International Total Services, Inc.

576 INTERNATIONAL TOTAL SERVICES International Total Services, Inc. and Joyce Shelton. Case 8-CA-19417 16 December 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 10 September 1987 Administrative Law Judge Robert W. Leiner issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief. The General Counsel filed cross-ex- ceptions and brief and an answer to the Respond- ent's exceptions. The Respondent filed an answer- ing brief to the General Counsel's cross-exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order. i ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, International Total Services, Inc., Cleveland, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Order, except that the attached notice is substituted for that of the administrative law judge. ' The General Counsel excepts to the judge's failure to grant a visita- tonal clause authorizing the Board, for compliance purposes, to obtain discovery from the Respondent under the Federal Rules of Civil Proce- dure under the supervision of the Uriited States court of appeals enforc- ing this Order Under the circumstances of this case we find that such a clause is unwarranted Thus, we shall deny the General Counsel's re- newed request that a visitatorial clause be included in the Order APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT terminate the employment of or otherwise discipline employees for processing lawful grievances filed under a lawful collective- bargaining agreement or otherwise engaging in concerted activity protected under the National Labor Relations Act. WE WILL .NOT in any, like or related manner interfere with, restrain, ,or coerce you in the exer- cise of the rights guaranteed you by Section 7 of, the Act. 'WE WILL offer Joyce Shelton immediate and full reinstatement to her former job, discharging,' if nec- essary, any replacement, or, if that job no` longer exists, to a substantially equivalent position of em- ployment, without prejudice to her seniority or any other rights or privileges previously enjoyed and WE WILL make her whole for any loss of earnings, with interest,' that she may have suffered by reason of our unlawful termination of her employment on 8 -August 1986.. WE WILL expunge from the employment records of Joyce Shelton any reference to her termination of .employment on 8 August 1986, and notify her, in writing, that this has been done, and the evi- dence of her unlawful termination of employment will not be used as a basis for any future discipli- nary action against her. INTERNATIONAL TOTAL SERVICES, INC. Allen Binstock, Esq., for the General Counsel. Irwin J. Dinn, Esq. (Dinn, Hochman & King), of Beach- wood, Ohio,- for the Respondent. DECISION STATEMENT OF THE CASE ROBERT W. LEINER, Administrative Law Judge This matter was heard on 5 May 1987 in Cleveland, 'Ohio, on the General Counsel's complaint' alleging, in substance,' that International Total Services, Inc (the Respondent, sometimes referred to as ITS), violated Section 8(a)(1) and (3) of the National Labor Relations Act, about 8. August 1986, by unlawfully suspending or terminating the employment of. its -employee, Charging Party Joyce Shelton At the hearing, the parties were represented by coun- sel, were 'given full opportunity to call and'examine wit- nesses; submit oral and written evidence and to argue orally on the record. At the close of the hearing, counsel for Respondent submitted final oral argument and, there- fore, both Respondent and the General Counsel filed posthearing briefs, which have been carefully considered. On the entire record, including the briefs and argu- ment, and from my observation of the demeanor of the witnesses as they testified, I make the following The complaint is dated 19 September 1986 The Charging Party's un- derlying unfair labor practice charge was filed on 15 August 1986 and served on Respondent on 18 August 1986 287 NLRB No. 59 INTERNATIONAL TOTAL SERVICES 577 FINDINGS OF FACT • I. RESPONDENT AS STATUTORY EMPLOYER The complaint alleges, Respondent admits, and I find that at all material times Respondent, an Ohio corpora- tion with an office and place of business in Cleveland, Ohio, has been and is engaged in the business of provid- ing janitorial and security services. Respondent admits that in the course and conduct of its business activities, Respondent annually provides services valued in excess of $50,000 in states other than the State of Ohio and con- cedes that it is an employer engaged in commerce within the meaning'of Section 2(2), (6), and (7) of the Act 11 THE UNION AS A STATUTORY LABOR ORGANIZATION The complaint alleges, Respondent admits, and I find that at all material times Service, Hospital, Nursing Home and Public Employees' Union, Local No. 47 a/w Service Employees' International