United States Service Industries

National Labor Relations Board - Board Decisions

Sep 30, 1994

315 N.L.R.B. 285 (N.L.R.B. 1994)

285
315 NLRB No. 38
UNITED STATES SERVICE INDUSTRIES
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 Pacific Telephone Co., 107 NLRB 1547, 1548 (1954).
3 Sailors Union (Moore Dry Dock), 92 NLRB 547 (1950). Specifi-
cally, the judge found that there had not been compliance with the
first and second Moore Dry Dock requirements that the picketing
take place at times when the primary employer is engaged in its nor-
mal business at the common situs.
United States Service Industries, Inc. and Service
Employees International Union, Local 525,
AFL–CIO. Cases 5–CA–21399 and 5–CA–21691
September 30, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On April 28, 1994, Administrative Law Judge
Claude R. Wolfe issued the attached decision. The
Charging Party and the Respondent (USSI) filed ex-
ceptions and supporting briefs, and the Charging Party
filed an answering brief to the Respondent’s excep-
tions.
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-
clusions and to adopt the recommended Order as modi-
fied and set forth in full below.
1. The Respondent contends that, because several of
the employees struck more than one time, this was an
intermittent strike not protected by the Act. We dis-
agree.
The judge stated, and we agree, that ‘‘hit and run’’
strikes engaged in as part of a planned strategy in-
tended to ‘‘harass the company into a state of confu-
sion’’2 are not protected activity. However, we also
agree with the judge that in the instant case there is
no evidence that any such strategy was in place, and
that the mere fact that some employees may have
struck more than once does not render their conduct
intermittent striking. See Chelsea Homes, 298 NLRB
813, 831 (1990); Robertson Industries, 216 NLRB 361,
362 (1975), enfd. 560 F.2d 396, 398–400 (9th Cir.
1976). We conclude that the Respondent has failed to
establish that the employees were engaged in unpro-
tected intermittent striking.
2. In support of its argument that the strikers were
engaged in unprotected activity and therefore not enti-
tled to reinstatement, the Respondent in its exceptions
relies on Administrative Law Judge Arline Pacht’s de-
cision in Service Employees Local 525 (General Main-
tenance), Case 5–CB–6558 (JD 85–92). That case is
currently pending before the Board on exceptions. At
the page cited by the Respondent, Judge Pacht found,
inter alia, that the Union violated Section 8(b)(4)(B) by
picketing at Washington Square (1050 Connecticut Av-
enue, N.W.) after November 7, 1990, at times that vio-
lated the Moore Dry Dock3 standards for common situs
picketing. Judge Pacht also found that a number of the
Union’s written materials constituted direct evidence of
an unlawful secondary objective. The Respondent ar-
gues that, therefore, a finding is required that the em-
ployees’ conduct in the instant case was unprotected.
We find no merit in this exception.
First, we reject the Respondent’s contention because
the Respondent has failed to timely raise this defense.
At the hearing on December 7, 1993, more than a year
after Judge Pacht’s decision, the judge in the instant
case asked the Respondent’s counsel to state his posi-
tion as to why the strikers were not taken back. Coun-
sel’s reply cited two factors: (1) that some of the em-
ployees engaged in intermittent strikes and were not
entitled to reinstatement, and (2) that the Respondent
already had sufficient personnel in the building. (Tr.
774.) Counsel’s reply, however, made no reference to
the employees’ participation in secondary picketing as
a defense for failure to reinstate them, nor did the Re-
spondent advance this theory in its brief to the judge.
This defense was accordingly not considered by the
administrative law judge in this proceeding, and may
not be considered for the first time on exceptions to
the Board. See Wind-Chester Roofing Products, 302
NLRB 878 fn. 1 (1991); Operating Engineers Local
520 (Mautz & Oren), 298 NLRB 768 fn. 3 (1990);
Yorkaire, Inc., 297 NLRB 401 (1989), enfd. 922 F.2d
832 (3d Cir. 1990).
Second, even if the defense had been timely raised,
the Respondent has introduced no evidence in this pro-
ceeding to support it. Thus, there is no evidence in the
record of this case establishing that USSI was not
present in the building at the time these employees
picketed, or that these employees otherwise partici-
pated in unlawful secondary picketing. Accordingly,
we cannot find on the record before us that the em-
ployees were engaged in unlawful secondary activity.
To the extent that the Respondent may be citing
Judge Pacht’s decision in support of its contention that
the strikes in the instant case were part of a nationwide
campaign and, therefore, constituted intermittent strik-
ing, we still find no merit in this exception. As stated
above, the mere fact that some employees struck more
than one time is not sufficient evidence on which to
base a finding of unprotected intermittent striking. On
the record before us, we cannot make a finding that
the striking employees in the instant case were en-
286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Cf. Pacific Telephone, supra.
5 Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th
Cir. 1969), cert. denied 397 U.S. 920 (1970).
6 In sec. IV,A, par. 11 of his decision, the judge noted that the
complaint had been amended to delete the name of Pearly M. Jen-
nifer. In his conclusions of law the judge deleted that name from
the list of employees entitled to reinstatement. However, the judge
inadvertently failed to delete Jennifer’s name from the list of
discriminatees in the recommended Order and notice. We shall mod-
ify the recommended Order and the notice accordingly. We shall
also modify the reinstatement language in the judge’s recommended
Order to conform to the notice and shall include an expunction re-
quirement.
gaged in a campaign to harass the Company into a
state of confusion.4 Based on the evidence in this case,
we agree with the judge that these employees were en-
gaged in a protected economic strike and were thus en-
titled to reinstatement in the absence of proof that they
had been permanently replaced.
3. The Respondent has excepted to the judge’s find-
ing that the employees made a valid unconditional
offer to return to work. The Respondent contends that
the offer to return to work was conditioned on the em-
ployees’ returning to the same job on the same shift
and also contends that there is no showing that the
strikers designated the Union to make any offer for
them to return. We find no merit in this exception.
