Top Job Building Maintenance Co.

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 902 (N.L.R.B. 1991)

902
304 NLRB No. 117
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
We note that the correct citation to Chambersburg County Market is 293
NLRB 654 (1989).
2 In view of our agreement with the judge’s conclusion that the Respondent
withdrew recognition from and refused to bargain with the Union before a rea-
sonable time for bargaining had elapsed, we find it unnecessary to pass on
the judge’s alternative discussion as to whether the Respondent had a good-
faith doubt of the Union’s majority status. Royal Coach Lines, 282 NLRB
1037, 1038 (1987); VIP Limousine, 276 NLRB 871 fn. 1 (1985).
3 The Respondent excepts, inter alia, to the judge’s make-whole remedy for
the Respondent’s failure to give the Union notice of and an opportunity to bar-
gain over the effects of the reduction of hours, contending that this remedy
is inappropriate because the Respondent had no control over the schedule
change. We note that, as the judge found, the change was mandated by the
manager of the building, not the Respondent which had no control over the
change and was required to implement it, and the implementation of the
change itself was not alleged as a violation of the Act. We therefore find merit
in the Respondent’s exception and shall modify the judge’s Order to provide
only that the Respondent bargain with the Union, on request, over the effects
of the reduction in hours.
Top Job Building Maintenance Co., Inc. and Local
254, Service Employees International Union,
AFL–CIO. Cases 1–CA–25989–1, 1–CA–26140,
1–CA–26261, and 1–CA–26321
August 27, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On November 13, 1990, Administrative Law Judge
Claude R. Wolfe issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed a brief in support of the
judge’s decision.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order as
modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below, and orders that the Respondent, Top
Job Building Maintenance Co., Inc., New Bedford,
Massachusetts, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 2(c).
‘‘(c) On request, bargain collectively with the Union
concerning the effects of the reduction of daily work
hours from 4 to 3-1/2, effective in January 1989, and
reduce to writing any agreement reached as a result of
such bargaining.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
have violated the National Labor Relations Act and
has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to recognize and bargain with
Local 254, Service Employees International Union,
AFL–CIO as the exclusive bargaining representative of
the employees in the following bargaining units:
All employees who regularly work in excess of 15
hours per week engaged in the contract building
cleaning industry at Respondent’s 565 Technology
Square, Cambridge, Massachusetts location, in-
cluding all janitors, porters, cleaners, doormen, el-
evator operators, starters, handymen, groundsmen
and maintenance tradesmen not represented by an-
other union, but excluding sales employees, office
clerical employees, foremen and all other super-
visors as defined in the Act.
All employees who regularly work in excess of 15
hours per week engaged in the contract building
cleaning industry at Respondent’s 575 Technology
Square, Cambridge, Massachusetts location, in-
cluding all janitors, porters, cleaners, doormen, el-
evator operators, starters, handymen, groundsmen
and maintenance tradesmen not represented by an-
other union, but excluding sales employees, office
clerical employees, foremen and all other super-
visors as defined in the Act.
All employees who regularly work in excess of 15
hours per week engaged in the contract building
cleaning industry at Respondent’s 38 Henry
Street, Cambridge, Massachusetts location, includ-
ing all janitors, porters, cleaners, doormen, eleva-
tor operators, starters, handymen, groundsmen and
maintenance tradesmen not represented by another
union, but excluding sales employees, office cleri-
903TOP JOB BUILDING MAINTENANCE CO.
1 General Counsel’s motion to correct the transcript of proceedings in sev-
eral particulars is granted except for the requested correction at p. 86, L. 17
which is denied.
2 Staco, Inc., 244 NLRB 461 (1979).
cal employees, foremen and all other supervisors
as defined in the Act.
All employees who regularly work in excess of 15
hours per week engaged in the contract building
cleaning industry at Respondent’s 21 Osborn
Street, Cambridge, Massachusetts location, includ-
ing all janitors, porters, cleaners, doormen, eleva-
tor operators, starters, handymen, groundsmen and
maintenance tradesmen not represented by another
union, but excluding sales employees, office cleri-
cal employees, foremen and all other supervisors
as defined in the Act.
WE WILL NOT seek to decertify the Union as the ex-
clusive representative of these employees in order to
avoid our bargaining obligation.
WE WILL NOT fail or refuse to furnish the Union
with information it requests that is relevant and reason-
ably necessary to fulfilling its duty to represent the
employees in the units described above.
WE WILL NOT fail to give the Union prior notice of
and an opportunity to bargain on the effects of changes
in the hours of work.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them in Section 7 of the Na-
tional Labor Relations Act.
WE WILL, on request, recognize and bargain with
Local 254, Service Employees International Union,
AFL–CIO as the exclusive representative of all em-
ployees in the above-described appropriate units and, if
an understanding is reached, embody such understand-
ing in a written, signed agreement.
WE WILL furnish to Local 254 the information it re-
quested by letters of December 8, 1988, and March 31,
1989.
WE WILL, on request, bargain collectively with
Local 254 concerning the effects of the reduction of
daily work hours from 4 to 3-1/2, effective in January
1989.
TOP JOB BUILDING MAINTENANCE CO.,
INC.
Beth Anne Wolfson, Esq. and Kevin Murray, Esq., for the
General Counsel.
David S. Barnet, Esq., for Top Job Building Maintenance
Co.
Donald Coleman, Business Agent, Local 254, Service Em-
ployees International Union, AFL–CIO.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge. This pro-
ceeding was litigated before me at Boston, Massachusetts, on
June 20 and 21, 1990, pursuant to various charges filed and
served and a second consolidated complaint amended at hear-
ing and alleging Top Job Building Maintenance Co., Inc.
(Respondent) has violated Section 8(a)(5) and (1) of the Na-
tional Labor Relations Act (the Act) in various ways. Re-
spondent denies the commission of unfair labor practices.
