Alton-Arlan's Dept. Store, Inc.

National Labor Relations Board - Board Decisions

Jan 27, 1965

150 N.L.R.B. 1303 (N.L.R.B. 1965)

ALTON-ARLAN'S DEPT. INC. 1303
WE WILL NOT interfere with the efforts of Insurance Woikers International
Union , AFL-CIO, to negotiate for or represent as exclusive bargaining agent the
employees in the bargaining unit described below.
WE WILL, upon request, bargain with the above -named Union , as the exclusive
representative of all the employees in the bargaining unit described below with
respect to rates of pay, wages , hours of employment , and other conditions of
employment , and, if an understanding is reached , embody such an understanding
in a signed agreement.
The bargaining unit is:
All Metropolitan Insurance consultants and canvassing , regular, and office
account agents of the Company, attached to the district office and to the
Litchfield and Gillespie detached offices attached to the district office in
Alton, Illinois, excluding independent agents, retired agents, managers,
assistant manager, cashiers , clerical employees , secretaries , professional
employees , guards, watchmen , and supervisors , as defined in the Act.
METROPOLITAN LIFE INSURANCE COMPANY,
Employer.
Dated---------------- --- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and'must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 4459
Federal Building , 1520 Market Street, St. Louis, Missouri, Telephone No. Main
2-4142, if they have any questions concerning this notice or compliance with its
provisions.
Alton-Arlan 's Dept. Store, Inc. and Retail Clerks Local 149, Re-
tail Clerks International Association , AFL-CIO. Case No.
14-CA-318. January 97, 1965
DECISION AND ORDER
On October 13, 1964, Trial Examiner Morton D. Friedman issued
his Decision in the above-entitled proceeding, finding that Respond-
ent had engaged in certain unfair labor practices and recommending
that it cease and desist therefrom and take certain affirmative action
as set forth in the attached Decision. The Trial Examiner also
found that Respondent had not engaged in certain other unfair labor
practices and recommended that the complaint be dismissed with
respect to such allegations. Thereafter, Respondent filed exceptions
to the Trial Examiner's Decision, and also filed a supporting brief.'
The Charging Party filed a brief in answer to the exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated-its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins]. .
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
'The Respondent has requested oral argument . ' Because, in our opinion , the record
and briefs adequately set forth the issues and position of the parties , this request is
hereby denied.
150 NLRB No. 124.
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and brief, and the entire
record in this case, and hereby` adopts the findings, conclusions, and
recommendations of the Trial Examiner with the exceptions stated
below.
1. We agree with the Trial Examiner, for the reasons set forth in
his Decision, that the Respondent in discharging the four custodial
employees and subcontracting their work was motivated by a desire
to rid itself of any possible obligation to recognize or bargain with
the Union on their behalf, and by so doing the Respondent violated
Section 8 (a) (1) and (3) of the Act.2
2. However, we' do not agree with the Trial Examiner that the
Respondent by subcontracting the custodial work without prior
notice to, and consultation with, the Union violated Section 8(a) (5)
of the Act .3 In finding the violation, the Trial Examiner was of the
view that the custodial employees were part of the unit represented
by the Union and covered under the terms of the agreement between
the Union and the Respondent. On the evidence before us we reach
a different result. As noted hereafter, the evidence supports the
Respondent's contention that it was the intent of the parties to
exclude the custodial employees from the contract unit coverage, and
hence that it had no obligation to bargain with the Union on that
basis.
The Respondent operates some 43 retail stores throughout the
country. Many of these stores are represented by different locals
of the Retail Clerks, and in many of the stores the Respondent has
collective-bargaining agreements which exclude custodial employees
from the contract unit. One such agreement is that covering the
employees at the Respondent's St. Louis store.
The Respondent and the Union entered into a recognition agree-
ment in the latter part of August 1963 when a card check showed
that the Union had signed up a majority of the Respondent's em-
ployees. The Union's majority was tested against a list of employees
in the appropriate unit submitted by the Respondent. This list did
not include the name of one Harold Mayhall who at the time of the
card check was the only custodial employee at the Alton store. The
Union knew of Mayhall's employment and in fact purported to have
obtained an authorization card from him, but it did not challenge
or raise any question as to his exclusion from the Respondent's list.
The recognition agreement signed by the Union and Respondent
in defining the composition of the unit excluded all persons ex-
21n the absence of exceptions thereto, we affirm the Trial Examiner's dismissal of
the 8 (a) (1) allegation.
3 Sec East Bay Union of Machinists, Local 1304, United Steelworkers of America,
AFL-CIO ( Fibreboard Paper Products Corporation ) v. N.L.R B., 379 U. S. 203.
ALTON-ARLAN'S DEPT. INC. 1305
eluded under Arlan's St. Louis contract. It was conceded by Ray
Haggard, the Union's representative, that before entering into the
recognition agreement he had been informed by his Union's Interna-
tional representative that it was all right to agree to the St. Louis
coverage. Thus the coverage of the custodial employees was a mat-
ter specifically dealt with at the time of the negotiations because by
agreeing to exclude the same employees excluded under the St. Louis
agreement, the parties intended to exclude the custodial employees 4
We are further supported in our conclusion that it was the intent
of the parties to exclude the custodial employees by the nature of
the agreement entered into by the parties. It is undisputed that the
custodial employees were employed only between the hours of 10 p.m.
and 8 a.m. At the Arlan store they received an hourly rate which
was less than the lowest wage stipulated in the contract for any
specified classification of employees. The contract also provided that
employees who worked between 10 p.m. and 8 a.m. were to receive
time and one-half for all hours worked, and no exception was writ-
ten into the contract for the custodial employees. Thus, if the
Union's contention that these employees were covered by the con-
tract were correct, the custodial employees who were hired at a rate
less than that paid to any other employees would be contractually
entitled to receive time and a half for their normal work schedule.
This would result in their receiving a rate far in excess of the maxi-
mum pay received by the most experienced and skilled hourly em-
ployee. This disparate result lends weight to a determination that
it was not the intent of the parties to include custodial employees
in the coverage of their contract.
As the Union asserted only a right to bargain for the custodial
employees as part of the contract unit, and on no other appropriate
unit basis, and as we have found that the custodial employees were
not part of the contract unit; we conclude that the Respondent was
not obligated to bargain with the Union for them and hence by sub-
contracting the custodial work without prior notice to, or consulta-
tion with, the Union, the Respondent did not violate Section 8(a)
(5) of the Act.
