Castle Instant Maintenance/Maid

130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Castle Instant Maintenance/Maid, Inc. and Service Employees International Union, Local No. 102, AFL-CIO. Case 21-CA-19077 May 22, 1981 DECISION AND ORDER On December 18, 1980, Administrative Law Judge William L. Schmidt issued the attached De- cision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. The National Labor Relations Board has consid- ered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions2 of I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. Member Jenkins would not rely on Wright Line. a Division of Wright Line, Inc., 251 NLRB 1083 (1980), because the Administrative Law Judge discredited Respondent's asserted reasons for discharging Meza and explicitly found them to be pretextual, so that only the unlawful motive for the discharge remained and the Wright Line analysis which concerns weighing two genuine motives is not pertinent. Limestone Ap- parel Corporation, 255 NLRB No. 101 (1981). Chairman Fanning and Member Zimmerman do not share Member Jenkins' view of the Board's decision in Wright Line. supra, as interpreted by its decision in Limestone Apparel, supra. Limestone holds that the Board will not find it necessary to apply the specific formulaic approach set forth in Wright Line, or to make reference to an administrative law judge's failure to do so where it affirms his finding that the respondent's justification for discharge or discipline against the General Counsel's prima facie showing of impermissible motivation was pretextual. We did not there state, or even imply, that the correct result would not, or could not, be reached by applying the mode of analysis set forth in Wright Line to a defense which alleges a justification which is found not to have exist- ed or, if it did, not to have been relied upon by the Respondent. This case merely presents the reverse and equally applicable side of Limestone. Here the Administrative Law Judge applied the Wright Line format to a pretext discharge. But for Member Jenkins' comments, we would have affirmed the Administrative Law Judge's decision without comment. In Limestone, we said: "We shall not . . . in any future cases in which we adopt an administrative law judge's finding of a pretext dis- charge point to any failure to make specific reference to Wright Line." We now add that, in such cases, we shall not find it necessary Io com- ment upon an administrative law judge's reaching the same result by ap- plication of Wright Line, for a correct analysis that accords with Wright Line would not alter the result we would reach in any case See Wright Line. supra at 1084, fn. 5. 1089, fn. 13. 2 We do not rely on the Administrative Law Judge's analysis in find- ing that the Board has statutory jurisdiction over Respondent. Rather, we note the Administrative Law Judge's finding that Respondent annually provides janitorial services in excess of $50,000 to the United States Marine Corps. Therefore, we find that Respondent's operations satisfy the Board's indirect outflow standards for nonretail enterprises as set forth in Siemons Mailing Service, 122 NI.RB 81 (1958). See St. Francis Pie Shop, Inc., 172 NLRB 89 (1968). However, we do agree with the Administrative Law Judge's finding that the services which Respondent performs for the Marines are suffi- cient to have a substantial impact on the national defense within the meaning of the Board's discretionary guidelines for asserting jurisdiction. Ready Mixed Concrete Materials, Inc., 122 Nl.RB 318 (1958); Trico Dis- posal Service, Inc., 191 NLRB 104 (1971). 256 NLRB No. 29 the Administrative Law Judge and to adopt his recommended Order.3 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 and hereby orders that the Respondent, Castle Instant Maintenance/Maid, Inc., San Diego, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. 3 Member Jenkins would compute interest on Carlos Meza's backpay in the manner set forth in his partial dissent in Olympic Medical Corpora- tion, 250 NLRB 146 (1980). DECISION STATEMENT OF THE CASE WILI.IAM L. SCHMIDT, Administrative Law Judge: This matter was heard by me on September 30, 1980, at San Diego, California. The complaint was issued on behalf of the General Counsel by the Regional Director for Region 21, on June 26, 1980,' pursuant to a charge filed by Service Employees International Union, Local No. 102, AFL-CIO, on May 20, and an amended charge filed by the Union on May 23. The issues were joined by the answer of Castle Instant Maintenance/Maid, Inc., which is dated July 11.2 The complaint alleges that the Respondent discharged Carlos Meza on May 16, and that it has failed and re- fused to reinstate Meza because of his union or other protected concerted activities in violation of Section 8(a)(l) and (3) of the Act. With the exception of some admissions related to the Respondent's business oper- ations, the answer denies every allegation of the com- plaint. The General Counsel and the Respondent were repre- sented at the hearing by counsel. All