Owers Maintenance Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Owners Maintenance Corp. and Thomas Soto. Case 2-CA-14044 September 19, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On June 16, 1977, Administrative Law Judge Lowell Goerlich issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, the General Counsel filed a brief in support of the Administrative Law Judge's Decision and a letter in reply to Respondent's exceptions, and the Charging Party filed a brief in answer to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding.to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, to modify his Remedy,' and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Owners Mainte- nance Corp., New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. In accordance with our decision in Florida Steel Corporation, 231 NLRB 651 (1977), we shall apply the current 7-percent rate for periods prior to August 25. 1977. in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Administrative Law Judge: The charge filed by Thomas Soto on December 30, 1975, was served by registered mail on the Owner's Maintenance Corp., Respondent herein, by registered mail on or about December 31, 1975. A complaint and notice of hearing was I There being no opposition thereto, General Counsel's motion to correct transcript is granted and the transcript is corrected accordingly. 2 The facts found herein are based on the record as a whole and the observation of the witnesses. The credibility resolutions herein have been derived from a review of the entire testimonial record and exhibits, with due regard for the logic of probability. the demeanor of the witnesses, and the teachings of N. L. R. B v. Walton Manufacturing Company & Loganville Pants 232 NLRB No. 23 issued on November 29, 1976. The complaint charged that Thomas Soto and James Veve were discharged by Respondent on July 3, 1975, because of their activities in and support of Local 32B Service Employees International Union, AFL-CIO, herein called Local 32B or the Union, in seeking to enforce the Union's collective-bargaining agreement with Respondent and because these employees engaged in other concerted activity for the purpose of collective bargaining and mutual aid and protection in violation of Section 8(aX3) and (1) of the National Labor Relations Act, as amended, herein referred to as the Act. Respondent filed a timely answer denying that it had engaged in any of the unfair labor practices alleged. The case came on for hearing at New York, New York, on March 1, 2, 3, and 4, 1977. Each party was afforded a full opportunity to be heard, to call, examine and cross- examine witnesses, to argue orally on the record, to submit proposed findings of fact and conclusions, and to file briefs. All briefs have been carefully considered.' FINDINGS OF FACT,2 CONCLUSIONS, AND REASONS THEREFOR I. THE BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of New York. At all times material herein, Respondent has maintained its principal office and place of business at 426 Lexington Avenue, in the city and State of New York, and various other places of business in the State of New York, including a location at 1 Penn Plaza, New York, New York, where it is, and has been at all times material herein, continuously engaged in providing cleaning and mainte- nance services and related services. At all times material herein, Respondent has been a member of the Realty Advisory Board (herein called RAB), a multiemployer association which exists for the purpose, in whole or in part, of collective bargaining with labor organizations, including Local 32B. At all times material herein, Respondent, as a member of RAB, has been party to, and bound by, a collective- bargaining agreement between RAB and Local 32B. During the past year, which period is representative of their annual operations generally, the employer-members of RAB, in the aggregate, and in the course and conduct of their business, purchased cleaning materials and other goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported and delivered to their place of business in interstate commerce directly from States of the United States other than the State in which they are located. Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Co., 369 U.S. 404, 408 (1962). As to those witnesses testifying in contradiction to the findings herein, their testimony has been discredited, either as having been in conflict with the testimony of credible witnesses or because it was in and of itself incredible and unworthy of belief. All testimony has been reviewed and weighed in the light of the entire record. No testimony has been pretermitted. 