3. As we have found that the Respondent discontinued its cus-
todial operation, and thereby terminated the four custodial em-
ployees in violation of Section 8 (a) (3) and (1) of the Act, the
Respondent will be ordered to resume the custodial services and offer
to all four employees who were unlawfully discharged immediate
,We deem it immaterial that the custodial employees at the Alton store did not also
perform guard duties as did the custodians at the Employer ' s St. Louis store in view
of our conclusion that the parties, by excluding Mayhall 's name from the list of em-
ployees attached to the recognition agreement and by not providing a contract rate for
his classification , clearly intended to exclude custodial employees from the unit.
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and
privileges.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby orders that
the Respondent, Alton-Arlan Dept. Store, Inc., East Alton, Illinois,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Retail Clerks Local 149, Retail
Clerks International Association, AFL-CIO, or any other labor
organization of its employees, by discharging or in any other man-
ner discriminating in regard to their hire or tenure of employment
or any term or condition of employment.
(b) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form-
labor organizations, to join or assist the above-named or any other
labor organization, to bargain collectively through representatives
of their own choosing, and to engage in any other concerted activi-
ties for the purposes of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities, except to
the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Resume the custodial operations previously performed by its
employees.
(b) Offer Harold G. Mayhill, Ervin R. Hancock, David L. Rob-
erts, and William T. Stalp reinstatement to their former or substan-
tially equivalent jobs, without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of pay suf-
fered by them by reason of the discrimination against them, from
the date of their discharge on December 4, 1963, to the date of the
offer of reinstatement. Loss of pay shall be computed as prescribed
in F. W. Woolworth Company, 90 NLRB 289, and interest on such
backpay shall be computed at 6 percent per annum in accordance
with Isis Heating cf Plumbing Co., 138 NLRB 716.
(c) Notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstate-
ment upon application in accordance with the Selective Service Act
and the Universal Military Training and Service Act of 1948, as
amended, after discharge from the Armed Forces.
ALTON-ARLAN' S DEPT. INC. 1307
(d) Preserve and, upon request, make available to the Board and
its agents, for examination and copying, all payroll records, social
security payment records, timecards,, personnel records and reports,
and all other records necessary or useful to determine the amount
of backpay due and the rights of reinstatement under the terms of
this Order.
(e) Post at its retail store in East Alton, Illinois, copies of the
attached notice marked "Appendix." 5 Copies of said notice, to be
furnished by the Regional Director for Region 14, shall, after being
duly signed by the Respondent's ' representative, be posted by the
Respondent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to its employees are customarily
posted. Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director for Region 14, in writing, within
10 days from the date of this Order, what steps the Respondent has
taken to comply herewith.
IT Is FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent violated Section 8(a) (5), of the Act and that the
Respondent had independently violated Section 8(a) (1) of the Act,
be, and it hereby is, dismissed.
' In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals, Enforcing an Order".
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the polices of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in Retail Clerks Local
149, Retail Clerks International Association, AFL-CIO, or in
any other labor organization of our employees, by discharging
or discriminating against them in regard to their hire and tenure
of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist Retail
Clerks Local 149, Retail Clerks International Association, AFL-
CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purposes of collective bargain-
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing or other mutual aid or protection , and to refrain from any
and all such activities , except to the extent that such right may
be, affected by an agreement requiring membership in a labor
organization as a condition of employment ; as authorized by
Section 8(a) (3) of the Act, as modified by the Labor -Manage-
ment Reporting and Disclosure Act of 1959.
WE WILL resume our custodial operation previously performed
by our employees.
WE wILL offer to Ervin R. Hancock , Harold G. Mayhall,
David L. Roberts , and William T. Stalp immediate and full
reinstatement to their former or substantially equivalent jobs,
without prejudice to their seniority or other rights and privi-
leges, and make them whole for any loss of pay suffered by them
by reason of the discrimination against them.
ALTON-ARLAN 'S DEPT. STORE, INC.,
Employer.
Dated- --------------- By------------------------------------
(Itepresentative ) ( Title)
NoTE.-We will notify the above-named employees if presently
serving in the Armed Forces of the United States of their right to
full reinstatement upon application in accordance with the Selective
Service Act and the Universal Military Training and Service Act
of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting , and must not be altered , defaced , or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 4459 Federal Building , 1520 Market Street , St. Louis, Mis-
souri, Telephone No. Main 2-4142 , if they have any question con-
cerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION -
STATEMENT OF THE CASE
Upon a charge filed on December 11, 1963, by Retail Clerks Local 149, Retail
Clerks International Association , AFL-CIO, herein referred to as the Union, the
Regional Director for Region 14 of the National Labor Relations Board, herein called
the Board, issued a complaint on March 31, 1964, on behalf of the General Counsel of
the Board against Alton-Arlan's Dept. Store, Inc., hereinafter referred to as the
Respondent or the Company, alleging violations of Section 8(a)(1); (3 ), and (5) of
the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq .), herein
called the Act. In its duly filed answer to the aforesaid complaint, the Respondent,
while admitting certain of the allegations thereof, denied the commission of any unfair
labor practices.
Pursuant to notice , a hearing was held before Morton D. Friedman in St . Louis,
Missouri , on May 18 and 19, 1964. All parties were present and afforded full oppor-
tunity to be heard, to introduce relevant evidence, to present oral argument, and to
file briefs . Oral argument was waived . Briefs were filed by the Respondent and
counsel for the General Counsel.
ALTON-ARLAN'S DEPT. INC. 1309
Upon consideration of the entire record in this case, including the briefs of the
parties, and upon my observation of, the demeanor of each of the witnesses testifying
before me, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RESPONDENT
At all times material herein, the Respondent has been and is an Illinois corporation
and since on or about August 22, 1963, has operated and is operating a retail depart-
ment store in the city of East Alton, Illinois. Respondent's, projected annual gross
retail sales of goods and materials will exceed $500,000. Since on or about August 22,
1963, Respondent has purchased, transferred, and delivered to its East Alton, Illinois,
retail department store goods and materials of a value in excess of $50,000, which
goods and materials were transported to said store directly from States of the United
States other than the State of Illinois.
It is admitted, and I find and conclude, that the Respondent is engaged in commerce
within the meaning of the Act and that it will effectuate the policies of the Act to
assert jurisdiction herein.
H. THE LABOR ORGANIZATION INVOLVED
It is admitted and I find that the Union is now , and has been at all times material
herein , a labor organization within the meaning of Section 2(5) of the Act.
