Ramelli Building Maintenance Service, Inc.

RAMELLI BUILDING MAINTENANCE SERVICE INC 815 Ramelh Building Maintenance Service, Inc and Lee Roy Otis, Jr Case 15-CA-5801 June 15, 1976 DECISION AND ORDER By MEMBERS JENKINS, PENELLO, AND WALTHER On February 19, 1976, Administrative Law Judge Walter H Maloney, Jr, issued the attached Decision in this proceeding Thereafter, the Respondent filed exceptions and a supporting brief The General Counsel filed limited exceptions, a brief in support of the limited exceptions, and a brief in support of the Administrative Law Judge's Decision Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the 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 and to adopt his recommended Order,' as modified herein ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that the Respondent, Ra- melli Building Maintenance Service, Inc, Metairie and Kenner, Louisiana, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order, as so modified 1 Substitute the following for paragraph 2(a) of the recommended Order i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board s established policy not to over rule an Administrative Law Judge s resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products Inc 91 NLRB 544 ( 1950) enfd 188 F 2d 362 (C A 3 1951 ) We have carefully examined the record and find no basis for reversing his findings The Administrative Law Judge omitted reference to the fact that Isadora Carson was also disciplined with less than discharge when Respondent learned that she and Patricia Lewis had committed a first offense of the no sleeping rule However it is not clear from the record whether the Loyde incident relied on by the Administrative Law Judge as further evidence that Respondent treated Otis disparately occurred after Ramelli took over man agement of the business in January 1975 We therefore do not rely on the Lode incident in finding disparate treatment of Otis by Respondent We find merit in the General Counsels exceptions to the remedy rec ommended Order and notice of the Administrative Law Judge We shall modify the remedy recommended Order and notice accordingly Franklin Parish Broadcasting Inc 222 NLRB 1133 (1976) "(a) Offer Lee Roy Otis immediate and full rein- statement to his former position or, in the event his former position no longer exists, to substantially equivalent employment, without prejudice to his se- niority or other rights previously enjoyed, and make him whole for all losses that he may have suffered by reason of Respondent's unlawful discriminatory dis- charge of him in accordance with the recommenda- tions set forth in the section of the Administrative Law Judge's Decision entitled `The Remedy' as mod- ified herein " 2 Substitute the attached notice for that of the Administrative Law Judge APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We are posting this notice to comply with the provi- sions of an order of the National Labor Relations Board in which we were found to have committed certain unfair labor practices WE WILL NOT interrogate employees concern- ing their union activities or the union activities of other employees WE WILL NOT threaten employees with a dis- continuance of our operation if a union becomes their bargaining agent WE WILL NOT discharge or otherwise discrimi- nate against employees in their hire or tenure in order to discourage their support of and activi- ties on behalf of Brotherhood of Railway, Air- line, and Steamship Clerks, Freight Handlers, Express and Station Employees, AFL-CIO, or any other labor organization All of our employ- ees are free to become or remain members of this labor organization WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of rights guaranteed to them by Section 7 of the National Labor Relations Act These rights include the right to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to en- gage in other concerted activities for their mutu- al aid and protection WE WILL offer full and immediate reinstate- ment to Lee Roy Otis to his former job or, if it no longer exists, to substantially equivalent em- ployment, and WE WILL make him whole for any losses he has suffered by reason of the discrimi- 224 NLRB No 107 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nation which was practiced against him, with in- terest thereon computed at 6 percent per annum RAMELLI BUILDING MAINTENANCE SERVICE, INC DECISION FINDINGS OF FACT A Statement of the Case WALTER H MALONEY JR Administrative Law Judge This case came on for hearing before me at New Orleans, Louisiana, on a complaint 1 issued by the Regional Direc tor for Region 15 and amended at the hearing, in which Respondent Ramelh Building Maintenance Service, Inc ,2 is alleged to have committed certain violations of Section 8(a)(1) and (3) of the Act Specifically, the