Whitewood Oriental Maintenance Co., World Service Co., Lucky Service Co.

National Labor Relations Board - Board Decisions

Feb 16, 1989

292 N.L.R.B. 1159 (N.L.R.B. 1989)

WHITEWOOD MAINTENANCE CO 1159
Charles Yoon d/b/a Whitewood Oriental Mainte-
nance Company, World Service Company, Song
Ae Lim d/b/a Lucky Service Company and
Chi Ho Rho and Jung Je Py and Hyung Bok
Seo and Service Employees Union , Local 87,
Service Employees International Union, AFL-
CIO and Service Employees Union , Local 77,
Service Employees International Union, AFL-
CIO, Party to the Contract Cases 20-CA-
018770, 20-CA-18771, 20-CA-18904, and 2-
CA-18903
February 16, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On November 20, 1985, Administrative Law
Judge Jerrold H Shapiro issued the attached deci
sion Respondent Song Ae Lim d/b/a Lucky Serv
ice Company filed exceptions and a supporting
brief The General Counsel filed exceptions and a
brief in support of her exceptions, in answer to the
Respondent's exceptions, and in support of portions
of the judge's decision Lucky thereafter filed an
answering brief
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings, findings, i and
conclusions only to the extent consistent with this
Decision and Order
The judge found that Respondent Lucky violat-
ed Section 8(a)(1) of the Act through the conduct
of its owner, Song Lim, by promising employees
better benefits if they voted against Service Em
ployees Union, Local 87, and threatening reprisals
if they voted in favor of Local 87, violated Section
8(a)(3) and (1) by discharging employees Hyung
Bok Seo and Chi Ho Rho, and, as a successor em-
ployer, violated Section 8(a)(5) and (1) by refusing
to recognize and bargain with Local 87 concerning
its employees' terms and conditions of employment,
by recognizing another labor organization and en-
tering into a contract with it, and by unilaterally
implementing changes in employees' working con-
ditions Although we adopt all the violations found
i Respondent Lucky has excepted to some of the judge s credibility
findings The Board s established policy is not to overrule an administra
Live law judge s credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir
1951) We have carefully examined the record and find no basis for re
versing the findings
by the ,judge ,2 we find that Lucky committed the
8(a)(5) violations because it was a joint employer
with World, and not because it was a successor
employer
The judge also found that the amended com-
plaint's 8(a)(2) allegations were not closely related
to the violations named in the pending 8(a)(5)
charge and therefore required dismissal as they
were not timely filed For the reasons set forth
below, we reverse the judge's findings and find
that those allegations are properly before us and
that Lucky and World, as joint employers, violated
Section 8(a)(2) and (1) by unlawfully assisting
Local 77
Finally, the judge found that Charles Yoon
d/b/a Whitewood Oriental Maintenance Company,
World, and Lucky (collectively the Respondents)
are not joint employers,3 that World's change in
subcontractors from Whitewood to Lucky did not
violate Section 8(a)(3) and (1), and that the dis
charge of employees Jung Je Py and Woo Young
Jhun did not violate Section 8(a)(3) and (1) 4 The
General Counsel excepts to all of these conclu-
sions We find merit to these exceptions and for the
reasons set forth below, we reverse
I BACKGROUND
Respondent World, whose principal place of
business is Houston, Texas, is a janitorial contrac
tor conducting business throughout the United
States In lieu of employing its own janitors, World
usually subcontracts its work to other janitorial
companies who use their own employees Shik
Sony is World's president and owner Gregory
Choo, who, during the time material, represented
himself to the public as World's executive vice
president with Sony's permission, is World's agent
in San Francisco handling World s contracts at San
Francisco International Airport (SFO)
In approximately February 1982, World con
tracted with several airlines to perform their janito
rial work at SFO Each of these contracts con-
tained a nonassignment clause that prohibited
World from subcontracting the work without the
2 We also find that World Service Company is jointly responsible for
these violations because we find below that Lucky and World are joint
employers
' In light of this conclusion that the Respondents are not joint employ
ers the judge did not consider whether Whitewood Supervisor Jung s in
terrogation of various employees regarding their union sympathies violat
ed Sec 8(a)(1) because the General Counsel and Whitewood had entered
into a settlement agreement at the hearing covering this alleged miscon
duct
4 Although the judge found that Whitewood violated Sec 8(a)(3) and
(1) by discharging employee Ronald Albert Kelleher he did not provide
a remedial order because of the settlement agreement entered into by
Whitewood He also dismissed the allegation as it applied to Lucky and
World because of his conclusion that they are not joint employers with
Whitewood
292 NLRB No 130
1160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
airline's written permission Nonetheless, World
surreptitiously subcontracted the SFO work initial-
ly to Respondent Whitewood, a janitorial company
to which World had subcontracted work at Los
Angeles International Airport since at least 1980
Whitewood is a sole proprietorship owned and op-
erated by Charles Yoon, whose residence and place
of business are located in Los Angeles World and
Whitewood renewed their SFO contract on Janu-
ary 1, 1983,5 and signed an agreement whereby
World subcontracted all of its SFO janitorial work
to Whitewood subject to cancellation by either
party with 30 days' notice As discussed below,
World decided to cancel this contract in October
and replace Whitewood with Respondent Lucky
Respondent Lucky is a sole proprietorship
owned and operated by Song Ae Lim Choo,
World's agent in San Francisco, guaranteed Lim's
bank loan so that she could establish this janitorial
business Lucky did not commence operations or
employ any employees until November 17, when it
took over Whitewood's SFO janitorial operation
Prior to this time , however, Lim, on behalf of
Lucky, had entered into a collective bargaining
agreement with Local 77 of the Service Employees
International Union, AFL-CIO (Local 77) That
agreement, which was signed on April 28, applied
to any janitorial employees Lucky might employ
within Local 77's geographical jurisdiction in the
future A successor agreement, effective by its
terms from May 1, 1983, to May 1, 1986, was
signed by Local 77 and Lim, on behalf of Lucky,
in July or August, even though Lucky had not yet
conducted any business This agreement was re
negotiated in November, when Lucky took over
Whitewood's SFO work
Nak Young Sung, a Whitewood janitor at SFO,
began a campaign in July 1983 to organize his
fellow employees in support of Local 77 Although
Sung provided Local 77 with the signed authoriza
tion cards and requested it to file a representation
petition with the Board, Local 77 failed to do so
Sung then contacted Local 87, which provided him
with authorization cards After Sung returned the
signed cards to Local 87, the Union filed a repre
sentation petition on September 22 with the
Board's San Francisco Regional Office seeking an
election in a unit of Whitewood's SFO janitors 6
Pursuant to a stipulated election agreement be-
tween Local 87 and Whitewood, the Board con-
ducted an election on November 10 among
Whitewood's janitors The tally of ballots showed
nine votes for and seven against Local 87, with
four challenged ballots Whitewood filed an objec
S All dates hereafter are 1983 unless otherwise indicated
6 Case 20-RC-15677
tion to the election on November 17 and a hearing
was held to resolve the issues raised by the objec-
tion and the challenged ballots The hearing officer
recommended that Whitewood's objection and
three of the four challenges be overruled and the
three ballots counted After the 3 ballots were
opened, resulting in a revised tally of 11 for and 8
against Local 87, the Regional Director certified
Local 87 as the exclusive bargaining representative
of the janitors on March 29, 1984
On October 3, 1983, approximately 2 weeks after
Local 87 had filed the representation petition,
World gave written notice to Whitewood that it
was canceling the SFO contract Pursuant to a
verbal agreement between World and Lucky,
Lucky replaced Whitewood as World's subcontrac-
tor at SFO on November 17 After World s notice
to Whitewood, Sony directed Lim to observe the
SFO janitorial operation and, along with Choo and
labor relations consultant Kenneth R White, to
help handle Whitewood's representation election
proceeding When Lucky assumed the SFO work
on November 17, it offered employment to all of
Whitewood's janitors except two who indicated
that they did not wish to work for Lucky Lucky
also imposed a new set of rules and regulations en
titled "Rules and Regulations of Personal Con
duct" and required the janitors to return a signed
copy of these rules indicating their assent to work
ing under these conditions Approximately 11 days
later, Lucky also changed the hours of the night
shift workers On December 1 Lucky put into
effect the terms and conditions of employment set
forth in the contract Lucky had entered into with
Local 77 7 Between November 22 and December 6
Lucky discharged janitorial employees Jung Je Py,
Woo Young Jhun, Hyung Bok Seo, and Chi Ho
Rho These discharges are discussed in more detail,
below
II THE JOINT EMPLOYER ISSUE
A World- Whitewood
The judge found that because World did not
share or co-determine the terms and conditions of
employment of Whitewood's SFO janitors, World
is not a joint employer In reaching this conclusion,
the judge relied on the fact that Whitewood's
owner, Yoon, had initially hired the janitors, had
set their terms of employment, and had hired su
7 On November 21 Lim and Choo met with Local 77 s president to re
negotiate the successor contract which Lim on behalf of Lucky and
Local 77 had signed earlier in the year The only changes in this con
tract s provisions were the change of the effective date of the contract to
December 1 and the exclusion of four members of Lim s family from the
contract s coverage
WHITEWOOD MAINTENANCE CO 1161
pervisors who directed them He also did not find
that the evidence proffered by the General Counsel
to establish joint employer status was persuasive
Contrary to the judge, we find that World and
Whitewood are joint employers of Whitewood's
SFO janitors
The determination of whether World possessed
sufficient control over Whitewood's janitors to
qualify as a joint employer "is essentially a factual
issue" Boire v Greyhound Corp, 376 US 473, 481
(1964) As the judge correctly noted, the Board
continues to adhere to the standard set out in
NLRB v Browning-Ferris Industries, 691 F 2d 1117
(3d Cir 1982), to determine whether separate busi
ness entities constitute joint employers See, e g ,
W W Grainger Inc, 286 NLRB 94 (1987), enf
denied on other grounds 860 F 2d 244 (7th Cir
1988), TLI Inc, 271 NLRB 798 (1984), enfd 120
LRRM 2631 (3d Cir 1985) Under this standard,
the Board must decide "whether two or more em
ployers share or co determine those matters gov-
erning the essential terms and conditions of em
ployment '8 O Voorhees Painting Co, 275 NLRB
779, 780 (1985) The Third Circuit in Browning-
Ferris concluded that Browning Ferris Industries
(BFI) and the independent trucking brokers which
supplied drivers were joint employers because they
shared or co determined the following matters the
right to hire and fire drivers, the establishment of
working hours, the determination of drivers' com
pensation, day to day supervision, the direction of
workers at certain sites, the use of BFI forms for
recordkeeping purposes, the provision of BFI uni
forms for the drivers, the right of approval over
which drivers to use, and the establishment of rules
under which the drivers would operate Applying
this standard to the instant situation, we find that
World through the actions of its agents Choo
Lim, and White, meaningfully affected the
Whitewood janitors' terms and conditions of em-
ployment
The judge erred by concentrating on Yoon s
hiring and setting of employment terms after ac-
quiring the subcontract from World in 1982 In so
doing, the judge failed to focus on the period in
which the unfair labor practices are alleged to have
'The Ninth Circuit finds a joint employer relationship when the
second business entity exercises authority over employment conditions
which fall within the area of mandatory collective bargaining See Sun
Maid Growers v NLRB 618 F 2d 56 (9th Cir 1980) Tanforan Park Coun
cal v NLRB 656 F 2d 1358 (9th Cir 1981) The Second Circuit has noted
that although the Federal circuit courts have applied a variety of tests for
determining joint employer status in a subcontracting context evidence
of immediate control in the following five areas is particularly relevant
under any test ( 1) hiring and firing (2) discipline (3) pay insurance and
records (4) supervision and (5 ) participation in the collective bargaining
process Clinton s Ditch Cooperative v NLRB 778 F 2d 132 138-139 (2d
Cir 1985)
occurred, namely, the period following the filing of
the petition by Local 87 to represent Whitewood s
janitors The General Counsel has alleged, and we
agree, that World co-determined the Whitewood
janitors' terms and conditions of employment
during this relevant period of September 22 to No
vember 17
The record indicates that after Yoon notified
World's owner, Sony, of Local 87's petition, Choo
and Lim appeared at SFO to handle matters on
behalf of World The judge found that Choo,
whose business cards identified him as the execu
tine vice president of World, held himself out as
World's executive vice president to the public He
introduced himself in this manner to Whitewood's
employees and supervisors, Local 87's representa-
tives, and various personnel of airlines with which
World had contracts The judge found that Lim
also represented herself as World's representative
to Whitewood's employees and to Local 87's repre
sentatives It is clear that Whitewood had not re-
quested these two individuals to handle the election
matters because, as the record shows, Whitewood
Supervisor Hwa Jong Kim called Yoon to ask who
they were and Yoon, in turn, called Sony to ask
the same question Rather, Sony sent Choo and
Lim to SFO to assist in the handling of
Whitewood's election strategy and directed Yoon
to follow their instructions As Sony directed his
subcontractor to follow the instructions of these
two individuals whom he had sent, we find that
Choo and Lim were acting pursuant to Sony s au
thority
White also acted as an agent of World while
handling Whitewood s election strategy and em
ployment matters Sony hired White in October
1983 and directed him to handle Whitewood s elec-
tion representation strategy along with Choo and
Lim White signed a retainer agreement only with
World at this times Thus, White acted at the
behest of World's owner, Sony Moreover, White's
duties included more than merely handling
Whitewood's election strategy His letters to Local
87 and to the Board's San Francisco Regional
Office indicate that he represented Whitewood "in
all phases of industrial relations We find that the
authorization of these agents of World to deal with
Local 87's attempt to represent Whitewood's jani-
tors provides evidence of the joint employer status
of World and Whitewood See Mar Del Plata Con-
dominium, 282 NLRB 1012 (1987) Furthermore,
other actions of these three individuals, who acted
at the behest of World s owner Sony, establish that
9 White did not sign a retainer agreement with Whitewood until Janu
ary 1985
1162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
World meaningfully affected matters relating to the
employment relationship of Whitewood's employ-
ees
Evidence exists that World affected White
wood's hiring and firing decisions during the rele
vant period Discrediting Yoon's testimony that he
made the decision to terminate employee Kelleher,
the judge found that White directed Yoon to termi
nate Kelleher Having received his instructions
from Sony, Yoon complied with this request and
the termination letter was sent to Kelleher Kel-
leher's termination is therefore evidence of World's
control of Whitewood's firing decisions during the
relevant period See General Electric Corp, 256
NLRB 753 (1981) World also affected White-
wood's hiring decisions As a result of a discrimma
tion suit which Local 77 had filed against World 10
in 1982, alleging that World employed only Korean
employees at SFO, World entered into an affirma
tive action agreement with the San Francisco
Human Rights Commission in May 1983 Pursuant
to this agreement, World agreed to hire non
Korean individuals in order to achieve a more ra
cially representative work force World then di
rected Whitewood to follow the terms of this
agreement in its hiring at SFO Consequently,
Whitewood's hiring decisions were limited by this
agreement, which World had imposed on
Whitewood i l
World's provision of workers' compensation cov
erage for the Whitewood employees constitutes
further evidence of World's joint employer status
See, e g, 0 Voorhees Painting Co 275 NLRB at
780 The fact that World's coverage occurred only
near the end of Whitewood s tenure at SFO does
not diminish its significance regarding World s in
volvement in Whitewood's employment policies
Rather, as the period of coverage was virtually the
same as the period in which the unfair labor prac-
tices occurred, that involvement underscores
World s increasing control during the critical
period
10 Because World sought to hide its subcontract to Whitewood from
the public Local 77 did not have any knowledge of Whitewood s exist
ence and therefore filed the charges against World who it assumed was
the employer of the SFO janitors
11 Whitewood s acquiescence to World s orders in this and other mat
tern is explained by the fact that Whitewood s SFO business was depend
ent on the contracts that World had negotiated According to the testi
mony of Whitewood s owner Yoon the amount World paid Whitewood
pursuant to their contract varied monthly depending on whether World
had lost a contract with one of the airlines If World lost a contract
Whitewood would receive less money Yoon also testified that
Whitewood did not perform any work at SFO other than that performed
under the contracts negotiated by World Consequently Whitewood s
workload and income which affected the number of employees
Whitewood could maintain on its payroll depended entirely on World s
success in securing and maintaining contracts at SFO
We also find that World's appointment of Lim as
its SFO coordinator or manager, as well as her ac
tions taken pursuant to that authority, provide ad
ditional evidence of the joint employer relationship
The record establishes that World's vice president,
Mayhew, wrote Whitewood's supervisor, Kim, that
World no longer required his services because Lim
was the manager of World's new company at SFO
effective October 16 A few days later Choo wrote
Mayhew requesting a formal written confirmation
of Sony's appointment of Lim as World's SFO co
ordinator The judge correctly rejected the Gener
al Counsel's argument that these letters established
Lim's supervisory authority over the Whitewood
,janitors, because the record shows that the supervi-
sors whom Yoon had hired continued to supervise
the janitors in their day-to-day duties Nonetheless,
these letters appointing Lim as World's SFO coor-
dinator or manager explain Lim's activities in effec
tuating World's policy of opposition to Local 87's
organization of the Whitewood employees during
this preelection period The judge found that,
during this period, Lim talked with Whitewood
employees during their working hours and prom
ised them better wages, hours, and benefits if they
voted against Local 87, and threatened them with
the loss of their jobs if they voted in favor of
Local 87 Lim made these remarks after being in
troduced to the employees as World's representa-
tive, and the record does not show that the em
ployees questioned Lim regarding World's ability
to effect these changes in their wages, hours, and
benefits Furthermore, World did not attempt to re-
pudiate Lim's remarks and Whitewood's personnel
did not question her authority to make them Con
sequently, Lim's promises to alter the Whitewood
employees wages, hours, and benefits while acting
as World's agent and appointed SFO manager, pro
vide further indicia of World s shared control over
the Whitewood employees' terms and conditions of
employment during the critical period
Finally we note the existence of two additional
factors relied on by the court in NLRB v Brown
ing Ferris Industries, supra, to establish the joint
employer relationship Like the drivers who wore
BFI uniforms, the Whitewood janitors here wore
badges with World's name while they worked
Furthermore, the court noted that the joint em
ployers used BFI forms for recordkeeping pur
poses In the present case, Whitewood used station
ery imprinted with World's name while transacting
business with airlines and suppliers
In light of the factors specified above, we con
elude that World and Whitewood are joint employ
ers because they shared or codetermined the .jani
tors' essential terms and conditions of employment
WHITEWOOD MAINTENANCE CO
during the critical period in which the unfair labor
practices occurred Accordingly, we find that
World is jointly liable for any unfair labor practices
committed by Whitewood between September 22
and November 17, 1983
B World-Lucky
For many of the same reasons discussed above,
we find that World and Lucky are joint employers
of the janitors at SFO Choo, who we have found
was acting as World's agent, played a major role in
matters affecting the janitors' employment when
Lucky took over for Whitewood in November
The judge found that following Lucky's assump
tion of operations, Local 87 Representative Leung
contacted Choo and requested that Lucky bargain
with Local 87 Choo refused Leung's request, stat
ing that Lucky did not have any obligation to bar-
gain and would not negotiate a contract with
Local 87 He did, however, accompany Lim to
meetings with Local 77 and assisted in the negotia
tion of the November 21 contract which Lucky
signed with Local 77 As noted above, participa
tion in the collective bargaining process constitutes
a relevant factor in establishing a joint employer
relationship Furthermore, World's agent Choo af-
fected Lucky's termination decisions The judge
found that Choo initiated the discharge of employ
ee Seo, a Local 87 adherent When Seo questioned
Choo on whose authority the latter could fire him,
Choo replied that he was a vice president of
World Finally, Choo also explained the new
"Rules and Regulations of Personal Conduct" to
the Lucky janitors at a November 17 afternoon
meeting 12
Labor consultant White drafted, and directed
that Lucky institute a set of work rules entitled
"Rules and Regulations of Personal Conduct "
These rules set forth the terms and conditions of
employment for Lucky's janitors As World's presi
dent, Sony, had secured the services of White, and
as White had entered into a retainer agreement
with World, and not Lucky, as of November, we
find that White acted on behalf of World when he
drafted Lucky' s rules As the court noted in NLRB
v Browning-Ferris Industries, supra, the establish
ment of work rules under which the employees
12 Choo s role at the meeting was more than that of a mere translator
of the rules Rather he explained the basis for imposing the rules the
meaning of some of the rules and the necessity of signing the rules in
order to retain employment As Choo had been introduced to the janitors
as a vice president of World his explanations undoubtedly conveyed the
impression to them that World was responsible for the imposition of
these rules that defined their conditions of employment Contrary to the
judge we therefore find that Choo s participation at the meeting provides
evidence of World s joint employer status
1163
will operate constitutes evidence of joint employer
status 13
Finally, certain other factors support our finding
of a joint employer relationship between World
and Lucky The judge found that World's workers'
compensation policy covered Lucky's janitors
during Lucky's first 6 weeks of business at SFO 14
In addition, Lucky's janitors continued to wear the
badges with World's name until May 1984, and
Lucky used World's stationery in transacting busi-
ness On the basis of our earlier analysis, we find
that these factors provide further evidence of
World s joint employer status 15
C Whitewood-Lucky
The General Counsel further alleges that
Whitewood and Lucky are joint employers of the
janitors As we have found that World and
Whitewood and that World and Lucky are the
joint employers of the janitors during the periods
in which the unfair labor practices occurred, we
find it unnecessary to decide this issue
III THE UNFAIR LABOR PRACTICES
A Supervisor Jung's Conduct
The judge found that after Local 87 filed its peti
tion, Whitewood Supervisor Jung questioned em
ployees Py, Rho, and Seo whether they had signed
a card in support of the Union When Seo replied
that he had not signed a card, Jung told him not to
get involved in "the union stuff' nd not to sign a
card Upon learning that Rho had signed a card,
Jung told him that he would have been better off if
he had not signed the card Py remained silent
when Jung questioned him In response to this si
lence, Jung made 'a face" and stated that Py had
13 The judge s finding that White s involvement in Lucky s employ
ment matters related solely to the representation proceeding is not cor
rect In a January 3 1984 letter to the Board s Regional Office in San
F ancisco White states that he represents World Whitewood and Lucky
for all purposes of industrial and labor relations Nor do we accept the
judge s conclusion that in any event no evidence exists that World paid
White for any services unconnected with the representation proceeding
or that World knew that White represented Lucky in any matter other
than the representation proceeding As discussed above White recom
mended and drafted the rules governing the conduct of Lucky s employ
ees at a time when he had a retainer agreement with World but not with
Lucky Further World s knowledge of White s representation of Lucky
in matters other than the representation proceeding is evidenced at the
very least by the contents of the January 3 1984 letter which indicates
that a copy of the letter was sent to World
14 At p 15 of his decision the judge inadvertently stated that the Gen
era] Counsel alleged that World paid the janitors unemployment com
pensation insurance coverage instead of their workers compensation
coverage
15 We agree with the judge that no evidence was presented indicating
that Lucky was required to comply with the affirmative action agreement
that World entered into with the San Francisco Human Rights Commis
Sion Accordingly we do not rely on that factor in finding that World
and Lucky are joint employers
1164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
disappointed him The judge found it unnecessary
to decide whether Jung s actions violated the Act
because Respondent Whitewood had entered into a
settlement agreement with the General Counsel
covering this conduct and because he had conclud-
ed that neither World nor Lucky is a joint employ-
er of Whitewood's employees We find that Super
visor Jung's interrogation of the employees con-
cerning their union sympathies and his attempts to
discourage their support for the union violated Sec
tion 8(a)(1)
In Rossmore House, 269 NLRB 1176 (1984), affd
sub nom Hotel Employees Local 11 v NLRB, 760
F 2d 1006 (9th Cir 1985), the Board stated that in
terrogation of an open and active union supporter
violates Section 8(a)(1) when, under all the circum-
stances, the interrogation reasonably tends to re
strain, coerce, or interfere with employees' rights
guaranteed by the Act The Board extended this
totality of circumstances test to the interrogation of
any employee, whether or not an open and active
union supporter, in Sunnyvale Medical Clinic, 277
NLRB 1217 (1985) 16 Applying this test to the in
stant situation, we find the interrogation to be coer
cive Jung raised the question of the Union with all
three janitors He wanted to know specifically
whether each employee had supported Local 87 by
signing a union card He expressed disapproval
when Py and Rho did not deny signing a card and
warned Seo not to get involved with the Union As
Jung's questions sought merely to elicit whether
these employees supported Local 87, there was no
lawful purpose behind the questioning Indeed, all
three were later discharged unlawfully because of
their activities on behalf of Local 87 Further,
Jung's questions and comments reasonably tended
to coerce the employees because of the high posi-
tion he held in Whitewood's hierarchy As found
by the judge, Whitewood owner Yoon left daily
management of the SFO operation to Jung and
day-shift Supervisor Kim because Yoon lived in
Los Angeles Jung and Kim did all the hiring,
firing, scheduling, and assigning of employees'
work at the SFO operation The employees there
fore realized that Jung held great power in deter-
mining their continued employment with
Whitewood Finally, as detailed above and below,
Jung's questions occurred during a period in which
World's agents waged an active campaign, which
included unlawful threats and promises, against
Local 87 Under all the circumstances, Jung's inter-
rogations therefore had a tendency to coerce and
16 Member Cracraft does not adhere to Sunnyvale Medical Clinic
However this does not alter her conclusion that the Respondent violated
Sec 8(a)(1) by Supervisor Jung s interrogation of the employees concern
mg their union sympathies
restrain the employees in violation of Section
8(a)(1) As we have found that World and
Whitewood are joint employers, we attribute
Jung's actions to World because, as stated in Ref
Chem Co, 169 NLRB 376, 380 (1968)
[a]s joint employers, each is responsible for the
conduct of the other and whatever unlawful
practices are engaged in by the one must be
deemed to have been committed by both
Accordingly, we find that World is liable for this
8(a)(1) violation
B Song Lim's Conduct
Following the filing of Local 87 s petition, Sony
sent Lim to SFO to observe Whitewood 's janitorial
operation During October and November, Lim
spoke with several of the janitors concerning the
forthcoming November 10 election The judge
found that Lim promised employee Py that the em
ployees would receive better wages , hours, and
benefits if they did not support Local 87 , warned
employee Seo that the Company would lose its
contract and the employees would lose their jobs if
the Company were unionized , promised employees
Seo and Rho better benefits if they voted against
Local 87, and warned employee Jhun that the
Company would close down if Local 87 won the
election The judge found that Lim's promises and
threats had a tendency to coerce the employees
from supporting Local 87 He therefore concluded
that Respondent Lucky had violated Section
8(a)(1) Although we adopt the judge 's conclusion,
we also find that World violated Section 8(a)(1)
through Lim 's actions because we have found that
World and Lucky are joint employers
C The Substitution of Subcontractors
The judge rejected the General Counsels argu
ment that World s substitution of subcontractors
violated Section 8(a)(3) and ( 1) because of his con
clusion that World is not a point employer of the
SFO janitors Citing Plumbers Local 447 (Malbaff
Landscape), 172 NLRB 128 (1968), for the proposi-
tion that an employer does not violate Section
8(a)(3) when it ceases doing business with another
employer because of the union activities of the Tat-
ter's employees , he concluded that World 's termi
nation of its subcontract with Whitewood could
not violate Section 8(a)(3) even if the termination
resulted from antiunion considerations 17 Contrary
to the judge, we find that World's substitution of
subcontractors violated Section 8(a)(3) and (1)
" The judge did not decide whether World terminated its subcontract
with Whitewood because of antiunion considerations
WHITEWOOD MAINTENANCE CO
The resolution of whether World's substitution
of subcontractors violated Section 8(a)(3) and (1)
requires us to apply the analysis set forth in Wright
Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899
(1st Cir 1981), cert denied 455 U S 989 (1982), ap
proved in NLRB Y Transportation Management
Corp, 462 US 393 (1983) Pursuant to this Wright
Line analysis, we must determine initially whether
the General Counsel has made a prima facie show-
ing that the employees' protected activities were a
motivating factor in World's decision to substitute
subcontractors Assuming that this showing is
made, the burden shifts to World to establish that it
would have taken the same action in the absence of
the employees' protected activities
We find that the requisite elements establishing a
prima facie case exist First, World was strongly
opposed to Local 87's organization of the SFO
janitors Lim, World's agent , attempted to dissuade
the employees from voting for Local 87 by promis-
ing benefits and threatening reprisals As we have
found earlier, she and the other World agents,
Choo and White, were instrumental in World's
campaign to defeat Local 87 Further, World's
knowledge of the janitors' activities on behalf of
Local 87 is evident because of Sony s knowledge
of the representation petition filed by Local 87
The judge also found that Lim knew that several
janitors actively supported Local 87 Finally, the
timing of World's action strongly supports an infer-
ence of illegal motive
While Whitewood had served as World's non
union subcontractor at SFO, Local 87's petition
had the potential to change Whitewood's nonunion
status We conclude that World's president, Sony,
made the decision to replace Whitewood only after
he learned of Local 87's petition in September By
letter dated October 3, a mere 11 days after the
filing of the petition, Sony informed Whitewood
owner Yoon of his intention to cancel the subcon-
tract 18 Further, the actual substitution of subcon-
tractors did not occur until November 17, which
was only 7 days after the election in which a ma-
jority of the votes counted had been cast in favor
"'The Respondents attempted to show that Worlds decision to
change subcontractors was made several months prior to Local 87 s filing
of the petition In January 1984 they provided the Board s Regional
Office with a purported March 14 1983 letter from Sony to Lim inform
ing her that her company would commence operations at SFO in No
vember 1983 The General Counsel established however that Lim did
not reside at the address set forth in the purported March 14 letter until
July 27 Accordingly we reject that letter as evidence of any earlier de
cision by World to change subcontractors We also discount the refer
ence in the October 3 letter from Sony to Yoon indicating that Yoon was
aware of the commitment that World had made to another subcontractor
as early as the previous March Yoon testified that he was never notified
of World s intention to change subcontractors until he received this
letter
1165
of representation by Local 87 19 Consequently, we
find that the employees activities on behalf of
Local 87 were a motivating factor in World's deci-
sion to change subcontractors We conclude from
all the evidence that by changing subcontractors,
World hoped to escape from recognizing and bar
gaining with Local 87
World apparently believed that it could avoid
the Union even if Local 87 won the election be
cause Local 87 s petition initially named only
Whitewood as the employer of the janitors whom
Local 87 sought to represent 20 Indeed, following
the election and the replacement of subcontractors,
World's agent, Choo, refused Local 87's requests
for bargaining by claiming that neither World nor
Lucky had any obligation to recognize or bargain
with Local 87 because Whitewood had been the
sole employer involved in the election Although
World replaced Whitewood with a subcontractor
that had recognized and entered into an agreement
with Local 77, the record establishes that Local
77's wages and benefits were inferior to those of
Local 87 In fact, a letter from World's vice presi-
dent, Clyde Mayhew, to Republic Airlines' SFO
station manager requesting a change in their con
tract highlights Worlds motives In this letter
Mayhew stated that `World has been battling the
union ever since the inception of our contract",
that the requested change (changing the name of
the party to the contract to avoid any bargaining
obligation with Local 87) would save the airline
money because `local 87 has a higher wage rate
than local 77', and if "Local 87 wins this maneu
ver your rates will go up because of their wage
rates "
In defense, World maintains that legitimate busi
ness reasons dictated the change in subcontractors
World argues that it was dissatisfied with
Whitewood's performance on the basis of com-
plaints it had received from the airlines The
record, however, refutes this argument Sony's Oc-
tober 3 letter informing Whitewood owner Yoon
of the cancellation of the subcontract stated that
the cancellation "is no reflection on your fine com-
pany" and that the "services rendered by you have
been satisfactory " Furthermore, despite the Re
spondents' testimony concerning the alleged com-
plaints, the testimony of the airline officials mdi-
' 9 As noted above the Board ultimately certified Local 87 as the jape
tors collective bargaining representative after the resolution of the objec
non and the challenged ballots
20 We note that the Respondents failed to inform the Board or Local
87 of the change in subcontractors prior to the November 10 election
This failure ensured that Whitewood would be the only employer offs
cially involved in the election
1166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cates that the airlines were satisfied with White-
wood's services 21
We also find that the Respondents offered shift-
ing reasons to explain the substitution of subcon
tractors As noted above, World contends that it
replaced Whitewood because of complaints it had
received from the airlines concerning the services
provided by Whitewood In a November 14 letter
from labor relations consultant White to Local 87,
however, White stated that Whitewood had ceased
operations at SFO because of `financial reasons ex
clusively " Yet, in a August 27, 1984 letter to East
ern Airlines' SFO manager, Lim explained that
Lucky had replaced Whitewood as World's sub
contractor "due to labor problems " Other than
White's November 14 letter, the record is devoid
of any evidence establishing that World decided to
cancel its subcontract because of financial consider-
ations22 Indeed, the record indicates that World
actually paid Lucky more for the SFO janitorial
services than it had paid Whitewood We therefore
reject the Respondents' proffered business reasons
to explain the substitution of subcontractors
Having found that the Respondents have ad-
vanced shifting reasons to explain the substitution
of subcontractors and having concluded that these
reasons are false, it may be inferred that another,
concealed motive for this action exists Shattuck
Denn Mining Corp v NLRB, 362 F 2d 466, 470
(9th Cir 1966) We find that the motive was to
evade any obligation to recognize and bargain with
Local 87, the employees' chosen representative 23
In sum, we find that World substituted subcontrac-
tors because of its employees' union activities and
failed to demonstrate that it would have taken this
action in the absence of their protected activity As
the joint employer of the janitors, World thereby
discriminated against its employees by depriving
them of their right to representation by their freely
chosen representative in violation of Section 8(a)(3)
and (1) 24 See Syufy Enterprises, 220 NLRB 738,
741 (1975)
21 This contention also fails to explain why if World decided to cancel
its subcontract with Whltewood because of complaints received about
Whitewood s services the new subcontractor Lucky offered employ
ment to the same janitors whom Whitewood had employed
22 The judge also rejected the contention that financial reasons dictat
ed the change JD herein at fn 35 The record does include however
Choo s testimony that Yoon complained about losing money during the
summer of 1983 That statement does not support the Respondents con
tention however because it was World not Whitewood that decided to
cancel the subcontract
23 The record provides further evidence to support this conclusion
Choo testified that Yoon told the employees at the November 17 meeting
that he was thanking [them] to kick him out of San Francisco [by]
voting for [the] union Consequently Yoon clearly believed that World
had canceled its subcontract because of the employees activities on
behalf of Local 87
24 As a joint employer of these employees World through its substitu
tion of subcontractors deprived its own employees of their rights and not
D The Discharges of Py and Jhun
Jung Je Py and Woo Young Jhun were two of
the Whitewood SFO janitors whom Lucky em
ployed when it became World ' s SFO subcontrac
tor The judge found that Py openly and actively
supported Local 87 and that Choo and Lim knew
that he was a Local 87 adherent On the other
hand , the judge found that Jhun had opposed
Local 87 ' s organizational campaign and that Lim
knew of Jhun 's opposition Both Py and Jhun were
present at the November 17 afternoon meeting in
which Lucky was introduced as the janitors' new
employer The ` Rules and Regulation of Personal
Conduct" were handed out to the janitors during
this meeting The janitors were told that they had
1 week to sign and return the rules, thereby indi-
cating their assent to working under these condi-
tions The judge found that Choo provided an oral
translation of the rules , which were written in Eng
lish, into Korean during the meeting This was nec-
essary because Py and Jhun , as well as most of the
other janitors , were Korean immigrants who could
not read the rules because of their limited knowl-
edge of English During their commute home fol-
lowing this meeting , Py and Jhun agreed that the
rules had been instituted as a `trick" and that they
should demand a written Korean translation before
signing them
On November 21 Lim requested that Py sign the
rules and Py replied that he would sign the rules
only after receiving a written Korean translation
because he did not understand the English version
When Lim asked Py for a signed copy of the rules
the next morning , he replied that he had not yet
signed them because he did not have a written
translation He reiterated , however , his intention to
sign them once he had received a written transla-
tion Lim then discharged him Later that day Lim
proposed to Py that he take an unpaid week's vaca
tion from work and then fill out an employment
application in order to return as a new employee
Py stated that he would consider the proposal and
asked whether he was still fired Lim replied of
firmatively
On November 23, the day following Py's dis
charge , Lucky distributed a written Korean transla
tion of the rules to the janitors and posted a copy
of it on the company bulletin board Lim also
signed Py's termination slip on this day The slip
indicated that Py was discharged for refusing to
sign the rules, insulting Lucky s president with
merely Whitewood of its subcontract Plumbers Loca l 447 (Malbaff Land
scape) 172 NLRB 128 (1968) is therefore inapposite to the instant situa
tion
WHITEWOOD MAINTENANCE CO 1167
"bad words," and challenging Lucky' s hiring
policy
Lim also asked Jhun for a signed copy of the
rules on November 22 and Jhun, like Py, replied
that he could not sign them until he received a
written translation The judge found that Lim
denied this request and then discharged Jhun when
he continued to refuse to sign the rules without a
written translation Lim telephoned Jhun at his
home the next day and proposed that Jhun take a
week's unpaid vacation and then return to work
On the same day, however, Lim signed Jhun's ter
mination slip, which indicated that Jhun was not
eligible for rehire, that he had resigned, and that he
was discharged for refusing to sign the rules and
for challenging Lucky's hiring policy Jhun re
ceived this slip in the mail after his telephone con-
versation with Lim He never returned to work