Union, AFL-CIO (the Union), is now, and has been, a labor organization within the meaning of Section 2(5) of the Act. I so find.2 III. THE ALLEGED UNFAIR LABOR PRACTICES The complaint (par. 6(A)) alleges that Respondent admits that about 8 August 1986 Respondent suspended and/or terminated its employee, Joyce Shelton. Respond- ent, however, denies that this action was precipitated by Joyce Shelton joining, supporting, or assisting the Union or because she engaged in protected concerted activities. Joyce Shelton has been performing janitorial services at the Terminal Tower Building in Cleveland, Ohio, since 1973 for various contractors performing at that site. In or about 1983, Respondent became the contractor per- forming janitorial services and employed Shelton in her capacity as a cleaner Respondent was also the cleaning contractor in other Cleveland office buildings The employees performing the cleaning and janitorial function at the Terminal Tower were members of, and covered by, a contract between Respondent and the Union, Local 47 This was the only'collective-bargaining agreement that Respondent had for its Cleveland build- ings. McCarthy told Shelton that the management of Terminal Towers (Forest City Enterprises) requested that Shelton be removed from the building because she took candy and cookies from the tenants' offices in the building and because she drank on the job. McCarthy said he had an- other job for her at a building for which Respondent supplied janitorial services, a building at No. I Playhouse Square. Although McCarthy testified that he told her that the job at No. 1 Playhouse Square would be 37-1/2 hours a week and that the pay and benefits' would be the same, Supervisor Gallo could- not recall McCarthy saying anything about hours (although he recalls McCar- thy saying that the pay would be the same) (Tr. 124- 125). Shelton testified, and Brazelton corroborated (Tr. 116), that McCarthy told her that she could work about 5 hours per night at No. 1 Playhouse Square.3 Thus, Shelton and Brazelton testified that Shelton would receive "maybe" 5 hours of work at No 1 Play- house Square. I credit their testimony, especially in view of Shelton's undenied testimony concerning a later con- versation with McCarthy on 4 June in McCarthy's office. In this 28 April conversation, Shelton told McCarthy that she would not take the 5-hour job and wanted 7-1/2 hours of work per night (Tr 117). Brazel- ton, at the meeting, told Shelton that she would, not take such a job offer either. McCarthy told Shelton that she should let him know if she wanted to go to work there Brazelton told Shelton to go down to the union hall and file a grievance. The next day, Shelton filed a grievance (G.C. Exh. 5). On 23 May 1986 she also filed a claim at the Ohio Bureau of Employment Services (G C. Exh. 7).4 Shelton did not work between 28 April and 9 June 1986. B. The 4 June 1986 meeting at the Ohio Bureau of Employment Services Two weeks after filing her Ohio unemployment com- pensation claim, she met with a claims examiner on' 4 June 1986 (Tr 84). After discussing the reasons for her termination at the Terminal Tower with the examiner, the examiner told Shelton that she thought the termina- tion (based on polygraphic testing) had been faulty and decided to telephone McCarthy concerning the matter A., The Events of 28 April 1986 From 1980 to April 1986, Shelton was employed by ITS and for ,at least several of those years she worked at the Terminal Tower site. She performed the standard housekeeping duties, vacuuming, dusting, and restroom cleaning in the office suites at the Terminal Tower. Re- spondent considered the quality of her work to be "good." On the evening of 28 April 1986, there was a meeting attended by Joyce Shelton, Gary McCarthy, Union Steward Katie Brazelton, and Kenneth J. Gallo, the second-shift supervisor at the Terminal Tower Build- ing and Shelton's supervisor at that time. At the meeting, 2 Respondent also concedes that its general manager, Gary McCarthy, and its supervisor , Ken Gallo, are supervisors within the meaning of Sec 2(11) of the Act and agents of Respondent within the meaning of Sec 2(13) of the Act 3 As the General Counsel observes (Br 3), Respondent's witnesses' tes- timony was not consistent on material points For instance , McCarthy testified specifically that he told her (Tr 144), "1 told her nothing would change The hours and everything would stay the same The only thing that would change [while working at No I Playhouse Square] would be the job location and possibly her starting time would be a little bit early " He specifically denied having mentioned anything about Shelton working only 5 hours at the job Supervisor Gallo recalls only that McCarthy said that' the "pay" would be the same and did not mention