Allied Eastern States Maintenance Corporation, a wholly-owned subsidiary of Allied Maintenance Corporation

National Labor Relations Board - Board Decisions

May 28, 1982

261 N.L.R.B. 1145 (N.L.R.B. 1982)

ALLIED EASTERN STATES MAINTENANCE CORP.
Allied Eastern States Maintenance Corporation, a
wholly-owned subsidiary of Allied Maintenance
Corporation and Elva E. Silay. Case 6-CA-
13704
May 28, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JF.NKINS, AND
ZIMMERMAN
On July 27, 1981, Administrative Law Judge
James P. Timony issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the Re-
spondent filed a brief in opposition to the General
Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
Based on the credited testimony, the Administra-
tive Law Judge found, and we agree, that the Re-
spondent did not unlawfully discharge Elva Silay.
Although finding that she had on occasion advised
other employees of their "union rights," and that
her conduct in this respect was a "motivating
factor" leading to her subsequent discharge, the
Administrative Law Judge concluded that, even in
the absence of such protected activity, Silay would
have been terminated for the other, permissible rea-
sons cited in the disciplinary letter she received
prior to her discharge.
However, the Administrative Law Judge failed
to conclude that the Respondent violated Section
8(a)(1) of the Act by its reference in the aforesaid
letter to that activity which is clearly protected,
and indeed so found by the Administrative Law
Judge; namely advising other employees "as to
their union rights." To the extent that the Re-
' The General Counsel has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect Standard Dry
Wall Products. Inc., 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 his findings.
The record does not support the Administrative Lasw Judge's finding
that Elva Silay was inconsistent insofar as she testified both in justifica-
tion for parking her car at a proscribed location while at work and, later.
to the necessity for leaving work early to obtain a ride home with a
friend, as she had indeed used both modes of transportation in traveling
to and from work However, in light of the other inconsistencies in
Silay's testimony, which were noted by the Administrative Law Judge.
we find no basis for disturbing his resolutions concerning her credibility
261 NLRB No. 167
spondent mentioned, and thereby sought to dis-
courage, such activity, it infringed on the rights
guaranteed to all employees by Section 7, thus vio-
lating Section 8(a)(1) of the Act.
Accordingly, we shall remedy the violation
herein found by requiring the Respondent to ex-
punge from its June 25, 1980, disciplinary letter to
Silay, and from any other records maintained by
the Respondent with respect to Silay, all references
to the latter's protected activities, including the
giving of advice to employees concerning their
union or statutory rights. We shall also require the
posting of an appropriate notice.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Allied Eastern States Maintenance Corporation, a
wholly-owned subsidiary of Allied Maintenance
Corporation, Pittsburgh, Pennsylvania, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Citing Elva Silay for giving advice to em-
ployees concerning their union or statutory rights.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Expunge from its June 25, 1980, disciplinary
letter to Elva E. Silay and from any other records
maintained by it, with respect to Silay, all refer-
ences to the latter's protected activities, including
the giving of advice to employees concerning their
union or statutory rights.
(b) Post at appropriate locations copies of the at-
tached notice marked "Appendix." 2 Copies of said
notice, on forms provided by the Regional Direc-
tor for Region 6, after being duly signed by the
Respondent's representative, shall be posted by the
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places
where notices to employees are customarily posted.
We deem such a remedy appropriate both because the Respondent
subsequently rehired Silay, who was concededly a competent employee,
and presumably maintains current records concerning her employment,
and because the statutory rights of other employees were likewise violat-
ed by the Respondent's unlawful conduct.
I In the event that this Order is enforced by a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reasonable steps shall be taken by the Respondent
to ensure that copies of said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges vio-
lations of the Act not expressly found.
APPENDIX
NOTICE To EMPILOYEES
POSTIFl BY ORDER OF THEI
NATIONAI. LABOR REI.ATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WI.LL NOT cite Elva E. Silay for giving
advice to employees concerning their union or
statutory rights.
WE WII.I. NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them in
Section 7 of the Act.
WE WmI.L expunge from our June 25, 1980,
disciplinary letter to Elva E. Silay, and from
all records maintained by us, with respect to
Ms. Silay, all references to her protected activ-
ities, including the giving of advice to employ-
ees concerning their union or statutory rights.