parties were afford- ed the opportunity to offer relevant evidence, to argue orally, to file post-hearing briefs, and to otherwise be fully heard. On the basis of the record made at the hear- ing,3 my observation of the demeanor of the witnesses, and my careful consideration of the briefs filed on behalf of the General Counsel and the Respondent, I make the following: FINDINGS OF FACT I. JURISDICTION The Respondent, a California corporation which main- tains its principal office at San Diego, California, is en- ' Hereinafter all dates refer to the 1980 calendar year unless otherwise specified 2 The name of the Respondent appears herein as amended at the hear- ing. ' The transcript of the official proceedings herein is corrected, su spon te CASTLE INSTANT MAINTENANCE/MAID 131 gaged in providing janitorial services to, inter alia, agen- cies of the United States Government, including the U.S. Marine Corps and the General Services Administration (GSA). The answer further admits that, at all times mate- rial herein, Respondent has been providing janitorial services for GSA at the San Ysidro Port of Entry facility located at the International Border between the United States and Mexico. The Respondent also admits that it annually provides janitorial services valued in excess of $51,000 to the Marines. However, the Respondent denies that it is an employer engaged in commerce or business affecting commerce within the meaning of Section 2(6) and (7) of the Act, as alleged in the complaint and, at the conclusion of the hearing, the Respondent moved to dis- miss the complaint on the ground that the General Coun- sel had failed to establish the Board's legal jurisdiction over this matter. The General Counsel argues that the Respondent's ad- mission that it provides services valued in excess of $50,000 for the Marines establishes the existence of the Board's jurisdiction on the basis of either the indirect outflow test established in Siemons Mailing Service, 122 NLRB 81 (1958), or the substantial impact on national defense test established by the Board in Ready Mixed Concrete and Materials, Inc., 122 NLRB 318 (1958). In Ready Mixed Concrete and Materials, Inc., supra, the Board held that it would effectuate the policies of the Act to assert jurisdiction over all enterprises, as to which the Board has statutory jurisdiction, whose operations exert a substantial impact on the national defense, irre- spective of whether the enterprise's operations satisfy any of the Board's other jurisdictional standards. Over the years, the Board has avoided establishing a fixed- dollar amount under its national defense test below which the Board, in the exercise of its discretion, would not assert jurisdiction and, in the past, the Board has as- serted jurisdiction over a similar military contractor where the dollar volume of business was significantly less than that performed by the Respondent. See, e.g., Trico Disposal Service, Inc., 191 NLRB 104 (1971). Using Trico as a guide, the conclusion is easily reached that the volume of the Respondent's business with the Marines is sufficient to warrant the conclusion that the Respond- ent's operations have a sufficient impact on national de- fense so as to warrant the exercise of the Board's juris- diction under the discretionary standard announced in Ready Mixed Concrete, supra. However, with respect to the threshold question of the Board's statutory jurisdiction, the General Counsel urges that I take judicial notice of the fact that the Marines, as a component of the Department of Navy, employs per- sons throughout the United States and other parts of the world and purchases goods and services from suppliers located outside of the State of California which are valued in excess of $50,000. For example, the General Counsel's argument continues, a single M-60 tank manu- factured by the Chrysler Corporation in Warren, Michi- gan, costs approximately $700,000 and a single CA-53 helicopter manufactured by Sikorsky in Stamford, Con- necticut, costs approximately $4,500,000. The need for such judicial assumptions arises because such facts are not admitted nor otherwise in evidence in this case. Inso- far as the record here is concerned, there is no evidence that this Respondent or any of its customers purchase or sell goods or services which are transported directly across any state line. Although it is probably true that the magnitude of the operations of the Department of Navy in the State of California are such as to make the question of whether or not it is directly engaged in commerce an adjudicative fact which is generally known and, thus noticeable under Rule 201 of the Federal Rules of Evidence, I am satisfied that such an approach is unnecessary in this case. 4 Hence, the term commerce as used in the Act is defined in Section 2(6) to include, inter alia, "trade, traffic, com- merce, transportation, or communication . . . between any foreign country, and any State, Territory, or the District of Columbia . .. .or between points in the same State but through . . . any