Grounds ServiceDownload PDFNational Labor Relations Board - Board DecisionsFeb 2, 1970180 N.L.R.B. 1040 (N.L.R.B. 1970) Copy Citation 1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wayne R. Sherwood d/b/a Grounds Service and Service Employees Union , Local 77, Service Employees International Union , AFL-CIO. Case 20-CA-5340 February 2, 1970 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On September 9, 1969, Trial Examiner James R. Webster issued his Decision in the above-entitled proceeding, finding that the 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, the Respondent filed exceptions to the Decision and a supporting brief, the General Counsel filed limited cross-exceptions and supporting arguments and an answering brief to the Respondent's exceptions, and Respondent filed a reply brief to the cross-exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The National Labor Relations Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, cross-exception, arguments, and briefs, and the entire record in this case, and hereby adopts the findings,' conclusions,' and recommendations of the Trial Examiner. AMENDED REMEDY We adopt the Trial Examiner's Remedy, with the following modification: Insert before the word "employment" in the first sentence of the second paragraph of the Trial Examiner's Decision, the words, "offer of." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, Wayne R. Sherwood, d/b/a Grounds Service, San Jose, California, his agents, successors, and assigns, shall 'We find it unnecessary , in the circumstances of this case , to pass on the Trial Examiner's finding as to the customary hiring practice when a new employer becomes the successful bidder on a service contract renewal 'Cf Tri-State Maintenance Corporation, 167 NLRB No 140 take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES R. WEBSTER, Trial Examiner: This case, with all parties represented, was heard in San Jose, California on June 3, 1969, on a complaint of the General Counsel and answer of Wayne R. Sherwood, d/b/a Grounds Service, herein called Respondent. The complaint was issued on April 2, 1969, on charges filed December 17, 1968, and March 28, 1969. The complaint alleges that Respondent discriminatorily refused employment to seven persons, thereby engaging in an unfair labor practice within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, herein called the Act Briefs have been filed by the General Counsel and by Respondent and they have been carefully considered. Upon the entire record and my observation of the witnesses, I hereby make the following. FINDINGS OF FACT I THE BUSINESS OF THE EMPLOYER Wayne R. Sherwood is an individual proprietor doing business under the trade name of Grounds Service with a place of business in San Jose, California. He is engaged in the business of performing gardening and ground maintenance services. On or about December 9, 1968, he commenced work on a contract with the National Aeronautics and Space Administration, herein called NASA, for the performance of gardening and ground maintenance services valued in excess of $84,000, at NASA's Ames Research Center, Moffett Field, California, during the 12-month period from December 9, 1968, to December 8, 1969. NASA, an agency of the United States Government, annually purchases and receives at its Ames Research Center, Moffett Field, California, goods and products valued in excess of $50,000 directly from suppliers located outside the State of California Respondent is an employer engaged in commerce and in an operation affecting commerce within the meaning of Section 2(2), (6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Service Employees Union, Local 77, Service Employees International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE A. Issue Whether Respondent refused to employ the seven employees of the prior ground maintenance employer because of their union affiliation, or whether he refused to employ them because they did not make application for employment with him and he received sufficient applications from persons with excellent qualifications. 180 NLRB No. 165 GROUNDS SERVICE 1041 B. Statement of Facts For several years and until December 6, 1968, Mercury Services Inc., performed ground maintenance services for NASA at its Ames Research Center, Moffett Field, California. Wayne R. Sherwood was its foreman in charge of this operation, with authority to hire and discharge personnel, until his resignation on November 15, 1968. Following an election conducted by the Board in Case 20-RC-8 113, a certificate of representation dated June 11, 1968, was issued to the Union as the bargaining representative of Mercury's gardeners and maintenance men at the Ames Research Center. On August 23, 1968, the Union and Mercury entered into a collective-bargaining agreement effective for three years and containing a union-security clause During this period several charges were filed with the Board involving the termination of several employees. Pursuant to a settlement agreement two employees were reinstated. Approximately two weeks after these reinstatements and on November I, 1968, Sherwood submitted his resignation to Mercury after having warned the company that he would do so. Sherwood had told his immediate supervisor, Henry Schreiber, that "if you reinstate those men, which one of them are you going to give my job to'? Because I won't be around." In another conversation with Schreiber a few days later, Sherwood told him that "as far as I was concerned, these men were fired for just causes and I didn't eat Crow very well." Sherwood testified that it is possible he also told Schreiber that he was not going to give any more instructions to Tony Flores, one of the employees reinstated. He also testified that after his reinstatement Flores was assigned work that did not require supervision. Sherwood's last day of employment with Mercury was Friday, November 15, 1968. In the early part of November 1968, Sherwood and several other companies, including Gateway Landscape Company, a subsidiary of Mercury, submitted bids to NASA for performance of substantially the same services that had been provided by Mercury under its contract expiring December 6, 1968. On Monday morning, November 18, Sherwood was advised informally that he was the low bidder on the contract. At about 9:30 a.m. that