respondent had failed to bargain in good faith during this general
period was dismissed by the Regional Director
220 NLRB No. 113
SYUFY ENTERPRISES
that they wanted to have done," and that he (Aver-
buck) responded, "Fine." Asked to clarify this testi-
mony Averbuck replied, "Mr. Jack Haigh wanted it
understood by us, and that was part of the negotia-
tion; that they [Respondent] would have the right to
supervise and to deal with these employees because
of the hours in the theaters, the difficulties involved,
and that they would take the responsibility of dealing
with these employees." Averbuck explained that
Haigh wanted the right, "in case he felt somebody
was doing a poor job, to call us up and say that he
didn't want him on the job," and, through his manag-
ers, to give instructions to the janitors about what
should be done. At one point, Averbuck brought
Treadway, an ABM supervisor, to see Haigh and in-
troduced him as such. On this occasion Averbuck
told Haigh that Respondent 's managers should be
able to tell janitors what to do "in case anything
came up," but added that ABM should be called if
an employee was to be disciplined or terminated.
In the performance of its contract with Respon-
dent, ABM employed the same janitors formerly em-
ployed directly by Respondent. Two ABM supervi-
sors were designated to supervise their work. Five
other ABM officials were also available to make spe-
cific or random checks on ABM janitorial work, in-
cluding that being performed for Respondent. In ac-
tual practice, however, according to the finding of
the Administrative Law Judge, "it does not appear
that any actual inspections or reports of such were
made by representatives of ABM. Nor was there ac-
tual supervision of the work on the job so far as the
record reflects."
Stanley Bueno , a janitor at Cine 21, testified that
the only person with whom he discussed job assign-
ments was the theater manager , Kuykendall. He also
testified that sometimes when he was unable to com-
plete certain parts of his janitorial work, he would
report this fact to Kuykendall who would tell him to
try to complete the unfinished portion of his work on
another day as best he could. Bueno also testified
that he had asked Kuykendall if his girl friend could
assist him with his 6-hour shift, each of them working
3 hours. Kuykendall granted permission for the pro-
posed work schedule.
Pangelinan , a janitor at one of the Vallejo theaters,
testified that he had never seen an ABM supervisor
at the theater where he worked and that his nonrou-
tine job assignments came from Theater Manager
Savage. According to Pangelinan, on Savage's in-
structions , he performed duties not in the ABM con-
tract, such as renting and using a pump to clear a
flooded area, cleaning the popcorn room, and clean-
ing and waxing Savage's office. Pangelinan reported
this to ABM Supervisor Robinson, who agreed that
739
these duties were not in the contract, but Pangelinan
performed the work anyway. Also at Savage's re-
quest, Pangelinan stayed overtime to pick up trash
on "heavy" days, without receiving additional com-
pensation.
On one occasion Whiteman, also a manager of Re-
spondent, called ABM to ask how to get janitors to
clean countertops, which janitors were not required
by the contract to do. ABM Supervisor Averbuck
told Whiteman to tell the janitors what to do and to
call him back if he had further problems.
Respondent terminated its janitorial contract with
ABM as of April 30, 1974, for the asserted reason
that the janitorial work was not being properly per-
formed. In place of ABM, Respondent subcontract-
ed the janitorial work to a new nonunion contractor,
National Home Service, at a substantial cost saving.
The General Counsel contended that Respondent
and ABM were joint employers of the janitors at the
Vallejo and Pleasant Hill theaters, that by failing to
notify and bargain with the Union concerning the
cancellation of the ABM contract and termination of
the Union's member-employees Respondent violated
Section 8(a)(5) of the Act, and that Respondent's
motivation in canceling the ABM contract was to rid
itself of the Union and its members, thereby violating
Section 8(a)(3) of the Act.
The Administrative Law Judge found that Re-
spondent was not a joint employer of the janitorial
employees covered by the ABM contract and there-
fore it had no obligation to bargain with the Union
concerning the termination of the ABM contract,
and that its motivation in terminating the ABM con-
tract was not discriminatory. The General Counsel
and the Union have excepted to these conclusions of
the Administrative Law Judge. We agree with the
exceptions.
The janitors employed by ABM for approximately
4 months were the same janitors formerly employed
directly by Respondent for a considerably longer pe-
riod. As the Administrative Law Judge himself
found, after the takeover by ABM, despite the con-
tract provisions, there was no evidence of any actual
supervision of the janitors by ABM supervisors 2 The
only actual evidence as to supervision was that it was
exercised by Respondent's theater managers. Thus,
employee Bueno testified that Manager Kuykendall
directed him to sign for certain deliveries and to ad-
mit carpet cleaners and concessionaires. Kuykendall
also approved Bueno's request that his girl friend be
2 Contrary to normal practice in the industry, Respondent refused, de-
spite repeated requests , to provide ABM's supervisors and inspectors with
keys to its theaters, which would afford them access to the theaters at times
when the janitors were not present, in order to exercise their supposed su-
pervisory functions.
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
permitted to assist him with his janitorial duties, an
arrangement which enabled Bueno to work 3 hours
each day rather than 6. Also, when informed by Bue-
no that he was having difficulty completing the
cleaning of certain sections of the theater Kuyken-
dall authorized Bueno to make the best practical
work adjustment possible. Similarly, employee Pan-
gelinan testified that his job assignments were given
to him by Theater Manager Savage, some even cov-
ering duties not within the scope of Respondent's
conctract with ABM. Savage lengthened
Pangelinan's hours of work by having him stay over-
time on "heavy" days without compensation in order
to dispose of additional accumulations of trash. Fur-
ther, when another theater manager, Whiteman,
called Averbuck to complain that a janitor was not
cleaning certain countertops, Averbuck told White-
man that he should tell the janitors what to do and
contact him again only if Whiteman continued to
have problems. It thus appears that the duties and
relationship of the janitors to Respondent's theater
managers remained as a practical matter substantial-
ly unchanged by Respondent's contract with the
ABM.
The question whether Respondent and ABM were
joint employers of the janitors in Respondent's Valle-
jo and Pleasant Hill theaters depends on whether the
evidence shows they codetermine those matters gov-
erning the essential terms and conditions of employ-
ment of the janitorial employees ABM has utilized in
fulfilling its service contract with Respondent. The
issue is essentially a factual one'
The Administrative Law Judge found that control
of the employment relationship of the janitors rested
with ABM even though Respondent gave some di-
rections to janitors and ABM did not check the work
as closely as it had promised. He concluded that the
intent of the relationship between Respondent and
ABM as manifested by their contract and representa-
tions was that ABM was to look after and supervise
the work and the employees, with Respondent hav-
ing a right "to police the contract" to see that the
service sought was rendered satisfactorily.
We cannot agree with the above finding and con-
clusion. The actual exercise of control by Respon-
dent over matters governing the terms and condi-
tions of employment of the janitors is a separate
indication of coemployership.4 It is one which we
deem crucial in the present case in view of the limited
terms of the service contract Respondent entered
into with ABM. In other situations we have found
parties to be joint employers where the element of
3 Boire, Reg Dir. v The Greyhound Corp, 376 U S. 473 (1964).
4 N.L R B. v New Madrid Manufacturing Co., 215 F 2d 908, 913 (C.A 8,
1954), enfg. in part 104 NLRB 117 (1953).
control of the employment relationship arose in con-
siderable measure out of far more detailed written
contractual arrangements which covered virtually ev-
ery aspect of the parties' day-to-day work activities;'
or where such written arrangements with predecessor
companies governed to a significant degree the later
employment and labor relations of parties making
oral arrangements for maintenance work.6
In the present case, Respondent and ABM had a
rather brief written contract which provided that
ABM would provide janitorial service at certain
wage rates and the requisite supervision to assure ad-
equate service. In practice, however, ABM's supervi-
sors did not appear at or actively perform this super-
visory function at Respondent's Vallejo and Pleasant
Hill theaters. As previously set forth herein,
Respondent's theater managers have exercised actual
control over work activities, personnel problems, and
even contract scope difficulties arising at the theaters
in question. Such actions by Respondent's managers
constitute actual supervision of significant work ac-
tivities, and not just an attempt to give "some direc-
tions" to employees or to police contract perfor-
mance in the extended absence of ABM supervisors'
For, while janitorial tasks may be routine they often
also are of such a nature that they require a meticu-
lous attention to detail and vigilant if not continuous
supervision. In the service vacuum created by the ab-
sence of ABM supervisors at its Vallejo and Pleasant
Hill, California, theaters, Respondent' s managers ac-
tually exercised needed supervision, and otherwise
resolved problems arising at their entertainment cen-
ters in order to keep them functioning in a sound
businesslike fashion. We find that such supervisory
activities on the part of Respondent are sufficient to
constitute Respondent a joint employer with ABM of
the janitorial unit employees here involved, at least in
the circumstances of this case. For, although Respon-
dent sought to obtain from ABM principally a ser-
vice, namely, detailed supervision of janitorial activi-
ties in order to keep its theaters clean and attractive
for the public, the supervision sought was lacking.
Respondent furnished in significant quantum the su-
pervision which ABM under its written contract had
promised to provide. Respondent thus retained con-
trol over essential terms and conditions of employ-
ment of the unit employees sufficient to constitute it
a joint or coemployer of the employees involved.'
The remaining issue is whether Respondent has
See The Greyhound Corporation (Southern Greyhound Lines Division) and
Floors, Inc of Florida, 153 NLRB 1488 (1965), enfd. 368 F.2d 778 (C.A 5,
1966); Hoskins Ready-Mix Concrete, Inc, and Trinity Portland Cement Divi-
sion, General Portland Cement Company, 161 NLRB 1492 ( 1966).
6 Ref-Chem Company, 169 NLRB 376, 378 (1968), enforcement denied on
other grounds 418 F.2d 127 (C.A 5, 1969)
7 The Greyhound Corporation, supra at 1491, In. 8.
6 Floyd Epperson and United Dairy Farmers, Inc., 202 NLRB 23 (1973).
SYUFY ENTERPRISES
violated Section 8(a)(5) and (3) of the Act. We have
found Respondent to be a joint employer with ABM
of the unit of janitorial employees servicing
Respondent's four theaters in Vallejo and Pleasant
Hill, California. Accordingly, we further find that
Respondent's failure and refusal to meet and bargain
with the Union concerning the termination of its
contract with ABM and the contracting out of the
janitorial work to National Home Service on May 1,
1974, violated Section 8(a)(5) and (1) of the Act.'