foreign country." The evi- dence shows that the instant dispute arises among em- ployees who are employed at the busy border-crossing station between Tijuana, Baja, California, and San Diego County, California. The Respondent here has a service agreement through the Small Business Administration with GSA to maintain the facilities at the San Ysidro Port of Entry facility which houses the border oper- ations of the United States Customs Service and the Bureau of Immigration and Naturalization. The magni- tude of the commercial importance of this facility is evi- dent from some incidental facts contained in the record. For example, it was estimated that approximately 15,000 persons walk through this border-crossing station daily. In addition, the facility has 21 traffic lanes to accommo- date the vehicular traffic at this border-crossing point. When the foregoing is considered, it is difficult to imag- ine a setting where a single labor dispute would have the potential to more directly disrupt the commerce which Congress has empowered the Board to regulate than here. Accordingly, on the basis of the Respondent's busi- ness activities at the San Ysidro Port of Entry, I am sat- isfied that the Respondent's operation is sufficiently im- pressed with the elements of statutory jurisdiction so as to warrant the conclusion that legal jurisdiction exists in this matter notwithstanding the fact that the record con- tains no evidence that the Respondent or any of its cus- tomers receive or furnish goods or services which cross a state boundary. Colonial Catering Company, 137 NLRB 1607 (1962). Having concluded that the Board has statu- tory jurisdiction over the Respondent, I further find that the amount of services that the Respondent admittedly performs for the Marines is sufficient to have a substan- tial impact on national defense within the meaning of the Board's discretionary guidelines for asserting jurisdiction. Trico Disposal Service, Inc., supra; Ready Mixed Concrete and Materials, Inc., supra. Accordingly, I find that the Respondent is an employer within the meaning of Sec- tion 2(2) of the Act which is engaged in commerce or a 4 See, e.g., St. Francis Pie Shop, Inc., 172 NLRB 89 (1968). On the ether hand, the General Counsel's request that I take notice of the cost, the location of manufacture and the utilization of certain specific equip- ment by the Marines in California is, in my judgment, not permitted by Rule 201 La-Ron Corporation d/b/a Precision Carpet. Inc., 223 NLRB 329, 33.9, fn. 52 (1976) 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD business affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent denies that the Union is a labor orga- nization within the meaning of Section 2(5) of the Act. The record establishes that the Respondent admits em- ployees to membership and that it exists in whole or in part for the purpose of representing employees for the purpose of collective bargaining with employers con- cerning their wages, hours, and working conditions. The record further establishes that, on August 18, the Union was certified as the exclusive collective-bargaining repre- sentative of the Respondent's own employees at the San Ysidro Port of Entry pursuant to Section 9(a) of the Act in Case 21-RC-16394. Accordingly, I find that the Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. 1II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Contentions The General Counsel contends that Meza was the principal initiator of the Union's successful drive to orga- nize the Respondent's employees at the San Ysidro Port of Entry station (San Ysidro). The General Counsel fur- ther contends that there is direct evidence that the Re- spondent knew of Meza's activities in this regard and that the Respondent terminated Meza because of his role in instigating the organizing drive. Entirely apart from the direct evidence offered by the General Counsel con- cerning the element of knowledge, the General Counsel further contends that knowledge of Meza's organizing activities may be inferred on the basis of the so-called small plant doctrine 5 and, as the Respondent's asserted reasons for terminating Meza are pretextual, the further inference is warranted that Meza's discharge resulted from his union activities. The Respondent contends that Meza was discharged for cause; i.e., that he was unable to perform his assigned work of maintaining floors in a condition sufficient to meet standards imposed by GSA. Apart from this affirm- ative defense, the Respondent denies that it learned of any union activities among its employees until after the date of Meza's discharge and, for these reasons, the Re- spondent contends that the General Counsel has failed to prove that Meza was discharged in violation of the Act by a preponderance of the credible evidence. B. The General Counsel's Case Carlos Meza was hired by the Respondent's general foreman, Jose Avila, and he commenced his employment on February 8. Meza was assigned to the Respondent's crew engaged in the building maintenance work at San Ysidro