Universal Service Contractors

National Labor Relations Board - Board Decisions

Jan 31, 1980

247 N.L.R.B. 724 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Universal Service Contractors and International
Guards Union of America and Edward K. Dana and
Ray L. Hardy. Cases 27-CA-5753, 27-CA-5789,
27-CA-5811, and 27-CA-5858
January 31, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On July 3, 1979, Administrative Law Judge James
T. Rasbury issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge and to
adopt his recommended Order,' as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Uni-
versal Service Contractors, Salt Lake City, Utah, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Insert the following as paragraph 2(e) and reletter
the subsequent paragraph accordingly:
"(e) Mail a copy of the attached notice to each
employee employed by Respondent at the Internal
Revenue Service Center, Ogden, Utah, between Febru-
ary 28, 1978, and May 13, 1978."
2. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that all allegations with
regard to the illegal discharge of Ray L. Hardy be
dismissed.
' In dismissing par. vi (b) of the complaint, the Administrative Law Judge
correctly noted that "prior to the strike, Respondent was working short-
handed .... "He went on to state, "[B]ut during the strike period some 16
trainees completed their training programs and began working as regular
guards." However, as the record discloses that the trainees completed their
training programs and began working as regular guards just prior to the
commencement of the strike, we correct his Decision accordingly.
We agree with the Administrative Law Judge that Respondent's discussion
with employee Lockett concerning withdrawal of a wage claim with the Utah
Industrial Commission was not coercive (ALJD at fn. 9 and related text). We
247 NLRB No. 97
further note testimony showing that Lockett conceded he had been informed
of a purportedly higher pay rate for the trainee period not by Respondent but
by an employment agency through which he had applied.
The General Counsel excepts, inter alia. to the Administrative Law
Judge's failure to conclude that the strike was an unfair labor practice strike.
Consistent with his other findings herein, and absent any exceptions thereto
by Respondent, we find that the strike was an unfair labor practice strike. This
finding does not alter the remedy or Order, however, in view of the
Advninistrative Law Judge's conclusion that Respondent's reinstatement of
stnriers (apart from Wayment and Lee) was not "in any manner discriminato-
ry or violative of the Act." (See fn. I, supra. )
' The Administrative Law Judge inadvertently failed to conform his notice
with his recommended Order. We shall correct his notice accordingly.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportuni-
ty to present evidence, the National Labor Relations
Board has found that we violated the National Labor
Relations Act and has ordered us to post this notice.
The Act gives employees the following rights:
To organize themselves
To form, join, or help unions
To bargain as a group through representa-
tives of their own choice
To act together for collective bargaining or
other mutual aid or protection
To refuse to do any or all of these things.
WE WILL NOT threaten our employees with
discharge because of their participation in a
lawful economic strike.
WE WILL NOT question our employees regard-
ing affidavits or depositions that may be given to
an official investigator of the National Labor
Relations Board.
WE WILL NOT discharge employees because of
their union membership and activities.
WE WILL NOT refuse to call and reinstate
employees in accordance with an agreement made
between us and the Union because of the employ-
ees' union activities.
WE WILL NOT refuse to bargain collectively
with the Union as the majority representative of
the employees in the unit described below.
All guards employed by us at our Salt Lake
City, Utah operation who are employed at the
Internal Revenue Service Center in Ogden,
Utah; but excluding all office clerical employ-
ees and supervisors as defined in the National
Labor Relations Act, as amended, and exclud-
ing all other employees.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
724
UNIVERSAL SERVICE CONTRACTORS
exercise of their rights guaranteed them by
Section 7 of the Act.
WE WILL reimburse Linda Wayment, Keith
Lee, and Edward K. Dana for their loss of wages
suffered as a result of the discrimination against
them, together with appropriate interest thereon.
WE WILL bargain, upon request, with Interna-
tional Guards Union of America as the exclusive
representative of all employees in the appropriate
bargaining unit described above with respect to
rates of pay, wages, hours, and other terms and
conditions of employment, and, if an understand-
ing is reached, embody such understanding in a
signed statement.
