United States Service Industries

National Labor Relations Board - Board Decisions

Jun 13, 1994

314 N.L.R.B. 30 (N.L.R.B. 1994)

30
314 NLRB No. 8
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
United States Service Industries, Inc. and
Clemencia Pacheco. Case 5–CA–22988
June 13, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND
BROWNING
On September 2, 1993, Administrative Law Judge
Marvin Roth issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
The judge found that the Respondent violated Sec-
tion 8(a)(1) of the Act by discharging employee
Clemencia Pacheco because she concertedly com-
plained about wages, hours, and working conditions, or
was active in soliciting other employees to concertedly
complain about such matters. In excepting to the
judge’s decision, the Respondent contends that
Pacheco did not engage in concerted activity because
she did not speak to other employees about working
conditions and only complained to management on be-
half of herself. For the reasons set forth below, we find
it unnecessary to decide whether Pacheco in fact en-
gaged in concerted activities because the credited testi-
mony clearly shows that the Respondent discharged
her in the belief that she had acted with other employ-
ees concerning working conditions. The facts, summa-
rized below, are more fully set forth in the judge’s de-
cision.
The Respondent provides cleaning services to ap-
proximately 150 buildings in Washington, D.C., in-
cluding an office building at 1000 Connecticut Avenue
where Pacheco had been employed for 11 years. The
employees worked a 20-hour week, from 6 p.m. to 10
p.m., Monday through Friday.
Pacheco was assigned to the 11th floor of the Con-
necticut Avenue facility where Attorney John Mannix
leased an office. Mannix became acquainted with
Pacheco and permitted her to use his office phone to
call her family in Ecuador. Pacheco made approxi-
mately three calls a month to Ecuador for which she
promptly paid Mannix. In addition, Pacheco testified
that she regularly takes breaks at 9:10 p.m. to call her
son for a ride home.
Prior to an inspection in July 1992, the Respondent
assigned bathroom duties to floor employees who had
not previously been responsible for such duties. Fol-
lowing a successful inspection, the Respondent called
a meeting of employees to announce the results. At
this meeting, the employees suggested that as a reward
for the satisfactory inspection they should get a day off
or a meal. Supervisor Marvin Andrade considered the
employees’ suggestion and agreed to provide a meal
the following week. Pacheco then went to the front of
the assembled employees and said, ‘‘I speak for my-
self. I don’t want to do the bathrooms.’’ Despite this
complaint to Andrade, Pacheco and the other employ-
ees continued to clean the bathrooms.
On July 28, while on her break at 9:10 p.m.,
Pacheco used Mannix’s phone to call her daughter.
Operations Manager Raul Arroyo walked in and be-
came angry that Pacheco was on the phone and fired
her. Upon learning of this incident, Mannix called Re-
spondent’s vice president, Richard Gallaher, and ex-
plained that Pacheco had his permission to use the
phone, that she was honest and punctual in paying the
bills, and that he did not see any reason to terminate
her. Gallaher answered, ‘‘That was just the tip of the
iceberg.’’ When Mannix asked what he meant,
Gallaher explained: ‘‘Well, she’s been stirring up the
other workers and we can’t tolerate that.’’
Mannix credibly testified that he overheard Pacheco
on ‘‘four or five occasions’’ prior to her discharge,
complaining to her supervisor, in the presence of other
employees, that she had to work more hours for the
same money, and do work on other floors.
In Monarch Water Systems, 271 NLRB 558 (1984),
the Board found that an employee was discharged be-
cause the company president believed that the em-
ployee participated with a former employee in insti-
gating a Department of Labor compliance investiga-
tion. In these circumstances, the Board concluded that
the discharge violated Section 8(a)(1) of the Act re-
gardless of whether the two employees had, in fact,
acted in concert in instigating the compliance inves-
tigation. It was sufficient that the company discharged
an employee in the belief that he engaged in concerted
activity for the purpose of mutual aid or protection.
