Hoke Janitorial Service

National Labor Relations Board - Board DecisionsOct 1, 1974

213 N.L.R.B. 783 (N.L.R.B. 1974)

HOKE JANITORIAL SERVICE 783 Hoke Janitorial Service and Industrial , Technical and Professional Employees Division , National Mari- time Union of America, AFL-CIO. Cases 20- CA-7650, 20-CA-8155, and 20-CA-8337 October 1, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On May 15, 1974, Administrative Law Judge James T. Rasbury issued the attached Supplemental Deci- sion in this proceeding.' Thereafter, Respondent filed exceptions and a supporting brief. Pursuant. to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Hoke Janitorial Service, Fairfield, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. ' The original Decision, issued on October 31, 1973, deferred this case to arbitration based on the Administrative Law Judge' s interpretation of Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837 (1971). The Board did not view this case as within the dictates of Collyer and by order dated March 22, 1974, remanded this case to the Administrative Law Judge for appropriate findings, conclusions, and recommendations. SUPPLEMENTAL DECISION STATEMENT OF THE CASE JAMES T. RASBURY, Administrative Law Judge: These con- solidated cases were heard in San Francisco, California, on July 25 and September 14 and in Fairfield, California, on October 1, 1973.' Thereafter, I issued my decision on Octo- ber 31, deferring the issues raised in Case 20-CA-8155 to the Respondent and the Charging Party for disposition un- der the arbitration provisions of their contract, in keeping with my interpretation and understanding of the Board's decision in Collyer Insulated Wire, A Gulf and Western Sys- ' All dates hereinafter will be 1973 unless otherwise indicated. tems Co., 192 NLRB 837 (1971). My decision also indicated that Cases 20-CA-7650 and 20-CA-8337 had been resolved during the course of the hearing and at the request of Gener- al Counsel and agreement of all parties were dismissed. By Order dated March 22, 1974, the Board remanded this case to me for appropriate findings, conclusions, and rec- ommendations and in so doing stated, in disagreement with my earlier decision here, that it did not view the instant case as appropriate for application of the principals set forth in Collyer, supra. Upon the entire record, my observations of the witnesses, and consideration of the briefs filed by General Counsel and the Employer, I make the following: 2 FINDINGS OF FACT I. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues Were Charles Nelson, Jr., and Cody Mott, or either of them, discharged in violation of Section 8(a)(3) and (1) of the Act? Is Major Norton a supervisor of Respondent? Did Norton interfere with, restrain, or coerce employees by his words and course of conduct in violation of Section 8(a)(1) of the Act? B. The Facts 1. Supervisory status of Major Norton Major Norton testified that he was a personal friend of Robert Hoke, owner of the Hoke Janitorial Services, having spent approximately 20 years working with him at Mare Island, where they were both members of the boilermakers union, before Norton's retirement in 1970. In September 1972 at the request of Hoke, he agreed to assist Hoke in "straightening out some workers at the terminal and the hospital. . . . So I told him I didn't mind giving him a hand and do what I could for him. But I made him understand I couldn't do no work, but I could help him iron it out the best I could." Nelson further testified that he was not paid by Hoke and never hired or fired anybody, nor recommend- ed anybody for hiring or firing. On direct examination, Norton volunteered the information, "I kept people from getting fired." Charles Nelson testified that during the time he served as a group leader, or first-level supervisor, he saw Norton mak- ing out the work schedules. Norton confirmed that he made out work schedules. While Norton protested that he never had authority to hire or fire people, Lee Mack, Jr., testified that the only person he talked to before going to work was Major Norton and that he was told by Norton that he "had to work part time on weekends, because I was already working on anoth- er job .. .." Jerry Vierra testified that he knew a supervi- sor named de Luna and he (de Luna) talked to Norton and then Norton told him (Vierra) that he had a job with Hoke. t The prefatory information as to the charges, complaints, business of Respondent , commerce , and labor organization involved, was set forth in the initial report and need not be repeated here. 213 NLRB No. 117 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In addition, Norton acknowledged that he attended at least one negotiating session when Hoke