Southwest Janitorial and Maintenance Corp.

402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Southwest Janitorial and Maintenance Corporation and Service Employees International Union, AFL-CIO, Local No. 551. Cases 25-CA-5503 and 25-CA-5576 March 6. 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On September 27, 1973, Administrative Law Judge Herbert Silberman issued the attached Decision in this proceeding. Thereafter , Respondent filed excep- tions and a supporting brief , and 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. We agree with the Administrative Law Judge for the reasons which he stated that Respondent com- mitted 8(a)(3) violations with respect to the termina- tion of six of its employees ; namely, Eugenia Haskins, Roxie Bridges, Sue Harper , Ann Beasley, Wilma Ledell, and William Wingard . In addition, we note that Respondent was previously found by the Board to have unlawfully discharged2 employee Eugenia Haskins because of her activities in behalf of the same union as is involved here. Furthermore, Respondent President William A. Elliott, Sr., was found by the Board in the earlier case to have stated "Well, we're going to have no union . . . I'm not going to let no union in or let no Labor Board tell me what to do." This statement of union animus was made but a short time before the first of the discharges took place in this case . Viewed against this background, the fact that the unfair labor practices involved herein are but a continuation of the same pattern of conduct as was found unlawful in the prior case involving this Respondent further supports the Administrative Law Judge's conclusion that these discharges were for pretextual reasons in 1 Chairman Miller dissents from the finding that Respondent violated Sec 8(a)(5) when it changed the work assignments and hours of work of employees without negotiating with the Union In a letter dated Apnl 12, 1973. the Respondent informed the Union that employees' work hours would be reduced because of cutbacks in the Government contract. About the time the changes were made, around April 15, Union Representative Sue Stone was involved in a series of discussions about the use of a seniority list to implement the cutbacks. She admitted that she made no effort to negotiate with the Respondent about these matters , even during the at least violation of Section 8(a)(3). We note also that five of the six employees (Wingard is the exception) found herein to have been unlawfully discharged were found previously to have been unlawfully discharged by Murcole, Inc., the predecessor employer to Respondent's maintenance contract, in the Board decision at 204 NLRB No. 46. While that conduct cannot be attributed to Respondent, it is clear that the Respondent must have known of the union sympathies of the five employees found to be discriminatees in both Murcole and the instant proceeding, especially in view of the ample evidence of their participation in union activities that was adduced at the hearing in the prior case against this Respondent. In finding Respondent' s reasons for discharge to be pretextual, the Administrative Law Judge rejected the testimony of the only witness for Respondent, its vice president, William A. Elliott, Jr. Our review of his record testimony demonstrates that it was extremely vague and evasive. With respect to Bridges, he said that he did not know who had discharged her or why. As to others, he had no personal knowledge of the circumstances of their discharge; and in some of their cases he could offer no explanation for the discharge. Elliott's most positive testimony on the subject was that supervi- sors "would have" or "must have" inspected areas of deficient work, but he had no recollection of seeing or receiving any reports from the supervisors about any of such employee deficiencies. The character of Elliott's testimony clearly warrants the inference, which we draw, that Respondent was attempting to conceal the true reason for the six discharges, that is, their support of the Union. We note also that Respondent's sole "evidence" to substantiate its claim of poor performance by the discharged employees was in the form of several inspection reports which purportedly evidenced work deficien- cies reported by their supervisors. Some of these reports were unsigned by supervisors, others lacked information as to who prepared them or the circumstances of their preparation or the name of the employee purportedly being graded, and none were properly authenticated. Consequently, we agree with the Administrative Law Judge that these reports were without probative value and did not support Respon- dent's claim of poor performance of the six discharg- three meetings between the parties which occurred around that time. In the Chairman's view, the Union had sufficient opportunity to raise the issues pertaining to the cutbacks during the seniority list discussions The Chairman believes the Union should be estopped from asserting that this unilateral change amounted to a failure to negotiate where the Union had advance notice of the impending change and allowed it to be implemented without demanding negotiations 2 Southwest Janitorial and Maintenance Corp, 205 NLRB No. 173. 