The Board stated:
31UNITED STATES SERVICE INDUSTRIES
2 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
1 All dates herein are for 1992 unless otherwise indicated.
2 A small portion of the record, consisting of preliminary testi-
mony by General Counsel witness John W. Mannix, is missing and
unavailable, for reasons given by the reporting service in its letter
of June 30, 1993. There is no dispute as to the content of the miss-
ing testimony. The General Counsel’s letter of July 13, 1993, is re-
ceived as a motion to correct transcript, and the transcript is cor-
rected accordingly. The transcript is also corrected in the other re-
spects.
[A]ctions taken by an employer against an em-
ployee based on the employer’s belief the em-
ployee engaged in or intended to engage in pro-
tected concerted activity are unlawful even though
the employee did not in fact engage in or intend
to engage in such activity. [Id. at fn. 3. Citations
omitted.]
Accord: Holyoke Visiting Nurses Assn., 310 NLRB
684, 687–688 (1993), enfd. 11 F.3d 302 (1st Cir.
1993) (violation of Sec. 8(a)(1) and (3) to take action
against employee because of employer’s ‘‘conclusion’’
that she had supported a union protest).
Applying this principle here in the context of a
Wright Line2 analysis, we find that the General Coun-
sel made a showing sufficient to support the inference
that the Respondent’s belief that Pacheco engaged in
protected concerted activity was a motivating factor in
the Respondent’s decision to discharge her. Thus, the
credited testimony of Attorney Mannix shows that
Pacheco repeatedly complained to her supervisor in the
presence of other employees about hours and work as-
signments, and that the Respondent’s vice president
admitted that he could not ‘‘tolerate’’ Pacheco’s ‘‘stir-
ring up the other workers.’’ Contrary to the Respond-
ent’s contention in its brief, we are not persuaded that
the judge’s crediting of Mannix’s testimony is incor-
rect. See Conair Corp. v. NLRB, 721 F.2d 1355, 1367–
1368 (D.C. Cir. 1983) (judge’s credibility appraisals
upheld where neither ‘‘hopelessly incredible’’ nor
‘‘self-contradictory’’); footnote 1, supra.
We further find, for the reasons set forth by the
judge, that the Respondent has not met its burden
under Wright Line of demonstrating that it would have
discharged Pacheco even in the absence of its belief
that she engaged in protected concerted activity. Thus,
the judge found that the Respondent’s explanation for
the discharge was not credible and was not supported
by the record. Accordingly, we conclude that the Re-
spondent violated Section 8(a)(1) of the Act by dis-
charging Pacheco.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, United States Service In-
dustries, Inc., Washington, D.C., its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
Angela F. Anderson, Esq., for the General Counsel.
Joel I. Keiler, Esq., of Reston, Virginia, for the Respondent.
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge. This case was
heard at Washington, D.C., on April 20 and 21 and June 22,
1993. The charge was filed on September 15, 1992, by
Clemencia Pacheco, an individual.1 The complaint, which
issued on November 5 and was amended on November 20,
alleges that United States Service Industries, Inc. (Company
or Respondent) violated Section 8(a)(1) of the National
Labor Relations Act. The gravamen of the complaint is that
the Company allegedly discharged employee Pacheco be-
cause it believed she had concertedly complained to the
Company regarding the wages, hours and working conditions
of the Company’s employees or was active in getting other
employees to concertedly complain about such matters. The
Company’s answer denies the commission of the alleged un-
fair labor practices. All parties were afforded full opportunity
to participate, to present relevant evidence, to argue orally,
and to file briefs. Only the Company filed a brief.
On the entire record in this case2 and from my observation
of the demeanor of the witnesses, and having considered the
arguments of the parties, I make the following
FINDINGS OF FACT
I. BUSINESS OF THE COMPANY
The Company, a Delaware corporation with an office and
place of business in Washington, D.C., is engaged in the
business of providing full-service janitorial services to offices
and buildings in Washington, D.C. and adjacent areas in Vir-
ginia.
In the operation of its business, the Company annually de-
rives gross revenues in excess of $1 million and annually re-
ceives goods and supplies valued in excess of $50,000 di-
rectly from points outside of the District of Columbia. I find,
as the Company admits, that it is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICE
This case presents a seemingly paradoxical problem of
credibility. The Company’s best witness was the alleged
discriminatee. The alleged discriminatee’s best witness was a
management attorney.