Further, in our view, it is clear that Respondent
violated Section 8(a)(3) and (1) by seeking to rid it-
self of the necessity of dealing with the Union at the
above locations by terminating its janitorial service
contract with ABM, and immediately subcontracting
such service work to National Home Service, for dis-
criminatory reasons forbidden by Section 8(a)(3). It
is no doubt true that economic considerations were a
factor in Respondent's determination to subcontract
its janitorial work, a fact evident from the extended
negotiations concerning the ABM contract . 1° But, in
our opinion Cargile's frank statement to Figone
that "Ray Syufy wanted to go nonunion in Vallejo"
is significant in view of Cargile's position as
Respondent's director of operations, and more so
considering the precipitate manner in which janitori-
al operations were subcontracted to National Home
Service, a subcontractor whom Furman (a later di-
rector of Respondent's operations) admitted he "as-
sumed" would use nonunion personnel in view of its
low contract bid. We find that the statements of Car-
gile and Haigh " concerning Respondent's desire for
nonunion operations at its Vallejo and Pleasant Hill,
California, theaters, considered in conjunction with
Furman's apparent knowledge that the janitorial ser-
vice being contracted to National Home Service
would be at nonunion rates, and the dispatch with
which that contract was executed, give ample proof
that Respondent was motivated by discriminatory
reasons forbidden by Section 8(a)(3) and (1) when it
terminated its service contract with ABM, and execu-
ted a similar contract with a nonunion contractor,
National Home Service which resulted in the dis-
charge of union members.'Z Accordingly, we con-
9 East Bay Union of Machinists, Local 1304, United Steelworkers of Ameri-
ca, AFL-CIO, and United Steelworkers of America, AFL-CIO (Fibreboard
Paper Products Corp), 138 NLRB 550, 551 (1962), enfd. 322 F.2d 411 (C A
D.C., 1963), affd. 379 U.S. 203 (1964).
10 Respondent 's further contention that its contract with ABM was termi-
nated due to unsatisfactory work by ABM personnel was not established by
the testimony of its theater managers.
11 Averbuck, ABM account executive , testified that Haigh , Respondent's
assistant in charge of construction , inquired "whether or not it was possible
to bring in some other union . . to bring in nonunion people." Informed
by Averbuck that this was not possible , as ABM policy was to deal with the
Union, Haigh responded that he had many, many dealings, and he would
prefer not to have Mr . Figone's local.
741
elude that Respondent also violated Section 8(a)(3)
and (1).
THE REMEDY
We have found that Respondent violated Section
8(a)(5) and (1) by unilaterally subcontracting the unit
work formerly performed by janitorial employees
jointly employed by itself and ABM to National
Home Service on May 1, 1974, without bargaining
with the Union over its decision to do so. We shall
therefore order that Respondent cease and desist
from unilaterally subcontracting such work, or other-
wise making unilateral changes in the terms and con-
ditions of employment of the aforesaid employees
servicing the four theaters here involved without con-
sulting their bargaining agent. Since, as we have pre-
viously recognized, no genuine bargaining over a de-
cision to terminate a phase of operations can be
conducted where that decision has already been
made and implemented, in order to adapt the remedy
to the situation here calling for redress, we shall or-
der the Respondent to restore the status quo ante by
reinstituting its janitorial operation as it existed on
April 30, 1974, and fulfilling its statutory obligation
to bargain.13
Further, since we have found that the actions de-
scribed above, including Respondent's failure and re-
fusal to bargain with the Union, were discriminatori-
ly motivated by Respondent's desire to rid itself of
janitorial employees who were members of or en-
gaged in activities on behalf of the Union, and since
the loss of employment by such janitorial employees
stemmed directly from Respondent's unlawful action
in bypassing their bargaining agent, we shall order
that Respondent offer to reinstate the unit employees
to their former or substantially equivalent positions
without prejudice to their seniority or other rights or
privileges. We shall also order that Respondent make
them whole for any loss of earnings suffered as a
result of Respondent's unlawful action in bypassing
their bargaining agent and entering into an unlawful
subcontracting arrangement which eliminated their
jobs." Backpay shall be based upon the earnings
which they normally would have received from May
1, 1974, when the unlawful subcontracting occurred,
to the date of Respondent's offer of reinstatement,
less any net interim earnings, and shall be computed
on a quarterly basis in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), together
with interest thereon at the rate of 6 percent per an-
12 Town & Country Mfg Co., Inc, 136 NLRB 1022 (1962), enfd 316 F 2d
846 (C.A 5, 1963)
13 Fibreboard Paper Products Corp, supra.
14 Townhouse T V & Appliances , 213 NLRB 716 (1974).
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
num as provided in Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
CONCLUSIONS OF LAW
1. Syufy Enterprises, A Limited Partnership, is an
employer within the meaning of Section 2(2) of the
Act.
2. Service Employees International Union, Theat-
er Janitors Union Local 121, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All janitorial employees employed in
Respondent 's Vallejo and Pleasant Hill, California,
theaters , excluding clerical employees , guards, and
supervisors as defined in the Act constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all times since March 1973 the Union has
been the exclusive representative of all employees in
the aforesaid appropriate unit for the purposes of
collective bargaining within the meaning of Section
9(a) of the Act.
5. By unilaterally subcontracting the janitorial
services at its aforesaid theaters without first bargain-
ing collectively with the Union, Respondent has vio-
lated Section 8(a)(5) of the Act.
6. By discriminatorily discharging the janitorial
employees at its aforesaid theaters , Respondent has
violated Section 8(a)(3) of the Act.
7. By the foregoing conduct, Respondent has in-
terfered with, restrained, and coerced its employees
in the exercise of rights guaranteed them by Section 7
of the Act, thereby violating Section 8(a)(1) of the
Act.
8. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Syufy Enterprises , A Limited Partnership, San Fran-
cisco, California , its officers, agents , successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Service
Employees International Union, Theater Janitors
Union Local 121, as the exclusive bargaining repre-
sentative of Respondent 's employees in the appropri-
ate unit with respect to wages, hours, and other terms
and conditions of employment; and from unilaterally
subcontracting unit work or otherwise changing the
wages , hours, and other terms and conditions of em-
ployment of the aforementioned unit employees
without prior bargaining with the above-named
Union or any other labor organization they may se-
lect as their exclusive bargaining representative. The
appropriate unit is:
All janitorial employees employed at
Respondent's Vallejo and Pleasant Hill, Califor-
nia, theaters, excluding clerical employees,
guards, and supervisors as defined in the Act.
(b) Discouraging membership in the above-named
Union, or any other labor organization, by unilater-
ally subcontracting the work of employees in its jani-
torial service unit to other employees, or otherwise
discriminating against its janitorial employees in re-
gard to hire or tenure of employment or any terms or
conditions of employment.
(c) In any other manner interfering with, restrain-
ing, or coercing its janitorial employees in the exer-
cise of their right to self-organization, to form, join,
or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or pro-
tection as guaranteed in Section 7 of the National
Labor Relations Act, as amended, and to refrain
from any or all such activities, except to the extent
such right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment as authorized in Section 8(a)(3) of the
Act, as modified by the Labor-Management and Dis-
closure Act of 1959.
2. Take the following affirmative action which it is
found will effectuate the policies of the National La-
bor Relations Act, as amended:
(a) Reinstitute the janitorial operation as it existed
on April 30, 1974, at Respondent's four theaters in
Vallejo and Pleasant Hill, California, and offer to all
janitorial employees employed at said theaters on
such date immediate and full reinstatement to their
former jobs, or if those jobs no longer exist, to sub-
stantially equivalent positions without prejudice to
their seniority or other rights and privileges, and
make them whole for any loss of pay suffered by
them in the manner set forth in the above section
entitled "The Remedy."
(b) Upon request, bargain collectively in good
faith with Service Employees International Union,
Theater Janitors Union Local 121, as the exclusive
representative of the Respondent's employees in the
appropriate janitorial unit servicing the four theaters
of Respondent in Vallejo and Pleasant Hill, Califor-
nia, with respect to wages, hours, and other terms
and conditions of employment.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
SYUFY ENTERPRISES
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.
(d) Post at its theaters in Vallejo and Pleasant Hill,
California, copies of the attached notice marked
"Appendix." 15 Copies of said notice, on forms pro-
vided by the Regional Director for Region 20, after
being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
15 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 read "Posted Pursuant to a
Judgment of the United 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
After a trial in which all sides had the opportunity to
present their evidence, the National Labor Relations
Board has found that we violated the law and has
ordered us to carry out the Order of the Board and
abide by the following:
WE WILL NOT refuse to bargain collectively
with Service Employees International Union,
Theater Janitors Union Local 121, as the exclu-
sive representative of our employees in the fol-
lowing appropriate unit:
All janitorial employees at our Vallejo and
Pleasant Hill, California, theaters, excluding
clerical employees, guards, and supervisors as
defined in the National Labor Relations Act.
WE WILL NOT unilaterally subcontract janitori-
al unit work or otherwise make changes in the
wages, hours, and other terms and conditions of
employment of our janitorial employees without
prior bargaining with the above-named Union,
or any other union our janitorial employees may
743
select as their exclusive bargaining representa-
tive.
WE WILL NOT discourage membership in Ser-
vice Employees International Union, Theater
Janitors Union Local 121, or any other labor
organization, by unilaterally subcontracting the
work of employees in our janitorial service unit
to other employees, or otherwise discriminating
against our janitorial employees in regard to hire
or tenure of employment or any term or condi-
tion of employment.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights under Section 7 of the
Act.
WE WILL bargain collectively with Service Em-
ployees International Union, Theater Janitors
Union Local 121, as the exclusive bargaining
representative of our employees in the appropri-
ate janitorial unit with respect to wages, hours,
and other terms and conditions of employment.
