Mr. Clean Of Nevada, Inc.

MR. CLEAN OF NEVADA 895 ■.■ - 1 Mr. Clean of Nevada, Inc. and General Sales Driv- ers, Delivery Drivers and Helpers Union Local No. 14, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO. Case 31-CA-13481 May 11, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On September 4, 1985, Administrative Law Judge Richard J. Boyce issued the attached deci- sion. Mr. Clean of Nevada, Inc. (Clean I) filed ex- ceptions and a supporting brief. In addition, Dr. Carl Manthei (Clean II) on December 5, 1985, filed a motion for leave to intervene as amicus curiae and for leave to file exceptions and a supporting brief, and the General Counsel filed a brief in op- position to the motion. The motion is denied.' The Board has considered the decision and the record in light of the Respondent's exceptions and brief and has decided to affirm the judge's rulings,2 Dr Manthei contends that he was not named as a party to this pro- ceeding and had no notice thereof He therefore takes the Position that his interests cannot be fairly represented unless he is- permitted as an amicus curiae to contest the judge's findings regarding his relationship with Clean 1, The record shows (I) that Robert Alan Jones, who desig- nated himself as "General Counsel" for Clean I and II, on August 8, 1983, filed for each a separate response to the Region's commerce ques- tionnaire; (2) that the complaint issued on November 30, 1983, alleged that Clean 1 and II onstitute a single employer; (3) that the answer thereto was signed by Jones who participated in the hearing; (4) that Dr Manthei testified at the hearing regarding the relationship of Clean I and II; and (5) that both paid for the services connected with the hearing As it is clear from the foregoing that Clean II had advance notice of the hearing and the issues to be litigated and participated at the hearing, we find that it is a party to this proceeding and as such is not entitled to intervene as an amicus curiae. In any event, its request to file exceptions and a supporting brief is untimely., ,Based on admissions in its answer, the Respondent meets the Board's minretail standard, as well as the retail standard relied on by the judge. Moreover, there were no specific exceptions filed by the Respondent with respect to jurisdiction 2 The Respondent contends that the judge erred in denying its motion to strike the entire testimony of Barry Moskowitz, the accountant for Clean I and II, because he pleaded the fifth amendment in refusing to answer its counsel's question whether he was ever asked to make any false bookkeeping entries As the record contains ample credited testimo- ny of other witnesses concerning the relationship between Clean I and II, we find it unnecessary to rely on Moskowitz' testimony and therefore do not pass on the propriety of the judge's ruling. 3 The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing the findings. We also find without ment the Respondent's allegations of the bias and prejudice on the part of the judge On our full consideration of the record and the decision, we perceive no evidence that the judge pre- judged the case, made prejudicial rulings, or demonstrated bias against any party in his analysis or discussion of the evidence. fmdings,3 and conclusions only to the extent con- sistent with this Decision and Order.4 For the reasons detailed by the judge, we adopt, inter alia, his finding that Clean I, which is en- gaged in the laundry and drycleaning business in Las Vegas, and Clean II, a proprietorship belong- ing to Dr. Manthei, which is also engaged in the same type of business in Las Vegas, constitute a single employer for the purposes of the Act. The judge applied the doctrine of accretion to include in the appropriate unit of counter-service employees and shuttle drivers all individuals work- ing in those categories not only at Clean I but also at the Clean II facilities, which were acquired after Vincent Todisco, who had a preeminent role in the management of both Clean I and II, signed a 3-year contract with the Union. The facts show that Clean I commenced oper- ation in September 1980 with its Desert Inn facili- ty. About November 6, 1980, Clean I executed a collective-bargaining agreement with the Union to be applied to a unit of counter-service employees and shuttle drivers. At the end of 1980 Clean II started its operation at A-1 Laundromat. In the summer of 1981 a drop-off counter was established at the A-1 Laundromat and Clean I performed the drycleaning. Vincent Todisco, president of Clean I, also "advised" Clean II on its operations. Appar- ently, Todisco's involvement with A-1 ceased for a period of time and was renewed when Clean II opened its own drycleaning plant (Decatur Street) and another drop-off store on Boulder Street in late summer 1982. At this point Todisco's relationship with Clean II—as the judge described it—"thick- ened." Todisco took- over all aspects of manage- ment and control of labor relations for both Clean I and Clean II. Both enterprises were held out to the public as a single entity; there was joint pur- chasing and advertising; considerable and recurrent interchange of employees and work occurred; and there was centralized training of all employees. Al- though these factors are sufficient to permit a find- 4 The judge found, and we agree, that because of the deception prac- ticed by the Respondent's president, Torino°, and because the Respond- ent continued to make trust fund contributions on behalf of at least some employees, the Union was unaware of the Respondent's "pervasive non- compliance" with the 1978-1981 and 1981-1984 collective-bargaining agreements until March 18, 1983, when statements and actions by the Re- spondent's management made it clear that the Respondent was refusing to apply the contract to the bargaining unit. We further agree with the judge's finding that it is "appropriate that the monetary features of the remedy reach back to the contract's incep- tion" The judge, however, merely limited the recommended Order to remedying the Respondent's failure to honor the 1981-1984 contract. As it is undisputed that Todisco signed the 1978-1981 contract effective No- vember 6, 1980, we will correct the judge's recommended Order accord- ingly Burgess Construction, 227 NLRB 765, 766 (1977), enfd. 596 F 2d 378 (9th Cir. 1978), cert. denied 444 U.S 940 (1979). 288 NLRB No. 101 896 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing that the two entities are a single employer, they are not adequate for finding an accretion. Prior to the opening of the Decatur Street facili- ty by Clean II, the relationship between Clean I and Clean II was in a state of flux and did not show the degree of integration achieved when To- disco assumed operational control of both enter- prises. Once Todisco became the general manager of Clean II while retaining the presidency of Clean I, meshing of the two operations commenced. At the time Clean I had seven employees (six at Desert Inn and one at Spring Mountain Road) and Clean II had eight (two at A-1, five at Decatur Street, and one at Boulder Street) performing work covered by the collective-bargaining agreement. Subsequently, Clean II opened additional facilities at West Sahara Avenue and Rainbow Boulevard and purchased the Spring Mountain Road facility previously owned by Clean I. 5 Thus, Clean II em- ployed a total of 11 employees at all of its locations and Clean I's total was reduced to 6 employees at its Decatur Street location. Thus, at all times after late summer 1982, Clean II's unrepresented employees outnumbered Clean I's represented employees. Before late summer 1982, the factors showing a community of interest among employees of Clean I and Clean II did not exist. The Board held in Renaissance Center Partner- ship, 239 NLRB 1247, 1248 (1979): [T]he Board is cautious in making such a finding [accretion], particularly when the ac- creted group numerically overshadows the ex- isting certified unit, because it would deprive the larger group of employees of their statuto- ry right to select their own bargaining repre- sentative. This right is a fundamental precept of the Act. . . . We find that although some factors support an ac- cretion, in the final analysis, the inclusion of the numerically larger group of Clean II employees into the bargaining unit would deprive a majority of the unit an opportunity to select their own bar- gaining agent. Accordingly, we reverse the judge's finding that the employees of Clean II working in classifications included in Clean I's collective-bar- gaining agreement are accreted to the unit and shall amend the Order and notice to conform to this finding. AMENDED CONCLUSIONS OF LAW In paragraph 2 of the judge's Conclusions of Law add "of Clean I" after "drivers." 5 See fn. 4 of the Judge's decision ORDER The National. Labor Relations Board orders that the Respondent, Mr. Clean of Nevada, Inc. (Clean I) and Clean II, a proprietorship owned by Dr. Carl Manthei, a single employer, Las Vegas, Nevada, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging employees for joining or other- wise supporting the General Sales Drivers, Deliv- ery Drivers and Helpers Union Local No. 14, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. (b) Refusing to bargain with the Union as the ex- clusive collective-bargaining representative of its Clean I employees in the appropriate unit consist- ing of counter-service employees and shuttle driv- ers in its laundry and dry cleaning plants and drop- off facilities. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer Patricia Denekamp immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed, and make her whole for any loss of earnings and other bene- fits suffered as a result of the discrimination against her, in the manner set forth in the remedy section of the decision.6 (b) Remove from its files any reference to the unlawful discharge and notify her in writing that this has been done and that the discharge will not be used against her in any way. (c) On request, bargain with the Union as the representative of its Clean I counter-service em- ployees and shuttle drivers in the appropriate unit concerning terms and conditions of employment and, if an agreement is reached, embody the under- standing in a signed agreement. (d) Honor and comply with all the terms and conditions of the collective-bargaining agreements 6 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) MR. CLEAN OF NEVADA 897 entered into between Clean I and the Union on November 6, 1980, and May 13, 1981.7 (e) Make whole all Clean I employees in the ap- propriate unit, past and present, for any losses or expenses they incurred, with interest, because of the Respondent's unlawful failure to honor the No- vember 6, 1980 and May 13, 1981 contracts, and its subsequent failure to maintain contractually estab- lished wages and benefits.8 (f) Remit to the Union's health and welfare and pension trusts, on behalf of all employees in the ap- propriate unit, past and present, moneys equal to those contributions not made in accordance with the November 6, 1980 and May 13, 1981 contracts. (g) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, 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. (h) Post at its laundry and dry cleaning plants and drop-off facilities in and around Las Vegas, Nevada, copies of the attached notice marked "Ap- pendix." Copies of the notice, on forms provided by the Regional Director for Region 31, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consec- utive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, defaced, or covered by any other material. (i) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. " Nothing herein shall be construed as requiring the Respondent to reduce current wage or benefit levels, or to impose any terms and condi- tions more onerous than those presently enjoyed. Steward Granite Enter- prises, 255 NLRB 569, 576 (1981); and Alondra Nursing Home, 242 NLRB 595 fn. 1(1979) 8 See fn 6 above. 