Performance, Inc.

618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Performance, Inc. and Building Service Employees' International Union, Local 254, AFL-CIO. Case 1-CA-8783 i January 22, 1974 DECISION AND ORDER By MEMBERS JENKINS, KENNEDY, AND PENELLO On November 19, 1973, Administrative Law Judge Herbert Silberman issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Performance, Inc., Cambridge, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order. ' Case 1-RC-12495 was originally consolidated with the instant case for the resolution of certain issues arising with respect to an election conducted pursuant to an agreement for consent election Prior to the transfer of Case I-CA-8783 to the Board, Case I-RC-12495 was severed and remanded to the Regional Director for further appropriate action DECISION AND REPORT AND RECOMMENDATIONS WITH RESPECT TO OBJECTIONS TO AN ELECTION HERBERT SILBERMAN, Administrative Law Judge: These consolidated proceedings were heard in Boston, Massachu- setts, on September 10, 11, 12, and 13, 1973. Following the close of the hearing briefs were filed by General Counsel and the Employer. The Pleadings The amended complaint in Case I-CA-8783, issued on June 19, 1973, as further amended at the hearing, alleges that Performance, Inc., herein sometimes called the Respondent, the Employer, or the Company, has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) and Section 2(6) and (7) of the National Labor Relations Act, as amended. The complaint is based upon charges and amended charges filed on January 10 and April 26, 1973, respectively, by Building Service Employees' International Union, Local 254, AFL-CIO, herein referred to as the Union. In substance, the amended complaint alleges that the Em- ployer unlawfully discharged Joseph DeGuglielmo on January 2, 1973, and Charles Harak on January 5, 1973, because they joined and assisted the Union; that since January 3, 1973, the Employer unlawfully has refused to recognize and to bargain with the Union as the designated representative of the employees in a described appropriate unit; and that by reason of the foregoing and other conduct set forth in the complaint the Company has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Among other things, the complaint in effect requests as a remedy in these proceedings that an Order issue directing the Employer to bargain collectively with the Union. With respect to the representation proceeding, Case i-RC-12495: i Pursuant to an agreement for consent election, executed on January 24, 1973, and approved on January 26, 1973, an election was conducted on February 22, 1973, among the employees in the following unit: All full and regular part-time cleaners, janitors, floor polishers employed by the Employer at Harvard University, Cambridge, Massachusetts, but excluding all office clericals, guards and supervisors as defined in the Act. The tally of ballots shows that of approximately 48 eligible voters, 14 votes were cast for the Union, 19 against the Union, 18 ballots were challenged, and I ballot was declared void. The challenged ballots were sufficient in number to affect the results of the election. On February 28, 1973, the Union filed timely objections to conduct affecting the results of the election. The Regional Director caused an investigation of the challenges and the objections to be made and on May 18, 1973, issued his report thereon and a revised tally of ballots. In his report, the Regional Director sustained the challenges to 13 ballots. No ruling was made with respect to the remaining five challenged ballots because they were no longer determinative of the results of the election. The Regional Director in his report overruled all objections to the election except the following: (1) objections based on the fact that Joseph DeGuglielmo and Charles Harak were discharged on January 2 and 5, 1973, respectively, for reasons that would constitute violations of Section 8(a)(1) and (3) of the Act, and (2) objections based upon the allegation that during the month of January 1973, the Employer gave three separate pay increases totaling 70 cents per hour to Mary DeGuglielmo which were timed so i The representation petition was filed on January 2, 1973. 208 NLRB No. 100 PERFORMANCE, INC. as to impinge upon her freedom of choice in the representation election. In respect to the latter objection the Employer asserts that Mary DeGuglielmo is a supervisor, and not an employee, within the meaning of Section 2(11) of the Act. As the issues raised by these objections are substantially the same as the issues in Case 1-CA-8783 and as the resolution of these issues will require determinations of credibility, the Regional Director directed a hearing on the objections which he consolidated with the hearing in Case I-CA-8783. The Regional Director also directed that upon the issuance of the Administrative Law Judge's Decision the representation case shall be severed from the unfair labor practice proceeding and remanded to the Regional Director for further action in accordance with Section 102.62(a) and Section 102.69 of the Board's Rules and Regulations and article 5 of the agreement for consent election. Upon the entire record in these cases and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF FHE FMPLOYER The Employer, a Delaware corporation which maintains its principal office and place of business in Westfield, Massachusetts, is engaged in providing cleaning and maintenance service to institutions and commercial build- ings, including certain buildings of Harvard University located in Cambridge, Massachusetts, which are the only facilities involved in this case. Respondent in the course and conduct of its business performs services in various States of the United States including the Commonwealth of Massachusetts. It annually receives revenues in excess of $50,000 for services performed outside the Commonwealth of Massachusetts. The Employer admits, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Building Service Employees' International Union, Local 254, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background Respondent performs building custodial services on a contract basis. In January 1969 it began doing work for Harvard University. Initially the Company serviced two buildings; then in the fall of 1972 the number was doubled. Except for the project manager, John Pepernik, all company personnel who work at the Harvard buildings are part-time employees and most are high school or college students.2 A day's shift, which begins about 5 p.m., is from 4 to 5 hours. To accommodate the needs of its student- employees the Company has flexible arrangements regard- 2 The Company does not employ students who attend Harvard University 3 Harak testified that his immediate supervisor, Patel, informed him that 619 ing the number of days and the particular days they work each week. The employees also are permitted extended unpaid vacations, which generally correspond with their school