WE WILL reinstitute our janitorial operations
as they existed at our theaters in Vallejo and
Pleasant Hill, California, on April 30, 1974,
prior to the time we subcontracted such opera-
tions to National Home Service after unilateral-
ly terminating our janitorial service contract
with American Building Maintenance Compa-
ny.
WE WILL offer to all janitorial employees em-
ployed at the aforementioned theaters on April
30, 1974, and discharged as a result of our
wrongful action in subcontracting our janitorial
operations to National Home Service immediate
and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equiv-
alent positions without prejudice to their senior-
ity or other rights and privileges, and make them
whole for any loss of pay suffered by them as a
result of our illegal conduct.
SYUFY ENTERPRISES, A LIMITED PARTNERSHIP
DECISION
STATEMENT OF THE CASE
ALLEN SINSHEIMER , JR., Administrative Law Judge: The
above proceeding was heard on September 12, 13, 16, 23,
and 30, 1974, at San Francisco, California. The complaint I
and notice of hearing issued July 31, 1974, and an amend-
ment to the complaint on August 23, 1974. It alleges viola-
tion of Section 8(a)(5) and (3) of the Act and also 8(a)(1).
The issues involve (1) whether or not Respondent and
1 Based on a charge filed May 16, 1974
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Building Maintenance Company, herein called
ABM, were joint employers of certain employees here in-
volved; (2) and, if so, whether Respondent as such joint
employer improperly terminated the employment of cer-
tain persons without negotiating with the Union with re-
spect thereto.
Upon the entire record, including my observation of the
witnesses and after due consideration of the briefs of the
General Counsel, the Charging Party and Respondent, I
make the following:2
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent is a limited partnership with its principal
office and place of business in San Francisco , California,
and at all times material has engaged in the operation of
motion picture theatres in various locations in California.
During the past year, Respondent received gross revenues
in excess of $500,000 and during the same period it pur-
chased and received goods and supplies valued in excess of
$50,000 directly from persons located outside the State of
California . I find that Respondent is and at all times mate-
rial has been an employer engaged in commerce and oper-
ations affecting commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Service Employees International Union, Theater Jani-
tors Union, Local 121, herein called the Union, is a labor
organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction and Background
Syufy Enterprises, is a large theater owner and operator
with numerous theaters in California. Prior to collective-
bargaining negotiations , in 1973 , there had been collective
bargaining between a multiemployer unit, including Syufy
Enterprises, and a multiunion group covering numerous
Locals in Northern California, including Alameda, Contra
Costa Counties and San Francisco . One of the unions in
the multiunion group was Local 121. In 1973 the overall
group was broken down into smaller groups. There was
bargaining between a multiemployer unit, including Syufy,
with Local 121 with respect to certain theaters in the East
Bay, but which did not include the theaters of Syufy which
are the subject of the instant proceeding; i.e., the three
theaters then in existence , two in Vallejo and one in Pleas-
ant Hill , and the Four-Plex in Pleasant Hill which was not
in existence at that time . As a result of the 1973 negotia-
tions, a collective-bargaining agreement was entered into
between the multiemployer unit and Local 121 which is
still in existence and governs the relationship between these
employers (including Syufy) and Local 121 at a number of
East Bay theaters in Alameda and Contra Costa Counties
2 Certain errors in the transcript are hereby noted and corrected.
but does not include those here involved .3 Also at the same
time, there was a multiemployer unit in San Francisco
which negotiated separately with Local 9. The bargaining
involving theaters other than those here involved was joint
but separate contracts were entered into by the respective
employers. There were no intervening maintenance con-
tractors involved.
Although prior to 1973, the theaters here involved had
been a part of multiemployer bargaining, there were evi-
dently individual employer contracts. Also, from Novem-
ber 1971 to February 1973, the date of expiration of the
prior multiemployer bargaining contracts, Syufy Enterpris-
es, had subcontracted the janitorial work for the theaters
here involved, then in existence, to an enterprise known as
Solano Janitorial Service. Accordingly, Syufy utilized a
subcontractor from November 1971 to February 1973 with
respect to three of the four theaters herein.
Upon the termination of the contract in February 1973,
Syufy directly employed the janitors at the same three
theaters.
B. Relationship Between Syufy and Local 121 to December
26, 1973
Prior to the Solano Janitorial Service subcontract in
1971, Respondent had directly employed members of Lo-
cal 121 as janitors at the theaters in Vallejo and Pleasant
Hill since as early as 1966. During most of that time, it
employed the same individuals and except for the period of
the Solano Janitorial Service they were under the direction
of Syufy's manager of personnel. Solano Janitorial Service
also retained and employed the same janitors who had
been employed by Syufy.
Upon the expiration of the multiunit agreement on Feb-
ruary 14, 1973, which had been entered into originally in
1968, Respondent sought to separate from the multiem-
ployer unit its two locations in Vallejo and its Century 21
theater in Pleasant Hill. The Union , after first questioning
the legality thereof, agreed to such separation and negotia-
tions commenced in March 1973 between Syufy and Local
121 to cover a unit composed of these locations. The par-
ties were represented by Frank Figone, secretary-treasurer
of Local 121 and James Cargile, Respondent's (Syufy's di-
rector of operations) who met on numerous occasions with-
out resolving their differences. Syufy, following the termi-
nation of the Solano subcontract, agreed to employ the
same personnel temporarily and to continue the terms of
the expired contract but without specifying any time dura-
tion.
Separate bargaining for the three theaters was sporadic
but the record does not reflect a failure by Syufy in its duty
to bargain. Meetings were held and the positions of the
parties were set forth and discussed. Syufy said that it de-
sired to contract the work to an independent contractor.
Local 121 indicated there was a problem about subcon-
tracting the work and opposed any change in the manning
of the work; i.e., the number of hours and shifts required to
3 With respect to Syufy Enterprises , said contract governs the wages,
hours, and working conditions of individuals represented by Local 121 in a
number of theaters in Alameda and Contra Costa Counties , other than the
theaters here involved.
SYUFY ENTERPRISES
perform the work . Syufy indicated its concern with the eco-
nomic burden at the Vallejo theaters . Figone testified there
were four or five discussions between March and Septem-
ber. Cargile said there were several meetings and telephone
calls in addition to correspondence.
The aim of contracting the work to another employer is
reflected in correspondence which refers to the prior con-
tracting and Syufy 's desire to do so in the future . As stated,
Local 121 considered subcontracting to be a problem. Fi-
gone testified that at one of the meetings in March 1973,
that Cargile stated that Syufy did not want the theaters to
be staffed by personnel belonging to the Union and would
not tolerate any further increases in expense at these loca-
tions . Figone testified , "Mr. Cargile told me that Ray
Syufy wanted to go nonunion in Vallejo and that he didn't
want any further increases in his theaters . I still wanted to
continue to negotiate ; I still phoned him up." With respect
to the foregoing , Cargile testified that he and Figone met
and discussed a contract for the Vallejo and Pleasant Hill
theaters . Figone proposed they accept the Association
Contract and Cargile replied that under the economic con-
ditions that existed within the theaters , it was impossible to
do so.
On August 28, Syufy again requested a meeting regard-
ing subcontracting or solving the problem as to the janitors
at the three theaters . A charge was filed by the Union alleg-
ing failure to bargain by Respondent by not adhering to an
Association settlement , etc. Subsequently , this charge was
dismissed by the Regional Office.
Following the dismissal of the charge , apparently noth-
ing occurred between the parties until December 1973. At
that time, Syufy was remodeling at Century 21 in Pleasant
Hill to construct some new and additional theater opera-
tions (herein referred to as the Four-Plex) which could be
subjected to the pressure of a picket line. About 2 weeks
before Christmas 1973, Figone of Local 121 and Jack
Haigh , Syufy's assistant in charge of construction , met at a
coffeeshop and discussed the four theaters . Cargile , the op-
erations manager , was no longer with the Company in that
position . As indicated , Figone did not deal with Cargile's
successor - but with Haigh . According to Figone , Haigh ex-
pressed Syufy's desire to hire a contractor as had been its
indicated position since March . Figone testified he provid-
ed Haigh with the names of several maintenance contrac-
tors , including American Building Maintenance Co., here-
in called ABM .4 Haigh testified that he didn 't recall Figone
giving him the names of contractors including ABM but
that he had known of ABM for many years and it had been
recommended by another theater operator. Figone also tes-
tified that he had no objection to the use of maintenance
contractors . Figone testified that there was reference to a
labor dispute over the manning of hours. Subsequently,
Figone testified he had told Haigh that he had been au-
thorized by his executive board to place a picket line and
ask his international for strike sanctions . Figone also, in
December 1973, so advised Alvin Averbuck of ABM.
Haigh , on direct examination , testified at the coffeeshop
meeting that Figone "wanted to see if we could negotiate a
A nationwide janitorial contractor with more than 8,000 employees op-
erating in over 60 cities in the United States and Canada.
745
deal with our people and him for the janitorial services."
Haigh added that Figone also wanted to "come to some
conclusion over hiring his people in our theaters ," but did
not mention any names . Haigh , on cross-examination, said
that in his meeting with Figone there was no discussion
regarding employment of his (Local 121) members.
C. Respondent's Negotiations and Agreement With ABM
Haigh communicated with ABM on his own initiative.
In response to Haigh's telephone call to ABM, Alvin Aver-
buck, then an account executive or salesman for ABM, met
Haigh three or four times in Pleasant Hill.5 Haigh indi-
cated that he wanted service by ABM only in Pleasant Hill.
Averbuck spoke to Figone and then told Haigh that ABM
would have to work with Figone who insisted that the Val-
lejo theaters be included in the ABM contract. Syufy did
not desire this because the Vallejo theaters were said to be
suffering economically. These latter theaters were eventu-
ally agreed to at a meeting thereafter between Haigh and
Averbuck in which Averbuck told Haigh that Figone was
threatening a picket line where the construction project
was proceeding. Haigh was also made aware of their threat
directly by Figone when Haigh called Figone in between
meetings with Averbuck. Thereafter, Haigh negotiated a
contract with ABM for the three existing theaters and also
the new Four-Plex. Averbuck stated that as account execu-
tive and representative of ABM, he had authority to nego-
tiate a contract and said this was not limited in any re-
spect.6 The negotiations proceeded, particularly with
regard to economic terms, with Haigh desiring to keep the
cost down and Averbuck seeking to work out an agree-
ment. The result of this was that the matter of window
cleaning by the janitors was omitted to hold down the cost
and it was provided that Syufy would furnish its own sup-
plies. Normally, ABM furnished supplies except for certain
disposables I but Syufy believed that it could furnish them
at less cost than ABM since it was buying them in large
quantities for all of its theaters. The contract accordingly
varies in said respect from the normal ABM agreement.
