W & F Building Maintenance Co.

National Labor Relations Board - Board Decisions

Feb 10, 1984

268 N.L.R.B. 849 (N.L.R.B. 1984)

W & F BUILDING MAINTENANCE CO.
W & F Building Maintenance Co. and William A.
McQueen and Michael B. Enis and Gary King.
Cases 20-CA-16255, 20-CA-16289, and 20-
CA- 16471
10 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 5 October 1982 Administrative Law Judge
Jerrold H. Shapiro issued the attached decision.
The General Counsel filed exeptions and a support-
ing statement, and the Respondent filed a response.
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
t In adopting the judge's conclusion that Supervisor Colbert's remarks
to employees Enis and King in March 1981 were not violative of Sec.
8(aXl) of the Act, we find that Colbert's comments, i.e., that it was a
waste of money to join the Union and that their job security was not
with the Union but in doing good work, were merely expressions of
opinion privileged under Sec. 8(c).
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge:
This proceeding, in which a hearing was held on March
3 and 8, 1982, is based on unfair labor practice charges
filed against W & F Building Maintenance Co., herein
Respondent, on May 19, 1981, in Case 20-CA-16255 by
William A. McQueen; on June 2, 1981, in Case 20-CA-
16289 by Michael B. Enis; and on July 28, 1981, in Case
20-CA-16471 by Gary King. The Regional Director of
the National Labor Relations Board, on behalf of the
Board's General Counsel, issued complaints in these
cases on July 31, 1981, and on August 25, 1981, which
were consolidated for hearing by order of the Regional
Director. The complaint in Case 20-CA-16255 alleges
that Respondent violated Section 8(aXl) and (3) of the
National Labor Relations Act, herein called the Act, by
changing McQueen's job classification and reducing his
wages on or about March 1, 1981, and by discharging
him on May 15, 1981, because of his union and/or pro-
tected concerted activities. The complaints issued in
Cases 20-CA-16289 and 20-CA-16471 allege that Re-
spondent violated Section 8(a)(1) and (3) of the Act by
268 NLRB No. 130
assigning Enis and King to "more arduous job assign-
ments" in March 1981 and discharging them on March
30, 1981, because of their union and/or protected con-
certed activites. The complaint in Case 20-CA-16289
also alleges that Respondent violated Section 8(aXl) of
the Act when its supervisor, Julius Colbert, on or about
March 2, 1981, "threatened to discharge employees be-
cause they went to the Union" and pointed out the futili-
ty of employees supporting the Union by telling them
Respondent would discharge them if it wanted to and
there was nothing the Union could do to stop it. This
complaint also alleges that Respondent violated Section
8(a)(1) of the Act when its operations manager, Robert
Rice, or about February 20, 1981, interrogated employ-
ees about their union sympathies and activities and in
March 1981 promised to improve employees' terms and
conditions of employment if they did not file a griev-
ance. Respondent filed answers denying the commission
of the aforesaid unfair labor practices.'
On the entire record, from my observation of the de-
meanor of the witnesses, and having considered the post-
hearing briefs submitted by the parties,2 I make the fol-
lowing
FINDINGS OF FACT
THE ALLEGED UNFAIR LABOR PRACTICES
A. Case 20-CA-16255
1. The evidence
Respondent operates a janitorial service. In 1980 Re-
spondent entered into a contract with GTE Sylvania,
herein GTE, to perform janitorial services at GTE's
Mountain View, California facility commencing on Octo-
ber 1, 1981. This janitorial work had been previously
performed by Commercial Building Maintenance Com-
pany which was signatory to a collective-bargaining
agreement with Service Employees' Union Local No. 77,
herein Local 77, effective from June 1, 1978, until May
31, 1981. This agreement covered the janitors employed
by Commercial Building Maintenance at GTE's Moun-
tain View facility. When Respondent commenced doing
the janitorial work at GTE's Mountain View facility it
recognized Local 77 as the exclusive bargaining repre-
sentative for the employees it employed there and as-
sumed the collective-bargaining agreement Commercial
Building Maintenance Company had with Local 77. Re-
spondent's employees employed at GTE's Mountain
View facility were supervised by Leo August, Respond-
' In its answers Respondent admits that it meets the National Labor
Relations Board's applicable discretionary jurisdictional standard and is
an employer engaged in commerce within the meaning of Sec. 2(6) and
(7) of the Act. Also, Respondent admits that the Unions herein, Service
Employees International Union, Locals 77 and 87, AFL-CIO each is a
labor organization within the meaning of Sec. 2(5) of the Act.
t The General Counsel's "Motion to Strike Portions of Respondent's
Brief to the Administrative Law Judge" is denied because it is in the
nature of an answering brief. The Board's Rules and Regulations do not
provide for such a brief. Of course, the parties can be assured that I have
read the record and insofar as the parties' briefs inadvertently mistate the
record I have not relied upon the mistatements.
-
849
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent's area manager, who was admittedly a statutory su-
pervisor.
The alleged discriminatee herein, William McQueen,
was employed by Commercial Building Maintenance
Company at GTE's Mountain View facility. He was re-
tained by Respondent when, in October 1980, it replaced
Commercial Building Maintenance Company at that fa-
cility. McQueen was employed by Respondent as a "uti-
lityman" and was paid $6.01 an hour, the rate of pay
called for by Local 77's collective-bargaining agreement.
McQueen worked from 6 p.m. to 2:30 a.m., Monday
through Friday.
Late in December 1980 Area Manager August asked
McQueen to do the janitorial work at a Wells Fargo
Bank located near GTE's Mountain View facility.
August offered McQueen $400 a month to do this work,
but advised him that since he was already employed by
Respondent at GTE's Mountain View facility that his
paycheck for the Wells Fargo Bank work would have to
be paid to someone else. McQueen agreed to work for
Respondent at the Wells Fargo Bank and instructed
August that his paycheck for doing that work should be
made out to a friend of his named Denise Frazier.
During January and February 1981, after finishing his
daily work at GTE's facility, McQueen then did the jani-
torial work at the Wells Fargo Bank. McQueen was not
paid the $400 August promised him. He only received
$200 a month. In January 1981 McQueen complained to
August about this and was told by August that Respond-
ent had "underbid" the Wells Fargo Bank job thus it was
unable to pay him more than $200 a month for that job.
The Wells Fargo Bank job was not covered by a Local
77 collective-bargaining agreement or by a contract be-
tween Respondent and any other labor organization.
On Friday, February 27, 1981, McQueen did not go to
work because he was ill. He unsuccessfully tried to tele-
phone August on February 27 to advise him of his ab-
sence. Likewise, on Monday, March 2, McQueen did not
go to work because he was ill and unsuccessfully tried to
phone August to advise him of his absence. On Tuesday,
March 3, McQueen visited GTE's Mountain View facili-
ty and told August he was sick and had to visit the
doctor to be X-rayed. August remarked that McQueen
had not cleaned the Wells Fargo Bank for several days
and told him he was suspended from work until March 8
and to bring him a slip from the doctor when he re-
turned to work.