could not be present 3 and on at least one other occasion was in the attorneys offices while the negotiations were in process. On the basis of the above facts, I find that Norton's conduct and activity were such as to lead the employees of Respondent to reasonably believe that he was a supervisor and agent of Respondent regardless of whether he was being paid and regardless of whether he was an authorized agent of Respondent. I further find that Respondent did nothing to dispel this reasonable belief on the part of the employees, nor did Respondent at any time disavow the course of action followed by Norton. I find Major Norton to have been at all times material herein a supervisor within the meaning of Section 2(11), and an agent within the mean- ing of Section 2(13) of the Act. 2. Interference, restraint, and coercion Norton sought to dispel any antiunion animus on the part of Respondent by testifying that both he and Hoke 4 were longtime members of the boilermakers union. This was cou- pled with some testimony from at least one employee that she had been encouraged to attend the union meetings by Norton.s Norton denied ever saying that union people were troublemakers or that he was out to get union people. Nor- ton did not deny, as testified by Vierra, his expressions of displeasure at Vierra's statements that Mott had told Vierra he would have to join the Union or he would be fired. On the other hand, the statement attributed to Mott, if made, was false and misleading and Norton 's expression of dissat- isfaction was not of a restraining, interfering, or coercive nature, nor did it have that effect. I do not find this remark violative of the Act. Nelson, however, testified that on one occasion in March 1973 Norton told him Donald Glover, Mrs. Luise Price, Ida Pillows, and Rita Riordan 6 "are the troublemakers and I am going to make it hard for them so they would want to quit." Nelson further testified that Norton said these em- ployees "had gone to the negotiating meeting , and that as long as the Union is in here, there will be nothing but trouble." These statements were not specifically denied by Respon- dent and I believe Nelson to have been a credible witness even though he was not too articulate and sometimes his testimony was difficult to follow. I find the comments made by Norton to Nelson to have been coercive and in violation of the employees' Section 7 rights and thus violative of Section 8(a)(1) of the Act 7 3. The discharge of Mott While there was some collateral testimony in the record regarding the possibility that Mott may have been involved 3 Respondent had counsel who was apparently its chief spokesman at the nefotiating sessions and Norton did not actively participate. Hoke did not testify. S Testimony of Marie Smith. 6 Glover, Price , and Pillows served on the contract negotiating committee. Eldo-Craft Boat Co., Inc., 166 NLRB 280 (1967). in the destruction of some company property, this was not the reason advanced by Respondent as the cause of his employment separation. Respondent contended Mott sim- ply quit. General Counsel contends Mott was discharged in violation of Section 8(a)(3) of the Act. Mott testified concerning an incident wherein an employ- ee had told him that she had heard Norton blame him (Mott) for the "busted" timeclock and the holes punched in a 55-gallon drum. This was very disturbing to Mott and he telephoned Norton's home at 2 a.m. and demanded that Norton immediately stop spreading these rumors. Needless to say, Norton refused to talk to him and hung up the telephone. The next morning, Mott again confronted Nor- ton in his office and after Norton had told Mott he didn't know what he was talking about, there were words to the effect that Mott should get out and stay out. The following questions and answers then appear in the record: Q. O.K. Now, after this conversation concluded which you just testified to, did you leave the office, or did you leave the terminal building? A. No, sir, I went to the cafeteria. Q. But did you eventually leave Travis Air Force Base that day? A. Yes, sir. I left Travis Air Force Base at about 8:15 or a quarter to 9 or something like that. Q. Did you have any further communication with Mr. Norton shortly after that? A. Yes, sir, I did. Q. Can you tell us- A. I went down to the unemployment office and I filed for unemployment. And about a day later Mr. Norton calls me up on the phone and said , why did I say that he had fired me. I said , well, Mr. Norton, there were two witnesses to the effect that you did fire me, and that you told me to get on out and don't come back. And, you know, this to me is a dismissal. Q. What did he say? A. Well, he said, well, I didn't fire you. I want you to come back