D. The Matter of Supervision Under the Contract
There is considerable dispute between Syufy and ABM
with respect to the extent of supervision exercised and by
whom. The contract in the paragraph entitled "Supervi-
sion" provides:
SUPERVISION
Regular supervision is maintained over all working
personnel. Our service operates 24 hours a day. Our
Supervisory staff has been promoted to their positions
5 Averbuck's son is a partner in the law firm that represents the Charging
Party.
6 Such testimony by the purported agent is not necessarily conclusive of
the fact . However, his superior, Dennis Isheim , did testify that Averbuck
had authority to negotiate and make oral representations , although Isheim
testified as set forth post he was unaware of any variation from the written
contract provisions as to supervision or any alleged oral agreement re-
specting supervision by Syufy, testified to by Averbuck post.
7 These are presumably items used in restrooms , such as toilet tissue,
towels, etc.
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on ment and length of experience . It is American's job
to see that all American activities are properly coordi-
nated with the Customers' operations , modify assign-
ments if and when necessary , instruct , inspect and cor-
rect the working personnel , make needed adjustments,
check requisitions and dispense supplies and equip-
ment, train new employees, make "on the job" inspec-
tions with or without the Customer's own representa-
tive, and do everything possible to assure complete
harmony between American's employees and
American's customers.
Averbuck testified in essence that Haigh had asked to
have the right for Syufy to jointly supervise the employees
with ABM, and that this had been agreed upon. To evalu-
ate this issue of supervision , testimony will be set forth in
some detail as to what was said with respect thereto.8
With respect to supervision, Averbuck testified:
A. Right. Mr. Haigh questioned me as to the super-
vision of these employees.
Mr. Haigh told me that he had had bad experience
in the Vallejo supervision of the employees.
Well, I told Mr. Haigh that we had supervisors who
would supervise employees, and that that was part of
their job, and that they would do it.
Q. What did Mr. Haigh say, if anything?
11 s s s
A. THE WITNESS: Mr. Haigh said, to the best of my
recollection , that the managers should be able to tell
the janitors what to do in case anything came up that
they wanted to have done.
Q. Did you say anything?
A. I told him that was fine.
Averbuck was then asked about a discussion with Haigh
about requests regarding rights of removal of employees
and testified:
Q. Can you tell me, to the best of your recollection,
what Mr. Haigh said and what you said?
A. Well, I told Mr. Haigh that if they were not sat-
isfied with an employee to call us and that the employ-
ee would be disciplined or he would be terminated.
Averbuck also testified on cross-examination as to supervi-
sion:
Q. When you negotiated this contract, or any con-
tract, isn't your main selling point that you supervise
and see that the job is done well?
8 An issue raised in this respect is the parole evidence rule and its applica-
tion The contract as set forth reflects ABM would conduct supervision but
does not prohibit Syufy from participating therein . Furthermore , as set forth
hereafter , there is a substantial amount of testimony as to what supervision
occurred and by whom . I believe under the circumstances in order to evalu-
ate the issue of thejoint employment relationship , it is necessary to consider
what was said by the parties as well as what in fact occurred . I note in this
connection that both the Board in Printing Industries of Northern California.
204 NLRB 576 ( 1973), and the court in Communication Workers of America
v Pacific Northwest Bell Telephone Co 337 F 2d 445 (C.A. 9, 1964). indi-
cated the parole evidence rule is particularly inappropriate in the area of
labor relations Accordingly, I am considering the evidence set forth with
respect to the matter as set forth hereafter.
A. Yes, sir.
Q. You have been a salesman for many years, isn't
that right?
A. Yes, sir.
Q. And when you make your sales pitch, you em-
phasize the supervision that you provide, don't you?
A. Yes, sir.
Q. You made that pitch to Syufy, didn't you?
A. I made part of that pitch because Syufy took
over the other part of that pitch.
Q. You made that pitch to Jack Haigh , didn't you?
A. Yes, I did.
Q. And you told him you included it in the con-
tract , didn't you?
A. Yes.
Averbuck further testified that the subject of supervision
was a major part of the discussion and occurred on two or
three occasions during the period of December 18 through
27.
Q. (By Mr. Dvorin) There was a statement made by
counsel with respect to asking whether you made a
pitch regarding supervision, to Mr. Haigh.
Can you explain what that pitch was? What you
said and what Mr. Haigh said, so the record is clear on
that?
A. At the start of it I told Mr. Haigh "That Ameri-
can Building Maintenance Company has an inspec-
tion service. We have a girl that goes around and in-
spects. We have a supervisor who inspects. And I am
available for inspections."
This is my regular pitch as regard to the way that I
go. And that such supervision would be given.
Averbuck further testified:
Q. (By Mr. Dvorin) Whether what you say as to
what the final and binding status is?
A. Yes, the pitch is incorporated as part of the con-
tract.
Q. Was that the case in this situation?
A. Yes.
Q. Nothing further was said with regard, other than
that, with regard to ABM doing the supervision?
A. Much more was said about supervision.
Q. Would you please tell me what, just to clarify it
for the record?
A. Mr. Jack Haigh wanted it understood by us, and
that was part of the negotiation; that they would have
the right to supervise and to deal with these employees
because of the hours in the theaters, the difficulties
involved, and that they would take responsibility of
dealing with these employees.
Q. Was that exclusive responsibility or did both
ABM and Syufy have a responsibility for supervision?
A. Both.
MR. DvoRIN: I have no further questions.
On further cross-examination Averbuck testified:
Q. (By Mr. Holmes) What do you mean by the
right to deal with employees?
A. That Mr. Haigh would have the right that in
SYUFY ENTERPRISES
case he felt that somebody was doing a poor job, to
call us up and say that he didn't want him on the job.
In case he wanted to give instructions to these peo-
ple that he would have the right, through his manag-
ers, to give instructions to these people. As regard to
service; what is to do done.
With respect to the same matter of supervision, Haigh
testified as follows:
Q. Let me draw your attention to the second page
of the contract, General Counsel's 7.
There is a clause there headed "Supervision."
Did Mr. Averbuck discuss the matter of supervision
with you?
A. That is what he talked about all the time.
Q. What did he say?
A. He said that they provided supervision at all
times during the time the janitor was there.
They would come around when he wasn't there and
make sure that it was well taken care of.
And this is why they could do the job.
a r r s
Q. (By Mr . Holmes) Did he say that he would have
a supervisor continually on the premises?
t n t #
THE WITNESS: Not continually, No.
Q. (By Mr. Holmes) What did he say about it?
A. He brought a man in and introduced him to me.
He said , "This gentleman will be the supervisor. He
will come into this theater and see to it that it is main-
tained, it is cleaned, and he will supervise the people
that are working here."
As set forth, Averbuck stated that he was authorized to
negotiate a contract and make oral representations.
Averbuck's supervisor, Dennis Isheim , division manager,
testified that both Gary Green, assistant branch manager,
and Alvin Averbuck, account executive, had authority to
negotiate new accounts, discuss how much it would cost
and the conditions under which ABM's employees would
work, whether or not various provisions would be allowed
or deleted in the contract, to make oral representations or
interpret certain portions of the contract, explain certain
portions of the contract to a prospective account, and had
"authority to make those representations binding on
ABM." Isheim also testified that the contract paragraph
entitled "Supervision" was a standard paragraph; he did
not specifically discuss that paragraph with Averbuck, that
he did not check to see if it was included; and it was
standard to put it in without checking. Isheim also testified
that to his knowledge there were no special arrangements
made with Syufy varying the terms of that clause (re super-
vision) of the written contract. Isheim further testified that
to his knowledge, there was no special arrangements for
Syufy theater managers to give instructions or supervision
directly to the janitors. Isheim also said "it is not uncom-
mon for a customer to make complaints occasionally and
directly to janitors if they see them, or to leave notes for
them if there is anything they want particularly attended to
747
or that they thought was overlooked." During the course of
the negotiations, Averbuck brought Treadway, a supervi-
sor, to see Haigh and introduced him as the ABM supervi-
sor. In addition, as set forth, after Averbuck said he told
Haigh that Syufy' s manager should be able to tell janitors
what to do in case anything came up they wanted to have
done, he said that ABM should be called if an employee
was to be disciplined or terminated. In one instance, Aver-
buck, upon a complaint from Whiteman of Syufy, that
counter tops were not cleaned, suggested that he speak to
the janitors about the matter, assuring him that the janitors
would listen .9 Averbuck was also asked and testified:
Q. Have you supervised janitorial work which has
been done by employees of ABM which work was per-
formed after regular business hours, and in that situa-
tion known of occurrences where a customer, or an
employee of a customer, would call things to the atten-
tion of a janitor?
Such as, "You forgot to empty the waste basket last
night."
A. Yes, sir.
Q. Is this a fairly common thing in the janitorial
business?
THE WITNESS: Generally, this is the rule.
However, at the Paramount Theatre we have an ar-
rangement by which the Manager will not give any
instructions whatsoever to a janitor.
Everything must be done through our supervisor.
JUDGE SINSHEIMER : Let me ask you this question:
At the Paramount Theatre do you have a supervisor
who is regularly there?
THE WITNESS: Every time the job is done someone
from our firm has the responsibility to go down and
check it out.
JUDGE SINSHEIMER : Now, is that true with the job
that you were doing for Syufy at the theaters involved
in this case?
Was there someone there at all times who-from
ABM who was to be supervising work?
THE WITNESS: No, Sir.
Haigh also testified as to supervision:
Q. What did you mean by discussing any com-
plaints your company might have with respect to the
janitorial service?