The Company, with some 2000 employees, provides clean-
ing service for approximately 150 buildings, including since
1988, the office building at 1000 Connecticut Avenue in
Washington, D.C. Company Vice President of Operations
Richard Gallaher has overall charge of most of the Com-
pany’s operations, including 1000 Connecticut Avenue. Op-
erations Manager Raul Arroyo reports to Gallaher. In July
32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The Company (Br. 4) indicates some skepticism concerning
Mannix’s assertion in this regard. I take administrative notice of
Corson & Gruman Co., 278 NLRB 329 (1986), enfd. 124 LRRM
2560 (4th Cir. 1987), in which Mannix represented the respondent
employer.
1992 he was responsible for 10 buildings, including 1000
Connecticut Avenue. During the summer of 1992 Marvin
Andrade was company supervisor at 1000 Connecticut Ave-
nue. However at the time of Pacheco’s discharge he was on
vacation, and Arroyo acted as supervisor in his place. Al-
though witnesses referred to one Jose Romaro as an assistant
supervisor, Romaro was a rank-and-file employee, who as-
sisted Andrade, but did not himself perform any supervisory
functions. The Company had no office of its own at 1000
Connecticut Avenue. In the summer of 1992 the Company
had 17 employees assigned to 1000 Connecticut Avenue.
They normally worked a 20-hour week: from 6 p.m. to 10
p.m., Monday through Friday. The employees are not rep-
resented by any labor organization.
Clemencia Pacheco, a middle-aged woman, came to the
United States from Ecuador in 1963. She testified that she
lives with her husband and children. Pacheco began working
at 1000 Connecticut Avenue in 1981, and worked success-
fully for two cleaning service firms before the Company took
over the operation. Pacheco was always assigned to the 11th
floor, whose occupants included Attorney John W. Mannix.
Attorney Mannix was pleased with Pacheco’s work, and
eventually got to know her. Mannix gave her permission to
use his office phone to call her family in Ecuador. Mannix
testified that she made an average of three such calls per
month and promptly reimbursed Mannix for the charges. Al-
though company supervisors sometimes used telephones in
the building, the evidence fails to indicate that any rank-and-
file employees other than Pacheco did so.
Three times each year the building management, by its
property manager, conducted an inspection of the premises in
order to evaluate the quality of the cleaning service. The in-
spection was critical to the Company, as an unsatisfactory
evaluation could result in loss of its contract. An inspection
was scheduled to take place in July. On July 15 Andrade as-
sembled the employees, preliminary to the inspection. Prior
to that time, the Company assigned one employee to each
floor, with additional employees assigned to specific tasks
throughout the building, including cleaning restrooms. The
floor employees, including Pacheco, were not responsible for
cleaning restrooms. However shortly after the July 15 meet-
ing, Andrade reassigned that work, directing the floor em-
ployees to clean the restrooms on their respective floors. The
inspection proved satisfactory, and following the inspection,
Andrade assembled the employees and complimented them
on their work.
Pacheco testified in sum as follows: One Maria, who pre-
ceded Arroyo as operations manager, was present with Su-
pervisor Andrade at the July 15 meeting. Prior to the meet-
ing, that same day, ‘‘we had spoken with Maria’’ and ‘‘we
were requesting that we didn’t have soap, rags and brooms.’’
At the meeting Andrade simply said: ‘‘Please help, help, I
want to pass the inspection.’’ At the meeting following the
inspection, the employees agreed that as a reward, they
should get either a day off or a meal. Andrade said he pre-
ferred to give them the meal, and would do so the following
week. Pacheco spoke up, saying: ‘‘I speak for myself. I dont
want to do the bathrooms.’’ Andrade said that ‘‘if all the
women would have brought it up, they would have brought
another person or given us another person.’’ Pacheco contin-
ued to clean the bathrooms. Prior to her discharge she had
no complaints about her work. She did not know the names
of the other employees, who came and went, and had no
contact with them except to say ‘‘Hi.’’ She did not speak to
anyone except Andrade about working conditions, and he
complained to her. She complained for herself when she
needed cleaning supplies.