The August 3 and December 5, 1990 letters which
the Union effectively delivered to the Respondent are
set out in full in the judge’s decision. Each letter spe-
cifically states that it is an unconditional offer to return
to work. The offers are not rendered conditional by the
subsequent statement that the employees are ready to
return to their same shifts and buildings. An applica-
tion will not be treated as conditional unless it gives
the employer reason to conclude that any offer of
equivalent employment would be rejected. Continental
Industries, 264 NLRB 120 (1982); Hartmann Luggage
Co., 183 NLRB 1246 (1970), enfd. in relevant part 453
F.2d 178 (6th Cir. 1971).
We find that the Union made a valid unconditional
offer to return on behalf of the employees. Although
there is no evidence that the Union was the certified
or recognized representative of the striking employees,
the strike was organized and supervised by the Union.
Striking employees had tee shirts and picket signs sup-
plied by the Union. They were paid strike benefits by
the Union, and the strike was ended by a union-con-
ducted vote. On August 3, 1990, James Hessey, who
was then organizing director for the Union, was ac-
companied by some of the strikers when, prior to at-
tempting to deliver the letter discussed above, he made
a verbal offer on behalf of all striking employees to re-
turn to work. Under such circumstances, we agree with
the judge that the Union clearly acted as agent of the
employees in making the unconditional offers to return
to work. We find that it was not necessary for the
Union to have majority status in order to make these
offers. See Marlene Industries Corp. v. NLRB, 712
F.2d 1011, 1017–1018 (6th Cir. 1983).
4. The Charging Party has excepted to the judge’s
failure to provide a broad cease-and-desist order. We
find merit in this exception. In light of the nature and
extent of the Respondent’s violations, i.e., its total dis-
regard for the Laidlaw5 rights of its employees, its
commission of unfair labor practices at seven different
locations and against numerous employees, its unlaw-
ful threats to discharge strikers, its unlawful bonuses to
nonstrikers, and its unlawful discharge of an employee
in United States Service Industries, 314 NLRB 30
(1994), on the ground that she had ‘‘been stirring up
the other workers,’’ it is clear that the Respondent has
demonstrated a proclivity to violate the Act and has
exhibited a general disregard for the employees’ fun-
damental statutory rights. Accordingly, we conclude
that under the standard of Hickmott Foods, 242 NLRB
1357 (1979), a broad remedial order is warranted.6
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, United States Service Industries, Inc.,
Washington, D.C., its officers, agents, successors, and
assigns, shall take the action set forth in the Order as
modified.
1. Cease and desist from
(a) Discouraging membership in the Union by un-
lawfully failing and refusing to reinstate its employees
or to place their names on a preferential hiring list be-
cause they have engaged in a protected concerted
strike for their mutual aid and protection.
(b) Granting special bonuses as compensation to em-
ployees because they refrain from lawful strike activity
and/or telling striking employees that the Respondent
has done so.
(c) Interrogating employees concerning the content
of union meetings.
(d) Threatening employees with discharge if they go
on strike.
(e) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer the following employees who engaged in
the strike beginning July 26, 1990, and any other em-
ployees whose names are currently unknown but who
engaged in that strike, immediate and full reinstate-
ment to their former jobs, or to substantially equivalent
positions if those jobs no longer exist, without preju-
dice to their seniority or any other rights or privileges
previously enjoyed, discharging if necessary any em-
287UNITED STATES SERVICE INDUSTRIES
7 If 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.’’
ployee hired as a replacement in any positions for-
merly worked by the striking employees from July 26,
1990, to the present, and make them whole for any
loss of earnings and other benefits suffered as a result
of the Respondent’s discrimination against them in the
manner set forth in the remedy section of the judge’s
decision:
Howard Adams Bertram Madden
Atricia Armstead Kelly Marshall
Evelyn Barnett Melinda Moore
Marvin Beeman Howard Murray
Sheila Bell Ketzi Ortiz
Willie Bell Merida Lee Ramirez
Rosa Lee Bunn Philip Scott
Dyeman Carr Douglas Spencer
Melita Christmas Robert Taylor
Dave Cousley Andrew Terry III
Sherwin R. Jackson Albert Williamson
Randolph James James Wilson
(b) Offer the following employees who engaged in
the strike beginning October 30, 1990, immediate and
full reinstatement to their former jobs, or to substan-
tially equivalent positions if those jobs no longer exist,
without prejudice to their seniority or any other rights
or privileges previously enjoyed, discharging if nec-
essary any employee hired as a replacement in any po-
sitions formerly worked by the striking employees
from October 30, 1990, to the present, and make them
whole for any loss of earnings and other benefits suf-
fered as a result of the Respondent’s discrimination
against them, in the manner set forth in the remedy
section of the judge’s decision.
Rosa Berrios Doris Brown
Mary Burrell Angela Williams
Andres Gonzalez Bernice Noble
Gisela Sawyer Donald Monroe
Ade Thomas
(c) Remove from its files any references to the un-
lawful failure to reinstate, and notify the striking em-
ployees in writing that this has been done and that the
failure to reinstate will not be used against them in any
way.
(d) Pay $20 to each of the employees who engaged
in the May 30, 1990 strike against the Respondent who
did not receive the $20 bonus paid to nonstrikers on
May 31, with interest, computed in the manner set
forth in the remedy section of the judge’s decision.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Post at its Washington, D.C. offices and facili-
ties, copies of the attached notice marked ‘‘Appen-
dix.’’7 Copies of the notice, on forms provided by the
Regional Director for Region 5, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately on receipt and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(g) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
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
violated the National Labor Relations Act and has or-
dered 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 fail or refuse to reinstate our employ-
ees or to place their names on a preferential hiring list
because they have engaged in a protected concerted
strike for their mutual aid and protection.
WE WILL NOT grant special bonuses as compensa-
tion to employees because they refrain from lawful
strike activity and/or tell striking employees we have
done so.
WE WILL NOT interrogate employees concerning the
content of union meetings.
