Syufy Enterprises

738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Syufy Enterprises, a Limited Partnership and Service Employees International Union, Theater Janitors Union Local 121. Case 20-CA-9199 September 26, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO On December 30, 1974, Administrative Law Judge Allen Sinsheimer, Jr., issued the attached Decision in this proceeding. Thereafter, the General Counsel and Charging Party filed exceptions and supporting briefs, and Respondent filed a reply brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. Respondent is the owner and operator of numer- ous theaters in California, including four which are the only ones involved in this proceeding. Two of these, Cine 21 and Automovie Drive-In, are located in Vallejo, and two, Century 21 and Four-Plex, are in Pleasant Hill. Prior to 1973, the first three of the above theaters were part of a multiemployer bargain- ing unit represented by several unions, including Ser- vice Employees International Union, Theater Jani- tors Union Local 121 (herein the Union). In 1973 the Union and Respondent agreed to sever the two theaters in Vallejo and the Century 21 in Pleasant Hill (Four-Plex was not then in existence) from the multiemployer unit and negotiate a separate collec- tive-bargaining contract for the janitorial employees at those theaters. (From November 1971 to February 1973, Respondent had subcontracted the janitorial work for the three theaters here involved to Solano Janitorial Service. Beginning in February 1973 Re- spondent directly employed the same janitors at the above three theaters.) Separate bargaining between Respondent and the Union was carried on from about March to December 1973, but no agreement was reached concerning a new collective-bargaining contract. Respondent insisted during negotiations that it wished to utilize an independent contractor to provide its janitorial services because of the econom- ic burden of the existing practices. The Union indi- cated its opposition to any change in manning.' In December 1973 the Union's representative, Fig- one, met with Haigh, Respondent's assistant in charge of construction, concerning janitorial service for the Vallejo and Pleasant Hill theaters. Haigh stressed Respondent's desire to hire an independent janitorial contractor for the theaters, and Figone furnished the names of some, including American Building Maintenance Company (herein ABM). Haigh communicated with ABM and sought a contract for janitorial services covering only the two Pleasant Hill theaters, the Century 21 and the Four- Plex. However, Averbuck, the ABM's representative, after speaking with Figone, said that the latter in- sisted that the contract cover Respondent's theaters in Vallejo as well as in Pleasant Hill. Haigh there- upon negotiated an agreement with ABM covering the Vallejo and Pleasant Hill theaters. In order to hold down costs to Respondent, it was agreed that Respondent would furnish its own supplies and han- dle its own window cleaning. The contract contained the following provision concerning supervision: SUPERVISION Regular supervision. is maintained over all working personnel. Our service operates 24 hours a day. Our Supervisory staff has been pro- moted to their positions on merit and length of experience. It is American's job to see that all American activities are properly coordinated with the Customers' operations, modify assign- ments if and when necessary, instruct, inspect and correct the working personnel, make needed adjustments, check requisitions and dispense supplies and equipment, train new employees, make "on the job" inspections with or without the Customer's own representative, and do ev- erything possible to assure complete harmony between American's employees and American's customers. ABM's division manager and Averbuck's supervi- sor, Isheim, testified that inclusion of the above su- pervision provision was standard in ABM contracts and that he knew of no special arrangements with Respondent to delete the provision. At the same time he conceded that Averbuck had authority to make oral representations concerning contract provision binding on ABM. Averbuck testified that he told Haigh that ABM "had supervisors who would super- vise employees . . . and that they would do it," but that Haigh said that, "the managers should be able to tell the janitors what to do in case anything came up 1 The Union's unfair labor practice charge filed in August 1973 alleging that Respondent had failed to bargain in good faith during this general period was dismissed by the Regional Director 220 NLRB No. 113 SYUFY ENTERPRISES that they wanted to have done," and that he (Aver- buck) responded, "Fine." Asked to clarify this testi- mony Averbuck replied, "Mr. Jack Haigh wanted it understood by us, and that was part of the negotia- tion; that they [Respondent] would have the right to supervise and to deal with these employees because of the hours in the theaters, the difficulties involved, and that they would take the responsibility of dealing with these employees." Averbuck explained that Haigh wanted the right, "in case he felt somebody was doing a poor job, to call us up and say that he didn't want him on the job," and, through his manag- ers, to give instructions to the janitors about what should be done. At one point, Averbuck brought Treadway, an ABM supervisor, to see Haigh and in- troduced him as such. On this occasion Averbuck told Haigh that Respondent's managers should be able to tell janitors what to do "in case anything came up," but added that ABM should be called if an employee was to be disciplined or terminated. In the performance of its contract with Respon- dent, ABM employed the same janitors formerly em- ployed directly by Respondent. Two ABM supervi- sors were designated to supervise their work. Five other ABM officials were also available to make spe- cific or random checks on ABM janitorial work, in- cluding that being performed for Respondent. In ac- tual practice, however, according to the finding of the Administrative Law Judge, "it does not appear that any actual inspections or reports of such were made by representatives of ABM. Nor was there ac- tual supervision of the work on the job so far as the record reflects." Stanley Bueno, a janitor at Cine 21, testified that the only person with whom he discussed job assign- ments was the theater manager, Kuykendall. He also testified that sometimes when he was unable to com- plete certain parts of his janitorial work, he would report this fact to Kuykendall who would tell him to try to complete the unfinished portion of his work on another day as best he could. Bueno also testified that he had asked Kuykendall if his girl friend could assist him with his 6-hour shift, each of them working 3 hours. Kuykendall granted permission for the pro- posed work schedule. Pangelinan, a janitor at one of the Vallejo theaters, testified that he had never seen an ABM supervisor at the theater where he worked and that his nonrou- tine job assignments came from Theater Manager Savage. According to Pangelinan, on Savage's in- structions, he performed duties not in the ABM con- tract, such as renting and using a pump to clear a flooded area, cleaning the popcorn room, and clean- ing and waxing Savage's office. Pangelinan reported this to ABM Supervisor Robinson, who agreed that 739 these duties were not in the contract, but Pangelinan performed the work anyway. Also at Savage's re- quest, Pangelinan stayed overtime to pick up trash on "heavy" days, without receiving additional com- pensation. On one occasion Whiteman, also a manager of Re- spondent, called ABM to ask how to get janitors to clean countertops, which janitors were not required by the contract to do. ABM Supervisor Averbuck told Whiteman to tell the janitors what to do and to call him back if he had further problems. Respondent terminated its janitorial contract with ABM as of April 30, 1974, for the asserted reason that the janitorial work was not being properly per- formed. In place of ABM, Respondent subcontract- ed the janitorial work to a new nonunion contractor, National Home Service, at a substantial cost saving. The General Counsel contended that Respondent and ABM were joint employers of the janitors at the Vallejo and Pleasant Hill theaters, that by failing to notify and bargain with the Union concerning the cancellation of the ABM contract and termination of the Union's member-employees Respondent violated Section 8(a)(5) of the Act, and that Respondent's motivation in canceling the ABM contract was to rid itself of the Union and its members, thereby violating Section 8(a)(3) of the Act. The Administrative Law Judge found that Re- spondent was not a joint employer of the janitorial employees covered by the ABM contract and there- fore it had no obligation to bargain with the Union concerning the termination of the ABM contract, and that its motivation in terminating the ABM con- tract was not discriminatory. The General Counsel and the Union have excepted to these conclusions of the Administrative Law Judge. We agree with the exceptions. The janitors employed by ABM for approximately 4 months were the same janitors formerly employed directly by Respondent for a considerably longer pe- riod. As the Administrative Law Judge himself found, after the takeover by ABM, despite the con- tract provisions, there was no evidence of any actual supervision of the janitors by ABM supervisors 2 The only actual evidence as to supervision was that it was exercised by Respondent's theater managers. Thus, employee Bueno testified that Manager Kuykendall directed him to sign for certain deliveries and to ad- mit carpet cleaners and concessionaires. Kuykendall also approved Bueno's request that his girl friend be 2 Contrary to normal practice in the industry, Respondent refused, de- spite repeated requests, to provide ABM's supervisors and inspectors with keys to its theaters, which would afford them access to the theaters at times when the janitors were not present, in order to exercise their supposed su- pervisory functions. 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD permitted to assist him with his janitorial duties, an arrangement which enabled Bueno to work 3 hours each day rather than 6. Also, when informed by Bue- no that he was having difficulty completing the cleaning of certain sections of the theater Kuyken- dall authorized Bueno to make the best practical work adjustment possible. Similarly, employee Pan- gelinan testified that his job assignments were given to him by Theater Manager Savage, some even cov- ering duties not within the scope of Respondent's conctract with ABM. Savage lengthened Pangelinan's hours of work by having him stay over- time on "heavy" days without compensation in order to dispose of additional accumulations of trash. Fur- ther, when another theater manager, Whiteman, called Averbuck to complain that a janitor was not cleaning certain countertops, Averbuck told White- man that he should tell the janitors what to do and contact him again only if Whiteman continued to have problems. It thus appears that the duties and relationship of the janitors to Respondent's theater managers remained as a practical matter substantial- ly unchanged by Respondent's contract with the ABM. The question whether Respondent and ABM were joint employers of the janitors in Respondent's Valle- jo and Pleasant Hill theaters depends on whether the evidence shows they codetermine those matters gov- erning the essential terms and conditions of employ- ment of the janitorial employees ABM has utilized in fulfilling its service contract with Respondent. The issue is essentially a factual one' The Administrative Law Judge found that control of the employment relationship of the janitors rested with ABM even though Respondent gave some di- rections to janitors and ABM did not check the work as closely as it had promised. He concluded that the intent of the relationship between Respondent and ABM as manifested by their contract and representa- tions was that ABM was to look after and supervise the work and the employees, with Respondent hav- ing a right "to police the contract" to see that the service sought was rendered satisfactorily. We cannot agree with the above finding and con- clusion. The actual exercise of control by Respon- dent over matters governing the terms and condi- tions of employment of the janitors is a separate indication of coemployership.4 It is one which we deem crucial in the present case in view of the limited terms of the service contract Respondent entered into with ABM. In other situations we have found parties to be joint employers where the element of 3 Boire, Reg Dir. v The Greyhound Corp, 376 U S. 473 (1964). 