Pacheco further testified in sum as follows: Although she
officially worked a 20-hour week, she sometimes worked
longer, sometimes starting before 6 p.m. or continuing after
10 p.m. On July 28, at 9:10 p.m. she took her break. She
was using Mannix’s phone, making a local call to her son,
when Operations Manager Arroyo walked in. He was angry.
Pacheco asked him to sit down, and asked if he wanted a
cup of coffee. Arroyo told Pacheco she was fired. Arroyo
left, and Pacheco continued to work until 10:10 p.m. (In her
investigatory affidavit she said she worked until 10 p.m.) The
next day she told Mannix what happened. He proceeded to
make a telephone call. Pacheco then went to see Arroyo,
who told her: ‘‘Go and talk to your people who back you
up if you want to talk to them, because you are fired.’’
Pacheco continued to work that day, but the next day she left
when Arroyo gave Pacheco her paycheck and again told her
she was fired. Supervisor Andrade knew that she used
Mannix’s phone. On June 16 she was using the phone, when
Andrade said he had to make a call. Pacheco said he could
use another phone, and he did so.
John W. Mannix (now deceased) was an attorney engaged
in private practice. He handled contract claims and rep-
resented management in labor relations matters.3 Mannix tes-
tified in sum as follows: Pacheco did an excellent job and
had a good reputation. In July, Pacheco told Mannix that she
was fired for using Mannix’s phone, although she had his
permission. She asked Mannix to speak to the Company.
Mannix then received a call from the property manager, who
asked if Pacheco had permission to use his phone. He said:
‘‘Yes, absolutely.’’ Mannix then called Vice President
Gallaher. Mannix explained that Pacheco had permission to
use the phone, was honest and punctual in paying the bills,
and he saw no reason to terminate her. Gallaher answered,
‘‘That was just the tip of the iceberg.’’ Mannix asked what
he meant. Gallaher explained: ‘‘Well, she’s been stirring up
the other workers and we can’t tolerate that.’’ Gallaher said
he would discuss the situation with the supervisor, and
Pacheco should wait. But the next day Pacheco said she was
fired. Mannix, who understands Spanish, overheard Pacheco
on four or five occasions prior to her discharge, complaining
to her supervisor, in the presence of other employees, that
she had to work more hours for the same money, and do
work on other floors.
Vice President Gallaher testified as the first and last wit-
ness in this proceeding, first as an adverse witness for Gen-
eral Counsel, and last as the Company’s only witness. As a
General Counsel witness, Gallaher testified in sum as fol-
lows: In the summer of 1992 he received a call from a tenant
who wanted to know why Pacheco was discharged. Gallaher
answered that he knew nothing about it but would look into
it. The next day he told the tenant they were still looking
33UNITED STATES SERVICE INDUSTRIES
4 Remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir.
1985), on remand 281 NLRB 882 (1986) (Meyers II), affd. 835 F.2d
1481 (D.C. Cir. 1987).
into it. Gallaher avoided giving a specific answer because he
felt it was none of the tenant’s business. The Company may
not have even made a decision at that time.
However, as a company witness, having heard Mannix’s
testimony, Gallaher equivocated. Gallaher testified in sum as
follows: He did not recall what was said in his conversation
with Mannix, except that Mannix questioned why Pacheco
was being terminated. He did not think he said that use of
the telephone was merely the tip of the iceberg, or that
Pacheco was stirring up the employees and they were not
going to put up with that. It was Gallaher’s standard practice
to avoid discussing such issues, because ‘‘it’s none of the
tenant’s business how we manage our employees.’’ Gallaher
never told tenants that employees were not allowed to use
their telephones.
The Company stipulated that it did not distribute any per-
sonnel policies to its employees concerning use of the tele-
phone or use of work or company time. However Gallaher
testified that employees are not permitted to take any breaks
during their 4-hour workday, including use of the telephone.
Gallaher did not testify concerning the reason for Pacheco’s
discharge.