hours (Tr 125- 127) He did recall (Tr 126) that when Shelton asked about "benefits," McCarthy said that everything would be the same and that there would be no changes When McCarthy said that the job offer at No I Play- house Square necessarily included a 37-1/2-hour week (Tr 129) because of the provisions of the union contract, he was then reminded that there was no union contract covering the building at No I Playhouse Square and that, contrary to his testimony , he was under no obligation to offer any job to Shelton at that place (Tr 142 ) 4 The parties stipulate that the date Shelton alleged she was terminated from the Terminal Tower Building, which appears on this application, is incorrect and that the actual date she last worked at Terminal Tower was 28 April 1986 (Tr 82 ) 578 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (Tr. 85) The examiner telephoned McCarthy and, asked him whether he would take Shelton back. McCarthy said that he would. He also said that she would get the same benefits and rates of pay and would work a 7-1/2 hours per day assignment (Tr. 86) This was the first knowl- edge that McCarthy had that Shelton had filed a claim for unemployment benefits (Tr. 24) McCarthy heard Shelton, over the phone, tell the examiner that all she wanted was to go back to work (Tr. 135, 157). Shelton's claim for unemployment benefits was thereafter `refused, apparently because Respondent had offered her an alter- native job (at Playhouse Square) at the time of the exit interview.5 In any event, after the Ohio unemployment compensa- tion examiner telephoned McCarthy and McCarthy had offered Shelton employment at No. 1 Playhouse Square, Shelton went directly to speak- to McCarthy at McCarthy's office in the Terminal Tower (Tr., 87): There, McCarthy told her that he had plenty of jobs for her with 7-1/2-hour workdays. She told him that he could have told her this back on 28 April instead of "giving me 2 months off. All I wanted to do was work " (Tr. 88.) He also told her that her first day of work would be 9 June and that she would receive full benefits (Tr 88). Neither at the 28 April 1986 termination meet- ing nor in this meeting on 4 June did Shelton or McCar- thy mention the existing grievance or the backpay that Shelton claimed was owed her (Tr. 90). Shelton's griev- ance (G.C. Exh. 5), filed on 29 April 1986 and transmit- ted to Respondent on 1 May 1986, remained pending.6 Shelton commenced working at No. 1 Playhouse Square, as agreed, on Monday, 9 June 1986 A few days before 16 June 1986, Local Union Presi- dent Murphy telephoned her. He told her he was going to speak with McCarthy on 16 June concerning various grievances filed by employees and told Shelton that she could come to the meeting, but that her presence was not necessary. She told him that she was already back at work at No 1 Playhouse Square When Murphy then of fered her-the chance to return to work at the Terminal Tower, Shelton told him that she did not want to go back to Terminal Tower and desired to remain at No 1 5 Shelton, nevertheless, thereafter demanded compensation for the 2- month period between the time that she was terminated (28 April) from the Terminal Tower Building to the time she took up employment (9 June) at the No I Playhouse Square She regards the source of this com- pensation as immaterial She has refused to settle her grievance without such compensation She admitted that there came a time that she knew she could not receive it from the Ohio Unemployment Compensation Bureau because she had failed to timely appeal the initial denial (Tr 110) She testified that she intended to get that money pursuant to the union grievance procedure because she could not get it through payment from unemployment compensation (Tr 110) e The written grievance (G C Exh 5) ends with the statement it all started with Prince [a supervisor] and the lawsuit I had against them It's really because I won the lawsuit They have been picking on me every since then " Shelton admitted that her grievance addressed only the ques- tion of her alleged unlawful transfer out of the Terminal Tower Building (Tr 108) The reference in the grievance to the lawsuit relates to the fact that in June 1985, Respondent suspended Shelton for 3 days without pay after which she filed a grievance (Tr' 103) In an attempt to settle the grievance, Respondent offered Shelton the right to take 3 days off with pay to make up for the 3-day suspension they had given her without pay Shelton refused this offer (Tr 103 ) As a result of Respondent's offer and Shelton's refusal, Shelton apparently sued Respondent in the small claims court and Shelton won the case (Tr 105 ) Playhouse Square. She told him that all she wanted was the 2 months' money that she had missed from not work- ing, her "back money" (Tr. 