209 NLRB No. 70 SOUTHWEST JANITORIAL & MAINTENANCE CORP. es. For the above reasons, in addition to those given by the Administrative Law Judge, we adopt his findings that the six employees named above were discharged in violation of Section 8(a)(3) of the Act. 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, Southwest Janitorial and Maintenance Corporation, Monrovia, California, its officers, agents, successors, and as- signs, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE HERBERT SILBERMIAN, Administrative Law Judge: These consolidated proceedings were heard in Indianapolis, Indiana, on August 9 and 10, 1973. Following the close of the hearing a brief was received from General Counsel. The operative facts herein are related to events described in the findings made in the following cases: Murcole, Inc., 204 NLRB No. 46, and Southwest Janitorial and Mainte- nance Corporation, 205 NLRB No. 173. Official notice is taken of the decisions of the Board in the cited cases. Respondent did not retain an attorney to represent it in the instant cases but appeared by its vice president, William A. Elliott, Jr. Reference is made to the discussion in the last- cited case with respect to the appearances by the Respondent therein. The complaint in Case 25-CA-5503, dated May 30, 1973, which is based upon a charge filed by Service Employees International Union, AFL-CIO, Local No. 551, herein called the Union, on April 5, 1973, alleges that Southwest Janitorial and Maintenance Corporation, herein also called the Company, has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1), (3), (4), and (5) and Section 2(6) and (7) of the Act. The complaint in Case 25-CA-5576, dated June 20, 1973, which is based on charges and amended charges filed by the Union on May 21 and June 6, 1973, respectively, alleges that 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 Act. The two cases were consolidated by an order of the Regional Director for Region 25, dated June 20, 1973. In substance, the complaints considered together allege that: 1. The Company unlawfully discharged Roxie Bridges on December 19, 1972; Wilma Ledell on February 26, 1973; William Wingard on March 13, 1973; Eugenia Haskins on April 26, 1973; Ann Beasley on April 30, 1973; and Sue Harper on May 8, 1973, because they joined and assisted the Union and engaged in other activities protected by Section 7 of the Act. 2. An additional reason for the discharge of Roxie 403 Bridges was that she had threatened to go to the Labor Board. 3. Since September 13, 1972, the Company unlawfully has refused to engage in collective bargaining with the Union as the designated representative of an appropriate unit of its employees by: (a) refusing on and since October 20, 1972, to sign a written agreement entered into with the Union; (b) refusing to process grievances involving the six discharged employees and a grievance involving Betty Noel, thereby modifying and revoking the grievance and arbitration provisions of the oral agreement entered into with the Union without complying with the provisions of Section 8(d) of the Act; and (c) reducing the hours of work, changing the dates upon which it pays its employees, and increasing the workload of its employees without notifica- tion to, or consultation or bargaining with the Union. Respondent did not file a responsive answer in these cases but sent a letter dated June 26, 1973, to the Board which the General Counsel has chosen to accept and to treat as a general denial. Upon the entire record in the cases and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. JURISDICTION The answer in these cases does not contest the jurisdic- tion of the Board. I find, therefore, based upon the facts set forth in the complaint and Respondent's admissions at the hearing, that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent does not contest the allegations of the complaint regarding the status of the Union. Accordingly, I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. HI. THE UNFAIR LABOR PRACTICES A. Background During the times material herein, among other of its operations, Respondent was performing custodial and janitorial services at the Fort Benjamin Harrison Finance Center at Indianapolis, Indiana, herein referred to as the Finance Center, pursuant to a contract with the United States Army. Respondent began work under the contract on August 14, 1972. Prior thereto the custodial work at the Finance Center was performed by another contracting organization, Murcole, Inc., which had obtained a similar contract from the United States Army as of July 1, 1971. Murcole, Inc., replaced still another contractor known as Ken Kleen. Upon beginning work at the Finance Center Murcole, Inc., initially hired the entire work force employed by Ken Kleen. As of the time Murcole, Inc., began work at the Finance Center the Union was engaged in an organizational drive among the custodial employees. Of the 52 employees hired by Murcole, Inc., by July 7, 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1971, 29 had signed authorization cards for the Union. On July 1, the Union's representative, Sue Stone, informed Murcole, Inc., that the Union represented a majority of the employees and that she wished to discuss recognition with the Company and to negotiate a collective-bargaining agreement with it. A meeting between Mrs. Stone and a representative of the Company was scheduled for and held on July 