Alex Wasleff Building Maintenance Co.

50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. By discriminating in regard to the hire , tenure, terms, and conditions of employ- ment of Costanzo Manes to encourage or discourage membership in a labor organi- zation, the Company has engaged in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 4. By causing the Company to discriminate against Manes in violation of Section 8(a)(3) of the Act, Local 107 has engaged in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 5. By restraining and coercing Costanzo Manes in the exercise of rights guaranteed by Section 7 of the Act, Local 107 has engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Alex Wasleff Building Maintenance Company and Warehouse and Mail Order Employees Union, Local 743, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Cases Nos. 13-CA-3493, 13-CA-3493-2, and 13-C,A-3493-3. February 8, 1961 DECISION AND ORDER On September 8, 1960, Trial Examiner Owsley Vose issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report, together with a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in con- nection with this case to a three-member panel [Members Rodgers, Jenkins, and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.' The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record,2 and 1 During the second day of hearing, Respondent requested certain pretrial affidavits of witnesses who had completed their testimony the previous day, and who had been excused by the Trial Examiner. These witnesses were no longer present at the hearing , and the Trial Examiner sustained the objections of the General Counsel to the production of their affidavits. We affirm the Trial Examiner's ruling, for the reasons stated in Walsh-Lampkin Wholesale Drag Company, 129 NLRB 294 , and deny Respondent's request to strike the testimony of these witnesses from the record . We note that the affidavit of another wit- ness was timely requested by Respondent 's counsel the previous day during cross- examination , and was produced by the General Counsel. 2 Respondent's request for oral argument is denied , as the record , exceptions, and brief adequately present the issues and positions of the parties . We also deny Respondent's motion to reopen the record, as there is no showing that the evidence Respondent now wishes to offer was not available at the time of hearing. See Schott Metal Products Company, 128 NLRB 415. 130 NLRB No. 12. ALEX WASLEFF BUILDING MAINTENANCE COMPANY 51 hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Alex Wasleff Building Maintenance Company, Chicago, Illinois, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Warehouse and Mail Order Em- ployees Union, Local 743, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or in any other labor organization of its employees, by discharging, refusing to rein- state, or in any other manner discriminating against employees with respect to their hire or tenure of employment or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing its employees at Mercy Hospital in the exercise of the right of self- organization, to form labor organizations, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except as authorized in Section 8(a) (3) of the Act, as amended. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Penny Powell and Lula Booth immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of pay suffered by them, in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other records necessary to analyze "the amounts of backpay due. 3 Respondent excepts to the Trial Examiner 's failure to find that a decision of the Illinois State Unemployment Compensation Agency, denying unemployment compensation to em- ployee Powell , precludes the Board from finding an unfair labor practice in connectioil with her discharge . We find no merit in this exception . While the decision of the State agency was properly admissible in evidence , we find that this evidence is insufficient in the present case to overcome the other evidence, detailed in the Intermediate Report, sup- porting the unfair labor practices alleged in the complaint , and found herein. See Cadillac Marine & Boat Company, 115 NLRB 107, footnote 1. 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post at its office at Mercy Hospital copies of the notice attached to the Intermediate Report marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by Respondent's authorized representative, be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are cus- tomarily posted at the hospital. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (d) Notify the Regional Director for the Thirteenth Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that Juanita Bonier was discharged in violation of the Act. *This notice shall be amended by substituting for the words "Recommended Order of a Trial Examiner" the words "A Decision and -Order." In the event, that this Order, is en- forced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, in which all parties were represented, was heard before me in Chicago, Illinois, on April 11 and 12, 1960, upon'the complaint of the-General Counsel and answer of Alex Wasleff Building Maintenance Company, herein referred to as Wasleff. After the hearing the General Counsel and Wasleff filed helpful briefs which have been fully considered. The issues litigated at the hearting were whether Wasleff violated Section 8(a)(3) and (1) of the Act in connection with the termination of employment of Penny Powell, Juanita Bouier, and Lula M. Booth. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. JURISDICTIONAL FINDINGS Wasleff, an Illinois corporation having an office at Chicago, Illinois, operates a building cleaning and maintenance service. Among its clients during 1958 were the General Electric Company and Butler Brothers, Inc., from each of whom Wasleff received in excess of $50,000 for services performed during that year. Both General Electric Company and Butler Brothers, Inc., annually ship products valued in excess of $100,000 outside the State of Illinois. I find that Wasleff is engaged in operations affecting commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. II THE LABOR ORGANIZATION INVOLVED Warehouse and Mail Order Employees Union, Local 743, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction The unfair labor practices alleged in the complaint involve the termination of three of Wasleff's employees who worked full time at Mercy Hospital in Chicago. Mercy Hospital is operated by the Sisters of Mercy, a Catholic order. About the ALEX WASLEFF BUILDING MAINTENANCE COMPANY 59 end of June 1957 Wasleff took over all cleaning operations at the hospital, includ- ing the furnishing of maid service for the patients' rooms, under a contract with the hospital. Wasleff's contacts with the hospital were through Sister Vincent, the housekeeper of the institution. At the time of the events here involved, Foreman Swimms was in charge of the men, who did the heavier cleaning at the hospital. Forelady Mary Branch super- vised the maids, with the assistance of Irma Horton, assistant forelady, who was in charge of the maids in the east side of the building.' Branch devoted her time mainly to the west side of the building, which included the supply room. These supervisors worked under the general direction of Superintendent Harry Ford, who was responsible on behalf of Wasleff for the cleaning work at various buildings, including Mercy Hospital. He visited the hospital daily in connection with the performance of his duties. At the time of the hearing in April 1960, neither Fore- lady Branch nor Assistant Forelady Horton were still in Wasleff's employ. Horton had been discharged by Wasleff in December 1959, after being demoted from her supervisory position the previous month. Branch quit her job in January 1960, after being transferred, against her will, to another establishment. B. The credibility of the witnesses In this case much of the testimony upon which the General Counsel relies as sup- porting the allegations of the complaint is denied by Wasleff's only witness, Super- intendent Ford. In such a case the determination of the credibility of the witnesses giving conflicting testimony is, of course, of paramount importance. The making of this determination in this case has not been an easy task. Superintendent Ford, the principal actor for Wasleff in the events involved in this case, was still employed by Wasleff at the time of the hearing, and was a vitally interested party. On the other hand, the General Counsel's witnesses also had an interest in the outcome of the case. Both Forelady Branch and Assistant Forelady Horton, whose testimony strongly aided the General Counsel's case, appeared on the stand to harbor some resentment against Wasleff. This apparently stemmed from the circumstances of their leaving Wasleff's employ. Superintendent Ford, while not a wholly unreliable witness, impressed me as being quick to make sweeping statements supporting Wasleff's position. As appears more fully hereinafter, Ford's testimony regarding Booth's second transfer was not only confused and self-contradictory, but also highly implausible on its face In addition, in one instance, as stated below, upon being confronted with an affidavit previously given to a Board investigator, Ford retracted previous sworn testimony. In resolving conflicts between the testimony of Superintendent Ford and Assistant Forelady Horton, I found the testimony of the latter much more persuasive. On the stand Horton appeared to have an accurate recollection of the events covered by her testimony, and she gave the incidents in a logical sequence and in sufficient detail to be convincing. Also Horton's testimony appeared more consistent with the inherent probabilities of the situations covered and the demonstrable facts of the case. I have greater difficulty resolving conflicts in the testimony between Superintendent Ford and Forelady Branch. In one instance Branch overstated a matter in such a way as to indicate a desire on her part to build up a case against Wasleff. Also the fact that Forelady Branch repeatedly attributed to Superintendent Ford the mak- ing of the most incriminating statements has caused me to scrutinize Branch's testi- mony very carefully. Not all of the incriminating statements attributed to Ford by Branch, however, were denied. It also should be borne in mind that at the time the conversations in which the incriminating remarks assertedly were made took place, Branch was in charge of the maids at the hospital, that she was a trusted part of management, and that Ford reasonably assumed that his words would not be repeated outside of management. Under all the circumstances, including my observation of both witnesses on the witness stand, I conclude that in general Fore- lady Branch was a more reliable witness than Superintendent Ford. Specific in- stances of conflicts in their testimony are discussed below. C. Sequence of events 1. The Union initiates efforts to organize the hospital employees On the morning of October 26, 1959, organizers for the Union appeared in front of the hospital and passed out leaflets and union authorization cards to employees i Horton was married after the events involved in this case and is sometimes referred to in the i ecoi d by her married name of Blackledge. 