9 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." 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 refuse to bargain with General Sales Drivers, Delivery Drivers and Helpers Union Local No. 14, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America as the exclusive collective-bargaining rep- resentative of those of our Clean I employees in the appropriate unit consisting of counter-service employees and shuttle drivers in our laundry and drycleaning plants and drop-off facilities. WE WILL NOT discharge employees for joining or otherwise supporting the Union. 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 recognize and, on request, bargain col- lectively with the Union, as the representative of our Clean I counter-service employees and shuttle drivers in the appropriate unit, with respect to wages, hours, and other terms and conditions of employment and, if an agreement is reached, WE WILL sign the written embodiment thereof. WE WILL honor and comply with all the terms and conditions of the collective-bargaining agree- ment for our Clean I employees entered into be- tween the Union, and Clean I on November 6, 1980, and May 13, 1981. WE WILL make whole all Clean I employees in the appropriate unit, past and present, for any losses or expenses they incurred, with interest, be- cause of our unlawful failure to honor the con- tracts, and our subsequent failure to maintain con- tractually established wages and benefits. WE WILL remit to the Union's health and wel- fare and pension trusts, on behalf of all Clean I em- ployees in the appropriate unit, past and present, moneys equal to those contributions not made in accordance with the above contracts. WE WILL offer to Patricia Denekamp immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed and WE WILL make her whole for any loss of earnings and other benefits resulting from her discharge, less any net interim earnings, plus interest. 898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ,:. WE WILL notify her that we have removed from our files any reference to her discharge and that the discharge will not be used against her in any way. MR. CLEAN OF NEVADA, INC., AND CLEAN II, A SINGLE EMPLOYER David Tajgman, Esq., for the General Counsel. Robert Alan Jones and Francis J. Morton, Esqs., of Las Vegas, Nevada, for the Respondent. Robert J. Dambro, of Las Vegas, Nevada, for the Charg- ing Party. DECISION STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge. This matter was tried in Las Vegas, Nevada, on 15 dates in 1984, starting on 24 January and ending on 6 Septem- ber. 1 The charge was filed on 7 September 1983, and amended on 27 October, by General Sales Drivers, De- livery Drivers and Helpers Union Local No. 14, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (the Union). The complaint issued on 30 November, was amended during the trial, and alleges that Mr. Clean of Nevada, Inc. (Clean I) committed certain violations of the National Labor Relations Act (the Act) in and since March 1983. I. ISSUES The issues are whether: 1. Clean I and another firm, Clean II, were sufficiently related at relevant times to warrant the combining of their revenues for jurisdictional purposes and the attribu- tion to both of the conduct of either. 2. Clean I withdrew recognition from the Union as the bargaining representative of certain employees in March 1983, coincidentally repudiating a collective-bargaining contract with the Union, thereby violating Section 8(a)(5) and (1) of the Act. 3. Clean I discharged an employee in one of the Clean II facilities, Patricia Denekamp, in March 1983, because of her statutorily protected union and concerted activi- ties, thereby violating Section 8(a)(3) and (1) of the Act. II. THE ISSUES OF JURISDICTION AND JOINT LIABILITY A. Evidence Clean I is engaged in the laundry and drycleaning business in Las Vegas, serving both commercial and non- commercial customers. It is undisputed that its annual gross revenues exceed $430,000, and that it annually pur- chases items worth about $35,000 from suppliers in Nevada who obtained same directly from outside the State. Clean II is engaged in the same business in the same city, and admittedly has annual revenues in excess 1 This manner of setting forth dates conforms with current Board prac- tice of $100,000. The complaint alleges that Clean I and II "constitute a single integrated business enterprise and a single employer within the meaning of the Act." Clean I, newly incorporated, became operational in September 1980 with the opening of a laundry and dry- cleaning plant on Desert Inn Road in Las Vegas. The plant goes by the name "Mr. Clean." Vincent Todisco, corporate president, manages the business, and he and his wife are the sole stockholders.2 Clean II, according to the pleadings, is a proprietor- ship belonging to Carl Manthei. Its holdings include the following, all in Las Vegas: a combination laundromat and laundry/drycleaning dropoff store in Tropicana Avenue known as the A-1_ Laundromat, 3 a drycleaning plant on Decatur Boulevard, and four laundry/- drycleaning dropoff stores—one each on Boulder High- way, West Sahara Avenue, Spring Mountain Road, and Rainbow Boulevard. 4 All but the A-1 Laundromat oper- ate under the name of Mr. Clean; and all, together with the Clean I plant on Desert Inn Road, are held out to the public—in advertising, on delivery trucks and cus- tomer receipts, and otherwise—as a single enterprise.5 Todisco has devoted virtually his entire lifetime— about 50 of his 57 years—to the laundry and drycleaning business. Manthei is a medical doctor in Henderson, near Las Vegas. He testified that his practice, as an anesthesi- ologist, is "more than full-time," and that tax consider- ations are the "main reason" he "got into" laundry and drycleaning. A business relationship arose between Todisco and Manthei in the summer of 1981. Manthei then had only the A-1 Laundromat. Wishing to convert it to a laundry/drycleaning dropoff store as well as a laundro- mat, he approached Todisco about doing the drycleaning at the plant on Desert Inn Road. Todisco recounted that he agreed to that, and to "help [Manthei] with A-1, try to build it up for him," in return for 75 percent of A-l's drycleaning revenues. 6 The arrangement was entirely oral, according to Todisco. Todisco testified that he thereafter gave "advice" to the A-1 employees on occasion, and sometimes "suggest- ed things" to Manthei concerning its operations. He also testifed that his involvement with A-1 ended with Manthei's appointment of "another friend" as manager, 2 An original stockholder, in addition to the Todiscos, was one Orville Rapue. His interest was purchased by Tochsco in 1981. 3 The function of a dropoff (sometimes called pickup) store, as related by Todisco, is "make us the clothes, mark them, and send them on to the main plant [for laundering or cleaning]. And when they come back, they're already cleaned, pressed, and on a hanger" 4 The store on Mountain Road was opened by Clean I in late 1981. Todisco testified that he later "franchised" it to one of his drivers, Eugene Cappadona, from whom it was acquired by Manthei. Apart from Manthei's supposed payment to Cappadona of $1000 a month in connec- tion with his acquisition of the store, particulars of the transaction are not in evidence. 5 The A-1 Laundromat, despite its separate name, also is known to the public as a Mr. Clean affiliate. There is a Mr Clean sign in front, and its address is among those listed as Mr Clean locations in advertising, on customers receipts, etc. 6 Todisco testified that Manthei "was losing his shirt" at the inception of the arrangement, and that "all [he] wanted to do was build [A-1] up" to enhance the return on his precentage share. MR. CLEAN OF NEVADA 899 and that he no longer knows "anything about A-1," only to let slip that he is looking forward to the projected sale of A-1 "because it's less work for [him]." The relationship between Todisco and Manthei thick- ened in the late summer or early fall of 1982, incidental to Manthei's acquisition, in separate but nearly simultane- ous transactions, of the plant on Decatur Boulevard and the dropoff store on Boulder Highway. Manthei styled himself in the documents attending those transactions as "d/b/a Mr. Clean"; and, except for the A-1 Laundromat, those facilities belonging to Manthei—now expanded to include the stores on Spring Mountain Road, West Sahara Avenue, and Rainbow Boulevard—have operated under that style ever since.7 Todisco agreed to Manthei's operating as Mr. Clean, his professed rationale being that "it would help [Manthei] a great deal" because the name was "pretty well known"—"I advertised on television, and I was in business long before he was, and there were trucks all over town." Consent was conditioned, however, on To- disco's "run[ning] the place" to ensure that the name was "protected." Manthei gave Todisco nothing of value for use of the name, it is said, but does pay Todisco "to give him advice and to run his drycleaners." The record is unsettled concerning Manthei's mone- tary obligal ion to Todisco, and the manner of its calcula- tion. Manthei testified: We agreed on a figure of around $21,000 a year as a—and it depended a lot, too, on how fast I grew, how fast the thing was doing, the amount of work, and things involved. Manthei added that Todisco receives a straight salary, rather than a percentage of the profits, and is deemed an employee, not a partner, as concerns Clean II. Todisco testified, on the other hand, that he is paid pursuant to "a formula. . . based on profits of the oper- ations." He elaborated: I told him I wanted $75,000 a year when he hit a certain peak, when his bills were all paid, his notes were all paid, and he agreed to it. But because of the economy, it's been fluctuating up and down, so I'll just take—sometimes I'll take $600 [a week], sometimes $500, sometimes $700, and then I'll go for three of four months without taking a penny.9 Todisco went on that his pay "formula" is not in writ- ing; that he and Manthei "trust each other, so there's no problem that at all"; and that, regarding the negative dis- 7 The store on West Sahara originally was at No. 4251, being moved to No. 4017 in August 1983. For perhaps a month in early 1983, Clean H also had a dropoff store on Charleston Boulevard. Todisco further testified. "I might take $500 a week for two months. And then, as the bills accumulate, I won't take any money until the bills are paid I have