vacations. Thus, Claudia McNulty, whose testimo- ny is uncontradicted. testified that she was hired in October 1971 on the basis that she would work 3 or 4 days each week. According to McNulty, Pepernik told her that the Company "ran very loosely and that the days that I work, I could determine myself." Similarly, Charles Harak testified that when he was hired he told Pepernik. "1 would be working three nights a week or some weeks two nights if I had a lot of school work. He said that was fine, that the company was very flexible about that kind of thing and also they would he flexible about when I could leave for vacation." According to Harak, he worked 2 or 3 days each week choosing the days to meet his convenience.3 Between mid-November 1972 and mid-January 1973, when the events which give rise to these proceedings occurred, the Company employed about 56 persons to clean the Harvard buildings. John Pepernik, the project manager, was in overall charge. He reported to Harold Kraus, a vice president of the Company, whose offices are in Westfield, Massachusetts, and in Connecticut. Subordi- nate to Pepernik were the supervisors for each building, namely: Patel-Lund Hall Ron Fantasia-Roscoe Pound Law School Martin Zafran-William James Hall Robert Russo-Science Center Kraus testified that the supervisors were responsible for getting the daily cleaning done and for protecting the property of both Harvard University and the Company. A uniform rate of $1.90 per hour was paid the rank-and- file employees while the supervisors were paid $2.50 per hour. In December 1972, the Company established the position of assistant supervisor at the rate of $2.40 per hour and three appointments to the position were made. An assistant supervisor was assigned to each building except Roscoe Pound Law School which was the smallest of the four buildings that the Company had under contract. An issue is whether Mary DeGuglielmo, who was promoted to the position of assistant supervisor in late December, is a supervisor within the meaning of Section 2(11) of the Act. B. Status of Mary DeGuglielmo Mary DeGuglielmo began working for the Company in January 1972. On December 22, 1972, Pepernik informed her that she was being promoted to assistant supervisor to work in Gund Hall under Patel, effective upon her return from her Christmas vacation on December 26. According to Mary DeGuglielmo, Pepernik did not then define her duties as assistant supervisor. After she assumed the position and it appeared to her that Patel was not permitting her to exercise the responsibilities she believed attached to the job, she telephoned Pepernik and asked him to define her duties. Pepernik informed her that she was to unlock the doors of the rooms to be cleaned; after she was satisfied that the work was done properly she was it was unnecessary to give notice as to the days he intended to work. Patel told him, "Just chow up." 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to lock the doors; she was to guard against anything being stolen; and "Patel will take care of everything else." 4 She inquired if she had authority to schedule breaks, to issue orders regarding work, or to discipline employees. Pepernik told her that Patel would attend to such matters, that she was "to be sure the rooms were clean and nothing was stolen." Mary DeGughelmo testified that as an assistant supervi- sor she directed three or four employees by instructing them to clean rooms and watching to be sure that they didn't steal. If any work was overlooked or improperly done she would instruct a member of her group to correct the matter. As assistant supervisor she did manual work about half her working time which, however, was limited to dusting. Mary DeGuglielmo testified without contradiction that Patel, not she, gave the employees in her work group their specific task assignments which were removal of trash, dry mopping, or dusting. Similarly, she testified that she did not schedule employees' hours of work, nor their break- times, nor did she give them time off, nor hire, fire, discipline, or reprimand employees. Furthermore, she was never told that she had such authority. On a number of occasions she requested Patel to remove employees with whom she was dissatisfied from her crew and in several such instances Patel effected substitutions. According to Mary DeGuglielmo's uncontradicted testimony, it was Patel's daily practice about midpoint during each work shift and at the end of each shift to inspect the rooms which were cleaned by her crew.5 Despite the fact that Mary DeGuglielmo was paid only 10 cents per hour less than Patel and the other building supervisors, the evidence establishes that as an assistant supervisor her principal function was to act as an inspector and her authority over other employees was limited to issuing routine directions to members of her work crew to correct the oversights her inspections uncovered .6 Accord- ingly, I find that Mary DeGuglielmo was not a supervisor as the tern is defined in Section 2(11) of the Act. When Pepernik informed Mary DeGuglielmo of her promotion to assistant supervisor he also said her wages would be increased from $1.90 to $2.25 per hour. However, it was increased by Kraus to $2.40 per hour, which was the rate then being paid to the other assistant supervisors.7 On January 29, 1973, her wage rate as well as that of the other assistant supervisors was raised to $2.60. The complaint alleges that these wage increases were given to Mary DeGugltelmo to influence her vote in the election. I find no 4 According to Pepernik, on December 22, when he informed Mary DeGuglielmo about her promotion, he "told her how I wanted the buildings cleaned for security purposes " She was to open the doors to two or three rooms After they were cleaned to her satisfaction and everything was secure she was to lock the doors and then repeat the process for the next group of rooms To the extent that there are conflicts between Pepermk's and Mary DeGughelmo's testimony I credit Mary DeGugltelmo 5 Pepernik testified that Mary DeGuglielmo had authority to make recommendations regarding the discipline of employees When asked what he had told her in that respect , he testified that a few days after she began her new position he said to her, "If you have any problems, somebody doesn't want to do something, come to me or go to Mr. Patel with whatever it is If you want to get rid of somebody, if somebody does something, let me know and I will see what I can do about it" This instruction did not constitute a delegation of authority to make effective recommendations within the meaning of Section 2(l 1) of the Act support in the record for this allegation and recommend that it be dismissed. C. The Organizational Campaign Following an anonymous telephone call suggesting that it would be a good idea for the Union to organize the Company's employees, Frederick J. Cadigan, an assistant business agent of the Union, went to Harvard University on November 27 or 28, 1972, where he spoke