where the Respondent employs approximately 10 5 Apart from showing that the Respondent employs a small number of employees at San Ysidro, the General Counsel developed little other evi- dence to support his small plant theory. Where, as here, other evidence shows that the San Ysidro facility serves as the work situs for employees of several other persons and as a busy public facility, the basis for the General Counsel's argument in this regard is significantly diminished. Ac- cordingly, it will not be further considered herein. employees and 1 supervisor, Isaias Serrano. Meza's prin- cipal job was to clean and polish floors at the port of entry facility. Until the final week of his employment, Meza was assigned to a shift which worked from 4:30 p.m. until I a.m. According to Meza and a fellow employee, Humberto Saldana, the employees at San Ysidro began discussing among themselves the possibility of seeking union repre- sentation in late April. Eventually, these informal discus- sions at work led to a meeting among some of the em- ployees at a nearby Jack-In-The-Box Restaurant on ap- proximately May 4.6 During this meeting, Meza volun- teered to investigate specific labor organizations which could represent the San Ysidro employees. In further- ance of this undertaking, Meza spoke to an individual named Barbara, who was employed at San Ysidro by the U.S. Customs Service. Barbara offered to take Meza to meet with the representatives of the Union. Meza testified that on May 9, Barbara accompanied him to the Union's offices where they met with James Hawes, the Union's executive secretary treasurer. In the course of this meeting, Meza explained the reasons the San Ysidro employees felt they needed a union and Hawes explained the benefits the employees could hope to achieve by organizing. During this meeting, Meza signed a union card and Hawes provided Meza with eight or nine additional cards to distribute to his fellow employees. In addition, Meza arranged with Hawes to meet with the San Ysidro employees of the Respondent at a nearby Sambo's Restaurant on the evening of May 12. Following his meeting with Hawes, Meza returned to the San Ysidro facility and met with Maria Berregan as she was leaving work. Meza reported the substance of his meeting with Hawes to Berregan and gave Berregan four or five of the authorization cards to distribute to other employees. Meza also solicited Berregan's assist- ance to inform employees of the scheduled May 12 meet- ing with Hawes. According to Meza, he sought Berre- gan's aid because she had a greater opportunity to meet with the employees and pass along the information that he had obtained. 7 The prearranged meeting at Sambo's Restaurant took place as scheduled on May 12. In the course of this meeting, Meza and another employee served as interpret- ers between the predominately Spanish-speaking employ- ee complement and the union representatives who at- tended. On the following day, the Union filed the peti- tion in Case 21-RC-16394 at the National Labor Rela- tions Board Resident Office in San Diego. Effective May 12, Meza was transferred from his job of maintaining the floors to the "gardener's" job which amounted primarily to policing the outside grounds. However, the gardener's job also appears to have includ- 6 In his tesimony, Meza was unable to recall the exact date of this em- ployee meeting, but on the basis of his testimony concerning the chro- nology of events leading to a meeting with a union representative on May 9, it appears that the Jack-In-The-Box meeting occurred on May 4 at the latest. 7 There is no evidence that the Respondent was aware of Berregan's activities or that any discrimination was practiced against her as a result of her union activities CASTLE INSTANT MAINTENANCE/MAID 133 ed the floor maintenance in a small building situated at Browns Field, a U.S. Customs Service landing strip lo- cated approximately 20 minutes from San Ysidro by automobile. On Friday, May 16, when Meza was gather- ing the equipment to go to Browns Field, he overheard one end of a telephone conversation between Serrano and Avila.8 In this conversation, Serrano inquired as to what was going to happen with Meza and, after a brief pause, Meza then heard Serrano state words to the effect that Meza would be permitted to finish the day and then he would be terminated as though he was repeating an instruction. Upon his return from Browns Field on May 16, Meza went to the timeclock to punch out. He was met there by Serrano who handed him an envelope containing his termination slip. After Meza had reviewed the termina- tion slip, Serrano offered to read it to Meza if he did not understand it. When Meza told Serrano that he under- stood it, he then stated to Serrano, "You told me that I had to have three warnings before you get fired." 