On the record1 before me, and after considering the com-
parative testimonial demeanor of the various witnesses and
able posttrial briefs filed by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation with office and place of busi-
ness in New Bedford, Massachusetts, and various other work
locations, and is in the business of furnishing contract clean-
ing services. Respondent annually, in the course of these
business operations, provides services valued in excess of
$50,000 to Spaulding & Slye, Inc. and Polaroid Corporation,
both business enterprises located in Massachusetts and di-
rectly engaged in interstate commerce. Respondent annually,
in the course of its business operations, purchases and re-
ceives products, goods, and materials valued in excess of
$50,000 at its Massachusetts locations which are delivered
directly to the locations from points located outside the Com-
monwealth of Massachusetts. Respondent is, and has been at
all times material to this proceeding, an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. LABOR ORGANIZATION
Local 254, Service Employees International Union, AFL–
CIO (the Union) is a labor organization within the meaning
of Section 2(5) of the Act.
III. SUPERVISORS AND AGENTS
The complaint alleges, Respondent admits, and I find that
at all times material to this proceeding the following named
persons have occupied the positions set forth opposite their
respective names, and are now, and have been at all times
material to this proceeding, supervisors of Respondent within
the meaning of Section 2(11) of the Act and agents of Re-
spondent within the meaning of Section 2(13) of the Act:
Albert Rebeiro President
Clay Forney General Manager
George Ramos Manager
The complaint further alleges, and Respondent denies, that
Barbara Kaufman is a supervisor and agent of Respondent
within the meaning of Section 2(11) and (13) of the Act. The
burden therefore rests on General Counsel to prove his con-
tention.2 The indicia of supervisory status are clearly spelled
out in Section 2(11) of the Act as follows:
The term ‘‘supervisor’’ means any individual having
authority, in the interest of the employer, to hire, trans-
fer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, or responsibly to
direct them, or to adjust their grievances, or effectively
904 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the use
of independent judgment.
The possession of any one of the functions so enumerated is
sufficient to establish supervisory authority. See, e.g.,
Opelika Foundry, 281 NLRB 897, 899 (1986).
The evidence presented is by no means overwhelming on
either side of the issue. Kaufman was not called as a witness,
and her testimony may have and probably would have been
very helpful in determining her status. I draw no adverse in-
ference against either party for failing to call her because
there is no showing she was not equally available to either
side, and neither party was under any obligation to call her
as a witness. Returning to the evidence, it indicates Kaufman
may have the authority to hire, assign, or responsibly direct
on the basis of her independent judgment. Accordingly, these
possibilities must be explored.
The specifications from which Respondent developed its
bid for the cleaning contract for the building occupied by Po-
laroid Corporation at 565 Technology Square, Cambridge,
Massachusetts (the 565 building) where Kaufman worked at
the times relevant to this proceeding, contain a requirement
for an ‘‘On-site Supervisor’’—‘‘who is permanently assigned
to the building. His duties include scheduling tasks to be per-
formed in accordance with the specifications and inspecting
the building while the work is being performed.’’ The pro-
posal submitted by Respondent on April 27, 1988, to supply
janitorial services in the 565 building notes that a supervisor
will be paid $6.50 per hour and other employees will receive
$6. The parties agree Kaufman was paid $6.50 and the other
employees with whom she worked were paid $6 after Re-
spondent was awarded the contract in September 1988. She
had a key to the building entrance, and a key to a storage
area wherein cleaning supplies were stored. Kaufman was re-
quired to report to the building one-half hour before the other
employees so that she might unlock the storage closet and
the entrance door before other employees arrived. When the
others arrived they were required to sign in, as did Kaufman,
at a guard post staffed by a security service employed by Po-
laroid. As the other employees signed in, Kaufman was re-
quired to verify their identity to the guard and issue them
badges to be worn during their shift and returned to Kaufman
at shift’s end. The sign-in log carries the printed notation
‘‘Signatures verified by’’ followed by the signature of Kauf-
man. She also signs her name in the signature space follow-
ing her printed name which is preceded by the printed des-
ignation ‘‘Supervisor.’’
The 565 building is a nine story edifice. Respondent’s em-
ployees at that location, apparently 22 or 23 in number in-
cluding Kaufman, are assigned to cleaning duties on the var-
ious floors. This means several different floors, if not all
nine, have employees of Respondent assigned to them simul-
taneously. According to Clay Forney, Respondent’s general
manager at the time of the events with which this proceeding
is concerned, employees were assigned to clean specific
floors and would routinely return to them each day. This
seems likely, is not disputed, and is credited. Forney further
testified that Kaufman would daily go from floor to floor,
make sure other employees were doing what they should be
doing, and was responsible for instructing them to correct de-
ficiencies in their cleaning. Former Operations Manager
George Ramos recalls that leadpersons, specifically including
Kaufman, faced with a shortage of employees could and did
reassign employees to different floors without need of prior
consultation with him. In this connection, former employee
Juan Meija who was employed for less than a month in 1988
remembers Kaufman instructed him on what to do each
night, and directed him to call her if he was absent due to
illness. Although both Ramos and Forney testify they visited
the buildings a few times a week, Kaufman was the only em-
ployee of Respondent remotely resembling a supervisor who
was present throughout the shift every day.