AI.I.IED EASTIRN STATES MAINTI:-
NANCE CORPORATION, A WHOILI.Y-
OWNED SUBSIDIARY OF AI.I.IED
MAINTENANCE CORPORATION
DECISION
STAT EMENT OF THE CASE
JAMES P. TIMONY, Administrative Law Judge: This
case was heard in Pittsburgh, Pennsylvania, on May 8,
1981, upon the complaint issued on September 30, 1980,
based on a charge filed by Elva E. Silay. The complaint,
as amended, charges that Allied Eastern States Mainte-
nance Corporation, a wholly- owned subsidiary of Allied
Maintenance Corporation, engaged in unfair labor prac-
tices in violation of Section 8(a)(l) and (3) of the Nation-
al Labor Relations Act, as amended, by issuing a disci-
plinary letter on June 25, 1980, to its employee, Silay,
because Silay advised other employees of their rights
under the union contract, and by terminating the em-
ployment of Silay on July 21, 1980, because of her union
activities.
By its answer, and by stipulation, Allied admits or
does not contest service of the charge, commerce facts
and conclusions, the labor organization status of Service
Employees' International Union, Local 29, AFL-CIO,
and the supervisory status of Keith Brown, area manager
of Allied, and Bernard McGivern, foreman. Allied denies
the commission of the unfair labor practices alleged in
the complaint and argues that Silay was terminated for
reasons other than for the exercise of her rights guaran-
teed in Section 7 of the Act.
Issues
1. Whether Allied violated the Act by issuing Silay a
disciplinary warning letter because she advised other em-
ployees of their rights under the union contract.
2. Whether Allied violated the Act by terminating the
employment of Silay because she advised other employ-
ees of their rights under the union contract.
Upon consideration of the whole record, and my ob-
servation of the demeanor of the witnesses, I make the
following:
FINDINGS OF FACT
1. JURISI)DICTION
Allied admits and I find that: (1) It is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act; and (2) the Union is a labor orga-
nization within the meaning of Section 2(5) of the Act.
II. THE EVENTS
Allied is a janitorial cleaning contractor with 600 em-
ployees servicing 35 buildings in Pittsburgh. Since March
1978, Allied has performed janitorial services in the U.S.
Steel Building located at 600 Grant Street, one of the
largest office buildings in the world, where the events in
this case took place. Allied's services at the building are
overseen by the building's manager, John W. Galbreath
Company, a competitor of Allied, which had been re-
sponsible for the cleaning operation until Allied won the
contract.
Silay was employed by Allied from March 1978 until
July 21, 1980. Prior to that time she was employed for 7-
1/2 years by Galbreath as a night cleaner. Starting in
March 1978, Silay was employed by Allied as a clerk-
typist in a nonunion salaried position at or about the
same pay received by the union cleaning personnel. She
was the only Allied clerk-typist in the building and did
general office work, including typing, posting the payroll
from the sign-in sheet, making time reports, and answer-
ing the telephone. Silay worked under several supervi-
sors, including Keith Brown, area manager, and Edward
White, director of night operations, and shared an office
with three supervisors, including her direct supervisor,
Bernard McGivern.
Although Silay competently did her assigned work,
her supervisors testified that they were irritated by her
opinionated statements and officious manner and by the
assumption of authority not commensurate with her
1146
ALLIED EASTERN STATES MAINTENANCE CORP.
duties and responsibilities as a clerk-typist. This friction
culminated in the Andracki incident.
Florence Andracki and Silay were old friends, having
worked together for many years at Galbreath as chair-
women prior to being employed by Allied. In June 1980
Andracki was told by her supervisor, McGivern, that
her work in cleaning the steps in the U.S. Steel Building
was unsatisfactory. She had bid oil the job and had been
cleaning the stairs for a long time. Allied had received a
letter from Galbreath complaining about the steps being
dirty and McGivern wanted the steps cleaner. Andracki,
McGivern, and a union shop steward, Bill Mitchell, dis-
cussed the matter in McGivern's office. Andracki said
she did not have the right equipment to clean the steps.
McGivern told her to use a mop. She said the mops
were too big. He told her to scrub the steps with a wet
rag or sponge. She said she would rather use a wet mop.
Silay interjected her opinion that McGivern should not
tell Andracki to hand wash the stairs and that the work
was formerly done by two men. Silay said that Andracki
ought to meet with Brown about the incident.
A meeting on this matter was held on June 18, 1980, in
an inner office adjoining the office occupied by McGi-
vern and Silay. Present were Brown, McGivern, An-
dracki, Mitchell, and the union business agent, Ralph
Terry. The meeting lasted about 15 minutes and conclud-
ed with White telling Andracki that he did not care how
she cleaned the steps as long as they were clean. Brown
thought the meeting was a waste of time, and asked
Mitchell what caused him to call the meeting. Mitchell
indicated that Elva Silay caused him to call the meeting.