100 OWNERS MAINTENANCE CORP. II. THE LABOR ORGANIZATION INVOLVED Local 32B is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Thomas Soto and James Veve were discharged on July 3, 1976, because they falsely answered "No" to the question on their application for employment, "Have you ever been arrested? (Except for traffic violations)." Veve's application is dated January 30, 1974, although on the application it is noted that he "started work January 28, 1974." Soto's application bears the date of May 7, 1973. He started work shortly thereafter in May 1973. The discharges were submitted to arbitration and, on April 13, 1976, an award was rendered which did not result in the full reinstatement of Soto and Veve. Respondent claims that the arbitrator's opinion and award disposes of the issues raised in the complaint and that the complaint should be dismissed. The General Counsel strongly maintains that the arbitrator's opinion and award are vitiated by the rule in Spielberg Manufacturing Company, 112 NLRB 1080 (1955),3 and that a finding ought to be entered that Respondent violated Section 8(a)(3) by its discharges of Soto and Veve. The arbitrator considered the following questions which are also the issues before me: (1) Did the Company have just cause to discharge the grievants? (2) Were the grievants discharged for engaging in union activity? (3) Did the leafleting activity engaged in by the grievants constitute sufficient disloyalty toward the Company to justify a denial of reinstatement? (4) Was the distribution of leaflets protected by law? In regard to the first question, the arbitrator opined and found: The record is devoid of any evidence to indicate how the Company may have been prejudiced by the grievants' misrepresentations on their job application, other than the contention that they must have been "untrustworthy" if they lied on their applications. In addition, the grievants had worked for over two years and one year respectively with concededly satisfactory work records. Accordingly, the falsification of job applications by Soto and Veve did not constitute just cause for discharge. Since the foregoing arbitrator's findings meet the criteria of the Spielberg case and are supported by substantial I In the Spielberg case the Board held that in order for an arbitrator's award to be binding on the Board the proceedings must appear fair and regular, the parties must have agreed to be bound, and the arbitrator's decision must not have been "clearly repugnant to the purposes and policies of the Act." It is the latter criterion that the General Counsel asserts was not met by the arbitrator's opinion and award in the instant case 4 These findings are sufficient to raise an inference of unlawful motivation on the part of Respondent in view of the dischargees' known union activities. "[I If his discharge was even partially motivated by his [an employee's I evidence in the record as a whole (see Illinois Bell Telephone Company, 221 NLRB 989 (1975)), they are binding on me and I find that Veve and Soto were discharged without just cause. As to the second question, i.e., "Were the grievants discharged for engaging in union activity?", the arbitrator found: There is a substantial amount of evidence on the record which indicates that the grievants may have, at least in part, been discharged for reasons other than falsification of job applications. This evidence includes; Cuomo's continued investigation of the grievants after several weeks of fruitless observation despite the questionable reliability of an anonymous tip that they had been involved in thefts in the buildings; the fact that the decision to discharge the grievants was made with no investigation beyond Cuomo's concededly incomplete and at least partially inaccurate report; and, Isolini's memorandum which stated that the grievants had been a "continuing problem" without any explana- tion as to what those problems were. 4 The mere fact, however, that the Company may have had reasons other than falsification of employment applications for discharging the grievants is not by itself an indication that the grievants were discharged for engaging in Union activity. The Company may havc had many other reasons for discharging the grievants which it chose not to air during this proceeding. [Emphasis supplied.] The latter sentence was brought to the attention of Respondent's counsel and the question was put as to whether Respondent did have "some other reasons" for discharging Veve and Soto. The answer was, "Your honor, we have no other reason." Thus, it must follow that the arbitrator's conclusion that the discharges stemmed from reasons other than union considerations was speculative and does not meet the requirements of the substantive evidence rule. His decision was not only based upon guessed facts outside the record but on no actual facts at all. Such a finding is repugnant to law and violates due process of law. The arbitrator's dictum, therefore, which holds that the discharges were not unlawful within the meaning of Section 8(a)(3), is not binding under Spielberg. It is clear that Soto and Veve, both union activists, who the arbitrator concedes were discharged "at least in part5 . . . for reasons other than falsification of job applica- tions," were fired because of their union activities. 