The mere fact Kaufman was designated ‘‘Supervisor’’ on
the above-mentioned documents does not establish she was
a statutory supervisor. Waterbed World, 286 NLRB 425, 426
(1987). Moreover, although she may have possessed the
independent authority to assign and/or responsibly direct em-
ployees, the evidence presented is insufficient to warrant
such a finding. All the record shows is that the employees
performed repetitive work night after night on the same
floors in the same way, Kaufman inspected their work and
pointed out, as any more experienced employee might have
done, what needed correcting, and Kaufman occasionally had
to send an employee from one task to another as required by
the absence of other employees. The inspection of work and
advice to reclean, as well as the identifying of employees,
handing out and retrieving identification badges, and passing
out paychecks, are routine activities without any need for the
exercise of independent judgment of the type contemplated
by the Act. Similarly, the reassignments of employees were
dictated by the absence of employees and the work to be
done, required no real independent judgment, and do not rise
to the level of responsible direction or assignment required
by the Act.
Manuel Vila testified that he went to the 565 building in
December 1988 looking for a job. The guard referred him to
Barbara. Vila does not give her last name, but I conclude it
was Kaufman to whom he spoke. Vila asked if she had any
openings. She offered him work for 3 nights. He declined the
offer because he needed a 40-hour-a-week job. Vila left his
name and telephone number with Kaufman, and she prom-
ised to call him if she needed him. This testimony is
uncontroverted and credited.
Juan Meija testified he secured an application to work for
Top Job from Kaufman on August 31, 1988, at the 565
building, and he had worked under her supervision for Crys-
tal Industrial Maintenance which preceded Respondent as
cleaning contractor at the building. He was subsequently
hired by Kaufman on September 13, 1988, and directed to
perform the same work on the same floor as he had for Crys-
tal. He did so. When he later gave notice in October that he
was leaving, Kaufman told him he could return to his job
with Respondent anytime he wanted to by just reporting to
her. Meija’s testimony is uncontroverted, there was nothing
in his testimony or his demeanor to indicate he was not
being entirely truthful, and he is credited.
From Vila and Meija we learn that Kaufman offered Vila
3 days’ work, whether this was only for 3 days or for contin-
uous employment 3 days a week is irrelevant, and Kaufman
took Meija’s application and hired him. In the case of Vila
the evidence indicates the offer from Kaufman was made
without prior consultation with anyone. It is of course pos-
905TOP JOB BUILDING MAINTENANCE CO.
3 The findings of fact are based on the credible portions of testimony of the
participants and documentary evidence received. I have considered all the testi-
mony and other evidence of record. In those instances where conflicts in testi-
mony arise I have considered the reasonable probabilities, the convincing char-
acter of the testimony, and comparative demeanor of opposing witnesses. I
have credited parts of witnesses’ testimony while not crediting other parts.
This is neither unusual or improper. NLRB v. Universal Camera Corp., 179
F.2d 749 (2d Cir. 1950); vacated on other grounds 340 U.S. 474 (1951). In
those instances where I may not specifically state who is credited the recitation
of facts will indicate who has been credited.
sible she had prior instructions to make such an offer to any
applicant, but there is no evidence that she did. The offer,
under the circumstances credibly related by Vila, prima facie
implies the authority to hire on the basis of independent
judgment without resort to consultation with Kaufman’s su-
perior. With respect to Meija, there is no evidence anyone
but Kaufman considered his application before hiring him.
The testimony of George Ramos and Clay Forney to the ef-
fect that Kaufman had no authority to exercise independent
judgment in hiring, and, further, that all applications were re-
viewed and all applicants interviewed by them rather than
Kaufman, and that they and Respondent’s president made all
the decisions to hire is not particularly persuasive. Neither of
them interviewed Meija, nor did Respondent’s president.
There is no evidence anyone but Kaufman reviewed Meija’s
application or took part in the decision to hire him. Here, as
in Vila’s case, General Counsel has shown prima facie that
Kaufman could and did exercise her independent judgment.
Respondent has not rebutted that prima facie showing. I
therefore conclude the evidence preponderates in favor of a
conclusion that Kaufman had the authority in the interest of
the employer to hire employees on the basis of her independ-
ent judgment and was, therefore, at all times material a su-
pervisor within the meaning of Section 2(11) of the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES3
A. General Chronology
The complaint alleges, Respondent admits, and I find that
Respondent recognized the Union, by letter of October 11,
1988, as the designated exclusive collective-bargaining rep-
resentative of Respondent’s employees in the following units
appropriate for purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
(a) All employees who regularly work in excess of
15 hours per week engaged in the contract building
cleaning industry at Respondent’s 565 Technology
Square, Cambridge, Massachusetts location, including
all janitors, porters, cleaners, doormen, elevator opera-
tors, starters, handymen, groundsmen and maintenance
tradesmen not represented by another union, but exclud-
ing sales employees, office clerical employees, foremen
and all other supervisors as defined in the Act.
(b) All employees who regularly work in excess of
15 hours per week engaged in the contract building
cleaning industry at Respondent’s 575 Technology
Square, Cambridge, Massachusetts location, including
all janitors, porters, cleaners, doormen, elevator opera-
tors, starters, handymen, groundsmen and maintenance
tradesmen not represented by another union, but exclud-
ing sales employees, office clerical employees, foremen
and all other supervisors as defined in the Act.
(c) All employees who regularly work in excess of
15 hours per week engaged in the contract building
cleaning industry at Respondent’s 38 Henry Street,
Cambridge, Massachusetts location, including all jani-
tors, porters, cleaners, doormen, elevator operators,
starters, handymen, groundsmen and maintenance
tradesmen not represented by another union, but exclud-
ing sales employees, office clerical employees, foremen
and all other supervisors as defined in the Act.
(d) All employees who regularly work in excess of
15 hours per week engaged in the contract building
cleaning industry at Respondent’s 21 Osborn Street,
Cambridge, Massachusetts location, including all jani-
tors, porters, cleaners, doormen, elevator operators,
starters, handymen, groundsmen and maintenance
tradesmen not represented by another union, but exclud-
ing sales employees, office clerical employees, foremen
and all other supervisors as defined in the Act.