A. Well, I told him how unhappy we were, and that
our manager had problems with the people that were
working there.
s
9 Averbuck testified as follows-
Q. (By Mr. Dvorin) Now, can you tell me the conversation as best as
you can recall between yourself and Mr Whiteman?
A Mr Whiteman called up and he said that there was dust on the
counter top
During the course of discussion I explained that the thing was agreed
that we would not clean the counter tops That would be done by the
people who served there.
Q. Did you-Excuse me
A. Then I told him that this job was just started and, "Why don't
you tell the janitors. They will listen to you We are trying to get this
thing off on a good footing."
"You just tell the janitors what you want done. I am pretty certain
they will listen to you"
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He emphasized supervision and that that was what I
was buying was his supervising.
All those people would be cleaning the theater, and
that they would see to it that the theaters were clean.
Q. Mr. Averbuck assured you that supervision
would be present whenever necessary?
A. Whenever necessary . That they would supervise
the theaters.
Q. Well, you said you were buying supervision.
You were interested in that area , weren't you?
A. That is right.
Q. And that would be the area of really great impor-
tance, wouldn't it?
A. That is why I hired American Building Mainte-
nance . 11 [Emphasis supplied.]
As indicated , supra, the giving of certain instructions by
customers to employees was common in the janitorial busi-
ness and as set forth , in the instance , Syufy had first direct-
ly contacted ABM's representative with respect thereto. In
addition, there is the testimony of Averbuck as to the right
of Syufy to call ABM in the event of a poor job as well as
Averbuck 's testimony that instructions could be given
through Syufy's managers . Further , both Isheim and Green
said that Averbuck was a salesman who would have noth-
ing to do with a contract from about 2 to 4 weeks after he
had negotiated the same . Averbuck himself testified that
after he negotiated a contract it was turned over to the
operating people who , starting with Treadway , went up the
ladder to Isheim . In an affidavit that Averbuck gave to the
NLRB , he stated : "As it worked out ABM has exercised
the supervision over the employees of the four theaters."
Averbuck testified that the reason for changing his testimo-
ny was that he had not consulted certain sales records be-
fore signing this . However, the latter except perhaps as to
one reflected incident do not appear sufficient to support
the variation in testimony unless they could be said to aid
recollection in some unspecified way. Also to be noted is
Figone's testimony:
Q. If a janitor is doing his work in the morning and
there is a matinee he may be there still doing his work
when the manager of the theatre arrives.
Isn't that correct?
A. In some cases.
Q. That is just a coincidence though , isn't it?
A. Yes. l'
The foregoing appears to reflect: (1) That Syufy wanted
to have its managers on occasion able to ask for a janitor to
do certain work . This would not be unusual , but rather an
expected manner of operation; and (2 ) Averbuck's testimo-
ny as to there being an agreement for joint supervision is
not consistent with his affidavit , nor consistent with his
testimony that Syufy Representative Whiteman had con-
tacted him to request that certain work be performed, nor
with other testimony set forth above . 12 Further , Averbuck's
10 Haigh admitted that if he were a manager he would, on occasion, like
to tell a janitor what to do.
11 The janitors had keys so they could enter and leave
12 I also have noted his repeated repetition of this alleged joint supervision
during his testimony
testimony that supervision was to be in "both" is in the
form of a conclusion rather than probative testimony of
what was said or done . Additionally , as set forth, Aver-
buck , a salesman for ABM , is also the father of an attorney
in the law firm representing the Charging Party . As a sales-
man, Averbuck obviously touted his client . Finally, as a
witness he tended to testify in terms of conclusions with
amplifications and elaborations rather than statements of
what was or was not said . The result was the not unfamiliar
problem of coloration of evidence with a witness' view-
point and inferences . Accordingly, I am not crediting his
version as to the extent of the supervision that was sought
or bargained for. I conclude that the supervision that was
sought , bargained for, and agreed upon was that ABM
would do the supervising and that Syufy would have the
right to make requests at times of employees to do certain
jobs or to correct certain things . 13 What occurred actually
re supervision following the contract will be set forth here-
after.
E. Conflict Between Haigh and A verbuck as to Employment
of Nonunion Personnel
According to Averbuck , Haigh wanted to hire nonunion
personnel . Haigh denied that any such request was made.
Averbuck testified:
A. Between the period of December 18th and the
25th , Christmas day, there were numerous discussions
about union representation.
Q. Can you tell me what was stated at that time,
please?
A. Mr. Haigh inquired about it.
I told him that American Building Maintenance
would do business with Local 121. That was our poli-
cy.
He wanted to know whether or not it was possible
to bring in some other union , or to bring in nonunion
people.
I told him , "No. That if you did business with
American Building Maintenance it would have to be
Local 121."
Haigh denied requesting that any particular persons be
hired and particularly denied requesting nonunion person-
nel. Since Syufy had evidently not been entirely satisfied
with the janitorial service as indicated by Haigh , supra, I
conclude that there may have occurred discussion about
who would be employed and whether they would be union
or nonunion . According to Haigh , when Averbuck told
him he had to work with Figone , Haigh told him that was
his problem , not Haigh 's. While there may have been some
discussion of who would be hired or used , I do not there-
from find that Haigh made any request that nonunion peo-
ple specifically be hired although he may have indicated
that he didn ' t get along too well with Figone.
13 As set forth post Supervisor Savage asked Janitor Pangelinan to clean
his office, etc., which Pangelinan did, and then reported to his supervisor,
Robinson, in accordance with instructions given him by ABM as set forth in
fn 14, infra
SYUFY ENTERPRISES
F. Application of the A BM Contract
Upon the entry into the contract between Syufy and
ABM, the same persons who had been employed continue
to work . Figone asked Isheim (of ABM ) if he would take
over the janitors then employed and Isheim agreed . Isheim
testified that although the employment of the same persons
as janitors by ABM was not normal , it has been done on
other occasions.
The janitors made out applications for employment with
ABM which were signed and dated about January 3, 1974.
However, their payroll period commenced December 27,
1973. These employees filled out a variety of papers for
ABM, and also received forms and instructions from
ABM.
These included (1) the application for employment form,
together with personnel action form authorizing hiring and
form showing hiring had occurred; (2) application for fi-
delity bond coverage ; (3) notice to employees explaining
how to work without a supervisor present and how to fill
out his timecard ; (4) an instruction and information sheet;
(5) a notice to employees stating procedures in case of inju-
ry and setting forth required procedures if the employee
cannot report to work ; (6) safety instructions; (7) a time-
card form ; (8) a personnel action notice of termination;
and (9) an unemployment insurance questionnaire.
The instruction and information sheet advises as to sus-
pension, telephone number of company , re reporting inju-
ries, re reporting to work , unauthorized personnel , comple-
tion of job , breakage , alcoholic beverages, ABM
identification card , smoking, theft , weapons , gambling,
selling, damage to property , loafing , obeying orders, po-
liteness, etc.
As to politeness it states:
If you should meet someone on your job, be polite and
tend to the business of cleaning his premise. If he
should ask you to do something , be pleasant and do it.
Report the incident to your supervisor the next day.
They became participants in the pension and welfare plan
that ABM was party to with the International Union and
various locals . Two of ABM's supervisors were designated
to supervise their work, one was Al Treadway for the
Pleasant Hill Theaters, the other was Robinson who was to
supervise the theaters in Vallejo. Under Robinson's con-
tract with ABM, he was to supervise and see that service
was provided , to inspect at least weekly , submit documents
for new hires , get timecards in on time , and so forth. It is
clear that the employees were on the payroll of ABM, they
were hired by ABM, and were to be terminated by ABM.
Other representatives of ABM including Wilkerson,
Green , Isheim , and a Ms. Warner made inspections and
were available to check on the work of these janitors, in all
seven different people could make random or specific
checks . However , as far as the record reflects, from the
time of the contract on December 27 to notice of termina-
tion March 28, and termination on April 30, it does not
appear that any actual inspections or reports of such were
made by representatives of ABM. Nor was there actual
supervision of the work on the job so far as the record
reflects . A point has been made that no keys were given to
749
ABM representatives except for the janitors. However, the
record reflects that certain representatives of Syufy, includ-
ing Haigh, did not have keys to the premises. Isheim testi-
fied he told Wilkerson, a district representative over Super-
visor Treadway and also Treadway that they should have
keys to the accounts. According to Isheim, when Wilkerson
and Treadway attempted to obtain keys, "they were told at
one time . . . that they would try to get keys for them," but
keys were not obtained. The timecards of the approximate-
ly four or five janitors involved were either mailed in, if
under Supervisor Treadway, or by those supervised by
Robinson, delivered to him.
There were no set hours of work except that the work
was to be done outside the time of the performances and it
was generally left to the janitors as to when they would
work. Stanley Bueno, a janitor at Cine 21, testified that its
manager, Kuykendall, was the only person with whom he
discussed job assignments. Bueno also testified:
Q. Sir, can you tell me, did it ever occur that during
one of your shifts, perhaps due to the amount of work,
you were unable to complete all the assignments
which were ordinarily to be done during that shift?
A. Yes, many times.
Q. Did you ever discuss this with Mr. Kuykendall,
that you hadn't completed something?
A. Yes. Being in the theatre working, I have told
him that there were times that I haven't been able to
finish a certain section , that I would try to do the best
I could. And he has said that it was OK, try to pick it
up another day, or something like that, the best I
could.
Bueno never saw Robinson the ABM supervisor, at the
theater. Although he saw Robinson at Robinson's home,
he was not questioned about the job. Kuykendall also gave
Bueno an assignment to let in concessionaires , sign for de-
liveries and let in carpet cleaners. According to Bueno, he
had never signed for deliveries prior to the commencement
of the ABM contract. Bueno also testified that he wanted
his girl friend to work with him-instead of him working 6
hours, each would work 3 hours. He asked Kuykendall if
that would be all right. Kuykendall told him that all he was
interested in was a clean theater and that the manner in
which Bueno did it was up to him.