9 Ser- rano replied, "No, you can have 5, 10, 20 warnings as long as the company likes you." At that point, Meza said nothing further and left. The General Counsel produced direct evidence of the Respondent's motive for terminating Meza through the testimony of Humberto Saldana, another of the Respond- ent's employees at San Ysidro. Saldana testified that at approximately 2:30 p.m. on Wednesday, May 7, Serrano approached him at work and told him that he was going to be assigned to the floor maintenance work because the Respondent wanted to move Meza to his job and then terminate him because the Resoondent had become aware that Meza was "moving the union." Serrano promised Saldana that he would be moved back to his old job on days as soon as he could, Saldana commenced working the floor maintenance job on May 10 and Meza began working as the gardener on May 12.10 Meza claimed that Serrano was extremely critical of his work but he attributed Serrano's attitude to his rebuke of Serrano's approach to him concerning his reli- gious beliefs. On May , which was one of Meza's off days, Meza went to the Respondent's home office where he met with Oswaldo Castillo, the Respondent's presi- dent, concerning his belief that Serrano was harassing him because of his unresponsive attitude toward Serrano on the subject of religion. According to Meza, Castillo told him that he was the third person to make a similar complaint and that he would look into the matter. Cas- tillo, who also testified concerning this meeting, did not mention that he had similar complaints but acknowl- edged that he told Meza that he would have Avila meet with Serrano and Meza about the matter. Avila testified that he arranged for such a meeting through Serrano I Meza's conclusion that Serrano was talking with Avila was based on Serrano's salutation, "Mr. Joe," which, according to Meza, Serrano typi- cally used in greeting Avila. I Meza testified that Serrano told him of the three-warning rule when he commenced his employment. Such a rule appears to have been later applied to the detriment of Humberto Saldana. However, there is no mention of such a rule in the Respondent's work rules which are in evi- dence. 'o As a result of this switch, Meza was not required to work on May 10or II. which was supposed to occur immediately after another scheduled meeting with the San Ysidro employees on May 5, but Meza left before there was an opportunity for the three men to meet. There is no evidence that any further attempt was made to inquire into the matter. Raymond Seewald, a U.S. Customs Service supervisor at San Ysidro, testified that he had never lodged any complaints against the Respondent's service at the San Ysidro facility as he had done when GSA was directly responsible for the maintenance of the facility. Subse- quent to Meza's discharge, Seewald provided Meza with a laudatory letter of recommendation. C. The Respondent's Case In support of its case that Meza was terminated for cause, the Respondent presented the testimony of its gen- eral foreman, Jose Avila, Meza's immediate supervisor, Isaias Serrano, the GSA inspector, Martin Galvez, who conducted the weekly inspection of the facilities at San Ysidro and its resident Oswaldo Castillo. Avila testified that he hired Meza and assigned him to the San Ysidro crew where he worked a number of jobs in order to learn the variety of tasks at that location. Ap- proximately a month after Meza had been employed, Avila had occasion to inspect the floors at San Ysidro and the work then being performed by Meza. At that time and for the first 2 months of Meza's employment, Avila felt the floors were being maintained in a satisfac- tory fashion. However, the quality of floor care by Meza started to deteriorate after this time in Avila's view. Fol- lowing one specific inspection by Avila in this latter period, he ordered Serrano to provide help to Meza to bring the floor condition up to par. Thereafter, Avila tes- tified, he received a phone call from Hector Ochoa, a GSA general foreman with responsibility over the San Ysidro facility, who told him that he and another GSA supervisor at San Ysidro had inspected the port of entry facility and that the whole area seemed to have a sticky substance all over the floors." Avila further testified that Ochoa told him that this condition had to be cor- rected in 2 days or GSA would require that the floors be completely stripped and rewaxed. Because of this report, Avila decided to replace Meza on the floor care work as Serrano had recommended to him 2 or 3 days earlier. Serrano effectuated Meza's transfer by switching the jobs performed by Meza and Saldana. Avila testified that he thereafter decided to discharge Meza on May 16. Ac- cording to Avila, he initially directed Serrano to transfer Meza rather than terminate him because he needed the added time to obtain a replacement for Meza. Serrano testified that Meza spent his first week on the job learning about floor maintenance and about the oper- ation of the floor care equipment. Thereafter, the job was assigned to Meza. Serrano characterized the condi- tion of the floors during Meza's first month of employ- ment as "beautiful." Serrano said that the quality of the floor care subsequently deteriorated. In Serrano's words. "[T]hey started to look bad, lack of wax, dirty build-up " Meza testified that Serrano informed him of a special inspection but no effort was made to connect this inspection with the Ochoa inspection referred to by Avila through either Meza or Serrano. 