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as they went in to work Some of the employees signed authorization cards and -returned them to the organizers at that time. Others took the cards with them into -the hospital. The Union was discussed in the dressing room in the presence of Forelady Branch. The union activity outside the hospital came to Superintendent Ford's attention the same day it started. Ford brought up the subject of the Union is a conversa- tion in the housekeeping office. He asked Assistant Forelady Horton whether she had obtained one of the cards that the Union was passing out outside. Horton said that she had not, that there had been no one out there when she had come in. Super- intendent Ford then told her that if she did get one, "don't sign it." 2 Later that same day, Ford told Horton that he had heard that Juanita Bouier was "on two east passing out cards . . . go up there . . . and if she is, take them and bring them to the office." 3 In the next few days Superintendent Ford questioned employees Bouier and Brooks as to whether they signed union cards. When they denied having done so, he instructed them not to do so. According to Assistant Forelady Horton, Ford also asked Irma Miller whether she had signed a union card. When she said "No," Ford replied, "You might as well tell me . . . if you did, because I am going to find out anyway." 4 During this period Superintendent Ford had a further conversation with Assistant Forelady Horton in the office in the presence of Sister Vincent, the housekeeper for the hospital. He told Horton that "that wasn't the Union for us, and we shouldn't join that Union" and that the employees who had signed union cards "would be fired." 5 About this time Superintendent Ford commented to Forelady Branch and As- sistant Forelady Horton that "he was going to fire Amanda Gray and Fanny Sykes because they had signed these Union cards." Subsequently Gray and Sykes were discharged. The next day after he discharged them Ford informed Branch and Horton that he had been advised "downtown" that he "couldn't fire them because they had joined the Union." Gray and Sykes were then reinstated 5 2. Events about the time of the union meeting of November 4 On Friday, October 30, the Union mailed letters to the employees who had signed authorization cards inviting them to come and bring their fellow workers to a union meeting the following Wednesday afternoon, November 4, at 5:30 p.m. On Novem- ber 3, Superintendent Ford mentioned the forthcoming meeting to Sister Vincent 2 Although questioned about numerous other specific conversations, Ford was not ques- tioned specifically about this conversation He testified generally that he had never asked Horton whether she had signed a card and become a member of the Union Such a general denial, In my opinion is not sufficient to outweigh Horton's specific testimony concerning this conversation a Ford denied having made the foregoing statement For the reasons set forth in sec- tion B, above, I credit Horton's testimonv The facts concerning these and other con- versations between Ford and Horton, and also Forelady Branch, another of Wasleff's supervisors, are included, not as evidence of unfair labor practices on Ford's part in and of themselves, but because they are relevant on the issue of the discriminatory discharges alleged in the complaint. 4 Although Ford denied questioning Bonier and Brooks about signing union cards, lie did not deny interrogating Miller in this respect The testimony of Bonier and Brooks is consistent with that of Horton that Ford also told her not to sign a union card. I do not credit Fora's denial 5 Ford was not specifically questioned about having stated that employees signing cards "would be fired " He did testify, in response to questioning by Wasleff's counsel, that lie had not participated in any conferences with Horton and Sister Vincent at which union matters such as signing cards and attending meetings, were discussed Horton's testi- mony, above set forth, is Inferentially corroborated by that of Forelady Branch, who stated that Ford on a subsequent date told her that "if any one had joined the Union that lie was going to fire them " In view of this fact and my general reservations about Ford's credibility, I do not credit his ambiguous denial of Horton's testimony above set forth, 6 Ford denied telling Branch either that he was going to fire Sykes and Cray or that lie had fired them because they had signed union cards Sykes and Gray were in fact dis- charged and reinstated about the time of the conversation testified to by Branch and Horton I accept the mutually corroborative testimony of Branch and Horton stated in the text above. ALEX WASLEFF BUILDING MAINTENANCE COMPANY 55 in the housekeeping office in the presence of Assistant Forelady Horton . He said he would try to keep the maids overtime so that they could not attend the meeting. Sister Vincent informed him that he could not do that? Before the meeting Superintendent Ford asked Forelady Branch if she planned to attend the meeting and also whether she knew anyone else who was going to at- tend.8 The meeting was held as planned on Wednesday , November 4. Among other employees attending were Penny Powell , Juanita Bouier, and Lula Booth, whose subsequent terminations are involved in this case. When Juanita Bouier reported for work the next morning , she observed a male employee of the hospital , who had attended