III. THE ISSUES
The complaint alleges, in substance, that Respondent's store manager, Chris Gill,
threatened an employee with discharge if the latter and other employees chose to be
represented by the Union in violation of Section 8(a) (1) of the Act. A further allega-
tion of the complaint alleges that the Respondent discharged certain janitorial
employees; namely, Ervin R. Hancock, Harold G. Mayhall, David L. Roberts, and
William T. Stalp and refused to reinstate them because they had joined and had
requested the Union to assist them in obtaining union wages for their work. A third
allegation of the complaint alleges a violation of Section 8(a) (5) contending that the
Respondent refused to bargain in good faith when it subcontracted the janitorial
services it had performed through the above-named employees and contracted with an
independent contractor for janitorial services without consulting with the Union with
regard to this subletting.
The Respondent denies, in the main, the allegations of the complaint. Affirmatively,
Respondent contends that with regard to the discharges, all of the four janitors were
discharged for cause, in that they had failed to perform their duties properly. With
regard to the refusal-to-bargain allegation, the Respondent affirmatively alleges that
the alleged discriminatees performed both janitor and guard work and as such were
specifically excluded from the unit represented by the Union and that therefore the
Respondent was under, no obligation to bargain with the Union as to the subcontracting
of the janitorial services because this was not unit work.
Thus the issues would seem to be:
(a) Did the Respondent violate Section 8(a) (1) of the Act by Store Manager Gill
threatening employee Mayhall with discharge if the latter and other employees chose
to be represented by a labor organization?
(b) Did the Respondent violate Section 8(a)(3) of the Act by discharging
employees Mayhall, Roberts, Stalp, and Hancock or were the latter discharged for
cause?
(c) Did the Respondent violate Section 8(a) (5) of the Act by subcontracting the
janitorial services unilaterally and without prior negotiations with the Union or were
the janitorial services performed by the above-named employees not unit work'? A
subissue relating to this issue is whether these employees were janitors or guards within
the meaning of the Act. A still further subissue is whether or not the parties contem-
plated including in the unit these janitorial employees.
IV. THE UNFAIR LABOR PRACTICES
A. Background
The Respondent, a separate corporate entity, is I of 43 discount department stores
operated by a parent corporation, Arlan's Department Stores, Inc. The Respondent
began its retail department store operations on or about August 22, 1963. Before the
store was operating, the Union began organizing among the Respondent's employees
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the extent that sometime before August 18 or 19, Ray Haggard , a business repre-
sentative for the Union, made a demand for recognition upon Chris Gill, the manager
of the Respondent's store. As a result, and upon agreement with Respondent's
counsel, the police chief of East Alton conducted a card check and concluded that a
majority of Respondent's employees had designated the Union as their collective-
bargaining representative. Based on this card check, the Union was recognized by
the Respondent and immediately thereafter, on the same day as the card check, upon
insistence of the Union, a recognition agreement was drawn up in which it was agreed
that the Union was recognized by the Respondent as the collective-bargaining repre-
sentative of all of the Respondent's employees in the following unit:
All employees employed by the Company and all employees employed by the
licensed departments, excluding all persons excluded under the Arlan's St. Louis con-
tract and also excluding assistant office manager and all employees of the food
operation.l
Attached to this recognition agreement was a list, supplied by the Respondent, of
all employees purportedly in the unit. It should be noted for reference hereinafter
that Harold Mayhall, one of the alleged discriminatees, who was the only member
of the custodial staff employed by the Respondent at the time of the recognition
agreement, was not named among the employees on the list.
After the recognition agreement was executed, the Respondent and the Union
entered into negotiations toward a formal collective-bargaining agreement. These
negotiations ended on or about November 12, when a collective-bargaining agree-
ment was executed. Among other things, the agreement provided for a bargaining
unit as follows:
All regular full-time and regular part-time employees of Alton-Arlan's Dept.
Store, Inc., located at 613 St. Louis Avenue, East Alton, Illinois, including leased
department employees, but excluding the store manager, the assistant store manager,
office manager, assistant office manager, head cashiers, head receiver„head hard-line
receiver, head soft-line receiver, leased department managers, guards, professional
employees, and supervisors as defined in the Act.
It should be noted that the unit description follows almost word for word the
unit description of the agreement with the Union covering the St. Louis store which
the recognition agreement purported to follow. The only difference between the
unit description above set forth and the unit description in the St. Louis agreement
is that the unit description above set forth includes the assistant office manager.
Guards are excluded from both units.
B. The alleged interference, coercion , and restraint
Harold G. Mayhall was hired by the Respondent sometime toward the end of
July 1963 and was assigned to custodial duties. The major part of his time was
spent in cleaning the store. Sometime during the latter part of November 1963,
Mayhall had a conversation with Store Manager Chris Gill. Mayhall and Gill
were alone when the conversation occurred. Mayhall testified that he asked Gill
if the custodial department employees were covered in the contract between the
Union and the Respondent and Gill answered that if they were he would have to
let them go because he could get an outside cleaning service to do the work more
cheaply.
On the other hand, Gill testified that on or about November 15, Mayhall came
to him and mentioned that the other people, meaning the sales people, were going
to get more money. Gill told Mayhall that the latter did not have to worry about his
wages and that the Company would compensate him later on, if he did a good job,
and would give him an agreeable wage. According to Gill, Mayhall did not ask
whether he or the other custodians were covered by the contract with the Union. Nor
did Mayhall ask if he was going to get the contract rate. As a matter of fact, according
to Gill, nothing specific was said about the Union at all during that conversation.
Upon my observation of Mayhall and Gill, and for reasons set forth elsewhere in
this report, I credit Gill over Mayhall in this instance and find that the conversation
that occurred was as related by Gill and not as related by Mayhall. Accordingly, I
find that Gill did not in any manner threaten Mayhall with regard to what would
happen to him if he was covered by the union contract. Accordingly, I shall dismiss
the portion of the complaint which alleges that Gill threatened Mayhall and shall
dismiss this allegation of Section 8(a) (1) of the Act.
1 Arlan's, shortly before, had opened a store in St. Louis, Missouri , whose employees
were represented by a sister local of the Union
ALTON-ARLAN' S DEPT. INC. 1311
C. The discharge of the custodial employees
1. The events
Employees Harold G. Mayhall, David L. Roberts, William T. Stalp, and Ervin R.
Hancock, whose chief duties 2 were janitorial, worked at night when the Respondent's
retail store was closed, washing and waxing and generally cleaning the store in prepa-
ration for the next day's business. They normally worked from 10 o'clock at night
until 8 o'clock in the morning. Mayhall, Roberts, and Stalp joined the Union on
November 15, 1963, and Hancock joined December 3. The Respondent had no
knowledge of any union activities by any of these employees until December 3.