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the corners, under the furniture was other stains." Ser- rano testified that he verbally warned Meza on three or four occasions and the record contains one written warn- ing which was issued to Meza during the middle period of his employment. That written warning is dated April 14, and is signed by Meza to acknowledge its receipt. Boxes labeled "disobedience," "carelessness," and "work quality," on the form are checked, and in the space pro- vided for a narrative comment, Serrano wrote that Meza was being warned primarily because he was not follow- ing orders. If it is assumed that this statement refers to deteriorating floor-care work, it is somewhat puzzling because in the GSA inspection reports for the two in- spections immediately prior to the April 14 written warning, the rating for floor-care was 4.5 on a scale of 5-the highest rating for that aspect of the San Ysidro work for any inspection period shown in the record in this case while the rating for the inspection immediately after April 14 shows the lowest rating for any report in evidence. However, no other explanation was proffered for that statement. At the hearing, Serrano was examined concerning an- other written warning which he allegedly gave to Meza preceding the April 14 warning but this warning was not offered in evidence. In the course of his testimony, Meza denied receiving more than one written warning. Never- theless, in his testimony, Serrano insisted that he pre- pared an earlier warning on March 14 and gave it to Meza. In the course of the examination, however, it was established that several dates contained on this warning notice were inconsistent with the preparation and issu- ance of the warning on March 14. According to Serrano's version of the events leading to Meza's discharge, the floor care continued to deterio- rate and the inspector's ratings were becoming worse and worse. Serrano said that it finally reached a point where he had to do something quickly, so he recom- mended that Meza be transferred to another position.' 2 As a consequence, Meza was transferred to the position of gardener and Saldana, who had previously performed the gardener's work, was assigned to the floor care oper- ation. Based on the weekly GSA inspection reports de- tailed, infra, it appears that the quality of floor care did not improve. However, there is no indication that any warnings were issued to Saldana for the condition of the floors through this period. Rather, on September 9, Sal- dana was discharged for absenteeism. Avila testified that the first he knew of any union ac- tivity at San Ysidro on the part of the Respondent's em- ployees was on or about May 22, when a written com- munication was received from the Board office in con- nection with either the petition in Case 21-RC-16394 or the charge in the instant matter. Serrano said he first learned of the union activity among the Respondent's employees was on or about May 23 or 24, when Avila spoke to him. Castillo testified that the first indication that he had of any union activity among the employees at San Ysidro was when he received a telephone call on 12 Serrano testified further in this regard that he never recommends the termination of employees. This is inconsistent with a finding made in the Regional Director's Decision and Direction of Election that Serrano recommends the termination of two or three employees each month. May 20 from a Resident Office employee to inquire if the Respondent had received a communication from the Board's office. Castillo testified that the Respondent had not yet received any communication so he inquired as to where the document had been sent and learned that the document had been sent to a wrong address. Another copy of the document was to be forwarded to the Re- spondent at its correct address and it appears that this is the document Avila referred to in his testimony. Both Avila and Serrano denied that they ever talked to Meza about the Union. Serrano denied that they ever told Sal- dana that Meza was going to be terminated for his union activities, but he had no particular recollection of the conversation between himself and Saldana when Saldana was informed of his transfer to the floor-care work. Martin Galvez, the GSA inspector who normally con- ducted the inspections of the Respondent's work at San Ysidro, testified concerning the inspection reports he prepared in the months of March, April, May, and June. Those reports show the following ratings for floor care based on a scale of I (lowest) to 5 (highest): March 3 March 10 March 17 March 24 April 7 April 21 April 28 May 5 May 19 May 29 June 10 June 16 June 21 3.50 3.00 4.25 4.50 4.50 2.75 4.00 4.25 Rept. not in evidence 4.00 3.75 4.00 3.00 A more careful review of the inspection