enough Income from Clean II" In an affidavit given during the investigation of this matter, Todisco stated that he received $3C00 from Manthei in 1983 He testified that, actually, "it was more than that." Clean II reported to the State of Nevada Employment Security Department that it paid Todisco $21,600 in the last three quartets of 1983. He was not reported as receiving anything in the first quarter, per- haps because he at that time was held out to the Employment Security Department as a partner and not an employee. crepancy between pay received and pay agreed on, he "keeps track of it [Manthei] will pay [him] someday." Todisco testified that he has "full managerial control over all [Clean II] outlets," and that he exercises that control "on a recurring basis." That entails his visiting the plant on Decatur Boulevard "at least once a day," he continued, telephoning each of the dropoff stores "at least once a day for one reason or another," and visiting "the stores once in a while to make sure things [are] run- ning smoothly,"9 He appended: "I don't have to call [Manthei] everytime I got an itch. . . . He's not paying me $80,000 a year for nothing."19 Indicative of the extent of Todisco's managerial con- trol with respect to Clean II: 1. He hires, fires, and transfers employees without con- sulting with Manthei. He estimated that he has hired "maybe 20, more or less," to work for Clean II. Among those he fired independently of Manthei was Barry Moskowitz, an accountant doing work for both Clean I and Clean II.11 2. He trains all new-hires, after which it is his decision whether they work at the Desert Inn plant or in one of the Clean II facilities. Training, which takes place at the Desert Inn plant, can last from "a week to two months," according to Todicso—"I want to make sure whoever's hired for a store or Decatur knows what they're doing before I send them there." "In some cases," Todisco tes- tified, he "send[s] them to a store, [and] they have to come back for another week or two of training." 3. He has substantial authority concerning the wages and other terms and conditions of those working in Clean II facilities, He first testified that he "set[s] their terms of employment," later qualifying that he "mostly" does, but sometimes has "to meet with" Manthei. He fur- ther testified that he and Manthei "discussed the kinds of wages that would be in effect at Clean II," to which Manthei added that Todisco determines each employee's pay in accordance with "General guidelines" established by the two of them, the main criteria being the employ- ee's experience, ability, and time with the Company. While both Todisco and Manthei testified that Manthei has the "ultimate authority" to set wages, it is plain that, if this be so, the authority is of scant practical signifi- cance. Thus, asked if the Clean II employees are paid uniformly, Manthei revealed at once his unfamiliarity with and Todisco's preeminence in the process, answer- 9 Todisco later testified that he "passed out of" the day-to-day man- agement of Clean II "a couple of months ago"—ie., about November 1983. This is viewed with utmost skepticism, in part because of Todisco's continued high income expectations from Clean II. Regardless, his mana- gerial control and style inarguably were as described at all times relevant to the alleged misconduct. 10 Todisco testified variously that be conferred with Menthe' "more frequently" in March 1983 than later, that the two talk "on the average of twice a week," that he does not see Menthe' "very often," that "you can't get hold of [Manthei] all the time when you want to," that he does not "see Carl that often," that he sees Manthei "at least twice a week at lunch or in the evening for . an hour or two," and that "you can't get ahold of [Manthei] every day." Manthei testified "Sometimes . we meet and we consult frequently Other times, when thmgs are going smoothly, less often" He continued: "When we were first getting started probably five times a week. Now, maybe two times a week It varies." " Moskowitz testified that he "resigned." Whatever the label, it is evi- dent that he was forced to leave 900 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing, "I don't think he's paying them—I would say they're not paid uniformly." Further indicative of Manthei's detachment from wage matters, he testified, when asked if the employees are paid pursuant to a col- lective-bargaining agreement, "I don't know for certain, no." As concerns Todisco's part in prescribing hours of work for Clean II employees, he testified: I insist on the girls working at least six days [a week] to make enough money, because what [Manthei] pays them isn't enough for five days.. . . [lit gives a girl a chance to make a halfway decent wage. Todisco also testified that, "if things might be slow" at the Decatur Boulevard plant, "and somebody doesn't have their 40 hours in" for the week, he will "find some- thing for them to do over at Clean I"—"if they wanted to get 40 hours in, I always find something for them to do." 4. He considers himself "responsible for seeing that the payroll is paid and the bills are paid" regarding Clean II; and, to that end, issues most of the checks drawn on the bank account in Clean II's name. Manthei, in contrast, never signs paychecks and does not routinely sign others, explaining, "I don't have the time to be there to do that." 5. He orders supplies for Clean II—"little things," Manthei calls them—without clearing with Manthei. To- disco testified, with reference to his permitting Manthei to operate as Mr. Clean: I told Carl one of the things I'm going to be strict about is I don't want salesmen calling in any of his places and sell him something he doesn't need. . . . I said I would do the buying . . . and I would be buying in bulk. As for the purchase of the "big things"—e.g., equip- ment—Manthei testified that, while he has the last word, he "rel[ies] heavily on what [Todisco] says and his advice." 6. He sometimes signs legal documents such as leases and applications for business licenses on behalf of Clean II. Indeed, although the pleadings are in agreement that Clean II is a proprietorship belonging to Manthei, repre- sentations made on behalf of Clean II in sundry docu- ments suggest a different arrangement when the alleged misconduct occurred. In an application for a city busi- ness license for the store on West Sahara Avenue, signed by Todisco and dated 15 November 1982, for instance, the applicant is identified as a corporation by the name of "Vincent Todisco d/b/a Mr. Clean," with Manthei being named only as a reference; in a report to the State of Nevada Employment Security Department, signed by Todisco and dated 3 February 1983, he and Manthei are identified as partners; 12 in another report to the Employ- 12 When first faced with this report, Todisco testified, in order, that it bears his signature, that he "couldn't swear" it is his signature, that he "doubt[edi very much" that it is, and that he did not recognize it as his writing The report and other similar reports eventually were received on ment Security Department, signed by Manthei and dated 28 April 1983, it is indicated that he and Todisco were owners until 1 April, and that Manthei then became sole owner with the venture obtaining a new employer number; 13 in a lease for the store on Rainbow Boule- vard, signed by, Manthei and dated 10 June 1983, he identified himself as the executive vice president of the lessee; and, in a lease for the store on Spring Mountain Road, signed by Todisco and dated 1 July 1983, he iden- tified himself as the "owner/general manager" of the lessee. 7. He advises Manthei regarding prospective locations for new stores, although Manthei reputedly has final say. Todisco testified that he could "remember arguing about different stores [Manthei] wanted or [he] wanted"; and Manthei acknowledged, in this context as well as others, that he "rellies] a lot on [Todisco's] advice and his expe- rience." 8. He also meets with prospective buyers of Clean II properties. Manthei "controls the prices," according to Todisco, but he "meet[s] with the people to talk to them." Todisco explained: I told [Manthei] that before he signs anything with anybody I want to meet with them, because I am not going to let just anybody use my name, Mr. Clean. 9. He advises Manthei with respect to the pricing of services at the Clean II locations. Pricing is not uniform among the stores and depends on "a lot of things," ac- cording to Todisco. 10. He makes all advertising arrangements, be it on tel- evision or in the newspaper, independently of Manthei.14 As might be surmised from Todisco's preeminent role in the management of Clean II as well as Clean I, and from their being held out to the public as a single enter- prise, they are intertwined in other ways. Thus: the strength of an authenticating certificate from the administrative serv- ices officer of the employment security department. Defense counsel ex- pressly declined to ground an objection on lack of authenticity is Mardon Talbot, a business consultant, testified that, "as far as [he could] recall," his firm prepared tne early reports filed by Clean II with the employment security department, although he could not "guarantee" it. ("Usually we do sign them when we send them In.. I have no way of proving it, because we didn't sign [these].") Talbot continued, ignoring this uncertainty, that he initially "filed things as a partnership" on the "request" of John Trainer, Todisco's brother-in-law and Clean H's book- keeper at the time, only to conclude later that Clean II was not a partner- ship He recounted that his firm thereupon "spent hours and hours" making corrected fillings, not only with the employment security depart- ment, but with the Internal Revenue Service and the Nevada Industrial Commission, to reflect Clean H's proprietorship status. Asked his basis for concluding that Clean II was not a partnership, Talbo testified, "I couldn't find anybody that knew anything about a partnership." He added that he inquired of Clean It's then-attorney, Patricia Brown, and "she didn't know anything about one" Talbot admitted that, while it "would have been [his] normal way of doing things," he could not "guar- antee" that he asked Trainer if there were partnership papers. i4 admittedly handles all aspects of newspaper advertising— "on something small like that I don't need Carl's consent, because Carl doesn't care as long as I increase the business" Regarding television ad- vertising, however, Todisco testified that both he and Manthei "negotiat- ed" with William DiMeoIo of Ad-Venture Advertising, with Manthei doing "most of the talking" DiMeolo testified, on the other hand, that he had never met'Manthei„ effectively impeaching Todisco MR. CLEAN OF NEVADA 901 1. All work generated by Clean II, other then dry- cleaning and pressing, normally is done at Clean I's Desert Inn plant. This includes shirt laundry, fluff-and- fold, clothing repair, and the cleaning suedes, leathers, furs, and bedspreads. Drycleaning brought in by the dropoff stores and the A-1 Laundromat generally is done at the plant on Decatur Boulevard," but, when that fa- cility is overloaded or has a breakdown, work that it cannot handle is shifted to the Desert Inn plant. And, when the Desert Inn plant is overloaded or inoperative, its hotel laundry sometimes is shifted to A-1 and its dry- cleaning to the Decatur Boulevard plant." 