There was very little contact, if any, between Store Manager Chris Gill and any of
the above-named employees with the exception of Mayhall, whom Gill regarded as a
sort of leadman who passed on Gill's instructions to the others. As early as September
1963, Gill told Mayhall that he was not satisfied with the manner in which the jani-
torial work was being performed. He told Mayhall at one time that if the condition
of the floors did not improve the Respondent would bring in an outside service to
perform the work. Moreover, in October 1963, a piece of furniture on display in the
furniture department was burnt by a cigarette and, although Gill was not certain as
to who burnt the furniture, Gill suspected that it was one of the night janitorial
employees and Gill told Mayhall that if it happened again the night crew would be
disbanded.3
Sometime toward the end of November, Mayhall telephoned the union offices and
spoke to Hazel Miller, who was then the Union's secretary-treasurer, and told her that
he did not believe he was receiving the correct amount of pay. As a result of this
conversation, Miller told Mayhall to bring his paycheck stubs to the union office.
Pursuant to these instructions, Mayhall and Stalp brought their paycheck stubs to
Miller at the union office. The two left their stubs with Miller who informed them
that she would attempt to compute their wages from the stubs and would also tell Ray
Haggard, the Union's business representative, about their dissatisfaction with the
wages they were receiving.
On Sunday, December 1, 1963, Gill, Respondent's manager, together with Gill's
office manager, entered the store at 8 o'clock. On their way back to the office, accord-
ing to Gill, they observed Mayhall in an armchair in the furniture department. They
continued on to the lounge, and in the center of the lounge Stalp was slumped over in
a chair asleep and Hancock was asleep on the employees' lunchtable. Evidently the
noise of Gill and the manager coming through woke the employees, according to Gill,
and he asked them whether or not they were supposed to be working until 9 o'clock
on Sunday mornings. They answered in the affirmative and admitted that he had
caught them sleeping. He told all three employees to punch out on the timeclock and
to go home. Davey Roberts, the fourth janitorial employee, was not working that
morning as it was his night off.
Mayhall and Hancock denied that they were sleeping on the job that morning. In
fact, Mayhall testified that he was in the aisles checking upon equipment and upon the
manner in which the work had been done when Gill entered the store. However, it
should be noted that neither of these employees nor Stalp, all of whom testified, denied
that they had been sent home early that morning.
Gill testified that when he caught the men sleeping he felt that this was the last
straw in view of the fact that the cleaning work had been unsatisfactory and that the
furniture had been burnt. Therefore, on the very next day, which was December 2, a
Monday, he called the Respondent's district manager, Brandeberry, and told him of
the situation and asked Brandeberry whether or not he should switch to a service for
the custodial work. Brandeberry answered that it was all right for Gill to do so.
After the conversation with Brandeberry, Gill called a Mr. Basden who confirmed
that the price would be the same as an earlier bid he had made and he also told Gill
that it would take him several days to be able to assemble a crew to commence the
janitorial work. Basden estimated that it would probably be Wednesday or Thursday
of that week before he would be ready. Therefore, according to Gill, he held back
3 See section IV, D, 1, infra, for a fuller description of the duties of these employees.
3 From credited testimony of Gill as supported in part by admissions of Mayhall to
the effect that Gill may have warned him about these matters and by the further admis-
sion of Mayhall that Gill did warn him about using an outside service if there was any
further damage to the furniture Mayhall was very reluctant and vague about these
admissions and I am convinced that although his testimony was in some respects credible,
he was not completely forthright about matters which he thought harmful to the Gen-
eral Counsel's case.
775-692-65-vol. 150-84
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
announcing to the men that they were being laid off and discharged. As a matter of
fact, Gill testified, on Monday, Mayhall called Gill and asked if he still had a job and
asked if he should come to work that night. Gill informed him that he should report
to work. Gill did not tell him of the contemplated discharge. Gill testified that
Hancock also called and asked if there was further work and Gill told him to come to
work. This testimony of Gill, to the effect that the men called to ask if they still had
the job, was in no way refuted by testimony from any of the witnesses of the General
Counsel who were at the hearing and who could have testified in rebuttal.
On Tuesday, December 3, Gill received a telephone call from Haggard, the union
business representative. Haggard testified, in substance, that he made the telephone
call to Gill in the presence of Mayhall and Stalp after discussing with them the results
of Miller's checking Stalp's and Mayhall's paycheck stubs and determining that the
custodial employees were not being paid according to the rates set forth for other
employees under the contract between the Union and the Respondent. Haggard testi-
fied that he told Gill that the custodial employees complained that they had not been
paid at the union scale and that they were entitled under the contract to $1.35 an hour
and also were entitled under the contract to be paid time and a half for their work
because the contract provided that all employees in the unit who worked after 10
o'clock at night were entitled to time and a half. According to Haggard, Gill
answered that he was unaware that the janitors were subject to union scale and that
the Respondent could not afford to pay union scale to these employees. He added
that if they were forced to pay that union scale to these employees, the Respondent
would have to let them go and that Gill could probably have the work done cheaper
by an outside cleaning service. Haggard testified that he then told Gill that as to
discharging the custodial employees, that was Gill's prerogative, but if these employees
felt that they were being discharged for an unlawful reason, or wanted to fight it, the
Union would represent them. Haggard then testified that he told Gill that even if
the Respondent brought in an outside cleaning service it would probably be a union
cleaning service and the Repondent would have to pay for such service an amount
that would cover union wages.
Gill's version of this telephone conversation was quite different. He testified that
when Haggard called him on Tuesday, December 3, Haggard told Gill that the men
had been down to see him in regard to their dismissal. Gill answered that the men
were going to be laid off and that the Company was going to have a janitorial service.
Gill told him that the name of the service was Basden. Then, Gill testified, Haggard
asked if it was going to be a union service and Gill answered him in the affirmative
and that was the end of the conversation. According to Gill, during that conversation
Haggard did not say that the janitors were members of the Union nor did he insist
that they were covered by the contract. Haggard did mention, according to Gill, that
the men were not getting the contract rate to which Gill answered that they were not
covered by the contract. Gill insisted in his testimony that when he mentioned to
Haggard that the Respondent was going to subcontract janitorial guard work that
Haggard said that was Gill's prerogative. Gill took this to mean that the Company
could subcontract the work. Also, according to Gill, Haggard said nothing to him
about the Union representing these employees if the Respondent discharged them or
when the Respondent discharged them. Additionally, Gill stated, after his conversa-
tion with Haggard, he called Page, the Respondent's attorney, and informed him about
the Haggard conversation. He told Page what he had told Haggard, and that Haggard
said that subcontracting was the Company's prerogative, but just to be sure that it was
a union service so that they would not get into a hassle over it. According to Gill,
Page then told him that this was perfectly all right and that they could bring this
service in the following evening.