4 N.L R B. v New Madrid Manufacturing Co., 215 F 2d 908, 913 (C.A 8, 1954), enfg. in part 104 NLRB 117 (1953). control of the employment relationship arose in con- siderable measure out of far more detailed written contractual arrangements which covered virtually ev- ery aspect of the parties' day-to-day work activities;' or where such written arrangements with predecessor companies governed to a significant degree the later employment and labor relations of parties making oral arrangements for maintenance work.6 In the present case, Respondent and ABM had a rather brief written contract which provided that ABM would provide janitorial service at certain wage rates and the requisite supervision to assure ad- equate service. In practice, however, ABM's supervi- sors did not appear at or actively perform this super- visory function at Respondent's Vallejo and Pleasant Hill theaters. As previously set forth herein, Respondent's theater managers have exercised actual control over work activities, personnel problems, and even contract scope difficulties arising at the theaters in question. Such actions by Respondent's managers constitute actual supervision of significant work ac- tivities, and not just an attempt to give "some direc- tions" to employees or to police contract perfor- mance in the extended absence of ABM supervisors' For, while janitorial tasks may be routine they often also are of such a nature that they require a meticu- lous attention to detail and vigilant if not continuous supervision. In the service vacuum created by the ab- sence of ABM supervisors at its Vallejo and Pleasant Hill, California, theaters, Respondent's managers ac- tually exercised needed supervision, and otherwise resolved problems arising at their entertainment cen- ters in order to keep them functioning in a sound businesslike fashion. We find that such supervisory activities on the part of Respondent are sufficient to constitute Respondent a joint employer with ABM of the janitorial unit employees here involved, at least in the circumstances of this case. For, although Respon- dent sought to obtain from ABM principally a ser- vice, namely, detailed supervision of janitorial activi- ties in order to keep its theaters clean and attractive for the public, the supervision sought was lacking. Respondent furnished in significant quantum the su- pervision which ABM under its written contract had promised to provide. Respondent thus retained con- trol over essential terms and conditions of employ- ment of the unit employees sufficient to constitute it a joint or coemployer of the employees involved.' The remaining issue is whether Respondent has See The Greyhound Corporation (Southern Greyhound Lines Division) and Floors, Inc of Florida, 153 NLRB 1488 (1965), enfd. 368 F.2d 778 (C.A 5, 1966); Hoskins Ready-Mix Concrete, Inc, and Trinity Portland Cement Divi- sion, General Portland Cement Company, 161 NLRB 1492 ( 1966). 6 Ref-Chem Company, 169 NLRB 376, 378 (1968), enforcement denied on other grounds 418 F.2d 127 (C.A 5, 1969) 7 The Greyhound Corporation, supra at 1491, In. 8. 6 Floyd Epperson and United Dairy Farmers, Inc., 202 NLRB 23 (1973). SYUFY ENTERPRISES violated Section 8(a)(5) and (3) of the Act. We have found Respondent to be a joint employer with ABM of the unit of janitorial employees servicing Respondent's four theaters in Vallejo and Pleasant Hill, California. Accordingly, we further find that Respondent's failure and refusal to meet and bargain with the Union concerning the termination of its contract with ABM and the contracting out of the janitorial work to National Home Service on May 1, 1974, violated Section 8(a)(5) and (1) of the Act.' Further, in our view, it is clear that Respondent violated Section 8(a)(3) and (1) by seeking to rid it- self of the necessity of dealing with the Union at the above locations by terminating its janitorial service contract with ABM, and immediately subcontracting such service work to National Home Service, for dis- criminatory reasons forbidden by Section 8(a)(3). It is no doubt true that economic considerations were a factor in Respondent's determination to subcontract its janitorial work, a fact evident from the extended negotiations concerning the ABM contract . 1° But, in our opinion Cargile's frank statement to Figone that "Ray Syufy wanted to go nonunion in Vallejo" is significant in view of Cargile's position as Respondent's director of operations, and more so considering the precipitate manner in which janitori- al operations were subcontracted to National Home Service, a subcontractor whom Furman (a later di- rector of Respondent's operations) admitted he "as- sumed" would use nonunion personnel in view of its low contract bid. We find that the statements of Car- gile and Haigh " concerning Respondent's desire for nonunion operations at its Vallejo and Pleasant Hill, California, theaters, considered in conjunction with Furman's apparent knowledge that the janitorial ser- vice being contracted to National Home Service would be at nonunion rates, and the dispatch with which that contract was executed, give ample proof that Respondent was motivated by discriminatory reasons forbidden by Section 8(a)(3) and (1) when it terminated its service contract with ABM, and execu- ted a similar contract with a nonunion contractor, National Home Service which resulted in the dis- charge of union members.'Z Accordingly, we con- 9 East Bay Union of Machinists, Local 1304, United Steelworkers of Ameri- ca, AFL-CIO, and United Steelworkers of America, AFL-CIO (Fibreboard Paper Products Corp), 138 NLRB 550, 551 (1962), enfd. 322 F.2d 411 (C A D.C., 1963), affd. 379 U.S. 203 (1964). 10 Respondent's further contention that its contract with ABM was termi- nated due to unsatisfactory work by ABM personnel was not established by the testimony of its theater managers. 11 Averbuck, ABM account executive , testified that Haigh , Respondent's assistant in charge of construction , inquired "whether or not it was possible to bring in some other union . . to bring in nonunion people." Informed by Averbuck that this was not possible, as ABM policy was to deal with the Union, Haigh responded that he had many, many dealings, and he would prefer not to have Mr . Figone's local. 741 elude that Respondent also violated Section 8(a)(3) and (1). THE REMEDY We have found that Respondent violated Section 8(a)(5) and (1) by unilaterally subcontracting the unit work formerly performed by janitorial employees jointly employed by itself and ABM to National Home Service on May 1, 1974, without bargaining with the Union over its decision to do so. We shall therefore order that Respondent cease and desist from unilaterally subcontracting such work, or other- wise making unilateral changes in the terms and con- ditions of employment of the aforesaid employees servicing the four theaters here involved without con- sulting their bargaining agent. Since, as we have pre- viously recognized, no genuine bargaining over a de- cision to terminate a phase of operations can be conducted where that decision has already been made and implemented, in order to adapt the remedy to the situation here calling for redress, we shall or- der the Respondent to restore the status quo ante by reinstituting its janitorial operation as it existed on April 30, 1974, and fulfilling its statutory obligation to bargain.13 Further, since we have found that the actions de- scribed above, including Respondent's failure and re- fusal to bargain with the Union, were discriminatori- ly motivated by Respondent's desire to rid itself of janitorial employees who were members of or en- gaged in activities on behalf of the Union, and since the loss of employment by such janitorial employees stemmed directly from Respondent's unlawful action in bypassing their bargaining agent, we shall order that Respondent offer to reinstate the unit employees to their former or substantially equivalent positions without prejudice to their seniority or other rights or privileges. We shall also order that Respondent make them whole for any loss of earnings suffered as a result of Respondent's unlawful action in bypassing their bargaining agent and entering into an unlawful subcontracting arrangement which eliminated their jobs." Backpay shall be based upon the earnings which they normally would have received from May 1, 1974, when the unlawful subcontracting occurred, to the date of Respondent's offer of reinstatement, less any net interim earnings, and shall be computed on a quarterly basis in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), together with interest thereon at the rate of 6 percent per an- 12 Town & Country Mfg Co., Inc, 136 NLRB 1022 (1962), enfd 316 F 2d 846 (C.A 5, 1963) 13 Fibreboard Paper Products Corp, supra. 14 Townhouse T V & Appliances, 213 NLRB 716 (1974). 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD num as provided in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). CONCLUSIONS OF LAW 1. Syufy Enterprises, A Limited Partnership, is an employer within the meaning of Section 2(2) of the Act. 2. Service Employees International Union, Theat- er Janitors Union Local 121, is a labor organization within the meaning of Section 2(5) of the Act. 3. All janitorial employees employed in Respondent's Vallejo and Pleasant Hill, California, theaters, excluding clerical employees , guards, and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times since March 1973 the Union has been the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By unilaterally subcontracting the janitorial services at its aforesaid theaters without first bargain- ing collectively with the Union, Respondent has vio- lated Section 8(a)(5) of the Act. 6. By discriminatorily discharging the janitorial employees at its aforesaid theaters, Respondent has violated Section 8(a)(3) of the Act. 7. By the foregoing conduct, Respondent has in- terfered with, restrained, and coerced its employees in the exercise of rights guaranteed them by Section 7 of the Act, thereby violating Section 8(a)(1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Syufy Enterprises, A Limited Partnership, San Fran- cisco, California, its officers, agents , successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Service Employees International Union, Theater Janitors Union Local 121, as the exclusive bargaining repre- sentative of Respondent's employees in the appropri- ate unit with respect to wages, hours, and other terms and conditions of employment; and from unilaterally subcontracting unit work or otherwise changing the wages, hours, and other terms and conditions of em- ployment of the aforementioned unit employees without prior bargaining with the above-named Union or any other labor organization they may se- lect as their exclusive bargaining representative. The appropriate unit is: All janitorial employees employed at Respondent's Vallejo and Pleasant Hill, Califor- nia, theaters, excluding clerical employees, guards, and supervisors as defined in the Act. (b) Discouraging membership in the above-named Union, or any other labor organization, by unilater- ally subcontracting the work of employees in its jani- torial service unit to other employees, or otherwise discriminating against its janitorial employees in re- gard to hire or tenure of employment or any terms or conditions of employment. (c) In any other manner interfering with, restrain- ing, or coercing its janitorial employees in the exer- cise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection as guaranteed in Section 7 of the National Labor Relations Act, as amended, and to refrain from any or all such activities, except to the extent such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management and Dis- closure Act of 1959. 