The judge concluded that neither the discharge
of Py nor the discharge of Jhun violated the Act
Despite finding that Lucky was hostile to Local 87
and knew that Py was a Local 87 adherent, the
judge found that the General Counsel had failed to
establish a prima facie case that Py's protected ac-
tivity was a motivating factor in Lucky's decision
to discharge him The judge further found that
even if a prima facie case had been established,
Lucky had shown that it would have discharged
him even in the absence of protected activity be
cause of his insubordinate act of refusing to sign
the rules The judge also found that Jhun's dis-
charge did not result from protected activity and
even if the General Counsel had established this
fact, Jhun's insubordinate act of refusing to sign the
rules justified Lucky's discharge of him We re
verse the judge's conclusions that the discharges
did not violate the Act In reaching our conclusion,
we apply the Wright Line analysis set out above
Contrary to the judge we find that the General
Counsel has established that Py's protected activity
was a motivating factor in Lucky s decision to dis
charge him As found by the judge, Lucky's owner
Lim had animus towards Local 87 and the employ
ees who supported that union She also knew of
Py's active support of Local 87 Consequently, the
requisite elements of antiunion animus and knowl-
edge of the employee's protected activity exist
Furthermore, we find that the timing of Py's dis
charge supports an inference of illegal motivation
as the discharge occurred 5 days after Lucky took
over and 12 days after the election in which Local
87 had received a majority of the votes counted In
light of the discharges of other supporters of Local
87 during this period of time, the inference exists
that the Respondents sought to convey a message
to the janitors that this new subcontractor would
not permit union activities on behalf of Local 87
The shifting reasons advanced by Lucky to justify
Py s discharge further support an inference of ille
gal motivation While Lucky asserts that Py was
discharged for his insubordinate act of refusing to
sign the rules, Py's termination slip stated that he
was discharged for using insulting language and
challenging the company's hiring policy The judge
correctly concluded, however, that these alleged
reasons had no support in the record and were
false JD herein at fn 54 As we have noted above,
when a party advances shifting reasons to explain
its actions and these reasons are shown to be false,
it may be inferred that another, concealed motive
for the action exists
We also reject the judge's conclusion that Lucky
would have discharged Py for his refusal to sign
the rules25 even in the absence of Py's protected
activity The record suggests that Lucky did not
consider the employees' adherence to these rules to
be a serious matter In this regard, the record
shows that when the rules were distributed at the
November 17 meeting, Choo joked about them and
explained that they "mean nothing really' Fur-
thermore, after Py's discharge, Lucky hired several
employees who were not required to sign the rules
as a condition of employment That fact demon
strates not only that Lucky did not consider the
rules important enough to require later hired em-
ployees to sign them, but also establishes disparate
treatment 26 Finally, the record shows that Py
stated that he would sign the rules if Lucky pro
vided him with a written translation so he could
understand what he was signing Lucky's owner,
Lim, refused this request, however, and discharged
him Nevertheless, the very next day, Lucky pro-
vided the janitors with the very translation that Py
had requested These events lead to the conclusion
that by refusing Py's request, but granting it for the
other employees, Lucky needed a pretextual reason
to cover up its unlawful reason for discharging Py
All of these factors indicate that Py's refusal to
sign the rules was not the real reason why Lucky
discharged him Consequently, we find that World
25 We unlike the judge find the rules were instituted unlawfully and
the refusal to sign them therefore would not in any event constitute a
legitimate basis for discharge
26 The Respondents contend that as Lucky required all employees who
attended the November 17 meeting to sign the rules evidence of whether
Lucky required later hired employees to sign the rules is irrelevant to a
finding of discriminatory treatment We disagree The record establishes
that only the former Whitewood janitors attended the November 17
meeting These janitors had voted in the election in which Local 87 had
received a majority of the votes counted and some of them had been
active supporters of Local 87 Thus the requirement that only these em
ployees but not other employees hired later sign the rules as a condition
of retaining their employment is evidence of disparate treatment on the
basis of union activity in support of Local 87
1168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and Lucky have not rebutted the General Coun-
sel's prima facie case and that the discharge there
fore violated Section 8(a)(3) and (1)
The same elements of animus and timing under-
lying the prima facie case of unlawful discharge of
Py exist with regard to Jhun The judge conclud-
ed, however, that a prima facie case was not estab-
lished because Jhun had informed Lim that he op
posed Local 87's organizational campaign Al-
though Jhun told Lim that he opposed Local 87
during a conversation 7 to 10 days before the No-
vember 10 election, the record establishes that
Jhun decided to support Local 87 a few days after
the election We conclude that when Lim dis-
charged Jhun, she believed that Jhun had become
an active supporter of Local 87
In reaching this conclusion, we rely on a De
cember 11 letter that Lim sent to White Lim set
out in that letter a list of complaints under the
heading of "unfair labor practices and harrassment
[sic] against Union 87 " The list included the asser
tions that Py had "organized an opposition to sign
the company rules' and that Jhun had "refused to
sign W 4 forms and refused to furnish Social Secu-
rity numbers " This letter demonstrates that Lim
believed that Jhun had engaged in certain activities
to "harass" Lucky on behalf of Local 87 We
therefore find that Lucky had the requisite knowl-
edge of Jhun's activities on behalf of Local 87 and
conclude that the General Counsel has established
a prima facie case of unlawful discharge For the
same reasons set forth in our discussion of Py's dis
charge, we reject the Respondents proffered alleg
edly legitimate reason of insubordination to estab
lish that Jhun would have been discharged even in
the absence of his union activity Accordingly, we
find that the General Counsel's prima facie case
has not been rebutted and that Jhun s discharge
violated Section 8(a)(3) and (1)
E The Discharge of Ronald Albert Kelleher
The judge found that Whitewood discharged
Ronald Kelleher in violation of Section 8(a)(3) and
(1) As the judge had decided that neither World
nor Lucky is a joint employer of Whitewood s jani
tors, however, he dismissed the complaint insofar
as it alleged that World and Lucky were responsi
ble for Kelleher's discharge He also did not enter
a remedial order requiring reinstatement for Kel
leher, as Whitewood and the General Counsel had
entered into a settlement agreement Because we
have found that World is a joint employer of
Whitewood's janitors and because we adopt the
judge's conclusion that Kelleher's discharge violat-
ed Section 8(a)(3) and (1),27 we conclude that
World is liable for this violation and will amend
the Order to require reinstatement
F The Refusal to Recognize and Bargain with
Local 87
The judge concluded that Lucky was a successor
employer of the Whitewood janitors and therefore
was obligated to honor the Board's certification of
Local 87 as the janitors' exclusive bargaining repre-
sentative Having found that Lucky had a legal ob
ligation to recognize and bargain with Local 87
when it assumed the Whitewood operation, the
judge found that Lucky committed several 8(a)(5)
and (1) violations These violations were Lucky's
rejection of Local 87's requests to bargain after
Local 87 was certified as the janitors' collective-
bargaining representative, Lucky's recognition of
Local 77 as the janitors' bargaining representative,
Lucky's negotiation of its contract covering the
janitors with Local 77 on November 21, Lucky's
enforcement and maintenance of the terms and
conditions of employment contained in its contract
with Local 77 since December 1, Lucky's unilater
al change of the night shift employees' work sched-
ule on November 28, and Lucky's unilateral
change of the janitors' terms and conditions of em-
ployment resulting from the December 1 imple
mentation of the Local 77 contract terms
Although we affirm the judge's finding of all
these violations, we do not rely on his rationale
that Lucky was a successor employer Rather, we
find that Lucky committed these violations as a
joint employer with World As a joint employer of
the Whitewood janitors, World was obligated to
recognize and bargain with Local 87 because of the
certification of Local 87 as the janitors' exclusive
bargaining representative World's legal obligation
was ongoing when Lucky assumed control of the
Whitewood operation Having found that Lucky is
a joint employer of the janitors with World, we
note that Lucky's obligation to bargain with Local
87 `was no less than that of" World See American
Air Filter Co, 258 NLRB 49, 53 (1981) According
ly, Lucky's unilateral changes in the janitors' terms
and conditions of employment and its refusals to
bargain with Local 87 specified by the judge con
stitute violations of Section 8(a)(5) and (1) 28
27 The Respondents did not except to the judges finding that Kel
leher s discharge violated Sec 8(a)(3) and (1)
28 Even though Local 87 was not certified until March 29 1984
Lucky acted at its peril in making unilateral changes pending the deter
mination of the outstanding election objection and challenges See e g
Mike 0 Connor Chevrolet 209 NLRB 701 703 (1974) enf denied on
other grounds 512 F 2d 684 (8th Cir 1975)
WHITEWOOD MAINTENANCE CO 1169
The judge also found that Lucky's unilateral im-
plementation of the "Rules and Regulations of Per
sonal Conduct' did not violate the Act because as
a successor employer, Lucky was entitled to set
initial terms on which it would hire Whitewood's
janitors We reverse this finding Having concluded
that Lucky's bargaining obligation arose immedi-
ately on its assumption of the Whitewood oper-
ation because of its joint employer status, Lucky's
unilateral implementation of these rules on Novem-
ber 17 violated Section 8(a)(5) and (1) 29 We fur
ther find that as a joint employer, World is liable
for all the 8(a)(5) and (1) violations committed by
Lucky
G Lucky's Recognition of Local 77
On December 16 discharged employee Kelleher
filed a charge as an individual on behalf of Local
87 alleging that Lucky had violated Section 8(a)(2)
and (1) by recognizing Local 77, which did not
represent a majority of Lucky's employees This
charge was dismissed on January 10, 1984, for lack
of cooperation of the Charging Party and the dis
missal was not appealed 30 Local 87 filed a charge
on April 13, 1984, and an amended charge on April
20, 1984, alleging that Lucky had refused to recog
nize or bargain with it, in violation of Section
8(a)(5) Those charges did not include an 8(a)(2) al
legation, nor was any charge alleging a violation of
Section 8(a)(2) filed by the time that the 10(b) limi
tations period had expired Nonetheless, the amend-
ed complaint included an allegation of an 8(a)(2)
violation on the basis that the allegation was close-
ly related to the timely filed and pending charge al
leging a violation of Section 8(a)(5) The judge,
however, dismissed the 8(a)(2) charge He found
that the 8(a)(2) allegations were not closely related
to the 8(a)(5) allegations and were therefore time
barred by Section 10(b) In light of this finding, the
judge did not address Respondent Lucky s alter-
nate contention that the closely related doctrine
does not apply because the original 8(a)(2) charge
filed by Kelleher was dismissed The General
Counsel has excepted to the judge's conclusion that
the 8(a)(2) allegations are not closely related to the
8(a)(5) allegations Respondent Lucky has excepted
29 Although the actual service on Lucky of the charge alleging this
November 17 violation did not occur until May 22 1984 Sec 10(b) does
not preclude the finding of a violation Because World was served with
this charge on April 16 1984 because World and Lucky are joint em
ployers and because the charge concerns matters for which they were
jointly responsible we find that the charge was filed and served on
Lucky within 6 months of the commission of the violation See Mar Del
Plata Condominium 282 NLRB 1012 (1987) Photo Somcs Inc 254
NLRB 567 570 fn 2 (1981) enfd 678 F 2d 121 (9th Cir 1982)
so As the judge found the reason for not cooperating in the investiga
Lion was that Local 87 believed that processing of this charge would
block or otherwise delay Local 87 s certification in the representation
proceeding involving Whitewood s SFO janitors
to the judge's failure to find that the dismissal of
the only 8(a)(2) charge filed bars the application of
the closely related doctrine
In Redd-I Inc, 290 NLRB 1115 (1988), the
Board concluded that it would apply the closely
related test to determine whether the untimely alle-
gation was factually and legally related to the alle
gations of the timely charge "without regard to
whether another charge encompassing the untimely
allegation has been withdrawn or dismissed " The
Board explained that the
decision whether certain untimely allegations
can be added to a complaint as closely related
to a pending timely charge should be entirely
separate from a decision on whether a with
drawn or dismissed charge containing these
untimely allegations can be reinstated outside
the 10(b) period Under the "closely related"
test, there is no reason why a person who has
never filed a timely charge concerning a par-
ticular allegation should be in a better position
than a person who has attempted to preserve
his rights by filing a timely charge that is later
withdrawn or dismissed [Id at 1118 ]
Accordingly, we reject Respondent Lucky's argu-
ment and find that we can apply the closely related
test even though an earlier charge encompassing
the 8(a)(2) allegation was dismissed
The Board stated in Redd I, supra, at 1118, that
in applying the closely related test, it would exam-
ine three primary factors These factors are wheth
er the otherwise untimely allegations involve the
same legal theory as the allegations in the pending
timely charge, whether the otherwise untimely al
legations arise from the same factual situation or
sequence of events as the allegations in the pending
timely charge, and whether a respondent would
raise similar defenses to both allegations
We reject the judge's finding that the legal theo
ries underlying the 8(a)(2) and (5) allegations are
unrelated The legal theories are related on the
basis that Local 87 is the lawful collective-bargain
ing representative of Lucky's employees That fact
means that Lucky may not refuse a demand to rec
ognize and bargain with Local 87 in violation of
Section 8(a)(5), and if it recognizes and bargains
with any other labor organization, it necessarily
violates Section 8(a)(2) Lucky's recognition and
execution of a new collective-bargaining agreement
with Local 77 on November 21, 1983, constituted
unlawful assistance because Lucky had an obliga-
tion to recognize and bargain with Local 87 Fur
ther, the Board has previously recognized that the
legal theories underlying 8(a)(2) and (5) violations
may be closely related See, e g , American Pacific
1170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Concrete Pipe Co, 262 NLRB 1223 (1982), enfd
mem 709 F 2d 1514 (9th Cir 1983) 31 According
ly, we find that the legal theory underlying the un
timely 8(a)(2) allegation involves the same legal
theory underlying the 8(a)(5) allegation
We also find that the 8(a)(2) allegation arises
from the same factual situation and sequence of
events as the 8(a)(5) allegations As noted above,
Lucky re executed a collective bargaining agree
merit with Local 77 on November 21, 11 days after
Local 87 had won the election to represent its em-
ployees In response to Local 87's requests for bar
gaining , Lucky maintained not only that the repre
serration election had involved a different employ
er, but also that it had entered into a valid collec-
tive bargaining agreement with Local 77 Lucky's
actions in unlawfully assisting Local 77 were there-
fore part of the same course of conduct in which
Lucky was attempting to avoid bargaining with
Local 87 The judge reached a different conclusion
because he improperly focused on the sequence of
events in April when Lim originally entered into
the collective-bargaining agreement with Local 77
on behalf of Lucky The amended complaint al
leged, however, that Lucky's recognition and re
execution of the collective bargaining agreement
with Local 77 on November 21 constituted unlaw-
ful assistance in violation of Section 8(a)(2) Conse
quently, it is Lucky's actions on and after Novem-
ber 21 that we have considered and found to be
part of the same course of conduct underlying
Lucky s unlawful refusal to bargain with Local 87
We further find that Respondent Lucky would
raise similar defenses and preserve similar evidence
for both allegations Indeed, Lucky has argued that
it had a valid collective bargaining agreement with
Local 77 and, thus, could not have unlawfully re
fused to bargain with Local 87 In defending
against the allegations of unlawful assistance,
Lucky would also argue that its collective-bargain
ing agreement with Local 77 was valid and that its
actions could not therefore constitute unlawful as
sistance
Finally, we note that Lucky's actions on and
after November 21, which underlie the 8(a)(2) alle
gations, occurred within 6 months of the timely
filed 8(a)(5) charge Accordingly, we conclude that
Section 10(b) does not bar our consideration of the
8(a)(2) allegations because those allegations are
31 We do not agree with the judge that American Pacific Concrete Pipe
is distinguishable because the same record evidence supported the 8(a)(2)
and (5 ) allegations in that case but not this case In both cases the em
ployer unlawfully recognized and entered into a collective bargaining
agreement with a labor organization in violation of Sec 8 (a)(2) during a
period in which it was required to recognize and bargain with the em
ployees chosen representative
closely related to the allegations in the timely filed
8(a)(5) charge 32
As the record establishes that Lucky recognized
and entered into a collective bargaining agreement
with Local 77 at a time when Local 87, not Local
77, represented a majority of Lucky s employees,
we find that Lucky thereby violated Section 8(a)(2)
and (1) 33 We further find that as a joint employer
of Lucky's employees, World is liable for these
violations
AMENDED CONCLUSIONS OF LAW
1 Substitute the following for the judge's Con
clusions of Law 1, 3, and 5-9
` 1 Respondents World Service Company and
Charles Yoon d/b/a Whitewood Oriental Mainte
nance Company are joint employers engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act Respondents World Service Compa-
ny and Song Ae Lim d/b/a Lucky Service Compa-
ny are joint employers engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act
"3 All janitorial employees employed by Re
spondents World Service Company and Lucky
Service Company at the San Francisco Internation-
al Airport, excluding all other employees including
office clerical employees, guards and supervisors as
defined in the Act, constitute an appropriate bar
gaining unit
"5 By refusing to recognize and bargain with
Local 87 as the exclusive bargaining representative
of all the employees in the appropriate unit, Re-
spondents World Service Company and Lucky
Service Company have engaged in and are engag-
ing in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act
"6 By recognizing Service Employees Union,
Local 77 , as the exclusive bargaining representative
of the employees in the appropriate unit in deroga
tion of their obligation to recognize and bargain
32 Applying the test set out in his concurring opinion in Redd I supra
Chairman Stephens agrees that the 8 (a)(2) allegations are not time barred
For the reasons stated by his colleagues he agrees that they are closely
related to the allegations of the timely filed 8 (a)(5) charge He also finds
that the Respondents would not have been misled by the dismissal of the
8(a)(2) charge into concluding that the matters encompassed within it
could not be litigated under the timely filed 8(a)(5) charge He bases this
conclusion on the fact that the original charge was dismissed for reasons
unrelated to its merits and on the fact that those matters encompassed
within the 8(a)(2) allegations that we have considered in this case are in
extricably linked to the timely filed 8 (a)(5) charge Indeed the Respond
ent s liability under the 8(a)(5) charge would be inconsistent with any as
sumption that the employees were covered by a valid contract with
Local 77 during the period in question
33 We also find merit to the General Counsel s exception that because
the agreement with Local 77 contained a union security clause Lucky
violated Sec 8(a)(3) and ( 1) by enforcing that clause See e g Bell
Energy Management Corp 291 NLRB 168 169 (1988)
WHITEWOOD MAINTENANCE CO 1171
with Local 87 and by entering into and maintaining
a collective bargaining contract with Local 77 cov
ering the unit employees, Respondents World Serv
ice Company and Lucky Service Company violat-
ed Section 8(a)(5) and (1) of the Act
"7 By unilaterally instituting the Rules and
Regulations of Personal Conduct without afford-
ing Local 87 an opportunity to bargain about the
matter, by unilaterally changing the work schedule
of the unit employees employed on the night shift
without affording Local 87 an opportunity to bar
gain about the matter, and by unilaterally institut-
ing the terms and conditions of employment incor-
porated in Lucky Service Company's contract with
Local 77 without affording Local 87 an opportuni-
ty to bargain about their effect on the unit employ-
ees' existing terms and conditions of employment,
Respondents World Service Company and Lucky
Service Company violated Section 8(a)(5) and (1)
of the Act
"8 By discharging employees Hyung Bok Seo,
Chi Ho Rho, Jung Je Py, and Woo Young Jhun
because of their Local 87 sympathies and activities,
Respondents World Service Company and Lucky
Service Company violated Section 8(a)(3) and (1)
of the Act
"9 By promising employees better terms and
conditions of employment if they did not support
Local 87 and by threatening employees with the
loss of their jobs if they supported Local 87, Re
spondents World Service Company and Lucky
Service Company violated Section 8(a)(1) of the
Act"
2 Insert the following as Conclusions of Law
10-14, and renumber the judge's Conclusion of
Law 10 as Conclusion of Law 15
`10 By recognizing and executing a collective
bargaining agreement with Local 77 at a time
when Local 77 did not represent a majority of the
employees in the above appropriate unit, Respond
ents World Service Company and Lucky Service
Company violated Section 8(a)(2) and (1) of the
Act
"11 By executing and maintaining a collective-
bargaining agreement with Local 77 that contained
a union security clause requiring membership in
Local 77 as a condition of employment when
Local 77 did not represent a majority of the em-
ployees in the above appropriate unit, Respondents
World Service Company and Lucky Service Com
pany violated Section 8(a)(3) and (1) of the Act
"12 By interrogating employees concerning their
union sympathies and by threatening employees
with reprisals for signing a union card, Respondent
World Service Company violated Section 8(a)(1) of
the Act
13 By discriminatorily changing subcontractors
in an effort to deprive the unit employees of their
right to representation by Local 87, Respondent
World Service Company violated Section 8(a)(3)
and (1) of the Act
14 By discharging employee Ronald Albert
Kelleher because of his Local 87 sympathies and
activities, Respondent World Service Company
violated Section 8(a)(3) and (1) of the Act "
REMEDY
Having found that Respondents World Service
Company and Lucky Service Company have en-
gaged in and are engaging in unfair labor practices
within the meaning of Section 8(a)(5), (3), (2), and
(1) of the Act, we shall order that they cease and
desist and take certain affirmative action necessary
to remove the effects of the unfair labor practices
and to effectuate the policies of the Act
Having found that Respondents World Service
Company and Lucky Service Company violated
Section 8(a)(5) and (1) of the Act by refusing to
bargain with Service Employees Union, Local 87,
at the outset of that union's certification year, we
shall order that the initial period of certification
begin on the date Respondents World Service
Company and Lucky Service Company commence
to bargain in good faith with Local 87 as the rec
ognized bargaining representative in the appropri-
ate unit See Dynamic Machine Co, 221 NLRB
1140, 1143 (1975), and the cases it cites
Having found that Respondents World Service
Company and Lucky Service Company violated
Section 8(a)(5) and (1) of the Act by unilaterally
instituting the `Rules and Regulations of Personal
Conduct", by unilaterally changing the work
schedule of unit employees employed on its night
shift, and by unilaterally instituting the terms and
conditions of employment contained in the contract
with Service Employees Union, Local 77, without
affording Service Employees Union, Local 87, an
opportunity to bargain about these changes in the
unit employees' terms and conditions of employ
ment, we shall order the Respondents World Serv-
ice Company and Lucky Service Company to
make whole any employees who may have in-
curred a monetary loss as a result of the unilateral
implementation of these changes Reimbursement is
to be with interest as prescribed in New Horizons
for the Retarded 34
34 283 NLRB 1173 (1987 ) Interest on and after January 1 1987 shall
be 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 Interest on
amounts accrued prior to January 1 1987 (the effective date of the 1986
amendment to 26 U S C § 6621) shall be computed in accordance with
Florida Steel Corp 231 NLRB 651 (1977)
1172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Having found that Respondents World Service
Company and Lucky Service Company violated
Section 8 (a)(5), (2), and ( 1) of the Act by recogmz
ing and contracting with Service Employees
Union , Local 77, when Local 77 did not represent
a majority of the unit employees , and in derogation
of their statutory obligation to recognize and bar-
gain with Service Employees Union , Local 87, as
the unit employees ' certified bargaining agent, we
shall order Respondents World Service Company
and Lucky Service Company to withdraw and
withhold recognition from Local 77 and to cease
giving effect to the collective bargaining contract
entered into with that labor organization, or any
modifications , renewals, or extensions thereof As
the record reveals that in connection with both
their illegal enforcement of the contract with Local
77 and their illegal unilateral changes in the unit
employees ' terms and conditions of employment,
Respondents World Service Company and Lucky
Service Company have violated Section 8(a)(3) and
(1) of the Act by requiring the unit employees to
join Local 77 as a condition of continued employ-
ment , we shall order Respondents World Service
Company and Lucky Service Company to reim-
burse unit employees for any dues and initiation
fees that may have been withheld from their pay
pursuant to the union-security provisions in the un-
lawfully executed contract with Local 77 Reim
bursement is to be with interest as prescribed in
New Horizons for the Retarded, supra
Having found that Respondent World Service
Company violated Section 8 (a)(3) and ( 1) of the
Act by discharging employee Ronald Albert Kel
leher and having found that Respondents World
Service Company and Lucky Service Company
violated Section 8(a)(3) and ( 1) of the Act by dis-
charging employees Hyung Bok Seo, Chi Ho Rho,
Jung Je Py, and Woo Young Jhun , we shall order
that Respondents World Service Company and
Lucky Service Company offer each of them imme-
diate and full reinstatement to their former jobs or,
if those jobs no longer exist , to substantially equiv-
alent positions , without prejudice to their seniority
and other rights and privileges and make them
whole for any loss of pay or other employment
benefits they may have suffered as the result of
their discharges Backpay shall be computed on a
quarterly basis in accordance with F W Wool
worth Co, 90 NLRB 289 ( 1950), with interest to be
computed in the manner prescribed in New Hori-
zons for the Retarded , supra We shall also order
Respondents World Service Company and Lucky
Service Company to remove from their files any
reference to the illegal discharges, and to notify
employees Seo, Rho, Py, Jhun , and Kelleher in
writing that they have done so and that their dis-
charges will not be used against them in any way
ORDER
The National Labor Relations Board orders that
Respondents, World Service Company , Houston,
Texas, and Song Ae Lim d/b/a Lucky Service
Company , San Francisco , California , their respec
tive officers , agents, successors , and assigns, shall
1 Cease and desist from
(a) Refusing to bargain collectively concerning
rates of pay , wages, hours, and other terms and
conditions of employment with Service Employees
Union, Local 87, as the exclusive bargaining repre
sentative of their employees in the following ap
propriate unit
All janitorial employees employed by the Re
spondents World Service Company and Lucky
Service Company at the San Francisco Inter-
national Airport , excluding all other employ
ees including office clerical employees , guards,
and supervisors as defined in the Act
(b) Instituting changes with respect to the terms
and conditions of employment of the employees in
the aforementioned unit without prior notice to and
bargaining with Service Employees Union, Local
87
(c) Recognizing and contracting with Service
Employees Union , Local 77 , as the bargaining rep-
resentative of any of the unit employees for pur-
poses of collective bargaining, unless and until that
labor organization has been certified by the Nation
al Labor Relations Board as the exclusive bargain
ing representative of those employees
(d) Giving effect to the collective bargaining
agreement with Service Employees Union, Local
77, executed on November 21, 1983, which is effec
tive December 1, 1983, to May 1, 1986 , or to any
extension , renewal , or modification thereof, provid
ed, however , that nothing in this Order shall be
construed as requiring the Respondents to take any
action unfavorable to any individual employee re-
garding wages , hours, and other substantive terms
or conditions of employment , provided further that
nothing in the first proviso shall limit the rights of
Service Employees Union , Local 87 , with respect
to action that the Respondents have taken unilater-
ally
(e) Discouraging membership in or support of
Service Employees Union , Local 87, or any other
labor organization , by discharging employees or
otherwise discriminating against employees in any
manner with regard to their hire or tenure of em
ployment or any term or condition of employment
WHITEWOOD MAINTENANCE CO 1173
(f) Promising employees better terms and condi
tions of employment if they do not support Service
Employees Union, Local 87, or any other labor or
ganization
(g) Threatening employees with the loss of their
jobs if they support Service Employees Union,
Local 87, or any other labor organization
(h) Interrogating employees concerning their
support for any labor organization
(i) Threatening employees with reprisals for sign-
ing a card in support of any labor organization
(1) In any like or related 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 neces-
sary to effectuate the policies of the Act
(a) On request, bargain with Service Employees
Union, Local 87, as the exclusive representative of
all the employees in the above-described unit with
respect to rates of pay, wages, hours, and other
terms and conditions of employment, and, if an un
derstanding is reached, embody the understanding
in a signed agreement
(b) On request, rescind the `Rules and Regula
tions of Personal Conduct" that were instituted on
about November 17, 1983, on request, rescind the
change in the work schedule of the unit employees
employed on the night shift that was instituted on
about November 28, 1983, and reinstate the sched-
ule which existed at that time, and, on request, re
scind the changes in the unit employees' rate of
pay, wages, hours, and other terms and conditions
of employment made on December 1, 1983, and
make whole the unit employees for any wages
and/or benefits lost to them by this unilateral con-
duct, with interest
(c) Withdraw and withhold all recognition from
Service Employees Union, Local 77, as the exclu
sive collective-bargaining representative of the em-
ployees in the above described unit, unless and
until that labor organization has been certified by
the National Labor Relations Board as the exclu-
sive representative of those employees
(d) Reimburse their present and former employ-
ees employed in the bargaining unit described
above for all fees, dues, and other moneys they
may have been required to pay as a condition of
employment to Service Employees Union, Local
77, pursuant to the contract with that labor organi-
zation, with interest
(e) Offer to Hyung Bok Seo, Chi Ho Rho, Jung
Je Py, Woo Young Jhun, and Ronald Albert Kel
leher immediate and full reinstatement to their
former positions or, if such positions no longer
exist, to substantially equivalent ones, without prej-
udice to their seniority or other rights and privi
leges previously enjoyed, and make them whole for
any loss of earnings or other employment benefits
they may have suffered as a result of the discrimi-
nation against them, in the manner set forth in the
remedy section of this decision
(f) Remove from their files any references to the
unlawful discharges of Hyung Bok Seo, Chi Ho
Rho, Jung Je Py, Woo Young Jhun, and Ronald
Albert Kelleher and notify them in writing that
they have done so and that the discharges will not
be used against them in any way
(g) Preserve and, on request, make available to
the Board or its agents, for examination and copy
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amounts of backpay due and the rights of reinstate
ment under the terms of this Order
(h) Post at their facility in the San Francisco
International Airport copies of the attached notice
marked Appendix "35 Copies of that notice shall
be in English and Korean on forms provided by
the Regional Director for Region 20 and, after
being signed by the Respondents' authorized repre
sentatives, shall be posted by the Respondents im
mediately upon receipt and maintained for 60 con
secutive days in conspicuous places including all
places where notices to employees are customarily
posted Reasonable steps shall be taken by the Re
spondents to ensure that the notices are not altered,
defaced, or covered by any other material
(i) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondents have taken to comply
as 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 Nation
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form, join, or assist any union
1174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT refuse to bargain collectively con-
cerning rates of pay, wages, hours and other terms
and conditions of employment with Service Em
ployees Union, Local 87, as the exclusive bargain
ing representative of our employees in the follow
ing appropriate unit
All janitorial employees employed by our
companies at the San Francisco International
Airport, excluding all other employees includ
ing office clerical employees, guards, and su-
pervisors as defined in the Act
WE WILL NOT make changes in the terms and
conditions of employment of the employees em
ployed in the above described unit without giving
prior notice to and bargaining with Service Em
ployees Union, Local 87 1
WE WILL NOT recognize and enter into a con-
tract with Service Employees Union, Local 77, as
the collective bargaining representative of any of
the employees in the unit described above unless
and until Local 77 has been certified by the Na-
tional Labor Relations Board as the exclusive bar
gaining representative of the unit employees
WE WILL NOT give effect to the collective bar
gaining agreement with Service Employees Union,
Local 77 executed on November 21, 1983, which
is effective December 1, 1983, to May 1, 1986, or
to any extension, renewal, or modification thereof,
provided, however, that nothing in this Order shall
be construed as requiring our companies to take
any action unfavorable to any individual employee
regarding wages, rates of pay, and other substan-
tive terms or conditions of employment, provided
further that nothing in the first proviso shall limit
the rights of Service Employees Union, Local 87,
with respect to action which our companies have
taken unilaterally
WE WILL NOT discourage membership in or sup
port of Service Employees Union, Local 87, or any
other labor organization, by discharging employees
or otherwise discriminating against employees in
any manner with regard to their hire or tenure of
employment or any term or condition of employ-
ment
WE WILL NOT promise employees better terms
and conditions of employment if they do not sup
port Service Employees Union, Local 87, or any
other labor organization
WE WILL NOT threaten employees with the loss
of their jobs if they support Service Employees
Union, Local 87, or any other labor organization
WE WILL NOT coercively question employees
concerning their support for any labor organiza
tion
WE WILL NOT threaten employees with reprisals
if they sign a card in support of any labor organiza
tion
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7
of the Act
WE WILL, on request, bargain with Service Em
ployees Union, Local 87, as the exclusive repre-
sentative of all the employees in the above de
scribed unit with respect to rates of pay, wages,
hours, and other terms and conditions of employ
ment and, if an understanding is reached, embody
the understanding in a signed agreement
WE WILL, on request, rescind the "Rules and
Regulations of Personal Conduct" that were insti
tuted on about November 17, 1983, on request, re
scind the change in the work schedule of the night
shift that was instituted on about November 28,
1983, and reinstate the schedule that existed at that
time, and, on request, rescind the changes in the
unit employees' rate of pay, wages, hours, and
other terms and conditions of employment made on
December 1, 1983, and make the employees whole
for any wages and/or benefits lost to them by this
unilateral conduct, with interest
WE WILL withdraw and withhold all recognition
from Service Employees Union Local 77, as the
exclusive collective-bargaining representative of
the employees in the above described unit, unless
and until that labor organization shall have been
certified by the National Labor Relations Board as
the exclusive representative of the employees
WE WILL reimburse our present and former em
ployees employed in the unit described above for
all fees, dues, and other moneys they may have
been required to pay as a condition of employment
to Service Employees Union, Local 77, pursuant to
our contract with that labor organization, with in
terest
WE WILL offer to Hyung Bok Seo, Chi Ho Rho,
Jung Je Py, Woo Young Jhun, and Ronald Albert
Kelleher immediate and full reinstatement to their
former positions or, if such positions no longer
exist, to substantially equivalent ones, without prej-
udice to their seniority or other rights and privi
leges previously enjoyed, and make them whole for
any loss of earnings or other employment benefits
they may have suffered as a result of the discrimi
nation against them, with interest
WHITEWOOD MAINTENANCE CO 1175
WE WILL notify Hyung Bok Seo, Chi Ho Rho,
Jung Je Py, Woo Young Jhun, and Ronald Albert
Kelleher that we have removed from our files any
reference to their discharges and that their dis-
charges will not be used against them in any way
WORLD SERVICE COMPANY, SONG
AE LUN D/B/A LUCKY SERVICE
COMPANY
Sally N Spencer and Kenneth J Shapiro Esqs, for the
General Counsel
Patrick W Jordon Esq (McLaughlin & Irvin) and Ken
neth White Esq (Kenneth R White Inc), for the Re
spondents
Stewart Weinberg Esq (Van Bourg Weinberg Roger &
Rosenfeld), for Charging Party Local 87
Dennis Hayashi (Asian Law Caucus) for Charging Parties
Chi Ho Rho, Jung Je Py, and Hyung Bok Seo
DECISION
STATEMENT OF THE CASE
JERROLD H SHAPIRO, Administrative Law Judge The
hearing in this proceeding held during a 10 day period in
April 1985 was based on the allegations contained in a
second amended consolidated complaint issued 13 March
1985 by the Regional Director for Region 20 of the Na
tional Labor Relations Board (the Board) on behalf of
the Board s General Counsel It alleged that Charles
Yoon d/b/a Whitewood Oriental Maintenance Company
(Respondent Whitewood), World Service Company (Re
spondent World), and Song Ae Lim, Pyong H Lim Jay
Ha Lim and Lay Sil Lim d/b/a Lucky Service Compa
ny (Respondent Lucky), collectively referred to as Re
spondents by themselves and as joint employers violated
Section 8(a)(1) (2) (3), and (5) of the National Labor
Relations Act (the Act)
The second amended consolidated complaint is based
on the following unfair labor practice charges A charge
filed on 27 February 1984 in Case 20-CA-18770 by Chi
Ho Rho and another charge filed on the same date in
Case 20-CA-18771 by Jung Je Py in which charges
were served on Respondents 29 February 1984 by certi
feed mail a charge filed on 13 April 1984 in Case 20-
CA-18903 by Service Employees Union, Local 87 and
another charge filed on the same date in Case 20-CA-
18904 by Hyung Bok Seo, which charges were served
on Respondent Whitewood and Respondent World by
certified mail on 16 April 1984 and by personal service
on Respondent Lucky on 22 May 1984 Local 87 filed a
first amended charge on 20 April 1984 in Case 20-CA-
18903 that was served by certified mail on the same date
on Respondents Whitewood and World and by personal
service on Respondent Lucky on 22 May 1984
The complaint alleges that Respondents violated Sec
tion 8(a)(1) of the Act by interrogating employees during
September and October 1983, about their union member
ship, activities, and sympathies by promising employees
during October and November 1983 that their wages and
other terms and conditions of employment would im
prove if Local 87 lost a Board representation election,
and by threatening employees during this same period of
time that their employer would lose its contract and
close if Local 87 won the representation election
The complaint alleges that Respondent World and Re
spondent Lucky violated Section 8(a)(2) and (1) of the
Act by granting recognition to Service Employees
Union, Local 77 on or about 21 November 1983 as the
exclusive bargaining representative of World s and/or
Lucky s janitorial employees employed at the San Fran
cisco International Airport (SFO) and by entering into a
collective bargaining contract with Local 77 on that
same date, even though Local 77 did not represent a ma
jority of the employees, and by maintaining and enforc
ing its contract with Local 77 since 1 December 1983 i
The complaint alleges that Respondents violated Sec
tion 8(a)(3) and (1) of the Act by discharging employee
Ronald Albert Kelleher on or about 8 November 1983
because of his union or other protected concerted activi
ties, and that Respondent World and Respondent Lucky
violated Section 8(a)(3) and (1), as follows By discharg
ing employees Woo Young Jhun and Jung Je Py on or
about 22 November 1983, discharging employee Hyung
Bok Seo on or about 23 November 1983, and discharging
employee Chi Ho Rho on or about 7 December 1983 be
cause of their union or other protected concerted activi
ties by terminating World s contractual relationship with
Whitewood on an undisclosed date prior to 16 Novem
ber 1983, pursuant to which World had been subcon