with John Pepernik. Cadigan informed Pepernik that he intended to organize the Company's employees. Several times thereaf- ter Cadigan and James Moore, another union business agent, visited the buildings at Harvard University which the Company had under contract and spoke with employ- ees about the Union. On December 6, 1972, Charles Harak telephoned Cadigan and arranged to meet with him the next day. After a lengthy discussion Harak volunteered to assist the Union in its campaign. Cadigan suggested that it would be advisable to form an organizing committee among the employees. Harak offered to be a member of the committee and subsequently suggested Joseph DeGugliel- mo, Mary DeGuglielmo, and Claudia McNulty as other members of the committee. These four became the most active advocates of the Union among the Company's employees. John Pepernik advised Harold Kraus of Cadigan's visits and kept Kraus informed of the developments in the Union's organizational campaign. With the assistance of Attorney Thompson, Pepernik drafted a letter individually addressed to the Company's employees which was distrib- uted on December 1, 1972. The letter purports to reflect the Company's attitude regarding the Union' s organiza- tional campaign. It points out that the Company "provides good employment with flexible hours at fair rates of pay," that "we are reasonable on time-off requests and humane in our relationship with our employees," and that a union would disrupt the informality and personal approach between the Company and its employees. The letter also mentions that if the Union obtains authorization cards from a majority it may seek recognition without an election. It concludes with a personal request "to consider our good relationship of the past and refuse to sign any Union card." On December 4, 1972, Kraus held a meeting with the Company's supervisory employees in Cambridge at which, among other things, they discussed what the supervisors 6 In late January or early February 1973 Kraus, together with Company Attorney Thompson and Peperntk, met with Mary DeGughelmo for the specific purpose of discussing her status It was their position that she was a supervisor and Kraus remarked that as she was a supervisor he objected to her talking about the Union During that meeting Mary DeGuglielmo complained about an employee Kraus asked for her recommendation and she said the employee should be suspended for a week discharged. discharged, Kraus suggested that she . Patel, and Pepermk should meet and reach a decision in the matter Ultimately, the employee was suspended for 2 days This single incident does not establish that Mary DeGughelmo had the authority to make effective recommendations regarding the discipline of employees 7 Mary DeGughelmo testified that about 2 weeks after she was first informed of her promotion. Pepermk told her that her rate would be $2 40 per hour. PERFORMANCE, INC. 621 could do and could not do under the law in connection with the Union's campaign. Mary DeGuglielmo testified that in the first week of December 1972 she had a conversation with John Pepernik who informed her about the Union's organizational effort. He advised DeGughelmo that union representation would be bad for personal relationships between the employees and management and said, "[I ]f you hear anything going on about the union or whatever is involved, please tell me about it." Mary DeGuglielmo agreed. D. The Discharge of Joseph DeGuglielmo,. Joseph DeGuglielmo was one of the four employees who actively promoted the Union and solicited authorization cards. He began his employment in July 1971. DeGugliel- mo testified that in the summer of 1972 he arranged with Pepernik that he would no longer be required to sweep certain stairwells in William James Hall. Nevertheless, on December 28 Pepernik directed him to sweep those stairwells. When DeGuglielmo objected to the assignment because of their prior agreement, Pepernik said that he did not care about the agreement and that DeGuglielmo was to clean the stairwells. DeGuglielmo continued to protest the assignment until Pepernik said, "If you don't want to do them, then go home." DeGuglielmo left the premises. About a half hour later DeGughelmo returned and again spoke with Pepernik. DeGuglielmo apologized for what he had done. Pepernik accepted the apology and told DeGuglielmo to return to his job. The two then began to discuss the Union's organizational effort. DeGuglielmo stated that the employees had become interested in the Union because many had worked for more than a year and a half and had received no increase in wages and because the employees were not being given a minimum of 20 hours of work per week. Pepernik said that because of the Union's campaign the Company was unable to do anything about these complaints. Pepernik then described what might happen if a union became the employees' representative. He said that he would no longer be able to hire students, that the friendly relationships would end, and that "things would be strict." Also, during their conversation, DeGuglielmo told Pepernik that he was interested in what the Union had to say. Pepernik responded that he was aware of this because he knew that when DeGuglielmo had left the premises earlier that evening after their quarrel DeGuglielmo had gone to Harvard Square to talk with the union agent and he also knew that DeGuglielmo had had other meetings and conversations with the union agent in Harvard Square. After they finished their conversation, according to DeGuglielmo, he returned to work for the balance of the shift. DeGuglielmo was paid as if he had worked the full shift on the night of December 28. The next night, December 29, DeGuglielmo reported for work at the usual time. DeGuglielmo testified that he believes Pepernik saw him when he punched in on the 10th floor of William James Hall where the timeclock is kept. Later that evening, while he was washing the windows in the lobby of the building, Pepernik walked through the lobby with two other people, Jack Brooks and Mike Collins, and, according to DeGuglielmo, Pepernik saw him washing the windows. DeGuglielmo worked a full shift on the night of December 29 doing his normal cleaning tasks. No other employee was assigned in his place which would have happened had his absence been anticipated. During that evening Supervisor - Martin Zafran mentioned to DeGuglielmo that Zafran thought DeGuglielmo had quit. DeGuglielmo replied that he and Pepernik had worked out their differences and everything was all right. On January 2, which was the next workday, between 8 p.m. and 9 p.m., Pepernik called DeGuglielmo aside. Pepernik told DeGuglielmo that he wanted DeGuglielmo "to lay low for awhile." Pepernik said that headquarters did not want DeGuglielmo around and DeGuglielmo should wait until the union matter blew over. DeGuglielmo protested that he was going to school, was married, had a child, and needed to earn money. Pepernik tried to reassure him and said that "we will take care of