Waiting outside the inner office were a union steward
and a young man named Mark DeChantel. While the
meeting was going on, Silay interrogated DeChantel in a
brusque manner.' She asked who he was and the pur-
pose of his visit. He told her that he was an Allied super-
visor recently transferred from New York. She asked
how long he had been a supervisor. He said 6 years. She
said that he was lucky he had lasted that long since most
of them lasted only 2 years. She then asked if he were
going to replace Brown.
The next day, Brown called Silay down to his office
and, when she walked in and sat down, Brown said,
"I've had it up to here with you. Do you think you're
some kind of queen up there?" She asked what he meant.
He told her that he was upset about her conversation
with DeChantel who had recently become one of
Brown's subordinates. He also indicated that she had
caused the unnecessary Andracki meeting, inconvenienc-
ing himself and the union business agent. Brown recount-
ed a series of complaints he had involving her depart-
ment and told her he knew she was looking for another
job and was going on vacation in a couple of weeks and
that he would not be disappointed if she did not come
back.
On June 25, 1980, Brown wrote a letter to Silay detail-
ing his complaints about her conduct as follows:
1. You were abusing your lunch period by taking
extended lunch periods longer than 1/2 hour and at
times other than from 12:00 to 12:30.
DeChantel described this conversation as the "third degree
2. You allowed non-Allied employees to eat
lunch at one of our supervisors' desk.
3. You were constantly advising certain employ-
ees as to their conduct in the performance of their
jobs, which is not part of your responsibility.
4. You have been continually discussing Allied
matters with other parties after being warned re-
peatedly about such discussions.
5. You have informed your superior that you are
attempting to secure employement [sic] with other
employers.
6. On various occasions you have advised Allied
employees as to their union rights. These matters
are totally out of your domain.
7. You have requested certain privileges from
others, thus by-passing your supervisor; i.e., parking
your car in the loading dock.
8. On many occasions you have made remarks
that Allied shows favoritism towards minority em-
ployees and supervisors in the Building.
9. You were making a practice of leaving your
work assignment at 4:15 p.m. and not 4:30 p.m.,
your assigned quitting time.
After Silay went on vacation, a relief employee took
her place, and Brown testified that things went so
smoothly that he conferred with White and McGivern
and made the decision to discharge Silay. When Silay re-
turned from vacation, McGivern told her that her em-
ployment was terminated for the reasons outlined in the
June 25, 1980, letter. 2
One of the reasons that Allied discharged Silay and
warned her by the June 25, 1980, letter was because of
her participation in the Andracki incident. Paragraph 6
of the June 25, 1980, letter states that: "On various occa-
sions you have advised Allied employees as to their
union rights. These matters are totally out of your
domain." Brown testified that by this language he meant
to describe Silay's tendency to tell employees of their va-
cation and holiday benefits under the union contract,
which she sometimes scheduled rather than waiting for
the supervisors to do it.4 In a pretrial affidavit,5 Brown
stated, however, that this language was also directed at
Silay's participation in the Andracki step-cleaning inci-
dent. Silay's concern for her fellow employees was pro-
tected activity under the Act and it was a motivating
factor in the Employer's decision to warn and discharge
her. This finding shifts the burden to the Employer to
demonstrate that the same action would have taken place
2 Silay was rehired by Allied in October 1980. after the charges in this
case were filed I believe that it would set an unfortunate precedent to
rely on this fact as proof of respondent's lack of justification for discharg-
ing her In General Cinema Corp. 228 NLRB 377, fn. 4 (1977). the Board
held discharges were unlawful but did not adopt the finding that subse-
quent rehiring was conclusive proof of the employer's unlawful motiva-
tion
"Earlier Silay had told Brown that she disapproved of the termination
of another friend of hers named Dorothy Davis for absenteeism, and he
also had this incident in mind when he wrote the letter and discharged
her.
4 Silay did not rebull this complaint
' This affidasit was admitted in evidence Snaider Syrup Corporation
and Tulip Syrup Corporation. 220 Nl.RB 23X, 244 245 (1975)
1147
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
even in the absence of the protected conduct. Wright
Line. a Division of Wright Line, Inc., 251 NLRB 1083
(1980).
White, Brown, and McGivern testified about Silay's
infractions. 6 For 6 months prior to her dismissal, she had
on numerous occasions taken, without permission, lunch
hours longer and at different times than allowed by com-
pany policy. She also left early without permission on
several occasions. She allowed her son and niece to cat
lunch several times at the desk of one the supervisors.