tracting its SFO janitorial work to Whitewood, and on
or about 16 November 1983 substituting Lucky to per
form this work in place of Whitewood and by engaging
in the conduct because the SFO janitorial employees
supported Local 87 and to discourage the employees
from supporting Local 87, by changing the SFO .janitors
al employees terms and conditions of employment on or
about 16 November 1983 because of the SFO janitorial
employees support of Local 87 and to discourage them
from supporting Local 87
The complaint alleges that Respondents World and
Lucky violated Section 8(a)(5) and (1) of the Act as fol
lows By refusing since about 18 November 1983 to rec
ognize and bargain with Local 87 as the bargaining rep
resentative of the janitors employed by Respondent
Lucky and/or Respondent World at SFO by recogniz
ing Local 77 as the bargaining representative of Re
spondents World s and/or Lucky s SFO janitors on or
about 21 November 1983 and by entering into a contract
with Local 77 on that date covering the janitors and en
forcing the provisions of that contract including the con
tract s union security provision by dealing directly with
Respondents Lucky s and/or World s SFO janitors with
respect to the signing of rules and regulations governing
their employment, by terminating World s contract with
Whitewood on an undisclosed date prior to 16 Novem
ber 1983 pursuant to which World had been subcontract
ing its SFO janitorial work to Whitewood, and on or
i The complaint also alleges that the enforcement by Respondents
Lucky and World of the union security proviso in their contract with
Local 77 constituted a violation of Sec 8(a)(3) of the Act as well as Sec
8(a)(2) and (1)
1176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
about 16 November 1983 substituting Lucky to perform
this work in place of Whitewood and by engaging in the
aforesaid conduct unilaterally without notice to Local
87, by changing the SFO janitorial employees terms and
conditions of employment on or about 16 November
1983 unilaterally without notice to Local 87
Respondents in their answers to the amended consoli
dated complaint deny they have engaged in the alleged
unfair labor practices 2 Also Respondent Lucky raises a
number of affirmative defenses and at the outset of the
hearing it filed a motion to dismiss the 8(a)(2) and (5) al
legations in their entirety based on the fact that said al
legations are barred under Section 10(b) of the National
Labor Relations Act, as amended
On the entire record 3 and from my observation of the
demeanor of the witnesses and having considered the
General Counsel s and Respondents posthearing briefs, I
make the following
FINDINGS OF FACT
I THE ALLEGED UNFAIR LABOR PRACTICES
A The Background and Setting
Respondent World, a corporation with its principal
place of business in Houston , Texas does business as a
janitorial contractor throughout the United States It
contracts with commercial airlines to do their janitorial
work World normally does not employ its own employ
ees, but usually subcontracts its work to other janitorial
companies who use their own employees to do the work
Shik Sony is World s president and owner Clyde
Mayhew is a vice president of World responsible for its
operation During the time material , Gregory Choo a
friend of Sony who lives in San Francisco represented
himself to the public as World s executive vice president
He did this with Sony s knowledge and permission Also
with Sony 's authorization he acted as World s agent
concerning certain matters involving World 's SFO air
line contracts
Respondent Whitewood a sole proprietorship is
owned and operated by Charles Yoon whose residence
and place of business is in Los Angeles California
Whitewood has been in business as a janitorial contractor
for several years in the Los Angeles area The majority
of its Los Angeles work is performed under a subcon
tract with World for airlines at the Los Angeles Interna
tional Airport World has subcontracted its Los Angeles
airport janitorial work to Whitewood since at least 1980
Respondent Lucky a sole proprietorship owned and
operated by Song Ae Lim 4 commenced doing business
2 Respondents admit that they each meet one of the Board s applicable
discretionary jurisdictional standards and that each is an employer en
gaged in commerce within the meaning of Sec 2 (6) and (7) of the Act
Likewise Respondents admit that Locals 87 and 77 are labor organiza
tions within the meaning of Sec 2(5) of the Act
3 The General Counsel s and the Respondents joint motion to correct
the transcripts is granted
4 The amended complaint alleges and Respondent Lucky s answer to
the complaint admits that Lucky is a partnership Also the record shows
that several members of Song Ae Lim s family loaned her money to fi
nance Lucky s business and that Lim told representatives of Local 77 that
Lucky was a family business Nonetheless I am satisfied from my
on 17 November 1983 as a subcontractor for World at
SFO when Whitewood discontinued its SFO business It
was not until 17 November 1983 when Lucky took over
Whitewood s SFO business that Lucky began doing buss
ness and employed its first employee Gregory Choo,
who guaranteed Song Ae Lim s bank loan so she could
go into the janitorial business at SFO assists Lim in op
erating Lucky s business and in certain respects acts as
Lim s agent
In approximately February 1982 World contracted
with several airlines at SFO including Republic, Ameri
can PSA , and Eastern Airlines to do their SFO janitori
al work Thereafter World also entered into a contract
with Lockheed Air Terminal (LAT) to service certain
international airlines who were members of the San
Francisco Foreign Flag Carriers (SFFFC) which con
tracted with LAT for facility maintenance Each of these
contracts , as was customary in the industry contained a
nonassignment clause that specifically prohibited World
from subcontracting the janitorial work without prior
written permission from the airlines Despite this World
consistent with its usual practice subcontracted the jani
torial work at SFO to Whitewood and then to Lucky
without advising the airlines
Since Whitewood s owner , Yoon lived in Los Ange
les, California where his Company s office is located he
normally visited Whitewood s SFO operation only once
or twice monthly After hiring the initial complement of
employees and establishing their initial terms and condi
tions of employment Yoon left the everyday manage
ment of the Company s business at SFO in the hands of
Hwa Jong Kim and Tai Sun Jung Kim was the Compa
ny s SFO operation manager and supervised the day
shift Jung supervised the night shift Kim and Jung did
all of the hiring firing scheduling assigning of employ
ees work and they otherwise managed the Company s
SFO business
On 1 January 1983 World and Whitewood renewed
their SFO contract World signed an agreement with
Whitewood whereby World subcontracted all of its jani
torial work at SFO to Whitewood subject to cancellation
by either party with 30 days notice World paid
Whitewood a monthly fee of between $ 18 000 and
$19 000 On 3 October 1983 World gave Whitewood
written notice that it was canceling their SFO contract
On 17 November 1983, pursuant to a verbal agreement
between Lucky and World Lucky became World s SFO
subcontractor On 17 November 1983, when Whitewood
discontinued its SFO operation it employed about 19 or
20 employees there and was performing work under its
contract with World for the following airlines Republic,
American PSA, Western and LAT Under its verbal
contract with World Lucky agreed to do this work for
$26 000 a month When Lucky began doing this work, it
continued to employ all of Whitewood s employees
except for two, who decided not to work for Lucky
SFO is situated in the county of San Mateo which is
within Local 77 s territorial jurisdiction In 1983 Local
review of the whole record that as Lim testified Lim is the sole proprie
tor of this employer I therefore grant the General Counsels request that
the pleadings and case caption conform to this finding
WHITEWOOD MAINTENANCE CO
77 had collective-bargaining contracts with approximate
ly four SFO janitorial contractors Local 87, Local 77 s
sister local, has jurisdiction over the city and county of
San Francisco which is immediately adjacent to San
Mateo County Local 87, whose contracts contain a
higher pay scale than Local 77 s has no collective bar
gaining contracts covering janitorial employees em
ployed at SFO When Whitewood began to do business
at SFO early in 1982, the work it took over was either in
whole or in part formerly performed by janitorial con
tractors who were signatories to contracts with Local
77 Whitewood did not employ the employees of the
predecessor employers Almost all of Whitewood s SFO
employees were like Whitewood s owner, Korean In
1982 Local 77 filed charges with the San Francisco
Human Rights Commission5 alleging that World, and the
airlines that had contracted with World, had violated im
migration laws and discriminated in hiring because they
hired only Korean employees Local 77 picketed at SFO
in support of these charges
On 28 April 1983 Song Ae Lim, on behalf of Respond
ent Lucky, entered into a collective bargaining contract
with Local 77 covering janitorial employees Lucky
might employ in the future Subsequently in July or
August 1983 Song Lim entered into a successor contract
with Local 77, which by its terms was effective from 1
May 1983 until 1 May 1986 When Song Lim entered
into these contracts Respondent Lucky was not doing
business and employed no employees Song Lim entered
into these contracts in anticipation of eventually securing
a subcontract from Respondent World to perform janito
rial work at SFO It was not until 17 November 1983,
when Lucky took over Respondent Whitwood s SFO
janitorial work that Song Lim commenced doing janito
rial work and employed her first employee Thereafter
on 21 November 1983 Song Lim met with Local 77 s
president and they re executed the 1983-1986 contract
which had previously been signed by them in July or
August 1983 They changed the terms of this contract in
two respects the contracts effective date was changed
from 1 May 1983 to 1 December 1983, and four members
of Lim s family employed at SFO as janitors were ex
cluded from the contracts coverage Commencing 1 De
cember 1983 and continuing thereafter, Respondent
Lucky has complied with all of the provisions of its
Local 77 contract 8
In July 1983 Nak Young Sung a janitor employed at
SFO by Respondent Whitewood initiated a campaign to
organize employee support for Local 77 and continued
this campaign even after 10 August 1983 when he quit
work in order to return to school By 6 September 1983
Sung possessed Local 77 authorization cards signed by
16 of Whitewood s SFO janitors, and on that date he
gave the cards to a representative of Local 77 and asked
that the union immediately file a petition with the Board
for a representation election When Local 77 did not file
5 Although situated in San Mateo County SFO is owned and operated
by the city and county of San Francisco
6 The record reveals that Lucky was delinquent in complying with the
contract in one respect it was sevral months late in making the health
and welfare contributions required by the contract for the months of De
cember 1983 and January 1984
1177
the petition, Sung on more than one occasion went back
to its office and without success tried to get it to file a
representation petition with the Board seeking an elec
tion among Whitewood s SFO janitorial employees On
17 September 1983 Sung visited Local 87 s office and
was assured by a Local 87 s representative that if he se
cured a sufficient number of employees signatures on
Local 87 authorization cards, Local 87 would immediate
ly file a representation petition with the Board for an
election among Whitewood s SFO janitorial employees
Sung then returned to SFO with authorization cards sup
plied to him by Local 87 Between 17 and 20 September
1983 an undisclosed number of Whitewood s SFO janito
rial employees signed these cards On 20 September
Sung returned the signed cards to Local 87 On 22 Sep
tember 1983 Local 87 used these cards as its showing of
interest and filed a representation petition with the
Board s Regional Office in Case 20-RC-15677 seeking an
election in a unit of Whitewood s SFO janitorial employ
ees
Thereafter pursuant to an election agreement entered
into between Local 87 and Respondent Whitewood
which was approved on 21 October 1983 by the Board s
Regional Director for Region 20 an election was con
ducted by the Board on 10 November 1983 among
Whitewood s SFO janitorial employees The tally of bal
lots shows that of the approximately 21 eligible voters, 9
voted for Local 87, 7 voted against union representation
and 4 voters cast challenged ballots 8
On 17 November 1983 Respondent Whitewood filed a
timely objection to the election based on alleged Local
87 preelection misconduct
On 25-26 January 1984 a hearing was conducted
before a hearing officer to resolve the issues raised by
the challenges and objection On 16 February 1984 the
hearing officer issued a report recommending that
Whitewood s objection be overruled and that the chal
lenge to the ballot of Kim be sustained and that the other
three challenges be overruled and those ballots counted
On 20 March 1984 the three challenged ballots for
which the challenges were overruled were opened and
on that day a revised tally of ballots issued which
showed Local 87 had won the election 11 to 8
On 29 March 1984 the Board s Regional Director
issued a Certification of Representative certifying
Local 87 as the exclusive bargaining representative of all
the janitorial employees employed by Whitewood at
SFO
In September 1983 Shik Sony World s owner prom
ised Song Ae Lim Lucky s owner that in the near
future Lucky would replace Whitewood as World s SFO
subcontractor Thereafter Lim visited SFO to observe
Whitewood s employees at work and to talk to them 9
r On 30 September 1983 Local 87 amended the petition in Case 20-
RC-15677 to name Respondent World as well as Respondent
Whitewood as the employers of the employees
s Two of the challenged ballots cast by Ronald Albert Kelleher and
Hyon Kuk Chang were challenged by the Board agent conducting the
election because their names did not appear on the voter eligibility list
The ballots of Shin Yi Choi and Kwa Jong Kim were challenged by
Local 87 as being statutory supervisors
Song Ae Lim prior to taking over Whitewood s SFO janitorial busi
ness had no prior Janitorial business experience
1178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
She visited SFO on a daily basis from late September
1983 until 17 November 1983 when she took over
Whitewood s SFO operation and at times Gregory
Choo accompanied her However, it was not until early
October 1983 that she began to speak with Whitewood s
employees 10
Besides visiting Whitewood s SFO operation to ob
serve the way it functioned in anticipation of taking it
over, the record also shows that another purpose of
Lim s preelection visits to SFO in October and Novem
ber 1983 was to persuade the employees not to support
Local 87 s organizational campaign and that she engaged
in this conduct in anticipation of Lucky taking over
Whitewood s SFO business As I have found infra, Lim
not only spoke to the employees about their work, but
on more than one occasion introduced the subject of
union representation into her conversation with employ
ees in an effort to discourage them from supporting
Local 87 s organizational campaign Also when
Whitewood s owner Yoon asked Worlds owner Sony
why Lim was visiting Whitewood s SFO operation and
talking to the employees, Sony stated that Lim and Choo
were there to help handle the NLRB election proceeding
(Tr pp 955 970-971) And despite the fact that Lim s
company was not expected to take over Whitewood s
SFO business until sometime after the 10 November elec
tion, World s vice president Mayhew on 21 October 1983
wrote Whitewood s supervisor, Kim, that effective 16
October Song Lim of Lucky Service Company was the
manager of the new company providing janitorial serv
ices at SFO and because of this World no longer needed
Kim s services the clear implication being that as of 16
October, in anticipation of Lim s company going into
business to replace Whitewood at SFO, Lim would serve
as World s personal representative at SFO, instead of
Kim 11 That this is what Lim understood the arrange
10 It is undisputed that when Lim introduced herself to the employees
she did not tell them she was the owner or representative of a company
that would be taking over Whitewood s SFO business In dispute is
whether she told some of the employees she was an employee or repre
sentative of World Lim denied introducing herself in this manner The
testimony of employees Kelleher and Seo and the affidavit of employee
Jhun corroborate this testimony However Lim s affidavit submitted to
the Board prior to the hearing states I did not want the employees to
know that I was going to get the contract so when I introduced myself I
told them I was from World Services Lim did not deny that she told
this to the Board agent who wrote out her affidavit The testimony of
employee Py that the day shift supervisor Kim introduced Lim to him
as a secretary from World and the testimony of employee Rho that
Lim introduced herself to him as an employee of World and the testimo
ny of Local 87s representatives Leung and Sung that Lim indicated to
them she was a representative or working for World s owner Sony are
consistent with Lim s affidavit Since the testimonial demeanor of Py
Leung and Sung was good whereas the testimonial demeanor of Lim
was poor I find that Supervisor Kim introduced Lim to employee Py as
a secretary from World and told Local 87 representatives Leung and
Sung that she was employed by Worlds owner Sony or was his repre
sentative Also I rejected Lim s testimony that Sung when he met with
Lim told the group of people present that Lim was the new contractor
Finally I reject Pho s testimony that Lim introduced herself as an em
ployee of World inasmuch as Rho inconsistently testified at a San Fran
cisco Human Rights Commission hearing that Lim introduced herself as
someone totally unrelated to World
11 As I have found infra Song Lim did not supervise Whitewood s
employees or manage Whitewood s SFO business operation Rather
Whitewood s supervisors continued to do this until Lucky on 17 Novem
her 1983 took over the SFO operation
ment to be is evidenced by Choo s letter of 25 October
1983 to Vice President Mayhew in which after transmit
ting certain information relating to the representation elec
tion proceeding, Choo asked Mayhew for a formal written
confirmation of the verbal appointment of Song Ae Lim
to the position of World Service Company SFO Coordi
nator by Mr Sony effective October 19 Subsequently
on 29-30 October and 13 November 1983, Lim was
present when Labor Relations Consultant White met
with Whitewood s owner Yoon for the purpose of dis
cussing how the representation election would be han
died It was at this time that Labor Relations Consultant
White began to represent Lucky even though it had not
taken over Whitewood s SFO business operation and was
not expected to do so until after the election Also on 30
October 1983 when White wrote out for Yoon s signa
ture a statement of position addressed to Whitewood's
employees concerning Local 87 s organizational cam
paign, it was Lim who saw to it that the statement was
typed and translated into Korean 12 The translation was
done by Lim s brother Jae Lim, who loaned money to
Lim so she could start her business and who worked for
Lim as a supervisor when she commenced operation
When on or about 1 November 1983 the statement to the
employees was distributed, Lim personally handed it to
at least one of the employees 13 When all the foregoing
circumstances are viewed in their totality, I am persuad
ed they estblish that when Song Lim visited SFO in Oc
tober and November 1983 and spoke to Whitewood s
employees in an effort to discourage them from support
ing Local 87 s organizational campaign, she acted in her
own interet in anticipation of her company Lucky re
placing Whitewood as World s subcontractor after the
election
B World s Status as a Joint Employer of Whitewood s
SFO Janitors
I find that World did not share or codetermine the
terms and conditions of employment of Whitewood s
SFO janitors so as to make it a joint employer of the
janitors 14
In 1982 when Whitewood s owner Yoon entered into a
contract with World to perform the SFO janitorial
work Yoon personally hired all of Whitewood s SFO
12 The statement dated 1 November 1983 was signed by Yoon and ad
dressed to Whitewood s SFO employees It asked them to vote no in
the representation election and advised them that we do not want a
union we and you do not need a union and warned that the advent of a
union owuld jeopardize our ability to bid on jobs for our airlines or
other customers [and] that in turn of course affects you
13 Employee Py testified that on I November 1983 Lim handed him
the statements along with his paycheck Lim denied that she distributed
the statement to employees I have credited Py s testimony because his
testimonial demeanor was good whereas Lim s was poor
14 The appropriate standard for determining joint employer status was
applied by the Third Circuit in NLRB v Browning Ferris Industries 691
F 2d 1117 (3d Cir 1982) There the court found that where two separate
entities share or codetermine those matters governing the essential terms
and conditions of employment they are to be considered joint employers
for purposes of the Act The Board has approved of this standard and
has also stated that to establish (joint employer) status there must be a
showing that the employer meaningfully affects matters relating to the
employment relationship such as hiring firing discipline supervision and
direction [case cited] TLI Inc 271 NLRB 798 (1984)
WHITEWOOD MAINTENANCE CO 1179
work force Likewise Yoon established the janitors
wages fringe benefits, work schedules and shifts
Whitewood s SFO Supervisors Kim and Jung who were
hired by Yoon were responsible for and supervised the
day to day work of Whitewood s SFO janitors They
hired fired, directed, assigned and scheduled the .jani
tors It was Whitewood that paid the janitors wages,
benefits, and taxes In view of the evidence the General
Counsel has failed to prove that World exercised control
over essential terms and conditions of employment of
Whitewood s SFO janitors, so as to qualify as their joint
employer
The General Counsel does not dispute the above de
scribed evidence, but contends that there is certain cir
cumstantial evidence that compels the inference that
World exercised control over terms and conditions of
employment of Whitewood s SFO janitors More specifi
cally, the General Counsel points to the following (1)
World and Whitewood, when dealing with third parties,
represented that World was the SFO janitors employer,
(2) World s vice president, Mayhew, stated that
Whitewood s supervisor Kim, was employed by and re
sponsible to World, (3) World s conduct connected with
the San Francisco Human Rights Commission (SFHRC)
litigation demonstrates that World directly controlled
Whitewood s SFO hiring practices, (4) World controlled
the economics of its business relationship with White
wood (5) Whitewood s SFO janitors were covered by
World s workers compensation insurance policy (6)
World discharged Whitewood s employee Kelleher, and
(7) World determined and controlled Whitewood s repre
sentation election strategy I am of the opinion for the
reasons set forth that the above factors when considered
individually or together do not in the circumstances of
this case establish that World and Whitewood were joint
employers of Whitewood s SFO janitors
Regarding (1) World s contracts with the airlines at
SFO each contain a nonassignment clause that specifical
ly forbids World from subcontracting without the prior
written permission from the airlines, but unknown to the
airlines World subcontracted this work to Whitewood
without the airlines permission It was in order to pre
vent the airlines from discovering this breach of contract
that at all times material World and Whitewood in their
dealings with the airlines and governmental agencies
such as the SFHRC and the NLRB falsely represented
that World employed the SFO janitors Likewise the
identification badges issued to the SFO janitors oy the
airport authorities identified them as employees of
World In short the reason World and Whitewood rep
resented to third parties that World employed the SFO
janitors was not because World controlled the employ
ees terms and conditions of employment but in order to
keep secret World s breach of its contracts with the air
lines
Regarding (2) other than Mayhew's 21 October 1983
letter to Supervisor Kim stating that effective 16 October
1983 Kim was no longer employed or responsible to
World Service Company but that Song Lim of Lucky
Service was now manager of our new company perform
ing services at SFO there is no evidence Kim was em
ployed by World or that in supervising Whitewood s
SFO janitors that Kim acted on behalf of World 15 Not
only was Kim hired and paid by Whitewood but there is
no evidence that in supervising Whitewood s SFO .jani
tors he did not follow Whitewood s employment poll
cies Moreover after Mayhew s 21 October letter Kim s
employment at SFO did not end instead he continued to
work for Whitewood at SFO in his same supervisory po
sition and continued to occupy this position when Lucky
took over Whitewood s role as World s SFO subcontrac
tor Also there is no evidence that Lim, prior to 17 No
vember when Lucky took over Whitewood s SFO buss
ness supervised or exercised control over the janitors
terms and conditions of employment The foregoing con
siderations plus the fact that at the time Mayhew wrote
this letter World s owner Sony and Lucky s owner Lim
had reached a tentative verbal agreement that Lim
would take over Whitewood s subcontract in the near
future, warrant the inference that Mayhew, by this letter
was merely in effect confirming to Kim, as Lim had al
ready told Kim Lim s company would be replacing
Whitewood as World s subcontractor in the near future
In any event considering the circumstances Mayhew s
21 October letter, by itself and in the context of the
entire record does not establish that in supervising
Whitewood s SFO employees Kim acted as World s
agent
Regarding (3), in connection with the charges filed by
Local 77 in 1982 with the SFHRC against World alleg
mg that World was discriminating in hiring at SFO be
cause it employed only Korean employees 16 in May
1983, World and the SFHRC entered into an affirmative
action agreement Under the terms of that agreement
World agreed to employ non Korean employees so as to
achieve the racial mix set forth in the agreement and
agreed to periodically furnish employment records to the
SFHRC so that it could police World s compliance 17
Worlds vice president Mayhew told Whitewood s
owner Yoon that the SFHRC had stated that World was
hiring only Korean employees at SFO and had ordered
World to employ a racial mix by a certain date and also
told Yoon that Whitewood had to employ other employ
ees besides Korean employees This was World s sole in
volvement in Whitewood s hiring policies 18 Thereafter
15 World s vice president in charge of operations Mayhew testified
that Kim was not employed by World
i6 When Whitewood started doing business at SFO in 1982 it em
ployed virtually all Korean employees
i'i As I have found supra in order to hide the fact that it had subcon
tracted its SFO janitorial work to Whitewood in violation of its contracts
with the airlines World represented to third parites that World s employ
ees were doing the SFO work Consistent with this policy World and
Whitewood throughout the proceedings before the SFHRC maintained
the fiction that World employed the SFO janitors and following the exe
cutlon of the affirmative action agreement it was a representative of
World who submitted the compliance information to the SFHRC after
receiving it from a representative of Whitewood Also on one occasion
Whitewood s Supervisor Kim represented himself as an official of World
and submitted such compliance information to the SFHRC Under the
circumstances these representations to the SFHRC that World was the
employer of the SFO janitors does not establish that World exercised
control over the employees terms and conditions of employment in any
significant manner
18 The General Counsel contends that the affirmative action agreement
by its terms also pertains to employees wages However I can find noth
Continued
1180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Whitewood s SFO supervisors continued to exercise sole
control over whom they hired but in order to comply
with the law as embodied in the affirmative action
agreement presumably made an extra effort to employ
non Korean employees In other words, there is no evi
dence that World involved itself in Whitewood s hiring
policies other than requiring Whitewood to obey the law
as embodied in the affirmative action agreement with the
SFHRC Considering this circumstances and considering
the lack of evidence that World controlled any other
aspect of the terms and conditions of employment of
Whitewood s SFO employees, this limited involvement
by World in Whrtewood s hiring policies was insufficient
to make World a joint employer of Whitewood s SFO
employees 19
Regarding (4), World s ability to end its business rela
tionship with Whitewood with only 30 days notice, and
the fact that World was Whitewood s principal custom
er at most indicates that due to its economic position
World was in a strong bargaining relationship when it
dealt with Whitewood There is no evidence, however
that Whitewood allowed World to take advantage of its
strong economic position by allowing it to assume con
trol over any of the terms and conditions of employment
of Whitewood s SFO employees See TLI Inc & Crown
Zellerbach Corp 271 NLRB 798 cf Seafarers Local 777
(Yellow Cab) v NLRB 603 F 2d 862 870-871 fn 22
(D C Cir 1978) (economic power is not in itself
enough to establish the existence of an employer employ
ee relationship, rather the critical question is whether
the power is used to exert excessive control ) NLRB v
A Dute Pyle Inc 606 F 2d 379 386 (3d Cir 1979)
( Even if the stronger party may dictate the terms of a
contract the weaker party does not become an employee
unless those terms create substantial control over the de
tails of his performance )
Regarding (5) the record reveals that in the event one
of its subcontractors did not have its own workers com
pensation insurance coverage World was required by
law to maintain an umbrella workers compensation
policy The fact that toward the end of its tenure as
Worlds subcontractor at SFO Whitewood s employees
were covered by Worlds umbrella policy constitutes
such a limited involvement in the employees terms and
conditions of employment that it does not establish
Worlds joint employer status particularly where as
here, virtually all the other essential terms and conditions
of employment were controlled solely by Whitewood
Regarding (6) the record shows that shortly before
the 10 November 1983 representation election when
Labor Relations Consultant White and Whitewood s
owner Yoon reviewed the voting eligibility of
Whitewood s employees, that Yoon misinformed White
that employee Kelleher who had been absent from work
for several weeks due to an injury had not been granted
mg in the agreement which mentions employees wages and there is no
evidence that Whitewood s wage policies were in any way affected by
the agreement
19 Bricklayers Local 29 (J E Hoetger) 221 NLRB 1337 1339 (1976)
and Teamsters Local 363 (Rodlayn Americana) 214 NLRB 868 872
(1974) cited by the General Counsel are factually distinguishable in sig
nificant respects from the instant case and are otherwise inapposite
a leave of absence by supervision White responded by
not only advising Yoom that Kelleher was ineligible to
vote in the representation election but also told Yoon to
discharge Kelleher which resulted in Kelleher s dis
charge When White told Yoon to discharge Kelleher
there is no showing White acted as World s agent rather
than in his capacity as Whitewood s labor relations con
sultant The sole evidence presented which is pertinent
to this issue is as follows World s owner Sony recom
mended White to Whitewood s owner Yoon and paid
White for the work he did for Yoon Yoon employed
White after he had independently approved of him,
White worked for Yoon with no instructions from Sony
Sony and Yoon entered into an arrangement whereby
World would recoup the money Sony paid for White s
services performed for Yoon by deducting this money
from the money Sony owed Yoon for performing the
SFO janitorial work These circumstances do not estab
lish that White was an agent of World or even assuming
he was an agent that when he told Yoon to discharge
Kelleher he was acting within the general scope of his
agency authority
Regarding (7) the General Counsel contends that
World controlled Whitewood s handling of the represen
tation election and controlled Whitewood s election
strategy through the conduct of World s agents White,
Lim and Choo As I have found supra there is insuffi
dent evidence to establish that Labor Relations Consult
ant White acted as World s agent when he formulated
Whitewood s election strategy and advised Whitewood s
owner Yoon concerning the election Assuming Lim and
Choo acted as World s agent in connection with their
representation election conduct the nature of their con
duct does not warrant a finding that World exerted con
trol over Whitewood s labor relations policy or other
wise exercised control over the Whitewood SFO em
ployees terms and conditions of employment Lim s con
duct consisted of her preelection conversations with the
Whitewood employees when she attempted to dissuade
them from supporting Local 87 s campaign 20 She also
had Yoon s written statement to the employees that
Whitewood prepared translated into Korean and typed
and she distributed that statement to one employee
Choo kept World s vice president Mayhew informed
about the election proceeding and inasmuch as his com
mand and understanding of the English language was
somewhat better than Yoon s accompanied Yoon to the
10 November preelection conference and informed those
present he was Whitewood s representative Likewise,
Choo represented Yoon at the postelection hearing
Lim s and Choo s conduct assuming it was engaged in
on behalf of World and was within the general scope of
their agency authority does not establish that World was
in control of Whitewood's labor relations policy to any
significant degree but merely shows that World was as
sisting Whitewood in its handling of the representation
election
20 Lim s efforts to discourage the employees from supporting Local 87
was consistent with Yoon s sentiments as expressed in his written state
ment opposing Local 87 s organizational campaign distributed to the
Whitewood employees
WHITEWOOD MAINTENANCE CO
It is for the reasons set forth above that I have con
cluded after reviewing all the circumstances of World s
relationship with Whitewood s SFO janitors, that World
did not exert sufficient control over essential terms of
their employment and therefore cannot be considered
their joint employer with Whitewood 21
C World s Status as a Joint Employer of Lucky s
SFO Janitors
I find that World and Lucky did not share or codeter
mine the terms and conditions of employment of Lucky s
SFO janitors so as to make them a joint employer of the
janitors During the time material Lucky s owner Song
Lim controlled all aspects of the hiring firing, discipline,
work scheduling assignments, and supervision of
Lucky s employees Likewise, it was Lim who deter
mined their terms and conditions of employment and
who paid their wages, fringe benefits and taxes In view
of the circumstances, the General Counsel has failed to
establish that World exercised control over essential
terms and conditions of employment of Lucky s SFO
janitors so as to qualify as their joint employer
In finding the General Counsel has failed to prove that
World exercised control over essential terms and condi
tions of employment of Lucky s SFO janitors, I consid
ered the General Counsels contention that Lucky and
World were joint employers because (1) Both Lucky
and World represented to third parties that World was
the janitors employer (2) World exercised control over
Lucky s hiring policies, (3) World paid the janitors un
employment compensation insurance coverage, (4)
World controlled the economics of its business relation
ship with Lucky and (5) World exercised control over
Lucky s labor relations policies
Regarding (1) as described previously, it was to pre
vent the airlines from discovering that World was violat
ing its contracts with the airlines by subcontracting the
janitorial work to Lucky that Lucky s representatives,
Lim and Choo and World s representative Mayhew
represented to the airlines and third parties that Lim and
Choo were acting on behalf of World and that the ,jani
tors were World s employees Likewise because it was
World that had the contracts with the airlines, the identi
fication badges issued to the janitors by the airport iden
tified them as World s employees 22 In short, the reason
21 As I have found supra World exercised limited control over
Whitewood s hiring policies by virtue of the SFHRC affirmative action
agreement and during the end of Whitewood s stay at SFO paid for the
Whitewood employees workers compensation benefits These circum
stances are insufficient to establish World s joint employer status where
as here there is insufficient evidence that World otherwise shared or co
determined any of the employees other terms and conditions of employ
ment
22 In November 1983 when she began doing business Lim unsuccess
fully tried to obtain identification badges from the airport identifying
Lucky as the janitors employer Eventually in May 1984 when World
no longer was doing business at SFO and Lucky had replaced World as
the contractor of some of the airlines the airport issued identification
badges to Lucky s employees which identified Lucky as their employer
I agree with Respondent Lucky that the fact that World assisted Lucky
in obtaining some of those contracts is not relevant to World s alleged
joint employer status
1181
Lucky and World told the airlines and third parties that
Lim and Choo were employed by World and that
Lucky s janitors were World s employees, was to keep
World s breach of its contracts with the airlines a secret,
not because World controlled Lucky s employees terms
and conditions of employment 23
Regarding (2) in May 1983 World and SFHRC en
tered into an affirmative action agreement which re
quired World to employ non Korean employees at SFO,
so as to achieve the racial mix set forth in the agreement
The circumstances surrounding this agreement have been
previously described The General Counsel contends that
by virtue of such an agreement World controlled
Lucky s hiring policies However, there is no evidence
that in November 1983 when Lucky began doing busi
ness at SFO, it knew about the agreement or that World
or the SFHRC attempted to enforce its terms vis a vis
Lucky or that in hiring employees Lucky s hiring poli
cies were governed by the terms of the agreement In
any event, for the reasons set forth in my previous dis
cussion dealing with World s alleged joint employer
status with Whitewood, even if Lucky s hiring policies
were governed by the terms of the affirmative action
agreement 24 this limited involvement by World in
Lucky s hiring policies under the particular circum
stances, would have been insufficient to make World a
joint employer of Lucky s SFO janitors
Regarding (3) the record shows that for the first 6
weeks of its business at SFO Lucky did not have work
ers compensation insurance coverage for its employees,
and during this period the employees were covered
under World s umbrella coverage as required by law
World s involvement in the employees terms and condi
tions of employment in this respect was so limited and of
such a short duration that it does not establish World s
joint employer status particularly since the employees
other essential terms and conditions of employment were
controlled solely by Lucky
Regarding (4) the fact that for the first several months
Lucky s existence was totally dependent on business with
World does not establish World s joint employer status
because there is no evidence Lucky allowed World to
take advantage of its strong economic position by allow
ing it to assume control over essential terms and condi
tions of employment of Lucky s SFO janitors
The General Counsels final argument that World ex
ercised control over Lucky s labor relations policies rests
on the General Counsels contentions that Worlds owner
Sony was responsible for Lucky s collective bargaining
relationship with Local 77 that Labor Relations consult
23 In view of World s and Lucky s policy of representing to third par
ties that World rather than Lucky was the SFO janitors employer it is
not surprising World s vice president Mayhew in a letter to an airline
described Lucky s relationship to World at SFO as our company
quasi Under the circumstances Mayhew s remark does not amount to
an admission that World was in fact the real employer of Lucky s SFO
employees or that World exercised joint control over the employees
24 The General Counsel also contends that the agreement by its terms
also pertains to employees wages However I can find nothing in the
terms that mentions employees wages and the entire thrust of the agree
ment seems to be directed toward hiring practices Moreover there is no
evidence Lucky s wage policies were affected by this agreement
1182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ant White acting as World s agent prepared the work
rules for Lucky s employees, and that Choo acting as
World s agent, was involved in Lucky s collective bar
gaining negotiations with Local 77, discharged employee
Seo and on 17 November 1983 informed Lucky s em
ployees about Lucky s employment policies This argu
merit is without merit for these reasons
Although World s owner Sony suggested to Lucky s
owner Lim that because San Francisco was a union
city, if she intended to operate her business successfully
she should recognize a union and personally become a
member of a union, there is insufficient evidence to es
tablish Sony told Lim that she should affiliate with Local
77 or told her as a condition of doing business with him
at SFO she would have to sign an agreement with Local
77, or that Sony, in any other way dictated Lim s subse
quent dealings with Local 77 On 16 November and 21
November 1983 when Gregory Choo accompanied Lim
to Local 77 s office even assuming that Choo was there
as an agent of World there is no showing that other
than participating in Lim s conversations with the Local
77 business agents that Choo dictated or effectively rec
ommended Lim s conduct
There is insufficient evidence to show that when
Labor Relations Consultant White complied with
Lucky s request and furnished it with a copy of the rules
and regulations governing employees conduct used by
one of Whites employer clients that White acted as an
agent of World Assuming arguendo, that the evidence
warrants the inference White, in his dealings with Lucky
during this period acted as World s agent,25 there is in
sufficient evidence that when he recommended the rules
and regulations for Lucky s use he acted within the gen
eral scope of his agency authority where as here it is
clear from the record World s owner Sony agreed to pay
White only for his services performed in connection with
the representation election proceeding and that when
White met with Whitewood s owner Yoon and Lucky s
owner Lim their discussion centered around White rep
resenting them in the handling of the representation elec
tion proceeding 26 In view of the circumstances, the
General Counsel has failed to prove Labor Relations
Consultant White acted as World s agent when he re
commened a set of work rules for Lucky s use
Lastly there is a lack of evidence that Gregory Choo
in his capacity as an agent for World as urged by the
General Counsel was jointly responsible with Lucky s
owner Lim for establishing Lucky s labor relations poll
cies 27 The basis for this contention as set forth in the
25 In this regard the record reveals Worlds owner Sony paid White