Francisco Pangelinan, a janitor at the Auto Movie in
Vallejo testified he had never met Treadway , never seen
Robinson at the theater while the ABM contract was in
effect, and that his nonroutine job assignments came from
Manager Bill Savage of Syufy. According to Pangelinan,
on one occasion, Savage directed him to rent a pump, us-
ing his own car as transportation, and use it to clean up
water leakage at the theater. He said that Savage also told
him to regularly clean the room where the popcorn was, to
let concessionaires in, to clean windows and vents, and to
clean and wax Savage's office, duties which were not cov-
ered by the contract. Pangelinan commented on this to
Robinson 14 who agreed these duties were not in the con-
tract, but Pangelinan performed the work anyway. Pangeli-
14 This performance of extra work and then taking it up with ABM super-
Continued
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nan testified Savage had told him to do this work and he
did so.
On one occasion Whiteman, a Syufy manager, did tele-
phone ABM to ask how to get janitors to clean countertops
which ordinarily IS were not covered by the contract. As set
forth, Averbuck who received the complaint suggested that
Whiteman tell the janitors what to do and call him back if
he had further problems.16
The record further reflects that Pangelinan and Bueno
testified their respective managers discussed with them
what supplies were needed and that both had more than
one such conversation.
Pangelinan also stated that Savage asked him to stay
overtime on heavy days to finish picking up the trash and
that he began staying overtime on such days without com-
pensation.
Bueno further testified that another person named Craw-
ford, not an employee of ABM, also performed the same
kind of janitorial work he did. Manager Kuykendall admit-
ted he hired, directed, and supervised Crawford but testi-
fied he hired Crawford to perform certain special work
cleaning the storeroom, grout, or tile, and graffiti on walls
and tile , seats for candy and gum, etc ., not covered by the
contract. Kuykendall stated some of this work was to con-
form to health and fire law requisites. Kuykendall also said
that Crawford was expected to clean up around this special
work so that, accordingly, he was required at times to
sweep and mop up after performing such work. Bueno tes-
tified he also saw Crawford sweeping otherwise and mop-
ping alongside him. I am crediting Kuykendall's testimony
that Crawford was hired to perform noncontract special
work. Accordingly, I find if Crawford did perform any of
the same janitorial work as Bueno , it was either in connec-
tion with his special assignments or outside the scope of his
employment by Kuykendall.
The foregoing, with respect to the matter of Savage ask-
ing Bueno to do certain work not covered by the contract
does appear to illustrate some supervision by Syufy in that
in these instances its manager sought to have work done
beyond the terms of the agreement with ABM. As indi-
cated, this was reported to Robinson, ABM's supervisor,
who made no point of it. How much this amounted to is
not clear. Apparently, it related to certain work in Savage's
office, to clean the popcorn room, and at least on occa-
sions, cleaning windows. As for the pump incident, it ap-
pears to relate to obtaining a pump because of excess water
so the janitor could perform his normal functions. I am
unable to see particular significance in the letting in of
concessionaires . Presumably , whoever would be on the
premises would let somebody in when required. As for the
matter of Bueno's hours being split with his girl friend, it
appears that the theater manager's attitude was that he was
unconcerned (and wanted to be uninvolved) as long as the
work was done. As set forth, when Bueno couldn't finish
the work on busy days he would so advise Kuykendall who
vision appears to have followed instructions issued by ABM, particularly
item 13 of certain instructions, referred to supra footnote
15 In this case there was a question as to who caused the dust.
i6 Averbuck also told Treadway to check this out but didn't know wheth-
er Treadway did so.
would say OK, try to pick it up another day. While this
may arguably be said to illustrate supervision, it can also
reflect acquiescence in a situation best manifested by the
question: What were Kuykendall's alternatives? He could
not directly discipline or fine Bueno although he could
threaten to complain to ABM. In either case, supervision
would clearly rest with ABM.
As for the matter of supplies it would appear that nor-
mally where janitors needed supplies which were supplied
by Syufy, that the janitors would be asked by the manager
what they needed and the matter thereafter resolved. Ac-
cordingly, the supply situation does not appear to reflect
particular supervision. It should also be noted in connec-
tion with the issue of alleged supervision by Syufy, that the
theater managers were not present during very much of the
time that the janitors were and need not be there at all. 17
Evidently the managers were present some of the time
since certain requests were made to or by them.
Analysis of the foregoing reflects: (1) Requests by Sav-
age to do certain extra work, indicative of some effort to
supervise by him; (2) discussion of supplies which does not
appear to reflect supervision by Syufy; (3) requests to let
certain people in, essentially a matter of convenience which
could normally be anticipated; (4) determination of hours
and work performance by the employees since there were
no set hours, coupled with the attitude of Syufy managers
that as long as the employee gets the job done, that's satis-
factory. Obviously, if the Syufy manager were satisfied,
then there would be no complaint to ABM and it would
not become involved. If the Syufy manager were not satis-
fied, a janitor might expect that the manager would there-
fore notify ABM.
That ABM did not actually send people to check on the
work bears on the issue of supervision. Testimony reflects
that ABM generally supervised or checked where there
were problems and did not do so otherwise. There appears
to be two instances of problems, one relating to the matter
of cleaning of a countertop wherein Whiteman complained
to Averbuck who suggested that Whiteman take it up di-
rectly with the janitor involved. The other relates to a com-
plaint by Syufy's Manager Savage about the work of an
employee named Dio Campo. In this connection, it ap-
pears that ABM did draft a letter to Dio Campo warning
him that discipline would be in order if his work did not
improve. According to Isheim, Wilkerson sought to deliver
the letter but could not locate Dio Campo and brought the
letter back and shortly thereafter Dio Campo quit. Figone
testified concerning Dio Campo:
Q. Did anybody from ABM call you or make a
complaint about the quality of work performed by one
Dio Campo in Vallejo?
s s
A. I believe it was Treadway.
Q. Did he tell you that ABM had received a com-
plaint from Syufy about Dio Campo' s work?
A. Yes.
17 Figone , supra, testified the theater manager present would be coinci-
dental.
SYUFY ENTERPRISES 751
*
Q. Did you receive only one complaint about Dio
Campo?
A. I removed Dio Campo.
Q. After you got the complaint from Treadway?
A. Right.
G. Termination of the Contract
The contract was terminated by Syufy according to its
terms by letter of March 28, 1974, to ABM advising of its
termination as of April 30. Respondent asserted the work
was not being satisfactorily performed. Ernie Furman, di-
rector of operations (formerly division manager), who sent
the March 28 letter, testified that he told Averbuck in a
meeting in Furman's office that the managers were com-
plaining that the theaters were not being cleaned properly.
Furman said that Whiteman had brought him such com-
plaints from the managers about a half dozen times. How-
ever Furman did not specify details as to these complaints.
Whiteman has since left Syufy's employ. Ernie Furman
admitted Syufy had an address for him but had not sought
to contact him. Savage, who purportedly had complaints
about the work, admittedly proceeded to go on vacation
during the course of the hearing. There was no indication
as to why arrangements could not have been effected to
enable him to testify. So far as the record reflects, except
those as to the countertop and Dio Campo, supra, com-
plaints were not directed to ABM or delineated in any way
that would establish or show a basis therefor.
Furman told Averbuck in Furman's office that he didn't
know whom Syufy would use for janitorial services but
would put out bids. Furman admitted this was not true and
Syufy already had a new contractor. Furman testified he
misadvised Averbuck in order to get him out of his office.
Accordingly, based on the above and other record evi-
dence, I conclude and find that Respondent's excuse of
complaints concerning poor workmanship as its basis for
termination of the agreement cannot be substantiated. A
question arises as to whether or not the termination of the
Syufy-ABM contract was automatically improper because
the alleged reason therefor cannot be supported. In my
judgment such conclusion would not follow unless it were
found herein that Syufy and ABM are joint employers, as
asserted by the General Counsel and the Charging Party,
or unless such termination were found to be predicated on
illegal discriminatory motivation.
If not for the asserted claim, a question may be: Why
was the Syufy-ABM contract terminated? An examination
of the contract Syufy entered into with a Mr. "Tau" may
provide an explanation. First, it appears that Syufy did
seek bids for the work sometime prior to March 28, but
received only one from Mr. Tau. Furman admittedly did
not know Tau, his competence or reputation. The contracts
between Tau and Syufy contain no manning requirements,
or hours of work provisions, etc. Under it Tau is to provide
materials, equipment, and supplies other than the restroom
supplies. Furman admitted that the price of Tau's bid led
him to conclude that Tau was nonunion, and subsequently
Furman said that he knew Tau was nonunion.
The record reflects that the contract with Tau was over
$400 less per month than the one with ABM for the Centu-
ry 21 theater and that it was less for each of the other
theaters which had been covered by the Syufy-ABM con-
tract.18
It may be urged that Syufy wanted to get rid of the
Union based on an asserted statement by Cargile to Figone
in March 1973 that Syufy wanted to go nonunion and the
purported statement of Haigh to Averbuck discussed supra
that Syufy desired another union or to go nonunion. As to
the latter statement as set forth supra, at most it would
appear that Syufy did not desire to continue to deal with
Figone since it had not been able to reach agreement. Fi-
gone did testify that Cargile said Ray Syufy wanted to go
nonunion in Vallejo. Cargile does not appear to have de-
nied this statement. While Figone changed certain of his
testimony after thinking about it overnight, in this instance
his version may be correct. I note that Respondent indi-
cated it was having economic difficulties at Vallejo at
times. A reduction in costs would either require a reduction
in manning or in rates from union rates which latter, of
necessity, would require possible other union or nonunion
employees.
While the foregoing may have been expressed, I do not
consider that Syufy's underlying motivation was to dis-
criminate because of the Union. Syufy has had contracts
with the Union as to these theaters and now has contracts
with this Local 121 and other locals of Service Employees
International Union covering its theaters in the San Fran-
cisco Bay Area and elsewhere.
What does appear is that Syufy wanted to reduce the
costs of operating certain theaters so that when the oppor-
tunity arose it proceeded to do so, by terminating the ABM
contract, although it may have asserted other reasons
therefor.
H. Summation
The foregoing does not establish a violation unless (1)
Syufy and ABM are found to be joint employers or (2) it
can be shown that the entry into the contract with ABM
was deliberately designed to eliminate the Union.
As to (2) 1 do not find evidence in the record to support
said contention other than that which reflects that Syufy
and Local 121 had not been able to reach agreement after
a lengthy time period and apparently were at impasse, and
that Syufy indicated it wanted to subcontract either union
or nonunion.