Operations Manager Arroyo, who was called as a General
Counsel adverse witness, testified in sum as follows: About
July 29 he fired Pacheco when he found her using a tenant’s
telephone. At the time Arroyo was doing a walk-through in-
spection. Pacheco asked him to sit down. She said she was
talking to her daughter, who was sick. Arroyo said she was
not supposed to be using a telephone. Pacheco responded
that she had permission, and ‘‘You can’t do anything about
it because I’m living with the owner of the building.’’ Ar-
royo checked with Assistant Supervisor Romaro, who said
this kind of conduct happened many times before, and that
other managers went through the same problem with
Pacheco. The next time Arroyo spoke to Pacheco, at the end
of her shift, he told her she was fired because she used the
telephone on company time. Pacheco replied that she had
permission and she would ‘‘fight it.’’ Arroyo insisted that
she broke a company rule. The next day Arroyo told
Gallaher they would probably have a suit, because Pacheco
said she was living with the owner. Arroyo understood that
the ‘‘owner’’ was in fact a tenant on the 11th floor. Arroyo
never instructed any supervisor at 1000 Connecticut Avenue
to discipline or warn employees regarding using the tele-
phone.
Supervisor Andrade, also called as a General Counsel ad-
verse witness, testified in sum as follows: Prior to Pacheco’s
discharge, he saw Pacheco on about four occasions using the
telephone. She told him that she had permission from the
tenant. After he returned from his vacation, Arroyo told him
that Pacheco was discharged because Arroyo found her using
the telephone. Pacheco did not say anything at the meeting
following the inspection. She told Andrade privately that she
would not do the restrooms because it was too much work.
However she did clean the restrooms.
I credit the testimony of Attorney Mannix, who impressed
me as a credible witness. As indicated, Gallaher was equiv-
ocal and contradictory in his testimony concerning his expla-
nation to Mannix. I find that Gallaher’s admission to Mannix
reflected the real reason for Pacheco’s discharge, that
Pacheco did, in the presence of other employees, complain
to their supervisors concerning assignment of additional work
requiring additional worktime for the same pay, and that
Gallaher directed or approved her discharge for this reason.
Consequently, I also credit Pacheco’s testimony concerning
the meeting following the inspection. I do not credit
Gallaher’s assertion that employees were not permitted to
take any break, either to use the telephone or for any other
reason. Neither Arroyo nor Andrade testified as to any such
rule. As indicated, Andrade testified that on some four occa-
sions he saw Pacheco using the telephone. However, he took
no action after Pacheco told him that she had permission
from the tenant. If company policy prohibited employees
from taking any break from work, then Andrade probably
would have disciplined or warned Pacheco, or if in doubt,
checked with Arroyo. However, Andrade did not do so. I
find that Andrade’s course of action reflected actual com-
pany practice, and that employees were permitted to take a
break, subject to the restriction that they could not use tenant
telephones without permission. I also find significant the
facts that Pacheco had worked at 1000 Connecticut Avenue
for some 11 years, that her work was regarded as more than
satisfactory, and that she had never been warned or dis-
ciplined concerning her work or work habits.
The Company’s action was unlawful, whether measured by
the standards of Meyers Industries, 268 NLRB 493 (1984)
(Meyers I),4 or Alleluia Cushion, 221 NLRB 999 (1975). In
Meyers I, the Board cited with approval an earlier Board de-
cision (Root-Carlin, Inc.), holding that: ‘‘Manifestly, the
guarantees of Section 7 of the Act extend to concerted activ-
ity which in its inception involves only a speaker and a lis-
tener, for such activity is an indispensable preliminary step
to employee self-organization.’’ Meyers I, supra at 494 (em-
phasis added in Meyers). Where, as here, an employee, in the
presence of other employees, complains to management con-
cerning wages, hours, or other terms and conditions of em-
ployment, such complaints constitute protected concerted ac-
tivity, even though the employee purports to speak on behalf
of himself or herself. Gold Coast Restaurant v. NLRB, 143
LRRM 2505, 2509 (D.C. Cir. 1993); see also NLRB v.
Sencore, Inc., 558 F.2d 433 (8th Cir. 1977); Jeannette Corp.,
217 NLRB 653, 657 (1975), enfd. 532 F.2d 916 (3d Cir.
1976). Indeed, Pacheco’s testimony indicates that preliminary
to the meeting following the inspection, the employees were
already engaged in group action, in that they agreed that they
wanted some reward for their performance.