complaint alleg- es that Respondent unlawfully interrogated employees concerning union sentiments, threatened employees with discharge if they became union members, and discharged the Charging Party, Lee Roy Otis, because he had engaged in union activities Respondent denies the commission of independent violations of Section 8(a)(1) of the Act and asserts that Otis was discharged for sleeping on the job in violation of a company rule Upon these contentions, the issues herein were joined 3 B The Unfair Labor Practices Alleged For the past 4 years, Respondent has held the janitorial and maintenance contract at the Moisant International Airport, which serves the Metropolitan New Orleans area Respondent services both general airport facilities and the offices and ticket areas utilized by individual carriers i The principal formal entries in the docket are as follows Charge filed by Lee Roy Otis the discriminatee named in the complaint on September 4 1975 complaint issued on October 7 1975 Respondents answer filed on October 20 1975 hearing held in New Orleans Louisiana on December 3 1975 briefs filed by the General Counsel and Respondent with me on January 12 1976 A related representation case (Case 15-RC-5755) contains inter alia the following formal entries petition for election filed on August 25 1975 by Brotherhood of Railway Airline and Steamship Clerks Freight Handlers Express and Station Employees AFL-CIO (herein called Union) in a unit composed of all of Respondents full time and regular part time employees employed at the Moisant International Airport Kenner Louisiana and in Respondents city routes with certain exclusions hearing held on petition on September 17 1975 Decision and Direction of Election issued on Octo ber 1 1975 election held on October 31 1975 in which Union received 23 votes and 50 votes were cast for no union objections to election filed by Union on November 7 1975 2 Respondent admits and I find that it is a Louisiana corporation which maintains its principal place of business in Metairie Louisiana It is en gaged in the janitorial and maintenance service at the Moisant International Airport located at Kenner Louisiana which service is valued in excess of $50 000 During the same period of time the Mosiant International Airport purchased goods valued in excess of $50 000 directly from points and places located outside the State of Louisiana During the same period of time Respondent performed services valued in excess of $50 000 for Delta Air lines and Delta Airlines received in excess of $50 000 for transporting pas sengers across state lines Accordingly Respondent is an employer within the meaning of Sec 2(2) 2(6) and 2(7) of the Act The Union is a labor organization within the meaning of the Act Errors in the transcript have been noted and corrected Respondent's principal office is located about 7 miles from the airport on Papworth Street in Metairie but it also has a small on-site office at the airport Respondent also holds janitorial contracts for cleaning various buildings and stores located in the New Orleans area The active direc- tion of the business has been exercised by its president, Robert C Ramelli, since January 1975 Prior to that time, Ramelli's father managed the Company Lee Roy Otis was a maintenance man at Allied Mainte- nance, a company which was on strike He applied for a position with Respondent on or about July 24 and was interviewed at Respondent's Papworth Street office by Robert Hillery, Respondent's personnel manager Ramelli came into the room during the interview and told Otis that he noticed from his application that he had been employed for 5 years by Allied He asked Otis if they had a union at Allied Otis pulled out his union card and said, "Yes 275 " 4 At this interview, Otis told Ramelli and Hillery that he did not care much for unions Ramelli stated that he did not care for unions, and that if a union came in at his place of business, he would shut down the business and lay off the employees He also told Otis that it was against compa- ny rules to sleep on the job For the first offense, an em- ployee would be laid off 4 hours, for the second offense, he would be discharged 5 Otis was hired to strip and spray buff floors at the Mois- ant International Airport at $2 10 per hour He worked from 10 p in until 6 a in under the supervision of Shelby Tapp Early in August, Otis signified to Respondent his dissatisfaction with the hiring-in rate In August his rate and that of other floormen was raised to $2 25 per hour At a meeting held with floormen in mid-August, Ramelli told them that he had really bent over backward to grant that much of an increase After that meeting had concluded, Otis spoke with Ramelli privately near the Delta ticket counter and told him that he thought it was