On Monday, March 8 McQueen reported for work
with a doctor's certificate which stated he had been
under the doctor's care since March 5, 1981, and was
able to return to work March 8. August refused to
accept this certificate. He stated McQueen was still sus-
pended and told him to return with a union business rep-
resentative. The record is not absolutely clear, but it ap-
pears that on March 11 August reinstated McQueen.
On March 9, 1981, McQueen spoke to Union Repre-
sentative Andy Hermosillo and asked that the Union file
a grievance on his behalf concerning his suspension and
the Company's refusal to pay him for sick leave during
the period he was absent from work because of his ill-
ness. McQueen also told Hermosillo that the Company
improperly subcontracted the Wells Fargo Bank janitori-
al work to him and had not paid him the agreed-upon
monthly salary for doing this job. Hermosillo agreed to
process McQueen's suspension and sick leave pay griev-
ances, but told McQueen there was nothing improper
about Respondent asking him to work at the Wells
Fargo Bank. He stated that when he (Hermosillo) had
worked as a janitor he had done something similar.
Respondent's collective-bargaining contract with
Local 77 which covered the janitorial work being per-
formed by Respondent's employees at GTE's Mountain
View facility included a grievance-arbitration procedure
which provides for a board of adjustment comprised of
two company and two union representatives and also
provides that if the board of adjustment cannot resolve a
grievance either party, upon the agreement of the other
party, may submit the grievance to an impartial arbitra-
tor.
During mid-March 1981 a board of adjustment meet-
ing was held to discuss McQueen's sick leave and sus-
pension grievances. Respondent was representative by its
vice president, Sivils, and Area Manager August.
McQueen, who was present, was represented by Local
77's president, Percell, and its business representative,
Hermosillo. The board of adjustment deadlocked over
the grievances. Sivils at this time informed McQueen
that McQueen was lucky that he had not been dis-
charged rather than just suspended for his unexcused ab-
sences and warned that if McQueen incurred anymore
unexcused absences Respondent would discharge him.
Late in March 1981 August reclassified McQueen from
utilityman to janitor, which meant that as of that day
McQueen was paid the contractual hourly rate of $5.81
for a janitor rather than the hourly rate of $6.01 paid to
a utilityman. When August reclassified McQueen, ac-
cording to McQueen's undenied testimony, August told
him that his reason for reclassifying McQueen was that
McQueen was refusing to work overtime and because of
this could not be employed on the utility crew.3
McQueen grieved to the Union about his changed
classification and the resultant reduction in his pay. The
board of adjustment met late in April 1981 to consider
this grievance. This hearing was attended by the same
persons who were present at the previous board of ad-
justment hearing. The union representatives objected to
the fact that McQueen was downgraded from utilityman
to janitor. Respondent's representatives took the position
that Respondent had to replace McQueen as a utilityman
with a person who was dependable because McQueen
could not be depended upon to act as a utilityman due to
his unexcused absences. The board of adjustment dead-
locked over this grievance and there is no evidence the
Union pursued this grievance any further.
On April 23, 1981, the board of adjustment met to dis-
cuss McQueen's sick leave and suspension grievances and
his further grievance about Respondent's failure to pay
s McQueen testified that he advised August that his refusal to work
overtime was due to the fact he was working at the Wells Fargo Bank
for Respondent as well as at GTE's Mountain View facility, thus it was
impossible for him to work overtime at GTE. I reject this portion of
McQueen's testimony inasmuch as it is inherently implausible because late
February 1981 was the last time McQueen worked at the Wells Fargo
Bank.
850
W & F BUILDING MAINTENANCE CO.
him overtime when he worked at the Wells Fargo Bank.
With respect to McQueen's overtime claim for his work
at the Wells Fargo Bank the board of adjustment dead-
locked and there is no evidence that the Union pursued
the grievance any further. With respect to McQueen's
sick leave and suspension grievances, Respondent agreed
to reimburse McQueen for March 8 through 10 which
were the 3 days of work he lost when on March 8
August refused to accept his medical certificate. Re-
spondent also agreed that if the Union or McQueen sub-
mitted proof that McQueen had been treated on Febru-
ary 27, 1981, at the VA Hospital, as he claimed, that Re-
spondent would also pay him for sick leave from Febru-
ary 27 through March 5.
On the first payday following the April 23 board of
adjustment hearing McQueen discovered that the pay for
the 3 days which Respondent had agreed to pay him
were not in this paycheck. McQueen complained to
Union Representative Hermosillo who phoned Respond-
ent's vice president, Sivils, and asked why Respondent
had not paid McQueen for the 3 days. Silvis told Hermo-
sillo that he had been waiting for Hermosillo to contact
him and give him the results of the Union's investigation
as to whether McQueen was at the VA Hospital on Feb-
ruary 27. Hermosillo replied that himself and McQueen
had gone to the VA Hospital and could find no record
that McQueen had been there. Hermosillo told Sivils that
in view of this Sivils could pay McQueen the 3 days' pay
as they had agreed. Sivils stated he would make arrange-
ments that the 3 days' pay would be included in
McQueen's next paycheck.
On May 15, 1981, McQueen visited Respondent's
office and spoke to Vice President Sivils. McQueen
stated he had come to pick up his check for the 3 days
Respondent had agreed to pay him. Sivils told him that
the moneys for those 3 days would be included in his
next paycheck. McQueen stated it was his legal right to
get the money immediately. Sivils disputed this and reit-
erated that these moneys would be in McQueen's next
paycheck. Sivils explained that he had been waiting to
see if, as per their agreement, he was obligated to also
pay McQueen for the other 5 days, that the Union had
recently informed him that he was not obligated to pay
McQueen for those additional days and that he had told
the Union the check for the 3 days which Respondent
was obliged to pay would be in McQueen's next pay-
check. McQueen insisted that he be given this money im-
mediately. Sivils repeated it would be in his next pay-
check. Then McQueen stated he had gotten sick while
working at the Wells Fargo Bank and wanted Respond-
ent to give him a check for his medical expenses. Sivils
told him that he should just go to the doctor and submit
his doctor bills pursuant to the medical insurance cover-
age provided by in Respondent's contract with Local 77
covering GTE's Mountain View facility. McQueen
stated since his illness was caused by his work at the
Wells Fargo Bank this insurance did not cover him.