Page testified to the same effect as Gill with regard to what Gill related to Page
insofar as the Haggard-Gill telephone conversation was concerned. Page, in his
testimony, emphasized that he had Gill repeat to him twice the statement that
Haggard allegedly made that the subcontracting of the janitorial work to an outside
service was the Respondent's prerogative. However, Page also testified that this was
only what Gill told him of the conversation and that this was all that he, Page, knew
of such conversation.
On Wednesday, December 4, Gill spoke to Mayhall and Roberts on the telephone.
According to Mayhall, Roberts came to his home and told Mayhall that Gill had told
Roberts that they had been fired for sleeping on the job, damaging one of the
couches, and also that Gill had said something about getting the job done cheaper by
an outside cleaning service. Mayhall also received a call from Gill and Gill told him
that he no longer needed Mayhall's services; that Mayhall was not being fired but
that Gill was bringing in an outside service. Roberts, in his testimony, stated that Gill
ALTON-ARLAN 'S DEPT. INC. 1313
told him that there was no need for him to come to work any more because they had
been sleeping on the job, burning holes in the furniture , and because the janitors
wanted to go union and that he could get janitor service in there cheaper than that.
According to Stalp, however, when Gill called him he was told that he was discharged
because he was sleeping on the job.
It should be noted at this point that approximately 2 weeks after he was discharged
by Gill , Stalp was employed by the grocery department concessionaire in the Respond-
ent's store and has worked for him in a janitorial capacity ever since . This is the same
work that Stalp performed for the Respondent before he was discharged as Stalp was
assigned to clean the grocery department when he was working for the Respondent.
2. Findings and conclusions as to the discharges
The General Counsel contends that the Respondent discharged the four custodial
employees after it had learned that they had requested the Union to intercede for them
in regard to their wage rates. This, the General Counsel contends , is a discharge for
union activity and, therefore , violates Section 8 (a) (3) of the Act. He further con-
tends that the subcontracting of the work was part and parcel of this activity on the
part of the Respondent and was, therefore , also violative.
On the other hand, the Respondent contends that the custodial employees were
discharged because their work had been unsatisfactory , that they had been warned that
they would be replaced with an outside service unless their work improved, and that
the situation became intolerable on December 1, 1963, when they were discovered
sleeping during working hours. The Respondent further contends that this decision
to discharge these employees for the unsatisfactory quality of their work was made on
Monday, December 2, before the call from Haggard which informed the Respondent
that the Union was interceding on the employees ' behalf. Thus , the Respondent could
not have known of any union activity on the part of the employees and, therefore, the
discharge was for cause. The Respondent further contends that the subcontracting
that followed was as a result of months of dissatisfaction and contemplation as to
whether to put into effect a companywide policy of replacing custodial employees with
outside contractors . I cannot accept the Respondent's contentions for the reasons
set forth below.
I credit Gill 's testimony to the effect that the work of at least some of the employees
was unsatisfactory . Furthermore , Mayhall himself admitted that there had been
warnings with regard thereto for some months before the actual discharge . Moreover,
I credit Gill 's testimony to the effect that on Sunday morning, December 1, he dis-
covered Mayhall , Stalp, and Hancock asleep on the job.4 Were these the only factors
presented , I would credit the Respondent 's claim that the discharges came as the cul-
mination of months of patience which was ultimately outworn by the discovery of the
men's sleeping on the job. However, there are factors present which must be con-
sidered and which lead me to a contrary conclusion.
While I find that the employees , as stated above, were sleeping on the job inasmuch
as two of these employees, Mayhall and Hancock , called the next morning to find out
if they still had jobs , I nevertheless do not find that this was the chief factor in the
discharge . As set forth above, the versions of the telephone conversation between Gill
and Haggard varied greatly as to what was said. In substance , according to Haggard's
version , when he told Gill that the men wanted to be paid in accordance with union
rates, Gill told him that he did not believe the men were covered by the contract
between the Respondent and the Union and that the Respondent would not and could
not afford to pay those rates and if it had to, Respondent would subcontract the work.
This would place the determination to discharge the employees subsequent to receipt
of knowledge by the Respondent that the employees had asked the Union to intercede
for them. However, according to Gill's version , Haggard spoke to him about the
men's discharge and then the conversation got around to Gill 's telling Haggard that
the men had been discharged for cause and that the work had already been
subcontracted.
I credit Haggard's version of the conversation for several reasons. Firstly, Gill
claimed that on the day before the telephone conversation , he had engaged Basden as
an independent contractor to perform the work that the custodial employees had been
performing , and had made up his mind to discharge the employees although he
informed them to the contrary in order to keep them on the job until Basden could
take over . However, Basden, the one person not involved here, who could have sub-
4 The employees did not deny that on Monday, December 2, they called Gill to ask
if they still had jobs I conclude that they would not have called had they not been
discovered sleeping on the job and had they not been sent home early therefor. ,
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stantiated this claim, was not produced by the Respondent. His testimony could have
definitely fixed the date upon which he was given the contract to perform the
custodial services. Secondly, Gill, himself, testified that when the employees called
on Monday to ask if they still had jobs, he assured them that they had. Therefore,
there would be no purpose in Haggard's calling Gill to ask about the discharge of the
men. Haggard's inquiry must have been with regard to the wage rates and the failure
of the Respondent to pay contract scale and not, as Gill testified, about the discharges.
Thirdly, the purpose of the employees going to the Union for assistance was the
failure of the Respondent, rightly or wrongly, to pay the contract rate. Thus the
natural consequence of this employee discontent would have been a telephone call
from Haggard to Gill regarding the wage rates.
I conclude, therefore, that Gill told Haggard that if, as Haggard insisted, the con-
tract covered the custodial employees, he would have to let them go because the
Respondent could not afford to pay that kind of money and could probably secure a
janitorial service for less money. I further find that it was after this conversation
that Gill set into motion the machinery which resulted in the hiring of Basden and the
discharge of the employees.
Moreover, I find that the incident of the Sunday previous, when Gill found the
three. employees asleep on the job, furnished Gill with the pretext he needed to rid
himself of the possibility of the Respondent having to deal with the Union on behalf
of the custodial employees. I am persuaded in this because, although Gill had com-
plained to Mayhall about the unsatisfactory quality of the work and about the burned
furniture, he did nothing about the matter for several months until the telephone call
from Haggard when he was informed for the first time of the custodial employees'
union activity. Then, he abruptly severed the employees and contracted with the
outside cleaning service. Moreover, that the degree of dissatisfaction with the
custodial employees' work was less than Gill testified to, is demonstrated to some
extent at least by the fact that Stalp was almost immediately rehired by the grocery
concession operator for the same work he had been doing for the Respondent and,
moreover, the day of the Sunday sleeping incident, Roberts was not even at the store
as it was his day off. Thus, there is some doubt as to the amount of dissatisfaction
with at least two out of the four employees.