the union meeting the night before, sitting at the desk alongside of Sister Vincent. As Bouier walked in the employee motioned toward Bouier in such a manner as to point her out. Later that same day, Sister Vincent had a conversation with Superintendent Ford in the presence of Assistant Forelady Horton in which she named various employees attending the union meeting, including Penny Powell and Lula Booth.9 The next day or two, Assistant Forelady Horton overheard Ford saying over the telephone in the house- keeping office that "he knew that Powell had gone to the union meeting, but he couldn't do anything about it because she had been there with the Sisters for so long." 10 3. The discharge of Penny Powell on November 9 When Wasleff took over the cleaning operations at the hospital in 1957, the hos- pital authorities requested Wasleff to keep an employee in the supply room full time to issue supplies and cleaning equipment to other employees . Penny Powell, who had been with the hospital almost 16 years , was in charge of the supply room when Wasleff took over. Wasleff had Powell continue to act in this capacity. The maids stored their supply carts in the supply room. It was Powell's job to see to it that the baskets which the carts carried were kept filled with the necessary clean- ing materials , and to issue supplies to the maids when they ran out in the course of the day . The maids came in and obtained their carts at the beginning of their shift and returned them to the supply room at the end of the shift . At all other times, with the exception of the regular 15-minute coffee breaks when the maids were allowed in the supply room, the maids were instructed not to enter the supply room. Powell had been directed on various occasions to keep the maids out of the supply room, except for the purposes mentioned above. However, she experienced difficulty in this regard. Consequently a bar had been placed across the open doorway to the supply room . Powell continued to have difficulty keeping the maids out of the supply room, and was cautioned numerous times by Superintendent Ford about the importance of keeping the maids out of the supply room . On one occasion Ford suggested that she give him the names of the girls violating the instructions to stay out of the supply room. On November 9, shortly after the morning coffee break was over, Superintendent Ford passed by the supply room and observed Clifford Hampton in the supply room. Hampton had only been employed at the hospital for a week or so. Ford passed on by. After Hampton left, Ford returned and the following ensued, ac- cording to Ford's credited testimony: I said, "Penny, haven't you been directed not to let girls into this supply room.?" She said, "I have. I said "Penny , I am afraid that you are all through." I said, "You can hit the clock right now. You can dress first and I will pay you up to 10:30." '+ Ford denied having made any such statement Sister Vincent was not called as a witness at the hearing On cross-examination Horton elaborated , stating that Ford had said lie planned to have the early shift come in late and work late, so too much overtime would not be involved . As hereinabove found, Horton impressed me as a credible witness and I credit her testimony. s Ford denied that be asked Branch if she was going to the meeting and testified that he did not hear about the meeting until after the girls had left the building I do not credit Ford 's denial 9 This is the credited testimony of Assistant Forelady Horton . Superintendent Ford at first denied this. However, after being confronted with an affidavit he had earlier given a. Board field examiner , Ford recalled that Sister Vincent had named Penny Powell and certiin others , as attending the meeting. i This is Morton 's undenied and credited testimony. 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As Ford passed the supply room the first time Powell told Hampton , who had come in and looked in her basket , that she was not supposed to come in the supply room and to go on out . Hampton was admittedly not disciplined in any way for entering the supply room on this occasion. As soon as Forelady Branch heard that Powell had been discharged she asked Ford the reason for the discharge. His reply, according to Branch, was "it was the Sisters' order to fire Penny, because she had signed a union card ." Ford did not explicitly deny having made this statement , although the inference from his testi- mony is that he did not make it.ii Ford 's making of such a statement , in my opinion, is consistent with the logic of the entire situation. Sister Vincent's action in re- porting to him the names of some of the employees attending the union meeting is consistent with an unsympathetic attitude on her part to union activities on the part of Wasleff's maids. As stated below, Ford's own testimony establishes that Wasleff complied with the hospital authorities' requests for transfers of employees without question. Compliance with a request for a discharge , therefore, would not be il- logical . Under all the circumstances, I find that Ford made the above-quoted state- ment to Branch. Upon the discharge of Penny Powell , Lula Booth , another of the union supporters, was transferred from her job as a maid to Powell's position in the supply room. Thereafter, according to Forelady Branch, Superintendent Ford stated to her that- he was putting Lula down there because she might make the same mistake that Penny had made, and he could get rid of her by telling her she made a mistake in letting girls come into the supply room, and that he