2. Take the following affirmative action which it is found will effectuate the policies of the National La- bor Relations Act, as amended: (a) Reinstitute the janitorial operation as it existed on April 30, 1974, at Respondent's four theaters in Vallejo and Pleasant Hill, California, and offer to all janitorial employees employed at said theaters on such date immediate and full reinstatement to their former jobs, or if those jobs no longer exist, to sub- stantially equivalent positions without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered by them in the manner set forth in the above section entitled "The Remedy." (b) Upon request, bargain collectively in good faith with Service Employees International Union, Theater Janitors Union Local 121, as the exclusive representative of the Respondent's employees in the appropriate janitorial unit servicing the four theaters of Respondent in Vallejo and Pleasant Hill, Califor- nia, with respect to wages, hours, and other terms and conditions of employment. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, SYUFY ENTERPRISES 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 Order. (d) Post at its theaters in Vallejo and Pleasant Hill, California, copies of the attached notice marked "Appendix." 15 Copies of said notice, on forms pro- vided by the Regional Director for Region 20, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (e) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. 15 In the event that this Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to carry out the Order of the Board and abide by the following: WE WILL NOT refuse to bargain collectively with Service Employees International Union, Theater Janitors Union Local 121, as the exclu- sive representative of our employees in the fol- lowing appropriate unit: All janitorial employees at our Vallejo and Pleasant Hill, California, theaters, excluding clerical employees, guards, and supervisors as defined in the National Labor Relations Act. WE WILL NOT unilaterally subcontract janitori- al unit work or otherwise make changes in the wages, hours, and other terms and conditions of employment of our janitorial employees without prior bargaining with the above-named Union, or any other union our janitorial employees may 743 select as their exclusive bargaining representa- tive. WE WILL NOT discourage membership in Ser- vice Employees International Union, Theater Janitors Union Local 121, or any other labor organization, by unilaterally subcontracting the work of employees in our janitorial service unit to other employees, or otherwise discriminating against our janitorial employees in regard to hire or tenure of employment or any term or condi- tion of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the Act. WE WILL bargain collectively with Service Em- ployees International Union, Theater Janitors Union Local 121, as the exclusive bargaining representative of our employees in the appropri- ate janitorial unit with respect to wages, hours, and other terms and conditions of employment. WE WILL reinstitute our janitorial operations as they existed at our theaters in Vallejo and Pleasant Hill, California, on April 30, 1974, prior to the time we subcontracted such opera- tions to National Home Service after unilateral- ly terminating our janitorial service contract with American Building Maintenance Compa- ny. WE WILL offer to all janitorial employees em- ployed at the aforementioned theaters on April 30, 1974, and discharged as a result of our wrongful action in subcontracting our janitorial operations to National Home Service immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiv- alent positions without prejudice to their senior- ity or other rights and privileges, and make them whole for any loss of pay suffered by them as a result of our illegal conduct. SYUFY ENTERPRISES, A LIMITED PARTNERSHIP DECISION STATEMENT OF THE CASE ALLEN SINSHEIMER, JR., Administrative Law Judge: The above proceeding was heard on September 12, 13, 16, 23, and 30, 1974, at San Francisco, California. The complaint I and notice of hearing issued July 31, 1974, and an amend- ment to the complaint on August 23, 1974. It alleges viola- tion of Section 8(a)(5) and (3) of the Act and also 8(a)(1). The issues involve (1) whether or not Respondent and 1 Based on a charge filed May 16, 1974 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD American Building Maintenance Company, herein called ABM, were joint employers of certain employees here in- volved; (2) and, if so, whether Respondent as such joint employer improperly terminated the employment of cer- tain persons without negotiating with the Union with re- spect thereto. Upon the entire record, including my observation of the witnesses and after due consideration of the briefs of the General Counsel, the Charging Party and Respondent, I make the following:2 FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Respondent is a limited partnership with its principal office and place of business in San Francisco , California, and at all times material has engaged in the operation of motion picture theatres in various locations in California. During the past year, Respondent received gross revenues in excess of $500,000 and during the same period it pur- chased and received goods and supplies valued in excess of $50,000 directly from persons located outside the State of California. I find that Respondent is and at all times mate- rial has been an employer engaged in commerce and oper- ations affecting commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Service Employees International Union, Theater Jani- tors Union, Local 121, herein called the Union, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction and Background Syufy Enterprises, is a large theater owner and operator with numerous theaters in California. Prior to collective- bargaining negotiations , in 1973, there had been collective bargaining between a multiemployer unit, including Syufy Enterprises, and a multiunion group covering numerous Locals in Northern California, including Alameda, Contra Costa Counties and San Francisco . One of the unions in the multiunion group was Local 121. In 1973 the overall group was broken down into smaller groups. There was bargaining between a multiemployer unit, including Syufy, with Local 121 with respect to certain theaters in the East Bay, but which did not include the theaters of Syufy which are the subject of the instant proceeding; i.e., the three theaters then in existence , two in Vallejo and one in Pleas- ant Hill, and the Four-Plex in Pleasant Hill which was not in existence at that time. As a result of the 1973 negotia- tions, a collective-bargaining agreement was entered into between the multiemployer unit and Local 121 which is still in existence and governs the relationship between these employers (including Syufy) and Local 121 at a number of East Bay theaters in Alameda and Contra Costa Counties 2 Certain errors in the transcript are hereby noted and corrected. but does not include those here involved .3 Also at the same time, there was a multiemployer unit in San Francisco which negotiated separately with Local 9. The bargaining involving theaters other than those here involved was joint but separate contracts were entered into by the respective employers. There were no intervening maintenance con- tractors involved. Although prior to 1973, the theaters here involved had been a part of multiemployer bargaining, there were evi- dently individual employer contracts. Also, from Novem- ber 1971 to February 1973, the date of expiration of the prior multiemployer bargaining contracts, Syufy Enterpris- es, had subcontracted the janitorial work for the theaters here involved, then in existence, to an enterprise known as Solano Janitorial Service. Accordingly, Syufy utilized a subcontractor from November 1971 to February 1973 with respect to three of the four theaters herein. Upon the termination of the contract in February 1973, Syufy directly employed the janitors at the same three theaters. B. Relationship Between Syufy and Local 121 to December 26, 1973 Prior to the Solano Janitorial Service subcontract in 1971, Respondent had directly employed members of Lo- cal 121 as janitors at the theaters in Vallejo and Pleasant Hill since as early as 1966. During most of that time, it employed the same individuals and except for the period of the Solano Janitorial Service they were under the direction of Syufy's manager of personnel. Solano Janitorial Service also retained and employed the same janitors who had been employed by Syufy. Upon the expiration of the multiunit agreement on Feb- ruary 14, 1973, which had been entered into originally in 1968, Respondent sought to separate from the multiem- ployer unit its two locations in Vallejo and its Century 21 theater in Pleasant Hill. The Union, after first questioning the legality thereof, agreed to such separation and negotia- tions commenced in March 1973 between Syufy and Local 121 to cover a unit composed of these locations. The par- ties were represented by Frank Figone, secretary-treasurer of Local 121 and James Cargile, Respondent's (Syufy's di- rector of operations) who met on numerous occasions with- out resolving their differences. Syufy, following the termi- nation of the Solano subcontract, agreed to employ the same personnel temporarily and to continue the terms of the expired contract but without specifying any time dura- tion. Separate bargaining for the three theaters was sporadic but the record does not reflect a failure by Syufy in its duty to bargain. Meetings were held and the positions of the parties were set forth and discussed. Syufy said that it de- sired to contract the work to an independent contractor. Local 121 indicated there was a problem about subcon- tracting the work and opposed any change in the manning of the work; i.e., the number of hours and shifts required to 3 With respect to Syufy Enterprises, said contract governs the wages, hours, and working conditions of individuals represented by Local 121 in a number of theaters in Alameda and Contra Costa Counties, other than the theaters here involved. SYUFY ENTERPRISES perform the work. Syufy indicated its concern with the eco- nomic burden at the Vallejo theaters. Figone testified there were four or five discussions between March and Septem- ber. Cargile said there were several meetings and telephone calls in addition to correspondence. The aim of contracting the work to another employer is reflected in correspondence which refers to the prior con- tracting and Syufy's desire to do so in the future. As stated, Local 121 considered subcontracting to be a problem. Fi- gone testified that at one of the meetings in March 1973, that Cargile stated that Syufy did not want the theaters to be staffed by personnel belonging to the Union and would not tolerate any further increases in expense at these loca- tions. Figone testified, "Mr. Cargile told me that Ray Syufy wanted to go nonunion in Vallejo and that he didn't want any further increases in his theaters . I still wanted to continue to negotiate ; I still phoned him up." With respect to the foregoing, Cargile testified that he and Figone met and discussed a contract for the Vallejo and Pleasant Hill theaters. Figone proposed they accept the Association Contract and Cargile replied that under the economic con- ditions that existed within the theaters, it was impossible to do so. On August 28, Syufy again requested a meeting regard- ing subcontracting or solving the problem as to the janitors at the three theaters . A charge was filed by the Union alleg- ing failure to bargain by Respondent by not adhering to an Association settlement, etc. Subsequently , this charge was dismissed by the Regional Office. Following the dismissal of the charge, apparently noth- ing occurred between the parties until December 1973. At that time, Syufy was remodeling at Century 21 in Pleasant Hill to construct some new and additional theater opera- tions (herein referred to as the Four-Plex) which could be subjected to the pressure of a picket line. About 2 weeks before Christmas 1973, Figone of Local 121 and Jack Haigh, Syufy's assistant in charge of construction, met at a coffeeshop and discussed the four theaters . Cargile, the op- erations manager, was no longer with the Company in that position. As indicated, Figone did not deal with Cargile's successor-but with Haigh. According to Figone, Haigh ex- pressed Syufy's desire to hire a contractor as had been its indicated position since March . Figone testified he provid- ed Haigh with the names of several maintenance contrac- tors, including American Building Maintenance Co., here- in called ABM.4 Haigh testified that he didn 't recall Figone giving him the names of contractors including ABM but that he had known of ABM for many years and it had been recommended by another theater operator. Figone also tes- tified that he had no objection to the use of maintenance contractors. Figone testified that there was reference to a labor dispute over the manning of hours. Subsequently, Figone testified he had told Haigh that he had been au- thorized by his executive board to place a picket line and ask his international for strike sanctions. Figone also, in December 1973, so advised Alvin Averbuck of ABM. Haigh, on direct examination , testified at the coffeeshop meeting that Figone "wanted to see if we could negotiate a A nationwide janitorial contractor with more than 8,000 employees op- erating in over 60 cities in the United States and Canada. 