Lastly, I cannot overlook the reasons assigned for the discharge by Gill in his con-
versations with Mayhall and Roberts informing them that they were discharged .5 In
his conversations with these employees, Gill gave the subcontracting as a reason for
the discharge and also told Roberts that one of the reasons that he was being dis-
charged was that the janitors "wanted to go union." 6
Accordingly, I find and conclude that the discharge of the custodial employees on
December 4 was motivated, at least in part, by a desire of the Respondent to rid itself
of any obligation to recognize or bargain with the Union insofar as the custodial
employees were concerned. The Board has uniformly held that discharges for such
motivation constitute violations of Section 8(a) (3) of the Act. This is true, even if,
as in the instant case, the Respondent might have had an honest belief that it could
not afford to pay the wages which the Union demanded that the Respondent pay?
Moreover, even though the Respondent, as testified by both Page and Gill, had a
companywide policy of subcontracting janitorial services and even though in the
particular instance of the East Alton store the Respondent might have been con-
templating such subcontracting at some future date if the work of the janitors did not
prove to be satisfactory, and, even though the motivation may have been economic and
may have arisen as an economic necessity because the Respondent could not afford to
pay time and a half at union scale for janitorial services, nevertheless, the logical
inference to be drawn from the facts is that the affected employees would not have
so summarily been dismissed if they had not sought union assistance and had not
sought through the Union to exercise their Section 7 rights.8
5 As noted earlier in this Decision, I do not consider Mayhall in some respects to
be a completely reliable witness. However, because his testimony in this instance is
supported by the testimony of Roberts, whom upon personal observation I credit, I credit
Mayhall's versition of his discharge conversation with Gill
e In coming to all of these conclusions, I have not overlooked the conversation' which
allegedly took place between Gill and Respondent's counsel, Page, on December 3, in
which Gill related his conversation with Haggard to Page However, although I do not
discredit Page, I find that Gill had evidently given him a version which was not correct.
4 See Darlington Manufacturing Company, 139 NLRB 241, 245.
8 See J. M. Lansing, at al., d/b/a Consumers Gasoline Stations, 126 NLRB 1041; Jays
Foods, Inc., 129 NLRB 690.
ALTON-ARLAN'S DEPT. INC. 1315
Accordingly, I find that by discharging the custodial employees because they
engaged in the protected activity of asking the Union to intercede for them, the
Respondent violated Section 8 (a) (3) and (1) of the Act.
D. The refusal to bargain
1. The appropriate unit
As indicated hereinabove, the parties agreed in their collective-bargaining agreement
that all regular full-time and regular part-time employees of Alton-Arlans Department
Store, Inc., located at 613 St. Louis Avenue, East Alton, Illinois, including leased
department employees, but excluding the store manager, the assistant store manager,
office manager, assistant office manager, head cashiers, head receiver, head hard-line
receiver, head soft-line receiver, leased department managers, guards, professional
employees, and supervisors as defined in the Act constitute an appropriate unit for
collective bargaining, and I so find.
2. The status of the custodial employees
The Respondent contends that the custodial.employees or, as the Respondent calls
them, the janitor-watchmen were guards within the meaning of the Act and were,
therefore, excluded from the unit above set forth. It further argues that because the
custodial employees were guards and were excluded from the unit that the Respond-
ent was under no obligation to bargain with the Union with regard to subcontracting
the janitorial services to an outside contractor or to bargain in any manner with
regard to these employees.
Thus, it must be determined whether the custodial employees were guards before
it can be decided whether the Respondent's failure to negotiate with the Union with
regard to the subcontracting was violative of the Act.
It is clear that the duties of the custodial employees included sweeping, dusting,
mopping, and waxing the floors, washing windows, cleaning debris from the store
and disposing of such debris, cleaning counters and other parts of the store, emptying
waste cans, and, in the case of Stalp, straightening grocery carts. Thus, these employ-
ees performed what would be normally accepted as regular janitorial duties and both
parties agree that this is so. The Respondent, however, contends that they also per-
formed duties which would make them guards within the meaning of the Act.
Thus the Respondent's counsel, Page, and Respondent's store manager, Gill, both
testified that in all of the Respondent's parent corporation's stores the janitors are
also charged with security responsibility at night when they are alone in the various
stores. They also testified that these people are known on the Respondent's payroll
records as janitor-watchmen and are not included in the overall units in any of the
stores with the other employees. They testified that if the janitor-watchmen at the
other stores are represented they are represented by a guard union. Although I credit
this testimony, I cannot dispose of the issue of whether or not the employees involved
in this proceeding are guards on the basis of what occurs in other stores. Rather,
the determination of whether the custodial employees involved here were guards
must be made purely upon the basis of what occurred and what their jobs and respon-
sibilities involved in the particular store which is the subject of this proceeding.
Mayhall, Roberts, and Stalp all testified that their jobs consisted mainly in the
janitorial work. So far as Stalp's and Roberts' testimony is concerned neither of
these individuals were ever given any instruction with regard to any guard duties
whatsoever. Each testified that, so far as he knew, his sole responsibilities were
janitorial in nature and nothing more. With regard to Mayhall, Gill testified that
when Mayhall first was employed by the Respondent, Gill hired him because the
store had merchandise moved into it before it was opened and it was necessary to
have someone there at night to watch this merchandise. Then, according to Gill,
the first few nights that Mayhall was on the job, he and Gill made the rounds of the
store so that Mayhall could learn where the various doors were located so that the
same could be checked each night and, moreover, Mayhall was shown where the
emergency telephones were and where the list of the various telephone numbers of
Gill, the assistant manager, the police, and the fire department were located. Gill
further testified that Mayhall was to make a report each morning of anything unusual
that might occur during the night when the janitors were alone in the store.
Mayhall denied that he had any guard duties other than to watch out for fires or
breakins just as any other employee might have and denied that he was obligated to
make any reports as testified by Gill. However, it should be noted that in his pretrial
affidavit Mayhall stated that he was obligated to make such written report. However,
Gill himself admitted that such reports, if they were made at all, were made orally.
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, I find that Mayhall was instructed to make reports of anything which
might have been unusual which would have occurred in the store during the night.
Also, Mayhall admitted that on a couple of occasions he was given the key to admit
certain personnel into the store. He further admitted that at one time he called
Gill at the latter's home because he found a door unlocked.