UNIVERSAL SERVICE CONTRACTORS
DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY, Administrative Law Judge: This case
was heard by me in Salt Lake City, Utah, on February 13,
1979, pursuant to a complaint and notice of hearing issued
on October 27, 1978.1 The complaint alleges violations of
Section 8(a)(1), (3), and (5) of the National Labor Relations
Act, as amended (herein the Act). The charge in Case 27-
CA-5753 was filed by the International Guards Union of
America (herein the Union) on March 7 and served on
Respondent on the same day;2 the original charge in 27-CA-
5789 was filed by the Union on April 12 and amended on
May 8. Both the original charge and the amended charge
were served on Respondent on the same dates they were
filed; the charge in Case 27-CA-5811 was filed by Edward
K. Dana on May 2 and served on Respondent on the same
day; the charge in Case 27-CA-5858 was filed by Ray L.
Hardy on June 7 and served on Respondent on the same
day.' On or about April 10 the Regional Director approved a
settlement in Case 27-CA-5753 that had been executed and
entered into by Respondent and the Union. However, this
settlement agreement was set aside by the Regional Director
in his order consolidating cases dated October 27. Respon-
dent's answer, filed on October 31, admits certain jurisdic-
tional allegations of the complaint, but denies the commis-
sion of any unfair labor practices.
Upon the entire record in this case and based upon my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is now, and at all times material hereto has
been, an individual proprietorship owned by Alvin Olsen,
I All dates hereinafter shall refer to the year 1978 unless otherwise
indicated.
The caption has been repeated here exactly as it appears in the formal
papers. However, Universal Service Contractors is a proprietorship owned by
Alvin Olsen. and the caption should have been Alvin Olsen, d/b/a Universal
Service Contractors.
who maintains his principal office and place of business at
Salt Lake City, Utah, where he is engaged in the business of
providing guard services. In the course and conduct of its
business operations, Respondent annually provides services
valued in excess of $50,000 directly to businesses located
outside the State of Utah. Based upon this commerce data
and the admission of Respondent, I now find Respondent to
be, and at all times material herein to have been, an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits and I herewith find the Union to be,
and at all times material herein to have been, a labor
organization within the meaning of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
Respondent is charged with having made several com-
ments tending to interfere with, coerce, or restrain the
employees in the exercise of their Section 7 rights and thus
violative of Section 8(a)(1); Respondent is also charged with
having violated Section 8(a)(3) of the Act by discriminatori-
ly delaying the recalling of two employees following a strike;
by curtailing the usual number of hours worked by several
employees; and by the discharge of two employees; all
because of their union activities; Respondent is also charged
with having violated Section 8(a)(5) of the Act because of his
dilatory and procrastinating tactics regarding the Union's
effort to negotiate a contract. There is very little controversy
in this case because of Respondent's failure to present any
evidence to refute the testimony that was offered by the
General Counsel.
B. The Evidence
Respondent admitted and I herewith find that since
January 20 the Union has been the representative for the
purpose of collective bargaining of "all guards employed by
the Respondent at its Salt Lake City, Utah operation who
are employed at the Internal Revenue Service Center in
Ogden, Utah; excluding all office clerical employees and
supervisors as defined in the National Labor Relations Act,
as amended."
Raymond G. Curtis, a union representative, and employ-
ees Linda Wayment and Keith Lee testified that they met
with Olsen and his assistant manager, Cook, and a secretary
on three occasions between February 7 and March 20, the
date the employees went on strike. The Union presented its
proposals to Respondent (see G. C. Exh. 2), but Respondent
never agreed to any of the proposals or made any counterof-
fers until after the strike began at which time he presented
the Union with a partial acceptance of the noneconomic
' A complaint was issued in Case 27-CA-6051 based upon a charge filed by
Ray L. Hardy against the Permar Security and Research Corporation, which
was consolidated with the instant cases by order of the Regional Director for
Region 27 dated January 19, 1979. However, on February 2, 1979, the
Charging Party requested withdrawal of his charge. and the complaint in Case
27-CA-6051 was dismissed by the Regional Director on February 8, 1979.