wouldn't have to tell her that she was fired because of the Union. Superintendent Ford denied making this statement. I find, however, in accord- ance with Branch's testimony, that Ford made a statement , with reference to Booth's transfer to the supply room, to the effect that perhaps she would make the same mistake that Penny had made. 4. The termination of Juanita Bouier 's employment Bouier had been employed by Wasleff for about a year . She had signed a union card when the union organizers first came out to the hospital , and attended the union meeting on November 4. Thereafter, as noted above, she was questioned by Ford about signing a union card and was told by Ford not to do so. At the beginning of her shift about a week later Forelady Branch transferred Bouier to another floor. When Bouier asked why she could not continue working on her regular floor, Branch explained that a new maid had had difficulties with one of the patients on the floor to which Bouier was being transferred and that con- sequently she was having the girls trade floors . At noon that same day Branch again transferred Bouier, this time assigning her to washing windows and doors in the corridors. When Bouier asked Branch what was wrong, "why they were chang- ing me so much," Branch replied that she did not know, that "she had to do what she was told to do." According to Superintendent Ford, this was a routine transfer, made without consulting him by Forelady Branch, at the request of the hospital authorities . Ford further testified that such transfers were the responsibility of the forelady, and that he did not interfere in such matters. Although Ford testified that such a transfer was not unusual, I do not credit his testimony, Forelady Branch, was was directly in charge of the maids and who nor- mally effected transfers , testified that such transfers were unusual , and that they usually would be made only in emergency situations when Wasleff was short of help, which was not the case at the time Bouier was transferred . I credit Branch's testimony in this regard. Bouier did not report for work the next morning, but accompanied her son to school for a conference with his teacher in compliance with the teacher 's request. Although Bouier tried to reach her supervisors at the hospital by telephone to in- form them of her absence, she was unsuccessful in reaching them. "Ford was not questioned as to whether he had informed Powell that it was the Sisters' order to discharge Penny because she had signed a card. Instead Ford was asked whether he had told Branch that he had fired Powell because she had signed a member- ship application . He denied having made such a statement. While Counsel 's failure to frame the question so as to elicit an explicit denial or admission of Branch 's testimony above set forth may have been inadvertent , on the other hand, Ford may not have been able truthfully to deny Branch's precise testimony. ALEX WASLEFF BUILDING MAINTENANCE COMPANY 57 When Bouier completed her discussions at the school, she went to the hospital, arriving about 2 p.m., near the end of her shift. Bouier encountered Forelady Branch in the hall and had a short discussion with her. There is considerable con- flict in the testimony as to what was said by Bouier to Branch on this occasion. When first asked about this conversation Bouier testified as follows: I asked her was Mr. Ford around, was he there. And she said, "No." That he wasn't there. So, I told her that if I couldn't talk to him, or get straightened out on the working proposition, that I had decided I was going to quit. So, she told me that my check was already there. According to Bouier, she then obtained her lock and keys, turned them in at the housekeeping office, and was given her deposit on the lock and key and her check, which was marked "Final." On cross-examination Bouier was asked the following question: "Now, as a matter of fact did you not tell Delores Branch that you quit because you were being pushed around?" Bouier's reply was, "No, I said I was going to quit because I wanted to talk to Mr. Ford." When asked again "Didn't you tell Delores Branch that you quit", Bouier answered "Yes, I told her I was going to quit. Yes, I told her I was going to quit." Forelady Branch testified as follows about this conversation: Juanita came out to the hospital ; it was in the afternoon, and I asked her what she was doing there. She said, "I come out because I am quitting." She says, "I don't like the way I am being pushed around." And she wanted to see Mr. Ford; and I told her Mr. Ford wasn't in. I credit Forelady Branch's unequivocal testimony that Bouier quit her job. As stated above, Branch was no longer in the employ of Wasleff at the time of the hearing. Branch's testimony generally was adverse to Wasleff and favorable to the union members here involved . I see no reason to conclude that in this instance Branch was shading her testimony in favor of Wasleff. Furthermore , Bouier's testi- mony on cross-examination somewhat weakens the force of her testimony on direct that she told Branch she was going to quit of she could not settle matters with Ford about being transferred from job to job. For these reasons I conclude that Bouier quit her job.12 After the second transfer of Bouier, Ford had a conversation with Forelady Branch in the housekeeping office. According to Branch's testimony, Ford stated as follows: .. , he was transferring the girls around like that. It might make them mad to switch; that they would be forced to quit. And if they didn't like the way he was doing things, that they would quit.. . .13 