WE WILL NOT threaten employees with discharge if
they go on strike.
288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The more than 2-year hiatus in this case was due to an unavoid-
able delay in subpoena enforcement proceedings because a lengthy
case of national import was then before the United States District
Court with which the enforcement proceedings were initiated.
2 At hearing I rejected G.C. Exhs. 20 and 26, which were identi-
fied as strike sign-in lists. After comparing known signatures of
those employees, which signatures are also on other documents, with
those signatures on the sign-in lists and concluding they were made
by the same persons (Fed.R.Evid. 901(b)(3)); after comparing the
names of the payees on union checks issued for picket line duty with
the names on the sign-in lists and finding they match; and after con-
sidering credible testimony concerning the identity of strikers, to-
gether with the lack of evidence the sign-in lists were false and the
fact it is more likely than not the sign-in lists accurately portray who
the picketers were, I conclude my early ruling was in error and
should be reversed. It hereby is reversed and G.C. Exhs. 20 and 26
are received in evidence.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer the following employees who en-
gaged in the strike beginning July 26, 1990, and any
other employees whose names are unknown but who
engaged in that strike, immediate and full reinstate-
ment to their former jobs, or to substantially equivalent
positions if those jobs no longer exist, without preju-
dice to their seniority or any other rights or privileges
previously enjoyed, discharging if necessary any em-
ployee hired as a replacement in any positions for-
merly worked by the striking employees from July 26,
1990, to the present and WE WILL make them whole
for any loss of earnings and other benefits suffered as
a result of our unlawful discrimination against them,
with interest.
Howard Adams Bertram Madden
Atricia Armstead Kelly Marshall
Evelyn Barnett Melinda Moore
Marvin Beeman Howard Murray
Sheila Bell Ketzi Ortiz
Willie Bell Merida Lee Ramirez
Rosa Lee Bunn Philip Scott
Dyeman Carr Douglas Spencer
Melita Christmas Robert Taylor
Dave Cousley Andrew Terry III
Sherwin R. Jackson Albert Williamson
Randolph James James Wilson
WE WILL offer the following employees who en-
gaged in the strike beginning October 30, 1990, imme-
diate and full reinstatement to their former jobs, or to
substantially equivalent positions if their jobs no
longer exist, without prejudice to their seniority or any
other rights or privileges previously enjoyed, discharg-
ing if necessary any employee hired as a replacement
in any positions formerly worked by the striking em-
ployee from October 30, 1990, to the present, and WE
WILL make them whole for any loss of earnings and
other benefits suffered as a result of discrimination
against them, with interest:
Rosa Berrios Doris Brown
Mary Burrell Angela Williams
Andres Gonzalez Bernice Noble
Gisela Sawyer Donald Monroe
Ade Thomas
WE WILL remove from our files any reference to the
unlawful failure to reinstate, and WE WILL notify the
striking employees in writing that this has been done
and that the failure to reinstate will not be used against
them in any way.
WE WILL pay $20, with interest, to each of our em-
ployees who engaged in the May 30, 1990 strike
against us and did not receive the $20 bonus paid to
nonstrikers on May 31.
UNITED STATES SERVICE INDUSTRIES, INC.
Ronald Broun, Stephen C. Bensinger, and Angela S. Ander-
son, Esqs., for the General Counsel.
Joel I. Keiler, Esq., for United States Service Industries, Inc.
Eunice Washington, Larry Engelstein, and Virginia I. Dia-
mond, Esqs., for Service Employees International Union,
Local 525, AFL–CIO.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge. This con-
solidated proceeding was litigated before me in Arlington,
Virginia, on June 24, 25, and 26, 1991, and December 7, 8,
and 9, 1993,1 pursuant to charges and amended charges filed
by Service Employees International Union, Local 525, AFL–
CIO (the Union) on August 10 and October 26, 1990, and
January 4 and February 22, 1991, and complaints issued
which, with amendments made thereto, allege United States
Service Industries, Inc. (the Respondent) has violated Section
8(a)(1) of the National Labor Relations Act (the Act) by
making threats and other statements to employees and by
failing and refusing to reinstate strikers or to place them on
a preferential hiring list. Respondent denies it has violated
the Act as the complaint alleges.
After considering the entire record,2 the testimonial de-
meanor of the witnesses, and the posttrial briefs of the par-
ties, I make the following
FINDINGS OF FACT
I. RESPONDENT’S BUSINESS
General Counsel alleges, Respondent admits, and I find
that Respondent, at all times material to this proceeding, has
been a corporation with an office and place of business in
Washington, D.C., where it is engaged in the business of
providing janitorial services for firms and institutions located
throughout the Washington, D.C. metropolitan area, and, dur-
ing the 12 months preceding the issuance of the complaints,
a representative period, Respondent provided services valued
in excess of $50,000 to firms located in the District of Co-
lumbia which meet at least one of the National Labor Rela-
289UNITED STATES SERVICE INDUSTRIES
3 All dates are 1990 unless expressly otherwise stated, and all the
events considered in this decision took place in Washington, D.C.
4 Respondent admits Singletary has been a statutory supervisor at
all times material to this case.
5 Williamson, a more believable witness than Singletary, is cred-
ited that Singletary made the statement referred to.
6 Wilson’s account of his contacts with Singletary impressed me
as candid, uncontrived, and completely truthful.
tions Board’s jurisdictional standards other than an indirect
inflow or indirect outflow standard, and during this same pe-
riod of time, Respondent purchased and received at its Wash-
ington, D.C. offices goods and materials valued in excess of
$5000 directly from points located outside the District of Co-
lumbia. Respondent is now, and has been at all times mate-
rial to this proceeding, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The Union is now, and has been at all times material to
this proceeding, a labor organization within the meaning of
Section 2(5) of the Act.