725
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
demands set forth in the Union's proposals (see Resp. Exh.
1). Two bargaining sessions were canceled by Olsen and,
according to the testimony of Wayment and Curtis, after the
strike had been called Beeley-an industrial relations consul-
tant who was then representing Respondent-stated to the
union negotiating committee that anything Olsen may have
agreed to previously was withdrawn. Beeley did not appear
to testify. Olsen acknowledged that he never made any
counterproposals to the Union, and that none of the
monetary issues were agreed to or even thoroughly dis-
cussed.
Linda Wayment, Edward K. Dana, Robert Vandenberg,
Ellison Lockett, and Raymond L. Hardy testified that
during the strike Olsen went to each of the picket stations
and told the employees that unless they returned to work
within 10 minutes they would be fired. When Olsen was
questioned regarding this statement, his answer was equivo-
cal and to the effect that he may have told the employees
that they should return to work within 10 minutes, but he
could not recall having told them they would be fired.
Vandenberg also testified that Cook, the assistant manager
of Respondent, also told the employees they would be fired
unless they returned to work immediately. Cook was not
called to testify.
Ray Hardy testified that on May 4 he went to the Internal
Revenue Service Center to ascertain if his vacation check
was ready.' According to Hardy, when he spoke to Gard he
(Gard) immediately inquired as to whether or not Hardy
had had an interview with Chavez, an investigator for the
Board. Upon learning that Chavez had spoken to Hardy,
Gard queried him regarding the specifics of what he had told
Chavez and asked for a copy of the deposition that Hardy
had given. Gard was not called by Respondent to testify.
Ellison Lockett testified that he had filed a wage claim
with the Utah Industrial Commission about a week after the
strike started. According to Lockett's testimony-and it was
not denied by Olsen-Olsen asked Lockett to withdraw his
claim. Lockett testified that he had been told that he was
going to be paid $3.51 per hour-which was the regular rate
for the regular guards-during the time that he was in
training, but instead he was only paid a wage of $2.65 per
hour. During the hearing, Olsen provided the court and the
General counsel with records showing the hours worked by
a group of approximately 16 trainees from February 16
through March 10, which indicated that all those trainees,
including Ellison Lockett, were paid at the rate of $2.65 per
hour. Olsen denied that he had ever promised to pay the
trainees anything other than the minimum wage during their
training period. Olsen testified that he tried to explain this to
Lockett at the time that he told Lockett that he (Lockett)
was wrong about the rate of pay that he was to receive and
requested Lockett to withdraw his claim with the Utah
Industrial Commission.
Linda Wayment testified that on April 4 at a general
negotiating meeting the parties agreed that the strike would
be called off provided Olsen would return the employees in
accordance with their seniority. Olsen testified that this was
a true statement, and that he had agreed to return the
' There was other testimony by Hardy indicating that he became eligible for
his vacation paycheck in January and had attempted on several prior
occasions to obtain his check, but in each instance he was given some type of
excuse by Donald Gard, an admitted supervisor.
employees to work in accordance with their seniority.
However, Keith Lee and Linda Wayment, who were among
Respondent's most senior employees (see G.C. Exh. 9),
were not recalled to work until on or about April 14. It is
undenied that there were younger employees who were
returned to work at a much earlier date. Olsen's only
explanation at the hearing was that in his opinion a number
of the employees were antagonistic toward Lee and Way-
ment and for that reason he delayed their being recalled.
Edward Dana was active during the period of the strike.
However, he was recalled to work rather promptly after the
Union had agreed to call off the strike and Respondent had
agreed to return the employees in accordance with their
seniority. Although Dana was recalled promptly, he found
upon returning to work that the schedules were quite
different and much more irregular than they had been before
the strike. Dana testified that on April 18 he was scheduled
to work the graveyard shift, but there had been a change in
schedules and he was of the opinion that he would not work
until the next day on the swing shift. He testified that he
spent all day working in his yard and had just gone to bed
when he received a phone call from Vandenberg, the
dispatcher, asking him if he intended to report for work.