Sivils explained that it did not matter where he got sick
in order to be covered by the medical insurance provid-
ed for under the Union's collective-bargaining agree-
ment. McQueen told Sivils he was wrong. They talked
about this matter for several more minutes. McQueen
then stated he intended to file a workmen's compensation
claim against Respondent because he had breathed bad
air while working at the Wells Fargo Bank and wanted
Respondent to pay him for this. Sivils told him he should
file a workmen's compensation claim and it would be in-
vestigated. Sivils discussed this matter with McQueen for
several more minutes. Finally, after approximately 45
minutes Sivils told McQueen that he did not feel
McQueen was listening to what Sivils was saying, that
he was very busy, and asked McQueen to leave his
office. McQueen stated he would not leave until he got
his money for the 3 days Respondent owed him. Sivils
told him he did not have the time to discuss the matter
any further as he had a lot of business to attend to and
again asked him to leave the office. McQueen again re-
fused to leave until he was given the money for the 3
days Respondent owed him. He asked to speak to Re-
spondent's president. Sivils denied this request and asked
McQueen to step outside into the reception area where a
receptionist and a bookkeeper were present. Sivils asked
McQueen to leave the premises. McQueen stated he
would not leave until he received the money for the 3
days Respondent owed him and spoke to Respondent's
president. Sivils at this point told McQueen, "Your are
forcing me to terminate you" and again asked him to
leave the premises. McQueen refused and was told by
Sivils that if he did not leave Sivils would call the police
to escort him out. McQueen stated he was not leaving,
so Sivils phoned the police and asked them to send
someone to remove McQueen from the premises. Then
Sivils told McQueen he was going to phone the Union
"to tell them that you are forcing me to terminate you"
and in fact phoned the Union's office and spoke to Union
Representative Hermosillo and told him he was "being
forced te terminate McQueen" and described McQueen's
conduct. Shortly after this the 'police came and escorted
McQueen from the premises.4
On May 15, shortly after the police escorted McQueen
from Respondent's premises, Silvils received a phone call
from Steve Buker, an employee of GTE responsible for
monitoring GTE's contract with Respondent. Buker told
Sivils that GTE was exercising its right under section 7.1
of its contract with Respondent s to terminate Respond-
ent's employees Del Rio and McQueen and, in response
to Sivils' inquiries, stated that Del Rio had violated
GTE's security and McQueen had gotten a loan from a
loan company by impersonating an engineer named
McQueen who was employed by GTE.
On May 15, 1981, Respondent in fact terminated
McQueen's employment.
· This description of what was stated during the May 15 meeting be-
tween Sivils and McQueen is based on Sivils' testimony. In certain re-
spects McQueen's testimony about this meeting does not jibe with Sivils
testimony. I have credited Sivils' testimony because while testifying he
impressed me demeanorwise u a more credible and reliable witness than
McQueen.
6 Sec. 7.1 of OTE's contract with Respondent provides, in substance,
that GTE has the sole right at any time and for any reasons, disclosed or
undisclosed, to require Respondent to terminate an employee or employ-
ees employed by Respondent at GTE's Mountain View facility.
851
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Analysis and ultimate findings
a. McQueen's reclassification and the resulting
reduction in his pay
The complaint alleges Respondent reclassified
McQueen from utilityman to janitor with a resulting re-
duction in his wages because of his union or protected
concerted activities. The General Counsel argues that
the record establishes that McQueen's job classification
was changed and his pay reduced because he filed griev-
ances with Local 77 pursuant to Local 77's contract with
Respondent. I disagree.
Although the record establishes that Area Manager
August, the person who decided to change McQueen's
job classification and reduce his salary,6 was anatgonistic
toward McQueen because his absences from work at
GTE and his failure to do the work at the Wells Fargo
Bank and suspended him because of this, there is no evi-
dence that August was hostile toward McQueen because
he filed grievances with the Union.
August's explanation to McQueen for his reclassifica-
tion, that McQueen was too undependable to be em-
ployed as a utilityman because of his refusal to work
overtime, indicates that August reclassified McQueen for
a legitimate business reason.7 I realize that Vice Presi-
dent Sivils, during the processing of McQueen's reclassi-
fication grievance, informed the union representatives
that it was McQueen's undependability caused by his un-
excused absenteeism which resulted in his reclassifica-
tion. 8 And I recognize that in some situations where re-
spondents offer different reasons to justify their conduct
toward employees it may warrant an inference of im-
proper motivation. I am not persuaded that this is such a
situation. The reasons for McQueen's reclassification and
reduction in pay given to McQueen by Area Manager
August and to the Union by Vice President Sivils are not
inconsistent but, quite the contrary, are consistent inas-
much as each reason is based on the fact that Respond-
ent felt McQueen was too undependable to continue
working on the utility crew.
Lastly, the timing of McQueen's demotion, coming
shortly after Respondent learned about the suspension
and sick leave grievances McQueen filed with the Union
does not warrant an inference of improper motivation in-
asmuch as McQueen's demotion also took place soon
after Area Manager August, by suspending McQueen, in-
6 The record establishes that August's superiors in management did not
know about McQueen's changed classification and reduction in pay and
did not participate in August's decision to change McQueen's job classifi-
cation and reduce his pay, but learned about August's conduct only after
McQueen grieved to the Union.
7 As I have found, supra, when August late in March told McQueen
he was being reclassified beause of his refusal to work overtime which
made him too undependable to be employed on the utility crew,
McQueen did not question August's assertion that his refusal to work
overtime made him too undependable to be a utilityman. Rather,
McQueen testified he took the position that he could not work overtime
because he was working for Respondent at the Wells Fargo Bank when
his regular shift at GTE ended. As I have found supra, McQueen's
excuse for not working overtime is inherently implausible.
8 In addition to being absent without an excuse on March 17, 1981,
shortly before his reclassification, McQueen, as far as Respondent be-
lieved, had also been absent without an excuse on February 27 and
March 2.
dicated he was hostile toward him for his absenteeism
and his failure to clean the Wells Fargo Bank. In other
words it is just as reasonable to conclude from its timing
that McQueen's demotion was motivated by the same
reasons which had caused August to initially suspend
him as by any hostility toward McQueen because of the
grievances he had filed with the Union, particularly
whereas here there is no extrinsic evidence that August
was hostile toward McQueen for filing the grievances.
Based on the foregoing, I am of the opinion that the
General Counsel has not established by a preponderance
of the evidence that in reclassifying McQueen from a uti-
lityman to a janitor and in reducing his pay that Re-
spondent did so because of McQueen's union or protect-
ed concerted activities. I therefore shall recommend that
this allegation be dismissed.
b. McQueen's discharge
The General Counsel contends that the record estab-
lishes that Respondent discharged McQueen on May 15,
1981, because of the grievances he had filed with the
Union. I disagree.
I have serious doubts that the General Counsel has
proven a prima facie case in the matter of McQueen's
discharge, but even assuming that the General Counsel
has established a prima facie case, the record over-
whelmingly established that McQueen would have been
terminated on May 15, 1981, even absent any union or
protected concerted activities. The record, as described
in detail supra, establishes that on May 15 McQueen vis-
ited Respondent's vice president, Sivils, for the purpose
of collecting sick leave moneys which Respondent had
agreed to pay him pursuant to the settlement of
McQueen's sick leave grievance and to attempt to get
Respondent to reimburse him for doctor bills incurred
due to illness which allegedly occurred while McQueen
was working for Respondent at the Wells Fargo Bank
and to have Respondent also pay a workmen's compen-
sation claim. McQueen met with Sivils for approximately
45 minutes and they discussed McQueen's grievances.
Then, when Sivils attempted to end the discussion so he
could get back to work, McQueen, dissatisfied with the
position Sivils had taken on the matters which were dis-
cussed, refused to leave Sivils' office and he refused to
leave Respondent's premises. Only after McQueen re-
fused Sivils' repeated requests to leave, some of which
were made in the presence of two employees, did Sivils
indicate to McQueen that McQueen's conduct of refusing
to leave the premises was forcing Sivils to terminate him.