6 The record is totally barren of any other reasons. Their work records were satisfactory. When "the reasons advanced [for discharge] are not persuasive the [protected] activity may) well disclose the real motive behind the employer's action." union activity, there is a violation of §8(aX3) N. L R. B v. George J. Roberts & Sons, Inc., d/b/a 7he Roberts Press, 451 F.2d 941.945(C.A. 2. 1971). 6 Among many other things Soto was an aggressive union steward; Veve worked with him and in his absence filled his duties as steward, all of which was known to Respondent. John Cuomo, director of secunrity, testified that he "found that they were a pretty close knit group, Veve and Soto and their friends, and that as a general group they had to be watched out for--and to be especially careful to watch their activities," Constrestano. former director of security, referred to Soto as a "back door lawyer" for the negotiating guards. 101 DECISIONS OF NATIONAL LABOR RELATIONS BOARD N.L. R.B. v. Melrose Processing Co., 351 F.2d 693, 699 (C.A. 8, 1965). "[P]roof ... that the reason given [for a termination] was false warrants the inference that some other reason was being concealed." N. L R.B. v. Joseph Antell, Inc., 358 F.2d 880, 883 (C.A. 1, 1966). An "inference . . . of discriminatory motivation is sustained and is buttressed by the fact that the explanation [offered by the employer] failed to stand under scrutiny." N.L.R.B. v. Griggs Equipment, Inc., 307 F.2d 275, 278 (C.A. 5, 1962). Such was the circumstance in the instant case. I am convinced and find that the "real motive"7' for the discharges of Soto and Veve was to discourage membership in a labor organization and to dissuade activities on behalf of a union. The discharges were in violation of Section 8(a)(1) and (3) of the Act. See also A CS Industries, Inc., 188 NLRB 383, 391-392 (1971). As is obvious from the foregoing discussion, Soto and Veve were entitled to reinstatement to their jobs both under the terms of the contract (as interpreted by the arbitrator) and under the Act. Nevertheless, they were barred from reinstatement by the arbitrator because they had distributed certain leaflets at the premises of Respon- dent on July 3, 1975, and early October 1975. Respondent argued before the arbitrator and argues here that the leafleting was unprotected activity for which Veve and Soto were subject to lawful discharge because the leaflets constituted disloyalty on the part of Soto and Veve and were an attempt by Soto and Veve to undermine the Union's position as exclusive representative. On these points the arbitrator found: Thus, the grievants' conduct in distributing the above described leaflets must be held to have constituted gross disloyalty toward the Company . . . and its ability to do business. Accordingly, the distribution of leaflets by the grievants is sufficient to justify denying them reinstatement to their jobs. The arbitrator relied on N.L.R.B. v. Local Union No. 1229, International Brotherhood of Electrical Workers, AFL [Jefferson Standard Broadcasting Company], 346 U.S. 464 (1953), and Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50 (1975). In this the arbitrator was in error for the leaflet distribution was protected concerted activity under Section 7 of the Act. Thus the arbitrator's finding was "clearly repugnant to the purposes and policies of the Act" and must be held for naught. Spielberg Manufacturing Company, supra. A review of the leaflets is pertinent. In the first leaflet which was distributed, the union activities of Soto and Veve were reviewed and the conclusion was drawn that they were not discharged because of "falsification of records" but that such claim was a "pretext." Soto and Veve requested help from their "fellow working people of the building and the adjoining area." Among other things the leaflet related: "The real reason that brothers Jaime Veve and Tommy Soto have been fired from the day shift of porters is because these workers have challenged the racist, discriminatory, antila- 7 See N.LR.B. v. John Brown, d/b/a Brown Food Stores, 380 U.S. 278 (1965). bor, antiwomen practices in the building. Because they have dared to attempt to organize the workers in the building to stand up for their rights as humans." This charge is almost the precise finding which the General Counsel has requested in this case. The distribution of this leaflet, which has not been proved to have been untruthful, was protected under Section 7 of the Act. Its purpose, plain on its face, was to solicit help from fellow workers to rectify the alleged wrongful discharges of Soto and Veve (which later even the arbitrator found to have been in violation of the contract). This was privileged conduct. Dreis & Krump Manufactur- ing, Inc., 221 NLRB 309 (1975), enfd. 544 F.2d 320 (C.A. 7, 1976). Nor does this leaflet anticipate the bypassing or undermining of the Union as claimed by Respondent. The second leaflet distributed in October, sometime before the scheduled date for the arbitration hearing, noted that the arbitration hearing was set for October 