Dana said that he explained to Vandenberg that he did not
know he was supposed to report to work and had spent the
entire day working very hard in his yard and did not wish to
work that evening, but in the event Vandenberg could not
find someone else he would come into work.
Vandenberg confirmed Dana's testimony to the effect that
Dana had told Vandenberg that because he was very tired he
did not wish to work, but in the event Vandenberg could not
find someone else that he would report for work. Vanden-
berg further testified that he was able to find someone to
work in Dana's place and thus did not call Dana again to ask
that he report for work.
Olsen's testimony regarding Dana was equivocal and not
very convincing. At first he commented that when employ-
ees fail to show up for work it was common practice to
regard them as a quit because, "On a government contract
like this, we have to fill all the post at any cost or we will be
fined at double what we take in an hour. We took in S5.11 an
hour and we were fined $9.36 an hour if we didn't fill the
post." After being reminded that the dispatcher, Vanden-
berg, testified that he was able to obtain another employee to
work Dana's shift, Olsen then indicated that Dana was
discharged by Gard, and as the boss he had a responsibility
to back him up.5
Ray L. Hardy was discharged by Respondent on May 12.
Hardy testified that he had first gone to work as a guard in
January 1977, and that he had joined the Union and had
participated in the strike. Hardy testified that he was
promptly returned to work following the strike, but when he
first reported at approximately 11:15 p.m. he learned he
should have reported at 11 p.m. and he was sent home that
evening. This mixup was cleared up, however. According to
the testimony of Hardy, Lieutenant Erwin confirmed that
Hardy was not due to have reported for work until 11:30.
Hardy's testimony was rambling, at times difficult to
' Dana was returned to work by Respondent on June 7, and we are only
concerned with his loss of pay between April 19 and June 7.
726
UNIVERSAL SERVICE CONTRACTORS
comprehend, and something less than crystal clear and
precise. However, he did confirm that he had voiced several
complaints with management including his inability to get
his vacation pay, and he also related how Gard had
questioned him concerning the statement which he had
given to a Board investigator.
However, Ronald Buchanan testified that he is the fourth
commander at the Federal Protective Service, Utah Central
Force, in Salt Lake City and is the supervisor or monitor of
all guard contracts within the State of Utah that are
negotiated between GSA and private guard companies.
Universal Service Contractors is a privately owned guard
service that contracted with GSA to perform the guard
function at the Internal Revenue Service center in Ogden,
Utah. Buchanan testified that he was the one who directed
that Hardy be removed from the guard service at the IRS
center (see G. C. Exh. 5). Buchanan's letter dated May 12
addressed to Alvin Olsen directed him to have Ray L. Hardy
removed from the guard service at the IRS Ogden center
immediately. Olsen testified that he had no alternative after
receiving Buchanan's letter except to remove Hardy from
guard duty at the IRS center. He testified that Buchanan's
authority as the GSA supervisor of all government contract
guard services was clearly set out in the contract between
GSA and Universal Service Contractors.
On October 23 Olsen received a telegram from Osborn of
the Denver Federal center advising that GSA's objection to
the employment of Ray L. Hardy was being withdrawn as of
that date. Olsen testified that he immediately informed
Hardy by letter that GSA's objection to his employment had
been removed, and that he was welcome to return to work.
Hardy confirmed that he received such a letter from Olsen
but did not get around to going to the center to discuss his
return to work until sometime during the week of November
6. On November 10 Universal Service Contractors lost the
guard service contract at the Ogden IRS center, and it was
taken over by Permar Security and Research Corporation.6
C. Analysis
The threats of discharge which were made both by Olsen
and Don Gard to the striking employees stand in the record
undenied and certainly would be conduct interfering with,
restraining, and coercing employees in the exercise of their
Section 7 rights and thus violative of Section 8(aX)(1). Such a
threat of discharge has long been regarded by the Board as
an unlawful strike-breaking technique.'