III. A PRELIMINARY MATTER
Respondent’s motion at trial to continue the hearing until
the National Labor Relations Board, which then had only
two members, had a three-member quorum was denied. Re-
spondent argues, in sum, that because there was then no
three-member quorum, a direct appeal to the National Labor
Relations Board from any of my rulings could not be acted
on by the Board, and therefore, proceeding with the trial
while the National Labor Relations Board’s Rules and Regu-
lations were not in force rendered the hearing a nullity, citing
Automobile Club of America v. NLRB, 84 LRRM 2422, 71
LC ¶ 13,781 (D.C.D.C. 1973), enfd. 73 LC ¶ 14,471 (D.C.
Cir. 1974). I am convinced by neither the syllogism pro-
pounded by Respondent nor the case cited, which is both dis-
tinguishable on its facts and inapplicable to the issue which
Respondent raises, that the absence of a three-member
quorum requires the suspension of the National Labor Rela-
tions Board’s Rules and Regulations, or the postponement or
continuance of unfair labor practice proceedings before an
administrative law judge until a three-member quorum is at-
tained. Respondent’s argument is imaginative and interesting
but not persuasive. I adhere to my former ruling.
IV. ALLEGED UNFAIR LABOR PRACTICES
A. The May 30 and July 26 strikes
Some of the employees scheduled to work cleaning the
buildings at 1919 M Street NW., and 1725 Desales Street
NW. in Washington, D.C., on the evening of May 30, 1990,3
elected to protest their working conditions by withholding
their services that night. Accordingly, they did not work but
engaged in picketing in front of the building at 1919 M
Street as Albert Williamson credibly testified. Solomon
Timoll, then an employee of Respondent at 1725 Desales
Street, recalls that on that day he carried a sign stating em-
ployees wanted more money. Timoll does not recall at which
of the buildings serviced by Respondent he carried the sign.
Ketzi Ortiz distributed leaflets printed on the Union’s letter-
head alleging that Respondent was unlawfully harassing em-
ployees seeking better wages and benefits. It may be as
James Hessey, a union agent, recalls that employees at other
of Respondent’s work locations also conducted a one-night
strike on May 30, but it is doubtful inasmuch as the bonus,
which will be further discussed later, given to nonstrikers
was limited to Respondent’s employees working at its 1919
M Street and 1725 Desales Street locations.
Williamson is credited that Alvin Singletary, Respondent’s
manager at the time,4 passed by the pickets at 1919 M Street
on the evening of May 30. Singletary is not a particularly
believable witness. A large portion of his pretrial statement
given to a National Labor Relations Board agent was read
into evidence as a past recollection recorded of matters
which Singletary purported to have no present memory. I
perceive no reason to accord his pretrial statement any more
credibility than that accorded his trial testimony. Here we
have a member of management who is currently the project
manager and was an operations manager in 1990. He is an
intelligent and capable individual not likely to forget matters
so significant to Respondent as strikes which have been the
subject of charges and complaints for several years, and I do
not believe his memory is as blank as his testimony implies
that it is. He had respectable recollection of some matters,
notably the award of a bonus to employees who did not en-
gage in the May 30 work stoppage, and his recall that he
awarded $20 bonuses to employees who worked the night of
the strike because they performed twice their usual amount
of work due to the employee shortage does not square with
his purported failure to recollect that other employees were
on strike at the same time.
On the evening of May 31 in the presence of all the em-
ployees, after the one-night strikers had returned to work,
Singletary presented the aforementioned bonus checks to em-
ployees who had worked on May 30 along with the comment
that the strikers would not get a bonus but employees who
had not been on strike would.5 Singletary concedes he gave
a bonus to employees who worked on May 30 at 1919 M
Street and 1725 Desales Street but credibly denies giving a
bonus to Respondent’s employees working anywhere else.
During the course of distributing the bonus checks as em-
ployees punched out for the night, Singletary shook bonus
checks in front of James Wilson, an employee at 1919 M
Street, as Wilson complained that Respondent had not cut a
special check for him on an occasion when he had been due
extra pay.6 At a later time, probably the same or following
night, Singletary told Wilson that had he remained and
worked he could have gotten something out of it. Wilson had
not been one of the strikers, but when he arrived at work on
May 30 and found no one else there, he left and went home.
He did not picket on May 30. Later in July, Singletary told
Wilson that if he planned to strike he should not come back
because he would be fired and be without a job. Within a
few days thereafter, Singletary also told Wilson that employ-
ees who would not strike would get a bonus. Wilson recalls
this latter comment was made to him within the week pre-
ceding the next strike, which commenced on or about July
26. James Hessey, the Union’s organizing director at the
time, credibly testified the Union had a series of meetings
with Respondent’s employees during the week before the
strike culminating in a strike vote on July 25. I believe and
conclude Singletary had knowledge of this prestrike activity
290 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 The complaint allegations of conduct on or about July 19, 20,
and 21 are sufficient to cover the conduct shown by the evidence.
Action Auto Stores, 298 NLRB 875, 885 fn. 21, 897 fn. 56 (1990).
8 In determining whether certain statements violate Sec. 8(a)(1) of
the Act, I have applied the time-honored test set out in G. H. Hess,
Inc., 82 NLRB 463 fn. 3 (1949), and cases cited therein, to be
whether the conduct in question reasonably tends to interfere with,
restrain, or coerce employees in the exercise of their statutory rights.
9 I am persuaded that Singletary knew or believed when he refused
to accept the letter from Hessey that it was a written repeat of
Hessey’s oral offer on behalf of all the strikers to return to work.
Singletary’s refusal to accept Hessey’s written offer on behalf of all
the strikers to return to work does not diminish the validity of
Hessey’s oral offer on behalf of all the strikers to return to work,
and Respondent cannot circumvent its legal obligations by the device
of refusing to accept letters related thereto. The court of appeals
noted in NLRB v. Regal Aluminum, 436 F.2d 525, 527–528 (8th Cir.