With respect to (1) the record as set forth reflects that:
(1) Syufy and ABM are both large, independent busi-
nesses; (2) ABM operates janitorial services in over 60 cit-
ies, (in the United States and Canada), and employes more
than 8,000 janitors; (3) Syufy has separate contracts with
the instant local and other locals of the Service Employees
International Union; (4) ABM contracts with various lo-
cals of said International; (5) Syufy has contracted with
Local 121 in the past for the theaters here involved (other
18 Under the ABM contract the cost of the janitorial work at the Century
21 theater was $1,489 as of February 15, 1973. with Syufy furnishing sup-
plies. Under the Tau contract it was $1,025 with Tau furnishing supplies.
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than the Four-Plex); (6) Syufy subcontracted from Novem-
ber 1971 to February 1973 for the same theaters herein
(except Four-Plex), it sought to subcontract for thereafter
until (7) it entered into the instant contract about Decem-
ber 26 or 27 with ABM; (8) said contract was entered into
with ABM after extensive discussions between Syufy repre-
sentatives and Averbuck of ABM with particular emphasis
on costs , during which discussions , in order to lower costs
certain items were changed, eliminated , or reduced, i.e.,
window cleaning was eliminated from the contract and
supplies were to be furnished by Syufy (who considered
that would be less expensive ) and manning was according-
ly worked out; (9) supervision was by contract to be per-
formed by ABM; (10) as found above there was oral agree-
ment not for joint supervision but that Syufy could ask
janitors to do things on occasion ; ( 11) hiring and firing
were to be performed by ABM; (12) complaints as to work
performance, regularity, etc., were to be directed to ABM;
and (13) were in fact so directed by Syufy which had the
right to request termination; (14) ABM appointed two su-
pervisors for the janitors and maintained a staff who could
inspect; (15) inspections were not normally made by ABM
unless complaints arose; ( 16) timecards were made out by
the janitors and turned in either by mail or directly to
ABM supervisors; (17) the janitors who had worked for
Syufy were hired by ABM at Figone's request (while not
ordinary practice, this had been done by ABM on other
occasions); ( 18) the janitor executed an employer applica-
tion and other forms and received forms and job related
instructions from ABM; (19) the janitors were paid by
ABM and became part of a national health , welfare, and
pension program which the International Union was a par-
ty to; (20) their work was familiar to them since it was
routine and most of them had performed it for a substan-
tial period of time; (21) their work hours were set by the
janitors (except work could not be performed during per-
formances); (22) in one instance concerning a Syufy com-
plaint to Averbuck of ABM's cleaning, Averbuck of ABM
told Syufy to request the janitor to perform the work; (23)
in an instance of complaint by Syufy, re a janitor, Dio
Campo, ABM drafted a warning letter to him; (24) as set
forth, in one instance, Manager Kuykendall told a janitor,
Bueno, upon his request, to split the work with his girl
friend, that Kuykendall didn't care as long as the work was
done and also told Janitor Pangelinan upon Pangelinan's
request to do the work the next day to do the best he could;
(25)Manager Savage requested Pangelinan to do some ex-
tra work (outside the contract) cleaning his office, which
Pangelinan did but complained thereof to Robinson, ABM
supervisor, which was in accord with instructions issued by
ABM; (26) as indicated the Syufy-ABM contract was ter-
minated as of April 30 on 30 days notice by letter of March
28; (27) the Syufy-ABM contract also provided for an in-
crease in payments to ABM on February 15, 1974, which
coincided in time with an increase in pay for the employees
on February 15, 1974, in the contract between ABM and
Local 121; (28) although evidently requested by ABM,
keys were not furnished by Syufy to ABM representatives:
Not all Syufy officials had keys; and (29) it does not ap-
pear that ABM supervisors or inspectors in fact were at
any of the theaters during the period of the Syufy-ABM
contract.
The foregoing reflects a number of items pro and con.
Among those relied on by the General Counsel are that the
janitors were the same ones employed by Syufy, that there
was an oral agreement for joint supervision which I have
found not to be the case, that directions were given to jani-
tors by Syufy managers-in the manner indicated above,
that ABM did not exercise immediate personal supervision
(except as set forth), that the Syufy-ABM contract was ter-
minable on 30 days' notice and that the wages of the em-
ployees in the ABM-Local 121 contract were indirectly de-
termined by the contract between Syufy and ABM. The
Charging Party and the General Counsel argue that these
have been sufficient to find a joint employer relationship in
other cases.
Before discussing this, I could particularly note one item.
While it does appear there has been some direction of the
janitors by Syufy representatives, it would seem legally un-
likely that any agreement between theaters and a contrac-
tor providing services would be otherwise unless the con-
tractor were paid to provide more supervision under
special circumstances as at the Paramount Theatre referred
to herein."
IV. CONCLUDING FINDINGS
The concept of joint employers is, of course, not new.
Certain items referred to above have been found among
thoses pointing to or found to be part of the elements relied
on to establish a joint employer relationship. However,
these have either been in conjunction with other elements
not present herein or have been more direct or greater in
scope.
Analyses of the cases relied on by the parties will show
none precisely comparable to the instant one. The question
is which appear to be more comparable than others. And
which items therein are most significant?
Among cases cited by the Charging Party and the Gen-
eral Counsel are the following:
Harold A. Boire, Reg. Dir. v. The Greyhound Corp., 376
U.S. 473, 475 (1964), which is cited for the proposition that
the financial and corporate relationship is immaterial. The
most that can be said is that financial and corporate rela-
tionships are not the determinative factors where there is
an independent contractor but rather whether the party
contracting the work or both, where the financial and cor-
porate relationships are separate , possess sufficient indicia
of control to be an "employer." According to the Court:
The Board found that while Floors hired, paid, dis-
ciplined, transferred, promoted and discharged the
employees, Greyhound took part in setting up work
schedules, in determining the number of employees re-
quired to meet those schedules, and in directing the work
of the employees in question. The Board also found that
Floors' supervisors visited the terminals only irregu-
larly-on occasion not appearing for as much as two
days at a time-and that in at least one instance Grey-
hound had prompted the discharge of an employee
19 A special situation where opera , symphony, etc, were performed.
SYUFY ENTERPRISES
whom it regarded as unsatisfactory . On this basis, the
Board , with one member dissenting , concluded that
Greyhound and Floors were joint employers , because
they exercised common control over the employees,
and that the unit consisting of all employees under the
joint employer relationship was an appropriate unit in
which to hold an election. The Board thereupon di-
rected an election to determine whether the employees
desired to be represented by the Union . [Emphasis
supplied.]
While certain of the foregoing elements are present here,
others are not. Syufy does not set up work schedules, the
number of employees required in manning was predeter-
mined by the contract and little work direction is involved
since the work is routine . Here there were no manifested
visits by ABM supervisors allegedly because of the nature
of the work and Syufy apparently did bring about a warn-
ing letter to Dio Campo.
The differences are obvious and in my judgment suffi-
cient to make the cases not comparable.
In Ref-Chem Company and El Paso Products Co., 169
NLRB 376 (1961 ), financial interests of El Paso were in-
tertwined ; El Paso in the contracting agreement reserved
the right to request the removal of virtually any employee,
to approve the number of personnel furnished in each clas-
sification and approve the superintendent and foreman for
each particular job; evidence reflected that these terms
were in fact effected and that El Paso 's approval was re-
quired before a man could be hired. The general foreman
testified El Paso told him whom he could hire, when he
could hire, how much he could pay, and what he was to do
on the job. These and other elements clearly differentiate
Ref-Chem from the instant case.
So also Manpower, Inc., of Shelby County and Armour
Grocery 164 NLRB 287 (1967), wherein Armour could re-
quest certain drivers which would be accommodated if
possible. Armour gave a test run to drivers and furnished a
safety manual and conducted safety meetings . Armour's
dispatcher informed the drivers of their reporting time, as-
signed them runs, and prepared manifests giving the driv-
ers their time of departure , approximate time of arrival,
pickups, and deliveries and approximate day of return.
Armour's dispatcher received driver complaints and had
disciplined a driver. All paperwork completed by drivers
bore Armour's name: The drivers had a bulletin board at
Armours and regarded an Armour's vice president as their
"big boss." Manpower supplied the drivers to Armour pur-
suant to an oral agreement terminable at will . Manpower
hired and fired the drivers, determined their rates of pay
and made deductions as required by law, etc. The Board
accordingly held both Armour and Manpower to be joint
employers. Armour's manifested control makes the case
not in point.
In Floyd Epperson (United Dairy Farmers, Inc.), 202
NLRB 23 (1973), United's transportation manager and
boss of Epperson's drivers posted the schedules and had
authority to modify them and call the drivers directly. He
could and did give them new instructions regarding their
runs. Upon complaint by United, a driver was replaced by
Epperson. Epperson receives payment from United and
753
pays the drivers and after Epperson received a raise from
United, it raised the wages of the drivers.
The Board held:
In our opinion, the evidence indicates that both Ep-
person and United take part in determining matters
governing essential terms and conditions of employ-
ment of the drivers. While Epperson hires the drivers
and determines their rates of pay, United, through in-
creases to Epperson, has some indirect control over
their wages. United establishes the work schedule of the
drivers, has the authority to make changes in the drivers'
assignments, selects routes for the drivers, and generally
supervises the drivers in the course of their employ-
ment. In addition, the Warsaw incident suggests that
United has some control, albeit indirect, over driver
discipline. In light of all the circumstances, we find
that Epperson and United are joint employers of
Epperson's drivers. [Emphasis supplied.]
Again the foregoing reflects far more control and super-
vision by United than by Syufy herein, and hence is clearly
distinguishable.