Respondent had commenced its work as the cleaning con-
tractor at these locations in early September 1988. Most, if
not all, of its employees had previously performed the same
duties for Crystal Industrial Maintenance at the same loca-
tions, and were members of the Union.
Subsequent to its recognition of the Union, Respondent, by
Gerald Franklin, its attorney, met with Donald Coleman, the
Union’s business agent, for the purpose of negotiating a col-
lective-bargaining agreement. The first meeting took place on
October 18, 1988. Prior to this meeting, Coleman had sent
and Franklin had received a letter confirming the meeting.
Attached to the letter was a copy of the Union’s master
agreement for maintenance contractors during the period
September 1, 1987, to August 31, 1990. Thus far, Franklin
and Coleman agree, but their accounts of what transpired
during their meetings commencing October 18 sharply differ.
A synopsis of the testimony of each gentleman with respect
to what took place during these meetings follows.
1. Testimony of Donald Coleman
On October 18, he and Franklin discussed the master
agreement, agreed on some items, and disagreed on others.
Franklin advised that Respondent had no paid vacations and
paid for eight holidays per year. The Union requested 10.
Franklin offered $6.20 per hour in wages, a 20-cent increase,
with no future raises, and equal division of arbitration costs.
He objected to the contract provision providing for an audit
of Respondent’s book in certain circumstances. Coleman sug-
gested the date of hire for the purpose of vacation eligibility
be the date of hire by Respondent. Franklin opined the par-
ties were not far apart and they would just need a meeting
with Albert Rebeiro, Respondent’s president. During this
meeting Franklin agreed Barbara Kaufman was a supervisor
excluded from the Union. The next meeting was set for Oc-
tober 28.
Franklin and Coleman met on October 28. Rebeiro was
not present. After they reviewed what had been said at the
October 18 meeting, Coleman explained that under the
Union’s proposal Respondent could switch the dates of holi-
days to dates on which the Polaroid facilities might be
closed. Franklin said another meeting should be scheduled
with Rebeiro. The next meeting was scheduled for November
4.
906 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 I do not credit Coleman’s testimony that he received no notice of the with-
drawal of recognition until Respondent filed its answers to the complaints in
this proceeding.
5 See Fed.R.Evid. 901(b)(3) with respect to authentication of writings by the
trier of fact.
On November 4, he and Franklin met. Coleman believes
nothing was discussed because Rebeiro was not present, and
all he and Franklin did was schedule another meeting for No-
vember 11. This meeting and another scheduled for Novem-
ber 18 were canceled by Franklin because Rebeiro could not
be present.
On December 5, Coleman and Franklin met again without
Rebeiro. Coleman said it was an unfair labor practice for Re-
spondent not to make counter offers. Franklin offered 10
cents an hour as a future wage increase, but made no offers
on vacations or holidays. Coleman said that if Franklin’s
wage offer was serious he would report it to the union mem-
bers. Franklin then called someone, and Coleman heard him
say he had made the 10-cent wage offer and had agreed to
set a meeting for December 22 with Rebeiro. After ending
his call, Franklin withdrew the 10-cent offer, but agreed to
meet on December 22. Franklin later canceled the December
22 meeting because the Union had filed a charge with the
Board, and a decertification petition had been filed with the
Board. No further meetings were held.
Leaving Coleman’s testimony on negotiations, it is apropo
at this point to note that the Union filed the original charge
in Case 1–CA–25989–1 on December 9 alleging Respondent
violated Section 8(a)(1), (3), and (5) of the Act by circulating
and filing a decertification petition. A petition seeking to de-
certify the Union as the collective-bargaining representative
of Respondent’s employees in all four units set forth herein-
above was filed with the Board in Case 1–RD–1583 by Bar-
bara Kaufman on December 5, 1988.
2. Gerald Franklin’s Version
On October 18, he and Coleman compared a list of em-
ployees Coleman had with Respondent’s computer list of
employees, and checked off those who had been employees
of Crystal. He did not tell Coleman that Respondent did not
pay for vacations and only paid for eight holidays. No agree-
ments were reached at that meeting. All they did was discuss
who had worked for Crystal and some contract language con-
cerning the audit clause and the unit descriptions. Coleman
did not request any information that day. Holidays were not
discussed until the third meeting. He never talked to Cole-
man about Kaufman and knew nothing of her except she
may have been on the list of employees checked off.
About all that happened at the October 28 meeting was
that they reviewed the agreement, he refused to agree with
the auditing clause, and he insisted the collective-bargaining
agreement specify the four units set forth above rather than
statewide coverage of all Respondent’s employees. Coleman
made no request for information.
Holidays and vacation were discussed for the first time on
November 4. He told Coleman that Respondent had paid
holidays and employees had to be employed a year to be eli-
gible for a vacation. Respondent in fact had 10 paid holidays,
but he only offered 8 to Coleman. He did not, however, say
eight were all Respondent had. Coleman did not request any
information.
On December 5, he and Coleman agreed on the unit de-
scription and language concerning the audit clause. Franklin
offered to increase rank-and-file wages from $6 to $6.20,
plus a 10-cent increase across the board 1 year from the ef-
fective date of the contract, which would mean $6.30 for
these employees and $6.60 for leadpersons currently paid
$6.50. He offered 10 paid holidays, which Coleman rejected.
Vacations were agreed on and they agreed to delay institut-
ing them so that former employees of Crystal would be con-
sidered new hires by Respondent. Coleman offered to send
a letter to the effect vacations would be given 1 year from
hire date, but never did. Agreement to split the cost of arbi-
tration was also reached. Franklin never phoned Rebeiro in
Coleman’s presence and never told Coleman Respondent had
no paid vacations. He did not withdraw Respondent’s wage
offer.