Plainly, Sivils' decision to terminate McQueen was com-
pletely unrelated to any union or protected concerted ac-
tivity engaged in by McQueen, rather it was related
solely to McQueen's above-described insubordinate con-
duct of refusing to leave the premises which took place
in the presence of two other employees. There is no evi-
dence that in discharging McQueen for engaging in this
insubordination that Sivils treated McQueen differently
than other employees. Moreover, the record shows that
regardless of his insubordinate conduct on May 15
McQueen would have been discharged later that same
day. Thus, on May 15, after McQueen left the premises,
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W & F BUILDING MAINTENANCE CO.
a representative of GTE phoned Sivils and demanded
that Respondent remove McQueen from the job pursuant
to paragraph 7.1 of GTE's contract with Respondent
which gives GTE the right to require Respondent to ter-
minate an employee for any reason. There is no evidence
that Respondent does not ordinarily comply with such
requests. Lastly, Sivils credibly testified that McQueen
was not eligible to be transferred from the GTE job to
another of Respondent's jobs in that area because of his
earlier insubordinate conduct, his excessive absenteeism,
and because the only job vacancy in the geographical
area where McQueen lived was one which required a
government clearance and Sivils testified he feared that
due to what happened at GTE he might not be able to
get that clearance.
Based on the foregoing I find that the General Coun-
sel has failed to establish by a preponderance of the evi-
dence that McQueen was discharged because of his
union or protected concerted activities, and shall recom-
mend that this allegation be dismissed."
B. Cases 20-CA-16289 and 20-CA-16474
1. The evidence
Respondent is in the business of supplying janitorial
services to business enterprises. It has facilities in the
State of California located in the cities of San Francisco,
San Jose, and Sacremento. Only the San Francisco facili-
ty is involved in these cases.
John Foggy, herein Foggy, is Respondent's president.
Dory Sivils, herein Sivils, is Respondent's vice president.
Robert Rice, herein Rice, is Respondent's manager of
operations for the San Francisco facility. Julius Colbert
is the supervisor of the utility crews employed in San
Francisco.
Respondent's San Francisco employees are represented
by Local 87 which during the time material herein was a
party to a collective-bargaining contract with Respond-
ent containing a union-security clause requiring member-
ship in Local 87 after 30 days of employment. The con-
tract, with respect to employees' wages, provides for em-
ployees classified as janitorial employees to be paid S8.22
an hour effective June 1, 1980.
In May 1980 Enis was hired by Respondent as a jani-
tor to work at the San Francisco airport which is located
just outside of San Francisco and paid $5.25 an hour.
The commute to the airport proved to be too difficult
for Enis, who resides in San Francisco. Accordingly,
Enis stopped working at the airport and asked his imme-
diate supervisor, Julius Colbert, to assign him janitorial
work in San Francisco when a vacancy occurred there.
Enis worked as a janitor irregularly for Colbert in the
city of San Francisco from June through August 1980
* I have considered the fact that in his prehearing affidavit given to the
National Labor Relations Board and in Respondent's answer to the com-
plaint in this case, Sivils, in justifying McQueen's discharge, stated that
he was terminated when GTE invoked par. 7.1 of its contract with Re-
spondent. Sivils failed to state that McQueen's refusal to leave the prem-
ises would have resulted in his termination even absent GTE's request.
Nonetheless, in the circumstances of this case, including my impression
that Sivils, when he testified about his reasons for discharging McQueen,
was a sincere and reliable witness, I do not believe this omission impugns
Sivils' credibility.
and was paid $5.25 an hour. Colbert told Enis that when
he started to work full time in San Francisco he would
be paid $6.25 an hour. In September 1980 Colbert hired
Enis to work full time as a member of a two-man utility
crew. Shortly thereafter Enis' pay was increased to $6.25
an hour. The other member of the utility crew on which
Enis worked was King, who was hired by Colbert late in
September 1980. When Colbert hired King he promised
him he would be paid $5.25 an hour initially and $6 an
hour after 3 weeks. Colbert never fulfilled the later
promise. Enis and King worked from 5 p.m. to I a.m.,
with a half hour off for lunch, Monday through Friday.
They usually worked together as a team, but occasional-
ly were assigned to work at different locations. Each day
Supervisor Colbert assigned them to do janitorial work
at different business enterprises. They did the usual jani-
torial work such as emptying waste baskets, dusting,
sweeping, cleaning bathrooms, and waxing floors. Prior
to their employment with Respondent neither Enis nor
King had janitorial experience. IO
Enis continually asked Supervisor Colbert to pay him
more money from the time he (Enis) started working in
San Francisco as a full-time worker in September 1980
until his termination on March 30, 1981. Likewise, King
continually asked Colbert for more money from the time
he started working in late September 1980 until his ter-
mination on March 30, 1981. Enis and King, on some of
these occasions, worded their requests for more money
in terms of a request to be paid "union scale."" In addi-
tion, it is undisputed that Colbert failed to pay Enis and
King for the overtime hours they worked as a team, par-
ticularly during October 1980, and that Enis and King
complained about this to Colbert and asked to be paid
for their overtime hours. In speaking to Colbert about
the above-described money matters, at times Enis and
King spoke to him separately and at other times spoke to
him together. Colbert responded to Enis' and King's re-
quest for more money and overtime pay by telling them
they would receive more money when the quality of
their work improved and that the reason they had not
been paid for their overtime was that they should have
completed their assigned work during the normal work-
shift, and that once they were trained and became profi-
cient in their work they would be able to finish their as-
signments during normal working hours.
On a few occasions early in 1980 Enis spoke to Oper-
ations Manager Rice and told him that he was unhappy
'o Enis testified that before working for Respondent he "had janitor
experience." Enis did not elaborate about this. In the employment appli-
cation that he submitted to Respondent Enis indicated that he had no
prior janitorial experience. This circumstance plus Enis' poor demeanor
has lead me to reject his testimony that prior to going to work for Re-
spondent he "had janitor experience."
i" Colbert specifically denied this and testified that Enis and King
simply asked for "more money." I have rejected Colbert's testimony be-
cause demeanorwise he did not impress me as a sincere witness when he
gave this testimony. However, I reject Enis' testimony that in November
1980 when he and King asked Colbert for "union wages" that Colbert
threatened them with discharge. King, who also testified about this con-
versation, failed to corroborate Enis' testimony that Colbert threatened
them. I am of the opinion that if Colbert made this threat King would
have remembered it. Moreover, demeanorwise Enis did not impress me
as a credible witness when he attributed the threat to Colbert.