7, 1975. In it were reviewed the facts in respect to the discharges of Soto and Veve which coincided with those related in the first leaflet. Included in addition was, "Don't let these brothers be railroaded out of a job during these times of extreme economic crises by false charges and goon tactics." In the leaflet it was related: Since the firings, the OMC and H-S have conducted a campaign of terror and harassment against employees who support Tommy and Jaime. Members of local 32B S.E.I.U. working in the building as porters and guards have been threatened by Phil Cimusz, Roy LeClaire, and chief of security, John Cuomo (see supporting statements below). John Cuomo, an ex-cop who carries a gun, has gone so far as to physically threaten workers in the building! A request was again made for "fellow working people" to "please help Tommy Soto and Jaime Veve get their jobs back." This headline appeared on the first page of the leaflet: PUERTO RICAN WORKERS FIGHT TO REGAIN JOBS!! SUPPORT GROWS! !! An item was devoted to "The Question of Seniority." Under such heading it was stated in part: Our employer, the Owners Maintenance Company (O.M.C.) has not been abiding by the system of seniority as stated by our contract. Blacks, Puerto Ricans, and other minority workers, who have the most seniority, have been discriminated against with respect to promotions, job assignments, preferred shifts, etc. O.M.C. has frustated [sic] and discouraged us from knowing our rights and from going to our union, Local 32B S.E.I.U. In fact, they have threatened union men with firing or layoffs if they notify the union of their grievances. The following cases demonstrate the unjust violation of our rights. 102 OWNERS MAINTENANCE CORP. Following the above statement was an article "Black Brother Fights Racism at O.M.C." Reference was made to a grievance filed with the Union and the Human Rights Commission, settlement of which had been violated by the Company. The article ended "WE DEMAND THAT HE BE GIVEN THE JOB HE WAS PROMISED IMMEDIATELY. EXPRESS YOUR OUTRAGE AT THIS INJUSTICE BY CALLING THE HELMSLEY SPEAR OFFICES. 687-6400" Another item was designated "Worker Reverses Dis- criminatory Layoff." It records the successful settlement of a grievance. Another article is entitled "Union Brother Fights for Seniority." In the article it is related that employee Fausto Gonzalez has a pending grievance with Local 32B "and needs the support of everyone to win his case." A letter from 20 members of Local 32B to Arbitrator Marlin was reproduced in the leaflet. Among other things, the letter recited "since their [Soto and Veve] dismissal, things have changed greatly for the worse. Almost every employee has been warned not to associate with or support Jaime Veve and Tommy Soto in regaining their jobs." A final item concerned "Dedicated Worker Wins Partial Victory." The item among other things relates that, through the Union, a fired employee, Carlos Rivera, was given a porter's job in another building. It was observed: Without the support his union brothers gave, this partial victory could not have been possible. Carlos thanks everyone for their support. In a box appeared this language: "Know your union, know your rights," followed by the Union's address and the name of its representative. Included in the leaflet were pictures of Soto and Veve and several employees whose names appear in the above items. There is also a picture of John Cuomo with this caption: "John Cuomo, gun carrying ex-cop, has threat- ened workers not to testify or support or associate with Jaime and Tommy." Another picture of seven males bears this caption: From left to right: Carlos Rivera, fired and reinstated (see article below); Jaime Veve and Tommy Soto, fired (see article page 1); James Minnifield, threatened that he is "next"; Andy Calabrese, fired and reinstated at other building; Teddy Kerin; and Tommy McNally, threatened.8 The leaflet was printed in English and Spanish. I cannot find in this leaflet, or from the record as a whole, that by its distribution the Union was undermined or short circuited or that Soto or Veve intended to short circuit or undermine the Union. In fact, the Union's address was furnished to workers for their enlightenment. Indeed, the leaflet enhanced the Union's role as the bargaining agent. Unlike the employees involved in Emporium Capwell Co. v. Western Addition Community Organization, supra (relied on by Respondent), Soto and Veve did not, by the distribution of the leaflet, bypass their Union and attempt to deal directly with the employer. Their efforts were in furtherance of their own grievances I On the basis of the credible record before me. I cannot find that the facts and assertions related in the foregoing leaflet are untrue. through the solicitation of employees' help; this was protected activity. Dreis & Krump Manufacturing, Inc., supra. Nor was there disloyalty of a nature which would have caused Soto and Veve to forfeit the Act's protection. See Jefferson Standard Broadcasting Company, 94 NLRB 1507 (1951). Moreover, what was published has not been shown to have strayed from the truth nor been proved to have been deliberately or maliciously false. Cf. Owens- Corning Fiberglass Corporation v. N.LR.B., 407 F.2d 1357 (C.A. 4, 1969); Texaco, Inc. v. N.LR.B., 462 F.2d 812 (C.A. 3, 1972). The burden was on Respondent to support the claim that the leaflet distribution was condemned by the law. It did not sustain that burden. Thus, since the leaflet distributions were protected activity under Section 7 of the Act, Respondent, by discharging or refusing to reinstate Soto and Veve, violated Section 8(a)(l) and (3) of the Act. CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act for jurisdiction to be exercised herein. 