93) Murphy asked her whether she would be satisfied, if the Company refused to pay her, if he could get the Company to agree to let her'receive her "back money" through Ohio unemploy- ment (Tr. 93) Shelton told him she did not care who paid her, just so long as she got the money. This conver- sation occurred a few days prior to the 16 June 1986 meeting between Murphy and McCarthy concerning em- ployee grievances. (Tr. 50.) On 16 June Murphy and McCarthy met and this was the first time that Shelton's grievance was discussed. (Tr. 34.) At, the .16 June 1986 meeting, McCarthy and Murphy also discussed the grievance of employee Nina Mayes who, like Shelton, had been fired from employ- ment at the Terminal Tower. (Tr. 34.) At that meeting, McCarthy said that he would reinstate Mayes and put her,to work at No. 1 Playhouse Square if she agreed to waive backpay. (Tr. 34.) Ultimately, Mayes executed, about 27 June 1986, such a waiver which, according to its terms, settled and resolved "any and all claims . . in connection with the grievance dated 31 March 1986." (G C Exh. 3.) McCarthy offered to settle the grievance with the Union concerning Joyce Shelton on the same terms that Mayes had settled (Tr. 37), and Murphy told McCarthy that he would speak to Shelton about the matter and get back to him. Around 28 July 1986, Murphy telephoned McCarthy and told him that Shelton refused to sign a settlement unless Respondent would not challenge her eligibility for unemployment benefits for the 2 months that she missed (G.C. Exh. 4). On the next day, 29 July 1986, Respondent (McCar- thy) wrote to Murphy and stated that if Shelton refused to sign the agreement waiving backpay, by 8 August 1986, she would not be permitted to work until a settle- ment was agreed on (G.C Exh 4) In that letter, Re- spondent stated that there had been "a verbal settlement" at the time that Respondent put her back to work at No. 1 Playhouse Square and there had been no agreement for her to receive backpay The letter concluded that unless Shelton signed the settlement agreement by 4 p in. on Friday, 8 August, she would not be permitted to work after that date and Respondent "would consider the matter unsettled " (G C. Exh. 4 ) When Shelton received a copy of -McCarthy's letter to Murphy concerning the 8 August deadline for signing the settlement , Shelton telephoned McCarthy. McCarthy told her that she had to 'sign papers that the Union had and Shelton told him she would not sign such papers. McCarthy told her to telephone the Union Shelton tele- phoned the Union and told Murphy that she wanted the money. Murphy told Shelton that the Union would pursue her grievance to arbitration and told her to report to work as scheduled. When she did so on 8 August, she was turned away and sent home. (Tr. 102.) Shelton has not worked for Respondent since that time nor has she been offered employment by Respondent The arbitration that the Union prosecuted resulted, in December 1986, in the arbitrator denying the grievance INTERNATIONAL TOTAL SERVICES' (i e., the termination from the Terminal Tower) The par= ties do not dispute that the arbitration dealt solely with the question of whether Respondent had just cause under the contract in removing Shelton from the Terminal Tower on 28 April. The arbitration did not deal with the question of whether Respondent's 8 August termination of Shelton was lawful In describing why Respondent terminated Shelton's employment on 8 August, Respondent took the position that the grievance it thought,had been settled was unset- tled (Tr 13) Respondent believed that part of the' settle- ment, because of Shelton's statements at the office of the Ohio Unemployment Compensation Bureau (that all she wanted was to return to work) amounted to a waiver of her backpay claim (Tr. 13-14) When Respondent dis- covered that Shelton did not "follow through" with the waiver, it felt that it was justified in not going through with its part of the settlement, i e., maintaining her- in employment since the grievance was "still pending." (Tr. 14.) In short, Respondent's position is "If the grievance is still pending, she can't be working " (Tr 14.) C. Discussion and Conclusions 1. General Counsel's prima facie case I conclude that the General Counsel has proven a prima facie case. Respondent terminated a number of its unit employees at-the Terminal Tower Building about the same time. These employees included Shelton and Nina Mayes Nina Mayes and Shelton both filed griev- ances. Nina Mayes' grievance was filed about 31 March 1986 (G.C. Exh. 3), whereas Shelton's grievance was filed the day after her termination on 28 April, therefore on 29 April 1986 (G C. Exh. 50). I have concluded, above, that Respondent's offer of further employment to Shelton, on 28 April 1986, constituted an