Friday night at midnight. Well, Thursday night , at midnight, Mr. Glover calls me up. So, he tells me that Mr. Hoke told Mr. Norton to tell Mr. Glover to call me and to tell me that I was fully terminated, and not to show up. Q. During the time that you had been working at Travis for Mr. Hoke, did Mr. Norton-strike that- did Mr. Glover ever relate such instructions to you before? A. I don't understand. Q. Was it a little-was it a little unusual for Mr. Glover to be telling what Mr. Hoke had told Mr. Nor- ton? A. Well, Mr. Hoke and Mr. Norton-anytime that they would have a problem with the terminal, they would tell us to call or to get in touch with this other person. They would give us the number, but they would not do it directly themselves. Q. Who was your union shop steward at that time? A. At that particular time it was Mr. Glover. Q. Mr. Glover? HOKE JANITORIAL SERVICE A. Yes sir. Q. Now did you ever go back to Travis? A. No sir. Q. Did you ever have any further communications with Mr. Norton and Mr. Hoke? A. No, sir, I did not. Q. Either by telephone or written? A. No, sir. This, then, is the evidence relied upon to prove Mott was fired in violation of Section 8(a)(3). There is a complete absence of evidence to indicate that Mott was a union activ- ist, vocal proponent, or anything other than a passive mem- ber of the Union. I am of the opinion that the General Counsel has failed to meet his burden of proving that the alleged discharge was motivated by antiunion consider- ations.8 Moreover, but of equal importance in my dismissal of this allegation of the complaint, I am of the opinion that the evidence fails to support the contention that Mott was discharged. Mott's own testimony indicates he failed to re- port for work after being specifically informed by Norton that he had not been fired and after being told by Norton when to report for work. Mott's reason for not thereafter reporting for work was, "Mr. Glover 9 called me up. So, he tells me that Mr. Hoke told Mr. Norton to tell Mr. Glover to call me and to tell me that I was fully terminated and not to show up." Not only do I regard this type of indirect communication by someone other than an agent of Respon- dent inadequate to support a claim of discharge, but Glover failed to testify regarding the delivery of such a message to Mott. After carefully evaluating all the evidence relating to the termination of Cody Mott from Respondent's payroll, I am of the opinion that Mott simply quit. I shall recom- mend dismissal of that portion of the complaint relating to the alleged discriminatory discharge of Mott. The discharge of Charles Nelson Charles Nelson had worked at Travis as a custodial em- ployee for approximately 7 years and had been a member of the Union since it was first organized at Travis, which was some 2 years prior to Respondent's appearance on the scene. For the first 3 months of Respondent's contract with the government to provide the janitorial service at Travis, Nelson served as the union shop steward. Thereafter, at the request of Mr. Hoke and Mr. Norton, he became a group leader or first-level supervisor and remained in that capacity until April of 1973. There is some doubt in my mind as to whether he was involuntarily demoted or whether it was a mutually convenient arrangement. The record testimony tends to support the latter. In any event, in April, or shortly after returning to a rank-and-file employee status, Norton told Nelson that he (Norton) had been informed that Nel- son had "went back working with the Union." On May 16 Nelson reported for work at midnight, but was told by Mr. Vincent (who had replaced Nelson as a group leader) "that he had enough people already." Nelson 8 Miller Redwood Company, 164 NLRB 389 (1967), enfd 407 F 2d 1366 (CA 9, 1969) 9 The shop steward 785 asked why he didn't have a shift when he had the most seniority. When informed by Vincent that he had nothing to do with it, Nelson said he was going to call Norton. Norton told him he would try to straighten things out the next morning. The following testimony was related by Nelson as to what happened the next morning: Q. (By Mr. Hopkins) Now, did you meet with him in an office, or where? A. Yes, we met in the office. Q. Was Mr. Vincent there? A. Mr. Vincent-he came up. He wasn't in the of- fice at first. Q. Okay, who started the conversation? A. I started the conversation. Q. With just Mr. Norton? A. No, Vincent, him and down the hall. Q. And what did you say? A. I told Mr. Norton, I says, just trying to find out, am I supposed to work or not. Q. And what did he say? A. And then Mr. Norton then said to Mr. Vincent- he said, why don't you all go on and tell the man. Just tell the man that Mr. Hoke don't want him around in