reports disclose that where floor care is shown as a separate subitem of another category, such as room care or corridors and en- trances, the ratings are not always consistent. Galvez tes- tified that Ochoa is one of his supervisors but that he was unaware of a special inspection by Ochoa between the months of January and June. No inquiry was made of Galvez concerning the sticky floor condition which Avila alluded to in his testimony. In Wright Line, a Division of Wright Line Inc., 251 NLRB 1083 (1980), the Board articulated the test to be employed in all cases alleging violations of Section 8(a)(3) or violation of Section 8(a)(1) which turn on the question of motivation. Under the Wright Line test, the General Counsel is required to make a prima facie show- ing to support the inference that protected conduct was the motivating factor in the employer's action being ex- amined. Once such a prima facie case is established, the burden is shifted to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct. Id. at 1087. However, this shifting of burdens does not shift the ultimate burden of the General Counsel to establish the existence of an unfair labor practice by a preponderance of the evidence. Id. at 1088, fn. 11. As the allegation in the complaint in CASTLE INSTANT MAINTENANCE/MAID 135 this matter alleges that the Respondent violated Section 8(a)(3) of the Act, the analytical approach of Wright Line, supra, applies. Based on the foregoing findings and the entire record, I am satisfied that the General Counsel has established by a preponderance of the credible evidence that Meza was terminated because of his union activities. This con- clusion is warranted on the basis of the testimony of Sal- dana which provides direct evidence of Respondent's motivation as well as the fact that the Respondent's as- signed reason for terminating Meza is inconsistent with the objective evidence concerning the floor care ratings in the last weeks of Meza's employment.'a In general, the GSA inspection reports strongly support the conclu- sion that the quality of floor care under Meza was at least equal to that provided by Saldana who appears never to have been warned or terminated for substan- dard work. This conclusion alone detracts considerably from the Respondent's burden of demonstrating that the adverse action it took against Meza would have occurred even in the absence of Meza's protected conduct. In this same connection, the GSA inspection reports show that Serrano's assertion to the effect that Meza's care of the floors deteriorated rapidly in his final few weeks of em- ployment so as to necessitate taking quick action is simply unsupported. When this latter fact is considered together with Serrano's self-contradictory testimony con- cerning the written warning he allegedly issued to Meza in March and his inability to recount the substance of the critical conversation wherein he informed Saldana of his transfer to the floor care work to replace Meza, it be- comes clear that any conclusion grounded upon Ser- rano's testimony is not reliable. Moreover, the Respond- ent's failure to call Ochoa to corroborate Avila's critical testimony concerning the sticky floor incident, or to ex- plain Ochoa's absence, warrants the inference that Ochoa would not have corroborated Avila's testimony in this regard especially where, as here, Ochoa's subordinate Galvez, who was called by the Respondent gave no indi- cation that he was aware of the incident. On the other hand, no attempt was made to impeach Saldana's testi- mony by means of inconsistencies between his testimony and his pre-hearing statement, which was provided to the Respondent, or by means of bias grounded on a showing that his pre-hearing statement was provided after his discharge in September. The Respondent's at- tempt to impeach Saldana on the purely collateral matter relating to his request for time off in August is wholly insufficient to cast doubt upon his critical testimony con- cerning the transfer conversation. Concluding as I have that there is no substantial basis to doubt Saldana's testi- mony, I find his account of the May 7 conversation with Serrano, wherein the latter stated that Meza was about to be discharged for "moving the union" to be credible. In view of this remark by Serrano, I am satisfied that the Respondent's officials learned of the employees' organiz- ing efforts substantially before it received any communi- cation about the filing of the National Labor Relations Board petition by the Union as claimed. Having also '3 The General Counsel does not allege Serrano's statement to Saldana on May 7 as an independent 8(a)(l) violation concluded that the Respondent's asserted reason for transferring and then terminating Meza is a pretext, I am fully satisfied that the General Counsel has established by a preponderance of the credible evidence that Carlos Meza was terminated for his leading role in the organiz- ing effort. Accordingly, I find that the Respondent vio- lated Section 8(a)(1) and (3) of the Act, as alleged. The complaint herein makes no reference to Meza's transfer to the gardener's job although the version of the events I have credited above makes it clear that this transfer was a mere preliminary step to Meza's subsequent termination only a short time later. For this reason, I am satisfied that Meza's transfer on or about May 12 was, likewise, unlawful and an appropriate remedial order shall be en- tered for this conduct. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, oc- curring in connection with the operations of the Re- spondent described in section I, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, it is recommended that the Respondent be ordered to cease and desist therefrom and to take the affirmative action described below which is designed to effectuate the policies of the Act. With respect to the necessary affirmative action, it is recommended that the Respondent be ordered to offer Carlos Meza immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges he previously enjoyed. It is also recommended that the Respondent be ordered to make Carlos Meza whole for the losses which he suffered as a result of his transfer on May 12 and his termination on May 16 in the manner provided by the Board in F W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon as provided by the Board in Olympic Medical Corporation, 250 NLRB 146 (1980), and Florida Steel Corporation, 231 NLRB 651 (1977). And see, generally, Isis Plumbing Heating Co., 138 NLRB 716 (1962). It is further recommended that the Respond- ent expunge from its records any reference to Meza's transfer and termination. Finally it is recommended that the Respondent be ordered to post the attached notice to marked "Appendix" for 60 consecutive days in order that employees may be apprised of their rights under the Act and the Respondent's obligation to remedy its unfair labor practice. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act, engaged in commerce or in an industry affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By transferring Carlos Meza on or about May 12, and by discharging Carlos Meza on or about May 16, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Pursuant to Section 10(c) of the Act and upon the foregoing findings of fact, conclusions of law, and the entire record herein, I hereby issue the following recom- mended: ORDER 4 The Respondent, Castle Instant Maintenance/Maid, Inc., San Diego, California, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Transferring or discharging any employee in retali- ation for engaging in activities on behalf of Service Em- ployees International Union, Local No. 102, AFL-CIO. (b) In any like or related manner interfering with, re- straining, or coercing employees because they choose to engage in activities on behalf of Service Employees In- ternational Union, Local No. 102, AFL-CIO, or discrim- inating against employees in regard to their hire or tenure of employment or any term or condition of em- ployment in order to encourage or discourage member- ship in that labor organization except to the extent per- mitted by an agreement described in Section 8(a)(3) of the Act. 2. Take the following affirmative action in order to ef- fectuate the policies of the Act: (a) Offer immediate and full reinstatement to Carlos Meza and make him whole for the losses he incurred as a result of the discrimination against him in the manner specified in the section above entitled "The Remedy." (b) Expunge from its records any reference to Carlos Meza's transfer and termination in May 1980. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports and all other re- cords necessary or useful to a determination of the amount of backpay due under the terms of this Order, the propriety of any offer of reinstatement made to 14 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. Carlos Meza, and the Respondent's compliance with sub- paragraph (b) above. (d) Post at its office in San Diego, California, and at any location available to it at the San Ysidro Port of Entry facility for the purpose of posting notices to em- ployees copies of the attached notice marked "Appen- dix."' 5 Copies of said notice on forms provided by the Regional Director for Region 21, shall be duly signed by the Respondent and posted. 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. Rea- sonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. l~ 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 Pursu- ant 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 WE WILL NOT transfer or discharge any employ- ee for engaging in union activities or otherwise ex- ercising any of the rights guaranteed by Section 7 of the National Labor Relations Act, as amended. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. WE WILL offer Carlos Meza immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings incurred from being transferred and then terminated in May 1980, with interest. WE WILL expunge from our records any refer- ence to Carlos Meza's transfer and termination in May 1980. CASTLE INSTANT MAINTENANCE/MAIDS, INC.