7. Murcole, Inc., would not voluntarily recognize the Union as the representative of its employees at the Finance Center and on July 7 the Union filed a representation petition with the Board. Shortly thereafter, on July 13, 12 employees, including the 5 named below, were laid off or discharged. Unfair labor charges were filed against Murcole, Inc., with respect to the layoffs and with respect to other matters. A hearing thereon was held in November 1971. The decision in that case is reported at 204 NLRB No. 46. Insofar as that decision affects the proceedings before me, the Board found that Roxie Bridges, Wilma Ledell, Eugenia Haskins, Ann Beasley, and Sue Harper had been unlawfully discriminated against by Murcole, Inc., because of their membership in and support of the Union. The Board ordered their reinstatement together with appropriate backpay. Following an election held in the representation proceed- ing referred to above, the Union was certified as collective- bargaining representative on April 11, 1972.1 Thereafter, the Union and Murcole, Inc., entered into a 2-year contract covering the employees in the certified unit which is described as follows: All regular and regular part-time employees of the Employer at the Fort Benjamin Harrison Finance Center, Fort Benjamin Harrison, Indiana; but exclud- ing all managers, office clerical employees, professional employees, guards and supervisors as defined by the Act. When the Respondent assumed the cleaning contract at the Finance Center in August 1972 it hired the work force which previously had been employed by Murcole, Inc. On August 21, 1972, the Union wrote the Company advising the Company of its representative status and requesting a meeting for the purpose of renegotiating the collective- bargaining agreement which had been entered into with the Company's predecessor. Towards the end of August Company Vice President, William A. Elliot, Jr., wrote to the Union stating that the Company recognizes the Union as the representative of its employees. Thereafter, there were meetings between William A. Elliot, Jr., on behalf of the Company and the Union. The bargaining between the Company and the Union and other matters were the subjects of an unfair labor proceeding tried before Administrative Law Judge Thomas F. Maher on various days between March 27 and April 18, 1973.2 The Board in its decision, which affirmed and adopted the decision of Judge Maher, found that a collective-bargaining agreement had been reached between the Union and the Company on October 18. It further concluded that the Company had I Case 25-RC-4705 2 The charges in said proceeding were filed on November 10 and violated Section 8(a)(5) of the Act by refusing to execute the contract. Additional findings in the prior case which are relevant to the proceedings before me are that Company President William Elliott, Sr., on November 26, 1972, addressed a meeting of its employees at the Finance Center during which meeting, among other things, William Elliott, Sr., said, "Well we are not going to have no Union ... I'm not going to let no Union in or no Labor Board tell me what to do." By the foregoing and by other conduct set forth in the decision the Board found ` overwhelrrung evidence of Respondent's stated antagonism against the Union." It further found that three employees, including Eugenia Haskins, "all well known Union adherents, each of them having been the subject of a prior unfair labor practice proceeding before the Board" (Murcole, Inc., 204 NLRB No. 46) were the objects of Respondent's unlawful discrimination. The Board found further violations of Section 8(a)(5) of the Act by reason of Respondent's refusal to process a grievance concerning the discharge of an employee, Respondent having taken the position that no contract with the Union was in existence, and by reason of Respondent's unilateral actions on numerous occasions, including on one occasion changing the employees' hours of work without giving the Union an opportunity to bargain about the matter. B. The Unlawful Discharges The complaints herein allege that on various dates between December 19, 1972, and May 8, 1973, the Company unlawfully discharged six employees. The union sympathies and affiliations of five of these employees, Bridges, Ledell, Haskins, Beasley, and Harper, were well known and duly publicized to all interested persons by the decision in the Murcole case. Respondent's animus towards the Union and its employees who supported the Union is described in the decision reported at 205 NLRB No. 173. I take official notice of the findings in both cases. Roxie Bridges Roxie Bridges began her employment at the Finance Center in 1969. She was unlawfully laid off by Murcole, Inc., on July 13, 1971, but subsequently was reinstated. On November 27, 1972, she was interviewed by Company President William A. Elliott, Sr. Bridges credibly testified that Elliott asked her why she wanted a union. She replied, "[B Jecause we needed a union." Elliott responded "that he didn't see why because we were all black folks that it looked like we could get along." Bridges further testified without contradiction that on December 19, 1972, she had a discussion with supervisor Dennis Stone about obtaining an electric carpet sweeper. Stone told her not to worry about it. To this Bridges responded, "That's all