here. Why don't you just tell him? He had my son's timecard already, you know.10 You see, and he said, why don't you just stop putting the man off, just tell him like it is. Just tell him, Mr. Hoke don't want him anymore. Q. Now, did Mr. Vincent make any response? A. Mr. Vincent-he couldn't find any words to say. Q. Did he say anything? A. No, sir, he said nothing. Q. Did you say anything? A. Well, I still-you know, I just wanted to know just what am I supposed to do. Q. And what did he say? A. And, well, he just said-well, Mr. Hoke don't want you around here. I have your timecard. JUDGE RAS13URY: Who said that? THE WITNESS: Mr. Norton said that to me. Q. (By Mr. Hopkins) Did Mr. Norton volunteer that information or did you ask why Mr. Hoke didn't want you around there? A. Mr. Norton he did volunteer to try to explain, you know , as to what was going on and why. Q. Tell us what Mr. Norton said. A. Yes, sir. Q. Mr. Nelson, we are at a point now Mr. Norton apparently was trying to explain why Mr. Hoke didn't want you around. Now, I want you to tell us what Mr. Norton said about why Mr. Hoke didn't want you around? A. At this particular time Mr. Norton said, that he just didn't understand exactly what was going on. He said, and this is the time that- again , the conver- sation about the fact that Mr. Norton told me that 10 There is an obvious error in the transcript The word "son's" does not make sense and should probably be deleted 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD someone had told him that I had-that I had gone back-that I went back to work with the union, and that I was a troublemaker. And the very words that was used is that I was a Mr. Bigmouth. Q. Is this Mr. Norton speaking to you? A. This is Mr. Norton-this is what Mr. Norton said to me, This is not what Mr. Norton said to me, but this is what was said. This is what somebody said. MR. HARDING: Excuse me, I lost that. JUDGE RASBURY: He said that Mr. Norton related to him, Mr. Nelson, that he, Mr. Norton, had been told that Mr. Nelson was a troublemaker and a Bigmouth. Is that correctly stated? THE WITNESS: Yes, Your Honor. MR. HARDING: Thank you, Your Honor. Q. (By Mr. Hopkins) Did you say anything to Mr. Norton at this point? A. We were just standing outside at this point. And I asked him, you know, I wanted to go down for my unemployment, so, when I said what-you know-Mr. Norton said, he told me, when you go down there, and he said, when you go down there, you tell the people that the reason we let you go was the fact that we had too much help. Norton attempts to explain the Nelson discharge by indi- cating that Nelson and Vincent were having serious differ- ences and that Nelson "told me that he didn't want to work for Mr. Vincent, and if Mr. Hoke would sign his release for him to draw his unemployment that he would rather draw his unemployment. But I told him that if he quit, that he couldn't draw his unemployment." In view of Nelson's long work record at Travis and the adverse inference that may fairly be drawn by Respondent's failure to call Vincent as a witness, I find Nelson's version of what occurred on May 16 more credible than Norton's. Norton confirmed that he had said to Nelson that "Hoke don't want you here in the first place," but attempted to explain it by saying that Hoke had caught Nelson sleeping on the job "in January or February, different times." If this were true, the time to have discharged Nelson was in Janu- ary or February when he was found sleeping on the job. I do not credit Norton's version of Nelson's termination. I am of the opinion that Hoke wanted Norton to get rid of Nel- son by making Nelson's working situation as unbearable as possible in the hope that Nelson would quit. Hoke desired this because he knew, or at least had been informed, that Nelson "had went back to the Union." I find such conduct on the part of the Respondent to be discriminatory and in violation of Section 8(a)(3) and (1) of the Act. THE REMEDY It has been found that Respondent unlawfully discharged Charles Nelson. Under normal circumstances I would order Respondent to reinstate Nelson to his former or substantial- ly equivalent position and to make him whole for any loss practiced against him. In this case , however, the record reveals that the Respondent's contract with the Department of Defense to perform the janitorial service at the Travis Air Force Base expired on June 30, 1973. I shall direct, there- fore, that Nelson be made whole for monies that he would have earned in working for Respondent from the date of his discharge, May 16, 1973, through June 30, 1973. In addition thereto, because Respondent had worked continuously for previous contractors for a period in excess of 6 years, it is