for the services he performed for both Lucky and Whitewood during the
period in question and Lucky s owner Lim testified she did not pay
White any money in 1983 and in 1983 she did not hire White
26 I recognize that in his 1 December letter to Local 87 s lawyer
Weinberg that White stated he was authorized to represent Lucky for
purposes of labor relations However Weinberg s inquiry which
prompted White s response pertained to the representation election In
any event the statement of White the alleged agent is insufficient to es
tablish the scope of his agency I also note there is ro evidence that
World paid White for any services which were not connected with the
representation proceeding or evidence that World knew White was rep
resenting Lucky in matters other than the representation proceeding
27 It is undisputed that even though Choo was Lim s advisor and con
fidant and Lucky s agent he received no payment for any of the services
General Counsels posthearing brief is that Choo advised
Lim about labor relation matters including Lucky s
choice of bargaining representative engaged in negotia
tions with Local 77 on behalf of Lucky, communicated
Lucky s labor relation policies to its employees at the 17
November employee meeting prepared employees termi
nation notices advised Lim about employees termina
tions and made the decision to discharge employee Seo
First of all I note that except in the isolated instance in
volving employee Seo s termination discussed infra there
is no evidence that in matters involving the employees
terms and conditions of employment that Choo ever
gave Lim advice, or if he gave her advice what that
advice involved and whether Lim accepted the advice
without first conducting an independent evaluation of
the situation Regarding Choo s connection with Lucky s
relationship with Local 77, as I have found previously
there is no evidence that Lim relied on Choo s advice or
did anything more than merely discuss with Choo her
dealings with Local 77 The General Counsels further
contention that Choo exerted his control over the Com
pany s labor relation policies by verbally translating the
Company s rules and regulations to the employees at the
17 November meeting is frivolous Likewise frivolous is
the further contention Choo exercised such control by
preparing the employees termination slips, because it is
undisputed Choo merely followed Lim s instructions in
their preparation Although Choo effectively recom
mended Seo s discharge it is undisputed that the ultimate
decision was Lim s Moreover, Choo s involvement in
Seo s discharge was an isolated episode This is the only
discharge of a Lucky employee in which Choo was in
volved It was Lim who uniformly exercised control
over the discipline and discharge of the employees and,
because of his superior command of the English Ian
guage it was Choo who following Lim s instructions
filled out the termination slips It is for all the foregoing
reasons that the General Counsel s claim Choo exercised
control over Lucky s labor relation policies is without
merit Moreover assuming there is sufficient evidence to
establish Choo s involvement in the determination of
Lucky s labor relation policies there is insufficient evi
dence to show that when Choo engaged in this conduct
he acted as World s agent Although World by its con
duct designated Choo as its agent at various times for
certain limited purposes such as assisting in the handling
of the representation proceeding the negotiation of a set
tlement of a bill it owed an attorney and to supply infor
mation to the SFHRC, there is insufficient evidence to
establish that it was within the general scope of Choo s
limited agency authority to act on World s behalf in
giving advice to Lim about the terms and conditions of
employment of Lucky s SFO employees 28
he performed for Lucky nor did he ever receive any payment for the
services he performed for World
28I have considered that Labor Relations Consultant White during
the investigatory stage of this litigation informed the Board s Regional
office on behalf of the Respondents that Choo was not as agent for
both Lucky and World but was World s representative and overseer
of World s subcontractors In addition to being conclusionary this dec
laration is too vague to establish Choo s agency status with respect to
Continued
WHITEWOOD MAINTENANCE CO
It is for the reasons set forth above that I have con
cluded after reviewing all the circumstances of World s
relationship with Lucky s SFO janitors, World did not
exert sufficient control over essential terms and condi
tions of their employment and therefore, cannot be con
sidered their joint employer with Lucky
D Lucky's Status as a Joint Employer of Whitewood s
SFO Janitors
I find that Lucky and Whitewood did not share or co
determine the terms and conditions of employment of
Whitewood s SFO janitors so as to make them joint em
ployers of the janitors As I have found supra the essen
tial terms and conditions of employment of Whitewood s
SFO janitors including matters such as hiring, firing, su
pervision, and direction, were solely controlled by
Whitewood s owner and supervisors The General Coun
sel s argument that Lucky and Whitewood were joint
employers is based on the following World Vice Presi
dent Mayhew s 21 October 1983 letter to Whitewood
Supervisor Kim stating that effective 16 October 1983
Kim was no longer employed or responsible to World
and that Lucky s owner Lim was now manager of
World s new company servicing SFO on 8 November
1983 Lim told Whitewood employee Kelleher that he
was discharged and, Lucky s owner Lim and its agent
Choo anticipating Lucky s takeover of Whitewood s
subcontract with World, acted on Whitewood s behalf in
several different ways connected with the 10 November
1983 representation election The General Counsels ar
gument, for the reasons set forth, is without merit
There is no evidence that Lim supervised the SFO
janitors or exercised control over their terms and condi
tions of employment prior to 17 November 1983 when
Lucky took over Whitewood s SFO business Also there
is no evidence that during the month immediately before
Lucky s takeover that Whitewood s owner and supervi
sors did not as they had done in the past supervise and
control the employees terms and conditions of employ
ment Under the circumstances, it would be impermissi
ble for me to draw the inference from Mayhew s 21 Oc
tober 1983 letter that Lim supervised and/or controlled
Whitewood's SFO janitors terms and conditions of em
ployment 29
Regarding Lim s 8 November 1983 notification to
Whitewood's employee Kelleher that he was discharged
the record reveals Lim was merely communicating a de
cision that was made during a conversation between
Whitewood s owner Yoon and Labor Relations Consult
World concerning his involvement in Lucky s labor relation policies es
pecially in view of White s testimony that the basis for this declaration
was Sony s statement to White that in matters concerning SFO oper
ations that [White] could talk with Gregory Choo for whatever informa
lion [White needed] to perform [his] services for World [referring to the
services connected with the representation election] for Whitewood and
for Lucky
29 As I have indicated supra there is a strong suggestion in the record
that in sending this letter Mayhew was merely confinng to Supervisor
Kim what Lim had already personally told Kim that in the near future
Lim s company Lucky would be replacing Whitewood as World s SFO
subcontractor In any event whatever the object in sending the letter it
is insufficient to establish that Lim acted as the manager of Whitewood s
employees
1183
ant White There is no evidence that Lim even partici
pated in this particular conversation
Regarding Lim s and Choo s involvement in the repre
sertation election there is no showing that Lucky by
this conduct exercised meaningful control over White
wood s labor relation policies There is no showing
Lucky s representation election related conduct meaning
fully affected matters associated with the employment re
lationship such as hiring, firing discipline, supervision, or
direction 30
Based on the foregoing, I find that the General Coun
sel has failed to prove that Lucky and Whitewood were
joint employers of Whitewood s SFO janitors
E The Alleged Independent Violations of Section
8(a)(1) of the Act
I The conduct attributed to Whitewood s Night
time Supervisor Jung
a The evidence
Tai Sun Jung Whitewood s nighttime supervisor at
SFO, is admittedly a supervisor within the meaning of
Section 2(11) of the Act and Whitewood s agent
It is undisputed that after Local 87 filed its representa
tion petition, that Supervisor Jung asked employees Jung
Je Py, Chi Ho Rho and Hyung Bok Seo if they had
signed a union card He spoke to the employees separate
ly in their working areas while they were either at work
or preparing to go to work, and he was the one who
brought up the subject of the Union Each of the em
ployees had previously signed a Local 87 card, however,
there is insufficient evidence to determine whether any
one of the employees at the time were openly and pub
licly supporting Local 87 s organizational campaign
Late in October 1983 Jung asked Py if he had signed
a union card 31 When Py remained silent Jung respond
ed by making a face and stating Py disappointed him Py
remarked that he believed the employees should support
union representation
Late in September 1983 Jung asked Rho if he had
signed the union card Rho remained silent Jung repeat
ed the question, whereupon Rho answered, Yes Jung
responded by stating that it did not make any difference
whether Rho signed the card but that Rho would have
been better off if he had not signed it
°° Lim in speaking to employees attempted to persuade them to vote
against Local 87 and engaged in several ministerial acts connected with
the election such as having Whitewood s election campaign statement
translated typed and distributed Choo also assisted in several different
respects connected with the election
31 One month after Py signed a Local 87 card and approximately 2 to
3 weeks after his interrogation by Supervisor Jung Py voluntarily in
formed Day Shift Supervisor Kim that he had signed a union card and
was assisting Local 87 s campaign to organize the employees I realize at
one point Py testified that he signed his Local 87 authorization card ap
proximately the first week of August 1983 and further testified he spoke
to Supervisor Kim about that card approximately I month after he signed
it Py however was mistaken about the date on which he signed his
Local 87 card which the record shows was not signed by Py until 20
September 1983 (Tr 635 L 12 to p 636 L 18) Accordingly Py s con
versation with Supervisor Kim about that card did not take place until on
or about I month after 20 September 1983
1184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Late in September 1983 Jung asked Seo if he signed
the union card When Seo responded by stating that he
had not signed the card Jung told him not to get in
volved in the union stuff and not to sign a union card
b Discussion and conclusions
The question presented is whether under all the cir
cumstances Supervisor Jung s interrogation of employee
Py Rho and Seo reasonably tends to restrain coerce or
interfere with rights guaranteed by the Act, thereby vio
lating Section 8(a)(1) of the Act I have not considered
this question because neither Respondents World or
Lucky are liable for Supervisor Jung s alleged unlawful
interrogation because as I have found supra neither one
was a joint employer of Whitewood s SFO employees
The General Counsel during the hearing entered into a
settlement agreement with Respondent Whitewood cov
ering Jung s alleged misconduct and does not seek a re
medial order in this proceeding covering that conduct I
have however set out the pertinent facts in case I erred
in finding that neither World or Lucky were joint em
ployers of Whitewood s SFO janitors
2 The conduct attributable to Lucky s owner Lim
a The evidence
Employee Jung Je Py testified that late September or
early October 1983 during the working hours at SFO he
had a conversation with Song Lim about the Union His
testimony follows
Ms Lim stated this Company is a Korean company
So the Koreans have the obligation to protect this
company And then I said about the Unions, if the
Union wins the company will close She did not use
the term election at that time but she implied it
She said, in the future the company will offer better
benefits and increase wages And she also said that
they can increase the work hours for those
who need more money After she said this I said
the Korean company should employ more Korean
employees
Py further testified Lim also stated that even if we do
the Union, we cannot get the benefits from doing that
She said that not our generation but the next generation
will get the benefits from that Song Lim s description
of this conversation differs sharply She testified in sub
stance that Py complained to her about working hard for
low wages and said that on account of this he had decid
ed to join Local 87, and that Lim responded by telling
Py it did not matter whether he joined the Union but his
primary responsibility was to do a good job and that
when Py stated he intended to vote for the Union she
shook hands with him and complimented him on his hon
esty I reject Lim s and credit Py s testimony because
Py s demeanor was good whereas Lim's was poor 32
32 The General Counsel contends that despite Py s testimony then I
said about the Unions if the Union wins the company will close that it
was Lim who made this statement In view of Py s testimony which im
mediately followed [s]he did not use the term election at that time but
she implied it an argument can be made that Py misspoke and that from
I am also persuaded when viewed in context that
Lim s above described conduct constituted an implied
promise that the company for whom Py worked would
increase the employees wages hours and employment
benefits if the employees did not support Local 87 s or
ganizing campaign and that the employees would not re
ceive these improved conditions of employment if they
support that union
Employee Hyung Bok Seo testified that on or about
10 October 1983 while at work Supervisor Kim told
him Lim wanted to speak to him and took Seo to where
Song Lim was seated Seo further testified Lim told him
if the company was unionized the company would lose
its contract and as a result the employees would lose
their jobs and this would not do the Korean employees
any good Lim explained that the Company would lose
its contract because it had underbid the contract and the
nature of its contract with American Airlines was like
that Seo testified that when he replied by indicating the
employees needed a union because they did not receive
paid medical treatment for their on the job injuries Lim
stated Seo seemed to be a little bit radical and disputed
his contention the Company was not paying the employ
ees medical treatment for on the job injuries Lim testi
fled that she did not know and did not remember what
was stated during this conversation However she
denied stating if Whitewood became union it would lose
the contract and further testified that when Seo coin
plained that the Company lacked workers compensation
coverage for the employees, she indicated to him she did
not feel this was true I have credited Seo s description
of the conversation because when they testified about
this matter Seo s demeanor was good and Lim s was
poor
In the last week of October 1983 it is undisputed that
Song Lim spoke to employees Hyung Bok Seo and Chi
Ho Rho during their working hours in the vicinity of the
American Airlines janitors room Seo and Rho testified
about this conversation and a composite of their testimo
ny that is mutually consistent in significant respects fol
lows Lim told them that if they did not vote for the
Union in the scheduled representation election they
would be granted better employment benefits including
insurance and wages Rho indicated that he did not think
it was legal for Lim to make such a statement and he
indicated he did not believe her promise of better bene
fits and stated in his opinion the union offered the em
ployees better benefits Lim s description of this conver
sation is as follows She testified initially that she indicat
ed to Seo and Rho she felt they were not working hard
but were talking instead of working and in the same
breath assured them when a new company takes over
you will get a raise in salary as well as better benefits
She later testified I may have said that if Rho and Seo
voted no in the representation election they would re
ceive higher wages and benefits When questioned fur
ther about what she stated on this subject Lim testified
the context of his testimony it appears he was referring to what Song
Lim was saying Nonetheless in view of the ambiguity the General
Counsel has failed to prove that it was Lim not Py who stated If the
Union wins the company will close
WHITEWOOD MAINTENANCE CO 1185
she told the two employees, don t make so much com
motion, or a lot of noise and if you vote no, we 11
raise your salary and you will get benefits, and in reply
Rho stated it was wrong for her to talk about wages and
benefits 33
In short it is undisputed that Lim told employees Rho
and Seo that if they voted against union representation in
the scheduled representation election, they would re
ceive improved benefits of employment including wages
Insofar as Lim testified that she advised the employees
this increase was also conditioned on their working in
stead of talking, I have rejected Lim s testimony because
when she testified about this conversation her testimonial
demeanor was poor
In his prehearing affidavit employee Woo Young Jhun
who during the time material had publicly expressed his
opposition to unionization, states that on approximately
five or six occasions before the 10 November 1983 repre
sentation election Song Ae Lim talked to him about the
election and asked him to do whatever he could to help
the company win the election and on approximately
two occasions shortly before the election Lim also told
him the company would have to close down if the
Union won the election '34 No one else besides himself
and Lim were present during these conversations
Song Lim testified that she spoke to Jhun at SFO ap
proximately 7-10 days before the 10 November 1983
election and that Jhun brought up the subject of the
Unions by stating he thought employers should never be
unionized and that he was on the side of the Company
because the Company had to exist first so Jhun could
exist According to Lim she replied by nodding that she
agreed with his sentiments and ended the conversation
by telling him keep up the good work or words to
that effect Lim specifically denied she told him
Whitewood would have to close down if the Union won
the election
I have rejected Lim s denial and credited the statement
contained in Jhun s affidavit that Lim shortly before the
election on two occasions told him `the company would
have to close down if the Union won the election In
reaching this conclusion I have considered that when
viewed in the context of the whole record the statement
in Jhun s affidavit is not inherently implausible and more
significantly it is consistent with employee Seo s testimo
ny that prior to the election Lim told Seo if the Compa
ny was unionized the Company would lose its contract
and the employees would lose their jobs
33 Lim testified that the reason she told Rho and Seo they would re
ceive higher wages and benefits was that when she took over
Whitewood s SFO business the employees wages would be raised to
$5 25 from $4 50 an hour pursuant to the terms of her contract with
Local 77 Lim was unable to explain why she did not tell the employees
that regardless of whether they voted for or against Local 87 in the rep
resentation election they would receive a pay raise
34 Jhun on the dates of the hearing in this case was bedridden he was
suffering from a terminal illness and because of this was unavailable to
testify Previously on 29 April 1984 during the investigatory stages of
this proceeding he submitted a sworn affidavit to the Board s General
Counsel This affidavit was admitted into evidence without objection pur
suant to Rule 804 of the Federal Rules of Evidence All the parties to
this proceeding agreed that under the circumstances it is appropriate for
me to consider everything contained in the affidavit
Employee Albert Kelleher testified that late September
or early October 1983 when Song Lim first approached
him while he was working at SFO, she asked him about
his work and during the ensuing conversation told him
the employees should forget the Union because the em
ployees were Korean and Koreans should stick together
and stated we'll give you the benefits Lim did not
deny speaking to Kelleher about Koreans sticking to
gether, but she denies she spoke to him about the Union
or told him to forget about the Union or that he would
get more benefits if he voted against the Union
Neither Kelleher nor Lim when they testified about
this matter impressed me demeanor wise as being very
reliable witnesses Also in Kelleher s case the affidavit
he submitted to the Board concerning this disputed con
versation merely states Lim talked to him about Koreans
sticking together and helping each other His affidavit
omits the most significant portions of this conversation
Kelleher s explanation that he simply forgot to tell the
Board agent these significant matters was not given in a
convincing matter and does not ring true Under the cir
cumstances I have rejected Kelleher s above described
testimony
b Discussion and conclusions
As I have found supra, when Lim visited SFO and
spoke to Whitewood s employees during working hours
in October and November 1983 prior to the 10 Novem
ber election in an effort to persuade them not to support
Local 87 s organizational campaign Lim was acting in
anticipation of her own company Lucky replacing
Whitewood in the near future as World s subcontractor
Lim had prematurely entered into a collective bargaining
contract with Local 77 Local 77 s standard janitorial
contract in anticipation of doing business at the SFO air
port Local 87 s standard janitorial collective bargaining
contract contains more costly terms and conditions of
employment than Local 77 s contract which presumably
accounts for Lim s efforts to persuade the employees not
to support Local 87 s organizational campaign by prom
ising employee Py better wages hours and employment
benefits if the employees did not support Local 87 by
warning employee Seo that if the Company was union
ized it would lose its contract and the employees would
lose their jobs 35 by promising employees Seo and Rho
that if they did not vote for Local 87 they would be
granted better benefits of employment, and by warning
employee Jhun that the Company would have to close
down if Local 87 won the election
Respondent Lucky urges that Lim s above described
promises of benefits and threats of reprisal are not attrib
utable to Lucky because when Lim expressed them to
the employees, Lucky was not in operation and thus was
as Lim explained to Seo that the reason the Company would lose its
contract was it had underbid the contract and that the janitorial contract
with American Airlines was like that No evidence was offered to sup
port these assertions Quite the opposite witnesses for World and
Whitewood testified the reason Whitewood lost its SFO subcontract with
World was not because of financial problems but due to the fact World
terminated its subcontract with Whitewood because of customers com
plaints
1186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
not an employer under the Act I disagree It is plain
that when Lim made her remarks to the employees that
Lucky, while not in actual operation, was already in ex
istence and that Lim, based on her understanding with
World s owner Sony, expected to replace Whitewood as
World s SFO subcontractor in the immediate future So
when Lim attempted to dissuade Whitewood s employ
ees from supporting Local 87, she was engaging in this
conduct for her own benefit, her desire to have a collec
tive bargaining relationship with Local 77, rather than
with Local 87 Under the circumstances, Lim s above de
scribed promises and threats made to employees Py,
Rho, Seo and Jhun, are attnbutable to Respondent
Lucky The more difficult issue is whether these prom
ises and threats can reasonably be found to have a tend
ency to restrain or coerce the employees from support
ing Local 87 s organizational campaign, even though
none of the employees involved had any knowledge
about Lim s relationship with Lucky or that Lim would
be their new employer in the near future I need not
decide this question because each of the employees to
whom Lim expressed her promises and threats were em
ployed by Lim on 17 November 1983 at which time they
learned that Lim was Lucky s owner and that she had
the authority to carry out the threats and promises she
previously had made to them Lim did not repudiate
these threats or promises Under these circumstances, I
find that Lim s above described threats and promises
made to employees Py Seo Rho and Jhun reasonably
tended to restrain or coerce these employees from sup
porting Local 87 I therefore find that Respondent
Lucky violated Section 8(a)(1) of the Act by promising
employee Py better wages hours and employment bene
fits if the employees did not support Local 87 by warn
ing employee Seo that if the Company was unionized it
would lose its contract and the employees would lose
their jobs by promising employees Seo and Rho that if
they did not vote for Local 87 they would be granted
better benefits of employment and by warning employee
Jhun that the Company would have to close down if
Local 87 won the election 36
36 I have not decided whether Lim was acting as Whitewood s agent
when she engaged in this conduct because as noted previously the Gener
al Counsel entered into a settlement agreement covering Whitewood s al
leged violations of Sec 8 (a)(1) and (3) of the Act and is not requesting a
remedial order in this proceeding to cover those alleged violations Re
garding Worlds responsibility for Lim s conduct as I have indicated
supra there is evidence that Sony authorized Lim to assist World in con
nection with the handling of the representation election case The ques
tion of whether Lim was acting within the general scope of this limited
agency authority when she made the threats and promises of benefits to
the employees to dissuade them from supporting Local 87 is a close one
but on balance I am not persuaded the General Counsel has established
that she was acting within the general scope of that agency authority
when she engaged in this conduct or that her agency authority was not
so limited Moreover Lim s threats and promises were not made under
circumstances leading employees reasonably to believe they reflected
World s policy rather than Lim s sentiments
F The Alleged Violations of Section 8(a)(3) and (1) of
the Act37
1 Miscellany
The complaint alleges in substance that when Re
spondent World terminated its subcontract with
Whitewood covering the airlines SFO janitorial work
and entered into a subcontract with Lucky covering this
work, World violated Section 8(a)(3) and (1) because by
engaging in this conduct World was motivated by the
Whitewood employees support of Local 87 These alle
gations are without merit and I shall recommend their
dismissal because World, as I have found supra was not
a joint employer of the SFO janitors with either
Whitewood or Lucky Therefore, even assuming that in
changing subcontractors World was motivated by hostile
ty toward Local 87 s organizing efforts,38 this type of
conduct did not violate the Act because an employer
does not discriminate against employees within the mean
ing of Section 8(a)(3) by ceasing to do business with an
other employer because of union or nonunion activity of
the latter s employees ' Plumbers Local 47 (Malbaff
Landscape), 172 NLRB 128, 129 (1968) 39
The complaint alleges in substance that when Lucky
took over Whitewood s SFO janitorial business Lucky
violated Section 8(a)(3) and (1) of the Act oy changing
the employees terms and conditions of employment be
cause they supported Local 87 and to discourage them
from supporting Local 87
The record shows that when Lucky took over
Whitewood s SFO business on 17 November 1983 it re
tamed all of Whitewood s janitors who desired to contin
ue in its employ but made some changes in the employ
ees terms and conditions of employment namely, it im
mediately instituted rules and regulations of personal
conduct that included a system of progressive discipline
and on 28 November 1983 changed the night shift s work
schedule and effective 1 December 1983 Lucky institut
ed all the benefits of employment contained in its con
tract with Local 77 including a raise in pay from $4 50 to
$5 25 an hour
The sole argument advanced in the General Counsel s
posthearing brief in support of the allegation that the
above described changes in employees terms and condi
tions of employment was discriminatorily motivated is
based on the contention World was a joint employer of
Whitewood s and Lucky's SFO janitors and that since
World s change of subcontractors from Whitewood to
Lucky was discriminatorily motivated it follows that
37 Since I have found supra that Respondents Whitewood and World
were not joint employers of Lucky s SFO,janitors I shall recommend the
dismissal of the several complaint allegations that Respondents World
and Whitewood violated Sec 8(a)(3) and (1) of the Act by discriminating
against Lucky s employees
38 In view of my conclusion that World was not a joint employer I
have not considered whether World switched subcontractors because of
union considerations
39 The complaint does not allege and the record does not establish that
World directed instructed or ordered either Whitewood or Lucky to
discharge or otherwise affect the working conditions of their employees
because of their union activities thus Dews Construction Corp 231 NLRB
182 fn 4 (1977) and the cases cited are inapposite
WHITEWOOD MAINTENANCE CO 1187
Lucky s change in the employees terms and conditions
of employment likewise was discriminatorily motivated
Howver, since I have found that World was neither
Whitewood s nor Lucky's joint employer, I have not
considered that argument When Lucky s conduct of
changing the employees terms and conditions of em
ployment is viewed in the context of its status as the sole
employer of those employees, I am persuaded the Gener
al Counsel has failed to establish a prima facie showing
of illegal motivation
Although Respondent Lucky s owner Lim was ex
tremely hostile toward Local 87's effort to organize
Lucky s employees, as is evidenced by her conduct
which I have found to have violated the Act, there are
no other considerations present from which to infer that
Lim was motivated by this hostility when she changed
the employees terms and conditions of employment The
timing and the context of the changes when scrutinized
do not support an inference of illegal motivation Quite
the opposite, the timing and content of the changes indi
cate they were dictated by legitimate business consider
ations Thus, when an employer such as Lucky that was
never in business previously, takes over some other em
ployer s business, it is customary for the new employer
to rearrange the employees working hours and work
schedules and to establish a set of rules and regulations
to govern the employees' conduct especially where as
here the predecessor employer did not have any rules or
regulations With respect to the increase in the employ
ees wages and benefits which were implemented to
comply with the terms of Lucky s contract with Local
77, it is apparent these employment benefits would have
been granted regardless of Local 87 s organizational ac
tivity, inasmuch as the record reveals that Lucky s col
lective bargaining and contractual relationship with
Local 77 antedated Local 87 s appearance on the scene
Based on the foregoing, I find the General Counsel has
not established that Lucky violated Section 8(a)(3) and
(1), as alleged in the complaint by changing the employ
ees terms and conditions of employment when it took
o,,er Whitewood s SFO business
2 The discharge of Jung Je Py
a The evidence
Jung Je Py began work on 10 March 1983 for
Whitewood at SFO as a janitor Like the vast majority
of Whitewood s SFO employees, he was a Korean who
had recently immigrated to the United States and for
this reason his knowledge of the English language was
very limited Py continued to work for Lucky when that
Company on 17 November 1983 took over Whitewood s
SFO business
Py, who voted in the 10 November representation
election, openly and actively supported Local 87's orga
nizational campaign On at least one occasion prior to
the election Py was with Local 87's representatives
Leung and Sung at SFO when Lucky s owner Song Ae
Lim, came over and spoke to them After the election,
Lim learned from employee Jhun that Py was telling em
ployees that because Local 87 had won the election, the
employees would get $8 an hour plus additional benefits
On 21 November 1983, when Py asked Lim to provide
him with a Korean translation of the Company s rules
and regulations , according to Lim s testimony, Lim
asked why Py did not ask the Local 87 people to trans
late the rules All of these circumstances plus the fact
that Gregory Choo, an admitted agent of Lucky and
Lucky s Day Shift Supervisor Kim an admitted statuto
ry supervisor knew that Py was an adherent of Local
87, warrant the inference that Lucky's owner Song Lim
likewise knew Py was a Local 87 adherent
On 17 November 1983, when Respondent Lucky took
over Whitewood s SFO business, Lucky s owner Song
Lim and Gregory Choo, her advisor, met with the first
and second shift employees who were scheduled to work
that day and told them Lucky was now their employer
During the meeting that lasted about 2 hours the em
ployees were given two copies of a 3 page document en
titled, Rules and Regulations of Personal Conduct
which sets out 31 different acts of misconduct and pro
vided for immediate discharge in the case of 10 of the
offenses and for the issuance of written disciplinary
warnings in the case of the other 21 offenses, and for dis
charge if employees committed a similar offense after re
ceiving one or two disciplinary warnings A preamble to
the rules and regulations explained why the Company
was instituting them The final page contains a space for
an employee s name and signature with the declaration
that the employee had received a copy of the rules and
regulations , agreed to abide by them and understood
that any employment is at will and for no definite period
subject to termination with or without just cause The
employees were instructed to sign a copy of these rules
of regulations and return it to Lim within a week The
rules and regulations were printed in English Because
virtually all the employees were Korean with only a
limited understanding of English, they were unable to
read and make sense of the rules and regulations
Choo and Lim testified that during the meeting, Choo
verbally translated the rules and regulations into Korean
and translated them in their entirety line by line Py testi
feed that Choo gave a rough translation of just ap
proximately one third of the rules The only other evi
dence concerning this meeting is the affidavit of employ
ee Jhun which as described supra was placed into evi
dence without objection because he was unavailable to
testify in this proceeding within the meaning of the Fed
eral Rules of Evidence Jhun s affidavit states that Choo
translated the rules into Korean and further states that
Jhun thereafter refused to sign the rules , because he did
not trust Choo's translation for it was a verbal transla
tion I am persuaded if Choo, as Py testified had only
roughly translated approximately one third of the rules
and regulations that Jhun would have stated this in his
affidavit in justifying his refusal to sign the rules Under
the circumstances even though I am not persuaded
Choo translated the rules line by line,40 I am convinced
40 I note Choo s and Lim s testimonial demeanor was not good when
they testified about the manner in which Choo translated the rules How
ever Py s demeanor was just as bad when he testified on this subject
1188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Py s testimony was an exaggeration and Choo translated
the rules in their entirety to the employees albeit not in
the precise manner that he claims to have translated
them
Choo also testified that as he translated the rules em
ployees Py and Jhun asked questions about them He tes
tified Py asked numerous questions, including why the
Company needed the rules, asked what certain rules
meant, how they would apply, and in particular ques
tioned Choo about each one of the 10 rules which pro
vided for immediate discharge 4 i Regarding employee
Jhun s questions Choo testified that Jhun stated he did
not like the rules and asked several questions about the
rules which Choo testified he was unable to remember
Lim testified in effect that only one employee Py ques
tioned Choo about the rules 42 that Py asked several
questions about the rules and asked why it was necessary
to have them In a letter dated 11 December 1983 that
she sent to Labor Relations Consulant White Lim in de
scribing what took place during the 17 November meet
ing, stated, among other things that
Lucky Service Company also gave the employees a
copy of the rules for one week to allow them to
study and discuss them with anyone, before they
were asked [to] sign them At the meeting the em
ployees were allowed to ask questions and said they
had none
Py testified that he only asked two questions at this
meeting not one of which pertained to the rules he
asked about the employees ID badges and about the
status of the 10 November 1983 representation election
I find Py contrary to Choo s and Lim s testimony did
not question Choo about the rules Choo s and Lim s tes
timonal demeanor was poor whereas Py s was good
when he testified about this portion of the meeting Also
less than 1 month after the meeting Lim advised Labor
Relations Consultant White that none of the employees
questioned Choo about the rules during the meeting I
also find that Jhun contrary to Choo s testimony did
not question Choo about the rules Choo s testimonal de
meanor was poor when he testified about this subject
Lim contradicted Choo s testimony in this respect in
both her testimony given at the hearing and in her 11
December 1983 letter to Labor Relations Consultant
White
In summation , on 17 November 1983 when Lucky
commenced operations at SFO, its instituted a written
warning and progressive disciplinary system for 21
named offenses and a system of immediate discharge for
41 When the General Counsel on cross examination attempted to test
Choo s memory concerning Py s questions Choo refused to answer coun
sel s questions he suggested that because the topic had already been cov
ered counsel go on to another topic and when the General Counsel con
tinued to press Choo for an answer he declared I think we re just wast
mg time Eventually he testified that Py asked so many different ques
tions he was unable to remember them all
42 Lim at one point also testified that employee James Kelleher asked
questions but it is plain from her entire testimony that Kelleher who un
derstood English did not ask any questions and on reading the rules ex
pressed his dissatisfaction with them and abruptly left the meeting stating
he did not intend to work under such rules
10 other more serious offenses Two copies of these rules
and regulations were distributed to the day and swing
shift employees scheduled to work that day The rules
and regulations which were printed in English, were
verbally translated on 17 November by Choo to the em
ployees who were instructed to return a signed copy to
Lim
Employees Py and Jhun were both employed at SFO
by Whitewood and then by Lucky on the day shift and
commuted to and from work together Jhun like Py is
Korean with only a limited understanding of the English
language On their way home on 17 November after
having received the rules and regulations they discussed
whether they should sign them Jhun asked what Py in
tended to do about the rules and regulations and whether
Py felt that the only way they could prevent the Compa
ny from using the rules as a trick to fire them would be
to ask the Company to furnish a Korean translation of
them and not for anything that violated the rules Jhun
stated he agreed with Py and told Py it was apparently
important for people in the United States to sign things
and stated that they should ask Song Lim to furnish the
employees with a Korean translation of the rules and
regulations 43
On 21 November 1983, while Py was working Lim
came to him and asked that he stop work and accompa
ny her to the PSA lunchroom They went to the lunch
room and talked Lim asked Py to sign the rules and reg
ulations Py told her that he was unable to sign them at
that time because he had been in the United States only
10 months and would not have been working as a janitor
if he understood the type of English used in the rules
and regulations He stated if Lim translated the rules and
regulations into Korean, he could then understand them
thoroughly and would sign the translated rules Lim re
plied by stating that she would give Py one more day to
sign the rules and regulations She suggested he ask one
of his relatives for help in translating them Py told her
he was unable to have his sister translate the translating
rules he could not get to his sisters home because he
did not have an automobile but repeated that if Lim fur
nished him with a Korean translation he would be will
ing to sign the translation This ended the conversa
tion 44
43 The description of Py s conversation with Jhun about the rules and
regulations is based on Py s testimony Py s demeanor was good when he
testified about this conversation
44 The description of this conversation is based on Py s testimony Lim
testified that the conversation took place at the PSA boarding area She
testified that Local 87 Representative Sung was seated there with four of
his friends who he had previously told Lim they were college students
Lim further testified that when Py told her he would sign the rules and
regulations if Lim furnished him with a Korean translation that Lim
asked why if Py needed a Korean translation he did not ask his
friends referring to Local 87 Representative Sung and the people sit
ting with Sung to translate the rules for him I have rejected Lim s testi
mony because her testimonal demeanor was poor whereas Py s was
good Moreover I note that when Lim earlier in her testimony desrcibed
the 21 November 1983 conversation with Py which allegedly occurred
at the PSA boarding area where Local 87 s representative Sung was sup
posedly seated Lim sigmficantlly made no mention of any conversation
between herself and Py concerning the signing of the Company s rules
and regulations (Tr 1819-1821 )
WHITEWOOD MAINTENANCE CO 1189
On 22 November, when Py arrived at work that
morning , Lim asked him for a signed copy of the Com
pany s rules and regulations Py told her that he had
been unable to go to his sister s to have the rules translat
ed because he did not have an automobile and stated if
Lim gave him a Korean translation he would read it and
sign it Lim replied by stating to Py in effect he was dis
charged 45
Immediately after his termination on 22 November, Py
telephoned Local 87 s office and informed Local 87 s
representative Sung about his termination Py arranged
to meet with Sung early that afternoon at SFO In the
meantime as discussed infra , employee Jhun had also
been terminated by Song Lim for refusing to sign the
Company s rules and regulations So, at approximately 1
p in on 22 November Py and Jhun met Local 87 Repre
sentatives Leung and Sung at SFO After failing to
locate Song Lim, the four of them went to the SFO
office of Union Maintenance Company another janitorial
company, where Song Lim s younger brother, Jae Lim
worked as Union Maintenances SFO operations manag
er Jae Lim had assisted his sister financially in starting
Respondent Lucky by loaning her $2000 and at the time
was employed by Lucky after 5 p in as a working super
visor, when his workday ended for Union Maintenance
Local 877 Representatives Sung and Leung introduced
themselves to Jae Lim, and they complained about his
sister having terminated employees Py and Jhun They