that." Pepernik indicated that either there would be additional monies added to DeGuglielmo's check or to his wife's check. DeGuglielmo asked how long was he supposed to lay low and Pepernik replied, probably a couple of days. DeGuglielmo left and went to Gund Hall where his wife, Mary, was working and told her what had happened. DeGuglielmo telephoned Pepernik on January 3 and 4 to ask whether he could return to work and each time was informed not yet. On Friday, January 5, DeGuglielmo went to the Company's office in Harvard University. He learned that Charles Harak had been discharged that night. When DeGuglielmo spoke to Pepernik the latter tried to reassure him and said he probably would be back at work by Monday. On Monday, January 8, DeGuglielmo again spoke with Pepernik about returning to work. The latter advised DeGuglielmo that he had better find a better job. Pepernik explained, "[T ]hey don't want you here." Mary DeGuglielmo testified that on the night of January 2, 1973, after she had learned that her husband had been terminated, she spoke to Pepernik. According to Mary DeGuglielmo, she asked Pepernik why he was blaming Joseph DeGuglielmo for "what's going on." She said that her husband did not start the Union, that it was Charles Harak, that there were many more people involved in the Union and Pepernik might just as well discharge the entire crew. Pepernik asked her to relax. He explained that he was under a lot of pressure from Mr. Kraus to remove Joseph DeGuglielmo because Joseph DeGuglielmo was convincing too many people about the Union. Pepernik said that if Joseph DeGuglielmo would just lay low for awhile until it was all over Pepernik was sure that Joseph DeGuglielmo would have his job back. Pepernik promised that he would try to supplement Mary DeGuglielmo's earnings with extra hours in order to make up for the pay her husband was losing. John Pepernik's version of the events differs substantial- ly from the DeGuglielmos' Pepernik testified that prior to January 2, 1973, he had no knowledge that Joseph DeGuglielmo had been soliciting employees to sign union authorization cards or otherwise had been engaged in activity on behalf of the Union. According to Pepernik, on December 28 he instructed DeGuglielmo to clean the stairwells which DeGuglielmo refused to do. He then told DeGuglielmo, "I will give you an alternative. You can go 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD home or do the stairs , but if you go home, don't bother to come back because you are terminated." DeGughelmo left. Pepernik testified that he did not see DeGuglielmo again that night. According to Pepernik , DeGughelmo was discharged on the night of December 28, 1972, because of his refusal to clean the stairwells. Pepernik testified that the next night, Friday, December 29, he observed DeGuglielmo on the 10th floor of William James Hall about 5 p.m. That is the time when , and the place where, the employees normally report for work. Pepernik testified that he had no conversation with DeGughelmo then . About 8 : 30 p.m . that night Pepernik again saw DeGughelmo but this time in the lobby of William James Hall. They had a brief conversation. DeGughelmo asked for his job back and Pepernik , who did not want DeGuglielmo to return because he considered that DeGughelmo had been "disrupting my crew," replied, "Why don't you go get a better job . There are places that pay a lot more than I do." DeGuglielmo answered , "I like it here." To which Pepernik responded, "I like it here, too, but I can't have you." Pepernik testified that he did not ask DeGuglielmo what he had been doing on the premises from 5 p.m. to 8 : 30 p.m because "[i]t is not uncommon for people to come in to see someone else." Pepernik further testified that when he spoke with DeGuglielmo at 8:30 p.m. on December 29, he did not know that DeGuglielmo had worked that night . It was later in the evening when he was reviewing the timecards for payroll purposes , which he does every Friday , and he saw that DeGuglielmo's card had been punched in and out, that he discovered that DeGuglielmo purportedly had worked . DeGuglielmo was paid for December 29. On the next workday, Tuesday, January 2 , 1973, about 9 a.m., Pepernik telephoned Kraus According to Pepernik, he told Kraus that DeGuglielmo had quit on December 28, and that DeGuglielmo had returned and worked the next night and therefore was paid . Pepernik wished advice with respect to this problem . Kraus told Pepernik , "You made the right decision . Unfortunately he [DeGuglielmo] worked, but just don't let him back and that should solve the problem." That same evening, January 2, shortly after 5 p.m., Pepernik saw Joseph DeGuglielmo at work in William James Hall. Pepernik testified , "I told him to leave the building. I didn't need him any more . He quit and I didn't want him back." DeGughelmo then left . DeGuglielmo was paid for January 2. The reason , according to Pepernik, was, "If I like a person , and I know Joe quite well. We are quite friendly. I just said, 'O.K. I will give you the four hours pay. You came in.' It was an appeasement . I don't like people mad at me." Harold Kraus testified about the telephone conversation with John Pepernik in the morning of January 2, 1973. According to Kraus, Pepernik "was in somewhat of a disturbed condition regarding this particular discharge." Pepernik's concern was that after DeGuglielmo had been discharged on December 28, he returned and worked on the night of December 29. Pepernik did not see DeGugliel- mo on the 29th and learned that DeGuglielmo had worked when Pepermk reviewed the timecards for payroll purpos- es. Kraus advised Pepernik that although the Company had no obligation to DeGuglielmo who had been dis- charged on the 28th, nevertheless, it should pay him for the 29th because he had worked that night. Also, Kraus recommended to Pepernik that because Pepernik had not been in touch with DeGughelmo over the weekend, that when DeGuglielmo reported for work on January 2 Pepernik should make it clear to DeGuglielmo that DeGuglielmo had been discharged . However, because "of the situation . . . we paid him [DeGuglielmo ] the four hours [on January 2] because he did come in, because that is the policy I felt was the right thing to do" The significant difference between the testimony of Kraus and Pepernik is that Pepermk testified that he spoke with DeGughelmo on December 29 and then specifically informed DeGuglielmo that he had been discharged, while Kraus testified that Pepernik had not seen DeGughelmo on the 29th and expected DeGughelmo to report for work on the night of January 2. Also, Kraus testified that he instructed Pepernik to pay DeGughelmo for January 2 while Pepernik did not testify that he received such instruction from Kraus but gave an entirely different explanation for the fact that DeGuglielmo was paid for January 2. Pepernik's version of DeGuglielmo's discharge is implau- sible. According to Pepernik, after DeGuglielmo's employ- ment was unequivocally