Hardy's testimony regarding being quizzed by Supervisor
Don Gard regarding an affidavit given to an investigator for
the Board stands in the record undenied. The Board has, in a
number of cases, established the principle that an employer
violates Section 8(aXl) of the Act when he interrogates an
employee about a statement given to a Board agent and/or
seeks a copy of any such statement given to a Board agent.'
I Apparently, there was further delay on the part of the Permar in rehiring
Hardy. This delay was the subject of Case 27-CA-6051, which was later
dismissed following a satisfactory settlement between Permer and the
Charging Party Hardy, as noted supra., at fn. 3.
'See Kerrigan Iron Works Inc., 108 NLRB 933 (1954).
' Winn-Dixie Stores. Inc.. and Winn-Dixie Louiville,. Inc.. 143 NLRB 848
(1963); W T Grant Company, 144 NLRB 1179 (1963); Braswell Motor
Freight Lines; Inc.. 156 NLRB 671 (1966); Waggoner Corporation. 162 NLRB
Based on the evidence before me, I find and conclude that
Gard did question Ray L. Hardy concerning an affidavit
given to a Board agent and thereby interfered with,
restrained, and coerced an employee in the exercise of his
Section 7 rights and thus further violated Section 8(a)(1) of
the Act.
Olsen does not deny that he asked Ellison Lockett to
withdraw his compensation claims against Respondent that
had been filed with the Utah Industrial Commission.
However, I do not regard this bare request as violative of the
Act. There is not a scintilla of evidence in this record to
indicate that Lockett was engaged in concerted activity or
that he was subsequently discriminated against in any
manner. Olsen presented substantial evidence, and the
General Counsel agreed, that the payroll records reflected
that all the trainees received the same amount of money
which was a lesser sum than the regular guards. Lockett's
claim was concerned with the period of time during which
he was a trainee. I find nothing illegal in Olsen's attempt to
explain to Lockett that he was paid as all of the trainees were
paid, or that the bare suggestion or request that the claim
with the Utah Industrial Commission be withdrawn tended
to interfere with, restrain, or coerce Lockett in any manner.
I shall recommend dismissal of this allegation.9
There is no dispute in this record as to the seniority status
of Linda Wayment and Keith Lee (see G. C. Exh. 9). Linda
Wayment was president of the Union and on the negotiating
committee; Keith Lee was vice president of the Union and
was also on the negotiating committee. Olsen acknowledged
that he agreed with the Union to recall and return the
striking employees to work in accordance with their seniori-
ty status. The record is also clear that employees with less
seniority were returned to work at a date earlier than were
Linda Wayment and Keith Lee. Olsen's only excuse or
reason for this delay-that there was some antagonism
toward Lee and Wayment among the other guards-is not
credited. The inference is strong and reasonable that
Respondent failed to return Wayment and Lee to their guard
duties because of their active and supportive role on behalf
of the Union. I shall find this conduct on the part of
Respondent discriminatory and thus violative of Section
8(aX3) of the Act and shall recommend that these employees
be made whole for the moneys lost because of Respondent's
failure to recall them in a manner consistent with his
agreement with the Union and their seniority status.
The complaint in this consolidated case (par. VI(b))
alleges that the reduced hours and the different shifts
worked by the striking employees after they were recalled to
work following the strike were due to the employees'
participation in the strike and their other union activities
and thus violative of Section 8(aX3) of the Act. The General
Counsel is required to prove a violation of the Act by a
preponderance of the evidence.' In my opinion, this was not
done. While I credit and accept the testimony of several
1161 (1967); Dan Carter Company, 168 NLRB 314 (1967); John Oster
Manufacturing Co., 173 NLRB 503 (1968).
' My dismissal of this aspect of the complaint herein should not be
interpreted by anyone as a finding on the merits of Lockett's claim of having
been underpaid. It may well be that Lockett, as well as the other trainees.
should have received the higher rate of pay, but this record will not support
such a finding.
' Falstaff Brewing Corporation. 128 NLRB 294, 295, fn. 2 (1960).