right, the union and the Labor Board will get it straightened out for me." The next afternoon, December 20, 1972, Company supervisor Dennis Stone telephoned Bridges and informed September 13, 1972, by the Union 1 SOUTHWEST JANITORIAL & MAINTENANCE CORP. her that she was terminated. She asked why and Bridges answered that he did not know. The only witness who testified for Respondent in this case was Vice President William A. Elliott. Jr. He testified that he believed that the Company's project manager, Robert Hurst, had discharged Bridges but he was not certain of the fact. He also testified that he had no personal knowledge regarding the reason for Bridges' termination.3 As Respondent offered no explanation for Bridges' discharge I find that she was terminated because of her union membership and sympathies and because of her threat to bring a complaint to the Labor Board. Hoover Design Corporation, 167 NLRB 461, reversed 402 F.2d 987 (C.A. 6, 1968). Wilma Ledell Wilma Ledell's employment at the Finance Center began 7 years ago. She was unlawfully discharged by Murcole, Inc., on July 13, 1971, and later reinstated. On February 23, 1973, Respondent's supervisor, Cecelia English, tele- phoned and informed Ledell that she was laid off. No reason was given Led ell. No satisfactory explanation for Ledell's termination was given by Respondent at the hearing. Accordingly, I find that Ledell was terminated because of her union membership and sympathies .4 William Wingard William Wingard was hired by the Company on February 3, 1973, as a wax stripper. He signed a union authorization card on March 13. During his lunch break on the next work day he informed several employees with whom he was eating that he had "signed up for the union." On March 16, 1973, Wingard was terminated by Supervi- sor Dennis Stone who explained to Wingard that he was acting upon the direction of Project Manager Hurst. Wingard asked why he was being laid off and Stone replied that he did not know. Wingard testified without contradic- tion that during his period of employment with the Company he had never been reprimanded but had been 3 William A Elliott. Jr, testified that the termination slip for Bridges probably would reveal the reason for her discharge. However, the clip is filed at the Company's home office in California and he did not bring it to the hearing. Two so-called inspection sheets, dated 12/14/72 and 12/19/72, were introduced in evidence by Elliott to support his position that Bridges had been terminated for incompetence Even if the information on the sheets were true. standing alone they do not furnish a reasonable basis for concluding that Bridges was terminated because of the listed deficiencies. Furthermore, the inspection sheet dated 12/19/72 has no name on it so that it is uncertain that it pertains to Bridges 4 As in the case of Bridges, Respondent introduced in evidence certain inspection sheets purporting to demonstrate the basis for Lcdell's termina- tion In regard thereto, there was the following colloquy: JUDGE Except as reflected by these documents you have no knowledge as to why Mrs Ledell was discharged, is that correct9 W I rNFSs That would he correct. Q. (By Mr Droker) Mr. Elliott. you do not know of your own knowledge whether or not Mrs. Ledell was ever shown any of-- JuDGF It is not necessary . Those documents do not state why she was terminated What meaning they have 1 don't know I attribute no meaning to them whatsoever In fairness to the respondent. I am permitting respondent to put into evidence whatever he has now available that he chooses. As these documents do not indicate why she was terminated and as Mr. Elliott doesn't know why she was 405 told by both Robert Hurst and Dennis Stone that he was doing a good job. Elliott testified that he had no personal knowledge as to why Wingard was discharged.5 I agree with General Counsel that "the timing, lack of any defence, small plant doctrine inference for knowledge (less than 30 employees on his shift) can give rise to only one conclusion, that his discharge must have been discrimina- torily motivated." Eugenia Haskins Eugenia Haskins who had been working at the Finance Center since 1966 was unlawfully laid off by Murcole, Inc., on July 13, 1971. She was subsequently reinstated. On December 8, 1972, Haskins was again terminated unlaw- fully but this time by the Respondent. In the prior case reported at 205 NLRB No. 173 the Board found that Haskins' termination was motivated by her union activi- ties. Haskins was recalled to work on February 26, 1973. However, the Board further found that she then was assigned more arduous duties so that Respondent thereby engaged in additional discrimination against her. Haskins was again discharged on April 26, 1973 (8 days after the conclusion of the hearing before Judge Maher), and this last discharge is alleged as an unfair labor practice in the instant complaint. Haskins testified that William A. Elliott, Jr., telephoned her about 3 p.m. on April 26 and informed her that she was being laid off "on account of the work you did last night." Elliott testified that the only reason for Haskin's discharge was "lack of performance in her assigned work area." He explained that he considers that there has been lack of performance when anywhere from 10 to 25 percent of the work is rejected. The