opportunity to work at No 1 Playhouse Square with work being in a job for 5 hours per day. Shelton rejected this offer and then filed the above grievance and, a few weeks-later (23 May 1986),..a claim for unemployment compensation with the Ohio Bureau of Employment Services (G C. Exh 7). Just why Respondent at first offered Shelton a 5-hour-per-day job at No 1 Playhouse Square is not clear. There is a suggestion in the evidence, however, that Respondent was not entirely pleased with Shelton having pursued a prior (1985) grievance against Re- spondent for a 3-day suspension without pay by taking the matter, to small claims court and winning the lawsuit. In any event, neither Respondent nor Shelton took further action until Shelton appeared at the Unemploy- ment Compensation Bureau on 4 June, and the Ohio un- employment compensation examiner telephoned Re- spondent. As a result of the conversation with the Ohio unemployment compensation examiner, Respondent then offered, and Shelton accepted, the job at No. 1 Play- house Square for 7-1/2 hours per day. I conclude that Respondent made this further offer because it feared that Shelton, and possibly other employees, would file for un- employment compensation benefits and might succeed, in gaining them, to the detriment of Respondent's unem- ployment compensation insurance statistics During the conversation between McCarthy and the Ohio unem- 579 ployment examiner, I conclude that, as McCarthy testi- fied, he heard (after he made the offer and Shelton ac- cepted the 7-1/2-hour-per-day offer) Shelton say "all I wanted was to return to work." There is nothing in this or any other conversation, or other evidence of record, that demonstrates that Respondent, at the time of making that offer, or Shelton,? at the time of accepting that offer, agreed to withdraw the grievance she had previously filed alleging that Respondent had terminated her em- ployment at the Terminal Tower Building without dust cause The evidence further shows that subsequent to Shelton commencing work at,No. 1 Playhouse Square on 9 June 1986, she persisted with the Union (and the Union then with Respondent) in her claim for the wages she lost in the 2-month period between the 28 April 1986 termina- tion from the Terminal Tower job until the 9 June com- mencement of her .work at No 1 Playhouse Square. Evi- dence further shows that it was a matter of indifference to Shelton whether the form of the compensation for-this period would flow from Respondent withdrawing its ob- jection to Shelton's claim for Ohio, unemployment com- pensation benefits or whether -Respondent, pursuant to the grievance, or otherwise, made up for the lost wages It was Union Agent Murphy's suggestion, that Respond-, ent make up for the lost wages by withdrawing its objec- tion to Shelton receiving unemployment compensation benefits 7 I'therefore conclude that Respondent offered Shelton the Playhouse Square job to avoid paying Shelton, and perhaps other employees, unemployment compensation benefits because of those employees having been termi- nated from the Terminal Tower job about March and April 1986. Respondent, I further find, terminated Shel- ton's employment because she refused to relinquish her grievance rights to backpay or the wages she lost after being terminated from the Terminal Tower job. That is the meaning (G C Exh. 4) of Respondent insisting that the grievance is unresolved because Shelton was insisting on unemployment benefits I have concluded that Re- spondent did not terminate-Shelton on 8 August from the Playhouse Square job because of unprotected activity (pursuant to a single employee's desire for unemploy- ment compensation benefits) but, under the circum- stances of this case, terminated her because she was pur- suing her grievance which, she believed, would result in her being paid those money benefits because she had not been terminated for just cause from the Terminal Tower job ' The General Counsel did not try the case on the theory, nor did Re- spondent defend its case on the theory, that Respondent had discharged Shelton because of her refusal to withdraw her claim for unemployment compensation benefits Although the Board's present rule is that a single employee's claim for unemployment compensation benefits is not protect- ed concerted activity within the meaning of Sec 7 of the Act and there- fore a termination of employment based on a refusal to withdraw such a claim does not violate Sec 8(a)(1) of the Act, Collins Refractories, 272 NLRB 931, 932 (1984), that theory cannot avail Respondent For here, Shelton's claim for back wages, as Respondent recognizes , was made the subject of a grievance As a grievance under the collective agreement, Shelton's individual act takes on the protection of group action and is protected by the