2. There is substantial employee interchange between Clean I and Clean IL Reports filed with the Employ- ment Security Department disclose that 3 people worked for both in the last quarter of 1982, and that the number working for both in 1983 was 10 in the first quarter, 7 in the second, 12 in the third, and 6 in the fourth. During the same five quarters, the Clean I complement ranged from 20 to 41, and that at Clean II from 11 to 29.17 Further concerning interchange, Todisco testified, as noted earlier, that everyone is trained at the Desert Inn plant before possible assignment elsewhere, and some are recalled for additional training. And as previously men- tioned, Todisco testified that if work is "slow" at the plant on Decatur Boulevard "and somebody doesn't have their 40 hours in" for the week, he will "find some- thing for them to do over at Clean 1." "I always find something for them to do," he added, "rather than hire somebody extra down at Clean I." Todisco also testified that, if Clean II is "short a presser," he will "get one of [the Clean I] pressers over there"; and that, sometimes when work is shifted from the Desert Inn plant to that on Decatur Boulevard, he has "to send [Clean I] employ- ees along with the work because [Clean II] didn't have enough help to handle it."" Still, on the subject of interchange, Roberta French credibly testified that she was transferred from the Desert Inn plant to the West Sahara store in October 1982;" that she was returned to Desert Inn in January 1983, where she worked "for a couple of days"; that she thereafter reported to Desert Inn each day, to be as- signed to "any one of the stores"; that in February she was assigned to a new dropoff store on Charleston Bon- levard, where she remained throughout its brief exist- 12 After acquisition of the plant on Decatur Boulevard, A-I's dryclean- ing was shifted there from Desert Inn. 12 Tochsco testified that "many cleaners exchange work"; that it is "very common" in the event of an overload or a breakdown. He conced- ed, however, that the Decatur Boulevard plant is his first choice when these is such an occurrence at Desert Inn. The Desert Inn plant suffered a "major breakdown" in 1983, according to Todisco, with both boilers being disabled in whole or part for about 6 months " There is evidence that two people were on the payroll of yet other Haundry/drycleanmg firms while also working for Clean I and/or Clean H in 1983 12 When this happens, the relocated employees continue to be paid by Clean I, according to Todisco. TOChSCO would have it that French was not transferred to the West Sahara store; rather: "French quit me and went to work for [Manthei]. That's all there is to it " Kathy Stranbe convincingly corroborated French, however, that she "was transferred." Straube, a Desert Inn su- pervisor at the time, enlarged that French had requested the transfer; that she, Straube, "discussed it" with Philip Straube, who "in turn spoke to" Todisco; and that "they agreed it was okay." ence; that she then reverted to the arrangement immedi- ately preceding that assignment, with Desert Inn again being "like a home base"; and, finally, that she was as- signed the swing shift at Desert Inn, remaining there until discharged in March 1983. 3. Not only are prospective Clean II employees trained at the Desert Inn plant, but they are paid from a Clean I account during the training process. 4. Payroll entries relating to both Clean I and Clean II were commingled in a single "compensation record" at relevant times, and Clean II apparently had no separate bookkeeping records otherwise." 5. Both employed the same bookkeepers at relevant times, who officed at the Desert Inn plant; 21 and, for a time at least, employed the same accountant. 6. Consistent with the bookkeepers' being at the Desert Inn plant, cash receipts from the Decatur Boule- vard plant and the dropoff stores were delivered daily to Desert Inn during the relevant period, beyond which the timecards of those" working in the dropoff stores were left there each week and all paychecks could be picked up there. 7. Supplies—hangers, plastic bags, soaps, etc.—are pur- chased jointly, and those to be used by both Clean I and Clean II are stored at the dropoff store on Spring Moun- tain Road. They are paid for from a Clean I account. Clean I assertedly is reimbursed by Clean II for the sup- plies it uses. 8. The two advertise jointly. Todisco testified that each pays a part of the advertising bill proportionate to the number of its facilities relative to the overall total- "everytime Carl opened up a new store, that increased his bill and lowered my bill." 9. Todisco's grandson appears in the television com- mercials, for which his tuition at a Montessori school is paid from a Clean II account. 10. Todisco's daughter and her husband, Kathy and Philip Straube, are co-managers, so-called, of Clean 11.22 11. Todisco, through Clean I and personally, has made numerous interest-free "loans" to Clean II. He testified that, when Clean II's bank account lacks the funds to cover whatever obligations might come due—rent, utility bills, whatever, and whether the amount be just a few dollars or much more—he sees that a covering deposit is made from his funds. He does this as an "accommoda- 22 Robert Alan Jones, one of the defense attorneys in this proceeding, testified that he has served as a general business consultant for Clean I and Clean II from time to time, and that he "never reviewed Clean Ws financial records because they mostly didn't exist." To like effect, Mary Kimsey, engaged in May 1984 to "clean up the records for Clean II," as she put it, testified that Clean II had no general ledger as dictated by sound bookkeeping practice, that her specific assignment was to "get the books in order to where there's some books", and that, as of May 1984, Clean H's books were in no condition to enable the preparation of a tax return for 1983. Todisco testified that he used "at least six" bookkeepers "over the last year." 22 Todisco testified that he installed the Straubes only after consulting with Manthei, and that he is giving them increased latitude in the man- agement of Clean II as they gain experience The record indicates that Philip was placed in the position in late 1982, several months before Kathy. 902 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion," he averred, lest Clean II's delinquencies "hurt [his] credit."23 Further revealing of the relationship between Clean and Clean II is the remarkable lack of business formality attending it. For example: 1. As earlier mentioned, the "formula" for figuring To- disco's compensation from Clean II is unwritten, Todisco assertedly trusting that Manthei "someday" will pay him the considerable sums that have been deferred. It has been stipulated, moreover, that "there are no documents, papers, which set forth the relationship" between Clean I and Clean II. 2. Regarding the moneys advanced by Todisco to cover Clean II's checks, Todisco testified that Manthei sometimes "wouldn't even know about" such transac- tions, that no "formal papers" are prepared to document them, and that he has "no idea" of the amounts now out- standing—I'm not concerned about the money; I'll get it someday." 3. While Clean II avowedly incurs a monetary obliga- tion for its work done at the Desert Inn plant, the atten- dent procedures are without definition. Todisco testified: I keep track of it; if the bill is too small, I don't even present it. . . . I just leave it in the office until it accumulates, until it goes up. . . . Sometimes it's a credit if they can't afford it, 'and I just carry it over, and then Carl catches up every once in a while. . . . Let's say he owes me $100 a week for shirts. I keep track of it; and [when] it gets to around $1000, I tell him about it.24 And, when Clean I becomes obligated for work done by Clean II, according to Todisco, Clean I does not make a cash payment, instead giving Clean II a credit "toward laundry bill or repair bills and this sort of thing." Finally, as against the manifold indicia that the rela- tionship between Clean I and Clean II is less than arm's length, the weight of evidence discloses that the two always have had separate bank accounts and property in- surance coverage," and always have filed separate re- ports with the employment security department. B. Conclusions and Reasons The Board has stated: [I]n determining whether two or more nominally separate businesses operating simultaneously are suf- ficiently interrelated so that they may be treated as a single integrated business enterprise, the Board 23 Even when his credit rating is not at stake, Todisco sometimes covers pidative Clean II obligations. He testified- "I know that we have a Gene Cappadona that Carl brought Spring Mountain Cleaners off of, and he was paying him $1,003 a month, and Gene works for me. And if Carl was late on his check, I would pay him myself and then Clean II would have to reimburse me." 24 Todisco's testimony was not a model of consistency in this regard. He elsewhere testified that Clean II "pay[s] us every week"; that Clean II pays "sometimes daily, sometimes monthly, sometimes weekly"; that he sees Manthei "at least twice a week at lunch, or in the evening for an hour, an hour or two, and then [he] present[s] the bills"; that he does not present a "formal bill" to Clean II. 25 The two share a single boiler insurance policy, but are named as separate insureds. looks to four principal factors . common manage- ment, centralized control of labor relations, interre- lation of operations, and common ownership or fi- nancial control. No single criterion is controlling, although -the first three factors, which reveal the degree of operational integration, are more critical than common ownership." Applying this formulation, it is overwhelmingly appar- ent that Clean I and Clean II, including that portion of the A-1 Laundromat functioning as a dropoff facility, were and are "a single integrated business enterprise."27 Virtually all aspects of management and control of labor relations for both—hiring, firing, transferring, supervis- ing, training, setting terms and conditions of employ- ment, purchasing, arranging for advertising, etc.