space which the Company cleans is inspected daily by a government inspector. Work which is done improper- ly or not at all is rejected. At times the government imposes a financial penalty upon the Company for rejected work. The Company is notified in detail regarding rejected work on what is referred to as "Form 1107." Elliott testified that the Company receives 4 to 7 such forms every day. Each of terminated I don't see that there is anything in the record that reflects a defense on respondent's part So far as I am concerned there is no defense at to the discharge of Mrs Ledell. WITNESS Your Honor, the inspection sheets I assume would reflect the reason why she was terminated. JLDGE. I know but we don't base law on assumptions . We base it on facts. The facts could be reflected by your records For instance the termination slip, but you tell me that the termination slip is in California and you did not choose to obtain it to offer it in evidence here win:rss No sir I said that I didn't wish to obtain it. I said that I overlooked it in the subpena and the records it was an oversight on in. part JUDGE: You will suffer the consequences of the oversight, Mr Elliott I am sorry. I cannot be sympathetic with you on the grounds that you are unaware of what is taking place here. You are fully aware of it This is the second proceeding that your company has been involved in in this area in a relatively short period of time. You have chosen not to he represented by an attorney . that is your own choice a At the hearing Elliott produced an unsigned document entitled "Inspection Sheet" which has the following written under the date 3/16/73. "William Wingard Constantly refuse to follow instruction . Terminated March 15, 1973 " 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the forms may refer to several items. Thus, on May 1, 1973, the Company received five Form 1107s which detailed about 14 rejections. Also, according to Elliott, sometimes he or another supervisor inspects the areas which are rejected, but this is not always the case. Elliott testified that Haskins lack of performance occurred on April 19, 23, and 25 .6 On each of these dated the Company prepared an "inspection sheet" for Haskins which presumably reflects the portion of the applicable Form 1107 relating to Haskins' assigned work area. The April 19 inspection sheet shows that Haskins failed to sweep certain portions of her area. Elhott testified that he did not inspect the area which was the subject of the report, and did not know if any other supervisor had inspected the areas The inspection sheet for April 23 shows that dust mopping was rejected with respect to 13,536 square feet. This report was not shown to Haskins and Elliott testified that he had no recollection as to whether the Company had made any inspection to verify that the work had not been done. The last inspection sheet dated April 25 shows dust mopping was rejected for 10,896 square feet and dust mopping was not performed for 24,816 square feet. Elliott testified that he "could not possibly say yes or no" as to whether he had mspected the areas personally. Also, when asked whether he spoke to Haskins about the reported deficiencies he testified, "I am more than positive that I would have" but had no recollection of doing so. As Haskins' testimony indicates there were no such conversations I reject Elliott's specula- tion that he possibly spoke with her about the reported deficiencies. Also, according to Elliott, the Company has not been penalized for the alleged rejections reflected by the April 19, 23, and 25 inspection sheets. Elliott further acknowledged that in mid-April Haskins was assigned to a new area. Prior to the change Haskins was required to sweep between 90,000 and 110,000 square feet in 8 hours, but after the change she was required to sweep about 72,000 square feet in 4 hours. Additionally, the work became more difficult because after the change each floor was swept once every 3 days instead of everyday. To justify Haskins' discharge Elliott testified that the extent of her rejected work was greater than that of other sweepers. However, no evidence to support this bare assertion was offered by Respondent. Elliott testified that prior to mid-Apnl he had no complaint about Mrs. Haskins work. In mid-April her hours were cut in half but her work assignments were reduced by only 25 percent. Also the work became more difficult because the floors were being swept every third day instead of everyday. In the circumstances it is natural that Haskins would not be able to perform the increased work load as efficiently as she had been doing her work prior to the change. I find Elhott's asserted reason for discharging Haskins untruthful. I find further that Haskins was discharged on April 26 because of her union activities and membership. 