wrong that employees were not getting a raise He also told Ramelli that he would advise employees to get a union because he felt that Ramelli was not going to do anything for them 6 Otis then began his efforts to organize Respondent s em- ployees He obtained union literature and union designa tion cards from a union representative named Rev An drew Jackson, distributed them to janitors, maids, and maintenance men throughout the airport, and obtained sig- natures from 43 employees In the course of this effort, he walked through the airport with Union Business Agent Bo- relli and showed him about the premises so that he might meet with employees and discuss their complaints He also organized a meeting of night shift employees on Concourse B during their lunchbreak, which normally occurred at 2 a in About 20 employees attended Otis was the main spokesman at the meeting The thrust of his remarks was to encourage employees to sign cards and join the Union Utilizing the cards which Otis had obtained, the Union filed a representation petition on August 25 seeking an election among Respondent's airport and route employees 4 Local 275 Service Employees International Union AFL-CIO 5 Ramelli denies the portion of the conversation relating to the closing of the business and the two step disciplinary procedure for sleeping I credit Otis version 6 Ramelli denies the portion of the conversation in which Otis told him he would urge employees to get a union I credit Otis RAMELLI BUILDING MAINTENANCE SERVICE INC Late in August, Ramelh asked Tapp, the night shift su- pervisor, to have Otis call him When Otis did so, Ramelli told him to come to the office When he arrived, Ramelli offered Otis an opportunity for extra work Specifically, Ramelli offered him a routejob cleaning a building at $10 per night According to the proposed arrangement, Otis would report to Papworth Street office at 5 p in each eve- ning, pick up a truck, and go from there to clean a building on Canal Street He would then report for work at 10 p in at his regular shift at the airport Ramelli also indicated that he might have additional extra jobs in the future at different rates Otis agreed to this proposal On the evening of September 2, Otis reported for work at the airport as usual at 10 p in and was assigned by Tapp to clean the National Airlines operations room Otis proceed- ed to the area, began to work, and about midnight fell asleep on two chairs in the pilots' ready room which is located adjacent to the operations area Tapp found him asleep, woke him up, and reprimanded him for being asleep on the job Otis completed his shift and, at the end of the shift, found Tapp on Concourse A Tapp handed him a pink slip and told him that he was not firing him Referring to the slip as a warning, Tapp told Otis that if he caught him sleeping again he would automatically termi- nate him Otis reported to the Papworth Street office at 5 p in the following evening to begin his routejob Hillery met him as he entered the premises and remarked that Tapp had caught him sleeping the previous evening 7 Ramelli then came into the room, told Otis that he was fired, and direct- ed him to return his company uniform shirt and pick up his paycheck He also handed him a second pink slip, which is actually a form utilized by the Department of Employment Security of the State of Louisiana for the separation of employees in cases where the employer alleges that termi- nation has occurred under circumstances warranting a dis- qualification for unemployment compensation Ramelli wrote on the form that Otis was fired for sleeping on the job C Analysis and Conclusions I Independent violations of Section 8(a)(1) of the Act I credit the testimony of Argie Toney to the effect that, sometime in September, she had a conversation with the afternoon shift supervisor Willard Knouckum, in which Knouckum asked her if she heard that Tapp s people (the late night shift) were getting a union When Miss Toney professed ignorance, Knouckum stated inquisitively, "I heard they signed some cards " He also asked Miss Toney if she had signed a card, and she said she had not His persistence in this inquiry makes it more than a casual piece of conversation and carries a coercive impact Ac- cordingly, I conclude that it violates Section 8(a)(1) of the Act I have credited the testimony of Otis that, at his employ- ment interview, Ramelh, the president of the Company, 7 Tapp said that he had not reported Otis dereliction to the main office and suggested that his assistant supervisor Rosa Lee may have done so 817 asked him about his union affiliations and stated that he would close his operation if a union came in These re- marks constitute both illegal interrogation and an illegal threat on Ramelli's part, and as such they violate Section 