5. The discharge of Lula Booth on December 15 Lula Booth was first employed at the hospital as a maid in 1950 and worked there steadily until her discharge on December 15, 1959. Both Forelady Branch and Assistant Forelady Blackledge, who directly supervised Booth's work, testified that she was a good worker. Her work had never been criticized prior to the occa- sion of her discharge.14 Booth was one of the employees who signed a union card and gave it back to the organizers on October 26, when they first appeared outside of the hospital. Booth attended the union meeting on November 4 and the next day had discussions about it with other employees in the hospital. As found above, Superintendent Ford was cognizant of her attendance at the union meeting, Sister Vincent having told him about it the day after the meeting. Booth had worked as a maid on the east side of the hospital on the third floor for 5 years at the time she was transferred to Powell's job in the supply room on November 9. According to Superintendent Ford, he selected Lula Booth to replace Penny Powell in the supply room, after consulting with Sister Vincent, the house- keeper for the hospital, and with Forelady Branch, As Ford testified, Sister Vincent and the hospital administration wanted an "old" employee there, and Booth was chosen because of her many years' experience at the hospital. 1a The General Counsel's contention ithat in the circumstances of the case Bouier's termination amounts to a constructive discharge in violation of the Act is discussed hereinafter in section D, 3. "Ford denied having made such a statement . I credit Branch's testimony. 14 I do not credit Ford's testimony to the contrary. 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Booth worked for 3 weeks in the supply room without giving any cause for com- plaint, At the end of this period Booth was transferred to the third floor west as a maid.15 Booth was replaced in the supply room by Frolence Banks who had only worked in the hospital for about 6 months. Superintendent Ford was the only witness who testified concerning the circum- stances of this transfer. As noted above, Ford testified that responsibility for trans- ferring the maids rested with Forelady Branch, after consulting with Sister Vincent. However, when asked to explain the circumstances of Booth's transfer to the third floor west, Ford testified as follows: I consulted with Sister Vincent again without Mary Branch's sitting in on it, to get her approval, to put Lula Booth back on the floor. She had been an older employee, and was more familiar with the hospital. And Sister Vincent okayed it. And she was transferred to the floor. On cross-examination Ford testified: I do not remember in detail what the basis was for the transfer. But as cases came up, and we wanted a certain party on a certain-as I have stated before, on a certain floor. We consulted with Sister Vincent before we made any changed-any changes. In response to the query "who brought up Lula Booth's name at this time," Ford responded, "I do not know who brought it up, if it were by Sister Vincent or by myself or Mary Branch." On its face Ford's testimony concerning the reason for Booth's transfer to the west wing as a maid is self-contradictory and confused. The only understandable reason suggested in his testimony was that Booth was an older employee and more familiar with the hospital. But this was the precise reason she was chosen for the supply room job, according to Ford's own testimony. And she was replaced in the supply room by an employee having only 6 months' experience at the hospital. In the circumstances I cannot credit Ford's testimony concerning the reasons for Booth's second transfer. On December 14, Forelady Branch reported to Superintendent Ford that some of the girls were not doing their work properly. As a result of this report. Ford and Foreman Swimms accompanied Branch on an inspection tour of the hospital. They reached the area covered by Lula Booth between 2 and 2:30 p.m. Booth's shift continued until 3:30 p m.1e Finding dust on the tops of mirrors, window ledges, and doorway screens and in the utility area Ford commented about the dirty conditions to Foreman Swimms and Forelady Branch. The latter, agreeing that the place was dirty, suggested that perhaps Booth had not yet reached this particular area.17 Ford's reply according to Branch's undenied and credited testimony, was "I finally got something on Lula Booth. I can fire her now." Ford left instructions with Swimms that Booth was to be discharged. However, Ford did not tell Booth that she was being discharged. He did point out to her a screen which was dirty, and told her: "Look there, you know better than that . get this cleaned up." Booth replied, according to her testimony which I credit, "I haven't got to the room yet." The next morning when Booth reported for work she was told by Forelady Branch to go in the office and pick up her time. In the office Foreman Swimms called Superintendent Ford, and had him talk to Booth. Both Booth and Ford are in substantial agreement as to what was said in this telephone conversation. In Booth's words, Ford said, It seems like that I was trying to give him a hard time. I wasn't half doing my work. He said, "Everything was dusty and dirty. The screen was-the screen wasn't dusted and all." I said, "Wait a minute now, Mr. Ford, I have been here too long, nine years, and you are the first one that ever complained about me half doing my work." . . . I told him, "I didn't do things like that." 18 At the end of this conversation Forelady Branch gave Booth her paycheck and she left the hospital. 