told Jae Lim that they did not think it was fair for his
sister to have terminated the employees for not signing
something which they did not understand and they
asked that the Company s rules and regulations be trans
lated into Korean , and Jhun and Py be rehired Jae Lim
stated that Py and Jhun should return to work and
Lucky would try to provide a Korean translation of the
rules and regulations as soon as possible 46
On 22 November Py after speaking with Jae Lim re
turned to work and was at work for about one half hour
when Song Lim observed him and asked what he was
doing here Py told her that Local 87 representatives
Leung and Sung had talked to her younger brother who
had told him to return to work Lim questioned the right
of her brother to interfere with her business called her
brother a bastard and threatened to break his head
Song Lim then stated Py this is my position would
you think about this? She proposed to Py that he take a
weeks vacation from work and at the end of the week
fill out another employment application form and begin
45 The description of this conversation is based on Py s testimony Lim
testified that when she asked Py for a signed copy of the Company s
rules and regulations Py simply told her he did not have one and Lim in
effect stated that he was terminated I have credited Py s and rejected
Lim s testimony because Py s testimonial demeanor was good whereas
Lim s was poor
46 What occurred in Jae Lim s office on 22 November is based on
Sung s and Leung s testimony Jae Lim testified Leung talked about
Lucky s rules and regulations and stated he wished they were translated
into Korean and in response Jae Lim stated he would ask his sister to
translate the rules Jae Lim further testified that as Py Leung and Sung
left the office that he overheard Leung state Go back to work Jae
Lim did not specifically deny stating at this meeting the employees
should return to work I have credited Sung s and Leung s testimony be
cause their testimonial demeanor was good whereas Jae Lim s was poor
work for the Company as a new employee 47 Py replied
he would think about the offer The conversation ended
with Py asking whether he was still fired Song Lim an
swered in the affirmative 48
Later on 22 November, while Py was sitting in an
SFO cafeteria Song Lim approached him and asked
whether Jae Lim had really told him to return to work
When Py answered yes, she stated she would check
into the matter She shortly thereafter returned with her
brother who denied having told Py to return to work 49
During the afternoon of 22 November, Jae Lim in
formed Song Lim that Local 87 Business Representatives
Leung and Sung had asked that the rules and regulations
be translated for the employees into Korean and that he
Jae Lim told them that Song Lim would make such a
translation Song Lim responded by informing Jae Lim
they should try to have the rules and regulations translat
ed immediately 50 Later that afternoon or evening Song
Lim asked Gregory Choo to prepare such a translation,
and that night Gregory Choo asked his wife Juliet
Choo, to do this J Choo worked later into the night
preparing the Korean translation which the next day 23
November, was photocopied and distributed to employ
ees who wanted a Korean translation and posted on a
company bulletin board 51
On 23 November 1983, Song Lim signed a Termina
tion of Employment slip which stated that Py was dis
charged on 22 November 1983 gave three reasons for
his discharge as follows (1) Refused to sign Company
Rules and Regulations of Personnel Conduct (2)
Insult with bad words to President in front of employees
and willful disobedience and insubordination (3) He
challenged hiring policy He insisted to hire only Korean
nationals Early in December 1983 Py received a copy
of this terminal slip in the mail
41 Lim testified that her intent was that this would be an unpaid vaca
tion
48 The description of Song Lim s conversation with Py s is based on
Py s testimony Lim testified she told Py to take a week s vacation and
return to work with a new mood and new spirit and that Py stated he
would think about it Lim also testified that during this conversation Py
stated he could not sign the rules and regulations because of his commit
ment to the Union I have credited Py s and rejected Lim s testimony
beause Py s testimonial demeanor was good whereas Lim s was poor
4e Based on Py s undenied testimony
so Based on Jae Lim s testimony
51 Juliet Choo a native of Korea has been in the United States for 20
years and holds a degree from an American University When her bus
band asked her to translate the rules and regulations she questioned her
ability to make an accurate translation because her English was not good
and suggested to her husband he use a professional translator but her
husband replied he did not have time to do that A comparison be
tween J Choo s translation and the English version of the rules and regu
lations reveals a large number of differences some of them substantive
One of the differences is that section 7 of the rules and regulations pro
vides in substance that a copy of warnings issued to employees shall be
given to the Steward and the Union whereas the Korean translation
stated relevant institutions will be notified about employees warnings
The General Counsel apparently contends this change was made for
some devious reason I disagree J Choo testified in effect that her use of
the phrase relevant institutions instead of Steward and Union was
like the rest of her translation based on her own personal feelings as to
how the rules and regulations should be translated and had nothing to do
with any knowledge she may have had concerning problems that were
occurring at SFO Lim s testimonial demeanor was good when she testi
fled about her translation of the rules and regulations
1190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
b Discussion and conclusions
The General Counsel has failed to establish that Py s
Local 87 sympathies and activities were a motivating
factor in Lim s decision to discharge him Moreover,
even if the General Counsel has established this, Re
spondent Lucky has proven that Lim would have dis
charged Py even in the absence of his Local 87 activities
and sympathies These findings are based on the follow
ing reasons
Song Lim s hostility toward Local 87 s efforts to orga
nize the employees and her knowledge that Py was a
Local 87 adherent is not sufficient by itself to establish
Py's discharge was motivated by Lim s Local 87 animus
and there are insufficient additional circumstances to
infer illegal discrimination The timing of the discharge is
not particularly significant because even though it oc
curred shortly after Song Lim assumed Whitewood s
SFO janitorial business , when Lim took over the bust
ness she hired all of Whitewood's SFO employees, in
cluding those, like Py, whom she knew were Local 87
adherents Also the reason for Py s discharge, when
closely scrutinized, does not warrant an inference of ille
gal discrimination The misconduct that resulted in Py s
discharge, his refusal to obey Lim s order to sign the
Company s rules and regulations was an act of insubor
dination for which the Company s rules and regulations
stated he was to be immediately discharged 52 There is
no evidence of disparate treatment or that Lim treated
employees more leniently who, under circumstances
similar to Py s refused to sign the rules and regula
tions 53 I recognize that Py s termination slip, and the
statement of position submitted on Song Lim s behalf to
the Board s Regional Office during the investigatory
stage of this case, state that Py was discharged not just
for refusing to sign the Company s rules and regulations,
but for other reasons that were not relied on by Lim
when she testified and that have no support in the
record 54 Nonetheless the fact that in justifying Py s dis
52 Lim s order that Py sign the English rules and regulations was rea
sonable inasmuch as previously Gregory Choo at the 17 November em
ployee meeting verbally translated the rules and regulations and gave the
employees including Py an opportunity to ask questions about the rules
Thereafter Py was given 5 days to consult with others about the meaning
of the rules before being asked to sign them
53 The record reveals that in the case of employees such as Seo who
were not present at the 17 November employee meeting where the rules
were verbally translated that when those employees refused to sign the
rules because they did not understand them Song Lim provided a
Korean translation of the rules Py however attended the 17 November
meeting
54 Song Lim testified that her only reason for discharging Py was she
believed that he really did not need a Korean translation of the Compa
ny s rules and regulations but was just trying to casue her trouble by re
fusing to sign them However the termination slip which Lim sent to Py
and the reasons justifying the discharge which were transmitted to the
Board during the investigation of this case state that Py was discharged
for not only refusing to sign the rules and regulations but also because he
insisted that the Company hire only Korean nationals and insulted Lim
by using bad words and offensive and abusive language when speaking
to her in front of employees There is no evidence that Py used bad
words or abusive or offensive language when speaking to Lim Regard
ing the contention that Py insisted the Company hire only Korean nation
als assuming for the sake of argument Py engaged in this conduct it is
clear that Lim did not view this as employee misconduct For when em
ployee Kim Kyun Yil resigned from his employment on 23 November
1983 Lim wrote on his termination slip he was eligible for rehire even
charge Lim exaggerated the reason for the discharge is
not sufficient under the circumstances, to warrant the in
ference of illegal motivation Moreover immediately
after discharging Py for refusing to sign the Company s
rules and regulations Lim offered to reinstate Py as a
new employee after a 1 week suspension without pay
This is not the conduct of an employer intent on finding
a pretextual reason to rid itself of an employee for an it
legal reason It is for all of these reasons that I find the
General Counsel has failed to prove Song Lim s Local
87 animus was a motivating factor in her decision to dis
charge Py
In any event , assuming the General Counsel has estab
lished that a motivating factor in Py s discharge was
Lim s Local 87 animus, I am persuaded Respondent
Lucky has established that, even absent Py s Local 87
sympathies and activities, Lim would have discharged
him when he refused to obey her order to sign the Com
pany s rules and regulations Py s misconduct constituted
insubordination which under the Company s rules and
regulations was ground for immediate discharge, and
there is no evidence of disparate treatment or that Lim
has condoned this conduct or conduct of a comparable
nature It is for these reasons I conclude Py s insubordi
nation caused his discharge and would have done so
even in the absence of his Local 87 sympathies and ac
tivities
The General Counsel in the alternative urges the
record establishes Py s discharge was motivated by Song
Lim s hostility toward him because of his protected con
certed activity In support of this contention the General
Counsel relies on a statement in Liin s 4 April 1984 pre
hearing affidavit, which she repudiated at the hearing
and a statement included in a 11 December 1983 letter
she wrote to Labor Relations Consultant White The affi
davit states in pertinent part that Lim believed employ
ees Py and Jhun had entered into a compact not to
sign the Company s rules and regulations and this belief
was based on the fact everyone other than Py and Jhun
signed the rules Lim s letter to Labor Relations Consult
ant White among other things complains about several
alleged acts of harassment committed by employees on
behalf of Local 87 which Lim informed White included,
Py organized an opposition to sign the company
rules This evidence does not expressly or by implica
tion constitute an admission that Lim discharged Py for
these reasons Viewed most favorably to the General
Counsel it establishes when viewed in the light of the
whole record that Lim believed Py had entered into an
agreement with employee Jhun not to sign the Compa
ny s rules and regulations so long as they were in Eng
lish and that Py was attempting to persuade other em
ployees to enter into the same agreement and Lim
viewed Py s conduct with displeasure However, for the
same reasons I have pre,, iously relied on in this section
in rejecting the General Counsels contention Py was dis
charged because of his Local 87 sympathies and activi
ties I reject the General Counsei s contention he was
though he informed Lim he was resigning because he objected to the
Company s hiring policies and wanted the Company to hire only Korean
nationals (See R Exh 21 )
WHITEWOOD MAINTENANCE CO
discharged because of his above described concerted ac
tivlty 5s
Based on the foregoing I shall recommend the dismis
sal of the portion of the complaint alleging Py s dis
charge was illegal
3 The discharge of Woo Young Jhun
a The evidence
Jhun was employed by Whitewood as a janitor at SFO
and continued his employment there when Respondent
Lucky, on 17 November 1983 took over Respondent
Whitewood s SFO business He attended the 17 Novem
ber employee meeting where Lucky s owner Song Lim
introduced herself and where Lucky s rules and regula
tons were handed out to the employees with instructions
to sign a copy and return the signed copy to Lim within
a week Because the rules and regulations were printed
in English and most of the employees were Koreans with
a limited understanding of English, Lim s advisor Greg
ory Choo verbally translated the rules and regulations
Jhun is one of the employees whose native language is
Korean, thus he was unable to read the rules and regula
tions As I have found supra, Jhun and employee Py on
their 17 November commute home from work agreed
that because of their inability to read the rules and regu
lations in English that they would not sign the English
copies distributed to them by Lim, but would only sign a
translated copy
It is undisputed that on the morning of 22 November
1983, Lim asked Jhun, dust as she had asked Py earlier
that morning to sign the Company s rules and regula
tions and that like Py Jhun refused In dispute howev
er is Lim s response The pertinent evidence follows
Jhun s affidavit states that on 22 November 1983
while at work Lim asked him to sign a copy of the
Company s rules and regulations and gave him a copy to
sign that Jhun replied he could not sign unless he was
given a written Korean translation that Lim refused this
request and again asked him to sign the rules and regula
tions, and when Jhun continued to insist on being given
a Korean translation to sign that Lim told him she con
sidered his refusal as meaning that he was no longer in
terested in working for her and stated he could leave
work right then or work for the rest of the day 56 When
Jhun according to his affidavit chose to cease work im
mediately Lim told him he did not need to come to
work the next day Jhun s affidavit also states that on
about 23 November Lim telephoned him at home and
ss In view of my conclusion that the record does not establish that Py
was discharged because of his concerted activity I have not decided
whether Py s agreement with employee Jhun constitutes protected con
certed activity However as discussed later in connection with my eval
nation of Lim s reasons for discharging employee Jhun I am extremely
doubtful that it is the type of concerted activity which is protected by
Sec 7 of the Act
58 As discussed supra Jhun s affidavit was admitted into evidence
without objection because all parties agreed that Juhn was unavailable to
testify within the meaning of the Federal Rules of Evidence The affida
vit dates this conversation as occurring 23 November but it is clear from
the whole record that it occurred 22 November Although Lim initially
testified that it occurred 23 November after her memory was refreshed
she acknowledged it occurred 22 November
1191
stated, lets make it a one week unpaid vacation and
come back to work after one week, 57 but that Jhun did
not return to work at the end of 1 week because he felt
that Lim was playing games with [him] and he did not
trust her
Shortly after his last day of employment, Jhun re
ceived a termination slip from Lim dated 22 November
1983 that stated that he resigned from his employment
and in the space entitled State in Detail the Reason for
Termination the following comments were written
Refused to sign the company rules and regulations
He resigned', He challenged co hiring policy-He
insist to hire only Korean nationals The termination
slip is signed by Lim and in the space titled, To Be
Completed by Supervisor it is noted Jhun was not eligi
ble for rehire and at the bottom of the slip in the space
titled, Recorded by is Lim's signature with the date 23
November 1983
Lim s description of what took place on 22 and 23 No
vember differs considerably from Jhun's Lim testified
that when at approximately 11 a in on 22 November she
asked Jhun to sign the Company s rules and regulations
that Jhun stated he would not sign unless he was given a
Korean translation and when Lim repeated her request,
Jhun again refused to sign the rules and regulations Lim
testified that she responded by telling Jhun to do what
ever he wanted and that she left him at his work station
When asked whether she told Juhn that his refusal to
sign the Company's rules and regulations meant that he
no longer wanted to work for the Company, Lim in an
swering this question appeared uncertain She testified
I don t think I said things like that Lim further testi
fled that she telephoned Jhun at his home the next
evening 23 November and asked him to return to work
and that Jhun told her he did not want to work for a
woman whereupon Lim told him that she had made a
mistake58 and pleaded with him to return to work and
that she told him if he did not want to return to work
immediately why didn t he take a 2 week vacation and
then return to work Jhun according to Lim replied by
thanking Lim very much and admitting that he had also
made a mistake Lim testified this ended the conversa
tion It is undisputed that Jhun never did return to work
Regarding Jhun s termination slip Lim testified that it
was made out by Gregory Choo based on information
that Lim had given him Lim further testified that she
did not sign Jhun s termination slip until 25 November
and that the 23 November date was incorrect Lim did
not explain why she misdated the termination slip when
she affixed her signature to it Lim also testified that
Jhun s termination slip was incorrect insofar as it stated
Jhun was not eligible for rehire Lim was unable to ex
plain why the slip stated this
54 Although the affidavit states that this conversation occurred on or
about 24 November it is plain that because Jhun mistakenly dated the 22
November conversation as having occurred on 23 November this con
versation took place as Lim testified on 23 November
58 Lim testified that when she told Jhun she had made a mistake she
was referring to the fact that she had made Jhun who was older than
herself upset and this bothered her
1192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Lastly one of the affidavits submitted to the Board by
Lim prior to the hearing states in pertinent part I be
lieve that Py and Jhun had made a compact not to sign
the rules becuase everyone else signed the rules Lim
repudiated this portion of the affidavit she testified that
she did not remember the Board agent reading that por
tion to her before she signed it 59
I reject Lim s testimony and credit Jhun s description
of what occurred First, Lim s testimonial demeanor was
poor Second Jhun s version of what occurred is consist
ent with the probabilities of the situation Thus on 22
November, 2 hours before Jhun s refusal to sign the
Company s rules and regulations unless he was given a
Korean translation, when employee Py engaged in this
identical conduct, it is undisputed that Lim reacted to
Py s refusal by informing him that he was terminated and
shortly thereafter advised Py that he could take a 1 week
vacation and return to work as a new employee Jhun s
affidavit states in effect that Lim reacted to his refusal to
sign the Company s rules and regulations in exactly the
same way she reacted to Py s refusal Lim did not ex
plain why she allegedly treated Jhun s conduct different
ly than Py s even though their conduct was identical It
is for these reasons that I reject Lim s testimony and
credit Jhun s description of what took place when he re
fused Lim s request that he sign the Company s rules and
regulations 60 In other words I find that when Jhun re
fused to obey Lim s order to sign the Company s rules
and regulations that she responded by terminating him
b Discussion and conclusions
The complaint alleges in substance Respondent Lucky
discharged Jhun on 22 November 1983 because of his
Local 87 activities and sympathies, and because he en
gaged in other protected concerted activities The allega
tion that Jhun was discharged because of his Local 87
activities and sympathies is frivolous because it is undis
puted that during the time material Jhun was opposed to
Local 87 s organizational campaign and Lucky s owner
Lim knew this 61 Accordingly I shall recommend the
dismissal of this allegation
Regarding the allegation Jhun was discharged for en
gaging in protected concerted activity the General
Counsel contends he was discharged because he entered
into an agreement with employee Py that they would
only sign a translated copy of the Company s rules and
regulations I have serious doubts whether this type of
59 Although the affidavit contained a Iurat above Lim s signature
which states that Lim had read the affidavit that she understood its con
tents and that it was true and correct to the best of her knowledge she
testified because she had difficulty understanding English she did not
read the affidavit before signing it but the Board agent who wrote out
the affidavit read it to her
60 In crediting Jhun s affidavit rather than Lim s testimony I have
carefully considered that Jhun unlike Py did not return to work 22 No
vember after Local 87 Representatives Leung and Sung advised him to
do so Nonetheless I am persuaded that the probabilities of the situation
and Lim s poor testimonial demeanor warrant the finding that Jhun s affi
davit should be credited Regarding Jhun s failure to return to work as
Py did Jhun in his affidavit states that the reason for this was that he
was so upset about what happened that he went home which is a reason
able explanation for this conduct
8 1 1 t was not until 22 November 1983 after his discharge that Jhun
signed a card for Local 87
conduct is protected by Section 7 of the Act inasmuch as
it appears employees Py and Jhun by entering into such
an agreement were attempting to both remain on the job
and to determine for themselves which terms and condi
tions of employment they would observe See e g Bird
Engineering 270 NLRB 1445 (1984) In any event the
record fails to establish that a motivating factor in Lim s
decision to discharge Jhun was Jhun s agreement with
Py not to sign the Company s rules and regulations until
they were translated For assuming the statement in
Lim s affidavit, I believe that Py and Jhun had made a
compact not to sign the rules establishes that despite
Lim s repudiation of the statement she believed or knew
about Py s and Jhun s agreement not to sign the rules it
does not establish that Lim was hostile toward Jhun for
engaging in this conduct While an inference can be
drawn from Gregory Choo s testimony and from Lim s
11 December 1983 letter to Labor Relations Consultant
White that Lim was hostile to Py because she believed
Py was trying to persuade other employees not to sign
the Company s rules and regulations and had succeeded
in persuading Jhun to agree not to sign the rules there is
no evidence that Lim was mad at Jhun for entering into
this agreement Also the reason for Jhun s discharge
when scrutinized, does not warrant an inference that he
was really fired for agreeing with Py not to sign the
Company s rules and regulations The misconduct which
resulted in Jhun s discharge his refusal to obey Lim s
order to sign the Company s rules and regulations was
an act of insubordination which under the Company s
rules and regulations constitutes grounds for immediate
discharge 62 Nor is there evidence of disparate treatment
or that under circumstances similar to Jhun s employees
who refused to sign the rules and regulations were treat
ed more leniently 63 I recognize that Jhun s termination
slip states he resigned even though he was discharged
and it states the reason for his termination was he object
ed to the Company s hiring policies in addition to his re
fusal to sign the Company s rules and regulations None
theless for the above reasons these circumstances, when
viewed in the context of the whole record are insuffi
cient to warrant the inference that on 22 November Lim
seized on Jhun s refusal to sign the Company s rules and
regulations as an excuse to discharge him for agreeing
with Py not to sign them Moreover the day after the
discharge Lim on further reflection offered to reinstate
Jhun as a new employer after a 1 week suspension with
out pay This is not the conduct of an employer intent on
finding a pretextual reason to rid itself of an employee
for an illegal reason It is for all of these reasons that I
find the General Counsel has failed to prove that Lim s
62 Lim s order that Py sign the rules and regulations was perfectly rea
sonable inasmuch as previously Gregory Choo during the 17 November
employee meeting verbally translated the rules and regulations and gave
the employees including Jhun an opportunity to ask questions More
over 5 days had passed since that meeting thus affording the employees a
further opportunity to have the rules translated by others
ea The record reveals that in the case of employees such as Seo who
did not attend the 17 November employee meeting where Choo verbally
translated the rules when those employees refused to sign the rules be
cause they did not understand them Lim provided a Korean translation
Jhun however attended the 17 November meeting
WHITEWOOD MAINTENANCE CO
belief that Py and Jhun had entered into an agreement to
refuse to sign the Company s rules and regulations was a
motivating factor for her decision to discharge Jhun
In any event assuming the General Counsel has
proven that a motivating factor in Jhun s discharge was
Lim s belief Jhun had entered into an agreement with Py
not to sign the Company s rules and regulations Re
spondent Lucky has established that even absent this
belief Lim would have discharged Jhun when he refused
to obey her order to sign the Company s rules and regu
lations Jhun s misconduct constitutes insubordination
which, under the Company s rules and regulations, is a
reason for immediate discharge, and there is no evidence
of disparate treatment or that Lim condoned this con
duct or conduct of a comparable nature It is for these
reasons that I conclude Jhun s insubordination caused his
discharge and would have done so even in the absence
of any concerted activity engaged in by him
Based on the foregoing, I shall recommend that the
portion of the complaint alleging that Jhun s discharge
was illegal be dismissed
4 The discharge of Hyung Bok Seo
a The evidence
Seo immigrated to this country from Korea in August
1983 and in September 1983 began working for
Whitewood as a janitor at SFO He continued to work
there for Lucky when that Company, on 17 November
1983 took over Whitewood s SFO business During the
time material , the period Seo was employed by Lucky
he worked on the swing shift (3 30 p in to 12 midnight)
and cleaned the area used by American Airlines
On 19 November 1983 Seo signed an employment ap
plication for Lucky and returned it to Lim that day Lim
testified that on 19 November when Seo signed his em
ployment application she interviewed him In response
to Respondent counsel s question did you talk about
lunch Lim testified that during the interview she told
Seo, you start and finish all the work (upstairs) by 5 30
and then you have your lunch at 5 or 5 30 and that by
5 or 5 30 or 6 you should finish your lunch She further
testified, in response to a leading question that during
the interview she told Seo to have lunch after he fin
ished his American Airlines upstairs work Seo testified
in effect he was unable to remember being interviewed
by Lim when he turned in his application but testified
that no one from supervision ever instructed him about
when he should take his lunchbreak
I credit the above described testimony of Seo whose
testimonial demeanor was good that no one from super
vision gave him instructions about his lunch period I
reject Lim s testimony whose testimonial demeanor was
poor, that during a 19 November job interview she gave
him specific instructions concerning his lunch period
Not only was Lim s testimonial demeanor poor when she
gave this testimony, but the record as a whole contra
dicts her testimony that she interviewed Seo Thus there
is a space in Lucky s employment application forms set
aside for interviews which provides for the person doing
the interviewing to sign his or her name and date the
interview along with any remarks pertaining to the appli
1193
cants interview or employment In those instances
where Lim interviewed former Whitewood employees
Lim signed and dated this portion of the application and
at times made written comments whereas in the cases of
former Whitewood employees Py and Jhun who were
admittedly not interviewed Lim printed a large NO in
that portion of the application set aside for the interview
Likewise Lim printed a large NO in this portion of
Seo s application Under the circumstances, Lim s testi
mony that she interviewed Seo and during the interview
gave him detailed instructions concerning his lunchbreak
is not credible, particularly where as here Lim s testimo
nial demeanor was poor and her testimony was generally
denied by Seo whose testimonial demeanor was good
On or about 19 November 1983 Lim gave Seo a copy
of the Company s rules and regulations which she told
him to take home and return to her with his signature
after he had someone translate the rules and regulations
into Korean 69 On 22 November 1983, when Lim asked
for Seo s signed copy of the rules and regulations Seo
told her he had not signed them because he could not
read English Lim and the Day Shift Supervisor Kim
promptly sat down with Seo, and they roughly translat
ed the rules and regulations verbally Following their
translation Seo signed a copy of the rules and regulations
with the following caveat If you translate this into
Korean by the 25th of November I will read it and if
there is a part that I could not accept or understand the
signature above is not valid
On 23 November shortly after 3 30 p in when Seo
began work Lim, accompanied by Gregory Choo came
to his work station and showed him the Korean transla
tion of the Company s rules and regulations which
Choo s wife had prepared the previous evening They
discussed the translation with Seo, and Lim asked him to
sign it Seo, despite Lim s explanation stated he could
not understand the meaning of one of the sections of the
rules and refused to sign it Lim told him if he did not
sign by the end of the day he would be discharged and
in effect stated that he should sign because she did not
want to have to discharge him
On 23 November at approximately 5 p in Seo went
to the American Airlines supply room where Lucky
stores its equipment and supplies He went there for the
purpose of getting equipment he needed for his work
Present in the supply room was Chi Ho Rho who
worked for Lucky on the night shift thus he was not
scheduled to begin work until later that evening 65 Rho
64 Seo was not at work 17 November thus he did not attend the em
ployees meeting held that day for the day and swing shift employees
where Gregory Choo verbally translated the rules and regulations for the
employees
65 Rho was present because he had come early in order to participate
in a Local 87 demonstration at SFO which had been scheduled to take
place earlier that day but was canceled at the last moment I recognize
that Rho testified that there in fact was a Local 87 demonstration held
that day that he participated in However I am persuaded Rho was con
fusing another Local 87 demonstration with this one inasmuch as Local
87 representatives Leung and Sung and Seo each testified that although
Local 87 had scheduled a demonstration for 23 November it was can
celed by Local 87 at the last moment Neither Choo nor Lim who were
present at SFO during the afternoon and early evening of 23 November
Continued
1194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and Seo talked briefly about having lunch, about the
Korean translation of the Company s rules which had
been posted in the supply room earlier that day, and
about the cancellation of Local 87 s demonstration that
had been scheduled for that day 66 During this conversa
tion Py, who, as discussed supra , had been discharged
the day before, entered the supply room and joined the
conversation Shortly thereafter, Lim entered She asked
Py what he was doing there and asked him to leave,
which he did Lim then in effect, reprimanded Rho and
Seo for allowing Py to come into the supply room, ex
plaining he was no longer an employee of the Company
After lecturing them about the dangers of allowing unau
thorized persons into the area, Lim left Seo and Rho to
gether in the supply room Before leaving, however, she
referred to the persons who had come to the airport that
day to participate in the Local 87 demonstration as
crippled bastards and declared that if they came here
to do the demonstration why did not they go ahead and
do it ' After she left they continued their conversation
for a short time and then left the supply room to have
lunch at the cafeteria located in the central terminal, a
little over 600 feet away 67
As Seo and Rho walked toward the central terminal
cafeteria, they were observed by Lim, who was seated
with Gregory Choo in front of one of the airline ticket
counters located in the central terminal Seo and Rho
were not accompanied by anyone else Lim asked where
Seo was going Seo stated that he was going to have
lunch Lim looked at her watch and told him she would
count or watch the time Just as Seo and Rho were
about to continue on their way to the cafeteria, Choo
suddenly, without any explanation, told Lim to fire
Seo Seo questioned Choo s authority to fire him Choo
replied he was vice president of World Service Compa
ny Lim told Seo he was fired and asked him to return
his company keys Seo took the keys and instead of
handing them to Lim threw them on the ground Seo
then asked why he had been fired In response to this
question Choo removed from his person a business card,
placed it on an airline ticket counter and wrote on both
the back and front sides of the card and crossed out cer
tarn things on the front side He then called Lim over
and Lim signed her name on the back of the card which
testified that a demonstration occurred on that day However the record
shows Lim knew that Local 87 had scheduled a demonstration at SFQ
for that day
66 The General Counsel contends that while in the supply room during
the time in question Seo was working I disagree Seo testified the reason
he went to the supply room was to get some equipment he needed to do
his work Contrary to the General Counsel I do not construe his testimo
ny as indicating that he was working while in the supply room talking
with Rho Py and Lim
67 The description of what took place in the supply room on 23 No
vember is based on a composite of Rho s and Seo s testimony Their testi
momal demeanor was good when they testified about this subject and
their testimony was inconsistent in only one respect namely the time of
day when Seo and Rho commenced to talk in the supply room which is
not a matter of significance I have rejected Lim s testimony about her
conversation with the employees in the supply room because of her poor
testimonial demeanor In any event I note that her testimony only specif
ically refutes Seo s and Rho s description in one significant respect she
testified in effect the translated rules and regulations that had been
posted in the supply room were not there and she asked Seo and Rho if
they knew of the whereabouts of the printed translation
Choo then handed to Seo Choo had written on the back
side of the card [Seo] you are terminated as of now-
you left working station without Co permission Imme
diately following this, Lim had signed her name on the
card and written Lucky Services Choo had also print
ed 5 55pm on the back of the card, which was the
time of Seo's discharge The front of the card states that
Choo was an executive vice president of World Service,
but Choo s business address, which had been printed on
the card, had been inked out by Choo and in its place he
had written Song Lim s address
The description of the immediate circumstances sur
rounding Seo s discharge is based on Seo s testimony
which was corroborated in all respects by Rho s testimo
ny Their testimony was disputed by Lim, who gave a
completely different version of what occurred Lim testi
feed when Seo walked into the central terminal on 23
November and was observed by herself and Choo that,
besides Rho, he was accompanied by five or six other
persons whom she could not identify but who she
thought were there to participate in the Local 87 demon
stration scheduled for that day Lim testified that she
asked where Seo was going, that Seo did not answer,
and that when she asked him if he was going to lunch he
answered no, and at this point Lim asked for Seo s
company keys, which Seo threw at her When Seo threw
the keys according to Lim, she responded by stating
Whom do you dare throw keys at I don t need
this, go home today and that someone standing behind
Seo told Seo to ask for something in writing Lim testi
fled that the fact this other person told Seo to ask for
something in writing upset her so she instructed Choo to
write something to the effect that Seo was fired as of
that day and Choo wrote this and Lim signed it and
gave it to Seo
When Seo and Rho testified about the events that oc
curred on 23 November when they encountered Lim and
Choo they did so in a straightforward manner and their
testimonial demeanor was good and they corroborated
each other in all respects On the other hand Lim s testi
monial demeanor was poor her testimony in significant
respects was not corroborated by Choo and her testimo
ny was internally inconsistent and contradicted by
Choo s in significant respects It is for all of these reasons
I have credited Seo s and rejected Lim s testimony con
cerning Seo s 23 November encounter with Lim and
Choo
When questioned about her reason for firing Seo, Lim
testified when she told Seo go home today, her intent
was not to fire him but to just suspend him for the day
because she felt he was idling around Lim testified she
changed her mind about suspending him for the day and
decided to fire him because he threw the keys at me
But as set forth above, Lim, in her initial testimony
about the events of 23 November which resulted in Seo s
discharge testified it was in response to Seo s conduct of
throwing the keys at her that she told him go home
today Under further questioning , however Lim revert
ed back to her original testimony of what occurred she
now testified that she changed Seo s 1 day suspension to
a discharge only after one of Seo s friends told Seo to
WHITEWOOD MAINTENANCE CO 1195
ask for a written explanation, which request angered
Lim But this testimony was squarely contradicted by
Choo, who testified it was only after Lim had told Seo,
you re fired that Seo s friend told Seo to ask Lim for a
written explanation 68 I also note that Choo s testimony
did not corroborate Lim s testimony that Seo was ac
companied by five or six other persons besides Rho
Choo testified in effect that Seo was accompanied by one
person who at various times Choo described as being a
friend of Seo or a Local 87 organizer In addition, Lim s
testimony that Seo was accompanied by five or six per
sons besides Rho is further impunged by Seo's termina
tion slip which states, in pertinent part, that Seo was
wandering around central terminal with friend (Empha
sis added )
It is undisputed that within 1 week of his 23 Novem
ber discharge Seo received from Lucky a termination
slip, which was signed by Lim and dated 23 November
and stated that Seo had been discharged for a combina
tion of reasons, namely, he had violated the company
rules and regulations by his absence from regular work
ing station without authorization from supervisor', by
his `engaging in personal work of any nature without au
thorization", by his ' failure to carry out any reasonable
order of management including refusal to work on jobs
assigned by supervision Also noted as an additional
reason for Seo's discharge was he threw the Co s keys
at floor when management asked On the face of the
termination slip it was further noted that, I gave termi
nation notice on small business card Not enough space
to cover above charges and that Mr Seo was wander
ing around central terminal with friend Found by Presi
dent '
Regarding Seo s alleged failure to carry out a reasona
ble order of management including his refusal to work
on jobs assigned by a supervisor Seo testified he en
gaged in no such conduct during his employ with the
Company and there is no evidence in the record he en
gaged in such conduct or that Lim had any grounds for
believing he had engaged in such conduct
b Discussions and conclusions
I find for the reasons set forth below that Respondent
Lucky s discharge of employee Seo was motivated by
se Choo was called by the General Counsel as an adverse witness and
questioned about the events of 23 November insofar as they involved
Choo writing the reason for Seo s discharge on one of Choo s World
Service business cards When Respondent Lucky called Choo as its wit
ness during its case in chief it made no effort to have Choo corroborate
Lim s testimony Choo did not specifically deny Seo s and Rho s testimo
ny that on 23 November he told Lim to discharge Seo nor did he specif
ically deny that Seo challenged his authority to fire him or that Choo
responded by stating he was a vice president of World I also note that
Choo s description of the circumstances that resulted in his using one of
his World Service business cards to write the reason for Seo s discharge
does not ring true He testified that the reason he wrote the reason for
Seo s discharge on the back of his World Service business card was that
because all the airlines ticket counters were closed he was unable to find
a piece of writing paper and so he looked in Song Lim s purse for a piece
of writing material and in the process discovered one of his business
cards That Choo accidently discovered one of his business cards while
rummaging for a piece of writing material in Lim s purse is unbelievable
especially as Choo later testified that he normally carried one of these
cards in his pocket to use as a means of identification to enter the restrict
ed areas of SFO where Lucky s janitors cleaned
Seo's support of Local 87 and that Respondent Lucky
failed to prove that it would have discharged him absent
his support of Local 87 69
First, Seo signed a Local 87 authorization card and,
thereafter, openly and actively supported Local 87 s
campaign to represent Lucky s SFO janitors
Second, Respondent Lucky s owner Song Lim knew
that he was one of the most active Local 87 supporters
in her employ Thus, the Lucky day shift supervisor,
Kim, admittedly a statutory supervisor, observed Seo
carrying a Local 87 picket sign at a Local 87 demonstra
tion held at SFO only 2 days before the 10 November
representation election Previously, on 10 October 1983,
Seo had informed Lim he thought the employees needed
union representation And on 10 November 1983, the
day of the election, Seo acted as Local 87 s election ob
server 70
Third, as already discussed supra, Lim was extremely
hostile toward Local 87's efforts to represent her em
ployees, and in order to discourage the employees from
supporting that union promised them employment bene
fits and threatened them with loss of jobs in violation of
Section 8(a)(1) of the Act Additionally as I have previ