853
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
working for Respondent because he was not being paid
sufficient wages and that he had worked overtime for
which he had not been paid. Enis asked Rice for a raise
in his pay to $7 an hour and to pay him for the over-
time. 1
In February 1981 Enis and King visited the office of
Local 87 and joined that union, Enis on February 9 and
King on February 19. On February 19 when Enis and
King visited Local 87's office the office clerical, who did
the paperwork connected with King's union membership,
phoned Respondent's place of business, identified herself
to whomever answered for Respondent. The next day,
February 20, King and employee Pratt were assigned to
work at St. John's Church. Supervisor Colbert and Op-
erations Manager Rice visited this jobsite at which time
Rice asked King whether King and Enis had joined
Local 87. King was noncommital.1'
Early in March 1981, Operations Manager Rice called
Enis and King into his office and spoke to them in the
presence of Supervisor Colbert. Rice asked whether Enis
and King had joined the Union. Enis and King answered
in the affirmative. Rice stated he had been planning on
getting everyone into the Union and asked how they got
along with Union Business Representative Welch. They
told him they got along alright with Welch. Rice then
asked if they still wanted their backpay and when they
answered yes informed them that he would see what he
could do to get it for them. The conversation ended with
Rice stating he was trying to get everyone into the
Union and that Enis and King and would start earning
union wages of $8.22 an hour in their next paycheck.'4
The record reveals King was paid $8.22 an hour during
his last payroll period in Respondent's employ, the last 2
weeks of March 1981. There is no evidence whether
Enis was likewise paid $8.22 an hour. However, under
the circumstances, since King's pay as Rice promised,
was raised to this level, it is a fair inference that Enis
was also given the same pay raise inasmuch as he was
promised this pay raise by Rice at the same time as King.
After meeting with Rice and Colbert, as described
above, Enis and King went to the company garage to
get ready for work at which time Colbert gave them
" Based on Rice's testimony. Enis testified he spoke to Rice about get-
ting "union scale." Rice denied this. Rice impressed me demeanorwise as
a more credible witness. Accordingly, I have rejected Enis' testimony.
" The description of Rice's conversation with King is based on King's
testimony. I have credited King's undenied testimony that on February
20, at St. John's Church, Rice asked whether King and Enis had joined
the Union but have rejected his further testimony, which was specifically
denied by Rice, that Rice at this time told King "he hated to see a good
man go." I have rejected this part of King's testimony because demeanor-
wise Rice impressed me as a more credible witness than King on this par-
ticular aspect of the conversation. -
14 The description of this conversation is based on King's testimony.
Enis, who also gave testimony about what was stated during this meet-
ing, indicated that his memory of what was stated at the meeting was
poor. Demanorwise Enis did not impress me as a reliable witness when
he testified about the meeting. Rice testified that all that was stated at
this meeting was that Enis remarked that he felt Respondent owed him
moneys for the overtime hours he had worked and asked if Rice would
help him collect said moneys. Rice further testified that there was no
mention of a union. Colbert, who testified for Respondent, was not called
on by Respondent to corroborate Rice's testimony. I have credited
King's version of this meeting and not Rice's because demeanorwise King
impressed me as a sincere and reliable witness when he testified about
what was stated during this meeting whereas Rice did not.
their work assignments. Colbert then asked Enis and
King why they had gone to the Union. King told him
they had joined the Union because they wanted to be
paid union wages. Enis stated that they deserved to be
paid union scale because they were qualified. Enis asked
why Colbert had not told them about the Union. Colbert
stated that he did not think the Union was any good,
that he felt it was a waste of money to join the Union,
that King's and Enis' security was not with the Union
but in doing good work, and that even with the Union
he could fire them if their work was unsatisfactory.' 5
During mid-March 1981 Enis spoke to Rice and told
him he was not happy working for Respondent and in-
tended to quit. Rice suggested they have lunch and talk
about the matter. Enis agreed and during their luncheon
meeting Enis repeated that he intended to quit his em-
ployment with Respondent. Enis also asked Rice if there
was any way he could be paid for the overtime hours he
had worked and had not been paid for. Rice indicated he
would investigate the question of Enis' overtime pay and
told Enis he should not quit his job with Respondent be-
cause Respondent had gone to a lot of trouble training
him to be a good worker and that this training was just
starting to pay off. Rice asked Enis to remain in Re-
spondent's employ. Enis agreed not to quit.' 6
On Monday, March 30, 1981, shortly after reporting
for work, Enis and King were summoned to Rice's office
and in the presence of Colbert were handed their termi-
nation slips and told they were being discharge. The ter-
mination slips, dated March 30, were identical and signed
by Rice. They stated Enis and King were terminated for
"falsification of time records and unauthorized use of
company vehicle, including unreported damage to vehi-
cle and customer premises." Rice told Enis and King
that they had falsely credited themselves with having
worked a full shift, 7-1/2 hours, on Friday, March 27,
when in fact they had not worked that many hours. Rice
stated he had gone looking for them that night at the
Turner Construction Company, where they were sup-
posed to have been working, and had been unable to find
them. Rice asked where they were. Enis and King re-
plied they were doing their work at the Turner Con-
struction Company, but admitted they had not worked 7-
1/2 hours but had given themselves credit for this
amount of time because the Company owed them
"' This description of Colbert's meeting with Enis and King is based
on King's testimony. Enis also testified about this meeting but demeanor-
wise did not appear to be reliable or sincere when he gave this testimony.
Colbert was not questioned by Respondent about this particular meeting.
He generally denied ever asking Enis or King about why he joined the
Union or of having told them it was a mistake to have joined the Union.
I have credited King's version of this meeting because demeanorwise he
impressed me as a sincere and reliable witness when he testified about the
meeting and Colbert failed to present his version of what was stated at
the meeting nor did he specifically deny the remarks attributed to him.
t0 The description of this luncheon meeting is based on Rice's testimo-
ny. Enis testified that he told Rice he was thinking of quitting and
wanted his "backpay." Enis further testified that Rice suggested Enis not
ask for his backpay and that in return Rice would pay him union wages
and have Supervisor Colbert stop harassing him. When Enis rejected this
offer, Enis testified Rice stated, "You're not going to be too happy to see
me coming around because I'm going to choose my people." I have cred-
ited Rice's version of this meeting and rejected Enis because demeanor-
wise Rice impressed me as a more credible witness.
854
W & F BUILDING MAINTENANCE CO.
moneys for overtime they had worked. Regarding the
reference in the termination slips to the "unreported
damage to vehicle," Rice told them he discovered they
had damaged a company vehicle and not reported it to
management. Rice also stated that they had ruined a rug
at the Children's Hospital which had not been reported
to management. Enis stated that this incident had oc-
curred more than a month previously and that he had re-
ported it to the janitor employed by Respondent at the
Hospital. King pointed out that he was not responsible
for this damage because on the night in question he was
not working with Enis having been assigned by Rice and
Colbert to another location. Lastly, Rice stated Enis and
King had spilled nail polish on the carpet at the Golden
Arch Beauty Salon. Enis acknowledged his responsibility
for this and stated that he had forgotten to inform man-
agement. 1 7
a. Thefalsification of timecards and unauthorized use
of a company vehicle
On Friday, March 27, 1981, Rice assigned work to the
night-shift workers because Colbert, who normally had
this responsibility, was absent from work that week on a
leave of absence. On March 27 at 5 p.m., the start of the
workshift, Rice dispatched King and Enis to Turner
Construction Company, a job which they had done in
the past, which usually took approximately 2 hours. This
was their only job assignment. Rice advised them he
would speak to them later at Turner Construction to tell
them where they would be working for the remainder of
the evening. Shortly after Enis and King left for Turner
Construction Rice was informed about another job for a
utility crew, So at approximately 6 p.m. he drove to
Turner Construction to give this assignment to Enis and
King. The company vehicle used by Enis and King was
not parked in Turner Construction's yard so Rice re-
turned to Respondent's office to determine whether they
had phoned and left a message. They had not. Rice re-
turned to Turner Construction at approximately 8:30
p.m. and again discovered that the company vehicle used
by Enis and King was not parked in that company's yard
and observed that all of the lights were out in the build-
ings which they had the responsibility to clean. 8 s
1t Rice, Colbert, King, and Enis testified about the March 30 termina-
tion interview. The testimony of no two of these witnesses seems to be
corroborative with respect to a large number of the matters of signifi-
cance mentioned during the meeting. The above description is based on
Rice's testimony and those parts of King's, Enis', and Colbert's testimony
which are not inconsistent with Rice's testimony. I have relied on Rice's
testimony, where there is a conflict, because of all of the witnesses who
testified about this meeting Rice impressed me demeanorwise as a more
credible and reliable witness than the others.