15 The area of the west wing was a little larger than that of the east wing, where Booth had previously worked 16 Although Booth's shift did not end until 3 30 pm normally she would have com- pleted her work by 3 p in as the employees were given one-half hour to change their clothes before the end of the shift 17I do not credit Ford's denial of this testimony. 18 At the hearing Booth explained that Ford "noticed that I had been there a long time, lie knew I could do good work, and that he thought I was trying to take-to give him the business, to hurt them." ALEX WASLEFF BUILDING MAINTENANCE COMPANY C. Conclusions 59 1. Powell Penny Powell attended the union meeting on November 4. The fact of her attendance at the meeting was admittedly reported to Superintendent Ford by Sister Vincent on November 5. Several working days later Ford discharged Powell. Ford was opposed to the Union, as is evidenced by his various remarks to the fore- ladies, including the statement that employees signing union cards would be dis- charged. Ford in fact did discharge Sykes and Gray because of their having signed union cards, as he confessed to Foreladies Branch and Horton, but reinstated them upon being advised that such discharges were improper. After Powell's dis- charge, Ford commented to Forelady Branch that the "Sisters" had issued orders to discharge Powell because she had signed a union card. Wasleff contends that Powell was discharged for violating its instruction to her not to permit employees to enter the supply room. It is not quite clear what Wasleff expected from Powell by way of compliance with the rule. She could not physically block the door all day long and get her work done. If any employee slipped past the bar, she could do no more than to tell the employee that she was not supposed to be in there. This was what Powell was doing when Ford passed and observed Hampton in the supply room with her . Hampton's entering the room was a violation of the instructions to employees to stay out of the supply room except at certain specified times. Yet Hampton was not disciplined in any way for entering the supply room. This unequal treatment of Powell and Hampton suggest that Ford was less concerned enforcing the rule than with getting rid of Powell. Horton's testimony concerning Ford's remarks over the telephone to the effect that he knew Powell had attended the union meeting but that he could not do anything about it because she had been employed at the hospital for so long indicates that Ford was looking for an excuse for discharging Powell. Under all the circum- stances I conclude that Hampton's presence in the supply room on November 9 furnished Ford with the excuse he was looking for, and that he seized upon it in order to get rid of one of the known union supporters. 2. Booth Booth attended the November 4 union meeting. Ford was informed of this fact the following day. She was transferred to the supply room when Powell was dis- charged. After satisfactorily performing her duties in the supply room for 3 weeks, Booth was transferred back to a job as a maid, not to her former location in the east wing but to a larger area in the west wing. Ford's testimony concerning the reason for this transfer, as found above, was confused, self-contradictory, and unworthy of belief. About 2 weeks after Booth's second transfer, Ford went on a tour of inspection of the entire hospital. Finding dust in the area assigned to Booth, he promptly decided to discharge her. Disregarding Forelady Branch's suggestion that perhaps Booth had not reached this area, Ford commented, accord- ing to Branch's undenied testimony, "I finally got something on Lula Booth. I can fire her now." When Ford reprimanded Booth because of the dirt which he had found, she protested that she had not yet cleaned that particular area. Ford ignored Booth's protest and issued orders that her final check be made out. This was the first time in 9 years at the hospital that Booth's work was criticized. Upon the facts summarized above I cannot accept Wasleff's contention that it discharged Booth because of her failure to do her work properly. Rather I conclude that, as in the case of Powell, Ford was looking for an opportunity to discharge her because of her support of the Union, and that he utilized the inspection tour incident as an excuse for so doing. 3. Bouier _ I have found that Bouier was not discharged but voluntarily quit her job on November 12. The General Counsel contends that Bouier's quitting under the circumstances of this case should be regarded as a constructive discharge. This contention is based on the fact that Bouier was transferred from one job to another twice on November 11, and the further fact that such transfers were unusual. I cannot accept the General Counsel' s contention. Bouier's first transfer on November 11 was merely a transfer to another floor. Her duties as a maid were substantially the same. When Bouier inquired the reason for this transfer, Forelady Branch informed her that the maid on the floor to which she was being transferred had had differences with one of the patients and wished to be sent to another floor. This, in my opinion, was a reasonable explanation, and a 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD transfer under such circumstances should not have caused any concern on Bouier's part. Bouier's second transfer that day to the job of washing doors and windows -in the corridors might reasonably have been viewed differently by Bouier , since such transfers were unusual . However, there is no evidence