727
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees that they worked 40 or more hours per week
prior to the strike, but frequently worked something less
than that after they were returned to work, nevertheless, I
am not convinced that the shorter hours stemmed from any
discriminatory motive on the part of Respondent. Olsen
testified that, although a number of the guards had frequent-
ly worked overtime prior to the strike, this was extremely
costly to him because he did not receive any extra moneys
under the contract for the overtime work. Prior to the strike
Respondent was working shorthanded, but during the strike
period some 16 trainees completed their training programs
and began working as regular guards. It appears from this
record that the addition of the additional 16 employees that
became available for full-time guard work greatly increased
Respondent's flexibility and enabled him to work all of the
employees a shorter workweek." I find and conclude that
the General Counsel has failed to prove by a preponderance
of the evidence that the lesser number of hours worked per
week and the change in the working schedules which the
employees were given after they returned to work following
the strike was in any manner discriminatory or violative of
the Act. I shall recommend dismissal of this allegation in the
complaint.
The record establishes that Dana was one of the most
senior employees, and that during his period of employment
he had never been late or had he missed a day of work. Dana
was active in the Union and participated in the strike.
Olsen's testimony regarding Dana struck me as being almost
apologetic for having discharged him on April 18, and Olsen
could only offer the weak excuse that he was supporting his
lower level supervision. Don Gard, who was responsible for
the discharge, was never called to testify. Direct evidence of
discriminatory motivation is not necessary to support a
finding of discrimination if such intent may be inferred from
the record as a whole.'2 Illegal motivation has been held to
be supported by a combination of such factors as disparity of
treatment, general bias and hostility toward the Union,
coincidents in union activity and discharge and implausible
explanation by the employer for its actions.' I find and
conclude from all the evidence in this record that the
discharge of Edward K. Dana on or about April 18 because
he failed to report for work as scheduled was pretextual. A
strong and reasonable inference is that Dana was discharged
because of his union activity and participation in the strike
against Respondent. Such a discriminatory reason is viola-
tive of Section 8(aX3) of the Act, and I shall direct that
Dana be made whole for the moneys he lost for the period
between April 18 and June 7, and that all records be
corrected in a manner that will give Dana credit and
seniority for continuous employment during this period of
time when he was actually without work.
It must be found from this record that Ray L. Hardy was
an active and supportive union adherent; however, the
record is equally clear that he was discharged by Respondent
at the request of Ronald Buchanan, a GSA representative
who had authority under the contract between GSA and
Respondent to demand Hardy's discharge. While it may
" There was no evidence presented that the employees were ever guaranteed
a 40-hour workweek, and nothing was ever negotiated or completed insofar as
the union contract might be concerned.
' Heath International, Inc., 196 NLRB 318 (1972); Florida Steel Corpora-
tion. 231 NLRB 651 (1977).
very well be that Respondent was glad to be rid of Hardy,
whose own testimony convinces me that he was a meddle-
some constant complainer, nevertheless Respondent was not
responsible for the discharge. However, Respondent acted
promptly to invite Hardy to return to work upon receipt of
the telegram from GSA that any objections they had to
Hardy's employment no longer existed. I shall recommend
dismissal of that portion of the complaint dealing with the
alleged illegal discharge of Ray L. Hardy.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth above in connection
with the Respondent's operation described in section I,
above, have a close, intimate, and substantial relationship to
trade, traffic, and commerce among the several States and
tend to lead and have lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it be ordered to cease
and desist therefrom, and that it take certain affirmative
action necessary to effectuate the policies of the Act.
Respondent will be required to reimburse and make whole
employees Linda Wayment and Keith Lee because of the
wrongful and discriminatory delay in recalling these employ-
ees to work following the strike which ended on April 4.
Respondent shall also be required to reimburse and make
whole employee Edward K. Dana for wages lost during the
period from April 18 until June 7, at which time he was
either reinstated or rehired (the record is not definitive as to
which occurred). The records regarding Dana shall be
corrected so that there is no break in his employment, and
his seniority shall be fully restored. Backpay is to be
computed in the manner prescribed by the Board in F. W
Woolworth Company, 90 NLRB 289 (1950), and with
interest thereon as prescribed by the Board in Florida Steel
Corporation, 231 NLRB 651 (1977)."
