Grounds Service

National Labor Relations Board - Board Decisions

Feb 2, 1970

180 N.L.R.B. 1040 (N.L.R.B. 1970)

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.