1971): ‘‘Upon its refusal to accept the union’s letters the company
acted at its own peril as to the contents of the letters,’’ and further
pointed out that more than a century before, now 125 years ago, Jus-
tice Clifford observed:
[I]t is well-settled law that a party to a transaction, where his
rights are liable to be injuriously affected by notice, cannot
wilfully shut his eyes to the means of knowledge which he
knows are at hand, and thereby escape the consequences which
would flow from the notice if it had actually been received. The
Lulu, 10 Wall. 192, 201, 77 U.S. 192, 201, 19 L. Ed 906 (1869).
Justice Clifford’s observations are as valid today as they were in
1869.
when he made the statements to Wilson in July and that is
why he made them.
Singletary made and adopted other statements to employ-
ees between May 31 and July 267 similar to his previous
statements to Wilson. A few days before July 26, he advised
employee Kelly Marshall that if employees went on strike
again they would not be permitted to return to the building.
Singletary made the same statement to Albert Williamson on
another occasion, and, on or about July 19, made no com-
ment while an employee stated to other employees within his
hearing that Singletary had said that anybody who went on
strike again could not return to the building. Inasmuch as this
latter statement was made in Singletary’s presence and with-
in his hearing and he chose not to rebut it, I agree with Gen-
eral Counsel that he adopted the employee’s statement and
thereby communicated to the other employees present that if
they went on strike they would not be permitted to return to
their work stations.
I have found Singletary advised Respondent’s employees
that nonstrikers were given a bonus as a reward for not strik-
ing. Rewarding employees for not striking patently reason-
ably tends to interfere with, restrain, and coerce employees
in the exercise of their statutory right to engage in protected
concerted activity and therefore violates Section 8(a)(1) of
the Act. Rubatex Corp., 235 NLRB 833, 834–835 (1978).8
Telling strikers he had done so also violated Section 8(a)(1)
of the Act. I have no reason to doubt that Respondent gave
bonuses to employees on other occasions for other reasons,
but, contrary to Respondent’s posttrial argument, there is no
convincing evidence Respondent ever before gave employees
double pay when other employees failed to show up for
work. I further find that Singletary’s statements to Marshall
and Williamson that they would be barred from their work-
place if they participated in another strike and his adoption
of an employee’s statement to the same effect, is nothing less
than a threat of retaliation against employees who dared to
engage in a strike, which is a protected employee right. That
threat violated Section 8(a)(1) of the Act.
The strike that commenced on July 26 pursuant to the em-
ployees’ strike vote of July 25 involved employees at build-
ings serviced by Respondent at 1730 M Street NW, 1919 M
Street NW, 1150 17th Street NW, and 1725 Desales Street
NW. The Union provided union T-shirts, union buttons, and
picket signs for the employees. The T-shirts had the message
‘‘Justice for Janitors’’ printed on them. It is not clear in the
record what all the signs said, but from testimony on the
matter I conclude they in substance charged Respondent with
being an unfair employer, and that at least one sign said
‘‘USSI is Unfair.’’ General Counsel contends the strikes
were economic in nature and not unfair labor practice strikes.
On August 2 the strikers voted to return to work. On Au-
gust 3 James Hessey went to Respondent’s office with sev-
eral strikers and asked to speak with Singletary. When Sin-
gletary appeared Hessey told him the strike was over and the
strikers were all making an unconditional request to return to
work. After making this statement, Hessey presented a letter
in an envelope to Singletary. The letter reads as follows:
JUSTICE FOR JANITORS
ORGANIZING COMMITTEE
Local 525/Service Employees International Union
1017 12th Street NW, Washington, DC 20005
(202) 898–1505
August 3, 1990
James Mathews, President
USSI
1434 K St., N.W.
Washington, D.C.
Dear Mr. Mathews
The employees employed by USSI at 1730 M St.,
1725 Desales St., 11 50 17th St. and 1919 M St. that
have been on strike sinceJuly 26, 1990, make an uncon-
ditional offer to return to work today, August 3, 1990.
All employees are prepared to return to work at their
same position and building at the regular start time
today, August 3, 1990.
If you have any questions, please contact me di-
rectly.
Organize
Jay Hessey
Organizing Director
Singletary refused to take the letter. Hessey then said the
offer to return was still being made, laid the letter on the
counter and left. The strike was organized and supervised by
the Union pursuant to an employee strike vote and was
ended by a union-conducted vote of the employees. The
Union, in the person of Hessey, was clearly acting as the
agent of the striking employees and the offer to return to
work was made on behalf of all the strikers, not just the
strikers who were with Hessey when he made the offer.
Once the offer was made,9 the economic strikers were enti-
tled to reinstatement unless Respondent showed they had
been permanently replaced or there was some substantial
291UNITED STATES SERVICE INDUSTRIES
10 Teledyne Still-Man, 298 NLRB 982, 983 (1990); Gibson, supra.
business justification for refusing them reemployment, in
which case they are entitled to rehire when vacancies occur.
Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99
(7th Cir. 1969), cert. denied 397 U.S. 920 (1970); NLRB v.
Fleetwood Trailer Co., 389 U.S. 375 (1967). The Board has
held that General Counsel establishes a prima facie case of
unlawful discrimination by proving that the economic strikers
made an unconditional offer to return to work and that the
Respondent failed to reinstate them, thereby presumptively
discouraging the exercise of their rights under the Act. SKS
Die Casting, 294 NLRB 372, 375 (1989). That is exactly
what happened here. The burden is on Respondent to show
the failure to rehire was due to replacements or other ‘‘legiti-
mate and substantial business justifications,’’ Fleetwood,
supra at 378. Respondent has not done so. Furthermore, even
if there had been replacements, Respondent had a continuing
obligation to establish a preferential hiring list and to rehire
strikers as those replacements depart unless the strikers have
in the meantime acquired regular and substantially equivalent
employment elsewhere. Laidlaw, supra; Gibson Greetings,
310 NLRB 1286 (1993); Laidlaw Waste Systems, 313 NLRB
680 (1994). Respondent has not proven it has done this.