Franklin called Coleman’s office on December 21, and
canceled the meeting scheduled for December 22 on the
ground the decertification petition and three documents sub-
mitted to Respondent disavowing union representation and
signed by employees in three of the units caused Respondent
to doubt the Union’s majority status and to withdraw rec-
ognition.4 Coleman responded to Franklin’s call by mailgram
of December 21, 1988, objecting to the cancellation of the
December 22 meeting and requesting a meeting the follow-
ing week.
Franklin was the more convincing witness of the two, de-
livering a straightforward, concise, reasonable, and believable
account of negotiations which is credited where it differs
from that of Coleman. There have been no further negotia-
tion meetings.
Forney credibly testified that on December 20 she received
three statements signed by employees at the 565 building, the
575 Technology Square building, and the 21 Osborn Street
location, all of which were then delivered to Franklin’s office
on December 21. The statement from the 565 building em-
ployees, dated November 9, 1988, states, ‘‘We the employ-
ees of TOP JOB maintenance cleaning co. Do not want a
Union,’’ and is signed by 22 employees including Barbara
Kaufman whose signature is the first on the list. At the bot-
tom of the statement appears ‘‘Signatures Witnessed by B.
Kaufman’’ in Kaufman’s handwriting, as is the quoted lan-
guage rejecting the Union.5 The document from 575 Tech-
nology Square, dated October 28, 1988, reads ‘‘We the fol-
lowing people that work at 575 Technology Square as clean-
ers for Top Job Company do not want the union in our
building,’’ is accompanied by a Spanish translation, and
bears 16 signatures. The 21 Osborn Street document, dated
November 4, 1988, states, ‘‘The employees at 21 Osborn
Street employed by Top Job maintenance cleaning Co. Do
not want a union. Thank you.’’ and bears seven signatures.
Coleman had sent a mailgram to Respondent on December
6, 1988, reading, in relevant part:
UNION REQUESTS THE FOLLOWING INFORMATION SOON
AS POSSIBLE FOR YOUR EMPLOYEES;
NAMES, DATES OF HIRE, HOURLY RATE OF PAY, HOURS
OF WORK, JOB LOCATION, ADDRESS, PAID HOLIDAYS.
PLEASE ADVISE. IF I DO NOT HEAR FROM YOU WITHIN
48 HOURS I WILL ASSUME YOU DECLINED THIS RE-
QUEST.
907TOP JOB BUILDING MAINTENANCE CO.
6 See, e.g., NLRB v. Elliott Williams Co., 345 F.2d 460 (7th Cir. 1965),
enfg. 143 NLRB 811 (1963).
7 Suburban Homes Corp., 173 NLRB 497 (1968); Wahoo Packing Co., 161
NLRB 174 (1966).
By letter to Coleman dated December 20, 1988, Forney
advised the requested information was enclosed, and Cole-
man should contact Respondent if additional information was
needed. Coleman testifies, and I conclude that he received
the letter on January 11, 1989. It lists 10 paid holidays, the
vacation policy, overtime pay rate, jury duty pay, and be-
reavement leave. Coleman received further information from
Forney on January 23, 1989, listing the employees, their
work location, their rates of pay, dates of hire, and some but
not all employee addresses.
Coleman sent the following request to Respondent on
March 31, 1989. It was received on April 3, 1989:
The Union requests the following information concern-
ing all your employees employed at 575 Tec Sq. from
June 1988 through March 31, 1989.
1. Hours of work on a weekly basis
2. Hours of work on a daily basis
3. Gross earnings for each employee on a weekly
basis
4. Holiday pay for each employee on a weekly basis
5. Time and Attendance records including but not
limited to time cards and or sign in sheets to verify
the above information.
6. Payroll records to verify the time and attendance
records.
7. Cancelled employee checks to verify all payroll
records provided.
Respondent made no reply.
B. The Allegations
1. The decertification effort
Barbara Kaufman filed the petition in Case 1–RD–1583 on
December 5, 1988, seeking to decertify the Union as the col-
lective-bargaining representative of Respondent’s employees
at all four locations involved. She also prepared the docu-
ment signed by the 565 building employees, witnessed their
signatures, and, I conclude, probably solicited those signa-
tures. Kaufman was a supervisor of the employer within the
meaning of Section 2(11) of the Act at the time and thus an
agent for whose conduct Respondent is responsible.6 It is
well settled that an employer violates Section 8(a)(5) and (1)
of the Act when its supervisor who is not a member of the
bargaining unit solicits employee signatures to a document
seeking to deauthorize a union as a collective-bargaining rep-
resentative, and further violates those sections of the Act
when the supervisor files a decertification petition with the
Board based on those signatures.7 The charge filed in Case
1–CA–25989–1 on December 9, 1988, specifically alleges
the circulation and filing of a decertification petition violated
Section 8(a)(5), (1), and (3) of the Act. This charge was
amended on January 17, 1989, to allege inter alia, Respond-
ent violated Section 8(a)(1) and (5) by sponsoring a decerti-
fication petition. General Counsel has elected however to al-
lege and argue the circulation and filing of the petition as a
violation of Section 8(a)(1) only. It is the General Counsel’s
statutory prerogative to allege that which he will, but the rel-
evant facts have been litigated and it is well settled that the
Board may in such circumstances find a violation not alleged
in the complaint. Gulf & Western Mfg. Co., 286 NLRB 1122,
1124–1125 fn. 8 (1987); Southwire Co., 282 NLRB 916, 918
fn. 12 (1987). I therefore conclude and find by Kaufman’s
preparation and circulation of the 565 building document, her
solicitation and witnessing of employee signatures thereto,
and the filing of the decertification petition with the Board,
Respondent committed violations of Section 8(a)(5) and (1)
of the Act.