745 deal with our people and him for the janitorial services." Haigh added that Figone also wanted to "come to some conclusion over hiring his people in our theaters ," but did not mention any names. Haigh, on cross-examination, said that in his meeting with Figone there was no discussion regarding employment of his (Local 121) members. C. Respondent's Negotiations and Agreement With ABM Haigh communicated with ABM on his own initiative. In response to Haigh's telephone call to ABM, Alvin Aver- buck, then an account executive or salesman for ABM, met Haigh three or four times in Pleasant Hill.5 Haigh indi- cated that he wanted service by ABM only in Pleasant Hill. Averbuck spoke to Figone and then told Haigh that ABM would have to work with Figone who insisted that the Val- lejo theaters be included in the ABM contract. Syufy did not desire this because the Vallejo theaters were said to be suffering economically. These latter theaters were eventu- ally agreed to at a meeting thereafter between Haigh and Averbuck in which Averbuck told Haigh that Figone was threatening a picket line where the construction project was proceeding. Haigh was also made aware of their threat directly by Figone when Haigh called Figone in between meetings with Averbuck. Thereafter, Haigh negotiated a contract with ABM for the three existing theaters and also the new Four-Plex. Averbuck stated that as account execu- tive and representative of ABM, he had authority to nego- tiate a contract and said this was not limited in any re- spect.6 The negotiations proceeded, particularly with regard to economic terms, with Haigh desiring to keep the cost down and Averbuck seeking to work out an agree- ment. The result of this was that the matter of window cleaning by the janitors was omitted to hold down the cost and it was provided that Syufy would furnish its own sup- plies. Normally, ABM furnished supplies except for certain disposables I but Syufy believed that it could furnish them at less cost than ABM since it was buying them in large quantities for all of its theaters. The contract accordingly varies in said respect from the normal ABM agreement. D. The Matter of Supervision Under the Contract There is considerable dispute between Syufy and ABM with respect to the extent of supervision exercised and by whom. The contract in the paragraph entitled "Supervi- sion" provides: SUPERVISION Regular supervision is maintained over all working personnel. Our service operates 24 hours a day. Our Supervisory staff has been promoted to their positions 5 Averbuck's son is a partner in the law firm that represents the Charging Party. 6 Such testimony by the purported agent is not necessarily conclusive of the fact. However, his superior, Dennis Isheim, did testify that Averbuck had authority to negotiate and make oral representations , although Isheim testified as set forth post he was unaware of any variation from the written contract provisions as to supervision or any alleged oral agreement re- specting supervision by Syufy, testified to by Averbuck post. 7 These are presumably items used in restrooms, such as toilet tissue, towels, etc. 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on ment and length of experience . It is American's job to see that all American activities are properly coordi- nated with the Customers' operations, modify assign- ments if and when necessary , instruct, inspect and cor- rect the working personnel, make needed adjustments, check requisitions and dispense supplies and equip- ment, train new employees, make "on the job" inspec- tions with or without the Customer's own representa- tive, and do everything possible to assure complete harmony between American's employees and American's customers. Averbuck testified in essence that Haigh had asked to have the right for Syufy to jointly supervise the employees with ABM, and that this had been agreed upon. To evalu- ate this issue of supervision, testimony will be set forth in some detail as to what was said with respect thereto.8 With respect to supervision, Averbuck testified: A. Right. Mr. Haigh questioned me as to the super- vision of these employees. Mr. Haigh told me that he had had bad experience in the Vallejo supervision of the employees. Well, I told Mr. Haigh that we had supervisors who would supervise employees, and that that was part of their job, and that they would do it. Q. What did Mr. Haigh say, if anything? 11 s s s A. THE WITNESS: Mr. Haigh said, to the best of my recollection, that the managers should be able to tell the janitors what to do in case anything came up that they wanted to have done. Q. Did you say anything? A. I told him that was fine. Averbuck was then asked about a discussion with Haigh about requests regarding rights of removal of employees and testified: Q. Can you tell me, to the best of your recollection, what Mr. Haigh said and what you said? A. Well, I told Mr. Haigh that if they were not sat- isfied with an employee to call us and that the employ- ee would be disciplined or he would be terminated. Averbuck also testified on cross-examination as to supervi- sion: Q. When you negotiated this contract, or any con- tract, isn't your main selling point that you supervise and see that the job is done well? 8 An issue raised in this respect is the parole evidence rule and its applica- tion The contract as set forth reflects ABM would conduct supervision but does not prohibit Syufy from participating therein . Furthermore, as set forth hereafter, there is a substantial amount of testimony as to what supervision occurred and by whom . I believe under the circumstances in order to evalu- ate the issue of thejoint employment relationship, it is necessary to consider what was said by the parties as well as what in fact occurred . I note in this connection that both the Board in Printing Industries of Northern California. 204 NLRB 576 ( 1973), and the court in Communication Workers of America v Pacific Northwest Bell Telephone Co 337 F 2d 445 (C.A. 9, 1964). indi- cated the parole evidence rule is particularly inappropriate in the area of labor relations Accordingly, I am considering the evidence set forth with respect to the matter as set forth hereafter. A. Yes, sir. Q. You have been a salesman for many years, isn't that right? A. Yes, sir. Q. And when you make your sales pitch, you em- phasize the supervision that you provide, don't you? A. Yes, sir. Q. You made that pitch to Syufy, didn't you? A. I made part of that pitch because Syufy took over the other part of that pitch. Q. You made that pitch to Jack Haigh, didn't you? A. Yes, I did. Q. And you told him you included it in the con- tract, didn't you? A. Yes. Averbuck further testified that the subject of supervision was a major part of the discussion and occurred on two or three occasions during the period of December 18 through 27. Q. (By Mr. Dvorin) There was a statement made by counsel with respect to asking whether you made a pitch regarding supervision, to Mr. Haigh. Can you explain what that pitch was? What you said and what Mr. Haigh said, so the record is clear on that? A. At the start of it I told Mr. Haigh "That Ameri- can Building Maintenance Company has an inspec- tion service. We have a girl that goes around and in- spects. We have a supervisor who inspects. And I am available for inspections." This is my regular pitch as regard to the way that I go. And that such supervision would be given. Averbuck further testified: Q. (By Mr. Dvorin) Whether what you say as to what the final and binding status is? A. Yes, the pitch is incorporated as part of the con- tract. Q. Was that the case in this situation? A. Yes. Q. Nothing further was said with regard, other than that, with regard to ABM doing the supervision? A. Much more was said about supervision. Q. Would you please tell me what, just to clarify it for the record? A. Mr. Jack Haigh wanted it understood by us, and that was part of the negotiation; that they would have the right to supervise and to deal with these employees because of the hours in the theaters, the difficulties involved, and that they would take responsibility of dealing with these employees. Q. Was that exclusive responsibility or did both ABM and Syufy have a responsibility for supervision? A. Both. MR. DvoRIN: I have no further questions. On further cross-examination Averbuck testified: Q. (By Mr. Holmes) What do you mean by the right to deal with employees? A. That Mr. Haigh would have the right that in SYUFY ENTERPRISES case he felt that somebody was doing a poor job, to call us up and say that he didn't want him on the job. In case he wanted to give instructions to these peo- ple that he would have the right, through his manag- ers, to give instructions to these people. As regard to service; what is to do done. With respect to the same matter of supervision, Haigh testified as follows: Q. Let me draw your attention to the second page of the contract, General Counsel's 7. There is a clause there headed "Supervision." Did Mr. Averbuck discuss the matter of supervision with you? A. That is what he talked about all the time. Q. What did he say? A. He said that they provided supervision at all times during the time the janitor was there. They would come around when he wasn't there and make sure that it was well taken care of. And this is why they could do the job. a r r s Q. (By Mr. Holmes) Did he say that he would have a supervisor continually on the premises? t n t # THE WITNESS: Not continually, No. Q. (By Mr. Holmes) What did he say about it? A. He brought a man in and introduced him to me. He said, "This gentleman will be the supervisor. He will come into this theater and see to it that it is main- tained, it is cleaned, and he will supervise the people that are working here." As set forth, Averbuck stated that he was authorized to negotiate a contract and make oral representations. Averbuck's supervisor, Dennis Isheim, division manager, testified that both Gary Green, assistant branch manager, and Alvin Averbuck, account executive, had authority to negotiate new accounts, discuss how much it would cost and the conditions under which ABM's employees would work, whether or not various provisions would be allowed or deleted in the contract, to make oral representations or interpret certain portions of the contract, explain certain portions of the contract to a prospective account, and had "authority to make those representations binding on ABM." Isheim also testified that the contract paragraph entitled "Supervision" was a standard paragraph; he did not specifically discuss that paragraph with Averbuck, that he did not check to see if it was included; and it was standard to put it in without checking. Isheim also testified that to his knowledge there were no special arrangements made with Syufy varying the terms of that clause (re super- vision) of the written contract. Isheim further testified that to his knowledge, there was no special arrangements for Syufy theater managers to give instructions or supervision directly to the janitors. Isheim also said "it is not uncom- mon for a customer to make complaints occasionally and directly to janitors if they see them, or to leave notes for them if there is anything they want particularly attended to 747 or that they thought was overlooked." During the course of the negotiations, Averbuck brought Treadway, a supervi- sor, to see Haigh and introduced him as the ABM supervi- sor. In addition, as set forth, after Averbuck said he told Haigh that Syufy's manager should be able to tell janitors what to do in case anything came up they wanted to have done, he said that ABM should be called if an employee was to be disciplined or terminated. In one instance, Aver- buck, upon a complaint from Whiteman of Syufy, that counter tops