For the foregoing reasons, I find that the Company vio-
lated Section 8(a)(1) by discharging Pacheco because she en-
gaged in protected concerted activity. On the basis of the
evidence concerning Pacheco’s protected concerted activity,
Gallaher’s admission to Mannix, and the pretextural reason
advanced by the Company for Pacheco’s termination, the
General Counsel presented a prima facie case that the Com-
pany terminated Pacheco because of her protected concerted
activity. As the Company’s explanation for the discharge was
not credible, it follows that the Company failed to meet its
burden of establishing that it would have terminated Pacheco
in the absence of her protected concerted activity.
34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Under New Horizons, interest on and after January 1, 1987, is
computed at the ‘‘short-term Federal rate’’ for the underpayment of
taxes as set out in the 1986 amendment to 26 U.S.C. § 6621.
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
7 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. By discharging Clemencia Pacheco, and thereby inter-
fering with, restraining, and coercing its employees in the ex-
ercise of the rights guaranteed in Section 7 of the Act, the
Company has engaged, and is engaging, in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Company has violated Section
8(a)(1) of the Act, I shall recommend that it be required to
cease and desist therefrom and from like or related conduct,
and to take certain affirmative action designed to effectuate
the policies of the Act.
Having found that the Company discriminatorily termi-
nated Clemencia Pacheco, it will be recommended that the
Company be ordered to offer her immediate and full rein-
statement to her former job or, if such job no longer exists,
to a substantially equivalent position, without prejudice to
her seniority or other rights and privileges, and make her
whole for any loss of earnings and benefits that she may
have suffered from the time of her discharge to the date of
the Company’s offer of reinstatement. I shall further rec-
ommend that the Company be ordered to remove from its
records any reference to her unlawful termination, to give her
written notice of such expunction, and to inform her that its
unlawful conduct will not be used as a basis for further per-
sonnel actions against her. Backpay shall be computed in ac-
cordance with the formula approved in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).5 It will
also be recommended that the Company be required to pre-
serve and make available to the Board, or its agents, on re-
quest, payroll and other records to facilitate the computation
of backpay and reimbursement due.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, United States Service Industries, Inc.,
Washington, D.C., its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Terminating or otherwise discriminating against em-
ployees because they discuss their wages, hours, or other
terms and conditions of employment with their fellow em-
ployees or management, or otherwise engage in protected
concerted activities for mutual aid and protection.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Clemencia Pacheco immediate and full reinstate-
ment to her former job or, if such job no longer exists, to
a substantially equivalent position, without prejudice to her
seniority or other rights and privileges previously enjoyed,
and make her whole for losses she suffered by reason of the
discrimination against her as set forth in the remedy section.
(b) Remove from its files any reference to the termination
of Clemencia Pacheco and notify her in writing that this has
been done and that evidence of her unlawful termination will
not be used as a basis for future personnel actions against
her.
(c) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to ana-
lyze the amount of backpay due.
(d) Post at its Washington, D.C. facilities, copies of the at-
tached notice marked ‘‘Appendix.’’7 Copies of said notice on
forms provided by the Regional Director for Region 5, after
being signed by Respondent’s authorized representative, shall
be posted by Respondent immediately on receipt and main-
tained for 60 consecutive days in conspicuous places includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT terminate or otherwise discriminate against
employees because they discuss their wages, hours, or other
terms and conditions of employment with fellow employees
or management, or otherwise engage in protected concerted
activities for mutual aid and protection.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of your right to engage
in union or concerted activities, or to refrain therefrom.
WE WILL offer Clemencia Pacheco immediate and full re-
instatement to her former job or, if such job no longer exists,
to a substantially equivalent position, without prejudice to
35UNITED STATES SERVICE INDUSTRIES
her seniority or other rights and privileges previously en-
joyed, and make her whole for losses she suffered by reason
of the discrimination against her.
WE WILL remove from our files any reference to the termi-
nation of Clemencia Pacheco and notify her in writing that
this has been done and that evidence of the unlawful dis-
charge will not be used as a basis for future personnel ac-
tions against her.
UNITED STATES SERVICE INDUSTRIES, INC.