2. Withdrawal of recognition
Respondent withdrew recognition and canceled future ne-
gotiations on December 21, 1988. Respondent contends the
decertification petition and the employee signatures to the
three documents previously referred to gave rise to a good-
faith reasonable doubt of the Union’s majority status when
recognition was withdrawn and the refusal to bargain was
initiated. Respondent adds that the same evidence rebutted
any presumption the Union had majority support. General
Counsel’s view is that the withdrawal of recognition was pre-
mature, the refusal to meet and bargain was therefore unlaw-
ful, and, alternatively, even if a reasonable time for bargain-
ing had passed the withdrawal of recognition and refusal to
further meet and bargain was not supported by a good-faith
reasonable doubt of the Union’s majority status.
The Board has recently succinctly summarized the rule ap-
plicable to this case in Chambersburg County Market, 294
NLRB 654 (1989), as follows:
The Board has consistently held that where . . . an
employer has voluntarily extended recognition to a
union, the union is entitled to an irrebuttable presump-
tion of majority status until a reasonable time for bar-
gaining has elapsed. After that point the union enjoys
a rebuttable presumption of majority status. This pre-
sumption can be rebutted by an employer’s showing
that at the time of the refusal to bargain the union did
not have majority status in fact, or that the employer
had a good-faith doubt of the union’s majority status
based on objective considerations.
Normally, the Board makes a threshold finding about
whether a reasonable time for bargaining has passed be-
fore determining whether an employer’s evidence could
support a good-faith doubt regarding the union’s major-
ity status or a finding of no majority in fact. [Footnotes
omitted.]
The Respondent does not claim, and there is no evidence that
the Union did not have a majority at the time of recognition.
See, e.g., Tri-City Meats, Inc., 231 NLRB 768 fn. 2 (1977);
Moisi & Son Trucking, 197 NLRB 198 fn. 2 (1972). The fact
that Coleman and Franklin checked the roster of Respond-
ent’s employees against that of Crystal’s employees who
were covered by a union contract is persuasive evidence the
parties did verify the Union’s majority status on October 18,
1988.
Consistent with the Board’s instruction in Chambersburg
County Market, the determination of whether a reasonable
time for bargaining had elapsed when Respondent withdrew
908 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
recognition is in order. The answer depends not on the mere
passage of time but must emerge from a careful consider-
ation of what happened and what was accomplished at the
bargaining meetings. Brennan’s Cadillac, 231 NLRB 225,
226 (1977). Coleman and Franklin met four times between
October 18 and December 5, 1988. Other meetings scheduled
on November 11 and 18 were canceled at Franklin’s request.
As previously noted, the meeting scheduled on December 22
was canceled when recognition was withdrawn on December
21. The parties were in the midst of negotiations with some
questions resolved, a future meeting set, and reasonable pros-
pects of soon concluding an agreement. There was no im-
passe nor any indication one was probable. It does not seem
to the undersigned it can fairly be said on this record that
the parties have been given a reasonable time within which
to successfully conclude an agreement when all signs as of
December 5, 1988, seem to point toward such a conclusion
in the near future. I find it inconceivable that approximately
1-1/2 months within which two meetings were canceled by
Franklin for health reasons could in the circumstances of this
case be found a reasonable time for bargaining an initial
agreement. That being the case, Respondent was not privi-
leged to withdraw recognition on December 21, 1988, and
thereafter refuse to bargain because the Union then enjoyed
an irrebuttable presumption of majority status. Accordingly,
the withdrawal of recognition and refusal to bargain violated
Section 8(a)(5) and (1) of the Act. Chambersburg County
Market, supra; Van Ben Industries, 285 NLRB 77 (1987).
The foregoing conclusion, if adopted by the Board, makes
it unnecessary to determine if Respondent entertained a
good-faith doubt of the Union’s majority. If, however, the
Board should conclude there has been a reasonable time for
bargaining, the question of good-faith reasonable doubt is
important. Respondent relies on the decertification petition
and the three documents purportedly signed by employees as
its basis for such a reasonable doubt. Respondent may not,
however, rely on the signatures secured by Kaufman at the
565 building nor the filing of the decertification petition be-
cause it is responsible for the conduct of its supervisor and
agent which violated the Act. Colonna’s Shipyard, 293
NLRB 136 (1989), enfd. mem. 900 F.2d 250 (4th Cir. 1990)
(per curiam); Franks Bros. Co. v. NLRB, 321 U.S. 702
(1944). Excluding the 565 building signatures, which appear
genuine from a comparison with the signatures on the sign-
in logs placed in evidence by General Counsel, no similar
evidence was proffered or adduced to prove the authenticity
of the signatures on the 575 Technology Square and 21
Osborn Street submission. These latter two documents, Re-
spondent’s Exhibits 1 and 2, were received in evidence, with-
out objection, on the testimony of Forney that they were sub-
mitted to her bearing the names thereon. She did not testify
the signatures were authentic. There was no effort by Re-
spondent or General Counsel to limit the purposes for which
these documents were offered. I therefore conclude that even
though the documents do not on their face prove the authen-
ticity of the signatures they contain and they therefore are to
that extent hearsay, it is unobjected to and therefore undis-
puted hearsay that may be relied on. Plumbers Local 589 (L
& S Plumbing), 294 NLRB 616 (1989); RJR Communica-
tions, 248 NLRB 920, 921 (1980).