that the corridor job was any more difficult or distasteful than Bouier's regular job as a maid . In fact there is testimony to the contrary. In all of the cases relied upon by the General Counsel in his brief the employees held to have been constructively discharged had been placed in definitely less desirable jobs. Here, Bouier quit after being retransferred just once to a job which was no less desirable than her own . Had Bouier been repeatedly shifted about in the plant in such a way as to manifest hostility to her, perhaps my conclusion would be different . But in my opinion, this case does not reveal the kind of discriminatory treatment which justifies an employee in quitting her job in protest. Accordingly, the allegations of the complaint based on the termination of Juanita Bouier will be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate , and substantial relation to trade, traffic, and commerce among the several States , and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that Wasleff has engaged in unfair labor practices in its Mercy Hos- pital operations, I will direct them to cease and desist from the unfair labor practices herein found, and to take certain affirmative action designed to effectuate the policies of the Act. It will also be recommended that Wasleff offer Penny Powell and Lula Booth im- mediate and full reinstatement to their former or substantially equivalent positions without loss of seniority or other rights and privileges, and make each of them whole for any loss of pay she may have suffered by payment to her of a sum of money equal to that which she would normally have earned as wages from the date of the discrimi- nation to the date of the offer of reinstatement, less her net earnings during said period , and in a manner consistent with Board policy set out in F. W. Woolworth Company, 90 NLRB 289. I shall recommend also that Wasleff preserve and make available to the Board or its agents, upon request, for examination and copying , all payroll and other records necessary to analyze the amounts of backpay due under the terms of my recommended order. The unfair labor practices herein found are such as to indicate an attitude of oppo- sition to the purposes of the Act generally , and accordingly the commission of these and other unfair labor practices in the future is reasonably to be anticipated from such past conduct. In these circumstances , the preventive purposes of the Act may be thwarted unless the remedy is coextensive with the threat . To effectuate the policies of the Act , therefore, it will be recommended that Wasleff cease and desist from infringing in any manner upon the statutory rights of its employees at Mercy Hospital. Upon the foregoing findings and the entire record, and pursuant to Section 10(c) of the Act, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. By discharging Penny Powell on November 9, 1959, and Lula Booth on Decem- ber 15, 1959, Wasleff has discriminated in regard to the hire and tenure of employ- ment of the above-named employees, thereby discouraging membership in the Union, in violation of Section 8(a) (3) of the Act. 3. By engaging in the aforesaid unfair labor practices, Wasleff has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. 5. Wasleff has not engaged in unfair labor practices in connection with the termi- nation of Juanita Bouier's employment. (Recommendations omitted from publication.] SOUTH BAY DAILY BREEZE APPENDIX 61 NOTICE TO ALL EMPLOYEES Pursuant to a recommended order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Rela- tions Act, as amended , we hereby notify our employees that: WE WILL NOT discourage membership in Warehouse and Mail Order Em- ployees Union, Local 743, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or in any other labor organization of our employees by discharging or in any other manner discriminating against them in regard to their hire and tenure of employment. WE WILL NOT in any other manner interfere with , restrain or coerce our employees in the exercise of the right of self-organization , to form labor organi- zations, to join or assist Warehouse and Mail Order Employees Union, Local 743, International Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion as guaranteed in Section 7 of the Act, or to refrain from any and all such activities except as authorized in Section 8 (a) (3) of the Act, as amended. WE WILL offer Penny Powell and Lula Booth immediate and full reinstate- ment to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges, and will make them whole for any loss of earnings suffered as a result of our discrimination against them. All our employees are free to become or remain , or to refrain from becoming or remaining, members of Warehouse and Mail Order Employees Union , Local 743, International Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America, or any other labor organization. ALEX WASLEFF BUILDING MAINTENANCE COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Southern California Associated Newspapers, a corporation d/b/a South Bay Daily Breeze and David Clark. Case No. 01-CA- 3850. February 9, 1961 DECISION AND ORDER On June 8, 1960, Trial Examiner Eugene K. Kennedy issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety as set forth in the copy of the Intermediate Report at- tached hereto. Thereafter, the General Counsel and Respondent filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its power in connection with this case to a three-member panel [Members Rodgers, Fanning, and Kimball]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The 130 NLRB No. 14.