were not cleaned, suggested that he speak to the janitors about the matter, assuring him that the janitors would listen.9 Averbuck was also asked and testified: Q. Have you supervised janitorial work which has been done by employees of ABM which work was per- formed after regular business hours, and in that situa- tion known of occurrences where a customer, or an employee of a customer, would call things to the atten- tion of a janitor? Such as, "You forgot to empty the waste basket last night." A. Yes, sir. Q. Is this a fairly common thing in the janitorial business? THE WITNESS: Generally, this is the rule. However, at the Paramount Theatre we have an ar- rangement by which the Manager will not give any instructions whatsoever to a janitor. Everything must be done through our supervisor. JUDGE SINSHEIMER : Let me ask you this question: At the Paramount Theatre do you have a supervisor who is regularly there? THE WITNESS: Every time the job is done someone from our firm has the responsibility to go down and check it out. JUDGE SINSHEIMER : Now, is that true with the job that you were doing for Syufy at the theaters involved in this case? Was there someone there at all times who-from ABM who was to be supervising work? THE WITNESS: No, Sir. Haigh also testified as to supervision: Q. What did you mean by discussing any com- plaints your company might have with respect to the janitorial service? A. Well, I told him how unhappy we were, and that our manager had problems with the people that were working there. s 9 Averbuck testified as follows- Q. (By Mr. Dvorin) Now, can you tell me the conversation as best as you can recall between yourself and Mr Whiteman? A Mr Whiteman called up and he said that there was dust on the counter top During the course of discussion I explained that the thing was agreed that we would not clean the counter tops That would be done by the people who served there. Q. Did you-Excuse me A. Then I told him that this job was just started and, "Why don't you tell the janitors. They will listen to you We are trying to get this thing off on a good footing." "You just tell the janitors what you want done. I am pretty certain they will listen to you" 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He emphasized supervision and that that was what I was buying was his supervising. All those people would be cleaning the theater, and that they would see to it that the theaters were clean. Q. Mr. Averbuck assured you that supervision would be present whenever necessary? A. Whenever necessary. That they would supervise the theaters. Q. Well, you said you were buying supervision. You were interested in that area , weren't you? A. That is right. Q. And that would be the area of really great impor- tance, wouldn't it? A. That is why I hired American Building Mainte- nance. 11 [Emphasis supplied.] As indicated, supra, the giving of certain instructions by customers to employees was common in the janitorial busi- ness and as set forth, in the instance, Syufy had first direct- ly contacted ABM's representative with respect thereto. In addition, there is the testimony of Averbuck as to the right of Syufy to call ABM in the event of a poor job as well as Averbuck's testimony that instructions could be given through Syufy's managers . Further, both Isheim and Green said that Averbuck was a salesman who would have noth- ing to do with a contract from about 2 to 4 weeks after he had negotiated the same . Averbuck himself testified that after he negotiated a contract it was turned over to the operating people who, starting with Treadway, went up the ladder to Isheim . In an affidavit that Averbuck gave to the NLRB, he stated : "As it worked out ABM has exercised the supervision over the employees of the four theaters." Averbuck testified that the reason for changing his testimo- ny was that he had not consulted certain sales records be- fore signing this. However, the latter except perhaps as to one reflected incident do not appear sufficient to support the variation in testimony unless they could be said to aid recollection in some unspecified way. Also to be noted is Figone's testimony: Q. If a janitor is doing his work in the morning and there is a matinee he may be there still doing his work when the manager of the theatre arrives. Isn't that correct? A. In some cases. Q. That is just a coincidence though, isn't it? A. Yes. l' The foregoing appears to reflect: (1) That Syufy wanted to have its managers on occasion able to ask for a janitor to do certain work. This would not be unusual, but rather an expected manner of operation; and (2) Averbuck's testimo- ny as to there being an agreement for joint supervision is not consistent with his affidavit , nor consistent with his testimony that Syufy Representative Whiteman had con- tacted him to request that certain work be performed, nor with other testimony set forth above . 12 Further, Averbuck's 10 Haigh admitted that if he were a manager he would, on occasion, like to tell a janitor what to do. 11 The janitors had keys so they could enter and leave 12 I also have noted his repeated repetition of this alleged joint supervision during his testimony testimony that supervision was to be in "both" is in the form of a conclusion rather than probative testimony of what was said or done . Additionally, as set forth, Aver- buck, a salesman for ABM , is also the father of an attorney in the law firm representing the Charging Party . As a sales- man, Averbuck obviously touted his client . Finally, as a witness he tended to testify in terms of conclusions with amplifications and elaborations rather than statements of what was or was not said . The result was the not unfamiliar problem of coloration of evidence with a witness' view- point and inferences . Accordingly, I am not crediting his version as to the extent of the supervision that was sought or bargained for. I conclude that the supervision that was sought, bargained for, and agreed upon was that ABM would do the supervising and that Syufy would have the right to make requests at times of employees to do certain jobs or to correct certain things . 13 What occurred actually re supervision following the contract will be set forth here- after. E. Conflict Between Haigh and A verbuck as to Employment of Nonunion Personnel According to Averbuck, Haigh wanted to hire nonunion personnel . Haigh denied that any such request was made. Averbuck testified: A. Between the period of December 18th and the 25th, Christmas day, there were numerous discussions about union representation. Q. Can you tell me what was stated at that time, please? A. Mr. Haigh inquired about it. I told him that American Building Maintenance would do business with Local 121. That was our poli- cy. He wanted to know whether or not it was possible to bring in some other union, or to bring in nonunion people. I told him, "No. That if you did business with American Building Maintenance it would have to be Local 121." Haigh denied requesting that any particular persons be hired and particularly denied requesting nonunion person- nel. Since Syufy had evidently not been entirely satisfied with the janitorial service as indicated by Haigh , supra, I conclude that there may have occurred discussion about who would be employed and whether they would be union or nonunion. According to Haigh, when Averbuck told him he had to work with Figone, Haigh told him that was his problem, not Haigh's. While there may have been some discussion of who would be hired or used, I do not there- from find that Haigh made any request that nonunion peo- ple specifically be hired although he may have indicated that he didn't get along too well with Figone. 13 As set forth post Supervisor Savage asked Janitor Pangelinan to clean his office, etc., which Pangelinan did, and then reported to his supervisor, Robinson, in accordance with instructions given him by ABM as set forth in fn 14, infra SYUFY ENTERPRISES F. Application of the A BM Contract Upon the entry into the contract between Syufy and ABM, the same persons who had been employed continue to work. Figone asked Isheim (of ABM) if he would take over the janitors then employed and Isheim agreed . Isheim testified that although the employment of the same persons as janitors by ABM was not normal, it has been done on other occasions. The janitors made out applications for employment with ABM which were signed and dated about January 3, 1974. However, their payroll period commenced December 27, 1973. These employees filled out a variety of papers for ABM, and also received forms and instructions from ABM. These included (1) the application for employment form, together with personnel action form authorizing hiring and form showing hiring had occurred; (2) application for fi- delity bond coverage ; (3) notice to employees explaining how to work without a supervisor present and how to fill out his timecard; (4) an instruction and information sheet; (5) a notice to employees stating procedures in case of inju- ry and setting forth required procedures if the employee cannot report to work; (6) safety instructions; (7) a time- card form; (8) a personnel action notice of termination; and (9) an unemployment insurance questionnaire. The instruction and information sheet advises as to sus- pension, telephone number of company , re reporting inju- ries, re reporting to work , unauthorized personnel , comple- tion of job, breakage, alcoholic beverages, ABM identification card, smoking, theft, weapons, gambling, selling, damage to property , loafing, obeying orders, po- liteness, etc. As to politeness it states: If you should meet someone on your job, be polite and tend to the business of cleaning his premise. If he should ask you to do something , be pleasant and do it. Report the incident to your supervisor the next day. They became participants in the pension and welfare plan that ABM was party to with the International Union and various locals. Two of ABM's supervisors were designated to supervise their work, one was Al Treadway for the Pleasant Hill Theaters, the other was Robinson who was to supervise the theaters in Vallejo. Under Robinson's con- tract with ABM, he was to supervise and see that service was provided, to inspect at least weekly , submit documents for new hires , get timecards in on time, and so forth. It is clear that the employees were on the payroll of ABM, they were hired by ABM, and were to be terminated by ABM. Other representatives of ABM including Wilkerson, Green, Isheim, and a Ms. Warner made inspections and were available to check on the work of these janitors, in all seven different people could make random or specific checks. However, as far as the record reflects, from the time of the contract on December 27 to notice of termina- tion March 28, and termination on April 30, it does not appear that any actual inspections or reports of such were made by representatives of ABM. Nor was there actual supervision of the work on the job so far as the record reflects. A point has been made that no keys were given to 749 ABM representatives except for the janitors. However, the record reflects that certain representatives of Syufy, includ- ing Haigh, did not have keys to the premises. Isheim testi- fied he told Wilkerson, a district representative over Super- visor Treadway and also Treadway that they should have keys to the accounts. According to Isheim, when Wilkerson and Treadway attempted to obtain keys, "they were told at one time . . . that they would try to get keys for them," but keys were not obtained. The timecards of the approximate- ly four or five janitors involved were either mailed in, if under Supervisor Treadway, or by those supervised by Robinson, delivered to him. There were no set hours of work except that the work was to be done outside the time of the performances and it was generally left to the janitors as to when they would work. Stanley Bueno, a janitor at Cine 21, testified that its manager, Kuykendall, was the only person with whom he discussed job assignments. Bueno also testified: Q. Sir, can you tell me, did it ever occur that during one of your shifts, perhaps due to the amount of work, you were unable to complete all the assignments which were ordinarily to be done during that shift? A. Yes, many times. Q. Did you ever discuss this with Mr. Kuykendall, that you hadn't completed something? A. Yes. Being in the theatre working, I have told him that there were times that I haven't been able