6 Elliott testified that prior reports had "an overall bearing" but he relied primarily upon the April reports in reaching his decision It is to be noted that the Board found that when Haskins was recalled on February 26, 1973, she was unlawfully assigned more arduous duties There is no evidence that Respondent has remedied such discrimination 7 This inspection report was shown to Haskins Ann Beasley Ann Beasley began working at the Finance Center in 1966. She was one of the individuals who was unlawfully discharged on July 13, 1971 by Murcole, Inc., because of union activities and was ordered reinstated by the Board in its decision cited above. Mrs. Beasley was discharged by Respondent on April 30, 1973. She died on June 17, 1973, after being confined in.a hospital for 3 weeks. Elliott testified that Beasley seemed to have been a conscientious employee. However, he discharged her because of work rejections on 20 and 30. According to Elliott, he spoke to Beasley about the April 20 rejection. The latter expressed her concern about the rejection because it was the first she had ever received.8 He told Beasley "to sweep as much as she possibly could and don't worry about completing the full assignment that particular night." He explained that he wished to see "how far her progress was going and how well she was doing." Between April 20 and 30 nothing further was said to Beasley about her work performance. Nevertheless, on April 30 another inspection sheet was written indicating that approximately 47,000 square feet of dustmopping by Beasley had been rejected. Elliott testified that Dennis Stone "would have" inspected the area. Elliott had no recollection of receiving any report from Stone about the alleged deficiency. Also, the inspection sheet bears no signature so that Elliott could not testify that Stone had made any inspection of Beasley's alleged deficiency. I find Elliott's explanation for Beasley's discharge contrived and unconvincing. Accordingly, I find that Respondent discharged Beasley on April 30, 1973, because of her union membership and sympathies. Sue Harper Sue Harper began working at the Finance Center on March 17, 1969. She was unlawfully discharged because of her union activities on July 13, 1971, by Murcole, Inc., and was later reinstated. On the night of May 3, 1973, she started her work late because she had a conversation with William Elliott, Jr., which lasted 30 to 45 minutes. Also, she was told to mop the bathroom floors with vinegar and water and not to use soap which made the task more difficult. For both reasons she did not complete her work that night. In the morning on May 4 she telephoned Supervisor Cecelia English and advised that she would not be at work that night.9 On Monday morning, May 7, 1973, Cecelia English notified Harper by telephone that she was fired. Harper asked why. English replied that she did not know, that Harper would have to ask Elliott. Several times Harper tned to contract Elliott but was unsuccessful. Elliott testified that Harper was discharged because she failed to fmish her work on May 3 and failed to show up for work the following 2 or 3 days "without any call ins." As I credit Harper that she did inform the Company that she would be absent on May 4 and as Harper gave a 8 Elliott testified that I or 2 weeks after April 15 he added an additional sweeper because the employees could not perform the work assigned to them (The hours of work had been reduced without a proportional reduction in the assigned tasks.) 9 This testimony is uncontradicted. SOUTHWEST JANITORIAL & MAINTENANCE CORP. reasonable explanation for her failure to complete her work on May 3,1 do not credit the reasons given by Elliott for Harper's discharge. Therefore, I find that Harper was unlawfully discharged because of her union activities and membership. C. Conclusions I have found that the Company was unable to establish any acceptable reason for discharging the six employees named above. In view of the Company's animus toward the Union and its sympathizers and its history of unfair labor practices, I find that the six employees were discharged because of their union membership, sympa- thies, and activities to discourage membership in the Union. Accordingly, I further find that the Company thereby has violated Section 8(a)(3) of the Act. As such discriminations against employees also served to interfere with, restrain, and coerce employees in the exercise of the rights guaranteed in Section 7, I also find that Respondent thereby has violated Section 8(a)(1) of the Act. The complaints also allege violations of Section 8(a)(5) of the Act. One such allegation concerns Respondent's refusal to execute the collective-bargaining agreement negotiated on or before October 18, 1972. This allegation duplicates findings in the prior case reported at 205 NLRB No. 173. The order in that case fully remedies the alleged violation. No purpose would be served by issuing an identical order in this case. Accordingly, I shall make no such recommendation. 10 The instant complaints allege two additional violations of Section 8(a)(5) on the part of Respondent. At the hearing the parties stipulated that the Union had requested the Company to entertain grievances relating to the six discharges discussed above and the discharge of another employee, Betty Noel, and the Union also requested the Respondent to participate in an arbitration proceeding relating to such discharges. Respondent has refused to entertain such grievances and has refused to arbitrate the grievances. Among the reasons advanced by the Company for such refusals is that it denies the existence of a contract with the Union. During all times material hereto the Union was the recognized collective-bargaining representative of the appropriate unit described above. Furthermore, addi- tional bargaining obligations