statute City Disposal Systems v NLRB, 465 U S 822 (1984) 580 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I therefore conclude, as the General, Counsel alleges, that as a prima facie matter, Respondent, about 8 August, terminated Shelton's employment because she refused to discontinue processing her grievance. Such a termination violates Section 8(a)(1) and (3) of the Act. U.S. Steel Corp., 250 NLRB 387 (1980). Such a conclu- sion is consistent with the evidence taken as a whole and with counsel for Respondent's statement (Tr. 14) that if the grievance was still pending, Shelton could not be permitted to work. 2 Respondent's defenses Respondent's position is that the only issue in the case is whether Shelton's was settled. If it was not settled then Respondent was merely attempting to restore the status, quo ante by terminating Shelton from the No. 1 Playhouse Square job, placing her in the position she was in on her being terminated from the Terminal Tower job. Shelton could then resolve the grievance that she had filed thereunder to see if the Terminal Tower termination had been for "just cause." (Tr 166.) Thus, Respondent's position is that it offered the No 1 Play- house Square job to Shelton on the assumption that the grievance had been settled and that, failing such settle- ment, it was merely restoring the status quo ante. Re- spondent states (R. Br 3-4) that it "thought that Shelton was dropping the grievance in exchange for the job offer." Respondent further states (Br. 4) that when "Shelton's union advised Respondent that Shelton wished to proceed with the arbitration of a discharge, Respondent indicated to the Uriion that there was a mis- understanding and that unless the discharge grievance was dropped as part of the settlement, there was no set- tlement."8 Respondent's position was that'the Respondent, in of- fering the job at No. 1_Playhouse Square on 4 June, was ,offering a quid pro quo for Shelton withdrawing her grievance and thus was buying settlement of the dis- charge grievance. (R. Br 5.) The problem with the above Respondent position is that McCarthy, in offering the new job, to Shelton on 4 June; while she was at the unemployment compensation office, failed to expressly and openly condition the new employment on withdrawal of the grievance. Nothing in the oral exchanges, whether between McCarthy and the unemployment compensation offer or in the later visit of Shelton to McCarthy (in McCarthy's office on 4 June) remotely included any suggestion that part of the Re- spondent's offer was that Shelton withdraw her griev- 18 Respondent also states (Br 4) that "Respondent insisted that Shelton not be permitted to continue working in the building to which she was assigned pending the outcome of the impartial arbitration " This state- ment is inaccurate Respondent terminated Shelton's employment not pending the outcome of the arbitration, but because she refused to sign the settlement agreement similar to the one signed by Nina Mayes This is made clear in Respondent's 29 July 1986 letter to the Union (G C Exh 4) "It is our position that if Ms Shelton refuses to sign the agreement as we discussed by 8 August, 1986, she will not be permitted to work for us until a settlement is agreed upon " Thus Respondent terminated Shelton not because it wanted to await the outcome of the "Impartial arbitra- tion," as it alleges in its brief, rather, it terminated her employment be- cause she refused to withdraw her grievance that would include the pay- ment to her of lost wages ance and withdraw her claim for backpay. Respondent's problem in its defense is a matter of a failure of proof. If there was any quid pro quo, it was that Respondent was offering Shelton the job in fear that she and, other employees would pursue their unemployment compensa- tion claims. But in terms of the actual offer made to Shelton by McCarthy on 4 June, nothing was said with regard to Shelton relinquishing her grievance claim for lost earnings. An agreement relating to withdrawal of a grievance is the waiving of a statutory right The waiver of a statutory right, including the filing and processing of a grievance, must be clear and unequivocal, A-I Fire Pro- tection , 273 NLRB 964, 967 (1984) Although the Union may waive, under certain circumstances, employee rights, Metropolitan Edison Co. v. NLRB 460 U.S 698 (1983), there is no suggestion on this record that Murphy, or any other union official, or, indeed Shelton, ever took the position that Shelton would withdraw or waive her rights to prosecute the grievance to arbitration for money representing her lost wages On the contrary, the evidence is all the other way concerning what Murphy told McCarthy and what Shelton told both Murphy and McCarthy concerning her continuous and stubborn claim for lost