I8 The description of what took place on March 27 is based on Rice's
testimony. I have rejected King's and Enis' description where it conflicts
with Rice's because demanorwise Rice impressed me as a more credible
witness. In crediting that part of Rice's testimony descnbing his two trips
to Turner Construction Company to speak with Enis and King, I have
considered the testimony of the security guard, Kinley Brown, who was
on duty that evening at the Turner Construction Company. In view of
my favorable impression of Rice's demeanor when he gave his testimony,
I am of the opinion that when Rice first visited the jobsite at approxi-
mately 6 p.m. the gate to the jobsite, which was open until at least 6
p.m, had not been locked yet and that when Rice later visited the site
that one of the many persons with keys to the gate had apparently inad-
vertently left the gate open I am of the opinion there is nothing inherent-
Friday, March 27, 1981, was the end of a payroll
period. The employees who work on the night shift
turned in their timecards on the Monday after the Friday
which ends the payroll period.I9 On Monday, March 30,
when Enis and King arrived for work at approximately 5
p.m. they gave their timecards to Rice who observed
that they had given themselves credit for a full shift of
work, 7-1/2 hours. Rice asked where they had been on
March 27 and indicated that he had been unable to
locate them that night. Enis stated that they were work-
ing at Turner Construction Company. Based on the fact
that no one from Turner Construction Company had
complained that its facility had not been cleaned Friday,
Rice concluded that Enis and King had completed their
assigned janitorial work at Turner Construction some-
time during Friday evenings. Since the vehicle used by
Enis and King was not at Turner Construction on the
two occasions that Rice was there Friday night and since
Enis and King had credited themselves on their time-
cards for 7-1/2 hours of work for a job which should
have taken only approximately 2 hours, Rice also con-
cluded that Enis and King had used the company vehicle
for an unauthorized purpose and had falsified their time-
cards.
b. The damage to a company vehicle
On Saturday, March 21, 1981, when Respondent's
president, Foggy, entered the Company's garage he ob-
served that the right front fender of the Company's small
pickup van, the Dodge Ram, was dented. Foggy left a
note for Vice President Sivils asking him to determine
who was responsible for the dent. On Monday, March
23, Sivils asked Day-Shift Foreman Lowe if he knew
anything about the dent. Lowe answered in the negative.
Supervisor Colbert, who was usually in charge of the
night-shift employees, was absent from work on funeral
leave so, since Enis had been driving the Dodge Ram for
the 2 or 3 days immediately before March 21, Sivils
questioned Enis about the dent.2 0 Enis informed him that
the van was already dented before he had started driving
it and that, as a matter of fact, Supervisor Colbert had
shown him the dent when he first drove the van. Colbert
ly implausible in Rice's testimony. Also, I have rejected Brown's testimo-
ny to the effect that on March 27 Enis and King arrived for work at
Turner Construction Company between 7 and 7:30 p.m. and left between
10 and 10:30 p.m. I have not credited this testimony because I am per-
suaded that Brown, who testified almost I year after the events of March
27, 1981, had no reason to remember March 27, 1981, as distinct from
any other date let alone to remember whether King and Enis worked
that particular day or the specific hours they worked. In other words, I
believe that Brown was not a credible witness on this point. Lastly, I
note that Enis' testimony that the company vehicle used by himself and
King on March 27 was parked outside Turner Company from the time
they arrived until they left is inconsistent with King's testimony that the
vehicle was not parked there during the entire period that they were
there because at some point in time Enis used the vehicle to leave in
order to get lunch.
ig Based on the testimony of Rice, Colbert, and employee Yin Law
Chow. I have rejected Enis' and King's contrary testimony because Rice
and Colbert, whose testimony was corroborated by Chow, impressed me
demeanorwise as more credible witnesses.
10 The fact that Enis had been driving the Dodge Ram on the night
shift during this period is based on the credible and uncontradicted testi-
mony of Rice and Sivils
855
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was not scheduled to return from his leave of absence
until Monday, March 30, so Sivils informed President
Foggy he would speak to Colbert about the dent at that
time. When Colbert returned to work on Monday,
March 30, Rice asked him about the dent and Colbert
told him he knew nothing about it and that he had not,
as Enis told Sivils, brought the dent to Enis' attention.
Rice had observed that the "operator's vehicle mainte-
nance inspection" reports which Enis had filled out each
day that he drove the Dodge Ram failed to indicate that
the fender was dented. Under the circumstances Rice
concluded that Enis was responsible for denting the
truck and, in addition, had tried to conceal his responsi-
bility from management. 21
c. The damage to the rug at Children's Hospital
On or about February 23, 1981, while working by
himself at Children's Hopsital, Enis accidentally spilled
some wax on a rug which left a stain between I and 3
feet in diameter. Respondent employed a full-time janitor
there. Enis notified the janitor about the stain, but did
not notify his supervisors. Respondent first learned about
the stain when the Hospital's building supervisor phoned
President Foggy to complain about the damage to the
rug. Foggy was concerned about the matter and had
Vice President Sivils investigate. Sivils spoke to the jani-
tor who told him that Enis was responsible for the stain.
Thereafter, in Rice's presence, Sivils questioned Enis.
Enis described how he had accidentally spilled some wax
on the rug and explained he had not felt it was necessary
to tell his supervisors because he had told the janitor.