In Greenhoot, Inc., 205 NLRB 250 (1973), Greenhoot
was a real estate management firm which entered into
agreements to rent and manage buildings. Greenhoot was
authorized to hire, discharge, and pay the wages of the
building employees in accordance with a schedule approved
in advance by the building owner. Although Greenhoot was
responsible for the supervision of building employees, the
owner retained the right to determine if a building superinten-
dent is to be employed and to approve the hiring and retention
of all building employees. The key supervisor was the chief
engineer in nearly all the buildings. Normally the chief engi-
neer and other engineers in the building are retained and
utilized. If it is necessary to employ a new chief engineer,
Greenhoot recruits, screens applicants, and then makes a
recommendation to the building owner who will ordinarily in-
terview and hire the chief engineer. The chief engineer there-
after directs the day-to-day building functions. In nearly all
instances he hires, discharges, recommends pay increases,
and schedules the work of the building maintenance em-
ployees and guards.
In at least one instance the chief engineer consulted dai-
ly with the building owner on operational problems includ-
ing labor matters and in some three instances the chief
engineer consulted with the building owner for similar rea-
sons, once a month. The record did not reflect what control
Greenhoot exercised over the chief engineer.
Greenhoot's wage budget for each building was ap-
proved in advance by the building owner.
Here again there are substantial differences from the in-
stant case, particularly in the extent of supervision and
control by the building owners.
To like effect are other cases (some of which are cited by
the Charging Party and the General Counsel).
Whether or not the elements herein are sufficient to find
joint ownership remains the question. Essentially, those re-
lied on to that effect appear to be hiring of the same em-
ployees by ABM, contract terminable on 30 days' notice,
some directions to employees by Syufy Supervisor Savage
and acquiescence in employee requests by Kuykendall, in-
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
direct relationship of pay to the contract between ABM
and Syufy, lack of on-the-job supervision by ABM repre-
sentatives, complaint as to Dio Campo leading to a letter
addressed to him, and failure to supply keys to ABM.
As for the keys it does not appear that this was pursued
and in any case ABM representatives could have entered
when the janitors were present. A request to remove an
employee for unsuitable work is consistent with policing a
subcontract and does not by itself demonstrate a joint em-
ployer relationship.20
As for hours, etc., these were in total set by the ABM-
Syufy contract and the actual time worked determined by
the employee (except it could not be during performances).
Supervision as set forth was to be in ABM with Syufy
retaining a right to give some direction which its manager,
Savage apparently did. The work in general required no
supervision as the janitors were experienced and the work
was routine. ABM did supervise certain aspects of work
through timecards, forms, instructions and directions as to
safety, conduct of employees, etc. It also hired employees
and was to reprimand or terminate them when necessary.
In one instance , supra, ABM accordingly proceeded to
write the undelivered warning letter to Dio Campo. Appar-
ently during the 3 months prior to March 28, ABM did not
inspect the work because of its nature and because it ordi-
narily checked only if complaints were forthcoming.
Under such circumstances as above if Syufy were to be
held to be a joint employer what theatre owner could sub-
contract without being so held?
A case bearing on this issue is Westinghouse Electric Cor-
poration, 163 NLRB 914 (1967). This involves a contract
between Westinghouse and Knost for maintenance work
(which was part of work to be done by Westinghouse un-
der a contract with Union Carbide). The Board therein
part stated:
The maintenance work at the Taft facility is initiat-
ed each day on orders submitted to Westinghouse by
Union Carbide. Westinghouse employees, who are
specialists in such fields as computerization and pro-
duction flow systems, analyze the work orders, de-
termine material requirements, and plan and schedule
the work to be done. These specialists then meet with
foremen of Homer Knost and inform them of the
work that maintenance employees will be required to
perform.
* * * *
In support of its position that Westinghouse and
Homer Knost have an alter ego relationship, Petitioner
relied to some extent on evidence that the maintenance
employees were given orders directly by supervisors of
Westinghouse and that these supervisors also had occa-
sion to call maintenance employees to perform overtime
work. However, the record reveals that the instances of
such direct supervision were isolated and occurred after a
supervisor of Homer Knost had assigned the particular
maintenance employees to a job or area. Further, it ap-
20 Space Services International Corp, 156 NLRB 1227 (1966). Hychern
Constructors, Inc., 169 NLRB 274 (1968)
pears that Westinghouse supervisors called these em-
ployees for overtime work only in emergencies after
securing approval from a supervisor of Homer Knost.
The latter determined the number of employees and
crafts required to work overtime. Moreover, while the
subcontract contains a provision under which West-
inghouse could require Homer Knost to exclude disor-
derly, incompetent, or objectionable persons from
working at the site, on the one occasion when an em-
ployee was discharged pursuant to such a Westing-
house request his employment was terminated only af-
ter a separate investigation by Homer Knost and after
the employee's union representative and all parties
concerned had discussed the matter at a grievance
meeting.
Other evidence discloses that Homer Knost and West-
inghouse share the same house trailer as an office. Plant
tools used by maintenance employees are charged to
Westinghouse. Also maintenance employees are wear-
ing Westinghouse hats and using Westinghouse identifi-
cation cards until Homer Knost can obtain its own
equipment.
Westinghouse and Homer Knost do not have any
financial or other relationship between them, apart
from those dealings arising from the instant subcon-
tract. Both companies have separate and distinct labor
relations policies. Westinghouse employees must pass
preemployment physical examinations not required of
those employed by Homer Knost. Westinghouse has
its own seniority system and a company-wide pension
and insurance plan, vacation, and holiday benefits not
applicable to the maintenance employees.
Homer Knost has collective-bargaining contracts
with several unions in the New Orleans Building and
Construction Trades Council, through whom it hires
its craft employees including the maintenance employ-
ees involved herein. Homer Knost negotiates and ad-
ministers such agreements and adjusts any grievances
arising therefrom. Under these agreements Homer
Knost determines which individuals on the mainte-
nance crew at the Union Carbide plant are entitled to
wage increases and which are to be laid off during a
reduction in force. At the site, work is generally as-
signed to these craft employees by the foreman of Ho-
mer Knost. Employees must arrange any time off with
their superintendent and their craft foreman. Homer
Knost keeps its own payroll and deducts various pay-
roll taxes and contributions including social security,
unemployment compensation, accident, and health in-
surance. It also remits union dues when authorized by
a checkoff provision in the applicable contract.
Employees of both Westinghouse and Homer Knost
observe the general safety rules maintained by Union
Carbide at the site. In addition, Westinghouse and Ho-
mer Knost have their own rules which each applies to its
employees. Thus, there was evidence that Homer
Knost discharged two employees at the site for violat-
ing its rule against excessive absenteeism.
It is apparent from the foregoing that control of wag-
es, hours of employment, fringe benefits, day-to-day
operations, grievances, and labor relations matters di-
SYUFY ENTERPRISES
rectly affecting the maintenance employees is lodged
with Homer Knost . While the record reveals that West-
inghouse reviews the timesheets of Homer Knost em-
ployees for the purposes of auditing and on occasion
has directly supervised the work of these employees, such
conduct is clearly consistent with that of a contractor
seeking to police its subcontract . In any event , this mod-
icum of control would itself hardly suffice to establish
an alter ego relationship . Accordingly, we find, upon
the entire record , that Homer Knost is not an alter ego
of Westinghouse and that Westinghouse is not the em-
ployer of the maintenance employees here involved.
[Emphasis supplied.]
While , of course not identical , Westinghouse supports
the conclusion that Syufy was not a joint employer.
In Hychem Constructore, 169 NLRB 274 (1968), involv-
ing the issue of joint employer , Texas Eastman had a con-
tract with Hudson , who in turn had a subcontract with
Hychem. Employees of Hychem were required to obey the
rules of Eastman . Hychem was required to gain consent
from Eastman before its employees worked overtime. Hy-
chem agreed not to hire employees that were undesirable to
Eastman . Wages were to be established after consultation
with Eastman.
The Board concluded from the above:
It is apparent from the foregoing that the controls
over hiring , job classification , hours , fringe benefits,
supervision , and all other matters directly affecting
Hychem 's employees are lodged with Hudson and Hy-
chem , notwithstanding Texas Eastman 's retention of
the right to approve wage increases and overtime and
its policy of consulting with Hudson and Hychem on
proposed layoffs . The latter controls , in our opinion,
are consistent with Texas Eastman's right to police
reimbursable expenses under its cost-plus contract
and to not warrant the conclusion that Texas Eastman
has thereby forged an employment relationship, joint
or otherwise , with the Hychem employees . Such a con-
clusion would likewise be unwarranted with respect to
the other controls retained by Texas Eastman over the
Hychem employees , that is , Texas Eastman 's require-
ment that Hychem employees observe plant safety
and other plant rules , and Texas Eastman 's as yet
755
unexercised prerogative to remove an undesirable Hy-
chem employee. The promulgation of such rules,
which seek to insure safety and security, is a natural
concomitant of the right of any property owner or oc-
cupant to protect his premises. Accordingly, we find,
upon the entire record, that Texas Eastman does not
exercise joint control over the Hychem employees and
is therefore not a joint employer of the employees here
involved. [Emphasis supplied.]
Eastman had no authority to determine labor policies.
As set forth, no two cases are exactly alike. However,
from the foregoing it appears that the control rested with
ABM, even though Syufy gave some directions and even
though ABM did not check the work closely as had been
promised. The intent of the relationship between Syufy and
ABM as manifested by the contract and representations
was that ABM was to look after and supervise the work
and the employees, with Syufy having a right to police the
contract and see that its work was being performed. Under
the foregoing circumstances, I find and conclude that
Syufy did not become and was not a joint employer with
ABM of the employees involved. Further, I find that its
conduct in terminating the contract with ABM was not
violative of the Act. Since I have found Syufy not to be a
joint employer with ABM, it had no obligation to bargain
with Local 121 with respect to the termination of its con-
tract with ABM. As for any contention that Syufy entered
into the contract for purposes of evading bargaining obli-
gations and with a purpose of subsequently terminating the
agreement pursuant thereto, I find that the record does not
support or establish such even though the stated reason for
termination of the ABM contract may not have been true.
I shall accordingly recommend that the complaint herein
be dismissed in its entirety.
CONCLUSIONS OF LAW
1. Syufy is an employer engaged in commerce within the
meaning of the Act.
2. Local 121 is a labor organization within the meaning
of the Act.
3. Syufy was at no time a joint employer with ABM of
the employees involved herein.
4. Syufy has not violated the Act as alleged.
[Recommended Order for dismissal omitted from publi-
cation.]