have accrued by reason of the contract entered into between the Company and the Union on October 18, 1972. In these circumstances Respondent's refusals to entertain the grievances advanced by the Union on behalf of employees in the recognized unit and to arbitrate the grievances constitute failures on Respondent's part to fulfill its collective-bargaining obligations under the Act and thus violate Section 8(a)(5).11 The complaint also alleges that the Company effected changes in terms and conditions of employment for the unit represented by the Union without giving the Union an opportunity to bargain with respect thereto. Thus, on March 23, 1973, the Company wrote to the Union advising that the employees payday will be changed from the 12th 10 Canton Sign Co, 186 NLRB 237 11 For the reasons stated in Tucker Glass Company, Inc, 189 NLRB 499, and Atlanta Daily World, 192 NLRB 159, 1 find that it would effectuate the policies of the Act to recommend an Order designed to remedy the 407 of the month to the 15th and from the 27th of the month to the 30th. Although the letter expresses regret at any inconvenience the change might cause, the Company gave the Union no opportunity to bargain about the subject. Similarly, by letter dated April 12, 1973, the Company informed the Union that the number of hours of work for the employees in the unit will be reduced to an average of 4 hours per night and that there might be some layoffs. Again, the Union was given no opportunity to bargain with the Company with respect to these changes. I find, as alleged in the complaint, that such unilateral actions on the Company's part constitute further violations of Section 8(a)(5) of the Act.12 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, above, occurring in connection with its operations referred to 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. V. THE REMEDY Having found that Respondent has engaged in 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 the Respondent unlawfully dis- charged Roxie Bridges on December 19, 1972, Wilma Ledell on February 26, 1973, William Wingard on March 16, 1973, Eugenia Haskins on April 26, 1973, Ann Beasley on April 30, 1973, and Sue Harper on May 8, 1973, I shall recommend that Respondent offer each of these employees (except Ann Beasley who died after the charges in these cases were filed) immediate and full reinstatement to her former job, or if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make each of them (including Ann Beasley or her estate) whole for any loss of earnings she may have suffered by reason of the discrimi- nation against her by payment to her of a sum of money equal to that which she normally would have earned from the aforesaid date of her discharge to the date of Respondent's offer of reinstatement, 13 less her net earnings during such period. The backpay provided for herein shall be computed on the basis of calendar 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 such 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 employees, go to the very heart of the Act and indicate a purpose to defeat self-organization of its foregoing unfair labor practices 12 A remedial Order is appropriate See fn 11, supra 1; In the case of Ann Beasley the Company's backpay obligation terminated when she became incapable of working 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees. The unfair labor practices committed by Respondent are potentially related to other unfair labor practices proscribed 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 purposes of the Act will be thwarted unless the recommended Order herein is coextensive 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 by the Act is deemed necessary. N.L.R.B. v. Express Publishing Co., 312 U.S. 426; N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4, 1941). Upon the foregoing findings of fact and the entire record in these cases, I make the following: CONCLUSIONS OF LAW 1. By discnminatorily discharging Roxie Bridges on December 19, 1972, Wilma Ledell on February 25, 1973, William Wingard on March 16, 1973, Eugenia Haskins on April 26, 1973, Ann Beasley on April 30, 1973, and Sue Harper on May 8, 1973, thereby discouraging membership in the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 2. Also by discharging Roxie Budges because she threatened to bring a complaint to the Labor Board, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(4) of the Act. 3. By effecting changes in the terms and conditions of employment for the employees in the collective-bargaining unit which Respondent recognizes is represented by the Union without giving the Union prior notice thereof or an opportunity to bargain collectively with respect thereto and by refusing to entertain grievances from the Union with respect to the employees in said collective-bargaining unit and by refusing to arbitrate such grievances the Company has failed to fulfill its statutory collective-bargaining obligations and thereby has engaged in and is engaging in unfair labor practices with the meaning of Section 8(a)(5) of the Act. 4. By reason of the foregoing Respondent has inter- fered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) thereof. 5. 