Respondent argues that it had no duty to reemploy those
employees who struck more than once because they were en-
gaged in intermittent striking, citing Automobile Workers
Local 232 v. WERB, 336 U.S. 245 (1949), overruled in Ma-
chinists Lodge 76 v. WERC, 427 U.S. 132 (1976), on other
grounds. The issue in Automobile Workers, supra, was
whether the state had jurisdiction to permit the exclusion of
intermittent strikers from statutory protection. In any case,
Automobile Workers is inapplicable to this case because no
intermittent striking here existed, the mere fact some employ-
ees may have struck more than once does not make their
conduct intermittent striking. The Board in Pacific Telephone
Co., 107 NLRB 1547 (1954), the authoritative case in this
area, found that ‘‘hit and run’’ strikes engaged in as part of
a planned strategy which was intended to bring about a con-
dition that was neither a strike nor work but was intended
to ‘‘harass the company into a state of confusion’’ were not
protected activity. In the instant case there is no evidence
any such strategy was in place or that the strikes were for
any purpose other than to protest and seek redress for what
employees considered to be unjust working conditions. There
was no unlawful intermittent striking.
The Union’s records show strike benefits were paid to the
employees named below for picket duty during the July 26
to August 3 period. It is not likely the Union was paying
strike benefits to nonstrikers. I therefore conclude those em-
ployees of Respondent listed below who received such bene-
fits were on strike during this period. Hessey’s oral offer to
Singletary, as well as the letter he left, was on behalf of all
of these individuals, as well as any other strikers who may
not have received such payments, and was sufficient to trig-
ger Respondent’s duty to offer them reinstatement. In addi-
tion to their offers to return to work conveyed by Hessey,
several of the striking employees visited Respondent’s office
on and after August 3 seeking employment. Some were as-
signed work. Some were not. Whether any of the work as-
signments were adequate to meet the reinstatement require-
ment is not clear in the record before me and is a matter best
left to subsequent compliance proceedings. The employees
shown on the Union’s records as recipients of strike benefits
for the July 26 to August 3 period are:
Howard Adams Bertram Madden
Atricia Armstead Kelly Marshall
Evelyn Barnett Melinda Moore
Marvin Beeman Howard Murray
Sheila Bell Ketzi Ortiz
Willie Bell Merida Lee Ramirez
Rosa Lee Bunn Philip Scott
Dye Carr Douglas Spencer
Melita Christmas Robert Taylor
Dave Cousley Andrew Terry III
Veronica Gaither Solomon Timoll
Sherwin R. Jackson Albert Williamson
Randolph James James Wilson
Pearly M. Jennifer
The complaint originally alleged ‘‘the Union, on behalf of
the following employees of Respondent, and other employees
whose names are presently unknown to the undersigned, but
whose names are peculiarly within the knowledge of Re-
spondent, who engaged in the strike . . . made an uncondi-
tional offer to return to their former positions of employ-
ment.’’ It then listed all the employees named above with the
exception of Sheila Bell. The complaint then proceeded to al-
lege all the strikers named in the complaint as well as other
strikers whose names were unknown to the Union, had nei-
ther been placed on a preferential hiring list or offered rein-
statement as the law requires. At a later time, General Coun-
sel amended the complaint to delete the names of Veronica
Gaither, Pearly M. Jennifer, and Solomon Timoll. The com-
plaint, as amended, is broad enough to cover all the employ-
ees listed above except for the three employees specifically
deleted by General Counsel, and to cover any other striking
employee not yet named who might have been unlawfully
treated as the complaint alleges. The Union’s offer on their
behalf was broad enough to cover these named and unnamed
strikers, and the Respondent had a duty to promptly rehire
them absent a showing they had been replaced or that there
was some legitimate and substantial business reason for not
putting them to work instanter. Respondent has not proven
either. Even if they had been replaced, the strikers were enti-
tled to placement on a preferential hiring list.10 Respondent
maintained no such lists. To the extent Respondent’s wit-
nesses suggest there was or were at one time a list or lists
of the type required, that testimony is not credited. In so con-
cluding, I note Joel Felrice, Respondent’s vice president, was
an evasive witness given to circumlocution whose demeanor
was less than impressive. His testimony is not credited where
it is unsupported by other credible evidence, nor is that of
Juan Lopez, a vague and unimpressive witness.
As the complaint alleges, by failing and refusing to honor
the employees’ unconditional requests for reemployment and
by failing and refusing to erect a preferential hiring list for
any strikers who may possibly have been replaced, Respond-
ent violated Section 8(a)(1) of the Act. This conduct was
predicted by Singletary when he threatened to refuse to let
employees return to their workplace if they went on strike,
and, I find, was retaliation against them for striking. I would
find a violation of Section 8(a)(3) of the Act if it were al-
292 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Some of these contacts or efforts to contact employees were ap-
parently made after this proceeding opened before me.
12 See, e.g., Sears Roebuck & Co., 117 NLRB 522, 523 fn. 3
(1957).
13 S. Frederick Sansone Co., 127 NLRB 1301, 1302 (1960); Thiele
Tanning Co., 128 NLRB 19 (1960).
leged because the Respondent’s conduct, I find, was an effort
to discourage union membership. In any event, the remedy
would be the same.
I am aware that Respondent made some contacts with em-
ployees concerning reemployment,11 and did reemploy some
of them, albeit in other work locations far removed from
their previous places of employment. These efforts of Re-
spondent are matters which may be more appropriately re-
viewed at the compliance stage of this proceeding should the
Board adopt my recommendations.