General Counsel correctly asserts that Respondent has pro-
duced no evidence the signatures represented a majority of
the employees at the three locations on December 21, 1988,
when Respondent withdrew recognition. It is incumbent on
Respondent to prove by objective evidence this majority on
which it relies existed. Terrell Machine Co. v. NLRB, 427
F.2d 1088, 1090 (4th Cir. 1970), cert. denied 398 U.S. 929
(1970). Respondent has not done so. Although there is suffi-
cient evidence to show a loss of majority at the 565 building
if that showing were not tainted, as I have found it is, Re-
spondent has not proved a majority of the employees at the
575 and Osborn Street locations rejected the Union on or
about December 21, 1988. The ‘‘petitions’’ from those loca-
tions were dated October 28 and November 4 respectively,
long before December 21, as is the ‘‘petition’’ for the 565
building. Absent some showing the signers still maintained
the same view vis-a-vis union representation on December
21 as they had more than a month earlier, and were a major-
ity of the employees at their respective locations on Decem-
ber 21, I am not persuaded Respondent’s asserted doubt was
reasonably based. See Hollaender Mfg. Co., 299 NLRB 466
fn. 1 (1990). Moreover, there is no evidence at all warranting
Respondent’s withdrawal of recognition concerning the bar-
gaining unit at 38 Henry Street.
Summarizing, Respondent violated Section 8(a)(5) and (1)
of the Act by (1) withdrawing recognition and refusing to
bargain before a reasonable time for bargaining had elapsed,
and (2) withdrawing recognition and refusing to bargain with
the Union in the absence of a good-faith reasonable doubt of
the Union’s majority status.
3. The reduction of hours
The complaint alleges a reduction of hours on or about
January 3, 1989, at the 575 Technology Square location
without prior notice or opportunity to bargain on the effects
of this reduction being given to the Union. Respondent con-
tends this allegation is time-barred, arguing as follows:
In this instance, the Union filed its original charge
on March 27, 1989. The original charge alleged that
Top Job had unlawfully reduced the number of hours
of its employees at 575 Technology Square, Cambridge,
Massachusetts, since on or about January 3, 1989. On
September 11, 1989, the Union filed an Amended
Charge that was a verbatim repetition of the orginal
charge. Finally, on October 20, 1989, the Union once
again amended the charge to claim that Tob Job had
failed to give notice of or bargain over the effects of
a reduction of hours of employees working at 575
Technology Square. Clearly, the second amended
charge was not filed within the six month statute of
limitations. In order for this claim to be actionable, this
Board must construe the charge to be an amendment to
the charge filed on March 27, 1989. A ‘‘[c]omplaint
may be amended to include charges which either relate
to or define charges set forth in original complaint,’’
NLRB v. Gaynor News Co., 347 U.S. 17 (1954). In our
case, the amended charge neither relates to nor defines
charges set forth in the original complaint filed on
March 27, 1989. Therefore, 1–CA–26261 should be dis-
missed for failure to meet the requirements of the appli-
cable statute for limitations, namely, § 10(b) of the Act.
909TOP JOB BUILDING MAINTENANCE CO.
8 There is nothing of record to show whether or not there were any effects
of the reduction in hours warranting negotiation.
Respondent’s facts are correct, but Respondent’s conclusion
is faulty. The allegation in the second amended charge filed
on October 20, 1989, in Case 1–CA–26261 that ‘‘On or
about January 3, 1989, the above-named Employer failed to
give notice of or bargain over the effects of a reduction of
the hours of employees at 575 Technology Square, Cam-
bridge, MA’’ is closely related to the allegation in both the
original charge of March 27 and the amended charge of Sep-
tember 11, 1989, that Respondent ‘‘unlawfully reduced the
hours of work of its employees since on or about Jan. 3,
1989 at 575 Tec Sq.’’ I therefore conclude and find the com-
plaint allegation is not time-barred. Concord Metal, 295
NLRB 912 fn. 2 (1989).
Respondent further urges that the reduction of hours and
its effects are not mandatory subjects of bargaining. Hours
of employment are mandatory subjects of bargaining, and a
unilateral change in employment hours without giving the in-
cumbent union prior notification and opportunity to bargain
with respect to the changes violates Section 8(a)(5) of the
Act. See, e.g., Venture Packaging, 294 NLRB 544 (1989);
Nemacolin Country Club, 291 NLRB 456 (1988).
In the instant case Polaroid succeeded to the management
of 575 Technology Square in November 1988, apparently on
or shortly before November 8, 1988, because on that date
Polaroid issued a change order to Respondent. The change
order provided for a 3-1/2 workday for 17 persons and 4
hours for 1 person at 575 Technology Square. I conclude the
one person was probably the leadperson. This schedule was
not implemented until January 1989. Until the date of the
change, unit employees worked 4 hours a day, according to
James Doherty, the administrator of contract services for Po-
laroid. Respondent never notified the Union of the change in
work hours, or gave it any opportunity to bargain on the ef-
fects. The complaint, as amended, does not allege the actual
institution of the change as a violation of the Act. The
change was mandated by Polaroid, not Respondent who was
required to implement it. It seems obvious to me that Re-
spondent had no control over the schedule change, and there-
fore could not meaningfully bargain on the change itself. It
was, however, free to bargain with respect to any other
changes in the employees’ work situation which may have
resulted from the reduction of hours. There may have been
no such changes, but the Union, as the employees’ recog-
nized representative, was entitled to timely notice of the re-
duction so that it might properly engage in negotiations with
Respondent to ascertain what effects the reduction of hours
had in terms of related working conditions. I conclude Re-
spondent violated Section 8(a)(5) and (1) of the Act by fail-
ing to notify the Union of the reduction in hours and thereby
afford it an opportunity to investigate the effects of the re-
duction and negotiate thereon if such negotiations appeared
appropriate.8
4. The alleged failure to provide requested information
The contention that Franklin failed on October 18, 1988,
to provide accurate information on rates of pay, paid holi-
days, and unpaid vacations is without merit. Coleman re-
quested no information, and Franklin did not provide any in-
accurate information. The Union did, however, request infor-
mation in writing on December 6, 1988, and March 31,
1989. These requests are set forth in detail in the ‘‘General
Chronology’’ section of this decision. The information re-
quested related to wages, hours, and other terms and condi-
tions of employment and was, on both occasions, presump-
tively relevant and reasonably necessary to the Union in the
performance of its duties as the representative of the employ-
ees in the bargaining units with which we are here con-
cerned, and must be produced. Colonna’s Shipyard, 293
NLRB 136 (1989), and cases cited therein; and see discus-
sion in Pfizer, Inc., 268 NLRB 916, 918 (1984). The failure
of Respondent to respond to the March 31, 1989 request
therefore violated Section 8(a)(5) and (1) of the Act. Re-
spondent had earlier furnished some, but not all, the informa-
tion requested on December 8, 1988, and the failure to fur-
nish all the information then requested, as well as delay in
furnishing that which it did supply to the Union, which delay
has not been shown to have been unavoidable, violated Sec-
tion 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By seeking to decertify the Union as the exclusive rep-
resentative of its employees in the bargaining units herein-
above found appropriate in order to avoid its bargaining obli-
gation, Respondent violated Section 8(a)(5) and (1) of the
Act.