8(a)(1) of the Act 2 The discharge of Lee Roy Otis Respondent demonstrated his union animus in a hard sell campaign which portrayed the Union as an untruthful, expensive, money-grubbing organization whose advent at the Company would create an uncertain job situation lead- ing to strikes and impoverishment of the Ramelli work force Respondent's animus spilled over from the area of fair comment protected by Section 8(c) of the Act into the illegal statements outlined above There is little doubt that, during his 5 weeks of employment with Ramelli, Otis was the prime mover of an organizational campaign that led to the filing of a representation petition on August 25 Otis had a public meeting of night shift employees for organiza- tional purposes on an open concourse at the airport and was the principal spokesman at the meeting He collected signatures on 43 union designation cards signed by em- ployees on both the afternoon and late night shifts and turned them in He also publicly walked through the air- port with Union Representative Borelli to show Borelli about the area and to introduce him to individual employ ees for the purpose of discussing grievances I credit Otis' statement that he told Ramelli, following a discussion in- volving the dissatisfaction of floormen with the existing wage rate, that he would advise employees to get a union because he felt Ramelli was not going to do anything for them In short, the record amply supports a finding that Otis was discharged by an employer who was strongly an- tiunion, who knew Otis was strongly prounion, and who took the discharge action in question within 10 days after receiving from the Regional Office a notice that a represen- tation petition had been filed In the face of animus, company knowledge, and suspi- cious timing, Respondent contends that it discharged Otis for sleeping on the job The sole remaining question is whether this defense is pretextual Respondent claims that early in January 1975 it changed its earlier policy of giving employees a written warning for the first offense, reserving discharge as the penalty for the second offense It posted a notice to the effect that discharge would automatically fol- low from a first offense of sleeping on the fob, but there is no evidence as to when or how long this notice, or succes- sive notices, remained on the bulletin board There is evi- dence from Respondent's witness Tapp that he permitted employees to sleep during the half hour lunch period which takes place each night from 2 a in until 2 30 a in, and that, despite the change in announced policy, he continued to adhere to the old practice in disciplining employees for prohibited sleeping He did so in Otis' case I credit Otis' testimony that Respondent' s management told him at his hiring-in interview that sleeping would be dischargeable conduct the second time it occurred, not on the first offense I credit Brice's testimony to the same ef- fect It is clear from at least two other incidents involving Patricia Lewis and Patricia Loyde that the more lenient 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practice was in fact followed in two cases in which they were guilty of sleeping on company time Lewis' infraction occurred not many weeks before Otis was terminated and long after Ramelli took over the business and ostensibly tightened up the punishment for sleeping Shortly after Otis was terminated, work leader Rosa Lee was fired for sleep- ing but was rehired a week later as a route inspector, indi- cating that layoff was the most severe punishment ever to have been meted out to any employee for the first offense of sleeping Indeed, the record contains no evidence that any employee other than Otis was ever permanently dis- charged for sleeping under any circumstances Had the Respondent contented itself with the discipline i nposed on Otis by his immediate supervisor for the inci- dent in question, this case would not be here However, when information reached company headquarters that a basis existed for removing a union activist from the pay- roll, Ramelli took advantage of it immediately and im- posed upon Otis a sanction which amounted to disparate treatment in comparison with what had occurred when other employees were guilty of the same infraction, and which contravened Respondent's own established practice, a practice which it continued to follow irrespective of post- ed announcements to the contrary In light of these factors, I conclude that Respondent discharged Otis because of his union activities and did so in violation of Section 8(a)(3) of the Act Upon the foregoing findings of fact, and upon the entire record herein considered as a whole, I make the following CONCLUSIONS OF LAW 1 Respondent Ramelli Building Maintenance Service, Inc, is an employer engaged in commerce