terminated in the early evening of December 28 the latter , without Pepernik's knowledge, worked the next night. This is an unlikely circumstance. If nothing else had intervened, there was no reason why DeGuglielmo would work on the night of the 29th since he could not expect to be paid after having been terminated. Second, as DeGuglielmo's work station included the lobby of William James Hall it is not likely that he could have worked an entire shift on December 29 without being observed and stopped by Pepernik or Supervisor Zafran. Third, if DeGuglielmo had been finally terminated on December 28, Pepernik would have informed Supervisor Zafran of DeGuglielmo's discharge and arrangements would have been made for someone else to do the work ordinarily assigned to DeGughelmo . Thus, DeGuglielmo's working presence on December 29 could not have gone unnoticed. Fourth, according to Pepernik, he observed DeGuglielmo in William James Hall at the beginning of the shift on the 29th and then again at the end of the shift when he engaged DeGuglielmo in a conversation. His testimony is incredible that he had no curiosity as to why DeGuglielmo was in the building and that he did not ask DeGughelmo that question , particularly as the Company was so much concerned with building security . Fifth, Pepernik testified that on December 29 he specifically told DeGuglielmo that he had been discharged and he was not to return . In this circumstance, there is no explanation for the fact that Pepernik telephoned Kraus in the morning of January 2 , 1973, to inquire what should be done when DeGuglielmo returned to work that evening. Finally, the testimony of Kraus contradicts Pepernik in that Kraus testified that he understood from his conversation with Pepernik that Pepernik did not speak to DeGughelmo on the 29th and therefore expected DeGuglielmo to return to work on January 2 and that he, Kraus, instructed Pepernik to pay DeGuglielmo for January 2, while Pepernik testified PERFORMANCE, INC. 623 that on December 29 he reaffirmed to DeGuglielmo that the latter had been terminated and gave a different explanation for the fact that DeGuglielmo was paid for January 2. Not only do I find Pepernik's version of DeGuglielmo's discharge unbelievable, but I consider that Pepernik was generally an unreliable witness. He was uncertain in his recollection as to various material events about which he was questioned and his testimony in significant respects was inconsistent with the testimony of Harold Kraus. Pepernik appeared to be uncomfortable as a witness and left the impression with me that he was shaping his testimony to fit the outlines of Respondent's defense rather than describing the events as they hap- pened. I find that both Joseph DeGuglielmo and Mary DeGuglielmo were direct, forthright, and truthful witness- es. I credit their testimony. Accordingly, I find that Joseph DeGuglielmo was discharged on January 2, 1973, because of his activities on behalf of the Union and in order to discourage employee membership in and support of the Union. Such discharge constitutes unlawful discrimination within the meaning of Section 8(a)(3) of the Act and further serves to interfere with , restrain, and coerce employees in the exercise of the rights guaranteed in Section 7, in violation of Section 8(a)(l) of the Act. E. The Discharge of Charles Harak Charles Harak began working for the Company at the end of October or in early November 1972. His supervisor was Patel. When he was hired he advised Pepernik that he would be unable to work five nights per week, that he would usually work three nights and when he had a lot of school homework he might work only two nights in a week. Pepernik said that that was acceptable because the Company was very flexible about days of work and vacations. After Harak began working his supervisor, Patel, informed him that it was not necessary for him to give advance notice as to the days he would be at work. According to Harak, Patel told him, "Just show up. So after that I showed up two or three days a week." Harak was the first of the Company's employees to contact union business agent Cadigan. Upon the instruc- tions of Cadigan, Harak recruited an informal organiza- tional committee consisting of himself, Joseph and Mary DeGuglielmo, and Claudia McNulty. From December 7 until his termination Harak actively solicited employees to sign union authorization cards and generally promoted the Union among the employees. Harak testified that about December 15, during a conversation with Pepernik about a possible transfer to another building, he informed Pepernik that he was assisting the Union in its organizational effort. Pepernik admitted that he learned from Harak of the latter's interest in the Union and that he spoke with Harold Kraus about the subject. Harak also informed Supervisor Martin Zafran about his union interest and activities . Further, Mary DeGuglielmo testified that on January 2, after her husband had been discharged, she told Pepernik that he should not blame her husband for starting the union movement because the person responsible was Charles Harak. Charles Harak was discharged on January 5, 1973, when he returned to work after his Christmas vacation. Accord- ing to Harak, upon reporting for work his supervisor, Patel, told him to see Pepernik . Pepernik informed him that he was no longer needed by the Company because as of January 4 Pepernik had hired someone to replace him. Pepernik did not give Harak any further explanation for his discharge. Pepernik admitted that he knew about Harak's union activities . However, Pepernik denied that Harak's union interest influenced the decision to discharge Harak. Pepernik testified that Harak was discharged because he was absent for 3 consecutive days, January 2, 3, and 4, without excuse and without having informed the Company that he would not be at work. Pepernik testified that before Harak left for his Christmas vacation, "[h ]e said he would be back on the 2nd." When asked to be more specific as to what Harak told him about the day he would return from his Christmas vacation, Pepernik testified that Harak said, "I'll be back right after New Years." Thus, according to Pepernik, he expected Harak to be at work on January 2. About 9 p.m. on January 4, after Harak had failed to report for work on both January 2 and 3 and it was obvious that Harak was not going to be at work on January 4. Pepernik telephoned Kraus. Pepernik informed Kraus that he wanted to discharge an employee because of absenteeism and inquired whether because of the organiza- tional activities taking place there would be any problem. When Harak reported for work the next day Pepernik told Harak that he was dismissed because of his absences on 3 consecutive days. Harold Kraus testified that on the night of January 3 Pepernik telephoned him and, among other things, informed him that he had expected Harak back on January 2 and as of that night, January 3, Harak had not yet returned . Kraus advised Pepernik