—are handled largely if not solely by Todisco. There is a sub- stantial operational interrelationship, as well as witness their being held out to the public as a single enterprise, their joint purchasing and advertising, the considerable and recurrent interchange of employees and work," the integration of payroll records and sharing of bookkeep- ers, and the centralized training of employees. With respect to the leak critical of the factors determi- native of single-employer status, common ownership or financial control, the weight of evidence—most notably, the manner in which Clean II characterized itself, To- disco, and Manthei in certain of its documents in 1982 and 1983, 29 the casualness with which debts ostensibly owing by Clean II to Todisco or Clean I are treated and the overall paucity of business formality between Clean I and II, Todisco's considerable income expectations from Clean II, and the apparent link between Todisco's income and Clean II's profits—compels the conclusion that Todisco was and is something more than just a hired hand vis-a-vis Clean II. Because Clean I and Clean II are a single employer for purposes of the Act, and their combined annual revenues and indirect purchases from out-of-state meet the Board's standards for retail enterprises, they are an employer en- gaged in and affecting commerce within Section 2(2), 26 Airport Bus Service, 273 NLRB 561 (1984) 27 As concerns the dropoff facility in the A-1 Laundromat, the evi- dence of integration with the remainder of the enterprise is not as explicit as it is with regard to the other dropoff stores. Even so, the weight of evidence and probability compels the conclusion that it is operated in a manner largely corresponding with the other stores, bnnging it under the single-employer umbrella 28 Respondent argues that the interchange of employees and work is inconsequential inasmuch as two of those working for Clean I and/or Clean II in 1983 held jobs with other, unrelated firms at the tame time, and because it is not unusual for unrelated firms to do work for each other. The argument unfairly discounts the extent and constancy of inter- change between Clean I and Clean II, and is rejected 29 Mardon Talbot's attempted explanation of Clean II's being called a partnership in certain doucments, summarized above in fn 13, was weak, palpably slanted, and singularly unconvincing MR. CLEAN OF NEVADA 903 (6), and (7) of the Act; 3° and misconduct by either is at- tributable to both." The two, as a single employer, are referred to as "Re- spondent." III. THE ALLEGED UNLAWFUL CONTRACT REPUDIATION AND WITHDRAWAL OF RECOGNITION A. Evidence 1. The alleged contracts As earlier stated, Respondent became operational in September 1980, with the opening of the plant on Desert Inn Road. The original complement consisted, apparent- ly, of the three then-shareholders, Todisco, Todisco's wife, and Orville Rapue, with Todisco doing most of the work. Todisco's daughter and son-in-law, Kathy and Philip Straube, began to help out a month or so later. Robert Dambro, the Union's president and business agent, testified that on 6 November 1980 Todisco signed the 1978-1981 labor contract between the Union and the Las Vegas Dry Cleaning Association (Association), to- gether with a document detailing Respondent's payment obligation to the trust administering the Union's health and welfare plan as contemplated by the contract. At the same time, according to Dambro, he told Todisco that he would not commit the Union to the contract "unless [he] had some members there," Todisco, Rapue, and Philip Straube submitted applications for membership on 7 November." The contract identified by Dambro as that signed by Todisco pertained to counter -service employees and shuttle drivers, and bore an expiration date of 3 April 1981. By letter dated 20 January 1981, the Union advised Respondent, and presumably the several members of the Association, that it "wish[ed] to open the existing Agree- ment with your Company in regards to wages, hours, and conditions." 3 3 On 13 May 1981, according to Dambro, Todisco signed the 1981-1984 contract freshly negotiated by the Association, along with a new document concerning Re- spondent's obligation to the health and welfare trust and another, similar document calling for specified contribu- tions to the Union's pension trust. The record leaves in doubt whether Todisco had allied with Manthei as of 13 8° Inasmuch as Clean I serves both commercial and noncommercial customers, it would be permissible, in the alternative, to apply the Board's nonretail jurisdictional standard. De Marco Concrete Block Go, 221 NLRB 341 (1975), Laundry Owners Assn. of Cincinnati, 123 NLRB 543 (1959). Si Were it to be believed that Manthei participates in the management of Clean II to an extent defeating a single-employer finding, the inch= of collaboration between Clean I and Clean II nevertheless would require that they be accorded joint-employer status. E.g , 0. Voorhees Painting Go, 275 NLRB 779 (1985), TLI Inc., 271 NLRB 799 (1984), Laerco Transportation, 269 NLRB 324, 325-326 (1984). "Mhe Board considers Joint- and single-employer situations interchangeable in terms of various issues such as jurisdiction, obligation to bargam or to remedy unfair labor practices, and appropriate unit . . ." Walter B Cooke, Inc , 262 NLRB 626, 640 (1982) 32 Todisco's application card is dated 7 November. The record indi- cates that Rapue and Philip Straube also joined at that time. 33 Todtsco testified that he could not recall the letter, but acknowl- edged his signature on the return receipt and that he "must have signed for it May 1981, and is clear that the plant on Decatur Boule- vard and the first of the dropoff stores were not acquired until over a year later. The 1981-1984 contract did not contain a so-called accretion clause." Apart from making health and welfare and pension contributions for certain of those—not just counter-serv- ice employees and shuttle drivers—who had joined the Union, Respondent never complied with either the 1978- 1981 or the 1981-1984 contract. There is no substantial evidence, however, that the Union was aware of the per- vasive noncompliance before the conduct now in issue. Todisco testified that Dambro never accused Respondent of violating the contract until after the discharge of Pa- tricia Denekarnp; and Dambro testified that Todisco as- sured him "on many occasions" that the unit employees were being paid "over scale." Health and welfare coverage under the Union's plan was secured for Todisco, Rapue, and Philip Straube, and their families, starting in November 1980. Contributions and coverage continued for Rapue through March 1981; 35 for Straube through October 1983, including sev- eral months when he was at the Decatur Boulevard plant and deemed to be working only for Clean II; 36 and for Todisco through at least May 1984. Others for whom contributions were made from time to time were Ruth Blair (November 1981 to February 1982), John Trainer (November 1982 to Feburary 1983), Eugene Cappadona (November 1982 to September 1983), Wendy Burton (April to September 1983), and Cathy Harvey (April 1983). Contributions were not made for two others to join the Union, Roberta French in Feburary 1983 and Patricia Denekamp, the alleged discriminatee herein, in March 1983, perhaps because each was discharged soon after joining. Respondent's complement meanwhile grew to consist, at the time of the alleged misconduct, of approximately four counter-service employees at each of the two plants, Desert Inn and Decatur Boulevard, two counter-service employees at the A-1 Laundromat," one counter-service employee at each of the other dropoff facilities, two shuttle drivers at Desert Inn, and one shuttle driver at Decatur. Todisco testified that he never "considered" Respond- ent to have a union contract—"I had nothing to do with the contract; I didn't belong to the Union; I never even seen the contract." Concerning the fringe-benefit contri- butions, he testified that they would have been made for anyone belonging to the Union. He elaborated, at one point, that it was his "understanding"—"I think Dambro said so"—that contributions were required on behalf of 34 I.e., a provision that the contract extend to appropriately classified employees in facilities later acquired. 35 As noted above m fn 2, Todisco purchased Rapue's stock interest in 1981. 36 Respondent reported to the State Employment Security Department that Straube worked only for Clean H in the fourth quarter of 1982 and the first and fourth quarters of 1983. 37 Todisco testified early in the trial that A-1 has two counter-service employees. He later testified that he had no knowledge of complement at A-1—"I don't know anything about A-i" This latter assertion is not be- lieved As earlier noted, Todisco belied his professed detachment from A- I by letting slip that he is looking forward to its sale "because it's less work for [him] " 904 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD union members; and elsewhere that they were made "voluntarily," that he "wanted to, not had to," because "if they worked for me a decent length of time, [and] they were doing a job, they deserve it." Todisco recalled that he first knew Dambro as a cus- tomer at the Desert Inn plant; and that, shortly after they met, while he "was telling [Dambro] about different hotels [Respondent] was trying to pick up," Dambro said Respondent's drivers "couldn't pick up any Teamsters hotels unless they're Teamster drivers." The recital con- tinued that Dambro soon presented a clipboard contain- ing a single page on which there were a number of sig- natures, saying that, if Todisco signed, "it would give [his] drivers, whoever [he] hired, permission to call on Teamsters hotels . . . ." Todisco testified that he "didn't want to sign"; that he "wanted to get an attorney"; that he "asked [Dambro] to give [him] time because [he] was real busy." But Dambro was not to be denied, according to Todisco, "following [him] around like a Siamese twin," holding the clipboard "up under [his] nose" and offering assurance that he need not worry, that Dambro, as "a customer" and "a friend," was "not going to hurt" him. "So, like an idiot," Todisco continued, he signed—"to get him out of my hair." Shown the signature page of the contract identified by Dambro as having been signed by Todisco in 1980, To- disco testified that it "looks like the page that was on the clipboard," and that it, contains his signature, only to state later that it "was not the same page." 38 Regardless, he was consistent that the page on the clipboard was not attached to a larger document, and that he was never shown a contract. He added that he could not "remem- ber [Dambro's] saying anything about the Union at all," and that Dambro neither explained what union recogni- tion entailed nor discussed with him the provisions of the contract. Todisco admitted, however, that he signed the document relating to health and welfare contributions. Dambro denied telling Todisco that Respondent would be able to pick up and deliver at union hotels only if it were to sign with the Union. He testified that when he introduced himself to Todisco at the Desert Inn plant Todisco indicated that he "wasn't happy" with his health insurance and "wished to change," prompting Dambro to offer that he could get "pretty good" coverage through the Union. That was followed, according to Dambro, by his leaving a copy of the 1978-1981 contract with Todisco, and instructing that he "read it and, if he had any questions pertaining, than ask [Dambro]." Dambro also advised Todisco, as he recalled, that he either could enter into the contract then, or he "could wait until [it was] renegotiated in 1981." Dambro testi- fied that he also met about that time with Rapue, at a Winchell's Donut House, leaving a copy of the contract with him, too, and discussing the Union's health and wel- fare plan. Dambro continued that he presently made a followup telephone call to Todisco; that Todisco "was interested 39 One of