to finish a certain section, that I would try to do the best I could. And he has said that it was OK, try to pick it up another day, or something like that, the best I could. Bueno never saw Robinson the ABM supervisor, at the theater. Although he saw Robinson at Robinson's home, he was not questioned about the job. Kuykendall also gave Bueno an assignment to let in concessionaires , sign for de- liveries and let in carpet cleaners. According to Bueno, he had never signed for deliveries prior to the commencement of the ABM contract. Bueno also testified that he wanted his girl friend to work with him-instead of him working 6 hours, each would work 3 hours. He asked Kuykendall if that would be all right. Kuykendall told him that all he was interested in was a clean theater and that the manner in which Bueno did it was up to him. Francisco Pangelinan, a janitor at the Auto Movie in Vallejo testified he had never met Treadway , never seen Robinson at the theater while the ABM contract was in effect, and that his nonroutine job assignments came from Manager Bill Savage of Syufy. According to Pangelinan, on one occasion, Savage directed him to rent a pump, us- ing his own car as transportation, and use it to clean up water leakage at the theater. He said that Savage also told him to regularly clean the room where the popcorn was, to let concessionaires in, to clean windows and vents, and to clean and wax Savage's office, duties which were not cov- ered by the contract. Pangelinan commented on this to Robinson 14 who agreed these duties were not in the con- tract, but Pangelinan performed the work anyway. Pangeli- 14 This performance of extra work and then taking it up with ABM super- Continued 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nan testified Savage had told him to do this work and he did so. On one occasion Whiteman, a Syufy manager, did tele- phone ABM to ask how to get janitors to clean countertops which ordinarily IS were not covered by the contract. As set forth, Averbuck who received the complaint suggested that Whiteman tell the janitors what to do and call him back if he had further problems.16 The record further reflects that Pangelinan and Bueno testified their respective managers discussed with them what supplies were needed and that both had more than one such conversation. Pangelinan also stated that Savage asked him to stay overtime on heavy days to finish picking up the trash and that he began staying overtime on such days without com- pensation. Bueno further testified that another person named Craw- ford, not an employee of ABM, also performed the same kind of janitorial work he did. Manager Kuykendall admit- ted he hired, directed, and supervised Crawford but testi- fied he hired Crawford to perform certain special work cleaning the storeroom, grout, or tile, and graffiti on walls and tile, seats for candy and gum, etc., not covered by the contract. Kuykendall stated some of this work was to con- form to health and fire law requisites. Kuykendall also said that Crawford was expected to clean up around this special work so that, accordingly, he was required at times to sweep and mop up after performing such work. Bueno tes- tified he also saw Crawford sweeping otherwise and mop- ping alongside him. I am crediting Kuykendall's testimony that Crawford was hired to perform noncontract special work. Accordingly, I find if Crawford did perform any of the same janitorial work as Bueno , it was either in connec- tion with his special assignments or outside the scope of his employment by Kuykendall. The foregoing, with respect to the matter of Savage ask- ing Bueno to do certain work not covered by the contract does appear to illustrate some supervision by Syufy in that in these instances its manager sought to have work done beyond the terms of the agreement with ABM. As indi- cated, this was reported to Robinson, ABM's supervisor, who made no point of it. How much this amounted to is not clear. Apparently, it related to certain work in Savage's office, to clean the popcorn room, and at least on occa- sions, cleaning windows. As for the pump incident, it ap- pears to relate to obtaining a pump because of excess water so the janitor could perform his normal functions. I am unable to see particular significance in the letting in of concessionaires . Presumably, whoever would be on the premises would let somebody in when required. As for the matter of Bueno's hours being split with his girl friend, it appears that the theater manager's attitude was that he was unconcerned (and wanted to be uninvolved) as long as the work was done. As set forth, when Bueno couldn't finish the work on busy days he would so advise Kuykendall who vision appears to have followed instructions issued by ABM, particularly item 13 of certain instructions, referred to supra footnote 15 In this case there was a question as to who caused the dust. i6 Averbuck also told Treadway to check this out but didn't know wheth- er Treadway did so. would say OK, try to pick it up another day. While this may arguably be said to illustrate supervision, it can also reflect acquiescence in a situation best manifested by the question: What were Kuykendall's alternatives? He could not directly discipline or fine Bueno although he could threaten to complain to ABM. In either case, supervision would clearly rest with ABM. As for the matter of supplies it would appear that nor- mally where janitors needed supplies which were supplied by Syufy, that the janitors would be asked by the manager what they needed and the matter thereafter resolved. Ac- cordingly, the supply situation does not appear to reflect particular supervision. It should also be noted in connec- tion with the issue of alleged supervision by Syufy, that the theater managers were not present during very much of the time that the janitors were and need not be there at all. 17 Evidently the managers were present some of the time since certain requests were made to or by them. Analysis of the foregoing reflects: (1) Requests by Sav- age to do certain extra work, indicative of some effort to supervise by him; (2) discussion of supplies which does not appear to reflect supervision by Syufy; (3) requests to let certain people in, essentially a matter of convenience which could normally be anticipated; (4) determination of hours and work performance by the employees since there were no set hours, coupled with the attitude of Syufy managers that as long as the employee gets the job done, that's satis- factory. Obviously, if the Syufy manager were satisfied, then there would be no complaint to ABM and it would not become involved. If the Syufy manager were not satis- fied, a janitor might expect that the manager would there- fore notify ABM. That ABM did not actually send people to check on the work bears on the issue of supervision. Testimony reflects that ABM generally supervised or checked where there were problems and did not do so otherwise. There appears to be two instances of problems, one relating to the matter of cleaning of a countertop wherein Whiteman complained to Averbuck who suggested that Whiteman take it up di- rectly with the janitor involved. The other relates to a com- plaint by Syufy's Manager Savage about the work of an employee named Dio Campo. In this connection, it ap- pears that ABM did draft a letter to Dio Campo warning him that discipline would be in order if his work did not improve. According to Isheim, Wilkerson sought to deliver the letter but could not locate Dio Campo and brought the letter back and shortly thereafter Dio Campo quit. Figone testified concerning Dio Campo: Q. Did anybody from ABM call you or make a complaint about the quality of work performed by one Dio Campo in Vallejo? s s A. I believe it was Treadway. Q. Did he tell you that ABM had received a com- plaint from Syufy about Dio Campo's work? A. Yes. 17 Figone, supra, testified the theater manager present would be coinci- dental. SYUFY ENTERPRISES 751 * Q. Did you receive only one complaint about Dio Campo? A. I removed Dio Campo. Q. After you got the complaint from Treadway? A. Right. G. Termination of the Contract The contract was terminated by Syufy according to its terms by letter of March 28, 1974, to ABM advising of its termination as of April 30. Respondent asserted the work was not being satisfactorily performed. Ernie Furman, di- rector of operations (formerly division manager), who sent the March 28 letter, testified that he told Averbuck in a meeting in Furman's office that the managers were com- plaining that the theaters were not being cleaned properly. Furman said that Whiteman had brought him such com- plaints from the managers about a half dozen times. How- ever Furman did not specify details as to these complaints. Whiteman has since left Syufy's employ. Ernie Furman admitted Syufy had an address for him but had not sought to contact him. Savage, who purportedly had complaints about the work, admittedly proceeded to go on vacation during the course of the hearing. There was no indication as to why arrangements could not have been effected to enable him to testify. So far as the record reflects, except those as to the countertop and Dio Campo, supra, com- plaints were not directed to ABM or delineated in any way that would establish or show a basis therefor. Furman told Averbuck in Furman's office that he didn't know whom Syufy would use for janitorial services but would put out bids. Furman admitted this was not true and Syufy already had a new contractor. Furman testified he misadvised Averbuck in order to get him out of his office. Accordingly, based on the above and other record evi- dence, I conclude and find that Respondent's excuse of complaints concerning poor workmanship as its basis for termination of the agreement cannot be substantiated. A question arises as to whether or not the termination of the Syufy-ABM contract was automatically improper because the alleged reason therefor cannot be supported. In my judgment such conclusion would not follow unless it were found herein that Syufy and ABM are joint employers, as asserted by the General Counsel and the Charging Party, or unless such termination were found to be predicated on illegal discriminatory motivation. If not for the asserted claim, a question may be: Why was the Syufy-ABM contract terminated? An examination of the contract Syufy entered into with a Mr. "Tau" may provide an explanation. First, it appears that Syufy did seek bids for the work sometime prior to March 28, but received only one from Mr. Tau. Furman admittedly did not know Tau, his competence or reputation. The contracts between Tau and Syufy contain no manning requirements, or hours of work provisions, etc. Under it Tau is to provide materials, equipment, and supplies other than the restroom supplies. Furman admitted that the price of Tau's bid led him to conclude that Tau was nonunion, and subsequently Furman said that he knew Tau was nonunion. The record reflects that the contract with Tau was over $400 less per month than the one with ABM for the Centu- ry 21 theater and that it was less for each of the other theaters which had been covered by the Syufy-ABM con- tract.18 It may be urged that Syufy wanted to get rid of the Union based on an asserted statement by Cargile to Figone in March 1973 that Syufy wanted to go nonunion and the purported statement of Haigh to Averbuck discussed supra that Syufy desired another union or to go nonunion. As to the latter statement as set forth supra, at most it would appear that Syufy did not desire to continue to deal with Figone since it had not been able to reach agreement. Fi- gone did testify that Cargile said Ray Syufy wanted to go nonunion in Vallejo. Cargile does not appear to have de- nied this statement. While Figone changed certain of his testimony after thinking about it overnight, in this instance his version may be correct. I note that Respondent indi- cated it was having economic difficulties at Vallejo at times. A reduction in costs would either require a reduction in manning or in rates from union rates which latter, of necessity, would require possible other union or nonunion employees. While the foregoing may have been expressed, I do not consider that Syufy's underlying motivation was to dis- criminate because of the Union. Syufy has had contracts with the Union as to these theaters and now has contracts with this Local 121 and other locals of Service Employees International Union covering its theaters in the San Fran- cisco Bay Area and elsewhere. What does appear is that Syufy wanted to reduce the costs of operating certain theaters so that when the oppor- tunity arose it proceeded to do so, by terminating the ABM contract, although it may have asserted other reasons therefor. H. Summation The foregoing does not establish a violation unless (1) Syufy and ABM are found to be joint employers or (2) it can be shown that the entry into the contract with ABM was deliberately designed to eliminate the Union. As to (2) 1 do not find evidence in the record to support said contention other than that which reflects that Syufy and Local 121 had not been able to reach agreement after a lengthy time period and apparently were at impasse, and that Syufy indicated it wanted to subcontract either union or nonunion. With respect to (1) the record as set forth reflects that: (1) Syufy and ABM are both large, independent busi- nesses; (2) ABM operates janitorial services in over 60 cit- ies, (in the United States and Canada), and employes more than 8,000 janitors; (3) Syufy has separate contracts with the instant local and other locals of the Service Employees International Union; (4) ABM contracts with various lo- cals of said International; (5) Syufy has contracted with Local 121 in the past for the theaters here involved (other 18 Under the ABM contract the cost of the janitorial work at the Century 21 theater was $1,489 as of February 15, 1973. with Syufy furnishing sup- plies. Under the Tau contract it was $1,025 with Tau furnishing supplies. 