that if Harak did not return the next night, or at least "call us," there "certainly was grounds for discharge." According to Kraus, Pepernik spoke to him again about the same subject on January 4. Kraus also testified that at no time prior to Harak's discharge did he learn from Pepernik that Harak was active in the Union's campaign . Pepernik's testimony is to the contrary. The reason given by the Company for Harak's discharge is not credible. According to Pepernik and Kraus , as well as various employees who were witnesses at the hearing, the Company's policy regarding leaves for vacations was flexible. Employees were permitted to be absent from work during periods they were on vacation from school. Pepernik did not know when Harak's school vacation ended and did not ask him that question. According to Pepernik, when Harak left on vacation Harak did not tell Pepernik that he would return on any particular day but merely said that he would return after the New Year. At most, it was an expectation on Pepernik's part that Harak would return on January 2; there was no clear understand- ing to such effect . Further, in the light of Harak's loose employment arrangement whereby he worked any two or three nights during the week that he chose so that 2 consecutive days' absence was not unusual, no explanation is given as to why 3 consecutive days' absence was considered critical by the Company or by Pepernik. Also, 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Harak was treated differently from Claudia McNulty. The latter testified that when she left for her Christmas vacation about December 16, 1972, she informed her supervisor, Patel, that she probably would be back to work on January 2 or 3. However, she did not return until approximately January 13, did not inform the Employer that she would overstay her leave, and nothing was said to her about the matter. Of significance in assessing the reason for Harak's discharge are the following circumstances: On December 29 the Union sent a telegram to the Employer advising that it represented the Employer's Cambridge employees and requesting a meeting for the purpose of negotiating a collective-bargaining agreement and on January 3 the Employer mailed a reply to this telegram in which it stated that it had received the Union's telegram on January 2 and that it declined to recognize the Union because "we have a good faith doubt that your Union represents an uncoerced majority of our employees in a unit appropriate for the purposes of collective bargaining." On January 2 the Union filed its representation petition, On the night of January 2, after the Company had received the Union's telegram asserting its representative status, the Employer discharged Joseph DeGughelmo. On the same night Pepernik learned from Mary DeGuglrelmo that Charles Harak was the leader of the union movement. Harak was not at work on January 2. When he returned on January 5, he was discharged. The Company's unconvincing reason for Harak's dis- charge, its opposition to the representation of its employees by the Union, the knowledge Pepernik had of Harak's union activities, and the timing of Harak's discharge-as soon as possible after the Union's demand for recognition was received, and the Company had learned of Harak's leadership in the organizational effort-justify the infer- ence, which I make, that Harak was discharged not for the reason asserted by the Respondent but because of his union activities and to discourage employees from support- ing and joining the Union. Accordingly, I find that Harak's discharge on January 5, 1973, was an unlawful discrimina- tion in violation of Section 8(a)(3) of the Act and interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7, in violation of Section 8(a)(1) of the Act. F. Interference, Restraint, and Coercion The complaint alleges that various conduct, summarized above, infringed upon rights guaranteed employees in Section 7 of the Act. I find that the allegations of the complaint have been sustained with respect to the following incidents, each of which I find constitutes a violation of Section 8(a)(1) of the Act: (a) In the first week of December 1972 John Pepernik engaged Mary DeGuglielmo in a conversation about the Union during which Pepernrk expressed the opinion that the organization of the employees would be "bad for the personal relationship . . . between the employees and management." He then asked Mary DeGuglrelmo to report to him anything she might hear "going on about the union." In the context of his expressed opposition to the Union, Pepernik's request that Mary DeGuglielmo report to him what she right hear about the employees' union activities would tend to cause employees to fear that such information was being sought by the Company in order that it might discourage those activities by discharging or engaging in other reprisals against the employees who supported the Union. As was pointed out in N. L.R.B. v. Louisiana Manufacturing Company, 374 F.2d 696, 701 (C.A. 8), "asking [employees ] to report union supporters, is very suspect and usually coercive in effect." (b) Mary DeGuglielmo testified that on January 2, 1973, after she learned that her husband had been discharged, she spoke to John Pepernik about the matter. During their conversation Pepernik informed her that he had been pressed to discharge Joseph DeGuglielmo by Company Vice President Kraus "because Joe was convincing too many people about the union." Informing employees that one of their number has been discharged because of his union activities tends unlawfully to inhibit employees from engaging in union activities or other activities protected by the Act. (c) Joseph DeGuglielmo testified that, during his conversation with John Pepernik on December 28, Peper- nik said that were the Union to become the employees' representative "he would no longer be able to hire students, that he would no longer be able to have friendly relationships with the employees that we had had in the past. That things would be strict." Such threats of reprisals in the event the employees' self-organizational activities should be successful are a patent violation of Section 8(a)(1). (d) Joseph DeGuglielmo also testified that, in the same conversation with John Pepernik on December 28, Peper- nik told DeGughelmo that Pepernik knew that DeGugliel- mo had been in Harvard Square that afternoon talking with the union agent and that Pepernik knew that DeGughelmo had had other meetings with the union agent in Harvard Square. These remarks create the impression that the Employer was spying on the employees' activities in relation to the Union. As there was no legitimate reason for the Employer to do so the employees would fear that the Employer was seeking to discover which employees were actively assisting the Union in order that the Employer might curb such activities by engaging in reprisals against those employees. As stated in Hendrix Mfg. Co. v. N.L.R. B., 321 F .2d 100, 104, In. 7 (C.A. 5): Surveillance