Respondent's attorneys stated early in the trial "Our posi- tion is that that's not Mr Todisco's signature and he never signed the document" Counsel later conceded that Todisco "may have signed the signature page," and certain of his questions to Todisco assumed that to be the case in joining" right away "because . he needed insurance"; and that they consequently met on 6 November, where- upon Todisco signed the contract and the health and welfare document. Dambro testified that incidental to the signing he "clearly specified" that Respondent would "have to go along with what [the Union] had"—that, while "all they were interested in" at the time were To- disco and Rapue, those later hired would be "part of the bargaining unit" and would have to be treated in accord- ance with the contract "whether they were in the Union or not." Dambro testified that preparatory to the signing he wrote "Mr. Clean of Nevada, Inc.," on the signature page of the 1978-1981 "master"—i.e., original—contract, drawing a line under it for Todisco's signature; 39 and that "the whole agreement" was attached to the signa- ture page when Todisco signed. Phillip Straube testified that "just prior to" his joining the Union in November 1980 he and Todisco received pamphlets from Dambro "describing the medical bene- fits" under the union contract; and that Todisco told him that "for the benefit of [his] dependents, for the medical benefits, to join the Union, sign up." Kathy Straube testi- fied that, while suggesting that Philip join, Todisco told them that "we" were "in the Union," and that there was "a union contract" providing medical coverage. With regard to the purported 1981-1984 contract, To- disco admitted signing the signature page beneath Re- spondent's typewritten name, 4° but contended, much as he did concerning the earlier transaction, that it was on a clipboard detached from the rest of the contract, and that he was never shown anything but that page. Dambro testified, on the other hand, that the gave To- disco, for examination, a copy of the complete contract after agreement had been reached between the Union and the Association, returning later with the master con- tract and the two fringe-benefit documents, at which time Todisco "signed all three." 4 ' That TOdisco signed the latter two is undisputed. 2. The alleged misconduct and related developments The relationship between Respondent and the Union, whatever its legal character, apparently was without in- cident until January 1983, when two employees at the Desert Inn plant, Wendy Burton and Cathy Harvey, joined the Union. Shortly after, Dambro testified that he 39 One of the reasons advanced by Tochsco in support of his belated denial that this was the page he signed was that the company name "was typed out, it wasn't written like this.- " As noted in the preceding footnote, Tochsco testified that Respond- ent's name also "was typed out" on the signature page he signed in 1980 Dambro, it will be recalled, testified to the contrary. 41 The signature page of the document in evidence as the 1981-1984 contract does not Integrate with the preceding page, the former begin- ning with a new paragraph and the latter ending in midsentence ("it is the Intent and desire of the parties to use every effort to reach a") The document in evidence as the 1978-1981 contract carries over the sentence in question to the signature page ("new Agreement prior to the expira- tion of this Agreement") A paragraph corresponding to that on the 1981-1984 signature page does not ensue Dambro testified that the omis- sion "was an error, typographical error"; that he "didn't discover it until about a week ago", and that "It's no big deal, It doesn't mean anything" MR. CLEAN OF NEVADA 905 ' was "collared" by Todisco and asked why he "went behind [Todisco's] back and signed these people into the Union." Dambro replied, as he related, that they "had a right to join, and they didn't have to get permission from [Todisco] or anyone else." This testimony was not refut- ed. Burton testified that in the aftermath of her joining Philip Straube, by then a supervisor, 42 told her that she "was not to speak to anybody" about it; and that To- disco told her, in one or the other of two conversations in his office, that he did not want it known that Re- spondent was "a union shop"; that the Union was "no good for anybody" and he and his family were "getting out"; that he could not understand why Burton "went and joined"; that she had "screw[ed] up" by doing so; that he was "getting his own private [health] insurance"; and that if she "dropped out of the Union" her pay would be increased to $8 an hour and she would come under his insurance plan. About 2 weeks later, according to Burton, Todisco asked her what she had decided "on his offer of insurance," and she answered that she was going to "stay with the Union." Similarly, Harvey testified that Todisco told her that he "wished" she and Burton had not joined the Union, and that he would arrange "a private insurance plan" for them should they be "interested." Harvey responded, as she recalled, that she did not want to talk to Todisco about it; that he "should go through Mr. Dambro." Todisco recounted his exchanges with Burton and Harvey somewhat differently. He testified that they asked "if it was all right with" him if they joined the Union, and that he replied simply, "Go ahead, fine." To- disco conceded, however, that he "may have" told Burton, in the context of her joining, that he was "work- ing on" an insurance plan, but specifically denied that he asked her not to join or that he said he did not want it known that Respondent was involved with the Union. Straube, in his testimony, did not speak to the remark at- tributed to him by Burton. Roberta French testified that on 11 March-2 days after Todisco had discharged her—she received a tele- phone call from him; that he asked if she knew "any- thing about the Union"; and that she said she did not "know much about it, other than Patty [Denekamp] and [she] had joined." With that, French related, Todisco "just started screaming" at her until she "finally just hung up." 45 Todisco did not specifically address this en- counter in his testimony, but denied generally that anyone ever talked to him "about Patty Denekamp and union membership." On 18 March, Todisco discharged Denekamp at the West Sahara store—an action later detailed and conclud- ed to have been prompted by her union activities. 42 Straube iestified that he assumed a supervisory role "probably about a year" after being hired by Respondent in late 1980, and that he super- vised Burton, Roberta French, and Patricia Denekamp, among others. 43 French elaborated that Todisco said he would "fix" her, that he would "get a couple professionals" to say that her daughter, Kim, was not "really disabled," causing her to "lose her disability"; and that French had been "let go" because she was "a rotten worker . . . and too old for the job." Kim has "a mental disability," according to French, for which she receives social security benefits. Also on 18 March, according to Dambro, he was to meet with Todisco—"I had it all set"—to discuss French's discharge. There was no meeting, however, Dambro testified that Todisco "stood [him] up and re- fused to talk to [him] any further." Todisco denied, on the other hand, that a meeting had been set—"he wanted to meet with me, but I wouldn't meet with him." 44 Re- gardless, Dambro and French appeared at what they thought to be the appointed place and time—the West Sahara store 2 p.m.,45 to be told by Philip Straube, as Dambro recalled, that Todisco was not there, that they were to get out, and that he was to "call the police" and have them arrested for trespassing if they did not leave. Straube was attending the store in replacement of Dene- kamp. Dambro testified that Straube "calmed down" after the initial bluster, letting him use the store telephone; that he then called the Desert Inn plant, asking Kathy Straube if he could speak to Todisco; and that, after de- claring that Todisco was not there and was "not going to talk to [Dambro] or anyone else in the Union," she "hung up on" him Dambro testified that he never did talk to Todisco that day." Todisco testified, however, that he and Dambro did have a telephone exchange on 18 March. He elaborated that Dambro disguised his voice, telling Kathy Straube, who answered the call, that he was Manthei. In the re- sulting conversation, according to Todisco, Dambro "started cussing and swearing" at him, and said he was "going to break [his] arms and legs and cut [his] asshole out and put it over [his] desk." With that, so Todisco tes- tified, he called his lawyer and the police, and resolved that he "definitely wouldn't meet with [Dambro] alone." Kathy Straube testified that she listened in on two converations between Dambro and Todisco on 18 March, having answered the phone both times. In the first, she related Dambro told her in an altered voice that he was Manthei, after which he correctly identified him- self to Todisco and said he wanted "to meet with" him. Todisco exclaimed that Dambro was "sick," the recital went on, and hung up. The second conversation was "immediately" afterward, according to Straube; and, in it, Dambro called Todisco "an asshole" and said he was going to get" him—that he was "going to kick [him] out of the Union" and break both of [his] legs and both of [his] arms." Straube testified that Todisco then hung up, whereupon Dambro said to her, still on the line, "Don't take any shit from him" 44 Tothsco testified elsewhere that he had "had a conversation with Dambro," but could not "swear" that he agreed to Dambro's request for a meeting on 18 March 46 The meeting originally was to be at the Desert Inn plant, according to Dambro, but his office received a call, apparently from Kathy Straube, moving It to the West Sahara store Todisco, as if trying to square his assertion that there was no appointment with Dambro's showing up with French, testified, "[H]e was always calling me, so they told him where I'd be" 46 Straube likewise remembered that he let Dambro use the store tele- phone. Recalled to testify several months later, however, Dambro inject- ed an element of doubt about his recall of that and whether he spoke with Todisco on 18 March, testifying that he and French "went back to" his office, from which he "made several calls," but that he could not "recall [Tochsco's] coming to the phone that day." 906 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Wendy Burton and Cathy Harvey testified that the afternoon of 18 March Todisco announced to them and another counter employee at the Desert Inn plant that it was not "a union shop," that Dambro "was not to come into" the facility, that he "was not . . . to bring clothes in," that there was "a warrant out" for his arrest, that they were to call the police "if he did come in," and that they were "not to associate with" Roberta French. To- disco did not refute this testimony. Denying that he ever threatened Todisco—"I never made a threat to him or anyone else in my life"— Dambro testified that he finally managed to speak with Todisco by telephone "a couple of days" later, and was told that Todisco no longer would meet