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD than the Four-Plex); (6) Syufy subcontracted from Novem- ber 1971 to February 1973 for the same theaters herein (except Four-Plex), it sought to subcontract for thereafter until (7) it entered into the instant contract about Decem- ber 26 or 27 with ABM; (8) said contract was entered into with ABM after extensive discussions between Syufy repre- sentatives and Averbuck of ABM with particular emphasis on costs, during which discussions, in order to lower costs certain items were changed, eliminated, or reduced, i.e., window cleaning was eliminated from the contract and supplies were to be furnished by Syufy (who considered that would be less expensive) and manning was according- ly worked out; (9) supervision was by contract to be per- formed by ABM; (10) as found above there was oral agree- ment not for joint supervision but that Syufy could ask janitors to do things on occasion ; (11) hiring and firing were to be performed by ABM; (12) complaints as to work performance, regularity, etc., were to be directed to ABM; and (13) were in fact so directed by Syufy which had the right to request termination; (14) ABM appointed two su- pervisors for the janitors and maintained a staff who could inspect; (15) inspections were not normally made by ABM unless complaints arose; (16) timecards were made out by the janitors and turned in either by mail or directly to ABM supervisors; (17) the janitors who had worked for Syufy were hired by ABM at Figone's request (while not ordinary practice, this had been done by ABM on other occasions); (18) the janitor executed an employer applica- tion and other forms and received forms and job related instructions from ABM; (19) the janitors were paid by ABM and became part of a national health , welfare, and pension program which the International Union was a par- ty to; (20) their work was familiar to them since it was routine and most of them had performed it for a substan- tial period of time; (21) their work hours were set by the janitors (except work could not be performed during per- formances); (22) in one instance concerning a Syufy com- plaint to Averbuck of ABM's cleaning, Averbuck of ABM told Syufy to request the janitor to perform the work; (23) in an instance of complaint by Syufy, re a janitor, Dio Campo, ABM drafted a warning letter to him; (24) as set forth, in one instance, Manager Kuykendall told a janitor, Bueno, upon his request, to split the work with his girl friend, that Kuykendall didn't care as long as the work was done and also told Janitor Pangelinan upon Pangelinan's request to do the work the next day to do the best he could; (25)Manager Savage requested Pangelinan to do some ex- tra work (outside the contract) cleaning his office, which Pangelinan did but complained thereof to Robinson, ABM supervisor, which was in accord with instructions issued by ABM; (26) as indicated the Syufy-ABM contract was ter- minated as of April 30 on 30 days notice by letter of March 28; (27) the Syufy-ABM contract also provided for an in- crease in payments to ABM on February 15, 1974, which coincided in time with an increase in pay for the employees on February 15, 1974, in the contract between ABM and Local 121; (28) although evidently requested by ABM, keys were not furnished by Syufy to ABM representatives: Not all Syufy officials had keys; and (29) it does not ap- pear that ABM supervisors or inspectors in fact were at any of the theaters during the period of the Syufy-ABM contract. The foregoing reflects a number of items pro and con. Among those relied on by the General Counsel are that the janitors were the same ones employed by Syufy, that there was an oral agreement for joint supervision which I have found not to be the case, that directions were given to jani- tors by Syufy managers-in the manner indicated above, that ABM did not exercise immediate personal supervision (except as set forth), that the Syufy-ABM contract was ter- minable on 30 days' notice and that the wages of the em- ployees in the ABM-Local 121 contract were indirectly de- termined by the contract between Syufy and ABM. The Charging Party and the General Counsel argue that these have been sufficient to find a joint employer relationship in other cases. Before discussing this, I could particularly note one item. While it does appear there has been some direction of the janitors by Syufy representatives, it would seem legally un- likely that any agreement between theaters and a contrac- tor providing services would be otherwise unless the con- tractor were paid to provide more supervision under special circumstances as at the Paramount Theatre referred to herein." IV. CONCLUDING FINDINGS The concept of joint employers is, of course, not new. Certain items referred to above have been found among thoses pointing to or found to be part of the elements relied on to establish a joint employer relationship. However, these have either been in conjunction with other elements not present herein or have been more direct or greater in scope. Analyses of the cases relied on by the parties will show none precisely comparable to the instant one. The question is which appear to be more comparable than others. And which items therein are most significant? Among cases cited by the Charging Party and the Gen- eral Counsel are the following: Harold A. Boire, Reg. Dir. v. The Greyhound Corp., 376 U.S. 473, 475 (1964), which is cited for the proposition that the financial and corporate relationship is immaterial. The most that can be said is that financial and corporate rela- tionships are not the determinative factors where there is an independent contractor but rather whether the party contracting the work or both, where the financial and cor- porate relationships are separate, possess sufficient indicia of control to be an "employer." According to the Court: The Board found that while Floors hired, paid, dis- ciplined, transferred, promoted and discharged the employees, Greyhound took part in setting up work schedules, in determining the number of employees re- quired to meet those schedules, and in directing the work of the employees in question. The Board also found that Floors' supervisors visited the terminals only irregu- larly-on occasion not appearing for as much as two days at a time-and that in at least one instance Grey- hound had prompted the discharge of an employee 19 A special situation where opera, symphony, etc, were performed. SYUFY ENTERPRISES whom it regarded as unsatisfactory . On this basis, the Board, with one member dissenting, concluded that Greyhound and Floors were joint employers, because they exercised common control over the employees, and that the unit consisting of all employees under the joint employer relationship was an appropriate unit in which to hold an election. The Board thereupon di- rected an election to determine whether the employees desired to be represented by the Union . [Emphasis supplied.] While certain of the foregoing elements are present here, others are not. Syufy does not set up work schedules, the number of employees required in manning was predeter- mined by the contract and little work direction is involved since the work is routine. Here there were no manifested visits by ABM supervisors allegedly because of the nature of the work and Syufy apparently did bring about a warn- ing letter to Dio Campo. The differences are obvious and in my judgment suffi- cient to make the cases not comparable. In Ref-Chem Company and El Paso Products Co., 169 NLRB 376 (1961 ), financial interests of El Paso were in- tertwined ; El Paso in the contracting agreement reserved the right to request the removal of virtually any employee, to approve the number of personnel furnished in each clas- sification and approve the superintendent and foreman for each particular job; evidence reflected that these terms were in fact effected and that El Paso's approval was re- quired before a man could be hired. The general foreman testified El Paso told him whom he could hire, when he could hire, how much he could pay, and what he was to do on the job. These and other elements clearly differentiate Ref-Chem from the instant case. So also Manpower, Inc., of Shelby County and Armour Grocery 164 NLRB 287 (1967), wherein Armour could re- quest certain drivers which would be accommodated if possible. Armour gave a test run to drivers and furnished a safety manual and conducted safety meetings . Armour's dispatcher informed the drivers of their reporting time, as- signed them runs, and prepared manifests giving the driv- ers their time of departure , approximate time of arrival, pickups, and deliveries and approximate day of return. Armour's dispatcher received driver complaints and had disciplined a driver. All paperwork completed by drivers bore Armour's name: The drivers had a bulletin board at Armours and regarded an Armour's vice president as their "big boss." Manpower supplied the drivers to Armour pur- suant to an oral agreement terminable at will . Manpower hired and fired the drivers, determined their rates of pay and made deductions as required by law, etc. The Board accordingly held both Armour and Manpower to be joint employers. Armour's manifested control makes the case not in point. In Floyd Epperson (United Dairy Farmers, Inc.), 202 NLRB 23 (1973), United's transportation manager and boss of Epperson's drivers posted the schedules and had authority to modify them and call the drivers directly. He could and did give them new instructions regarding their runs. Upon complaint by United, a driver was replaced by Epperson. Epperson receives payment from United and 753 pays the drivers and after Epperson received a raise from United, it raised the wages of the drivers. The Board held: In our opinion, the evidence indicates that both Ep- person and United take part in determining matters governing essential terms and conditions of employ- ment of the drivers. While Epperson hires the drivers and determines their rates of pay, United, through in- creases to Epperson, has some indirect control over their wages. United establishes the work schedule of the drivers, has the authority to make changes in the drivers' assignments, selects routes for the drivers, and generally supervises the drivers in the course of their employ- ment. In addition, the Warsaw incident suggests that United has some control, albeit indirect, over driver discipline. In light of all the circumstances, we find that Epperson and United are joint employers of Epperson's drivers. [Emphasis supplied.] Again the foregoing reflects far more control and super- vision by United than by Syufy herein, and hence is clearly distinguishable. In Greenhoot, Inc., 205 NLRB 250 (1973), Greenhoot was a real estate management firm which entered into agreements to rent and manage buildings. Greenhoot was authorized to hire, discharge, and pay