becomes illegal because it indicates an employer's opposition to unionization, and the furtive nature of the snooping tends to demonstrate spectacu- larly the state of the employer's anxiety. From this the law reasons that when the employer either engages in surveillance or take steps leading his employees to think it is going on, they are under the threat of economic coercion , retaliation, etc. G. The Refusal To Bargain On December 29, 1972, the Union sent a telegram to the Company, which the Company states it received on January 2, 1973, informing the Company that it represents its employees who work at Harvard University and requesting a meeting for the purpose of negotiating a PERFORMANCE, INC. collective-bargaining agreement. On January 3. the Com- pany mailed its reply advising that it declined to recognize, meet with, or otherwise deal with the Union as the representative of any of its employees. In the period between December 29 and January 3, there were 57 employees, including Mary DeGuglielmo, in the unit which the parties have stipulated is appropriate for the purposes of collective bargaining. As of said date 32 of the employees in the unit had signed and delivered to the Union cards authorizing the Union to represent them in collective bargaining with the Company. Thereafter, an election was conducted by the Board on February 22, 1973. The Union did not receive a majority of the ballots cast. However, the Union filed objections to conduct affecting the results of the election. 1 find that the objections based upon the discharges of Joseph DeGugliel- mo and Charles 1-larak have merit. I further find that for the reasons stated below the Company has violated Section 8(a)(5) of the Act by its refusal on and after January 3 to recognize and to bargain collectively with the Union as the majority representative of an appropriate unit of its employees. The discharge of employees for their union membership or support particularly, as in the instance of DeGuglielmo and Harak, employees who are the leaders in the union movement, is a powerful, but unfair and unlawful, means of combating an organizational drive. A threat then hangs over the remaining employees that if they support the Union they too will be subject to peremptory removal from their jobs. Such threat is a forceful constraint on the exercise by employees of their statutory rights to engage in self-organizational activities. It interferes with the opportu- nity the statute gives employees to make a rational, considered and free choice in a representation election. Also, the fears generated in employees by the discharge of coworkers are pervasive, difficult to extinguish, and quick to reappear under only slight stimulus. Thus, the effect of the Employer's unlawful conduct in discharging DeGu- glielmo and Harak was to vitiate the election held on February 22, 1973, and I shall recommend that it be set aside. I find further that the Company's unlawful conduct served to undermine the Union's majority (to the extent that the results of the February 22 election can be considered as a reflection of the employees' sentiments regarding union representation). This damage to the employees' self-organizational efforts cannot readily be repaired. Any future campaign among the Company's employees for an election would be seriously hampered by the fear that the union proponents in such campaign would suffer the same fate as was meted to Joseph DeGuglielmo and Charles Harak. The lingering effects of the Company's unfair labor practices make improbable that the imposition of the conventional reinstatement and backpay order and the posting of notices to remedy the unfair labor practices would permit a fair election to be conducted. In the circumstances, I find that the Union's designation as collective-bargaining agent by a majority of the employees having signed authorization cards provides a more reliable reflection of the employees' representational attitudes and desires and better protects their rights under the Act, than 625 would another election . Accordingly, I shall recommend a bargaining order in this case. IV. 1HE REPRESENTATION PROCEEDING For the reason stated above I recommend that the objections to the conduct of the election filed by the Union in Case i-RC-12495 should be sustained. As I shall recommend in Case l -CA-8783 that an order issue requiring the Company to bargain collectively with the Union, upon request , I recommend that the petition in Case 1-RC-12495 he dismissed and all prior proceedings held thereunder be vacated. V. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, above, occurring in connection with its operations de- scribed in section I. above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. Vi. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent unlawfully has refused to bargain collectively with the Union, I shall recommend that it be ordered to bargain collectively with the Union, upon request, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment of the employees in the appropriate unit described below. I shall also recommend that any understanding reached between the parties shall be embodied in a signed agreement. Because the Respondent is being directed to bargain collectively with the Union, although no designa- tion of representative was made in accordance with the procedures of Section 9 of the Act, I shall further recommend that the notice herein contain language advising the employees of their right to a decertification election. See N.L.R.B. v. Priced-Less Discount Foods, Inc., 405 F.2d 67 (C.A. 5, 1968), and 407 F.2d 1325 (C.A. 6, 1969); Ace Foods, Inc., 192 NLRB 1220. Having found that the Company unlawfully terminated Joseph DeGuglielmo on January 2, 1973, and Charles Harak on January 5, 1973, I shall recommend that the Respondent offer each of them immediate and full reinstatement to his former job or, if such job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make each of them whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he normally would have earned from the aforesaid date of his discharge to the date of the Company's offer of reinstatement, less his net earnings during such period. The backpay provided herein shall be computed by calendar 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quarters in accordance with the method prescribed in F W. Woolworth Company, 90 NLRB 289. Interest at the rate of 6 percent per annum shall be added to the net backpay and shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Respondent's unlawful activities, including the discrimi- natory discharges of Joseph DeGuglielmo and Charles Harak, go to the very heart of the Act and indicate a purpose to defeat self-organization of its employees. The unfair labor practices committed by Respondent are potentially related to other unfair labor practices pro- scribed by the Act, and the danger of their commission in the future is to be anticipated from Respondent's conduct in the past. The preventive purpose