Sivils advised Enis that whenever anything happened on
the job which might upset the customer that Enis should
promptly notify his supervisors so that Respondent could
speak to the customer about the matter and in that way
it would not appear as if Respondent were trying to hide
something. 22
d. The damage to the carpet at the Golden Arch
Beauty Salon
During the time material herein Respondent provided
janitorial services to several facilities operated by the
Golden Arch Beauty Salon. Each night during the week
Respondent provided a janitor who did the usual janito-
rial work at the Golden Arch Stores and approximately
21 Enis testified that when he first drove the Dodge Ram it was al-
ready dented and that Supervisor Colbert showed him the dent at the
time Colbert assigned him to drive the van. Upon Colben's return from
his leave of absence, as I have found supra, Colbert told Operating Man-
ager Rice that Enis was not telling the truth when he stated that Colbert
had known about the dent and had shown it to Enis at the time he as-
signed him to drive the van. However, when he testified Colbert failed to
specifically deny Enis' testimony that at the time he was assigned to
drive the van that Colbert showed him the dent. Nonetheless, I have re-
jected Enis' testimony in this respect because demeanorwise he did not
impress me as a credible witness. In any event, assuming that on March
30 Colbert lied to Rice when Rice questioned him about the dented
fender, I am of the opinion that in taking at face value what Colbert told
him that Rice acted in good faith.
s2 In finding that Sivils spoke to Enis, as described above, I have re-
jected Enis' testimony that no one ever spoke to him about what hap-
pened to the rug at Childrens' Hospital and have credited Sivils' testimo-
ny because demeanorwise Sivils impressed me as a credible witness on
this point whereas Enis did not.
once each month sent a utility crew to do the more ex-
tensive janitorial work such as waxing the floors. During
the week of March 16, 1981, the owner of the Golden
Arch Beauty Salon phoned Vice President Sivils and
complained that one of the Respondent's employees had
spilled nail polish on a carpet and had been attempted to
hide the damage bay placing a throw rug over the stain.
Enis and King had worked at the particular store the
night before, so, Sivils asked Enis if he knew whether
anything had been spilt on the carpet. Enis answered in
the affirmative and explained that when he was mopping
the floor the mop handle hit a bottle of nail polish which
fell and broke. Sivils asked why Enis did not report this
to his supervisor. Enis stated that "he had taken care of
it."2 3 The Golden Arch Beauty Salon shortly thereafter
stopped doing business with Respondent because of this
incident.
2. Discussion and conclusionary findings
a. The alleged assignment of more arduous work to
Enis and King in March 1981 because of their union
and/or protected concerted activities
The complaints in these cases allege that Respondent
violated Section 8(a)(l) and (3) of the Act by giving Enis
and King "more arduous job assignments" in March 1981
because of their union or protected concerted activities.
The admissions of Enis and King have persuaded me
that this allegation is without merit.
Enis admitted that insofar as job assignments were
concerned, March 1981 was no different than other peri-
ods of his employment because, as he testified, Supervi-
sor Colbert had been harassing him and King from the
very beginning of their employment as a utility crew in
September 1980 until their termination on March 30,
1981. Enis testified that from the start of their employ-
ment Colbert always assigned Enis and King the work of
stripping and waxing floors which took longer to do
than other types of janitorial work and that they never
knew what to expect from Colbert. And, King's testimo-
ny establishes that as a matter of fact Enis' and King's
assignments in March 1981 were no more arduous than
in the past. King testified that although he and Enis were
assigned to strip and wax floors in March 1981 that this
was a normal part of their work and that King did not
feel Supervisor Colbert was treating them unfairly by as-
signing them this kind of work. Not only did King testi-
fy he did not feel Colbert in March 1981 was harassing
Enis and himself by assigning them the task of stripping
and waxing floors, but referring to his work assignments
in March 1981 King testified his work was "nice" and
that he "loved it."
23 The General Counsel urges that because Respondent failed to
produce dispatch orders showing that Enis and King had worked at the
Golden Arch Beauty Salon during the time in question, when the nail
polish was spilled, that I should infer that it was another utility crew or
the regular janitor assigned to service that customer who split the nail
polish. I disagree. Sivils, who in terms of his demeanor impressed me as a
sincere and reliable witness, testified, as I have found supra, that Enis ad-
mitted responsibility for the spilt nail polish. Moreover, Enis did not deny
Rice's testimony.
856
W & F BUILDING MAINTENANCE CO.
Based on the foregoing I find that the record fails to
establish, as alleged in the complaints herein, that in
March 1981 Respondent gave Enis and King "more ar-
duous job assignments." It is for this reason that I shall
recommend this allegation be dismissed.
b. Enis and King are discharged on March 30, 1981,
allegedly because of their union and/or protected
concerted activities
During the time material herein the janitors employed
by Respondent who worked in San Francisco were rep-
resented by Local 87 and covered by Respondent's col-
lective-bargaining agreement with that Union. Despite its
contract with Local 87 Respondent did not comply with
the contractual wage provisions in the case of all of its
janitors. Respondent paid its inexperienced janitors sub-
stantially less an hour than called for by the union con-
tract. Respondent paid its inexperienced janitors the con-
tract rate of pay only after they acquired sufficient on-
the-job experience to become proficient in their work.2 4
Pursuant to this practice Enis and King, who were inex-
perienced janitors, were paid substantially less than the
contract rate. During the same period of time Respond-
ent employed at least six other inexperienced janitors
who likewise were not paid the contractual rate of pay.
Enis and King, who commenced to work full time for
Respondent in late September 1980, worked together as
a utility team. From almost the very beginning of their
employment they were unhappy about their rate of pay
and in 1980 and 1981 constantly asked their supervisor,
Julius Colbert, for more money and, in particular, asked
that they be paid "union wages." Also, beginning in late
October 1980 and continuing thereafter they complained
to Colbert about the fact that they had not been paid for
certain overtime hours they had worked. In February
1981 they joined Local 87, apparently in order to assist
themselves in collecting their "union wages" and over-
time pay.
Counsel for the General Counsel takes the position
that Enis' and King's efforts to have Respondent pay
them union wages and overtime pay constituted "con-
certed activities" as that term is used in Section 7 of the
Act and that the record also establishes that Enis' and
King's concerted activity was a motivating factor in Re-
spondent's decision on March 30, 1981, to discharge
them, thereby establishing a prima facie case of a viola-
tion which Respondent failed to rebutt by establishing it
would have discharged them even if they had not en-
gaged in protected concerted activity. I disgaree. Even
assuming that Enis and King, in pressing Respondent for
union wages and overtime pay, were engaged in protect-
ed concerted activities, I find that the General Counsel
has not made a prima facie showing that their concerted
activity was a motivating factor in their discharges.
There is a lack of evidence that Respondent was hos-
tile toward Enis and King because of their demands for
union wages and/or overtime pay. Supervisor Colbert, in
response to their continuous request for union wages and
24 Respondent was unable to provide close on-the-job supervision of
its workers, thus, the amount of time it took for inexperienced workers to
become proficient varied and sometimes took quite a while.
overtime pay, advised them that their wages would be
raised when they acquired more experience and became
more proficient at their work and that the reason he had
not paid them for their overtime was that they should
have finished the work in question during their normal
working hours, but had not done this due to their lack of
experience. And, in March 1981, after Respondent
learned Enis and King had joined the Union, Operations
Manager Rice did not express any animosity toward
them for joining the Union but instead informed them he
had been planning on getting them into the Union and
stated their pay would be raised to $8.22 an hour, the
contractual rate of pay, in their next paychecks. As a
matter of fact Enis' and King's wages were increased to
$8.22 an hour during the next payroll period. I recog-
nized that when Supervisor Colbert learned that Enis
and King had joined the Union he told them that he felt
they were wasting their money because he did not think
the Union was any good and pointed out that it was
their job performance rather than union membership
which provided job security because if their job perform-
ance was not satisfactory he still could fire them despite
their union membership. I am of the opinion that Col-
bert's comments are insufficient to warrant a finding that
Respondent was antagonistic toward Enis and King for
pressing their claim for union wages and/or overtime
pay. Further, Colbert's comments simply indicate that
Colbert personally thought that union representation was
a waste of the employees' money.