4. By withdrawing recognition of the Union as the exclu-
sive bargaining representative of its employees and refusing
to continue to bargain with the Union before a reasonable
time for bargaining had elapsed and at a time Respondent did
not have a good-faith reasonable doubt of the Union’s major-
ity status, Respondent violated Section 8(a)(5) and (1) of the
Act.
5. By failing to give the Union prior notice of and an op-
portunity to bargain on the effects of a reduction in working
hours, Respondent violated Section 8(a)(5) and (1) of the
Act.
6. By failing to furnish the Union with information it re-
quested on December 8, 1988, and March 31, 1989, which
is relevant and reasonably necessary to the Union in the per-
formance of its duties as the exclusive collective-bargaining
representative of certain of Respondent’s employees, Re-
spondent has violated Section 8(a)(5) and (1) of the Act.
7. The unfair labor practices set forth above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
In addition to the usual cease and desist order and notice
posting requirements, my recommended Order will require
Respondent to (1) bargain with the Union on request, and re-
duce any understanding reached to a written, signed agree-
ment, (2) furnish the Union with the information requested
on December 8, 1988, and March 31, 1989, and (3) make
employees at 575 Technology Square whole for moneys and
benefits lost, if any, as a result of Respondent’s failure to no-
tify and give the Union opportunity to bargain on the effects
of the January 1989 reduction of work hours, with interest
910 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
10 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.’’
computed thereon at the ‘‘short-term Federal rate’’ for the
underpayment of taxes as set out in the 1989 amendment to
26 U.S.C. § 6621 in New Horizons for the Retarded, 283
NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended9
ORDER
The Respondent, Top Job Building Maintenance Co., New
Bedford, Massachusetts, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with the Union as
the exclusive bargaining representative of the employees in
the following bargaining units:
All employees who regularly work in excess of 15
hours per week engaged in the contract building clean-
ing industry at Respondent’s 565 Technology Square,
Cambridge, Massachusetts location, including all jani-
tors, porters, cleaners, doormen, elevator operators,
starters, handymen, groundsmen and maintenance
tradesmen not represented by another union, but exclud-
ing sales employees, office clerical employees, foremen
and all other supervisors as defined in the Act.
All employees who regularly work in excess of 15
hours per week engaged in the contract building clean-
ing industry at Respondent’s 575 Technology Square,
Cambridge, Massachusetts location, including all jani-
tors, porters, cleaners, doormen, elevator operators,
starters, handymen, groundsmen and maintenance
tradesmen not represented by another union, but exclud-
ing sales employees, office clerical employees, foremen
and all other supervisors as defined in the Act.
All employees who regularly work in excess of 15
hours per week engaged in the contract building clean-
ing industry at Respondent’s 38 Henry Street, Cam-
bridge, Massachusetts location, including all janitors,
porters, cleaners, doormen, elevator operators, starters,
handymen, groundsmen and maintenance tradesmen not
represented by another union, but excluding sales em-
ployees, office clerical employees, foremen and all
other supervisors as defined in the Act.
All employees who regularly work in excess of 15
hours per week engaged in the contract building clean-
ing industry at Respondent’s 21 Osborn Street, Cam-
bridge, Massachusetts location, including all janitors,
porters, cleaners, doormen, elevator operators, starters,
handymen, groundsmen and maintenance tradesmen not
represented by another union, but excluding sales em-
ployees, office clerical employees, foremen and all
other supervisors as defined in the Act.
(b) Seeking to decertify the Union as the exclusive rep-
resentative of its employees in order to avoid its bargaining
obligation.
(c) Failing to furnish the Union with information it re-
quests that is relevant and reasonably necessary to fulfilling
its duty to represent the employees in the units described
above.
(d) Failing to give the Union prior notice of and an oppor-
tunity to bargain on the effects of changes in hours of work.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, recognize and bargain with the Union as
the exclusive representative of all employees in the above-
described appropriate units and, if an understanding is
reached, embody such understanding in a written signed
agreement.
(b) Immediately furnish the Union with the information it
requested by letters of December 8, 1988, and March 31,
1989.
(c) Make the employees in the appropriate unit at 575
Technology Square whole for any moneys or benefits lost as
a result of Respondent’s failure to notify and give the Union
opportunity to bargain on the effects of the reduction of the
daily work hours from 4 to 3-1/2 in January 1989, with inter-
est thereon computed in the manner set forth in the remedy
section of this decision.
(d) Preserve and, on reasonable request, make available to
the Board and its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records necessary
to analyze the amount of moneys due under the terms of this
Order.
(e) Post at its New Bedford, Massachusetts offices and fa-
cilities, and the four locations in Cambridge, Massachusetts,
involved here, copies of the attached notice marked ‘‘Appen-
dix.’’10 Copies of the notice, on forms provided by the Re-
gional Director for Region 1, after being signed by Respond-
ent’s authorized agent, shall be posted by it immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that these notices are not al-
tered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.