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 basis of the foregoing findings of fact, conclusions of law, and the entire record in these proceedings and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 14 Respondent, Southwest Janitorial and Maintenance Corporation, its officers, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging, terminating, laying off, or otherwise discriminating against employees in regard to their hire, tenure of employment, or any term or condition of their employment in order to discourage membership in Service Employees International Union, AFL-CIO, Local No. 551, or any other labor organization, or in order to retaliate against employees for seeking to use the processes of the National Labor Relations Board. (b) Refusing to negotiate with Service Employees International Union, AFL-CIO, Local No. 551, as the designated and recognized collective-bargaining represent- ative of its employees in an appropriate collective-bargain- ing unit, concerning grievances relating to employees in said unit and where required under a collective-bargaining agreement refusing to arbitrate grievances. (c) Effecting changes in paydays, hours of work, or other terms and conditions of employment of the employees in the appropriate collective-bargaining unit represented by Service Employees International Union, AFL-CIO, Local No. 551, without giving the Union advance notice of the contemplated changes and a full and complete opportunity to engage in collective-bargaining concerning such changes. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer Roxie Bridges, Wilma Ledell, William Win- gard, Eugenia Haskins, and Sue Harper immediate 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. (b) Make Roxie Bridges, Wilma Ledell, William Win- gard, Eugenia Haskins, Ann Beasley, and Sue Harper whole for any loss of earnings they may have suffered by reason of Respondent's 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 amounts of backpay due under the terms of this recommended Order. (d) Upon request, bargain collectively with Service Employees International Union, AFL-CIO, Local No. 551, as the duly designated and recognized collective- bargaining representative of the employees in the collec- tive-bargaining unit described below concerning grievances or other terms and conditions of employment. The appropriate unit for the purposes of collective bargaining is: 14 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 SOUTHWEST JANITORIAL & MAINTENANCE CORP. All regular and regular part-time employees of the Employer at the Fort Benjamin Harrison Finance Center, Fort Benjamin Harrison, Indiana; but exclud- ing all managers, office clerical employees, professional employees, guards, and supervisors as defined by the Act. (e) Post at its Fort Benjamin Harrison Finance Center facility copies of the attached notice marked "Appen- dix".15 Copies of said notice, on forms provided by the Regional Director for Region 25, 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 25, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 15 In the event that the Board's order is enforced by a judgment of the 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 Lnited States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge, terminate, layoff or other- wise discriminate against any employees in regard to their hire, tenure of employment, or any term or condition of their employment in order to discourage membership in Service Employees International Union, AFL-CIO, Local No. 551, or any other labor organiza- tion, or in order to retaliate against employees for seeking to use the processes of the National Labor Relations Board. WE WILL NOT make or effect any change in hours of work, payday, or any other term or condition of employment of our employees in the appropriate collective-bargaining unit represented by aforesaid Union without first giving the Union prior notification thereof and an opportunity to bargain collectively with us concerning any such proposed change. WE WILL NOT refuse to entertain or to bargain collectively with the aforesaid Union concerning any 409 grievances affecting employees in the appropriate collective-bargaining unit represented by the Union, or where required under a collective-bargaining agree- ment we will not refuse to arbitrate grievances. We recognize Service Employees International Union, AFL-CIO, Local No. 551, as the collective-bargaining representative of the employees in the following unit: All our regular and regular part-time employees at the Fort Benjamin Harrison Finance Center, Fort Benjamin Harrison, Indiana; but excluding all managers, office clerical employees, profes- sional employees, guards and supervisors as defined by the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through repre- sentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer Roxie Bridges, Wilma Ledell, William Wingard, Eugenia Haskins and Sue Harper immediate reinstatement to their former jobs or, if such jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges. WE WILL make the aforesaid employees and Ann Beasley, or her estate, whole for any loss of earnings they may have suffered by reason of our unlawful discriminations against them. SOUTHWEST JANITORIAL AND MAINTENANCE CORPORATION (Employer) Dated By (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, ISTA Center - 6th Floor, 150 W. Market Street, Indianapolis, Indiana 46204, Telephone 317-633-8921.