B. The October 30 Strike and Other Matters
Employees at Respondent’s 1050 Connecticut Avenue,
1909 K Street, and 1828 L Street locations struck, with union
assistance, on October 30 and picketed until December 5
with signs protesting unfair working conditions. From the
testimony of various witnesses, various letters directed to Re-
spondent from the Union and employees, and strike sign-in
sheets which bear signatures of employees like those on
other documents and give every appearance of being valid,
I conclude the following employees were on strike:
Jose Avilar Gisela Sawyer
Rosa Berrios Ade Thomas
Mary Burrell Doris Brown
Luis Chavez Angela Williams
Andres Gonzalez Bernice Noble
Roosevelt Goodman Donald Monroe
Carlos Reina
The complaint in Case 5–CA–21691 names all the employ-
ees listed above as striking employees unlawfully denied re-
instatement or placement on a preferential hiring list but does
not include Avilar, Chavez, Goodman, and Reina, and it does
not contain the reference to employees’ names that are un-
known to the Union but are alleged to be within the knowl-
edge of Respondent, which reference appeared in the com-
plaint in Case 5–CA–21399 covering the earlier strike. Inas-
much as General Counsel, as is his prerogative under Section
3(d) of the Act, has exercised his authority to restrict the al-
legations in Case 5–CA–21691 to encompass only the em-
ployees specifically named therein, my findings and conclu-
sions in Case 5–CA–21691 will relate only to those employ-
ees specifically named in the complaint: Berrios, Brown,
Burrell, Gonzalez, Monroe, Noble, Sawyer, Thomas, and
Williams.
By letter dated November 7, Respondent sent a message
to strikers. The record does not permit a definitive conclu-
sion as to how many strikers were sent or received this letter.
The letter reads, in pertinent part, as follows:
We would like to offer you the opportunity to be-
come re-employed with our Company and enjoy all the
benefits USSI offers its employees (Dental insurance,
vision benefit package, paid holidays, paid vacation, life
insurance, etc.)
Within two (2) days from the date you receive this
letter, you MUST get in touch with JOSE VIERA OR
JUAN LOPEZ, informing us of your interest in work-
ing with USSI again.
Please come to our office at:
1424 ‘‘K’’ St. N.W. /BASEMENT
WASHINGTON, D.C. 20005
MONDAY–FRIDAY
1:30–6:00 P.M.
Thank you.
Sincerely,
Argenis Jose Viera
Unemployment Director.
Kevin Brown, the union agent who organized and directed
the strike, responded by drafting a letter to Respondent dated
November 16. He prepared two copies which are identical to
the extent they read as follows:
Dear Mr. Viera:
This is to inform you that I am currently on strike
and have not quit my job with USSI.
I will notify you when I am prepared to return to
work.
One copy contains the typed names and signatures of Bernice
Noble, Angela Williams, and Doris Brown below the above-
quoted message. The other copy bears the typed names of
Mary Burrell, Gisela Sawyer, Ade Thomas, Luis Chavez,
Jose Avilar, Andres Gonzalez, Carlos Reina, and Rosa
Berrios along with the signatures of all but Berrios and
Reina, whose names were signed by Brown with his initials
appended to each to show he had signed on their behalf.
Brown then went to Respondent’s office and, in the company
of 10 to 15 strikers, attempted several times to hand the let-
ters to the persons working in Respondent’s office. He be-
lieves one of those to whom he offered the documents was
Viera, a statutory supervisor and agent of Respondent.
Brown’s perception that Viera was present has not been re-
butted. Brown’s repeated efforts to give the letters to the of-
fice staff were rebuffed. He then mailed them by regular
mail to Joel Keiler, Respondent’s counsel, thus creating a
presumption they were delivered to Keiler in the regular
course of the mails.12 This presumption can be overcome by
a credible and unequivocal denial of receipt.13 Keiler does
not unequivocally deny receiving the letters, but merely testi-
fied he had no recollection of ever receiving them and that
if he had, he would not have forwarded them to his client
because he is not a client’s mailman and neither forwards
documents from a union to his clients nor even tells them
about it unless the mail is in the nature of a lawsuit or other
legal document. At the time these letters were sent to him
Keiler was representing Respondent on labor matters, par-
ticularly in Case 5–CA–21399, and was clearly Respondent’s
agent for purposes of litigating labor matters. The November
16 letters were received by Keiler in his representational ca-
pacity, and service was thereby effected upon Respondent.
Turning to Respondent’s rejection of the strikers’ letters at
Respondent’s office, such rejection is subject to the rationale
prescribed in Regal, supra, noting the quoted remarks of Jus-
293UNITED STATES SERVICE INDUSTRIES
14 As in the earlier strikes, the testimony of Respondent’s wit-
nesses to the contrary was unsupported by any evidence of sub-
stance, documentary or otherwise, amounts to no more than their say
so, was unbelievable, and is not credited.
15 See H. C. Thomson, 230 NLRB 808, 809 fn. 2 (1977).
tice Clifford in The Lulu, that a refusal to accept letters does
not absolve a respondent from knowledge of their content. It
is reasonable to infer, as I do, that Respondent believed or
suspected the union proffer of the letters in the presence of
a substantial number of strikers on November 16 had some-
thing to do with Respondent’s messages to strikers in its No-
vember 7 letter to them.
On December 5, Brown typed three letters to Respondent.
They are identical in content with the exception that although
one refers to 1828 L Street NW and names a striker there,
Donald Monroe, another letter refers to 1909 K Street NW
and names Angela Williams, Bernice Noble, and Doris
Brown, and the third letter refers to 1050 Connecticut Ave-
nue and reads as follows:
JUSTICE FOR JANITORS
ORGANIZING COMMITTEE
Local 525/Service Employees International Union
1017 12th Street NW, Washington, DC 20005
(202) 898–1505
December 5, 1990
To United States Service Industries at 1050 Connecticut
Avenue, NW:
On Tuesday, October 30, 1990 the undersigned em-
ployees of USSI working at the 1050 Connecticut Ave-
nue, NW location acted in concert by refusing to work
in protest in the unfair work and low pay.
We make an unconditional offer to return to work
this evening, December 5, 1990 at our regular time and
position at the 1050 Connecticut Avenue, NW location
currently cleaned by USSI.
If you wish to discuss this matter, please contact Jay
Hessey at 202-898-1505.