ously found in this section of the decision, on the day of
Seo s discharge, Lim characterized the persons who she
thought were present to participate in a Local 87 demon
stration scheduled for that day as crippled bastards , a
further indication of her animus toward Local 87 and the
employees who supported that union s efforts to repre
sent her employees
Fourth, contrary to the Company s usual practice
Lim s advisor Choo, rather than Lim herself decided to
discharge Seo, which in the circumstances of this case
further supports an inference that Seo s discharge was it
legally motivated As I have described in detail above
immediately after Lim cautioned Seo that she would be
checking to make sure that he did not remain away from
his work station too long for lunch Choo suddenly and
without any explanation, told Lim to discharge Seo
Lim, without further discussion told Seo he was dis
charged 71 This despite Choo s and Lim s testimony that
sa The General Counsels further contention that the record establishes
Seo was discharged because Respondent Lucky s owner Lim believed he
was a part of the concerted refusal of employee Py and Jhun to sign the
company rules and regulations is not only without merit but when con
sidered in the light of the whole record can only be characterized as a
frivolous contention
70 On 10 November Lucky s owner Lim was present for the counting
of the election ballots She also took an active interest in the election pro
ceedings imsmuch as she actively campaigned against Local 87 during
the preelection period and attended preelection meetings between
Whitewood s owner and Labor Relations Consultant White where elec
tion strategy was discussed Gregory Choo was present not only for the
counting of the ballots on election day but attended the preelection con
ference held that same day where the parties designated their election ob
servers Choo Lucky s admitted agent and Lim s business advisor had
guaranteed owner Lim s bank loan so she could get sufficient capital to
start her business and during the time material he was conferring with
her on almost a daily basis concerning Lucky s business operations In
view of all the foregoing circumstances plus Lim s failure to deny know
ing that Seo was Local 87 s election observer I find it is reasonable to
conclude that Lim knew Seo was Local 87 s election observer
71 I note that Lim admitted she did not read the reason for Seo s termi
nation written by Choo on the business card which was given to Seo at
Continued
1196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Lim was the sole person responsible for discharging em
ployees and that Choo did not even advise her on mat
ters of that nature
Fifth, in discharging Seo Respondent Lucky deviated
from its published system of progressive discipline and
treated Seo different than other former Whitewood em
ployees who committed either the same or more serious
acts of misconduct than attributed to Seo, thus bolstering
the inference that Seo s discharge was discriminatorily
motivated As described supra when Seo was notified of
his discharge on 23 November, he was told the reason
for the discharge was because he left his work station
without the Company s permission 72 The record reveals
that former Whitewood employees Ngo and Wallace en
gaged in either the same kind of misconduct or more se
rious misconduct, yet, unlike Seo, were not discharged
but instead were issued written disciplinary warnings
under Respondent Lucky s system of progressive disci
pline For as stated in the Company s rules and regula
tions of Personal conduct, an employees absence from
regular work station without authorization from supervi
sor calls for a written disciplinary notice on the first
two offenses, and for discharge only after the third of
fense Regarding employee Ngo, on approximately 23
December 1983 Lim issued him a written disciplinary
warning for violating the Company s rules and regula
tions as follows ( 1) He was absent from his work station
without authorization when he left his work station to
take a baggage cart to the refund station for the refund
money (2) His work was incompetent as Lim was re
ceiving too many complaints about his work from cus
tomers On about 9 January 1984, Lim issued employee
Ngo a second written disciplinary warning for violating
the Company s rules and regulations as follows (1) He
was absent from his regular work station without author
ization inasmuch as he had punched out and went home
without notice (2) He had left his work station without
authorization to return airport luggage carts for refunds
conduct for which he had already received many warn
ings and (3) He did not do competent work inasmuch as
the quality of his work was poor he worked too slow,
and Lim had received many customer complaints about
his work Regarding employee Wallace, on about 28 De
the time of his discharge Lim s further testimony that she failed to read
what Choo had written because she assumed he had written what she
had instructed him to write is refuted by Lim s later testimony which
shows Lim did not give Choo any reason for discharging Seo but left it
to Choo to supply the reason Thus Lim testified she told Choo to write
something to the effect that [Seo] was fired as of that day whereas
Choo wrote you are terminated as of now-you left working station
without Co permission
72 I recognize the termination slip mailed to Seo several days after his
discharge lists several other reasons besides his alleged absence from his
work station without authorization as the grounds for his discharge It
further states the reason these additional grounds for discharge were not
furnished to Seo at the time of his discharge was there was insufficient
room on Choo s business card to include all the grounds for the dis
charge I reject this assertion Neither Lim nor Choo testified that this
was the reason why at the time of his discharge Seo was given only one
of the reasons for his discharge and not all the reasons I also note as I
have found supra when Seo asked Choo and Lim to furnish him with the
reason for his discharge that he did not ask that this information be fur
niched in writing but simply asked why he had been fired In any event
as discussed infra each of the termination slip s additional reasons for the
discharge are false
cember Lim issued a written disciplinary warning to him
for violating the Company s rules and regulations by his
frequent absences from work without proper authonza
tion or reasonable cause after having received numerous
warnings On 9 January 1984 Lim issued Wallace a
second written disciplinary warning for being absent
from his work station without his supervisors authoriza
tion inasmuch as on 8 January Lim was unable to find
him in his work area between 11 p in and 2 am Lim
did not explain why in disciplining Seo she did not
follow her Company s progressive system of discipline
before discharging him, nor did she explain why she
treated Seo differently than employee Ngo and Wallace
I recognize that when Lim asked Seo to return the Com
pany s keys that instead of handing them to her as re
quested, he threw them to the floor However, as I have
found supra , this insubordinate conduct occurred only
after Seo had already been told by Lim that he was dis
charged, thus Respondents reliance on this act of insub
ordination to distinguish Ngo s and Wallace s cases is
misplaced
Sixth each of the additional reasons for Seo s dis
charge listed by Lim on the termination slip mailed to
him several days after his discharge are false, thereby
further buttressing the inference Seo s discharge was dis
criminatorily motivated As described supra the postdis
charge termination slip signed by Lim and mailed to Seo
states that, besides his absence from his work station
without authorization, Seo was terminated for a combi
nation of other reasons namely, throwing the Company s
keys at the floor in response to managements request for
them doing personal work without authorization and
failing to carry out reasonable management orders, in
cluding his refusal to work on jobs assigned by supervi
sion The throwing of the keys could not have had any
thing to do with the Company s decision to discharge
Seo because as I have found supra, Seo threw the keys
on the floor only after he was told that he was dis
charged The conclusionary allegations that Seo violated
the Company s rules and regulations by doing personal
work without authorization and by failing to carry out
reasonable management orders including his refusal to do
the work assigned to him by supervision, were not ex
plained by Lim She failed to testify what specific con
duct engaged in by Seo these conclusionary allegations
encompassed Seo testified in effect he did not engage
in conduct of this type, and the record fails to establish
that he did or that Lim had reasonable grounds for be
lieving Seo had engaged in conduct of this nature
The several above described factors when taken to
gether persuade me the General Counsel has proven that
Seo s support for Local 87 was a motivating reason for
his discharge I am also persuaded for the reasons set
forth that Respondent Lucky has not proven Lim would
have discharged Seo even absent his support for Local
87 73
79 The formula I have used in this decision to determine whether the
discharges of Seo and the other alleged discriminatees were unlawfully
motivated was articulated in Wright Line 251 NLRB 1083 (1980) Under
this test once employer opposition to union or protected concerted activ
Continued
WHITEWOOD MAINTENANCE CO 1197
Lim testified she fired Seo for a combination of three
reasons (1) to some extent because he threw the set of
keys at her when she asked for them (2) Lim was an
gered when persons accompanying Seo told him to ask
for a written statement explaining why he was being sent
home from work and (3) because as Lim testified
at that time whether American Airlines74 would
give us a contract or not was in discussion 75 At
that time I saw him at 5pm downstairs [referring to
their earlier meeting on 23 November in the supply
room] and that means that he had spent an hour for
lunchtime, and that doesn t make sense to me
Lim s testimony Seo s discharge was based in part on
the fact that he threw a set of keys at her when she
asked for them is false As found supra it was only after
Lim told Seo he was discharged that Seo, understand
ably upset, threw the keys Moreover as found supra
the keys were not thrown at Lim, as Lim testified but
were thrown at the floor as Seo and Rho testified, and
as stated in the termination slip signed by Lim which
was sent to See several days after the termination In
view of these circumstances, I find that Seo s throwing
of the keys was not relied on by Respondent Lucky
when it decided to discharge Seo
Lim s testimony that Seo s discharge was based, in
part, on the fact that she got angry when persons accom
panying Seo told him to ask for a written statement ex
plaining why he was being sent home is false 76 As I
have found supra, only one person, employee Rho ac
companied Seo and it was Seo who, on being told that
he was discharged personally asked for an explanation
for his discharge As I have also discussed previously,
Choo squarely contradicted Lim s testimony that Seo s
discharge was based in part on Lim s loss of temper
when she heard the people accompanying him tell Seo to
get a written explanation 77 In view of these circum
stances I find that this reason which was advanced by
Lim to justify Seo s discharge, never existed
ity has been shown to be a motivating factor for a discharge an unfair
labor practice is established unless the employer is able to demonstrate as
an affirmative defense that the discharge would have occurred even in
the absence of the protected conduct NLRB v Transportation Manage
ment Corp 462 U S 393 (1983) Of course where the inference of un
lawful motivation is based in part on proof that the employers proffered
lawful reason for a discharge is a mere pretext to disguise discrimination
the inquiry is logically at an end As the Board explained in Wright Line
251 NLRB at 1084 where it has been shown that the claimed lawful
reason advanced by the employer either did not exist or was not in fact
relied on there is no remaining predicate for any determination the dis
charge would have taken place even in the absence of the union activity
See also NLRB v American Geri Care Inc 697 F 2d 56 63-64 (2d Cir
1982) Postal Service 275 NLRB 510 (1985)
94 Seo was assigned to clean up the area used by American Airlines
75 I note that Lim s testimony that as of 23 November 1983 whether
American Airlines would give us a contract or not was in discussion is
suspect because the record reveals that it was not until 3 months later 24
February 1984 that Lucky received an invitation from American Airlines
to bid on its work
75 As described supra Lim further testified that at this point of time
her intent had been to only suspend Seo for the rest of the day
77 I also note that this reason for the termination was not included
among the several reasons included in the termination slip mailed by Lim
to Seo several days after the discharge
Regarding Lim s testimony that Seo s discharge was
based in part on her belief Seo had taken an hour instead
of 30 minutes for lunch assuming Lim had good reason
to believe Seo engaged in this conduct when she ob
served him walking in the central terminal with Rho it
does not establish this conduct would have resulted in
his being discharged by Lim during the normal course of
business For, as I have found supra, the other two rea
sons which Lim testified she relied on to discharge Seo
either did not exist or were not relied on to discharge
him Therefore, it is not clear whether Lim s belief that
Seo had been abusing his lunch break privilege on that
particular occasion would by itself have resulted in Seo s
discharge by Lim during the normal course of business
Moreover it is clear that by itself this type of conduct
would not during the normal course of business have
resulted in Seo s discharge For the record reveals that
under Lucky s system of progressive discipline this was
not the type of misconduct that would have resulted in
Seo s discharge Rather, it would have resulted in the is
suance of a disciplinary warning at most, as is evidenced
by Lim s treatment of employees Ngo and Wallace de
scribed supra
It is for the reasons set forth above that I find Re
spondent Lucky has failed to establish it would have dis
charged Seo even absent his support of Local 87 In
view of my previous finding that the General Counsel
has established Seo s 23 November 1983 discharge was
motivated by his support for Local 87 I further find Re
spondent Lucky s discharge of Seo violated Section
8(a)(1) and (3) of the Act 78
5 The discharge of Chi Ho Rho
a The evidence
Rho immigrated to the United States from Korea in
January 1983 and in September 1983 began working for
Whitewood as a janitor at SFO He continued working
there for Lucky when that company took over
Whitewood s SFO business He was employed on the
night shift
Rho signed a Local 87 card and attended several
Local 87 organizational meetings He made his pro Local
87 sentiments known to Lucky s owner Lim when, late
in October 1983 in response to Lim s statement that if
the employees did not vote for Local 87 they would be
granted better benefits of employment Rho stated that
he did not think it was legal for Lim to make such a
statement and that, in any event he did not believe her
promise of better benefits and thought that Local 87 of
fered the employees better benefits than the company
On 5 December 1983 on his day off from work Rho
attended a press conference and demonstration held by
Local 87 at San Francisco City Hall It was directed
78 Seo s conduct of throwing the Company s keys on the floor when
Lim asked for them was not so egregious when considered in context so
as to warrant denying him the usual offer of reinstatement remedy for his
unlawful discharge Seo engaged in this unpremeditated conduct as a
result of a loss of temper caused by his illegal discharge See NLRB v
M&B Headwear 349 F 2d 170 174 (4th Cir 1965) Model A Motor Car
Reproductions Corp 259 NLRB 555 fn 4 (1981)
1198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
against certain of Respondent Lucky s alleged unfair em
ployment practices Rho carried a picket sign containing
a legend which, in substance, stated Lucky and World
had unfairly fired employees and were engaging in a
campaign of union busting The next day, 6 December,
an article about the press conference and demonstration
appeared in a local newspaper of wide circulation, The
San Francisco Examiner, which discussed Local 87 s dis
pute with Respondents Accompanying this article was a
photograph that showed Rho holding a picket sign
Under this photo was the caption Korean American
Janitors picket at San Francisco International Airport-
They say the City pays no heed to the fact they re over
worked and underpaid Considering the nature of the
story I am persuaded it is a fair inference that on 6 De
cember this article with Rho s picture came to Lim s at
tention 79 And it is undisputed that when she read this
article, Lim was very displeased about the allegation
made against her Company by Local 87 and considered
Local 87 s conduct in making the allegation as a form of
harassment against her Company (See G C Exh 102,
Lim s letter dated 11 December 1983, to Labor Relations
Consultant White )
On the night of 6 December 1983 shortly before Rho
was to begin work at 11 p in, Lim took him to the
downstairs level of the American Airlines area at SFO
where she spoke to him in a small office adjacent to the
supply room where Lucky stored its supplies and equip
ment There is a significant conflict between Rho s and
Lim s description of what occurred during this conversa
tion
Rho s description of what took place on the night of 6
December between himself and Lim follows When they
got to the office Rho before Lim could speak to him
about what she had in mind, asked whether in computing
the amount of money deducted from his pay for income
tax purposes, Lim was now figuring the deduction based
on an exemption of one dependent family member 80
Lim indicated it did not make any difference whether
she included one dependent family member or none, as
the amount deducted would remain the same Lim then
asked whether Rho could operate the waxing and sham
poo machine Rho stated that he did not know how to
operate it but he would learn fast Lim asked how he
expected to be able to operate this machine when it was
taller than him and stated that Rho should work on the
swing shift from 6 to 11 p in Rho replied if his work
shift ended at 11 p m he would be unable to get home
and asked Lim how he could work the swing shift under
those circumstances 81 Lim told him his problem in get
ting home from work was not her concern, and she
would consider that Rho was not interested in working
and stated So I will fire you ' Rho then asked her to
give him his check referring to his 1 December pay
check which he apparently had not as yet received
98 Lim did not deny that this was the case
80 Rho had previously asked Lim to deduct his income taxes on the
basis of an exemption of one dependent family member
81 Soon after Lim took over the Whitewood s SFO business Rho told
her since he lived in Alameda California it took him about 2 hours to
get from his home to work because he had to transfer between buses sev
eral times and asked her to understand his situation
whereupon Lim asked him to sign a W 4 form Rho re
plied he did not know what a W 4 form was and stated
he did not remember having ever signed such a form
when he was employed by Whitewood Lim responded
by stating, Where is the punk who does not know what
the W 4 form is while living in America9 82 Rho replied
by asking Lim How can you say things like that even
if you are the owner and the president of a company
whereupon Lim called him a little punk and Rho at
this point swore at Lim He called her among other
things a fucker and a crazy insane bitch and Lim re
sponded by calling Rho various obscene names and as
Rho left the office where they had been talking Lim fol
lowed him and the exchange of obscenities continued as
they walked up the stairs leading to the American Air
lines lobby at which point Rho told Lim You re firing
me because you saw me in the paper, and Lim an
swered, Yes, that s right So what This ended the en
counter between Lim and Rho, because when Rho
reached the American Airlines lobby, he went to the
telephone to make a call
Lim s description of what took place on the night of 6
December between herself and Rho follows Lim began
the conversation by asking if Rho knew how to use the
shampoo machine Rho answered No, but he stated
that he could learn to use it Lim asked how he could
learn to use it when the machine was taller than him
Lim then stated she asked Rho What about transferring
to the swing shift9 Rhos response was that he could
not transfer to that shift Lim testified Rho gave her no
explanation for his refusal to transfer to the swing shift
but further testified he did state he had to transfer buses
two or three times Lim told him that this was his prob
lem and she changed the topic of conversation to Rho s
paycheck She told him she had heard that he had a
complaint about his paycheck 83 Rho stated when
Whitewood paid him that he had claimed one dependent
for tax purposes and now Lim was deducting too much
from his paycheck for taxes Lim apologized for this and
explained she had not known whether he was married
which was why her accountant had deducted so much
money During this conversation Lim was holding a W
4 form in her hand and now asked Rho to sign it at
which point Rho virtually pressed himself up against
Lim and with his hands on his hips indicated that Lim
had no right to expect him to sign this form and called
her a prostitute a fucker and a bitch Lim respond
ed by stating Where is the punk who doesn t know
what a W 4 form is while living in America Rho
stated Dont worry you bitch I will not work for a
bitch like you Lim told him not to worry because
anything like you cannot work for me even if you
82 Lim s conversation with Rho was in Korean It is undisputed that
Lim used the Korean term nom which the translator interpreted as
punk Frank Synn an expert in Korean language and culture testified
that in the abstract nom could be translated into English as rascal or
bastard or even little boy but given the context in which Rho testi
fled the term was used by Lim that it could not have meant either a little
boy or rascal but testified that it definitely bears the demeaning aspect
of the word bastard
83 According to Lim Supervisor Choi told her that Rho had a pay
check quest on or problem
WHITEWOOD MAINTENANCE CO
want Rho then left the office and went to the adjacent
supply room for his personal belongings, and with Lim
following proceeded up the stairs to the American Air
lines lobby On their way Rho continued to call Lim ob
scene names, and when they arrived at the lobby they
found that several night shift employees, including
Night Shift Supervisor Choi, were waiting to begin
work Lim told them Rho was calling her a bitch and
a fucker and asked them to make him stop In the
meantime Rho had sat down with the employees and
Foreman Choi and continued to call Lim a bitch, and
he stated she could not get him to sign the W 4 form
Lim instructed Supervisor Choi that Rho was fired and
that Choi should not let him go back downstairs to
work
On 7 December, the day after Rho s discharge, Lim
signed a termination slip for Rho which was sent to Rho
between 1 and 2 weeks after his termination Despite the
fact Lim testified the only reason that she fired Rho was
because he was calling me names, the termination slip
in the space for the reasons for an employees termina
tion states Rho was discharged for different reasons as
follows Frequent tardiness, threatening and intimidating
Lim refused to use the shampoo or buffer machine, dis
obeyed the new work schedule, used indecent language
to Lim many times in front of many employees, refused
to sign a W 4 form and refused to furnish the Company
a social security number
The record reveals that while employed by Lim, Rho
was tardy for work at most only once In other words,
this portion of the termination slip was false Lim offered
no explanation for this fabrication
The record reveals Rho did not refuse to use the
shampoo or buffer machine, but instead offered to learn
how to operate this machine Lim was unable to explain
the reason for this fabrication
The record reveals that Rho did not refuse to furnish
the Company with his social security number Quite the
contrary on his application for employment Rho listed
his social security number Lim offered no explanation
for this fabrication
Lim offered no explanation for the fact that even
though she testified the sole reason for Rho s discharge
was his name calling his termination slip contained sev
eral other reasons for the discharge
Regarding the sharp conflict in Rho s and Lim s testi
mony about their 6 December encounter I have credited
Rho s testimony because his testimonial demeanor was
good and Lim s was poor when they testified about the
events of that day Moreover, in evaluating Lim s testi
mony, I cannot ignore the fact that on the very next day,
on a closely related matter the matter of Rho s termina
tion slip the record reveals that Lim fabricated a signifi
cant number of the reasons for Rho s discharge set forth
on the termination slip Finally whereas Rho s descrip
tion of what took place during his 6 December conversa
tion with Lim was given for the most part in a straight
forward manner, Lim s description of this conversation
in a number of significant respects was given in a dis
jointed manner It is for all of these reasons, in particular
my assessment of the witnesses testimonial demeanor
1199
that I have credited Rho s and rejected Lim s version of
the events of 6 December 84
b Discussions and conclusions
I find for the reasons set forth below that Song Lim s
discharge of employee Rho was motivated by Rho s sup
port of Local 87, and that Lim failed to prove she would
have discharged Rho absent his support of Local 87
First, this is one of those rare cases in which the em
ployer s own words are a direct, unequivocal indict
ment of its actions NLRB v Southern Plasma Corp 626
F 2d 1287, 1294 (5th Cir 1980) Thus, on 6 December
1983, when Rho after having been told by Lim he was
discharged, accused Lim of discharging him not for the
reason given but because she had seen his picture in the
newspaper, Lim responded by stating, Yes, that s right
So what9 The record establishes Lim and Rho were re
ferring to the picture of Rho in that days edition of
The San Francisco Examiner showing him carrying a
picket sign in support of Local 87 s dispute with Lim s
company Under the circumstances, Lim s remark
amounts to an outright confession that she discharged
Rho because he was an active adherent of Local 87
Second the timing of Rho s discharge supports an in
ference it was motivated by Rho s support of Local 87
Thus Lim discharged Rho only hours after she observed
Rho s picture in The San Francisco Examiner carrying
a picket sign in support of Local 87 s dispute with Song
Lim's company
Third, Rho was an active adherent of Local 87 s orga
nizational campaign and Lim knew this Thus Rho
openly and actively supported Local 87 s campaign to
organize Lim s employees He made known his pro
Local 87 sentiments to Lim late in October 1983 when,
in response to Lim s promise of better employment bene
fits if the employees did not vote for Local 87 Rho
stated that he did think it was legal for Lim to make
such a statement and, in any event he did not believe
Lim s promise of better employment benefits and thought
Local 87 offered the employees better employment bene
fits than the Company Then on the same day as Rho s
discharge Lim learned from the picture of Rho in a
local newspaper which showed him carrying a Local 87
picket sign he was still actively supporting Local 87 in
its campaign to represent Lim s employees
Fourth Lim was extremely hostile toward Local 87 s
organizational campaign as is demonstrated by her efforts
to discourage employees from supporting Local 87 s
campaign by promising them employment benefits and
threatening them with the loss of their jobs
Fifth the shifting reasons, some of them palpably false
which were advanced by Lim to justify Rho s discharge
lends further support to the inference that Rho was dis
84 I have considered Respondent Lucky s contention that it is incom
prehensible that after having fired Rho that Lim as Rho testified would
have asked him to fill out a W 4 form However this would only be in
comprehensible if the record had revealed that Lim possessed a W 4
form signed by Rho There is no such evidence On the other hand Rho
testified he did not recall ever signing such a form and he further tests
fled it was not until the instant unfair labor practice proceeding that he
discovered what a W 4 form was
1200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
charged because of his Local 87 sympathies and active
ties NLRB v Mid State Sportswear 412 F 2d 537 539
(5th Cir 1969) ( vacillations as to the reasons for the dis
charge support a finding of discrimination ) Jeffrey Mfg
v NLRB 654 F 2d 944 , 949 (4th Cir 1981) (shifting and
unsupported reasons for a discharge warrants inference
of unlawful motivation), Royal Development v NLRB
703 F 2d 363 372 (9th Cir 1983) (an adverse inference
can be drawn when an employer strains to bolster its de
fensive story before the Board with insubstantial implau
sible, or shifting explanations for conduct) Lim told Rho
on 6 December that he was discharged because he had
indicated he could not accept a transfer from the night
to the swing shift because of transportation problems
Rho s termination slip signed by Lim the day after the
discharge and Lucky s answer to the complaint in this
proceeding states Rho s discharge was based on a combi
nation of tardiness , the use of indecent and threatening
language when he spoke to Lim refusing to use the
shampoo/buffer machine disobeying a new work sched
ule, refusing to sign a W 4 form and refusing to furnish
a social security number Three of these reasons were pa
tently false Subsequently Lim when she testified during
the hearing in this case , disavowed all the reasons she
previously gave for discharging Rho except for one she
testified that the only reasons she discharged Rho was
because he was calling me names Lim failed to ex
plain why she included all the additional reasons in
Rho s termination slip, including the ones which were
patently false Nor did she explain her reason for later
disavowing all of these reasons
The several above mentioned consideration when
taken together persuade me that the General Counsel
has proved that Rho s support of Local 87 was a moti
vating factor for his discharge I am also persuaded for
the reasons set forth that Respondent Lucky has not
proven Lim would have discharged Rho even absent his
support of Local 87
Lim testified her only reason for discharging Rho on 6
December was that Rho called her obscene names on
that day However I have found it was only after Lim
on 6 December had told Rho he was discharged that
Rho called Lim obscene names Moreover Lim even
after Rho called her the obscene names responded to
Rho s accusations that he was being discharged because
Lim had seen his picture in the newspaper carrying a
Local 87 picket sign by admitting this was the reason
for the discharge No mention was made by Lim about
Rho s calling her obscene names Also the next day,
when Lim signed Rho s termination slip it included not
just Rho s use of the obscene language but a number of
other reasons as a basis for the discharge some of which
are palpably false These circumstances persuade me the
obscene names which Rho called Lim were not relied on
by Lim to discharge him on 6 December but like the
other reasons set forth in Rhos termination slip, the ob
scene name calling was used as a pretext in order to bus
tify Rho s discharge because of his Local 87 activities
Regarding Rho s refusal to be transferred from the
night to the swing shift the reason which Lim on 6 De
cember initially gave to justify his discharge I am per
suaded that the record establishes Lim s decision to
transfer Rho to another shift was made with the intent of
having him refuse the transfer so Lim could use the re
fusal as a reason to rid herself of Rho because of his
Local 87 activities This inference flows reasonably from
the evidence set forth above which comprises the Gener
al Counsels prima facie case and additional evidence that
shows Lim must have known that due to his transporta
tion problems Rho would have been unable to accept a
transfer to the swing shift Also Lim failed to explain
why she suddenly needed one less worker on the night
shift and one more worker on the swing shift or why
she decided to transfer Rho rather than one of the other
night shift workers All of these circumstances persuade
me Lim s transfer of Rho on 6 December to the swing
shift was not motivated by legitimate business consider
ations, but was motivated by Lim s hostility toward Rho
because of his support for Local 87
It is for the reasons set forth above that I find Re
spondent Lucky has failed to establish it would have dis
charged Rho even absent his support of Local 87 I
therefore further find that by discharging employee Rho
on 6 December 1983 Respondent Lucky violated Sec
tion 8 (a)(1) and (3) of the Act
Having found that Lim discharged Rho on 6 Decem
ber 1983 because of his union sympathies and activities
in violation of Section 8(a)(3) and (1) of the Act, the
usual remedy for this unfair labor practice would be for
Lim to offer Rho reinstatement But on 6 December
after having been unlawfully discharged Rho as I have
described in detail above called Lim several obscene
names The question presented is whether by engaging in
this conduct Rho has made the usual reinstatement
remedy inappropriate Although I do not condone Rho s
conduct I do not believe that it warrants his forfeiting
the opportunity for reinstatement My reasons for this
conclusion are as follows
The discharge of an employee is normally a very trau
matic experience and it becomes even more traumatic if
the discharge comes abruptly and unexpectedly and the
employee involved is qualified for only a very limited
number of the available jobs on the job market because
of a limitation in an essential work qualification such as
an ability to understand English Rho who only recently
immigrated to America from Korea and whose under
standing of English was limited, was abruptly and unex
pectedly discharged by Lim for a transparently pretex
tual reason because of his union activities Under the cir
cumstances I am persuaded that when Lim discharged
Rho because of his union activities that she must have
known and reasonably intended that the discharge would
provoke an emotional response
The record also warrants the inference that the several
statements Lim made to Rho on 6 December before
Rho started calling Lim obscene names were made by
her with the intent of provoking Rho into committing an
act of misconduct which Lim could use as an excuse to
discharge Rho because of his Local 87 sympathies and
activities Thus as I have found supra when Lim told
Rho he was being transferred to the swing shift she did
so with the intent of having him refuse the transfer so
she could use the refusal as an excuse to discharge him
WHITEWOOD MAINTENANCE CO
because of his Local 87 activities Likewise Lim s con
duct was colored by her animus toward Rho because of
his Local 87 activities and on account of this animus she
was intent on provoking him into committing an act of
misconduct when she falsely told him that his claim for
additional dependent deductions would not change the
amount of taxes deducted from his pay, when she insult
ed him about his small size in response to his stated will
ingness to learn to operate a piece of equipment he had
never operated and when she questioned his intelligence
when he expressed his ignorance of a W 4 form even
though Lim knew that Rho had only recently immigrat
ed to this country and from his job application she knew
that this was his first job I also note that when the con
versation is viewed in the context of the Korean Ian
guage and culture that the record establishes that Lim
should have reasonably expected an angry response
when Lim stated, Where is the punk who does not
know what the W 4 form is while living in America,
and when Lim called Rho a little punk in response to
Rho s protest that Lim should not speak to him in that
fashion It was only then that Rho lost his temper and
called Lim several obscene names
Last, as I have found supra although Rho called Lim
several obscene names, he did not engage in this conduct
in the presence of any of Lim s other employees
In summation , the record reveals that immediately
before Rho lost his temper and called Lim several ob
scene names that not only had Lim discharged him for a
transparently pretextual reason on account of his Local
87 activities in violation of the Act but Lim also en
gaged in a course of conduct that was calculated to pro
yoke Rho to commit an act of misconduct that Lim
could use as an excuse to discharge him because of his
Local 87 activities In view of these circumstances and
bearing in mind that Rho s obscenities were expressed
outside of the presence of Lim s other employees I am
persuaded Rho s misconduct was not so egregious in re
lation to Lim s provocation so as to warrant denying him
the usual offer of reinstatement remedy for his unlawful
discharge As the court stated in NLRB v M&B Head
wear Co, 349 F 2d 170 174 (4th Cir 1965)
An employer cannot provoke an employee to the
point where she commits such an indiscretion as is
shown here and then rely on this to terminate her
employment The more extreme an employer s
wrongful provocation the greater would be the em
ployee s justified sense of indignation and the more
likely its excessive expression To accept the argu
ment addressed to us by the company would be to
provide employers a method of immunizing them
selves from the only real sanction against violations
of Section 8(a)(3) Reinstatement in the instant case
is not , as the employer puts it a reward to the em
ployee for insurgency Rather as we see it, refusal
to reinstate her would put a premium on the em
ployer s misconduct 85
1201
Based on the foregoing I find that by discharging em
ployee Rho Respondent Lucky violated Section 8(a)(3)
and (1) of the Act
6 The discharge of Ronald Albert Kelleher
a The evidence
Ronald Albert Kelleher was employed by Whitewood
at SFO as a janitor He started working for Whitewood
about 8 August 1983 and during the time material
worked on the swing shift under the supervision of Haw
Jong Kim
Between 17 and 20 September 1983 Kelleher signed a
card for Local 87 and attended Local 87 organizational
meetings and openly spoke with Local 87 s organizer
Sung when he visited SFO Beginning late in October
1983 until the 10 November 1983 representation election,
Kelleher who was not working due to an injury visited
SFO and on seven or eight occasions solicited White
wood s employees to support Local 87
On 18 October 1983 Kelleher learned from his doctor
that his left wrist, which was previously injured had
been fractured and until the fracture healed he would be
able to perform only light work using only his right
hand Kelleher brought a doctor s note to Supervisor
Kim explaining this But after returning to work with
his left wrist in a cast Kelleher found that it was too
painful to continue to work and informed Supervisor
Kim he intended to stop work and file a worker s com
pensation claim for disability pay and he would return
to work when his left wrist was better which he told
Kim might take 3 6 or 12 months Kim responded by
granting Kelleher permission to absent himself from
work he stated that Kelleher should return to work as
soon as his hand felt better and that in the interim he
would replace him with someone named Tony Kel
leher s last day of work was 20 October 1983 and on 26
October 1983 he filed a worker s compensation claim
against Whitewood
On 29 October 1983 as I have found supra White
woods owner Yoon met with Labor Relations Consult
ant White to discuss how Whitewood would handle the
representation election scheduled for 10 November 1983
It is undisputed that at some point during that day they
visited SFO so White could observe the areas where
Whitewood s employees worked and the work they per
formed and while there they encountered Local 87 Busi
ness Representatives Leung and Sung who were accom
panied by Kelleher Leung spoke to Yoon and White,
while Kelleher and Sung waited off to the side Howev
er Yoon walked over to where Kelleher was standing
with Sung and asked Kelleher how his injured wrist was
feeling Kelleher stated that the wrist still hurt and asked
Yoon for the name of the insurance company that car
reed Whitewood s workers compensation policy Yoon
gave Kelleher the name of an insurance company and
the insurance policy number Kelleher also asked about
85 See Model A Motor Car Reproduction Corp 259 NLRB 555 fn 4
(1981) E I du Pont Co 263 NLRB 159 (1982)
1202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
his employment status, whether he was terminated and
Yoon told him that he was on sick leave 86
On 31 October 1983 White, in connection with the
Local 87 representation election scheduled for 10 No
vember wrote the Board s Regional Office conducting
the election that he was representing Whitewood in that
proceeding and enclosed certain documents including an
up dated Excelsior list as of October 25 1983 The Ex
celsior list which is a list of the employees whom the
Company felt were eligible to vote in the election, in
cluded Kelleher s name
It is undisputed that earlier in October 1983 Yoon
telephoned Local 87 Representative Sung and asked why
Sung was bothering him When Sung explained he was
trying to organize Yoon s Korean workers so as to im
prove their working conditions Yoon made a veiled
threat to have Sung, who was in the United States on a
student visa deported, and he warned Sung that the
company would close if the company was unionized
On 8 November 1983 at approximately 2 30 p in Kel
leher, while at SFO s central terminal, showed Supervi
sor Kim a letter typed in English which stated in sub
stance Kelleher had been a permanent employee of
Whitewood since 8 August 1983 and was presently em
ployed by Whitewood as a full time employee Kelleher
translated this letter into Korean for Kim and asked him
to sign it, explaining he wanted to bring his Korean wife
into the United States and intended to send this letter to
the United States Embassy in Korea in an effort to bring
his Korean wife into the United States 87 Kim signed the
letter
On securing Supervisor Kim s signature Kelleher pro
ceeded to leave the central terminal As he was exiting,
he encountered Song Lim who was ertering the termi
nal 88 Lim observed Kelleher and told him in English
86 The above description of what was stated by Yoon and Kelleher
during their 29 October conversation is based on Kelleher s and Sung s
testimony Yoon testified that he spoke to Kelleher or Kelleher s brother
at SFO about workers compensation insurance coverage but he thought
the person he had spoken to was Kelleher s brother not Kelleher Later
he testified unequivocally that he did not have a conversation with Kel
leher at any time prior to the 10 November representation election I
credited Kelleher s and Sung s testimony because their testimonial de
meanor was good when they testified about this matter whereas Yoon s
was pooi I also note in the affidavit that Yoon submitted to the Board
prior to the hearing in this case and that was taken by a Board agent in
the office of Labor Relations Consultant White in White s presence it
says that either on 29 October or 4 November 1983 Yoon s hile at SFO
with White encountered Kelleher with Local 87 Representatives Leung
and Sung and that while Leung and White argued about whether the
Local 87 representatives could speak to Whitewood s employees Kel
leher asked Yoon about his company s workers compensation coverage
It is clear from the affidavit that Yoon was speaking with Kelleher and
not with Kelleher s brother Yoon did not deny that what is contained in
that portion of the affidavit was what he told the Board agent
8r The above description of Kelleher s conversation with Supervisor