and in opera- tions affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 The Brotherhood of Railway, Airline, and Steamship Clerks, Freight Handlers, Express and Station Employees, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act 3 By discharging Lee Roy Otis because he engaged in union activities, as found above, Respondent herein violat- ed Section 8(a)(3) of the Act 4 By the acts and conduct set forth in Conclusion of Law 3, by interrogating employees concerning union activ- ities, and by threatening employees with termination of the Employer's operation if a union should come into the Company, Respondent herein violated Section 8(a)(1) of the Act 5 The aforesaid unfair labor practices have a close, inti- mate, and substantial effect on interstate commerce within the meaning of Section 2(6) and 2(7) of the Act REMEDY very heart of the Act Accordingly, I will recommend to the Board a so-called broad 8(a)(1) order J C Penney Co, 172 NLRB 1279 fn 1 (1968), Adam and Eve Cosmetics, Inc 218 NLRB, 1317 (1975) The recommended order will also provide that Respondent be required to offer Lee Roy Otis reinstatement to his former or substantially equivalent employment and to make him whole for any loss of earn- ings, to be computed in accordance with the Woolworth formula8 Former or substantially equivalent employment necessarily includes a route job from which Otis was dis- charged together with the termination of his regular night shiftjob at the airport I will also recommend that Respon- dent be ordered to post the usual notice informing employ- ees of their rights and of the results of this case Upon the foregoing findings of fact, conclusions of law, and pursuant to Section 10(c) of the Act, I make the fol- lowing recommended ORDERS The Respondent, Ramelli Building Maintenance Ser- vice, Inc , Metairie, Louisiana, its officers, agents, succes sors, and assigns, shall 1 Cease and desist from (a) Coercively interrogating employees concerning their union activities and the union activities of other employees (b) Threatening employees with discontinuance of the Employers operation if a union should become their bar gaining agent (c) Discouraging membership in, or activities on behalf of, Brotherhood of Railway, Airline, and Steamship Clerks, Freight Handlers, Express and Station Employees, AFL- CIO, or any other labor organization, by discharging or by discriminating against employees in their hire or tenure (d) By any other means or in any other manner interfer- ing with, restraining, or coercing employees in the exercise of rights guaranteed to them by Section 7 of the Act 2 Take the following affirmative actions designed to of fectuate the purposes and policies of the Act (a) Offer to Lee Roy Otis immediate and full reinstate- ment to his former position or in the event his former position no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or other rights previ ously enjoyed, and make him whole for any loss of pay suffered by him by reason of the discrimination found herein, in the manner described above in the section enti tled `Remedy " (b) Preserve and, upon request, make available to the Board, or its agents, for examination and copying, all pay roll and other records necessary to analyze the amount of backpay due under the terms of this order (c) Post at Respondent's place of business at Metairie, Louisiana, and at its airport office at Kenner, Louisiana, Having found that Respondent has engaged in certain unfair labor practices, I will recommend that it be ordered to cease and desist therefrom, and that it be required to take certain affirmative action designed to effectuate the purposes and policies of the Act Because the violations herein include a discriminatory discharge, they go to the s F W Woolworth Company 90 NLRB 289 (1950) 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 RAMELLI BUILDING MAINTENANCE SERVICE, INC 819 copies of the attached notice marked "Appendix " 10 Cop celpt thereof, and shall be maintained by the Respondent ies of said notice on forms provided by the Regional Direc- for 60 consecutive days thereafter, in conspicuous places, tor for Region 15, after being duly signed by representa- including all places where notices to employees are cus- tives of Respondent, shall be posted immediately upon re- tomarily posted Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- 1° In the event the Board s Order is enforced by a Judgment of the United faced, or covered by any other material 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 (d) Notify the Regional Director for Region 15, in writ Judgment of the United States Court of Appeals Enforcing an Order of the ing, within 20 days from the date of this Order, what steps National Labor Relations Board Respondent has taken to comply herewith