Nor does the timing of the discharges warrant an in-
ference of improper motivation. The demands made by
Enis and King for union wages and overtime pay were
tolerated by Respondent for several months prior to their
discharge and when they joined the Union in a further
effort to implement these demands Respondent, instead
of reacting in a hostile manner, acknowledged, through
Operations Manager Rice, that Enis' and King's conduct
of joining the Union was perfectly permissible and that
Respondent now intended to pay them the union wages
they were seeking. It was only on Monday, March 30,
when Rice discovered that Enis and King had falsified
their timecards by crediting themselves for 7-1/2 hours
of work the previous Friday when they had only
worked approximately 2 hours, that Respondent decided
to discharge them.
Lastly, but perhaps most significantly, is the fact that
in mid-March 1981 Operations Manager Rice persuaded
Enis not to quit his employment. Rice's conduct provides
a strong inference that Respondent was not hostile
toward Enis and King for pressing their wage and over-
time pay demands, nor was it looking for an excuse to
discharge them for engaging in this conduct. Surely, if
Respondent was hostile toward Enis and King for press-
ing their wage and overtime demands or was looking for
a pretext to fire them for this reason, Rice would not
have persuaded Enis to remain in Respondent's employ
when Enis informed him he intended to quit. As I have
described in detail supra, when Enis, who was substan-
tially more vocal in expressing the wage and overtime
pay demands than King, told Rice in mid-March 1981
that he intended to quit, Rice informed him that Re-
857
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent had spent a lot of time training him and that it
would be stupid for him to quit at that time just when all
of the training was starting to pay off-an obvious refer-
ence to Rice's earlier promise to Enis and King that they
would start receiving the $8.22 an hour called for by the
union contract-and persuaded him to remain in Re-
spondent's employ.
To be sure Respondent's treatment of King is suspect.
Respondent based its decision to discharge King, in part,
on the damage to the Children's Hospital rug, the
damage to the Golden Arch Beauty Salon's carpet, and
the dent in the company vehicle, even though Enis was
solely responsible for these acts of misconduct and, in
the case of the hospital rug and dented vehicle, Respond-
ent knew Enis was solely responsible. However, any in-
ference of improper motivation that arises from Re-
spondent's treatment of King is more than overcome by
the other facts set forth above which detract from such
an inference. Moreover, King is guilty of the most seri-
ous act of misconduct, the falsification of his timecard,
which was the misconduct which triggered Respondent's
decision to discharge King.
For these reasons I am unable to conclude that an in-
ference of illegal motivation was warranted here. Ac-
cordingly, I conclude that the General Counsel has not
established by a preponderance of the evidence that Enis'
and King's discharge violated Section 8(a)(1) or (3) of
the Act, and I shall therefore recommend the dismissal
of these allegations in the complaints.
c. The independent violations of Section 8(a)(1)
attributed to Operations Manager Rice
As I have found supra, on February 20, 1981, shortly
after Enis and King joined the Union, Operations Man-
ager Rice spoke to King while King was working at St.
John's Church, and asked whether King and Enis had
joined the Union. King's response was noncommittal.
The complaint in Case 20-CA-16289, paragraph 6(c), al-
leges that because of Rice's interrogation Respondent
violated Section 8(a)(l) of the Act. I disagree. I am of
the opinion that because of the unusual circumstances of
this case this allegation should be dismissed. The Union
involved is an incumbent union which has a contract
with Respondent which contains a union-security clause
requiring employees such as Enis and King, after 30 days
of employment, to join the Union as a condition of con-
tinued employment. During the time material herein,
Enis and King were obligated by the union-security pro-
viso to join the Union. There is no evidence that at the
time this interrogation took place Respondent had indi-
cated to the employees that it was opposed to them join-
ing the Union as required by the contractual union-secu-
rity clause. As a matter of fact, subsequent to Rice's Feb-
ruary 20 interrogation, in early March 1981, when Enis
and King, in response to Rice's questioning,26 told Rice
as Rice's questioning of Enis and King early in March 1981 about
whether they had joined the Union, which is described in detail supra, is
not alleged in the complaint as a violation of the Act.
they had joined the Union, Rice indicated to them he
was in favor of them having done this because he had
intended on having them join the Union. Under the cir-
cumstance I am of the opinion that Rice's February 20
questioning of King of whether he and Enis had joined
the Union was not coercive and for this reason I shall
recommend that this allegation be dismissed.
The complaint in Case 20-CA-16289, paragraph 6(b),
alleges that in March 1981 Operations Manager Rice
promised to improve employees' terms and conditions of
employment if they withdrew their grievance. This alle-
gation is based on Enis' version of what was stated to
him by Operations Manager Rice during their mid-
March 1981 restaurant meeting. Rice disputed Enis' testi-
mony. As described in detail supra, I have rejected Enis'
version of this meeting because Rice impressed me as a
more credible witness. Accordingly, for this reason, I
shall recommend that this allegation be dismissed.
d. The independent violations of Section 8(a)(1)
attributed to Supervisor Colbert
The complaint in Case 20-CA-16289, paragraphs 6(a)
and (d), allege that in early March 1981 Supervisor Col-
bert threatened to discharge employees because they
went to the Union and that Colbert pointed out to the
employees the futility of supporting the Union by telling
them Respondent would discharge them if it wanted to
and there was nothing the Union could do about it. With
respect to these allegations the record establishes, as de-
scribed in detail supra, that early in March 1981 Oper-
ations Manager Rice called Enis and King into his office
and in the presence of Supervisor Colbert asked if they
had joined the Union. They answered in the affirmative.
Rice indicated to them he favored this because he had
intended on having them join the Union and also told
them he intended to pay them the rate of pay called for
by the union contract, as they had requested. Immediate-
ly after this meeting Supervisor Colbert asked Enis and
King why they had gone to the Union and told them the
reason he had not told them about the Union was that he
felt it was a waste of their money to join the Union as he
did not think the Union was any good, and stated it was
the employees' job performance rather than union mem-
bership which provided job security because if their job
performance was unsatisfactory they could be fired de-
spite their union membership.
I am of the opinion that these allegations should be
dismissed in their entirety because while Colbert's re-
marks might be viewed as coercive within the meaning
of Section 8(a)(l) of the Act if expressed in the context
of other unfair labor practices, viewed in isolation they
are not violative of the Act. Accordingly, since Colbert's
above-described remarks were not expressed in the con-
text of unfair labor practices, I shall recommend that this
allegation be dismissed.
858
W & F BUILDING MAINTENANCE CO.
On the foregoing findings of fact and conclusions of
law and on the entire record, I issue the following rec-
ommended
ORDER 2 6
The complaints herein be dismissed in their entirety.
26 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses.
859