of the Act will be thwarted unless the recommended Order herein is coexten- sive with the threat. Accordingly, in order to make effective the interdependent guarantees of Section 7 and thus effectuate the policies of the Act, an order requiring Respondent to cease and desist from in any manner infringing upon the rights of employees guaranteed in the Act is deemed necessary. N.L.R.B. v. Express Publishing Co., 312 U.S. 426; N.L.R.B. v. Entwistle Manufacturing Co., 120 F.2d 532 (C.A. 4). Upon the basis of the foregoing findings of fact and upon the entire record in these cases, I make the following: CONCLUSIONS OF LAW 1. By discharging Joseph DeGughelmo and Charles Harak on January 2 and 5, 1973, respectively, thereby discouraging membership in the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 2. By failing and refusing at all times on and after January 3, 1973, to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit described below, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 3. By reason of the foregoing, and by reason of Respondent's coercive interrogation of employees, its conduct in creating the impression among employees that it was engaged in the surveillance of their union activities, and its threats of reprisals against employees if they selected the Union as their collective-bargaining represent- ative, the Company has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby recommend the following: ORDERS Respondent, Performance, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from. (a) Coercively interrogating employees about their knowledge of the union activities among the Company's employees or asking employees to report on the union activities of other employees. (b) Creating the impression among employees that it is engaged in the surveillance of their union activities. (c) Threatening employees with more onerous conditions of employment or other reprisals should the Union, or any other labor organization, be selected as their collective- bargaining representative. (d) Discouraging membership in Building Service Em- ployees' International Union, Local 254, AFL-CIO, or any other labor organization, by discharging any of its employees, or by otherwise discriminating against any of its employees in regard to their hire, tenure of employment, or other terms or conditions of employment. (e) Refusing to bargain collectively with the above- named Union as the exclusive collective-bargaining repre- sentative of all employees in the appropriate unit described below. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement in conformity with Section 8(a)(3) of the Act, as amended. 2. Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with Building Service Employees' International Union, Local 254, AFL-CIO, as the exclusive representative of all the employees in the below-described unit and, if an agree- ment is reached, embody it in a signed contract. The appropriate collective-bargaining unit is: All full and regular part- time cleaners, janitors, floor polishers employed by Performance, Inc., at Harvard University, Cambridge, Massachusetts, but excluding all office clericals, guards and supervisors as defined in the Act. (b) Offer Joseph DeGughelmo and Charles Harak immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the unlawful discrimination against them in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. 8 In the event no exceptions are filed as provided by Sec 102 46 of the 102 48 of the Rules and Regulations, be adopted by the Board and become Rules and Regulations of the National Labor Relations Board , the findings , its findings, conclusions, and order, and all objections thereto shall be conclusions, and recommended Order herein shall, as provided in Sec. deemed waived for all purposes PERFORMANCE, INC. (d) Post at ils offices in Cambridge, Massachusetts, copies of the attached notice marked "Appendix."9 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that Case 1-RC-12495 be severed from Case 1-CA-8783 and that Case 1-RC-12495 be remanded to the Regional Director for Region 1, for further action in accordance with the recommendations herein contained, and in accordance with Section 102.62(a) and Section 102.69 of the Board's Rules and Regulations and Article 5 of the Agreement for Consent Election. v In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF '1 HE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT question employees about their union activities or about the union activities of other employees WE WILL NOT request employees to report to us about the union activities of -other employees. WE WILL NOT Spy on the union activities of our employees or create the impression among our employ- ees that we are keeping their union activities under surveillance. WE WILL NOT threaten employees with more onerous conditions of employment or other reprisals should they designate a labor organization as their collective- bargaining reps esentative. WE WILL, NOT discharge, or otherwise discriminate against, any of our employees in order to discourage membership in or support of Building Service Employ- ees' International Union, Local 254, AFL-CIO, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the 627 rights guaranteed in the National Labor Relations Act, which are as follows: To engage in self-organization; To form, join, or help unions; To bargain collectively through representa- tives of their choosing; To act together for collective bargaining or other mutual aid or protection; To refuse to do any or all of these things. WE WILL offer to Joseph DeGuglielmo and Charles Harak reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges, and WE WILL make them whole for any loss of earnings they may have suffered by reason of our unlawful discrimination against them, together with interest at the rate of 6 percent per annum. WE WILL, upon request, bargain collectively with Building Service Employees' International Union, Local 254, AFL-CIO, as the exclusive representative of all our employees in the unit described below, and if an agreement is reached we will embody it in a signed contract. The appropriate unit is: All full and regular part-time cleaners, janitors, floor polishers employed by us at Harvard University, Cambridge, Massachusetts, but ex- cluding all office clericals, guards and supervisors as defined in the Act. Employees, pursuant to Section 9(c)(1) of the National Labor Relations Act, may, at an appropriate time, petition the National Labor Relations Board at the office set forth below for an election to decertify the Union as their collective-bargaining representative. The filing of such a petition can only be done as the voluntary act and choice of the employees and on their own initiative, without encouragement or assistance from any representative of management. Dated By PERFORMANCE, INC. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Seventh Floor, Bulfinch Building, 15 New Chardon Street, Boston, Massachusetts 02114, Telephone 617-223-3300.