wages. In any case, national labor policy disfavors waivers of statutory rights and thus the waiver must be clear. C & P Telephone Co. v. NLRB, 687 F.2d 636 (2d Cir. 1982). If that is the national policy regarding disfavoring waivers of statutory rights by 'unions, then a fortiori is there such a policy in waivers by individuals, speaking to an employer outside the union's presence. As I understand Respondent 's claim for waiver of "rights and the apparent existence of a settlement agree- ment, it relies principally on Shelton's statement, made on 4 June in the Ohio Unemployment Compensation Office, and overheard by McCarthy, in response to McCarthy's offer of a 7-1/2-hour-per-day job at Play- house Square, that "all [Shelton] wanted was to go back to,work." Such a Shelton remark, certainly, cannot rea- sonably form the basis of a waiver of statutory rights Texaco, Inc, 285 NLRB 241 (1987); Conoco; Inc., 265 NLRB 819 (1982). Although Respondent argues that it may draw the inference that Shelton was thereby neces- sarily waiving any claim to her grievance for lost wages, Shelton's remark could equally mean that Shelton was pleased to return to a job that offered her 7-1/2 hours of work per day rather than the 5-hour-per-day offer that she had rejected. Consistent with the General Counsel's position that there was no implicit waiver of rights of ,money in Shelton's acceptance of the Playhouse Square job, is Shelton's undenied testimony that, after leaving the Unemployment Compensation office on 4 June, she told McCarthy, inter alia , that: "Well, Gary, you could have did this the first time instead of giving me 2 months off . . . All I wanted to do was work." (Tr 88.) This, on its face, not only supports Shelton's testimony (and necessarily undermines McCarthy's contrary testimony) that she had been offered, at first, a 5-hour job, but it bears no relation to a suggestion that Shelton was giving up any claim to lost wages. In view, therefore, of the presence of ambiguity, there can be no waiver. Again, if INTERNATIONAL TOTAL SERVICES the waiver of employee statutory rights imposed on em- ployers and labor organizations must meet the test of "clear and unambiguous," then, it appears, to me, a for- tiori, that Respondent's argument that Shelton waived her statutory right to process the grievance must fall be- cause she is a mere individual speaking to the employer outside the Union's presence. See also Park-Ohio Indus- tries v. NLRB, 702 F.2d 624, 626-627 (6th Cir 1983) In passing, it should be noted, that I draw no inference from the ambiguous fact that Respondent required em- ployee Nina Mayes to sign a waiver before giving her employment because that post facto act does not reason- ably bear on the question of whether Shelton may be deemed to have orally waived her rights in her own situ- ation. Similarly, I draw no inference from the fact that, subsequent to Respondent's unlawful termination of Shel- ton from the Playhouse Square job on 8 August, it pre- vailed, in December 1986, in the arbitration proceeding concerning the Terminal Tower termination of April 28. The arbitration proceeding held only that Respondent had just cause in terminating Shelton from her Terminal Tower position. It said nothing with regard to Respond- ent subsequently terminating her employment at Play- house Square because Shelton refused to give up her grievance. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, Service, Hospital, Nursing Home and Public Employees Union, Local No 47, a/w Service Employees International Union , AFL-CIO, at all materi- al times has been and is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent, by terminating the employment of its employee, Joyce Shelton, on 8 August 1986, because she insisted on prosecuting a lawful grievance pursuant to a collective-bargaining agreement covering her employ- ment, violated Section 8(a)(1) and (3) of the Act, thereby unlawfully discouraging membership in the Union and unlawfully restraining and coercing employees for en- gaging in activities protected by Section 7 of the Act.9 8 Counsel for the General Counsel, for the first time in his brief, re- quests that I find that Respondent 's 29 July 1986 letter to the Union (G C Exh 4) (Respondent told Shelton that failure to withdraw her grievance would result in discharge) amounted to an unlawful threat within the meaning of, and in violation of, Sec 8 (a)(1) of the Act (G C Br 13-14) The General Counsel urges that I make a finding of a viola- tion of Sec 8(a)(1), notwithstanding it was not separately pleaded in the complaint, because it was fully litigated at the hearing and the facts con- cerning this allegation are completely set forth in the record and undis- puted At no time in the hearing was there a "clear statement " from the General Counsel