him unless ac- companied by an attorney. Dambro asked for "some- thing in writing" to verify that position, as he recalled; and, by letter dated 23 March, Todisco advised the Union: This is to authorize Robert Alan Jones, Esq., to act as legal representative for Mr. Clean of Nevada in any and all labor union matters. On 29 March, Dambro and another union official, Del Seleska, met with Jones and Todisco in Jones' office. Dambro presented a formal written grievance alleging that French, Denekamp, and Harvey, who had been ter- minated on 23 March, had been "unjustly terminated for union activities"; and that Respondent had abused and harassed its employees, and had been in violation of the contract by failing to make the prescribed fringe-benefit contributions and by failing to provide specified lunch and rest periods. This was the Union's first formal pro- test over Respondent's nonadherence to the contract. Dambro testified that Jones and Todisco "wouldn't listen to" the grievance. It was agreed, however, either at that meeting or in a related telephone conversation be- tween Dambro and Todisco, that Harvey would be "un- conditionally" reinstated in return for the withdrawal of the grievance.'" That was followed by a letter from To- disco to Dambro, dated 29 March, stating that Harvey had declined reinstatement; and by one from Dambro to Todisco, dated 30 March, protesting that, contrary to the understanding, Respondent had conditioned reinstate- ment on Harvey's accepting a warning letter, and stating that Harvey remained available for unconditional rein- statement. Dambro testified that he called Jones' office in April and May 1983--the number of times is undisclosed—in an attempt "to get this thing off dead center and move it one way or the other." He left messages with Jones' sec- retary, he averred, but Jones never returned the calls. Dambro concededly has had several telephone conversa- tions with Jones since. The subject matter is not dis- 41 The grievance procedure in the alleged 1981-1984 contract provid- ed that "all grievances must be filed in writing . within ten (10) calen- dar days after the matter in dispute or disagreement is alleged to have occurred . ." Harvey's discharge, on 23 March, thus appears to have been the only event raised by the grievance that was not time barred, assuming applicability of the contract. The record leaves to speculation whether this explains Respondent's apparent refusal to entertain the other Issues raised by the grievance. closed, although Dambro acknowledged that nothing "unpleasant" transpired. The last communication between the parties before the start of the present trial, apparently, was a letter from the Union to Respondent dated 6 January 1984, stating that it "wish[ed] to open the existing Agreement with your Company in regards to wages, hours, and condi- tions." Barry Moskowitz, then Respondent's controller, subsequently purported to engage in negotiations with Dambro—a brief and perfunctory exercise, it would appear, from which nothing materialized, 3. Evidence pertaining to unit appropriateness Much of the evidence set forth above in connection with the single-employer question is equally relevant to the determination of unit appropriateness. Todisco testi- fied, in further illumination of the situation, that the duties of the counter-service employees at the two plants, Desert Inn and Decatur, were and are "exactly the same." The duties of the employees at the dropoff stores, however, are "a lot easier," he testified, explain- ing: They don't have the inspecting to do. All they do is take in clothes, mark them, and send them to the main plant. And, when they come back, they're al- ready cleaned, pressed, and on a hanger. B. Conclusions and Reasons Respondent to the contrary, it is found as fact that To- disco signed intact labor contracts in November 1980 and again in May 1981; that he was not induced to do so in either instance by fraud or material misrepresentation on Dambro's part; and that he knew exactly what he was doing.4 8 It is readily inferable that when Respondent contract- ed with the Union Todisco's only thought was to secure quality health insurance for a select few—himself and his family, certain relatives, others in management, and per- haps two or three more. He obviously had no intention of making that or other contract benefits available to the employees in general; or, aside from fringe-benefit contri- butions for the favored few, of complying with the obli- gations for which Respondent had contracted. Indeed, his assertion that he never "considered" Respondent to have a union contract was eminently believable. If there was deception surrounding the execution of the con- tracts, Todisco, not Dambro, was the perpetrator. When Wendy Burton and Kathy Harvey joined the Union in January 1983, the reactions of Todisco and Philip Straube betrayed an anxiety that Respondent 48 Dambro's version of the contract signings and surrounding events is credited He was a witness of obvious smcenty and otherwise convincing demeanor; and, while his testimony sometimes was lacking in organiza- tion and precision, that seemingly derived from deficient pretrial prepara- tion rather than disregard for the oath Todisco, on the other hand, dis- played a most unpersuasive demeanor, and his testimony was so egre- gious a mix of inconsistencies, vagueness, implausibilities, and evasions as to betray an oath-be-damned resolve to win the case Todisco's professed naivete concerning the implications of his dealings with Dambro was belied, moreover, by the testimony of the two Straubes about his urging that Philip "Join the Union, sign up," to obtain "the medical benefits." MR. CLEAN OF NEVADA 907 might lose control of the situation; that, were it to become generally known that it was a union shop, fringe benefit contributions would have to be made for every- one deciding to join." The anxiety manifested itself again on 11 March when Todisco learned that French and Denekamp also had joined;50 and yet again on 18 March, when Straube threatened to have Da.mbro arrest- ed and Todisco (a) discharged Denekamp because she had joirted; 51 (b) failed to meet with Dambro as ar- ranged over French's discharge; 52 and (c) told three Desert Inn counter employees that Respondent was not a union shop, that Dambro was not to be permitted in the plant, and that they were to call the police if he did come in. 58 Todisco since has refused to meet with Dambro outside the presence of his lawyer, and the one subsequent meeting between the parties was on that basis. 5 4 So, although Todisco in his heart had never recog- nized or contracted with the Union, there were trap- pings—two contracts, fringe-benefit contributions—to the contrary. On 18 March for the first time, the several actions of Todisco and Straube bore the unmistakable implication that recognition and, as a necessary corol- lary, the contract were no more. An employer cannot question a union's majority status, and thereby legitimize a withdrawal of recognition or other failure to bargain in good faith, during the term of a valid bargaining contract. To quote from Precision Striping, 245 NLRB 169, (1979): [W]here there is a collective-bargaining agree- ment in effect between an employer and a union which is the statutory bargaining agent for the em- ployees covered by the contract, that union enjoys an irrebuttable presumption of majority status for the duration of the agreement.55 49 Dambro, uncontradicted, is credited that Todisco "collared" him in complaint over his signing Burton and Harvey "into the Union", and Burton, of good demeanor and convincing testimonial substance, is cred- ited that Todisco and Straube spoke to her, in the aftermath of her join- ing, as she described Todisco, for the reasons in the preceding footnote, is regarded with utmost skepticism whenever party to a significant con- flict in testimony Harvey, for much the same reasons, is credited that Todisco spoke to her as she described 5° French's description of her 11 March telephone encounter with To- disco is credited Not only did she evince absolute sincerity in the telling, but her recital was laced with convincing detail Todisco, as mentioned, did not specifically address this exchange in his testimony, and his ab- stract denial that anyone ever talked to him "about Patty Denekamp and union memberships" was devoid of suasive impact 51 A discussion of Denekamp's discharge follows. 52 Based on the comparative credibility of Dambro and Todisco as previously related, and Todisco's equivocation on the point, Dambro credited that he and Tochsco had agreed to meet on 18 March 53 The unrefuted testimony of Burton and Harvey in description of this incident is credited 54 The stories of Todisco and Kathy Straube that Dambro threatened Todisco on 18 March came across as sheer invention, to lend colorable justification to Todisco's refusal to meet with Dambro alone. Dambro's denial was much the more convincing, and is credited 55 See also Abbey Medical/Abbey Rents, 264 NLRB 969 (1982), Rayel Electric Ca, 260 NLRB 1327, 1329 (1982), Cobb Theatres, 260 NLRB 856, 859 (1982) Thus, because the contract signed by Todisco in 1981 by its terms was in effect when Respondent withdrew recognition on 18 March 1983, the issues to be resolved are whether Respondent's recognition of the Union as bargaining agent is subject to nullification; and, even if not, whether the contract was invalid. Concerning the first issue, it is concluded that, while Respondent's recognition of and contracting with the Union in 1980 once may have been vulnerable because of improper management involvement and/or lack of an employee majority, the 6-month limitation period in Sec- tion 10(b) of the Act precludes such an attack in defense of 1983 conduct. Machinists Lodge 1424 (Bryan Mfg. Co.) v. NLRB, 362 U.S. 411, 419 (1960).56 Further regarding the Union's standing as bargaining agent, it is concluded that, although it might have been more assiduous in policing the contract, 57 its inaction was not tantamount to an abandonment of the contract, nor did it imply an unwillingness or inability to represent the employees. See Pioneer Inn, 228 NLRB 1263, 1264 (1977); H-P Stores, 197 NLRB 360 (1972); Road Materi- als, 193 NLRB 990, 991 (1971). As concerns the second issue, contract validity, Re- spondent's contention is rejected that the bargaining unit as described in the contract—counter-service employees and shuttle drivers—is inappropriate. Not only does this description correspond with that in successive contracts between the Union and the Association, revealing com- pliance with established area practice, but Respondent twice assented to it by entering into the 1981-1984 con- tract and its predecessor, and has never taken action through the NLRB or otherwise to challenge unit appro- priateness. See Morse Shoe, 227 NLRB 391, 394 (1976); Williams Enterprises, 212 NLRB 880, 884 (1974); Barring- ton Plaza & Tragniew, 185 NLRB 962 (1970).58 To synthesize, the Union was a legitimate bargaining representative When Respondent withdrew recognition on 18 March, the unit as described in the contract is ap- propriate, and there was no nullifying infirmity in the contract otherwise," The Union therefore