Upon the basis of the foregoing findings of fact and upon
the entire record, I make the following:
CONCLUSIONS OF LAW
I. Respondent is an employer within the meaning of
Section 2(2) of the Act, engaged in commerce and in an
industry affecting commerce within the meaning of Section
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. All guards employed by Respondent at its Salt Lake
City, Utah, operation who are employed at the Internal
Revenue Service center in Ogden, Utah; but excluding all
office clerical employees and supervisors as defined in the
National Labor Relations Act, as amended, and excluding
L W. 7T Gran Company. d/bla Grant City. 210 NLRB 622 (1974).
"See, generally, Isis Plumbing & Heating Co., 138 NLRB 716(1962).
728
UNIVERSAL SERVICE CONTRACTORS
all other employees, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. Since on or about February 7, 1978, the Union has been
the exclusive collective-bargaining representative of the
employees in the aforesaid appropriate bargaining unit
immediately described above.
5. Respondent has failed and refused to bargain in good
faith with the Union by engaging in procrastinating and
dilatory tactics, by delaying, and in some instances refusing,
to make proposals or counterproposals, and in other
instances by withdrawing previously agreed to proposals or
portions of the contract.
6. Respondent has violated Section 8(a)(1) of the Act by
threatening employees with discharge for engaging in a
lawful economic strike.
7. Respondent has also violated Section 8(a)(1) of the Act
by unlawfully interrogating an employee concerning an
affidavit given by said employee to a representative of the
Board.
8. Respondent has violated Section 8(a)(3) of the Act by
discriminatorily refusing to reinstate employees Linda Way-
ment and Keith Lee in accordance with their respective
seniority and the agreement made between Respondent and
the Union.
9. Respondent violated Section 8(a)(3) of the Act by its
discriminatory discharge of Edward K. Dana on or about
April 18, 1978.
10. All allegations of the consolidated complaint herein
not specifically listed above are to be dismissed because of
failure of the General Counsel to prove said allegations by a
preponderance of the evidence.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER"'
The Respondent, Universal Service Contractors, Salt Lake
City, Utah, its officers, agents, successors, and assigns, shall:
i. Cease and desist from:
(a) Interrogating employees about the contents of affida-
vits given the Board investigators.
(b) Threatening employees with discharge unless they
abandon a lawful economic strike and return to work.
(c) Discharging employees because of their union mem-
bership and activities.
" In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
(d) Refusing to call and reinstate employees in accordance
with an agreement made between Respondent and the Union
because of the employees union activities.
(e) Refusing to bargain collectively with the Union as the
majority representative of the Respondent in the unit
described below:
All guards employed by the Respondent at its Salt Lake
City, Utah operation who are employed at the Internal
Revenue Service Center in Ogden, Utah; but excluding
all office clerical employees and supervisors as defined
in the National Labor Relations Act, as amended, and
excluding all other employees.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Bargain, upon request, with the Union as the exclusive
representative of all employees in the appropriate unit
described above with respect to rates of pay, wages, hours,
and other terms and conditions of employment and, if an
understanding is reached, embody such understanding in a
signed agreement.
(b) Make whole Linda Wayment, Keith Lee, and Edward
K. Dana for any loss of earnings suffered by them as a result
of the discrimination against them in the manner set forth in
that section of this Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or to its agents, for examination and copying, all
payroll records, social security records, timecards, personnel
records and reports, and all other records necessary to
analyze and compute the amounts of backpay due under the
terms of this Order.
(d) Post at its facilities in Salt Lake City, Utah, and
Ogden, Utah, copies of the attached notice marked "Appen-
dix."' Copies of said notice, on forms provided by the
Regional Director for Region 27, after being duly signed by
Respondent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respondent
to insure that the notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 27, in writing,
within 20 days from the date of this Order, what steps have
been taken to comply herewith.
' In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
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