Additionally, Gill testified that all the janitors were expected to call Gill or the
fire department in case of fire or Gill or the police department in the event of any
threat to the Respondent's property. However, Gill admitted that ,the same duties
devolved upon all of the Respondent's employees and not only its janitors. Gill fur-
ther admitted that to the extent that the janitors were responsible for security of the
store while on duty this responsibility was no greater than that placed on every rank-
and-file employee of the Respondent while such employee was on duty.
It should be noted, and it was admitted by Gill, that none of the custodial employ-
ees were uniformed nor were they licensed to or required to either carry firearms or
use any form of defensive weapon. As a matter of fact, there were no weapons
available to them in the store. Moreover, although the janitors were bonded they
were bonded in no different way than were any of the other selling and nonselling
employees in the Respondent's employ.
Respondent, in further support of its contention, argued.that the unit here which
excluded guards excluded the janitor-watchmen just as the janitor-watchmen were
excluded as guards in the Respondent's parent corporation's St. Louis store. This
might very well have been the Respondent's intention at the time that the recognition
agreement was drawn up which recognition agreement, as heretofore set forth, did
refer to the St. Louis store unit as the basic unit, with the same inclusions and exclu-
sions. However, examination of the transcript of a representation proceeding held
with regard to the St. Louis store shows that, as contrasted to the employees here
involved, the St. Louis janitor-watchmen are armed, they have a more complete
security check in that they are investigated by the FBI before hiring, their names
are on record at the police department and at the American District Telegraph Office
which is the alarm service to which the Respondent subscribes, there are shotguns
available to these employees for their use in a breakin emergency, they have to have
knowledge with regard to the handling of firearms, and they make out daily written
reports as to occurrences during the night. The East Alton janitors involved here
have none of these prerequisites, qualifications, or duties. As a matter of fact, with
regard to Roberts, at least, he did not even make out an application until he had
worked for a period of 3 days.
It should be noted with regard to all of the foregoing that Gill testified that the
subcontractor who was hired to replace the custodial employees and perform the
same functions as they did, was bonded, because the subcontractor was responsible
for merchandise, as were the custodial employees before him, which ranged any-
where in value from a quarter of a million to a half million dollars' But, Gill
admitted that he did not even know what company the bond of the contractor was
with, that he never saw the bond, did not know the limits thereof, and, in fact, had
no knowledge of what type of protection the bond afforded the Respondent.
On the basis of all of the foregoing and upon the entire record, I conclude and
find that the plant protection duties which the custodial employees may have been
obligated to perform were merely extensions of and incidental to their being in the
store at night and were incidental to their janitorial duties and that such protection
obligations were the same as with any other employee-of the store. There is no
testimony whatsoever in the record that these employees were expected to enforce
any rules or regulations against other employees which concerned plant protection.
I find, that like other employees, the custodial employees were expected to take some
action if they observed a fire or breakin but that this was only incidental to the main
duty of providing janitorial service during the time they were required to work .9
Accordingly, I find that the custodial employees are rank-and-file employees and
are not guards within the meaning of the Act.
I, therefore, further find that unless the record supports an agreement or an under-
standing to exclude these employees from the unit in some specific manner, they are
included in the unit determined herein to be appropriate.
3. Findings and conclusions as to the subcontracting
As heretofore discussed, on December 3, 1963, after Haggard, the Union's busi-
ness representative, had spoken to Gill on the telephone with regard to the wage rates
of the custodial employees, and advised Gill that these employees were not receiving
9 Watchmanitors, Inc., 128 NLRB 903-905.
ALTON-ARLAN'S DEPT. INC. 1317
the wage rates to which they were entitled under the terms of the collective-bargain-
ing agreement between the Union and the Respondent, Gill told Haggard that
Respondent could not afford to pay the custodial employees union scale and if it
had to do so, Gill would have to let them go and also that Gill could probably have
the janitorial service performed much more cheaply by an outside cleaning company.
On the same day, Gill discharged the custodial employees and contracted with Basden
for the service. With regard to other portions of that conversation, I have already
accepted Haggard's complete version and find that with regard to the use of the word
"prerogative" Haggard told Gill that it was Gill's prerogative to discharge the
employees but that the Union would represent these employees if they thought the
discharge was unlawful.
Under these circumstances, it would seem that the janitors, not being guards,
would be included in the bargaining unit and that therefore bargaining unit work
was subcontracted out. The Board has held that the duty to bargain with the bar-
gaining representative of its employees before work within the bargaining unit is
contracted out is mandatory and has stated ". . . management decision to subcontract
work out of an existing unit, albeit for economic reasons, was a mandatory bargain-
ing subject." 10
It is clear from the facts recited above, and from the entire record, that the Respond-
ent subcontracted the janitorial work and discharged the custodial employees without
affording the Union an opportunity to meet with the Respondent and discuss with it
the proposed subcontracting. This is clearly a refusal to bargain within the meaning
of the Act inasmuch as "such prior discussion with a duly designated bargaining rep-
resentative is all that the Act contemplates. But it commands no less." 11
The Respondent contends, however, that inasmuch as the very issue as to whether
the janitors were included in the bargaining unit was a basic part of the very dispute
between the parties and that as of the date of the discharge and the subcontracting
of the work to Basden this issue had not been settled, the duty imposed upon an
employer under Board precedent which governs subcontracting of bargaining unit
work, should not be imposed upon the Respondent in this case because the Respond-
ent in good faith and with reasonable justification believed that the janitorial employ-
ees were not included in the unit set forth in the collective-bargaining agreement and
that it would be manifestly unjust and contrary to the fundamental principles of the
Act to hold that the Respondent was required under the Act to bargain collectively
with the Union before subcontracting the work operations of these custodial employ-
ees. The Respondent further argues that such a requirement would operate retro-
actively to impose heavy -penalties and burdens upon an employer who was operating
in complete good faith.
Factually supporting the contention of the Respondent is the testimony of Respond-
ent's counsel Page to the effect that when he spoke over the telephone on the night
of the card count to a union official by the name of Falk, he specifically stated to
Falk that the night porters were to be excluded from the unit. Additionally, the list
of employees supplied by the Respondent to the Union, which list was used for the
purposes of the card check conducted by the police chief, did not include the name
of Mayhall, the only janitorial employee employed at that time. Moreover, the
parties agreed that there would be excluded from the unit the same classification of
employees who were excluded from the St. Louis unit. Additionally, employee May-
hall supported Gill's testimony to the effect that on several occasions both before and
after the signing of the contract, Gill told Mayhall, upon the latter's inquiry, that the
janitors were not covered by the bargaining contract between the Union and Respond-
ent. Finally, in the telephone conversation of December 3, between Gill and Hag-
gard, Gill intimated that he did not believe that the janitorial employees were included
in the unit.