morning, Sherwood drove in his pickup truck to an area in the vicinity of the cafeteria where employees Bill Curry, James Nunes and Gilbert Acuna were picking up trash. He called them over to his truck and told them that Mercury was losing its contract in December and that he was taking over the work; that if they wanted to work for him they would have to drop the Union; that he would be strictly nonunion and if he heard anyone mention the Union or anything about the Union, he would be out the gate. None of the employees had anything to say, and he told them to think it over. Later that day they informed the other employees of this conversation, and employee Tony Flores telephoned Union Representative Robert Reeves and reported to him that they had heard that Sherwood was going to take over the ground maintenance services at Ames, that it was going to be a nonunion job and that they would all be out of work.' Reeves immediately called a representative of Ames and was informed that Sherwood was the low bidder of four or five companies that submitted bids Reeves asked that he be advised when the contract was awarded. On approximately December 4 or 5, 1968, a representative of Ames called Reeves and informed him that the contract had been awarded to Sherwood. Reeves then called Sherwood and told him that he represented the people working for Mercury and that he expected him to hire them. Sherwood replied that he had quit Mercury because of the Tony Flores case, that he felt the reinstatements by Mercury were unjust and that Mercury should have fought the case all the way to the Supreme Court. He informed Reeves that he was going to operate nonunion and had nothing to talk about. On December 6, Reeves went to the work site and informed the employees of Mercury - Gilbert N. Acuna, Ysidro E. Marron, Jose Guadalupe Orosco, Bill Joe Curry, Tony G. Flores, James F Nunes, Fortunato Rodriquez that they had every right to expect to be employed by Sherwood. He advised them to report to work at the normal time on Monday morning, December 9, when Sherwood's work commenced. On Monday morning, December 9, 1968, the seven employees who had been employed by Mercury reported for work at about 15 minutes before the 8 o'clock starting time Sherwood was there with seven men. After he checked in at the security office he then proceeded to take the seven men into the work area. C. Conclusions Respondent contends that none of the Mercury employees applied to him for employment and that he advertised in the newspaper and received more than enough response from persons with excellent qualifications and with better qualifications than the Mercury employees; some of the applicants had been foremen on similar jobs. But Sherwood's true motivation for not considering the seven Mercury employees is found in his statements to Supervisor Schreiber in the fall of 1968, his statements to Curry, Nunes and Acuna on November 18, 1968, and his statements to Reeves on about December 5, 1968. As soon as he found out that he was the low bidder, Sherwood approached three of the employees about employment with him but qualified his offer with the requirement that they abandon the Union. His message was communicated to the other men and none approached him for employment on this basis I find that Sherwood refused to consider any of the Mercury employees because of their union affiliation. Having worked with them as their foreman, he was acquainted with their abilities and work performance, and it would certainly be more logical and practical for him to have considered them for employment rather than start with an entirely new crew whose capabilities and work performance were known to him only by reports from themselves or others. There is no showing that any of the seven men were not qualified and capable. Sherwood testified on this point that these men were from farm labor areas and had started with him at $1.85, $2, and $2.25 an hour, and that as the wage rate 'Sherwood denied any conversation with Curry, Nunes and Acuna, but I do not credit his denial His testimony was generally evasive and particularly so as to his conversations with his supervisor Schreiber Also, in view of the importance of the credibility issue presented by the testimony on this conversation, I recalled Curry and Nunes for further interrogation on this matter Their testimony is substantially in accord as to the remarks of Sherwood and as to other surrounding data, their disagreement as to whether Sherwood also stated that anyone who worked for him would have to sign a paper against the Union , does not change the substance of his remarks 1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fixed for this work is now $2.58 per hour, he felt that he could go to the labor market and for that rate get more intelligent and more capable employees . He testified, however, that some of the Mercury employees would qualify under his expectations. Respondent also contends that the seven men involved were employees of Mercury and he did not know but what they would be utilized elsewhere by Mercury which has contracts in many areas. Mercury's subsidiary, Gateway, was an unsuccessful bidder on the Ames contract. Sherwood 's testimony on this point is as follows: As far as I am concerned, they were Mercury Services employees on the Friday prior. What if I had assumed that they were going to be my employees and waited until that date and then these men are going to work someplace else? I could have not been able to fulfill my Monday morning contract. If Sherwood had had any real doubt about their future employment status and if his interest in them had not been blocked by his attitude toward their union affiliation, he could have and would have ascertained their future employment status. Union Representative Reeves testified that in situations such as the one at Ames where one employer ' s contract terminates and another employer is the successful bidder on a new contract, the practice is that the employees are left at the jobsite. I find that on December 9, 1968 , Respondent refused to consider for employment and refused to employ Gilbert N Acuna, Ysidro E. Marron, Jose Guadalupe Orosco, Bill Joe Curry, Tony G Flores, James F. Nunes, and Fortunato Rodriquez for ground maintenance work at the Ames Research Center, and that he refused to do so because of their