that it was pursuing a separate violation of Sec 8(a)(1) of the Act regarding the alleged threat in Respondent 's letter Nor was there a suggestion that the General Counsel believed that any of Re- spondent 's conduct violated Sec 8(a)(1) of the Act as an independent matter It cannot reasonably be said , therefore, that Respondent was pre- sented with an opportunity to litigate the circumstances surrounding or the legal affect of, the alleged threat Thus, the matter was not "fully liti- gated " At this late date, such a finding would deprive the Respondent of the right to reasonable notice of the allegations of wrongdoing and would constitute a denial of due process See Maintenance Service Corp, 275 NLRB 1422, 1425-1426 (1985) 1 decline to make the finding 581 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act. Respondent on 8 August 1986, having unlawfully ter- minated the employment of Joyce Shelton, I find it nec- essary to order it to offer her immediate and full rein- statement to her former job at No. 1 Playhouse Square, or if such job no longer exists, to a substantially equiva- lent position, without prejudice to her seniority or other rights and privileges, and to make her whole for loss of earnings that she may have suffered by reason of Re- spondent's unlawful conduct against her by paying to her a sum of money equal to that which she normally would have earned from the date of her unlawful discharge on 8 August 1986 to the date of a bona fide offer of rein- statement, less interim earnings during such period. Backpay shall be computed on a quarterly basis as pre- scribed in F. W Woolworth Co., 90 NLRB 289 (1950), with interest thereon to be computed in accordance with New Horizons for the Retarded, 283 NLRB 1173 (l987).10 Moreover, consistent with the Board's decision in Ster- ling Sugars, 261 NLRB 472 (1982), I shall recommend that Respondent be required to remove from its records any references to the unlawful 8 August 1986 termina- tion and provide her with written notice of such action, and to inform her that Respondent's unlawful conduct will not be used as a basis for future disciplinary action against her. On the basis of the above findings of fact and conclu- sions of law and the entire record, I issue the following recomended i i ORDER The Respondent, International Total Services, Inc., Cleveland, Ohio, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Terminating the employment of, or otherwise disci- plining, employees for processing lawful grievances pur- suant to the terms of a lawful collective-bargaining agreement or for otherwise engaging in concerted activi- ty protected under the Act. 10 In accordance with our decision in 'New Horizons for the Retarded, 283 NLRB 1173 ( 1987), interest on and after January 1 , 1987, shall be computed at the "short -term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts accrued prior to January I, 1987 (the effective date of the 1986 amendment to 26 U S C § 6621), shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 11 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions , and recommended Order shall , as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (b) In any like or related manner interfering with, re- straining , or coercing employees in the exercise of the rights guaranteed by Section 7 of the Act. 2 Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer to Joyce Shelton immediate and full reinstate- ment to her former job at No. 1 Playhouse Square, dis- charging, if necessary, any replacement, or, if such job no longer exists, to substantially equivalent employment, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings in the manner set forth in the remedy section of this de- cision. (b) Remove from its employment records of Joyce Shelton any reference to her termination of employment on 8 August 1986, and notify her, in writing, that this has been done, and the evidence of her unlawful termina- tion of employment will not be used as a basis for any future disciplinary action against her. (c) Preserve and, on request, make available to the Board through 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 Order. (d) Post at its Cleveland, Ohio place of business copies of the attached notice marked "Appendix."12 Copies of the notice on forms provided by the Regional Director for Region 8, after being signed by Respondent's author- ized representatives, shall be posted by Respondent on receipt and maintained for 60 consecutive days in con- spicuous places including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that the notice is not al- tered, defaced or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply 12 If 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 Nation- al 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 "