She received permission to park her car on the loading
dock by misrepresenting to the guard that she had to
park there because she needed her car for business trips.
She constantly complained that she was underpaid and
did not receive sufficient time off: she refused to do
some clerical tasks; and she told her supervisor that she
had filed a job application with John W. Galbreath Com-
pany. She often alleged that Allied showed favoritism
toward minority employees. Despite being instructed re-
peatedly not to discuss Allied affairs with anyone other
than her supervisors, 7 on several occasions she exacer-
bated complaints from customers or representatives of
John W. Galbreath Company that wastebaskets were not
emptied, or some other service was not provided, by tell-
ing them that the cleaning personnel had too much to do
or by giving some other inappropriate reason. Brown
also suspected that Silay was disclosing information that
she learned from the personnel files and from listening to
the managers in her office. He felt that she was "leak-
ing" this information to an employee who had been dis-
' I credil this testimony I he reasons givcn by each of the siuperisors
for Silay's discharge wcre consistent Ihere swas no shifting of justifica-
tion and it was Ihot prclextual McG(ivern nosA works foir anllther cultipa-
ny and, by his demeanor. was an especially believable witness Silay also
testified but did not appear as believable. She sas also inlconsistent At
one pillTr ill her testilriony she said, in respuilIse the complain Illhat she
parked on lite loading dock, that she had been parking there eser since
she took the job as a clerk-typists She later asserted. however, in re-
spouse to the coniplaint that she made it a practice of leaving 15 minutes
early, that she coulid get a ride home if she left earl)y apparently not rec-
ogni/ing tile inconsistency ron the record as to( how she got home. She
also testified that she had no discussions (If anlly kind wsith Brov, n about
her job performance ILater she adnitted that she did.
7 Silay admits that Brown warned her in 1979 rnot tl disclose Allied
affairs to anyone else Counsel for the General Counsel argues that Silay
was nlot "disciplined" for the various indiscretions anid argues that Allied
therefore condoncd them, but I believe the supervisors' testimony that
she was warned on numerous occasions and that such swarnings were the
usual way of disciplining management employees like Silay
charged and was suing the Company, to union strikers,
and to the J. W. Galbreath Company.
Brown's central complaint involved Silay's tendency
to take charge. 8 Silay constantly told employees how9
and where to do their jobs, and when they could take
time off from work,' ° without consulting the supervi-
sors. IT This caused confusion among the cleaning per-
sonnel when her instructions differed from those of the
supervisors. Brown and White warned her about this.
White told her: "[L]ook, Elva, you're not a supervisor,
please do not instruct the employees on how to do their
job and what to do, that's not your job . . . . I told
you a number of times, would you please quit doing
that."
Silay's concern for some of her fellow employeest 2
was not the central impetus for the meeting of June 19,
the letter of June 25, nor the discharge, all of which
evolved, I believe, from a long history of irritation at
Silay's conduct culminating in her remarks to DeChan-
tel, which Brown inferred to mean that she thought he
should or was about to be replaced. Further, I have no
doubt that even without Silay's participation in the An-
dracki incident Brown would have discharged her for
other causes outlined in the June 25 letter. I therefore
find that by the preponderance of the evidence Allied
has met the burden of demonstrating that Silay would
have been discharged even in the absence of the protect-
ed conduct, and that the complaint should be dimissed.
[Recommended Order omitted from publication.]
Silay refused Ito be supervised by McGivern alhode Fier assertive
nature was indicated when she testified that. although she was told when
she was hired that her lunch hour would be from 12 iii 12:310, when again
instrucled by her ilnmmediate supervisor. McGivern, to lunch only at that
rilte. iher responlse was: "Who says that'"" She also refused to do simple
tasks such as inatheniatical corrnputations until told to do so by Brown
and White. as well as by McGisvern
Silay admitted she advised cleaning etiployees how to doi their jobs
" Sil:y did mlot rebut this complaint
l Ihe employees apparently felt that Silay spoke liir management be-
cause she worked in the company office and because she recorded their
time and attendance records
XZ In addition to her racial generalities, Silay's opinions (of the union
anrd other employees were not always sympathetic or charitable. She
thought a strike called by the union was "foolish." She advised McGi-
vern on numerous occasions to fire a union steward. Hill Mitchell, falsely
alleging that he was drinking in taverns arid visiting a girl friend during
working hours.
1148