Kim is based on Kelleher s undenied testimony When he gave this testi
mony Kelleher impressed me as a credible witness
88 The description of Kelleher s 8 November conversation with Lim is
based on Kelleher s testimony Lim testified that before speaking to Kel
leher on 8 November she learned from Supervisor Kim that Kim had
signed Kelleher s above described letter Lim testified she thought Kel
letter did not need Kim s signature on such a letter to get his wife admit
ted into the United States but had some other deceptive purpose in
mind in getting Kim s signature on the letter So she went to Kelleher
and as she further testified spoke to him in Korean and told him it wa,
her understanding he was fired and asked if it was okay for him to get
You re terminated as of today Kelleher replied
You re crazy and continued on his way out of the ter
urinal 89
On 8 November immediately after his encounter with
Lim, Kelleher participated in a Local 87 sponsored dem
orstration outside of SFO s central terminal protesting
World s alleged failure to pay Whitewood s janitorial
employees the prevailing wage Kelleher carried a picket
sign The demonstration was observed by Supervisor
Kim from a distance of about 20 feet thus he presumably
observed Kelleher s participation
On 8 November a letter purportedly signed by Yoon
and purportedly on Whitewood s stationery was mailed
to the Board s Regional Office in connection with the
representation election This letter advised the Board
that the following is a corrected list of the employees of
Whitewood Oriental for SFO as of October 14 1983
and listed the names of the employees including Kel
leher s name with an asterisk aside of Kelleher s name
noting he had been terminated as of October 21 1983
On 9 November a letter addressed to Kelleher which
was purportedly signed by Whitewood s owner Yoon
and which was typed on stationery that was purportedly
Whitewood s stationery was mailed in San Francisco,
California The letter dated 26 October 1983 copies of
which were sent to the Boards Regional Office and
Labor Relations Consultant White, stated You are ter
minated from your position with our company as of Oc
tober 21 1983 due to absenteeism It is undisputed this
was Kelleher s first official notification of his termina
tion 90
On 10 November 1983, Kelleher accompanied Local
87 s representatives Leung and Sung to the preelection
conference conducted at SFO by the Board agent in
charge of conducting the representation election held
that day Kelleher was going to be Local 87 s election
observer However during the preelection conference
Gregory Choo, who attended with Yoon informed the
Local 87 s representatives that he was there to represent
the Company and that Kelleher was not eligible to par
ticipate in the election because he had been terminated
previously Leung communicated this information to
Kim s signature on the letter even though he was fired What if anything
Kelleher stated in reply to this Lim did not testify I have credited Kel
leher s testimony and rejected Lim s because when they testified about
this matter Kelleher s testimonial demeanor was good whereas Lim s
was poor
88 Kelleher testified the reason he ignored Lim s declaration that he
was terminated was because as far as he was concerned she had nothing
to do with Whitewood
90 I recognize employee Rho testified Kelleher told him on or about 22
or 23 October that he had been fired from his job The record as a whole
reveals Rho was mistaken about the date Kelleher said this to him The
only evidence that anyone ever told Kelleher he was terminated is the
evidence that Song Lim so advised him on 8 November that he was sub
sequently told this at the 10 November preelection conference and on 11
November when he received the 26 October termination letter Under
the circumstances I am persuaded Rho was mistaken in dating Kelleher s
remarks about being terminated and that Kelleher in all probability
spoke to him abou this matter either after Lim spoke to him 8 November
or after the 10 November preelection conference or after his receipt of
the 26 October termination letter
WHITEWOOD MAINTENANCE CO 1203
Kelleher and Local 87 designated another employee
Seo as its election observer 91
b Discussion and conclusions
The record establishes that a motivating factor in Re
spondent Whitewood s decision to terminate Kelleher
was his support of Local 87 My reasons for reaching
this conclusion follow
Kelleher was an adherent of Local 87 and Whitewood,
by virtue of Supervisor Kim s observation of him picket
ing for Local 87 on 8 November and Owner Yoon s ob
servation of him with Local 87 Business Agents Leung
and Sung on 30 October knew that he was a Local 87
adherent
Respondent Whitewood was hostile toward Local 87 s
organizational campaign as is evidenced by Owner
Yoon s 1 November 1983 statement of position urging
the employees to vote against Local 87 and by Yoon s
threat made early in October 1983 to have Local 87 or
ganizer Sung deported because he was organizing
Whitewood s employees, and his further threat to Sung
that the company would close if the company was
unionized
Even though Whitewood knew as early as 20 October
1983 that Kelleher would be absent from his job for an
indefinite period of time due to his broken wrist, it was
not until 9 November 1983, the day before the represen
tation election, that Whitewood for the first time notified
Kelleher of his termination Previously Whitewood had
notified the Board that Kelleher was one of the employ
ees eligible to vote in the NLRB election, and
Whitewood s owner had informed Kelleher that his ab
sence would be considered as a sick leave and Super
visor Kim had informed Kelleher that he had a job wait
ing for him when he recovered Thus on 20 October Su
pervisor Kim, on learning Kelleher was leaving work for
an indefinite period of time due to his wrist injury as
cured him that he had a job waiting for him when his
wrist recovered and granted him permission to be absent
On 29 October Owner Yoon specifically assured Kel
leher he was not terminated but was on sick leave ' On
31 October 1983 consistent with Yoon s 29 October dec
laration that Kelleher was on sick leave Labor Rela
tions Consultant White who previously had met with
Yoon on 29-30 October to discuss the scheduled repre
sentation election notified the Board on behalf of
Whitewood that Kelleher was one of the employees in
Whitewood s employ eligible to vote in the election
And on 8 November in order to assist Kelleher to ar
range for his Korean wife to immigrate into the United
91 The description of what went on during the 10 November preelec
tion conference is based on Leung s and Sung s testimony Yoon testified
he did not recall whether it was himself or Choo who objected to Kel
leher s eligibility Choo testified Yoon told him Kelleher was not eligible
to vote having been previously fired but then he testified inconsistently
that he did not have any discussion with Yoon about Kelleher s voting
eligibility When asked what Yoon said to him at this conference he re
fused to answer but stated the General Counsel should ask Yoon the
question and eventually testified it was someone other than himself who
objected to Kelleher s eligibility I have credited Leung s and Sung s tes
timony because their testimonial demeanor was good whereas Yoon s
and Choo s was poor when they testified about this preelection confer
ence
States from Korea Supervisor Kim signed a letter for
Kelleher which stated Kelleher was presently employed
by Whitewood as a full time employee The first notice
Kelleher received of his termination from a represents
tive of Whitewood was at the 10 November preelection
conference, Whitewood s 26 October 1983 termination
letter was not mailed until 9 November 1983 the day
after Supervisor Kim observed Kelleher participate in
Local 87 s 8 November demonstration
The circumstances surrounding Whitewood s 26 Octo
ber termination letter sent to Kelleher, when viewed in
the context of the other factors set forth supra, warrant
the inference Kelleher s discharge was motivated by
Whitewood s animus toward Local 87 First although
the termination letter was dated 26 October it was not
mailed until 9 November and no explanation was offered
for the backdating of the letter second, the signature on
the termination letter, although purporting to be Owner
Yoon s is not his signature , and there is no evidence to
explain this forger} or the reason for the forgery or who
committed it, third, the stationery on which the termina
tion letter was written, although purportedly to be
Whitewood s stationery, was not and once again there is
no evidence to explain this forgery or the reason for the
forgery or who committed it fourth, the testimony about
the circumstances that resulted in the preparation of the
termination letter in significant respects was inconsistent
and contradictory Song Lim testified the letter was
typed by her friend pursuant to a request made to Lim
by Owner Yoon 92 Later, Lim inconsistently testified it
was Labor Relations Consultant White not Yoon who
gave her this letter to have typed On the other hand,
White testified he was not the one who prepared or
drafted the letter and was unable to identify the person
who did He also testified he did not know who the
person was who prepared or drafted the letter But
Owner Yoon testified in effect, White was the person
who took care of everything, including Kelleher s ter
urination letter I am persuaded the highly unusual cir
cumstances surrounding the issuance of Kelleher s terms
nation letter and the inconsistent and contradictory tests
mony presented by Whitewood s witnesses in connection
with Whitewood s efforts to explain the issuance of this
letter when considered in context warrants an inference
that Kelleher was terminated by Whitewood because of
his support of Local 87 s organizational campaign
The above described circumstances in their totality
persuade me the General Counsel has, by a preponder
ance of the evidence made a prima facie showing suffi
dent to support the inference that a motivating factor in
Respondent Whitewood s decision to terminate Kelleher
was Kelleher s support of Local 87 s organizational cam
paign Accordingly, Respondent Whitewood must dem
onstrate by a preponderance of the evidence that Kel
leher would have been terminated even absent his sup
port of Local 87's organizational campaign I shall set
out and evaluate the evidence presented by Respondent
Whitewood in support of its contention that its decision
9 2 Lim further testified she did not remember when she gave the letter
to her friend to be typed nor did she have any recollection of ever re
ceiving it back from the typist
1204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to terminate Kelleher was motivated entirely by legiti
mate business considerations
Owner Yoon testified he personally decided to termi
nate Kelleher and made this decision at the start of No
vember 1983 , and at a subsequent meeting with Labor
Relations Consultant White at the Kyoto Hotel in San
Francisco that he told White he wanted Kelleher terms
nated because Kelleher had not told Yoon how long he
would be absent from work, whether he would be absent
for 1 month or a year and that Yoon could not leave
Kelleher s job open any longer Yoon further testified he
asked White to take care of Kelleher s termination in
cluding Kelleher s termination letter In this last regard
Yoon testified he did not prepare or sign Kelleher s 26
October termination letter and did not know who signed
or prepared the letter When asked if he recognized the
termination letter, Yoon testified, As I talked to Ken
White at the [Kyoto Hotel] coffee shop Ken White took
care of everything, and further testified, I made the
decision and I asked White to take care of it, to take care
of the documents
White testified that on 3 November 1983, he met with
Gregory Choo and Owner Yoon at the Kyoto Hotel cof
feeshop where, among other things, they went through
the names of the employees previously submitted to the
NLRB as being eligible to vote in the 10 November elec
tion White testified he asked Yoon whether any of these
employees had been laid off or terminated and learned
Kelleher was no longer on the company payroll because
of an injury White testified when he was informed of
this he asked whether Yoon had given Kelleher a leave
of absence or said anything formally to Kelleher in
that respect When Yoon answered no White told Yoon
that Kelleher was not an eligible voter and instructed
Yoon to discharge him White testified he did not pre
pare or draft Kelleher s termination letter and did not
know who prepared or drafted the letter
I reject Yoon s and White s testimony because their
demeanor was poor when they testified about the events
surrounding Kelleher s termination Also they contra
dicted each other on significant matters Yoon testified
in effect that prior to his 3 November meeting with
White he had already decided to terminate Kelleher and
during the meeting asked White to take care of Kel
leher s termination including the preparation of the ter
urination letter On the other hand White testified he
had nothing to do with Kelleher s termination letter and
did not even know who drafted it He testified in effect
that the decision to discharge Kelleher was made by
himself, not Yoon, when during the 3 November meet
ing after learning from Yoon that Kelleher had not been
given a leave of absence White told Yoon Kelleher was
not eligible to vote in the representation election and
told Yoon to terminate his employment
Moreover, assuming White s testimony is credible it
does not warrant a finding Kelleher would have been
discharged even absent his support of Local 87 s organs
zational campaign For it was based on owner Yoon s in
formation that Kelleher had not been granted any kind
of a leave of absence that White told Yoon to terminate
him As I have found supra Supervisor Kim and owner
Yoon each granted Kelleher a leave of absence Thus,
the fact that White may have been acting in good faith
when he told Yoon that Kelleher was not an eligible
voter and to terminate his employment is no defense to
the allegation that Kelleher s termination was illegally
motivated where, as here, after learning from White it
would be permissible to terminate Kelleher if he had not
been granted some kind of a leave of absence Yoon
falsely informed White that Kelleher had not been given
a leave of absence The surrounding circumstances war
rant a finding that in giving White this false information
Yoon was motivated by a desire to prevent Kelleher
from voting in the representation election because he
knew Kelleher was a Local 87 adherent
Based on the foregoing, I find the General Counsel has
proven by a preponderance of the evidence that in terms
nating employee Ronald Albert Kelleher on or about 9
November 1983, Respondent Whitewood was motivated
by its animus toward Kelleher for supporting Local 87 I
further find that by engaging in this conduct Respondent
Whitewood violated Section 8(a)(3) and (1) of the Act 93
However, I shall recommend the dismissal of the com
plaint insofar as it alleges World and Lucky were re
sponsible for Kelleher s discharge inasmuch as I have
found, supra, they were not joint employers of
Whitewood s SFO janitors
G The Alleged Violation of Section 8(a)(2) and (1)
of the Act
On 28 April 1983 Lucky s owner Song Lim, on behalf
of Lucky entered into a collective bargaining contract
with Local 77 covering Lucky s janitors Thereafter, in
the summer of 1983 she entered into a successor con
tract with Local 77 effective from 1 May 1983, until 1
May 1986 When Lim entered into the collective bar
gaining contract , Lucky was not in business and em
ployed no employees She entered into the contract with
the expectation of eventually getting a subcontract from
World to do janitorial work for airlines at SFO It was
not until 17 November 1983 when Lucky took over
Whitewood s SFO business that Lucky began doing
business as World s contractor at SFO and employed its
first employees Thereafter on 21 November 1983, Lim
met with Local 77 s president Buchanan they reexecut
ed the 1983-1986 contract that they previously had
signed in the summer of 1983 and changed the effective
93 I have not provided a remedial order for Kelleher s discharge be
cause at the start of the hearing Whitewood and the General Counsel
with the approval of Charging Party Local 87 settled this matter infor
mally and the General Counsel stated on the record that no remedial
order was being sought against Respondent Whitewood for Kelleher s it
legal discharge The General Counsel in its posthearing brief however
argues that Respondent Lucky as a successor employer has the duty to
remedy Whitewood s illegal discharge of Kelleher by offering Kelleher
reinstatement because Lucky s owner Lim and its agent Choo were re
sponsible for Kelleher s discharge and Lucky had knowledge of the ille
gal termination I reject the General Counsels request because there is no
showing Lucky was responsible for Kelleher s discharge nor is there a
showing Lucky knew at the time it became Whitewood s successor that
there was unfair labor practice litigation with the NLRB involving Kel
leher s discharge See Golden State Bottling Co v NLRB 414 U S 168
170-172 (1973) This is not surprising inasmuch as no unfair labor prac
tice charge was filed concerning Kelleher s discharge until after Lucky
took over Whitewood s SFO business
WHITEWOOD MAINTENANCE CO
date from 1 May to 1 December 1983, and added an ap
pendix to the contract in which Local 77 agreed to ex
elude from the contracts coverage four members of
Lim s immediate family who were employed by Lucky
as janitors On 1 December 1983 Lucky, in fact, ample
mented all the terms of the contract, including the con
tractual union security provisions Neither on 17 Novem
ber 1983 or on 21 November 1983 had a majority of the
employees employed by Lucky at SFO designated Local
77 as their collective bargaining representative
On 1 December 1983, Labor Relations Consultant
White wrote Local 87 s lawyer that Lucky s employees
at SFO were represented by Local 77 As found infra
there is no evidence that prior to this date Local 87
knew or should have reasonably known about Lucky s
collective bargaining relationship with Local 77
On 16 December 1983, Ronald Albert Kelleher, an
employee formerly employed as a janitor at SFO by
Whitewood, filed a charge in Case 20-CA-18582 alleg
ing among other things, Lucky violated Section 8(a)(1)
and (2) of the Act by `on or after 16 November 1983
recogniz(ing) [Local 77] which did not represent a
majority of the employer's employees On 10 January
1984 this charge was dismissed by the Board' s Regional
Director for lack of cooperation and no appeal was
taken from the dismissal Kelleher filed this charge at
Local 87 s direction Local 87 s reason for not cooperat
ing in the investigation was it believed the pendency of
the charge would block or otherwise hold up Local 87 s
certification in the representation proceeding involving
Whitewood's SFO janitors
On 29 March 1984 the Board certified Local 87 as the
collective bargaining representative of Whitewood s SFO
janitors
On 13 April 1984, Local 87 filed its charge in Case 20-
CA-18903 which alleged in pertinent part Lucky was
violating Section 8(a)(5) and (1) of the Act by refusing to
recognize and bargain with Local 87 The charge did not
allege, either directly or by implication that Lucky s col
lective bargaining relationship with Local 77 violated
Section 8(a)(2) and (1) of the Act, or violated the Act in
any other respect The charge contained no 8(a)(2) alle
gation The charge was not served on Lucky until 22
May 1984
Despite the absence of an 8(a)(2) allegation in the
charge the amended complaint in this proceeding issued
after the expiration of the 10(b) limitations period alleges
that besides violating Section 8(a)(5) and (1) of the Act
by refusing to recognize and bargain with Local 87 since
on or about 18 November 1983 that Lucky also violated
Section 8(a)(2) and (1) of the Act on or about 21 No
vember 1983 by granting recognition and entering into a
collective bargaining contract with Local 77 and by en
forcing the terms of that contract effective 1 December
1983 notwithstanding that Local 77 did not represent a
majority of Lucky s SFO janitors when Lucky recog
nized and entered into the contract with that union
Respondent Lucky at the start of the hearing filed a
motion to dismiss which I reserved ruling on asking
that the complaint's 8(a)(2) allegations be dismissed be
cause of the absence of an 8(a)(2) allegation in the under
lying unfair labor practice charges The General Counsel
1205
contends the 8(a)(2) allegations were properly included
in the amended complaint because they are closely re
lated to the 8(a)(5) allegations contained in the underly
ing charge Respondent Lucky, however, takes the pose
tion the 8(a)(2) and (5) allegations are not closely relat
ed and, in any event the closely related doctrine is
inapplicable because the Boards General Counsel previ
ously dismissed an unfair labor practice charge initiated
by Local 87 containing the identical 8(a)(2) allegations as
were included in the complaint
It is well settled that the complaint may allege viola
tions of a different Section of the Act than that alleged
in the charge if they are closely related to the violations
named in the charge and occurred within 6 months of
the filing of the charge American Pacific Concrete Pipe
Co, 262 NLRB 1223 fn 1 (1982), quoting from Sunrise
Manor Nursing Home, 199 NLRB 1120, 1121 (1972) I am
persuaded for the reasons set forth that the complaint s
8(a)(2) allegations are not closely related to the 8(a)(5)
violations alleged in the charge, and for this reason I
shall recommend the dismissal of the complaints 8(a)(2)
allegations 94
First, the actual acts charged differ from what is al
leged in the complaint Lucky was charged with refusing
to recognize and bargain with Local 87 in violation of
Section 8(a)(5) and (1) because Local 87 was the certified
bargaining representative of its employees whereas the
complaint alleges that Lucky s recognition of and its
contract with Local 77 violated Section 8(a)(2) and (1) of
the Act because Local 77 did not represent a majority of
Lucky s employees
Second, the acts charged and the acts alleged in the
complaint are not part of the same course of conduct
There is no evidence that when Lucky entered into its
collective bargaining relationship with Local 77 that it
did so in order to avoid having to bargain with Local 87
Quite the opposite the record reveals that anticipating
being given a contract by World to do janitorial work
for airlines at SFO Lucky entered into its collective bar
gaining relationship with Local 77 long before Local 87
ever appeared on the scene In other words not only do
the actual acts charged differ from what is alleged in the
complaint but the record reveals they were not engaged
in as part of a common endeavor for a single purpose
Third the legal theories concerning Lucky s alleged it
legal refusal to bargain with Local 87 and its alleged ille
gal collective bargaining relationship with Local 77 are
unrelated The refusal to recognize and bargain with
Local 87 is predicated on the theory that Lucky was a
successor employer to Whitewood and as such stood in
Whitewood s shoes and assumed its obligation to bargain
with Local 87, whereas the alleged illegality of Lucky s
bargaining relationship with Local 77 is predicated on
the fact Local 77 did not represent a majority of Lucky s
employees
94 I have not considered Respondent Lucky s alternate contention that
the closely related doctrine is not applicable because of the General
Counsel s prior dismissal of the 8(a)(2) charge filed by employee Kelleher
that was initiated by Local 87 Likewise I have not considered whether
the alleged 8(a)(2) violations concurred within 6 months of the filing of
Local 87 s charge in Case 20-CA-18903
1206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In summation the only connection between the allega
tion in the complaint that Lucky violated Section 8(a)(2)
because of its bargaining relationship with Local 77 and
the allegation in the charge that it violated Section
8(a)(5) by refusing to recognize Local 87 is that they are
related in time They are predicated on totally different
facts and do not involve a common endeavor engaged in
for a single purpose Accordingly the two allegations
are not closely related and do not arise out of the same
course of conduct 95 I shall therefore dismiss the com
plaint s 8(a)(2) allegations
H The Alleged Violations of Section 8(a)(5) and (1)
of the Act96
1 Respondent Lucky s refusal to recognize and
bargain with Local 87
a The evidence
On 10 November or 11 November 1983 Respondents
World and Lucky finalized their agreement that Lucky
would take over Whitewood s contract with World to
perform janitorial work at SFO for several airlines 97
Thereafter, Lucky purchased all of Whitewood s equip
ment and supplies used in Whitewood s SFO business
and on 17 Novemeber 1983 took over the business
When Lucky took over Whitewood s SFO business it
continued to use the equipment and supplies formerly
used by Whitewood and continued to purchase a signifi
cant amount of its equipment and supplies from suppliers
with whom Whitewood had done business Also, Lucky
performed the identical work at SFO as Whitewood for
the same customers formerly serviced by Whitewood at
the same location, and it continued to employ as supervi
sors one of the two supervisors employed by
Whitewood, the other having terminated his employment
just prior to Whitewood s cessation of business
On 16 November 1983 its last full day of operation
Whitewood employed 18 nonsupervisory employees of
whom all but two, who chose not to apply for employ
ment were hired on 17 November 1983 by Lucky to
work as janitors at SFO The record also reveals that on
17 November 1983 Lucky s first day of operation,
Lucky employed 16 nonsupervisory janitors all of whom
95 American Pacific Concrete Pipe 262 NLRB 1223 fn 1 ( 1982) and
Sunrise Nursing Home 199 NLRB 1120 1121 (1972 ) cited by the Gener
al Counsel are factually distinguishable in significant respects In Sunrise
Manor the complaints 8(a)(2) allegation and the charges 8(a)(5 ) and (1)
allegations were based on the identical set of facts In American Pacific
Concrete Pipe which relied on Sunrise Manor the Board specifically
noted that in this case the basis for the amendment is the close relation
ship between the 8 (a)(2) and 8(a)(5) allegations of the charge and com
plaint which are supported by the same record evidence (Emphasis added )
96 The amended complaint alleges Respondent World violated Sec
8(a)(5) and ( 1) of the Act by refusing to bargain with Local 87 in several
different respects These allegations are based on the premise that World
was a joint employer of the unit employees involved in this case with
Respondents Lucky and Whitewood I have previously rejected this con
tention I therefore shall recommend the dismissal of the allegations
which charge World with refusing to bargain within the meaning of Sec
8(a)(5) and (1) of the Act
97 As I have found supra by letter dated 3 October 1983 World gave
Whitewood notice that effective on or about 15 November 1983 it was
canceling World s janitorial subcontract with Whnewood
were former Whitewood SFO janitors 98 and continued
to employ a majority of former Whitewood SFO janitors
throughout the month of November 1983 until at least 2
December 1983 These janitors exercised the same skills
and used the same tools and equipment as had been the
case when they were employed by Whitewood It is also
undisputed that commencing on 17 November 1983
Lucky employed a substantial and representative comple
ment of janitors Lastly with respect to the number of
former Whitewood employees employed by Lucky, the
record shows that by the time Local 87 was certified by
the Board on 29 March 1984, as the exclusive majority
representative of Whitewood s SFO janitors, that a ma
jority of Lucky s janitors were no longer former
Whitewood employees 99
As I have described in detail supra, on 10 November
1983 the Board conducted a secret ballot election among
Whitewood s SFO employees based on an election pets
tion filed with the Board by Local 87, to determine
whether the employees desired to be represented by
Local 87 for purposes of collective bargaining Nine em
ployees voted in favor of representation by Local 87,
seven against and four ballots were challenged, thus
making it necessary for the Board to resolve the chal
lenges before declaring the final election result Also, fol
lowing the election, Whitewood filed a timely objection
to the election asking that it be set aside because of
Local 87 s alleged act of misconduct In late January
1984 a hearing was conducted by a Board hearing officer
on the challenges and objection that eventually resulted
in Whitewood s objection being nonmeritorious and
three of the challenged ballots being opened On 20
March 1984 when the challenged ballots were opened
the revised tally of ballots showed that Local 87 won the
election 11 to 8 On 29 March 1984 the Board issued a
Certification of Representative, certifying that Local
87 was the exclusive collective bargaining representative
of all the nonsupervisory janitors employed by
Whttewood at SFO
On 10 November 1983 immediately after the ballots
were counted in the representation election held that
day, Local 87 s business agent Richard Leung as he was
leaving the election area, spoke to Whitewood s owner
Charles Yoon in the presence of Lucky s agent Gregory
Choo It is admitted that Leung asked Yoon when Yoon
would sit down and negotiate with Local 87 now that
98 Lucky also employed four of Owner Lim s immediate family whom
the parties to this proceeding agree are not to be considered in determin
ing Local 87 s status as a successor employer See NLRB v Action Auto
motive 469 U S 490 ( 1985) Indeed these family members were specifical
ly excluded from the coverage of Lucky s collective bargaining agree
ment with Local 77
e 9 The record shows that of Lucky s 10 bargaining unit janitors em
ployed on 29 March 1984 there were three former Whitewood employ
ees and that a fourth Kim II whom Lucky in its posthearing brief asserts
was employed at that time had in fact quit his employment early in Janu
ary 1984 Because I have found that employees Seo and Rho were illegal
ly discharged by Lucky their inclusion in the computation would raise
the number of holdover employees from three to five still insufficient to
make the holdovers a majority I reject the General Counsels contention
that discriminatee Albert Kelleher shoulo be included in the computation
Kelleher was discharged by Whitewood prior to Lucky s assumption of
Whitewood s business and as I have found supra Lucky is not responsi
ble for remedying his illegal discharge
WHITEWOOD MAINTENANCE CO 1207
Local 87 had won the election, and that Yoon responded
by stating In a hundred years Likewise it is undis
puted that late in March 1984 apparently after the 20
March 1984 revised tally of ballots issued in the repre
sentation case showing that Local 87 had won the elec
tion Leung spoke to Choo and informed him that inas
much as it looked like Local 87 had won the election,
you have to bargain with me Choo replied by stating
that Leung had picked the wrong party again and in
dicated he did not have the authority to bargain with
Local 87 Thereafter, on 4 April 1984, Respondent
Lucky received a mailgram from Local 87 stating Local
87 had been certified by the Board as the collective bar
gaining representative for Lucky s SFO janitors and
asked Lucky to contact Local 87 as soon as possible to
arrange for collective bargaining sessions Lucky did not
respond
In dispute is whether in November 1983, after learning
Respondent Lucky had taken over Whitewood s SFO
operations Leung asked Song Lim and Gregory Choo,
on separate occasions, to negotiate for a contract with
Local 87 Leung testified that approximately 1 week
after the 10 November election, when he was informed
about Lucky s assumption of Whitewood s SFO business,
he went to SFO to discover what was going on At that
time Leung spoke to Choo and told him he thought
Lucky and Whitewood were playing the corporate
shell game in an effort to avoid bargaining with Local
87 and stated that since Local 87 had won the election
there was no reason why Lucky should not sit down and
negotiate with Local 87 In response Choo stated the
election did not involve Lucky and Lucky was a new
company not obligated to bargain with Local 87 Subse
quently late in the afternoon or early evening on 22 No
vember 1983, after receiving word from employee Py
that Lim had discharged him for the second time that
day, Leung testified he telephoned Lim and, after pro
testing Py s discharge asked her to sit down and negoti
ate with Local 87 In response, Lim stated Lucky was
not obligated to bargain with Local 87 and told Leung
not to bother her 100 Leung also testified that on 23 No
vember 1983 late in the afternoon or early evening he
met Choo at SFO and after speaking about employee
Seo s discharge told Choo they should sit down and ne
gotiate Choo replied by stating Lucky was not obligated
to bargain with Local 87 and was on his way to Los An
geles Leung s testimony concerning this conversation is
corroborated in significant respects by Local 87 s orga
nizer Nak Sung However he places the conversation as
having occurred the next day
Song Lim and Gregory Choo testified they did not
have the above described conversation with Leung Lim
denied receiving a telephone call from Leung on 22 No
vember She further testified she never received a tele
phone call from him Choo testified that after Lucky
took over Whitewood s SFO operation, the first time
Leung mentioned contract negotiations was when
Leung as described supra spoke to him late in March
1984 Also Choo Choo s wife and Lim gave testimony
which if credible impugn s description of Choo as the
man whom he spoke to on 23 November However,
while there is some doubt in my mind about Leung s reli
ability when he described in his affidavit what Choo was
wearing and carrying on 23 November there is no doubt
in my mind that in November 1983, as Leung testified
after learning Lucky had taken over Whitewood s SFO
operation he spoke to both Choo and Song Lim about
negotiations For when Leung testified about these con
versations his demeanor was good, whereas when Lim
and Choo testified about these conversations their de
meanor was poor i 0 i In concluding that when Leung in
November 1983 learned Lucky had taken over
Whitewood s SFO operation that he spoke to Song Lim
and Choo about contract negotiations, I have considered
the possibility that Leung s testimony is unworthy of
belief because of the fact that it was not until the issu
ance in late March 1984 of the revised tally of ballots,
that it was demonstrated Local 87 had in fact won the
election However it is undisputed, as I have found
supra, that on 10 November 1983, immediately following
the representation election, Leung confronted White
wood s owner Yoon with the assertion that Local 87 had
won the election and demanded Whitewood negotiate
with Local 87 Under the circumstances it is not surpris
ing when Leung discovered Lucky had taken over
Whitewood s SFO janitorial business that he, as he had
previously done in the case of Whitewood, promptly
spoke to Lucky s representatives and demanded Lucky
sit down and negotiate with Local 87
In summation I find that on 22 November 1983 Local
87 s business agent Leung asked Lucky s owner Lim to
sit down and negotiate with Local 87 and Lim replied
by stating Lucky was not obligated to bargain with
Local 87 and for Leung not to bother her Thereafter on
the Board's issuance of Local 87 s certification on 29
March 1984 Local 87 on 4 April 1984, telegrammed
Lucky and repeated Leung s earlier request that Lim
meet with Local 87 to negotiate a contract for Lucky s
SFO janitors In addition I find that on or about 17 No
vember and 23 November 1983 and again soon after the
issuance of the revised tally of ballots on 20 March 1984
Leung spoke to Lucky s agent Choo and asked Lucky to
sit down and negotiate a contract with Local 87 I am
also persuaded that in view of Choo s close business rela
tionship with Lim it is a fair inference that Choo kept
Lim informed about Local 87 s demands for recognition
and bargaining i02
100 Leung testified the telephone number he used to reach Lim was a
number that employees had given him and was the number of the Union
Maintenance Company s SFO operations office The record shows Song
Lim s brother Jae Lim who had helped Song Lim finance Lucky was
employed by Union Maintenance Company in November 1983 as its SFO
operations manager and that he worked at that company s SFO office
from 8 a in to 5 p in and after 5 p in he was employed by Song Lim at
SFO as a working foreman
101 I also note that while Sung was mistaken about the date on which
he overheard Leung speak to Choo his testimonial demeanor was good
when he described what he overheard
102 Choo was the person who enabled Lim to go into business by
guaranteeing her bank loan Also he was present at SFO quite frequently
in connection with Lucky s business especially during the first few
months of Lucky s operations The record further reveals Choo on
Lucky s behalf negotiated contracts with airlines purchased and re
Continued
1208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a Discussions and conclusions
The amended complaint alleges that commencing on
or about 18 November 1983 and continuing to date,
Lucky failed and refused to recognize and bargain with
Local 87 as the exclusive collective bargaining represent
ative of Lucky s SFO janitors There is no dispute that
these janitors constitute an appropriate bargaining unit
Lucky s statutory obligation to recognize and bargain
with Local 87, however depends on Lucky s obligation
to honor the Board s 29 March 1984 certification of
Local 87 as the janitors exclusive collective bargaining
agent , even though the certification names Whitewood
not Lucky , as the janitors employer The resolution of
this issue depends on whether when Whitewood s SFO
business was transferred to Lucky on 17 November 1983
Lucky was a successor employer so that for purposes of
the 10 November 1983 Board conducted representation
election which resulted in the Board s 29 March 1984
certification of Local 87, Lucky stood in Whitewood s
shoes and was legally obligated to honor the Board s cer
tification 1 03 I am persuaded that on 17 November 1983
when Lucky commenced doing business at SFO in
Whitewood s place Lucky did so as a successor employ
er for purposes of the representation election which had
been conducted among Whitewood s janitors a week ear
her and which was then pending before the Board Be
cause of it ., status as a successor employer, Lucky was
obligated under the Act to honor the Board s 29 March
1984 certification of Local 87 In reaching this conclu
sion I relied on the following considerations
On 17 November 1983 when Lucky took over
Whitewood s SFO business , it hired a substantial and
representative complement of 16 nonsupervisory bargain
ing unit janitors each one of whom had worked for
Whitewood and each one of whom had voted in the
Board conducted representation election held 1 week
earlier 1 04 The record also establishes there was a sub
ceived supplies on at least one occasion represented himself to an airline
as Lucky s president in connection with a contract bid and on another
occasion was introduced by Lim to an airline representative as Lim s su
pervisor Also it was Choo who effectively recommended that Lim dis
charge employee Seo and it was Choo who accompanied Lim on 16 and
21 November 1983 when she visited Local 77 to discuss Lucky s bargain
mg relationship with that union and Choo participated in those discus
stons During the hearing Respondent Lucky stipulated that during the
time material Choo acted as Lucky s agent and in its posthearing brief
Respondent Lucky describes Choo as Lim s principal advisor and confi
dant In view of the circumstances I am persuaded it is a fair inference
that whenever Local 87 representative Leung spoke to Choo about
Lucky bargaining with Local 87 as the janitors collective bargaining rep
resentative that Choo in his role as Lim s principal advisor and conft
dant kept her informed of these demands
ioa See Dynamic Machine Co 221 NLRB 1140 (1975) enfd 552 F 2d
1195 (7th Cir 1977)
104 Although all 16 of the former Whrtewood SFO janitors were hired
by Lucky on 17 November 1983 it is undisputed that when Lucky s
owner Lim met with the employees on that day she told them they were
being hired on a temporary basis and must fill out employment applica
tions and that Lim would interview them It is apparent however that
the requirement that the employees fill out an employment application
and be interviewed was in the nature of a condition subsequent and was
not essential to their employment Thus no applications were ever sub
mitted to Lucky by employees Pedro Ngo Kun Yd Kim and Edward
Wallace and in some instances it was not until several days after 17 No
vember that the employment applications were filled out and/or the em
ployees interviewed and in the cases of at least three employees-Seo
stantial continuity in the employing industry following
Lucky s takeover The janitors when employed by
Lucky performed the same services using the same skills
and equipment as had been the case when they worked
for Whitewood and Lucky serviced the same customers
as Whitewood at the same locations
Also highly significant in determining Lucky s status
as a successor employer for purposes of assuming the ob
legations incurred by Whitewood in the representation
election proceeding pending before the Board when
Lucky took over Whitewood s SFO business, is the fact
that on or about 11 November 1983 when Lucky final
ized its agreement with World to take over World s sub
contract with Whitewood and on 17 November when
Lucky replaced Whitewood as World s subcontractor,
Lucky owner Song Lim was well aware of the penden
cy of the representation case involving Whitewood s
janitors She knew about Local 87 s representation pets
tion and about the results of the 10 November 1983 elec
tion She knew Local 87 might eventually be certified as
the janitors exclusive bargaining representative More
over both Lim and Lucky s agent Gregory Choo were
intimately involved in various aspects of the representa
tion election Late in October and early in November
1983 they attended and participated in meetings between
Labor Relations Consultant White and Whitewood s
owner Yoon where Whitewood s election strategy was
formulated and discussed During this same period of
time Lim in anticipation of taking over Whitewood s
SFO business attempted to discourage Whitewood s
janitors from voting for Local 87 in the scheduled repre
sentation election by threatening them with reprisals and
promising them employment benefits Also Lim and
Choo prior to the election assisted Whitewood s owner
Yoon in a number of ways concerning the election 505
Their involvement concerning the election did not cease
on the day of the election but they were also involved
in the postelection day proceedings involving the chal
lenged ballots and the objection filed by Whitewood to
the election Thus, the 11 November 1983 Declaration
of Whitewood employee Wallace filed with the Board
on behalf of Whitewood in support of Whitewood s ob
jection was witnessed by Lim and Choo and Choo rep
resented Whitewood s owner Yoon at the hearing on ob
jections and challenges conducted by the Board and he
Jhun and Py-no interviews were ever conducted Moreover there is no
evidence that any of the employees hired on 17 November were subse
quently terminated as a result of Lim s interviews or because of informa
tion contained in their employment application Also it is significant that
Lucky s owner Lim did not testify about the employment status of the 16
former Whitewood employees who she admittedly hired on 17 Novem
ber She did not testify that their status as employees was conditioned on
the outcome of their interviews Under these circumstances my finding
that Lucky on 17 November 1983 hired a substantial and representative
complement of 16 nonsupervisory janitors each one of whom had
worked for Whitewood is warranted despite the fact that Lim when she
employed the employees indicated to them that their employment was
temporary pending their submission of an employment application and an
interview