membership in and activities on behalf of the Union.' IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section Ill, above, occurring in connection with the operations of Respondent described in section 1, 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 thereof. Upon the basis of the foregoing findings of fact and the entire record in this case , I make the following: CONCLUSIONS OF LAW 1. Wayne R. Sherwood d/b/a Grounds Service is an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act. 2. Service Employees Union, Local 77, Service Employees International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By refusing to consider for employment and by refusing to employ Gilbert N. Acuna, Ysidro E. Marron, Jose Guadalupe Orosco, Bill Joe Curry, Tony G. Flores, James F. Nunes and Fortunato Rodriquez because of their union membership and activities , Respondent has discriminated against employees to discourage membership in the Union , and has thereby engaged in an unfair labor practice within the meaning of Section 8(a)(3) 'Tri-State Maintenance Corp . 167 NLRB No. 140 and (I) of the Act. 4. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in an unfair labor practice, I shall recommend that he cease and desist therefrom and that he take certain affirmative action which is necessary to effectuate the purposes of the Act. I shall recommend that the employment status of the seven employees involved-herein be restored to what it would have been but for Respondent's discrimination against them, and that Respondent offer them immediate and full employment as gardeners and maintenance men without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay that they may have suffered by reason of the discrimination against them, by paying each a sum of money equal to that which he normally would have earned as wages from the date of the discrimination to the date of employment, less net earnings during such period, in accordance with the Board's formula set forth in F. W. Woolworth Company, 90 NLRB 289, together with interest thereon at the rate of 6 percent per annum as prescribed in Isis Plumbing & Heating Co.. 138 NLRB 716. On the basis of the foregoing findings of fact and conclusions of law, and the entire record herein, I recommend that, pursuant to Section 10(c) of the Act, the Board issue the following: ORDER Wayne R. Sherwood, d/b/a Grounds Service, his agents, successors, and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in the Service Employees Union, Local 77, Service Employees International Union, AFL-CIO, or any other labor organization, by refusing to consider for employment or by refusing to employ employees because of their union activities, or in any other manner discriminating against employees in regard to hire or tenure of employment or any terms or conditions of employment. (b) In any like or related manner interfering with, restraining, or coercing his employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer to the following named employees immediate and full employment as gardeners and maintenance men, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them , in the manner set forth in the section of this Decision entitled The Remedy.": Gilbert N. Acuna Tony G. Flores Ysidro E. Marron James F. Nunes Jose Guadalupe Orosco Fortunato Rodriquez Bill Joe Curry (b) If any of the above-named employees is presently serving in the Armed Forces of the United States, he will be notified of his right to full employment upon application in accordance with the terms of this Order, pursuant to the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Services. (c) Preserve and make available to the Board or its agents, upon request, for examination and copying, all GROUNDS SERVICE 1043 payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post in conspicuous places at his place of business and other places where notices to his employees would normally be posted, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 20 of the National Labor Relations Board, after being duly signed by Respondent, shall be posted by him immediately upon receipt thereof and maintained by him for 60 consecutive days thereafter. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 20, in writing, within 20 days from the date of receipt of a copy of this Decision, what steps Respondent has taken to comply herewith., In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board ' s Order is enforced by a decree of a United States Court of Appeals , the words "a Decree of the United States Court of Appeals Enforcing an Order " shall be substituted for the words "a Decision and Order " In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read - "Notify the Regional Director for Region 20, in writing , within 10 days from the date of this Order, what steps he has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of a National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in the Service Employees Union, Local 77, Service Employees International Union, AFL-CIO, or any other labor organization, by refusing to consider for employment or by refusing to employ employees because of their union activities, or in any other manner discriminating against employees in regard to hire or tenure of employment or any terms or conditions of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer the following named employees immediate and full employment as gardeners and maintenance men, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them. Gilbert N Acuna Tony G. Flores Ysidro E. Marron James F. Nunes Jose Guadalupe Orosco Fortunato Rodriquez Bill Joe Curry All of our employees are free to become or to remain, or refrain from becoming or remaining, members of the above-named Union or any other labor organization, except to the extent that such rights 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 Dated By WAYNE R. SHERWOOD D/B/A GROUNDS SERVICE (Employer) (Representative ) (Title) Note: If any of the above-named employees is serving in the Armed Forces of the United States, we will notify him of his right to full employment upon application, in accordance with the terms of the Order herein, pursuant to the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Services. 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 556-0335. Copy with citationCopy as parenthetical citation