the wages of the building employees in accordance with a schedule approved in advance by the building owner. Although Greenhoot was responsible for the supervision of building employees, the owner retained the right to determine if a building superinten- dent is to be employed and to approve the hiring and retention of all building employees. The key supervisor was the chief engineer in nearly all the buildings. Normally the chief engi- neer and other engineers in the building are retained and utilized. If it is necessary to employ a new chief engineer, Greenhoot recruits, screens applicants, and then makes a recommendation to the building owner who will ordinarily in- terview and hire the chief engineer. The chief engineer there- after directs the day-to-day building functions. In nearly all instances he hires, discharges, recommends pay increases, and schedules the work of the building maintenance em- ployees and guards. In at least one instance the chief engineer consulted dai- ly with the building owner on operational problems includ- ing labor matters and in some three instances the chief engineer consulted with the building owner for similar rea- sons, once a month. The record did not reflect what control Greenhoot exercised over the chief engineer. Greenhoot's wage budget for each building was ap- proved in advance by the building owner. Here again there are substantial differences from the in- stant case, particularly in the extent of supervision and control by the building owners. To like effect are other cases (some of which are cited by the Charging Party and the General Counsel). Whether or not the elements herein are sufficient to find joint ownership remains the question. Essentially, those re- lied on to that effect appear to be hiring of the same em- ployees by ABM, contract terminable on 30 days' notice, some directions to employees by Syufy Supervisor Savage and acquiescence in employee requests by Kuykendall, in- 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD direct relationship of pay to the contract between ABM and Syufy, lack of on-the-job supervision by ABM repre- sentatives, complaint as to Dio Campo leading to a letter addressed to him, and failure to supply keys to ABM. As for the keys it does not appear that this was pursued and in any case ABM representatives could have entered when the janitors were present. A request to remove an employee for unsuitable work is consistent with policing a subcontract and does not by itself demonstrate a joint em- ployer relationship.20 As for hours, etc., these were in total set by the ABM- Syufy contract and the actual time worked determined by the employee (except it could not be during performances). Supervision as set forth was to be in ABM with Syufy retaining a right to give some direction which its manager, Savage apparently did. The work in general required no supervision as the janitors were experienced and the work was routine. ABM did supervise certain aspects of work through timecards, forms, instructions and directions as to safety, conduct of employees, etc. It also hired employees and was to reprimand or terminate them when necessary. In one instance, supra, ABM accordingly proceeded to write the undelivered warning letter to Dio Campo. Appar- ently during the 3 months prior to March 28, ABM did not inspect the work because of its nature and because it ordi- narily checked only if complaints were forthcoming. Under such circumstances as above if Syufy were to be held to be a joint employer what theatre owner could sub- contract without being so held? A case bearing on this issue is Westinghouse Electric Cor- poration, 163 NLRB 914 (1967). This involves a contract between Westinghouse and Knost for maintenance work (which was part of work to be done by Westinghouse un- der a contract with Union Carbide). The Board therein part stated: The maintenance work at the Taft facility is initiat- ed each day on orders submitted to Westinghouse by Union Carbide. Westinghouse employees, who are specialists in such fields as computerization and pro- duction flow systems, analyze the work orders, de- termine material requirements, and plan and schedule the work to be done. These specialists then meet with foremen of Homer Knost and inform them of the work that maintenance employees will be required to perform. * * * * In support of its position that Westinghouse and Homer Knost have an alter ego relationship, Petitioner relied to some extent on evidence that the maintenance employees were given orders directly by supervisors of Westinghouse and that these supervisors also had occa- sion to call maintenance employees to perform overtime work. However, the record reveals that the instances of such direct supervision were isolated and occurred after a supervisor of Homer Knost had assigned the particular maintenance employees to a job or area. Further, it ap- 20 Space Services International Corp, 156 NLRB 1227 (1966). Hychern Constructors, Inc., 169 NLRB 274 (1968) pears that Westinghouse supervisors called these em- ployees for overtime work only in emergencies after securing approval from a supervisor of Homer Knost. The latter determined the number of employees and crafts required to work overtime. Moreover, while the subcontract contains a provision under which West- inghouse could require Homer Knost to exclude disor- derly, incompetent, or objectionable persons from working at the site, on the one occasion when an em- ployee was discharged pursuant to such a Westing- house request his employment was terminated only af- ter a separate investigation by Homer Knost and after the employee's union representative and all parties concerned had discussed the matter at a grievance meeting. Other evidence discloses that Homer Knost and West- inghouse share the same house trailer as an office. Plant tools used by maintenance employees are charged to Westinghouse. Also maintenance employees are wear- ing Westinghouse hats and using Westinghouse identifi- cation cards until Homer Knost can obtain its own equipment. Westinghouse and Homer Knost do not have any financial or other relationship between them, apart from those dealings arising from the instant subcon- tract. Both companies have separate and distinct labor relations policies. Westinghouse employees must pass preemployment physical examinations not required of those employed by Homer Knost. Westinghouse has its own seniority system and a company-wide pension and insurance plan, vacation, and holiday benefits not applicable to the maintenance employees. Homer Knost has collective-bargaining contracts with several unions in the New Orleans Building and Construction Trades Council, through whom it hires its craft employees including the maintenance employ- ees involved herein. Homer Knost negotiates and ad- ministers such agreements and adjusts any grievances arising therefrom. Under these agreements Homer Knost determines which individuals on the mainte- nance crew at the Union Carbide plant are entitled to wage increases and which are to be laid off during a reduction in force. At the site, work is generally as- signed to these craft employees by the foreman of Ho- mer Knost. Employees must arrange any time off with their superintendent and their craft foreman. Homer Knost keeps its own payroll and deducts various pay- roll taxes and contributions including social security, unemployment compensation, accident, and health in- surance. It also remits union dues when authorized by a checkoff provision in the applicable contract. Employees of both Westinghouse and Homer Knost observe the general safety rules maintained by Union Carbide at the site. In addition, Westinghouse and Ho- mer Knost have their own rules which each applies to its employees. Thus, there was evidence that Homer Knost discharged two employees at the site for violat- ing its rule against excessive absenteeism. It is apparent from the foregoing that control of wag- es, hours of employment, fringe benefits, day-to-day operations, grievances, and labor relations matters di- SYUFY ENTERPRISES rectly affecting the maintenance employees is lodged with Homer Knost. While the record reveals that West- inghouse reviews the timesheets of Homer Knost em- ployees for the purposes of auditing and on occasion has directly supervised the work of these employees, such conduct is clearly consistent with that of a contractor seeking to police its subcontract . In any event, this mod- icum of control would itself hardly suffice to establish an alter ego relationship. Accordingly, we find, upon the entire record, that Homer Knost is not an alter ego of Westinghouse and that Westinghouse is not the em- ployer of the maintenance employees here involved. [Emphasis supplied.] While, of course not identical , Westinghouse supports the conclusion that Syufy was not a joint employer. In Hychem Constructore, 169 NLRB 274 (1968), involv- ing the issue of joint employer, Texas Eastman had a con- tract with Hudson, who in turn had a subcontract with Hychem. Employees of Hychem were required to obey the rules of Eastman . Hychem was required to gain consent from Eastman before its employees worked overtime. Hy- chem agreed not to hire employees that were undesirable to Eastman. Wages were to be established after consultation with Eastman. The Board concluded from the above: It is apparent from the foregoing that the controls over hiring, job classification , hours, fringe benefits, supervision, and all other matters directly affecting Hychem's employees are lodged with Hudson and Hy- chem, notwithstanding Texas Eastman's retention of the right to approve wage increases and overtime and its policy of consulting with Hudson and Hychem on proposed layoffs . The latter controls, in our opinion, are consistent with Texas Eastman's right to police reimbursable expenses under its cost-plus contract and to not warrant the conclusion that Texas Eastman has thereby forged an employment relationship, joint or otherwise, with the Hychem employees . Such a con- clusion would likewise be unwarranted with respect to the other controls retained by Texas Eastman over the Hychem employees , that is, Texas Eastman's require- ment that Hychem employees observe plant safety and other plant rules , and Texas Eastman's as yet 755 unexercised prerogative to remove an undesirable Hy- chem employee. The promulgation of such rules, which seek to insure safety and security, is a natural concomitant of the right of any property owner or oc- cupant to protect his premises. Accordingly, we find, upon the entire record, that Texas Eastman does not exercise joint control over the Hychem employees and is therefore not a joint employer of the employees here involved. [Emphasis supplied.] Eastman had no authority to determine labor policies. As set forth, no two cases are exactly alike. However, from the foregoing it appears that the control rested with ABM, even though Syufy gave some directions and even though ABM did not check the work closely as had been promised. The intent of the relationship between Syufy and ABM as manifested by the contract and representations was that ABM was to look after and supervise the work and the employees, with Syufy having a right to police the contract and see that its work was being performed. Under the foregoing circumstances, I find and conclude that Syufy did not become and was not a joint employer with ABM of the employees involved. Further, I find that its conduct in terminating the contract with ABM was not violative of the Act. Since I have found Syufy not to be a joint employer with ABM, it had no obligation to bargain with Local 121 with respect to the termination of its con- tract with ABM. As for any contention that Syufy entered into the contract for purposes of evading bargaining obli- gations and with a purpose of subsequently terminating the agreement pursuant thereto, I find that the record does not support or establish such even though the stated reason for termination of the ABM contract may not have been true. I shall accordingly recommend that the complaint herein be dismissed in its entirety. CONCLUSIONS OF LAW 1. Syufy is an employer engaged in commerce within the meaning of the Act. 2. Local 121 is a labor organization within the meaning of the Act. 3. Syufy was at no time a joint employer with ABM of the employees involved herein. 4. Syufy has not violated the Act as alleged. [Recommended Order for dismissal omitted from publi- cation.]