Gisela Sawyer
Luis Chavez
Mary Burrell
Jose Avelar
Ade Thomas
Andres Gonzalez
Roosevelt Goodman
After drafting these letters, Brown engaged U.S. Express
Delivery Service to deliver them. The testimony of Brown
and Donald Rayford, the assistant to operations for the deliv-
ery service, and the records of the delivery service convinc-
ingly show that when it attempted to effect delivery of the
letters at Respondent’s offices, Respondent refused to accept
delivery. Here again I find Respondent was stonewalling, the
letters were served, and Respondent cannot now rely on ig-
norance of their content for the reasons previously expressed
herein in the other instances it refused service. The Union,
as before, sent the letters rejected by Respondent to Keiler
via regular mail. I find he received them and service on Re-
spondent was again effected by that receipt. The letter con-
tains an unconditional offer of the strikers to immediately re-
turn to work.
Here again there is no convincing showing the strikers
were offered reinstatement, any were ever placed on a pref-
erential hiring list, any had been replaced, that there was
some legitimate and substantial business justification for re-
fusing them reinstatement, or that any of the strikers had ac-
quired regular and substantially equivalent employment else-
where.14 Accordingly, I conclude Respondent violated Sec-
tion 8(a)(1) of the Act on and after December 5 by refusing
to reinstate or place on a preferential hiring list those em-
ployees who went on strike at 1050 Connecticut Avenue
NW., 1828 L Street NW., and 1909 K Street NW.
According to Rosa Berrios, an employee striker, some
time in mid-October 1990 she and other employees were told
by Maria Munoz, a supervisor and agent of Respondent, that
when they attended union meetings the Union was just tak-
ing up their time, and that was all she said. This is nothing
more than an expression of opinion and does not violate the
Act. Then, led by General Counsel in a purported effort to
refresh her memory, Berrios expanded that Munoz told them
not to get mixed up with the Union because it just took up
their time and there were others who wanted to work. I place
no weight on this latter testimony because it was the product
of leading questions15 and because Berrios previously testi-
fied with certainty that all Munoz said was that the Union
was just taking up the employees’ time when they attended
union meetings. General Counsel has not here proven the al-
leged violation of Section 8(a)(1) of the Act.
Mary Burrell credibly testified that Munoz, some time in
October, asked her how a union meeting had gone. Burrell
replied she did not know because she had not attended the
meeting. Munoz’ question was impermissible interrogation of
Burrell concerning her union activities and that of other em-
ployees and therefore violated Section 8(a)(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. On May 30, 1990, certain employees of the Respondent
working in buildings located at 1919 M Street NW and 1725
Desales Street NW Washington, D.C., engaged in a 1-day
economic strike and picketed at those locations.
4. By giving bonuses to those employees at 1919 M Street
NW and 1725 Desales Street NW Washington, D.C., who
did not strike as a reward for not striking, Respondent vio-
lated Section 8(a)(1) of the Act.
5. On July 26, 1990, employees of Respondent working at
1730 M Street NW, 1919 M Street NW, 1150 17th Street
NW, and 1725 Desales Street NW, Washington, D.C., en-
gaged in an economic strike at those locations.
6. On August 3, 1990, the employees referred to in para-
graph 5 above unconditionally offered to return to work.
7. Respondent, commencing on or about August 3, 1990,
and continuing to date, has violated Section 8(a)(1) of the
Act by unlawfully failing and refusing to reinstate or place
on a preferential hiring list its employees whose names ap-
pear below, and any other employees whose names are un-
294 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 Under New Horizons, interest on and after January 1, 1987, is
computed at the ‘‘short-term Federal rate’’ for the underpayment of
taxes as set out in the 1986 amendment to 26 U.S.C. § 6621.
known to me but whose names are known by Respondent,
because they engaged in protected strike activity:
Howard Adams Bertram Madden
Atricia Armstead Kelly Marshall
Evelyn Barnett Melinda Moore
Marvin Beeman Howard Murray
Sheila Bell Ketzi Ortiz
Willie Bell Merida Lee Ramirez
Rosa Lee Bunn Philip Scott
Dyeman Carr Douglas Spencer
Melita Christmas Robert Taylor
Dave Cousley Andrew Terry III
Sherwin R. Jackson Albert Williamson
Randolph James James Wilson
8. On October 30, 1990, employees of Respondent work-
ing at 1050 Connecticut Avenue NW, 1909 K Street NW,
and 1828 L Street NW., Washington, D.C., engaged in an
economic strike at those locations.
9. On or about December 5, 1990, the employees referred
to in paragraph 8 above unconditionally offered to return to
work.
10. Respondent, commencing on or about December 5,
1990, and continuing to date, has violated Section 8(a)(1) of
the Act by unlawfully failing and refusing to reinstate or
place on a preferential hiring list its employees whose names
appear below because they engaged in protected strike activ-
ity:
Rosa Berrios Doris Brown
Mary Burrell Angela Williams
Andres Gonzalez Bernice Noble
Gisela Sawyer Donald Monroe
Ade Thomas
11. By telling employees they will be discharged or other-
wise retaliated against if they strike, Respondent violated
Section 8(a)(1) of the Act.
12. By interrogating employees concerning the content of
a union meeting, Respondent violated Section 8(a)(1) of the
Act.
13. 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 and notice-posting
requirement, Respondent will be required to pay each of the
May 30 strikers the amount of the bonus paid to nonstrikers
on May 31 ($20), with interest, and Respondent will be or-
dered to offer the July 26 to August 3 strikers and the Octo-
ber 30 to December 5 strikers reinstatement to the jobs they
held at the time they went on strike, without prejudice to
their seniority and other rights and privileges, or to substan-
tially equivalent positions if those jobs no longer exist, and
make them whole for any loss of earnings and other benefits
suffered as a result of Respondent’s discrimination against
them. Backpay, with interest, shall be computed in the man-
ner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950),
and New Horizons for the Retarded, 283 NLRB 1173
(1987).16
[Recommended Order omitted from publication.]