reasonable to believe that he would have continued in the employment of the succeeding contractors performing the janitorial services at the Travis Air Force Base . Because the record does not clearly show that Charles Nelson would have remained in Fairfield, California, and would have been employed by the successor contractors at the Travis Air Force Base, I leave for resolution at the compliance stage of this matter the determination of the exact cut off date for purposes of determining the amount of backpay to be awarded Nelson. However, under such circumstances as prevail in this case the Respondent might very well be ex- pected to make Nelson whole for any loss of pay he may have suffered by reason of Respondent's discrimination against him from the time of his unlawful discharge to such date as he obtained or was offered substantially equivalent employment elsewhere." Under the circumstances rein- statement shall not be ordered unless it is determined in the compliance stages of this matter that Respondent is in the business of providing janitorial services to other companies or establishments, in which event he shall offer substantially equivalent employment to Nelson. Backpay shall be com- puted on the basis of calendar quarters, in accordance with the method prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and interest at the rate of 6 percent per annum shall be added to net backpay, in accordance with Isis Plumbing & Heating Co., 138 NLRB 716 (1962). CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. That Respondent did discriminatorily discharge Charles Nelson on May 16, 1973, and since that date has refused to reinstate him to the same or equivalent work and by such conduct has violated Section 8(a)(3) and (1) of the Act. 4. By speaking derogatorily of the members of the union negotiating committee and in indicating the Union to be a troublemaker, Respondent has interfered with, restrained, and coerced employees in the exercise of their Section 7 rights in violation of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of the Act. Upon the foregoing findings of fact, conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I recommend the following: of pay he may have suffered by reason of the discrimination American Auto-Felt Corporation, 158 NLRB 1628 at 1631 ( 1966). HOKE JANITORIAL SERVICE 787 ORDER 12 Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Making derogatory or uncomplimentary remarks concerning members of the union negotiating committee, or in any manner indicating the Union to be a troublemaker. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Make whole Charles Nelson, in the manner set forth in the section of this Decision entitled "The Remedy," for any loss of pay he may have suffered by reason of the Respondent's discrimination against him. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this Order. (c) Inasmuch as the posting of a notice as customarily required is not feasible in this instance, the Respondent shall mail a copy of the attached notice marked "Appen- dix" 13 to the Union and to each of the employees formerly employed by the Respondent at the Travis Air Force Base, Fairfield, California. Copies of said notice to be furnished to the Respondent by the Regional Director for Region 20, shall, after being signed by an authorized representative of the Respondent, be mailed immediately upon the receipt thereof. (d) Notify the Regional Director for Region 20, in wnt- ing, within 20 days from the date of this Order , what steps Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all sides had an opportunity to present evidence, an Administrative Law Judge of the National Labor Relations Board has found that we violated the Na- tional Labor Relations Act, and has ordered us to mail this notice to all of our former employees. WE WILL NOT make derogatory or uncomplimentary remarks concerning members of the Union negotiating committee, neither will we refer to the Union as a trou- blemaker. WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL make Charles Nelson whole for any loss of pay he may have suffered by reason of our discrimina- tion against him. HOKE JANITORIAL SERVICE (Employer) Dated By 12 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions , and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations , be adopted by the Board and become its findings , conclusions , and Order, and all objections thereto shall be deemed waived for all purposes 13 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " (Representative ) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board's Office, 13018 Federal Building, Box 360 47, 450 Golden Gate Avenue, San Francisco, California, 94102, Telephone 415-556-6721.