In addition to this foregoing testimony, Respondent's counsel testified, as alluded
hereto above, that in all other stores associated with Respondent's parent corporation
the janitor-watchmen are excluded as guards from the unit of selling and nonselling
employees.
I do not find merit in the Respondent's contention. Accepting the testimony of
Respondent's counsel to the effect that in all of its stores, the janitor-watchmen are
excluded from the unit as guards, it is nevertheless the employees involved herein
whose duties determine whether they are guards. It may well be also that at the
time the contract between the Union and the Respondent herein was executed, the
Respondent's counsel and the Respondent's representatives felt that this store, like
io Fibreboard Paper Produet8 Corporation, 138 NLRB 550-551.
u Town & Country Manufacturing Company, Inc., at al., 136 NLRB 1022, 1027.
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent 's other stores , would engage janitor-watchmen whose duties would be
such that they would actually be guards within the meaning of the Act . This is quite
likely in view of the fact that the janitor -watchmen in the St. Louis store clearly came
within the guard classification . Whatever Respondent 's representatives might have
had in mind at that time, however , the fact is, as heretofore found , that the janitors
are not guards within the meaning of the Act and their duties were virtually exclu-
sively janitorial in nature . Whatever management policy or decision resulted in this
situation is not part of this case and is not presented for my consideration . It is for
me to resolve the situation in the light of what duties and responsibilities of the
janitors actually were and to make a determination of this situation on that basis.
Thus, as a result , of determining that the janitors are not guards , it must be, perforce,
concluded that they are members of the unit ; that unit work was subcontracted with-
out negotiation and consultation with the Union which represented all of the employ-
ees in the unit, and that, therefore , by so subcontracting , the Respondent violated its
statutory duty to bargain . The Respondent 's professed belief that the janitorial
employees are not included in the unit, albeit possibly conceived and nurtured in
good faith, cannot change the fact that unit work was subcontracted without fulfill-
ing the duty which the Board has held is imposed by the Act.12
Accordingly , I find and conclude that by subcontracting the janitorial work herein,
the Respondent failed and refused to bargain with the bargaining representative of
its employees and thereby violated Section 8(a)(5) and ( I) of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The conduct of the Respondent set forth in section IV, above, occurring in connec-
tion with the operations described in section I, above, have a close , intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
VI. THE REMEDY
It having been found that the Respondent has engaged in certain unfair labor
practices , it will be recommended that the Board issue an Order requiring that it
cease and desist therefrom , and take certain affirmative action, including the posting
of appropriate notices, designed to effectuate the policies of the Act, as amended.
Having found that the Respondent closed its janitorial department at its East Alton
store on December 4, 1963, and subcontracted out the work thereof, and terminated
the employment of Ervin R. Hancock , Harold G . Mayhall, David L . Roberts, and
William T. Stalp, I shall recommend that these actions be remedied in accordance
with the Board 's policy in such cases. Accordingly, I recommend that Respondent be
required and ordered to reopen that department and offer these employees immediate
and full reinstatement to their former or substantially equivalent positions , without
prejudice to seniority or other rights and privileges.
It is further recommended that the Respondent make whole each of the employees
named immediately above for any loss of economic benefit each may have suffered
by reason of Respondent 's discrimination against him by payment to him of a sum
of money equal to the amount of wages he would have earned , together with a rea-
sonable value of any benefits he would have enjoyed but for such discrimination
between December 4, 1963, and the date of a proper offer of reinstatement to him
as aforesaid . Loss of pay shall be computed as prescribed in F. W. Woolworth
Company, 90 NLRB 289, and interest on any such backpay awarded shall be com-
puted at 6 percent per annum in accordance with Isis Plumbing & Heating Co., 138
NLRB 716.
Having found that Respondent violated Section 8 (a)(5) of the Act by unilaterally
subcontracting its janitorial work without bargaining with the Union over its decision
to do so, I shall recommend that the Respondent cease and desist from unilaterally
subcontracting unit work or otherwise making unilateral changes in their terms and
conditions of employment without consulting the Union.
12 I do not believe that I am empowered to carve out an exception to the Board's
decisional rulings in this respect. If the application seems harsh in this case, it is for
the Board to decide whether the Fibreboard Paper Products Corporation decision should
be modified.
SINGER SEWING MACHINE COMPANY 1319
In view of the nature of the unfair labor practices committed, it is recommended
that the Respondent be ordered to cease and desist from in any manner infringing
upon rights guaranteed to its employees by Section 7 of the Act.
CONCLUSIONS OF LAW
1. Alton-Arlan's Dept. Store, Inc., is an employer engaged in commerce within the
meaning of the Act.
2. Retail Clerks Local 149, Retail Clerks International Association, AFL-CIO,
is a labor organization within the meaning of the Act.
3. All regular full-time and regular part-time employees of Alton-Arlan's Dept.
Store, Inc., located at 613 St. Louis Avenue, East Alton, Illinois, including leased
department employees, but excluding the store manager, the assistant store manager,
office manager, assistant office manager, head cashiers, head receiver, head hard-line
receiver, head soft-line receiver, leased department managers, guards, professional
employees, and supervisors as defined in the Act constitute, and at all times material
herein, constituted, a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
4. Retail Clerks Local 149, Retail Clerks International Association, AFL-CIO,
was, on December 4, 1963, and at all times thereafter has been and now is the exclu-
sive representative of all the employees in the above-described unit for the purposes
of collective bargaining within the meaning of Section 9(a) of the Act.
5. By unilaterally subcontracting its janitorial work without bargaining with the
above-named Union as the exclusive representative of the employees in the appropri-
ate unit over its decision to do so, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(5) of the Act.
6. By discharging Ervin R. Hancock, Harold G. Mayhall, David L. Roberts, and
William T. Stalp on December 4, 1963, thereby discouraging membership in the
Union, the Respondent has engaged in and is engaging in unfair labor practices pro-
scribed by Section 8(a) (3) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Singer Sewing Machine Company and Retail , Wholesale, and
Department Store Union , Local 101, AFL-CIO. Case No.
6-CA-2569. January 27, 1965
. SUPPLEMENTAL DECISION AND ORDER
On August 14, 1964, Trial Examiner Frederick U. Reel issued his
Decision in the above-entitled matter, finding that Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, both General Counsel and Respondent filed
exceptions to the Trial Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
150 NLRB No. 137.