3. By interfering with, restraining, and coercing em- ployees in the exercise of rights guaranteed by Section 7 of the Act, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By unlawfully discharging Thomas Soto and James Veve on July 3, 1975, and refusing to reinstate them, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found that Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent unlawfully discharged Thomas Soto and James Veve on July 3, 1975, and has since failed and refused to reinstate them, because of their protected concerted activities, in violation of Section 8(a)(3) of the Act, it is recommended that Respondent remedy such unlawful conduct. It is recommended in accordance with Board policy 9 that Respondent offer the foregoing employees immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing if necessary any employees hired on or since July 3, 1975, to fill any of said positions, and make them whole for any loss of earnings they may have suffered by reason of Respon- dent's acts herein detailed by payments to them of a sum of money equal to the amount they would have earned from 9 See The Riushton Company, 158 NLRB 1730. 1731 (1966). 103 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the date of their unlawful discharges to the date of an offer of reinstatement, less net earnings during such period, to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), and including interest at the rate of 6 percent per annum in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this proceed- ing, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommended: ORDER o 1 The Respondent, Owners Maintenance Corporation, New York, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging union or concerted activities of its employees or membership in local 32B, Service Employees International Union, AFL-CIO, or any other labor organization, by unlawfully and discriminatorily discharg- ing its employees or discriminating in any other manner with respect to their hire or tenure of employment or any term or condition of employment in violation of 8(a)(1) or (3) of the Act. (b) In any other manner interfering with, restraining, or coercing any employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act, as amended, to engage in self-organization, to bargain collectively through a representative of their own choosing, to act together for collective bargaining or other mutual aid or protection, or to refrain from any and all these things. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Offer Thomas Soto and James Veve immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, discharging if necessary any employ- ees hired to replace them, and make them whole for any loss of pay that they may have suffered by reason of Respondent's unlawful discharge of them in accordance with the recommendations set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its facility at New York, New York, copies of the attached notice marked "Appendix." i Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 2, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations of the Act other than those found in this Decision. 10 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall. as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. II In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which we participated and had a chance to give evidence, the National Labor Relations Board has found that we committed certain unfair labor practices and has ordered us to post this notice. We intend to abide by the following: WE WILL offer Thomas Soto and James Veve their jobs or, if their jobs no longer exist, substantially equivalent jobs. WE WILL restore the above-named employees' seniority and pay them the backpay they lost because we discharged him. WE WILL NOT unlawfully discharge any of our employees because of their union affection or because they engage in union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights, guaranteed by Section 7 of the National Labor Relations Act, to engage in self-organization, to bargain collectively through a representative of their own choosing, to act together for collective bargaining or other mutual aid or protection, or to refrain from any and all these things. OWNERS MAINTENANCE CORP. 104