ios As indicated previously Lim saw to it that Yoon s preelection
statement to the employees was typed and translated into Korean and
she distributed at least one copy of the statement to an employee Choo
assisted Yoon at the preelection conference held on the day of the elec
tion
WHITEWOOD MAINTENANCE CO 1209
0
assisted Labor Relations Consultant White in presenting
the Company s case at that hearing Under the circum
stances I find that when Lucky took over Whitewood s
SFO business it was not only well aware of the pending
representation election case involving Whitewood s jam
tors pending before the Board and that it could result in
the Board s certifying Local 87 as the exclusive bargain
ing representative of the janitors but that Lucky
through its owner Lim and its agent Choo, actively par
ticipated in all phases of that election proceeding
Considering that on 17 November 1983 when Lucky
commenced doing business at SFO, all of its nonsupervi
sory janitors had been formerly employed by its prede
cessor Whitewood and constituted a substantial and rep
resentative complement of the janitors that Lucky would
thereafter employ, i 06 considering that they constituted
an appropriate bargaining unit considering there was a
substantial continuity in the employing industry follow
ing Lucky s takeover, considering Lucky knew of the
pending representation case before the Board involving
the janitors and that it could result in the Board certify
ing Local 87 as the exclusive representative of the ,jani
tors and that Lucky also actively participated in all
phases of the election proceeding, even to the extent of
campaigning against Local 87, and, considering that all
the employees who were employed by Lucky when it
commenced doing business voted in the representation
election I am persuaded the General Counsel has proven
by a preponderance of the evidence that when Lucky
began doing business at SFO on 17 November it was a
successor employer to Whitewood for purposes of the
representation election proceeding which was pending
before the Board, and as Whitewood s successor stood in
its shoes with regard to the results of that proceeding It
is for this reason that I further find that when the Board
in the election proceeding on 29 March 1984 certified
Local 87 as the exclusive collective bargaining represent
ative of Whitewood s SFO janitors that Lucky was obli
gated to honor and abide by the certification Dynamic
Machine Co 231 NLRB 1140 (1975) enfd 552 F 2d
1195 (7th Cir 1977)
Having found Respondent Lucky as the successor em
ployer of Whitewood s SFO janitors was obligated
under the Act to honor the Board s 29 March 1984 certi
fication of Local 87 as the exclusive bargaining repre
106 Because Lucky employed a substantial and representative comple
ment of unit employees on 17 November 1983 when it took over
Whitewood s SFO business and employed a majority of Whitewood s
former bargaining unit employees it was not necessary for the General
Counsel to also establish that Lucky employed a majority of former
Whitewood unit employees on either 29 March 1984 when the Board
issued its certification or on 4 April 1984 when following the certifica
tion Local 87 demanded recognition and bargaining The day that
Whitewood s SFO business was transferred to Lucky is an especially ap
propriate one to use to determine Lucky s status as Whitewood s succes
sor for purposes of the Board s representation election because the elec
tion took place only I week before the transfer and each one of the em
ployees hired by Lucky voted in that election I also note that in succes
sorship cases which involve the question of when a successor employer is
obligated to bargain with a labor organization the law is settled the bar
gaining obligation is normally determined at the time of transfer if the
successor employer at that time employs as in this case a substantial and
representative complement of unit employees NLRB v Hudson River Ag
gregates 639 F 2d 865 870 (2d Cir 1981) Indianapolis Mack Sales 272
NLRB 690 (1984)
sentative of those janitors, 107 I further find that Re
spondent Lucky violated Section 8(a)(5) and (1) of the
Act when it failed and refused to respond to Local 87 s 4
April 1984 demand that in accordance with the Board s
certification Lucky recognize and bargain with Local 87
as the janitors collective bargaining representative roe
Respondent Lucky in its posthearing brief argues that
under the special circumstances here a bargaining order
is inappropriate and in support of this argument con
tends (1) The parent organization of Local 77 and Local
87 Service Employees International Union (SEIU), reas
signed the jurisdiction of Lucky s SFO janitors from
Local 77 to Local 87 without affording the janitors an
opportunity to express their sentiments in the matter, (2)
Lucky has a good faith doubt as to the continued majors
ty status of Local 87
Regarding (1) the record shows Locals 77 and 87 sub
mitted their dispute over which local had jurisdiction of
Lucky s SFO janitors to the SEIU which after a hear
ing, on 5 April 1984 awarded Local 87 the jurisdiction
Thereafter, both local unions notified Lucky of the
award and Local 77 notified the unit employees about
the award and further advised them their membership
would be transferred from Local 77 to Local 87 109
107 In making this finding I have taken into account Lucky s collec
five bargaining relationship with Local 77 As described supra several
months before it took over Whitewood s SFO business Lucky entered
into a prehire contract with Local 77 in which it agreed to recognize that
union as the collective bargaining representative of any janitors it might
employ in the future In other words Lucky s collective bargaining rela
tionship with Local 77 was not based on the desire of a majority of the
employees it employed when Lucky took over Whitewood s SFO busy
ness rather it was based on Lucky s desire to have that union represent
its employees The employees who Lucky employed when it commenced
doing business while they were employed by Whitewood had indicated
that they wanted Local 87 to be their collective bargaining representative
by voting for that union in a secret ballot election conducted by the
Board When Lucky took over Whitewood s SFO business it knew each
one of its employees had voted in that election and was well aware of the
possibility that a majority of them had voted for Local 87 and as a result
the Board would certify that union as the employees collective bargain
mg representative It is for all the foregoing circumstances that Lucky s
collective bargaining relationship with Local 77 does not preclude the
finding Lucky succeeded to Whitewood s obligation under the Board s
certification
i08 Respondent Lucky takes the position this allegation should be dis
missed because it alleges Lucky s initial refusal to recognize and bargain
with Local 87 occurred on or about 18 November 1983 which was out
side of the limitations period established by Sec 10(b) of the Act As I
have found supra on 17 November 1983 a date outside of the 10(b) limn
tations period Lucky s agent Choo refused Local 87 s demand for bar
gaining Respondent Lucky s 10(b) argument is premised on the assump
tion that on 17 November it was obliged by the Act to sit down and bar
gain with Local 87 for a contract covering the unit employees and that
Choo as Lucky s agent was acting within the scope of his authority real
or apparent in receiving and rejecting such a request Assuming this to
be the case the law is settled that when as here an employer has a con
tinning bargaining obligation that each refusal to bargain is a viola
tion of the employers duty and that the passage of more than 6 months
time from one such refusal does not bar action by the National Labor
Relations Board on a timely complaint based on a subsequent refusal
[cases cited] Ray McDermott & Co 571 F 2d 850 (5th Cir 1978)
Accord C & P Telephone Co v NLRB 687 F 2d 633 (2d Cir 1982)
109 Under the union security provision in Lucky s contract with Local
77 as found supra the unit employees were required to join Local 77 as
a condition of continued employment
1210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
However because Lucky as I have found supra was ob
legated under the Act to recognize and bargain with
Local 87, which was the unit employees certified collec
tive bargaining representative SEIU s award of jursidic
tion over them to Local 87, rather than to Local 77 did
not change the identity of the employees collective bar
gaining representative Accordingly, the fact that the em
ployees were not given an opportunity to participate in
the SEIU award and express their sentiments in this
matter was of no consequence Under the circumstances,
Lucky s contention that the employees lack of participa
tion excused its refusal to recognize and bargain with
Local 87 is without merit
Lucky s further contention that it has [a] good faith
doubt as to the continued majority status of Local 87 is
based on Respondents Exhibit 33, a petition dated 3
February 1985 addressed to SEIU s president It was
purportedly signed by approximately 16 of Lucky s unit
employees on various dates between 2 and 17 February
1985 It states the employees desired to stay with Local
77, not with Local 87 When Lucky offered this petition
into evidence, the General Counsel objected on the
grounds of relevancy Lucky did not justify its admission
into evidence on the ground that it established Lucky s
good faith belief of Local 87 s continued majority status
rather Lucky stated the relevance goes to my merger
argument and explained that a sub argument in this
case is that if 77 attempted to transfer its jurisdiction
to Local 87[ ] there was testimony there was no vote
among the employees and this document shows in our
judgment their sentiments I sustained the General
Counsels objection and rejected the petition Lucky of
fered no evidence establishing the petition was what it
purported to be, or that Lucky ever received a copy of
the petition Nor did Lucky make an offer of proof in
connection with its offer of the petition Under the cir
cumstances Lucky s contention made for the first time in
its posthearing brief that the petition is relevant to show
Lucky has a good faith doubt of Local 87 s majority
status comes too late Accordingly I deny Lucky s re
quest that I reverse my ruling and admit the petition
Lucky s Exhibit 33 into evidence In any event assum
ing arguendo Lucky did prove that a majority of the unit
employees in February 1985 wanted to be represented by
Local 77 rather than by Local 87 and informed Lucky of
this it would not justify Lucky s illegal refusal to recog
nize and bargain with Local 87 which occurred 10
months earlier For once it has been determined an em
ployer has unlawfully withheld recognition to which the
employees bargaining representative was entitled, the
employer is precluded from defending against a remedial
bargaining order by pointing to an intervening loss of
employee support for the union that is the foreseeable
consequence of the employer's unfair labor practice
Franks Bros Co v NLRB, 321 US 702 (1944) Here
not only did the evidence of employee dissatisfaction
with Local 87 postdate the time at which Lucky became
obligated to bargain and failed to do so but also such
dissatisfaction was a foreseeable consequence of Lucky s
illegal refusal to recognize and bargain with Local 87
Had Lucky voluntarily bargained with Local 87 the em
ployees certified bargaining representative the employ
ees might not have signed the petition Furthermore be
cause of the 1 year certification bar Lucky may not
rebut Local 87 s presumption of majority support by
showing as it attempts to do, that it had a good faith
doubt of Local 87 s majority status in February 1985
which is within Local 87 s certification year Dynamic
Machine Co v NLRB, 552 F 2d 1195, 1204-1205 (7th
Cir 1977) citing Brooks v NLRB 348 US 96, 98-99
(1954)
2 Respondent Lucky recognizes and contracts with
Local 77
The amended complaint alleges Respondent Lucky
since on or about 21 November 1983 has refused to bar
gain with Local 87 within the meaning of Section 8(a)(5)
of the Act by recognizing Local 77 as the bargaining
representative of Lucky s SFO janitors and entering into
a collective bargaining contract with that union covering
the janitors, and by maintaining and enforcing the con
tract since 1 December 1983
As I have found supra, several months before it took
over Whitewood s SFO business and employed employ
ees, Lucky entered into a prehire contract with Local 77
whereby it agreed to recognize Local 77 as the collec
tive bargaining representative of any janitors Lucky
might employ in the future, and it agreed that the jani
tors terms and conditions of employment would be gov
erned by the terms of the contract which was effective
from 1 May 1983 to 1 May 1986 On 21 November 1983
4 days after taking over Whitewood s SFO business
Lucky s owner Lim met with Local 77 s president Bu
chanan in an effort to negotiate concession in the con
tract s terms Buchanan however would agree to only
two changes in the existing contract and Lim and Bu
chanan resigned the 1983-1986 contract with these two
changes the effective date was changed from 1 May
1983 to 1 December 1983 and an appendix was added to
the contract stating in effect that four members of Lim s
immediate family who were employed by Lucky as jani
tors at SFO, were excluded from the contracts cover
age On 1 December 1983 Lucky placed into effect the
terms and conditions of employment contained in the
contract and since then has maintained and enforced the
contract
As described in detail supra 1 week before Lucky
took over Whitewood s SFO business Whitewood s jani
tors voted in a Board conducted representation election
nine to seven in favor of being represented by Local 87
The results of the election however were not final inas
much as there was a sufficient number of challenged bal
lots to be determinative, and Whitewood filed a timely
objection to the election Subsequently the Board re
solved the challenged ballots and found Lucky's objet
tion to be without merit, and the result was that Local
87 wor the election and on 29 March 1984, was certified
by the Board as the exclusive collective bargaining rep
resentative of Whitewood s SFO janitors As I have
found supra Lucky, as a successor employer of
Whitewood s SFO janitors was obligated under the Act
to honor the Board s 29 March 1984 certification This
meant that whatever obligations Whitewood would have
WHITEWOOD MAINTENANCE CO
had under the Board s certification if it had remained in
business at SFO were assumed by Lucky when it took
over Whitewood s SFO business Dynamic Machine Co
221 NLRB 1140 (1975) enfd 552 F 2d 1195 (7th Cir
1977) Accordingly absent compelling economic con
siderations Lucky was obligated to refrain from making
unilateral changes in the janitors terms and conditions of
employment during the pendency of the representation
election without first affording Local 87 an opportunity
to bargain about the matters O'Connor Chevrolet Buick
GMC, 209 NLRB 701 (1974), Van Dorn Plastic Machin
ery, 265 NLRB 864 865 (1982) Injected Rubber Products
258 NLRB 687, 696-697 (1981) Han Dee Pak 249
NLRB 725 (1980) As the Board stated in 0 Connor
Chevrolet supra 209 NLRB at 703
absent compelling economic considerations for
doing so, an employer acts at its peril in making
changes in terms and conditions of employment
during the period that objections to an election are
pending and the final determination has not yet
been made And where the final determination of
the objections results in the certification of a repre
sentative the Board has held the employer to have
violated Section 8(a)(5) and (1) for having made
such unilateral changes Such changes have the
effect of bypassing, undercutting, and undermining
the union s status as the statutory representative of
the employees in the event a certification is issued
To hold otherwise would allow an employer to box
the union in on future bargaining positions by im
plementing changes or policy and practice during
the period when objections or determinative chal
lenges to the election are pending
In the instant case it is plain when Lucky during the
pendency of the election proceeding recognized and en
tered into a collective bargaining contract with Local 77
and enforced and maintained in effect the terms of that
contract, this conduct by its very nature had the inevita
ble effect of obstructing collective bargaining between
Lucky and Local 87 the employees certified collective
bargaining representative and of bypassing undercut
ting and undermining Local 87 s status as the employees
certified bargaining representative 'to
It is for the reasons set forth above that I find as al
leged in the amended complaint Respondent Lucky re
fused to bargain with Local 87 within the meaning of
110 I note that the respondent employer in Mike 0 Connor Chevrolet
supra was a successor employer who took over the predecessors bust
ness during the pendency before the Board of a representation proceed
mg which resulted in the union s certification (209 NLRB at 707) In
finding the unilateral changes made by the respondent employer during
the pendency of the representation election violated Sec 8(a)(5) and (1)
of the Act the Board rejected the respondent employer s defense that as
a new employer it had to make known its policies to its employees (209
NLRB at 704) In the instant case Lucky makes no contention its bar
gaining relationship and contract with Local 77 was necessitated by
compelling economic considerations I also note that even in the ab
sence of a request for bargaining by Local 87 prior to Lucky s recogni
tion and contract with Local 77 that Lucky s conduct constituted an the
gal refusal to bargain See Fugazy Continental v NLRB 725 F 2d 1416
(D C Cir 1984) citing with approval Injected Rubber Products Corp 258
NLRB 687 696-697 (1981)
1211
Section 8(a)(5) and (1) of the Act on 17 November 1983,
by recognizing Local 77 as the exclusive representative
of its janitors on 21 November 1983 by renegotiating its
prehire contract with Local 77 covering the janitors, and
by enforcing and maintaining the terms of that contract
since 1 December 1983
I also find, as alleged in the amended complaint that
Respondent Lucky violated Section 8(a)(5) when on 1
December 1983, without affording Local 87 an opportu
nity to bargain, it unilaterally placed into effect the terms
of its contract with Local 77 including the 75 cent an
hour pay raise and the requirement that employees join
Local 77 as a condition of continued employment t I'
Because I have found, supra Lucky violated Section
8(a)(5) by enforcing and maintaining the terms of its col
lective bargaining contract with Local 77 in derogation
of its statutory duty to bargain with Local 87 it follows
that on 1 December 1983 Lucky committed an addition
al violation of Section 8(a)(5) by unilaterally instituting
the terms and conditions of employment incorporated in
that contract without affording Local 87 an opportunity
to bargain about the significant changes in the unit em
ployees terms and conditions of employment caused by
this unilateral conduct 112
In concluding that Lucky violated Section 8(a)(5) and
(1) of the Act by recognizing contracting and enforcing
its contract with Local 77 during the pendency of the
representation election which resulted in Local 87 s certi
fication I have considered Lucky s argument that the
unfair labor practices are time barred by the limitations
provision in Section 10(b) of the Act, because the charge
that contains the refusal to bargain allegation was not
served on Lucky until 22 May 1984 113 This argument
lacks merit because Local 87 did not know about the
unfair labor practices in question until on or about 2 De
cember 1983 and in the alternative because a substantial
portion of the alleged illegal conduct involved which of
fected Local 87 and the employees it represented fell
within the 6 months limitation period
The law is settled that [t]he Act s statute of limits
tions does not begin to run until the aggrieved party
knew or should have known that his stuatutory rights
were violated Wisconsin River Valley District Council
(Skippy Enterprise) v NLRB 532 F 2d 47 53-54 (7th Cir
1976) This is so even if the aggrieved party s unaware
ness of the unfair labor practices resulted merely from
the circumstances of the case and not from the respond
ent s active concealment See Wisconsin River Valley Dis
tract Council supra, Peerless Roofing Co v NLRB, 641
111 The record shows that pursuant to the contracts union security
provision that effective 1 December 1983 Lucky required those employ
ees covered by the contract to join Local 77 as a condition of continued
employment Lucky s owner Lim testified that prior to this none of the
employees had been members of Local 77
111 1 note there is nothing in the record to warrant my concluding that
dung the normal course of establishing its employees initial terms and
conditions of employment that Lucky absent its contract with Local 77
would have instituted the same or similar terms and conditions of em
ployment as contained in its contract with Local 77
113 Sec 10(b) provides in pe*tment part that no complaint shall issue
based on any unfair labor practice occurring more than 6 months pnor to
filing of the charge with the Board and the service of a copy thereof on
the person against whom the charge is made
1212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
F 2d 734, 746 (9th Cir 1981) Metromedia Inc v NLRB
586 F 2d 1182 1189 (8th Cir 1978) NLRB v Longshore
mens ILA Local 30 (US Borax), 549 F 2d 698 700-701
(9th Cir 1979)
There is no evidence that before Local 87 s lawyer re
ceived Labor Relations Consultant White s letter dated 1
December 1983 informing him among other things, that
Lucky was a unionized company whose employees
were represented by Local 77, that Local 87 knew or
reasonably should have known about Lucky s collective
bargaining relationship with Local 77 Thus there is no
evidence or contention that before White s 1 December
1983 letter that anyone from Lucky or Local 77 in
formed Local 87 of their collective bargaining relation
ship Nor could Local 87 have received this information
prior to the receipt of Whites 1 December letter from
any of Lucky s employees, for there is no credible evi
dence that prior to 1 December Lucky or Local 77 told
any of Lucky s employees about their collective bargain
ing relationship I have considered the affidavit of em
ployee Jhun which states, in pertinent part, that during
the 17 November 1983 employee meeting of the first
and second shift employees that Lucky s owner Lim
told the employees Lucky had a contract with Local 77
and that pursuant to the terms of the contract was rais
ing the employees wages 114 However, not one of the
witnesses who testified about this meeting corroborated
Jhun s affidavit Choo testified, in effect he did not re
member Lim making such a statement Lim specifically
denied making this statement She testified when she
mentioned the pay raise to the employees she did not
connect it with Local 77 s contract or otherwise explain
the reason for the increase In view of these circum
stances-the lack of corroborating evidence, and Lim s
denial she made the statement attributed to her-I have
not credited the statement attributed to Lim in Jhun s of
fidavit
It is for the above described reasons that I find Lucky
has failed to prove that Local 87 knew or reasonably
should have known about Lucky s bargaining relation
ship with Local 77 prior to its receipt of Labor Relations
Consultant Whites 1 December 1983 letter 115 Accord
ingly the 10(b) limitations period did not commence to
run until that date
Even assuming Local 87 knew about Lucky s relation
ship with Local 77 as early as the day Lucky took over
Whitewood s SFO operation, Lucky s 10(b) defense lacks
114 As noted supra Jhun s affidavit was admitted into evidence with
out objection because he was unavailable to testify within the meaning of
the Federal Rules of Evidence
11 s I have considered and rejected Lucky s contention that it must be
inferred Local 87 knew as early as 16 November 1983 about Lucky s bar
gaining relationship with Local 77 because the charge filed with the
Board on 16 December 1983 at the instigation of Local 87 by employee
Kelleher alleged on or after 16 November 1983 [Lucky] replaced
[Whitewood] and recognized [Local 77] which did not represent a major
ity of the Employers employees The charge does not allege on No
vember 16 rather it alleges on or after November 16 Moreover it is
reasonable to infer the reason for the use of this phraseology was that
since Local 87 knew Lucky had taken over Whitewood s SFO business
on or about 16 November that when Lucky learned from Whitewood s I
December letter about Lucky s bargaining relationship with Local 77
that Local 87 guessed that the relationship commenced when Lucky took
over Whitewood s business
merit because the record establishes that the gravamen of
the illegal conduct involved occurred within the 10(b)
limitations period Although Lucky and Local 77 entered
into their prehire contract several months before Lucky
took over Whitewood s SFO business, well outside of
the 10(b) limitations period, it was not until 21 Novem
ber 1983, just within the 10(b) limitations period that
they in effect renegotiated the contract,' i 6 and it was
not until 1 December 1983 well within the 10(b) limita
tions period that for the first time the terms and condi
tions of the contract were placed into effect Thus, a sub
stantial portion of the alleged illegal conduct involved
that affected Local 87 and the employees whom it repre
sented fell within the 6 month limitations period See
NLRB v Sweet Lumber Co, 515 F 2d 785 (10th Cir
1975)
3 Lucky institutes Rules and Regulations of
Personal Conduct and Lucky changes the night
shift s work schedule
a The evidence
On 16 November 1983, Lucky s owner Lim wrote
Whitewood s owner Yoon that Lucky intended to accept
applications from former employees of Whitewood
and that a preferential hiring list will be maintained to
ensure Whitewood employees of first considerations
and that those Whitewood employees whose qualifica
tions skills and abilities comply with the standards of
employment required by Lucky, will be absorbed and
hired by Lucky
On 17 November 1983 when it commenced its oper
ations Lucky hired a substantial and representative com
plement of 16 nonsupervisory janitors all of whom had
been former Whitewood janitors Only two of
Whitewood s SFO janitors James Kelleher and Ho Kil
Lee were not hired by Lucky The reasons they were
not hired with the 16 other former Whitewood janitors
was that they did not apply Kelleher failed to apply, be
cause he objected to having to work under Lucky s
Rules and Regulations of Personal Conduct
All but three of the former Whitewood SFO janitors
hired by Lucky were required to fill out employment ap
plications as a condition of employment and while a sub
stantial number of them were interviewed by Lucky s
owner Lim at least three of them were not interviewed
The record also shows that in several instances it was
not until several days after the applicants hire that the
employment applications were filled out and the inter
views conducted The record further shows that
Whitewood s former SFO janitors constituted a majority
of Lucky's janitors through at least 2 December 1983
116 As described in detail supra on 21 November Lucky s owner Lim
met with Local 77 s president Buchanan to advise Buchanan that she
had commenced doing business at SFO and to renegotiate certain provi
lions of the prehtre contract that she and Buchanan had signed several
months previously Although Buchanan refused to agree to most of the
contract concessions asked for by Lucky he did agree to change the of
fective date of the contract so that it would not be effective until I De
cember 1983 and he agreed to exclude from the contract s contacts cov
erage four of Lim s family who worked for Lucky at SFO as janitors
WHITEWOOD MAINTENANCE CO 1213
Before Lucky took over Whitewood s SFO operation,
Lucky s owner Lim decided the janitors she employed
would be required to work under certain rules and regu
lations which she had printed in a three page document
titled, Rules and Regulations of Personal Conduct Be
sides informing the employees of the particular types of
conduct which Lucky considered to be grounds for dis
cipline it set out a system of written warnings and pro
gressive discipline for 21 named offenses and immediate
discharge for 10 other more serious offenses The last
page of these rules and regulations contains a space for
the employees name and signature and immediately
above there is a statement to the effect that the employee
has received a copy of the rules and regulations and
agrees to obey them and that the employee understands
any employment being offered is at will and for no defi
nite period of time and is subject to termination with or
without just cause
On 17 November 1983, when it took over White
wood s SFO operation Lucky immediately met with the
day and swing shift employees Copies of the Rules
and Regulations of Personal Conduct were distributed
to the employees and verbally translated into Korean
The employees were given an opportunity to ask ques
tions concerning the rules and regulations and instructed
to return a signed copy to the Company 117 Also the
employees were given employment applications that they
were asked to fill out and return Lucky s owner Lim ad
vised them they were being hired by Lucky on a tempo
rary basis and she would be interviewing them as soon as
possible on an individual basis
Later during 17 November another employee meeting
was held for the night shift Lim introduced herself and
told the employees they were being hired as temporary
workers and that her brother, Jae Lim would be a su
pervisor and that former Whitewood employee Choi
would be a temporary supervisor Lim then turned the
meeting over to Jae Lim who told the employees Lucky
would hire those employees who supported the Compa
ny and who were motivated to work because they were
hungry and advised them he was an ex marine and in
tended to supervise them in the manner of a marine 118
b Discussion and conclusions
The amended complaint alleges in substance Respond
ent Lucky during the pendency of the representation
election which resulted in Local 87 s certification unilat
erally changed the employees terms and conditions of
employment , without affording Local 87 an opportunity
to bargain about the changes thus violating Section
8(a)(5) and (1) of the Act The unilateral changes are as
follows On 17 November 1983 the day Lucky took
1 i 7 James Kelleher abruptly left the meeting stating he could not work
for Lucky because of his dislike for the ruels and regulations
18 Employee Rho for the General Counsel and owner Lim for
Lucky testified about this meeting Neither Jae Lim or Gregory Choo
who Rho placed at this meeting testified about the meeting even though
they testified on Lucky s behalf regarding other matters Nor were any of
the night shift employees other than Rho called to testify about the
meeting The above description of what occurred is based on the testimo
ny of Rho whose testimonial demeanor was good I have rejected Lim s
completely different version of what took place because her testimonial
demeanor was poor
over Whitewood s SFO operation it instituted the
Rules and Regulations of Personal Conduct described
in detail supra And on 28 November 1983 Lucky
changed the hours of the night shift workers from 9
pm-530am to 11 pm-lam 119
I have found supra, that as Whitewood s successor em
ployer Lucky assumed Whitewood s obligation under the
Board s 29 March 1984 certification of Local 87 and, be
cause of this, in the absence of compelling economic
considerations Lucky was legally obligated to afford
Local 87 an opportunity to bargain about changes in the
unit employees terms and conditions of employment
Dynamic Machine Co 221 NLRB 1140 (1975), enfd 552
F 2d 1195 (1977), 0 Connor Chevrolet, 209 NLRB 701
(1974) However, as a successor employer, when Lucky
took over Whitewood s operation it was ordinarily free
to set the initial terms on which it would hire
Whitewood s employees NLRB v Burns Security Service,
406 US 272 294-295 (1972) In Burns the Supreme
Court reasoned that the duty to bargain will not normal
ly arise that early because it is not usually evident the
union represents a majority of the employees until the
successor has hired a full complement of employees Id
at 294-295 But the Court also recognized that there
will be instances in which it is perfectly clear that the
new employer plans to retain all of the employees in the
unit and in which it will be appropriate to have him mi
tially consult with the employees bargaining representa
Live before he fixes terms Id at 294-295
Guided by the above principles, I am persuaded
Lucky was not obligated to bargain with Local 87 about
the institution of the Rules and Regulations of Personal
Conduct, but was obligated to bargain with Local 87
about the change of the night shifts hours of employ
ment
The record does not establish Lucky had committed
itself to retaining the former Whitewood unit employees
when it decided to employ only those applicants who
agreed to accept its Rules and Regulations of Personal
Conduct as a condition of employment Before its 17
November 1983 takeover of Whitewood s SFO business
Lucky decided that whomever it employed would be
governed by its Rules and Regulations of Personal Con
duct 120 and the first thing Lucky did on 17 November
19 The record also reveals that in the space included in Lucky s em
ployment applications reserved for the written notations of the person
who interviews applicants that in four of the applications filled out by
former Whitewood employees that Lucky s owner Lim wrote 4 days a
week or 4 days only No testimony was presented concerning the cir
cumstances surrounding these notations what Lim said to the employees
during the interviews on that subject or whether the employees work
week was reduced from 5 days or more to 4 days The record as a
whole including the employees timecards are of no help in shedding
light on this matter Also I note employee Rho whose application con
tams such a notation and who testified about a change in the hours of the
night shift which took effect 28 November 1983 did not testify about this
notation or testify that his workweek had been reduced from 5 or more
days to 4 days a week Under the circumstances I find the record is in
sufficient to warrant the conclusion Lucky changed the terms and condi
lions of employment of some of the employees by reducing their employ
ment to 4 days a week
120 Lucky s decision to institute the Rules and Regulations of Person
al Conduct was made pnor to its 16 November 1983 letter to
Continued
1214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
when it took over Whitewood s SFO business was to
meet with the first and second shift employees and ex
plain to them that they were being hired on a temporary
basis subject to their filling out an employment applica
tion and being interviewed and that their employment
was conditioned on their agreeing to work under
Lucky s Rules and Regulations of Personal Conduct
copies of which were distributed to them for their signa
ture In view of these circumstances, the General Coun
sel has failed to prove that Lucky s institution of the
Rules and Regulations of Personal Conduct as an iris
tial term and condition of employment, occurred subse
quent to an expression of intent by Lucky to retain
Whitewood s employees Accordingly, I find Lucky was
not obligated to bargain with Local 87 about instituting
the Rules and Regulations of Personal Conduct as an
initial term and condition of employment of the unit em
ployees Half Century Inc, 241 NLRB 555 (1979) see
also Starco Farmers Market, 237 NLRB 373 (1978)
In contrast to the institution of the Rules and Regula
tions of Personal Conduct, the change in the night shift
employees work schedule from 9-5 30 p in to 11 p in -7
a in was not an initial term and condition of employment
and Lucky when this change was made on 28 Novem
ber 1983 by its conduct had already demonstrated its
intent to retain the unit employees formerly employed by
its predecessor During the first 11 days of their employ
ment with Lucky, the night shift employees continued to
work the hours that the night shift had worked for
Whitewood, 9 p in -5 30 a in There is no credible evi
dence that Lucky at any time indicated to them that they
could expect this work schedule would be changed
Moreover Lucky offered no evidence regarding the cir
cumstances surrounding the change in the night shift s
schedule or the reason why the change was not institut
ed prior to 28 November, or that the change was neces
sitated by compelling economic considerations And
there can be no doubt that by 28 November it was
Lucky s intent to retrain the former employees of
Whitewood who, at that time, still consituted a majority
of the unit employees Under the circumstances, Lucky
was obligated to bargain with Local 87 before changing
the existing work schedule of the night shift employees
Accordingly by unilaterally changing the night shift s
work schedule on 28 November 1983 Lucky failed to
honor its bargaining obligation and thereby violated Sec
tion 8(a)(5) of the Act
CONCLUSIONS OF LAW
1 Song Ae Lim d/b/a Lucky Service Company is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act
2 Service Employees Union Local 87 Service Em
ployees International Union, AFL-CIO is a labor organs
zation within the meaning of Section 2(5) of the Act
Whitewood indicating that it would give preferential treatment to the
employment applications submitted by Whitewood s former unit employ
ees In any event the letter fails to establish an intent by Lucky to retain
all of Whitewood s former employees inasmuch as it states Lucky intend
ed to independently evaluate each of the applicants and hire only those
who met Lucky s employment standards
3 All janitorial employees employed by Respondent
Lucky Service Company at the San Francisco Interna
tional Airport excluding all other employees including
office clerical employees, guards, and supervisors as de
fined in the Act constitute an appropriate bargaining
unit
4 Since 29 March 1984, Local 87 has been and now is
the certified and exclusive representative of all employ
ees in the appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the Act
5 By refusing to recognize and bargain with Local 87
as the exclusive bargaining representative of all the em
ployees in the appropriate unit, Respondent Lucky Serv
ice Company has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act
6 By recognizing Service Employees Union, Local 77
as the exclusive bargaining representative of the employ
ees in the appropriate unit in derogation of its obligation
to recognize and bargain with Local 87 by entering into
and maintaining a collective bargaining contract with
Local 77 covering the unit employees by unilaterally in
stituting the terms and conditions of employment incor
porated in its contract with Local 77 without affording
Local 87 an opportunity to bargain about their effect on
the unit employees existing terms and conditions of em
ployment, Respondent Lucky Service Company violated
Section 8(a)(5) and (1) of the Act
7 By unilaterally changing the work schedule of the
unit employees employed on the night shift without of
fording Local 87 and opportunity to bargain about the
matter, Respondent Lucky Service Company violated
Section 8(a)(5) and (1) of the Act
8 By discharging employees Hyung Bok Seo and Ho
Chi Rho because of their Local 87 sympathies and activi
ties, Respondent Lucky Service Company violated Sec
tion 8(a)(3) and (1) of the Act
9 By promising employees better terms and conditions
of employment if they did not support Local 87 and by
threatening employees with the loss of their jobs if they
supported Local 87, Respondent Lucky Service Compa
ny violated Section 8(a)(1) of the Act
10 The unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6)
and (7) of the Act
THE REMEDY
Having found that Respondent Lucky Service Compa
ny has engaged in and is engaging in unfair labor prac
tices within the meaning of Section 8(a)(1), (3) and (5)
of the Act I shall recommend that it cease and desist,
and that it take certain affirmative action necessary to
remove the effects of the unfair labor practices and to of
fectuate the policies of the Act
Having found Respondent Lucky Service Company to
have violated Section 8(a)(5) and (1) of the Act by refus
ing to bargain with Service Employees Union Local 87
at the outset of that union s certification year I shall rec
ommend that the initial period of certification begin on
the date Respondent Lucky Service Company com
mences to bargain in good faith with Local 87 as the rec
WHITEWOOD MAINTENANCE CO 1215
ognized bargaining representative in the appropriate unit
See Dynamic Machine Co, 221 NLRB 1140, 1143 (1975),
and the cases cited
Having found Respondent Lucky Service Company to
have violated Section 8(a)(5) and (1) of the Act by uni
laterally changing the work schedule of unit employees
employed on its night shift and by unilaterally instituting
the terms and conditions of employment contained in its
contract with Service Employees Union, Local 77 with
out affording Service Employees Union Local 87, an op
portunity to bargain about these changes in the unit em
ployees terms and conditions of employment, I shall rec
ommend that Respondent Lucky Service Company make
whole any employees who may have incurred a mone
tary loss as a result of the unilateral implementation of
these changes Such reimbursement is to be with interest
as prescribed in Florida Steel Corp 231 NLRB 651
(1977) 586 F 2d 436 (5th Cir 1978) see generally Isis
Plumbing Co 138 NLRB 716 (1962)
Having found Respondent Lucky Service Company to
have violated Section 8(a)(5) and (1) of the Act by rec
ognizing and contracting with Service Employee Union,
Local 77 in derogation of its statutory obligation to rec
ognize and bargain with Service Employees Union,
Local 87, as the unit employees certified bargaining
agent, I shall recommend that Respondent Lucky Serv
ice Company be required to withdraw and withhold rec
ognition from Local 77 and to cease giving effect to the
collective bargaining contract entered into with that
labor organization, or any modifications renewals, or ex
tensions thereof Because the record reveals that in con
nection with both its illegal enforcement of its contract
with Local 77 and its illegal unilateral changes in the
unit employees terms and conditions of employment
Respondent Lucky Service Company has required the
unit employees to join Local 77 as a condition of contin
ued employment, I shall recommend that Respondent
Lucky Service Company be ordered to reimburse unit
employees for any dues and initiation fees that may have
been withheld from their pay pursuant to the union secu
rity provision in Respondent Lucky Service Company s
unlawfully executed contract with Local 77 121 Such re
imbursement is to be with interest as prescribed in Flora
da Steel Corp 231 NLRB 651 (1977) See generally Isis
Plumbing Co 138 NLRB 716 (1962)
Having found Respondent Lucky Service Company to
have violated Section 8(a)(3) and (1) of the Act by dis
charging employees Hyung Bok Seo and Ho Chi Rho I
shall recommend that Respondent Lucky Service Com
pany offer each of them immediate and full reinstatement
to their former jobs or if those jobs are no longer in ex
istence, to substantially equivalent positions without
prejudice to their seniority and other rights and privi
leges and to make them whole for any loss of pay or
other employment benefits they may have suffered as the
result of their discharge Backpay shall be computed on
a quarterly basis in accordance with F W Woolworth
Co, 90 NLRB 289 (1950), with interest as prescribed in
Florida Steel Corp, above, see generally Isis Plumbing
Co , above I shall also order Respondent Lucky to
remove from its files any reference to the illegal dis
charges, and to notify employees Seo and Rho in writing
that it has done so and that their discharges will not be
used against them in any way
[Recommended Order omitted from publication ]
121 As found supra it is undisputed that Respondent Lucky Service
Company enforced and maintained this portion of the contract Of
course it can be ascertained in the compliance stage of this proceeding
whether Lucky on behalf of Local 77 actually withheld dues and fees
from its employees pay