enjoyed an ir- rebuttable presumption of majority status at the time, and Respondent's conduct perforce violated Section 8(a)(5) and (1).60 56 A union charged with unlawfully enforcing a contract entered into when it did not represent a majority of the employees was absolved in Bryan Mfg Co., the principle since has been applied in cases dealing with the situation, such as the present, in which a party cites infirmities in a grant of recognition outside the 10(b) period in defense of its refusal to bargain. NLRB v Tragniew, Inc., 470 F 2d 669, 673 (9th Cir 1972). See also Morse Shoe, 227 NLRB 391, 394 (1976) 57 In fairness to the Union, its task was made no easier by the evident obfuscation characterizing Respondent's dealings with it. Dambro is cred- ited that Todisco assured him "on many occasions" that the unit employ- ees were being paid "over scale" 58 Enforcement of Barrington Plaza & Tragniew was denied on other grounds 470 F 2d 669 (9th Cir 1972) 59 The failure of the signature page in the 1981-1984 contract to inte- grate with the preceding page, as described above in fn 41, plainly was a clerical oversight; and, being without substantive consequence, cannot be said to have impaired contract validity. Cff Ace Machine Ca, 249 NLRB 623, 637 (1980); Trojan Steel Carp, 222 NLRB 478, 483 (1976) 60 Respondent's argument is rejected that its wholesale noncompliance with the contract amounted to a repudiation from the day of signing, and Continued 908 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD One issue remains, having to do not with the appropri- ateness of the unit as described in the contract, but with the facilities subject to contract coverage. The General Counsel contends that the unit expanded after execution of the 1981-1984 contract to include all employees work- ing in the designated classifications at the facilities later acquired—the plant on Decatur Boulevard and the drop- off outlet, starting with that put in the A-1 Laundromat. This brings into play the doctrine of accretion. The Board "has followed a restrictive policy in finding an accretion because it forecloses the employees' basic right to select their bargaining representative." Weather- ite Co., 261 NLRB 667, 669 (1982), The doctrine's invo- cation requires consideration of a number of factors. As stated in Peter Kiewit Sons' Co., 231 NLRB 76, 77 (1977): [O]ur primary concern is the degree of common interests of the employees involved. The ultimate unit determination is thus resolved by weighing all the factors relevant to the community of interests of the employees. Where, as here, we are concerned with more than one operation of a single employer, the following factors are particularly relevant: the bargaining history; the functional integration of the operations; the differences in the types of work and the skills of employees; the extent of centralization of management and supervision, particularly in regard to labor relations, hiring, discipline, and con- trol of day-to-day operations; and the extent of interchange and contact between the groups of em- ployees.6 Also relevant is the number of employees sought to be accreted relative to existive unit employees. Hudson Ber- lind Corp., 203 NLRB 421, 422 (1973). It is concluded, despite the difficulty of the burden, that those employed in the counter-service and shuttle- driver classifications in all the later-acquired facilities became members of the unit, covered by the contract, by accretion. Regarding the counter-service employees in the Decatur plant, this is dictated by their having "exact- ly the same" duties as those in the Desert Inn plant; by their many other commonalities with those already in the unit, previously detailed in support of the single-employ- er finding; and by their not being disproportionate in number to existing unit employees (at Desert Inn and A- 1)—all indicating a nonseverable community of interest among them and the existing employees. Much the same can be said of the shuttle driver working out of the De- catur plant vis-a-vis the two at Desert Inn. As concerns the counter-service employees in the dropoff facilities, they too are subject to the commonal- that a violation on that ground therefore is barred by Sec. I0(b). As earli- er noted, there is no substantial evidence that the Union knew about Re- spondent's pervasive noncompliance before the conduct now in issue, and it is axiomatic that "the I0(b) period does not commence until the [charg- ing party] has knowledge of the facts of the unfair labor practice" Abbey Medical/Abbey Rents, 264 NLRB 969, 975 (1982) See also Pacific Inter- com Co., 255 NLRB 184, 184-185 (1981); Plubmers Local 40 (Mechanical Contractors), 242 NLRB 1157, 1161 (1979). 61 See also Say-On Drugs, 267 NLRB 639, 644 (1983), Save-It Discount Foods, 263 NLRB 689, 693-695 (1982); Westwood Import Go, 251 NLRB 1213, 1220-1221 (1980); Melbet Jewelry, 180 NLRB 107, 109-110 (1969). ities leading to the single-employer finding, beyond which their functions are akin to, if less complicated than, those of the counter employees in the two plants; their time is devoted to tasks which are integrated with the production processes in the plants; and the dropoff outlets are no more than adjuncts of the plants, without meaningful identity as self-contained economic units. Ge- ographic separation from others in the unit is the only notable factor militating against the accretion of these employees, and that alone is not enough to create dis- tinct communities of interest. See Uptown Cleaners & Hatters, 174 NLRB 721, 722 (1969); Bugle Coat, Apron & Linen Service, 132 NLRB 1098, 1099 (1961); Laundry Owners Assn. of Cincinnati, 123 NLRB 543, 546 (1959). IV. THE ALLEGEDLY UNLAWFUL DISCHARGE OF PATRICIA DENEKAMP A. Evidence Denekamp was employed at the dropoff store on West Sahara Avenue from 4 January 1983 until discharged by Todisco the following 18 March. She became involved with the Union the night of 9 March, filling out a mem- bership application card at the home of her cousin and friend, Roberta French. French was her immediate pred- ecessor at the West Sahara store; and, as noted earlier, since had worked elsewhere in the system until dis- charged on 9 March. Denekamp's card was delivered to the Union's Dambro on 10 March. As previously found, Todisco knew about and evinced displeasure with Denekamp's union membership before the discharge, having been told by French on 11 March and showering her with verbal abuse in response to the revelation. 62 Also, as noted above, Todisco had demon- strated displeasure on learning that Wendy Burton and Kathy Harvey had joined the Union in January. 63 The inference is unavoidable that the displeasure each time derived from a concern that Respondent would have to make fringe-benefit contributions under the union con- tract for anyone joining. Todisco's and Denekamp's renditions of the circum- stances immediate to her discharge differ radically. He testified that, going to the West Sahara store in the early afternoon of 18 March, he found her sorting playing cards into decks. This caused "white particles" to be "embedded in the rug," he asserted—"little bits of white paper that are still in the rug and will not come up. „64 He added that "the counter was covered with them,” as well, and that there were boxes "all over the place"— "on the counter and on the floor." He professedly count- ed 17 boxes, which he characterized as "huge"—"at least 2-1/2 by 2-1/2 [feet]."62 Todisco testified that he showed Denekamp "what she was doing to the front of the counter, on the floor"; and 62 See fns 43 and 50, supra, and accompanying text 63 See fn. 49, supra, and accompanying text. 64 "The whole store was a brown rug," Todisco testified, and it was not unusual for a "mess" to be made "in the course of a day's work" 65 Todisco later testified that the boxes were in "two different sizes, some were about maybe 14 by 14 [inches], and the others were about 24 by 24" MR. CLEAN OF NEVADA 909 that he in addition told her that she "had messed up the rug before," reminded here that he "was paying her" „ while she was in the store, and directed that she "clean up this mess" and "get the boxes out of there." He also forbade the further sorting of cards, he recounted, at which point she "started disagreeing with" him, saying that she "needed the money," that there was "nothing [else] to do," and that French "used to do it there." It was when Denekamp began arguing, Todisco con- tinued, that he discharged her He explained: I had to fire her. She just disagreed with me. . . . She wouldn't do what she was told; she would not stop putting those cards together for this other company. [I] just couldn't put up with it.66 Todisco testified variously that Denekamp "got all her junk out of there and left" on being discharged; that he did not notice if she took any "personal effects" when she left; that she "brought somebody back an hour later to pick up the boxes and all that junk she had there," While she stayed outside and "pointed to the boxes"; and that, although he told this person to remove the boxes "as soon as possible," several—"about a half dozen"— where left behind, later to be placed in the back room by Philip Straube. Todisco ran the store on Denekamp's departure, mean- while summoning Straube to relieve him. Straube, asked if he saw any boxes there, testified that there were "sev- eral" used for storage—"hanger boxes, stuff like that"— but that he "didn't see" any for playing cards." Todisco returned that evening to clean up the store, he testified, bringing his wife and a vacuum cleaner. "[T]he mess on the rug was still there, very visible," as he re- called, and he even "tried on hands and knees" to clean it up, but that "didn't work too well." Denekamp testified that after a telephone conversation with French the morning of 18 March she received a call from Kathy Straube, who stated, on learning that she had been talking to French, "[Y]ou can't be talking to Bobbi on our time." Early that afternoon, Denekamp continued, Todisco appeared at the West Sahara store, declaring that she "shouldn't be talking to" French, that French was "just a big mouth and a troublemaker," and that she had "caused her daughter to get fired." 69 To- disco went on, Denekamp recounted that he would have to let her go for "associating with" French, even though she had been doing "a good job" and he had "just given" her a raise and "was thinking of giving [her] an- 66 Earlier in his testimony, Todisco put the reason somewhat different- ly. "I terminated her because she had huge boxes of playing cards, you know, aces on through to, I guess, kings, and she was making decks of cards for some casinos." 67 Straube first testified that Todisco did not give him a reason—"not that I rernenaeber —for Denekamp's discharge He later testified that, when he relieved Todisco, Todisco said Denekamp had been discharged "because she had made a mess" Straube observed "several papers and everything all over the floor," he asserted—"the carpet was dirty, as far as litter" He enlarged that there were "little pieces" of paper "all over the carpet"—"thousands", that they were about "a quarter of an mob by a quarter of an inch" in size; and that he did not think a vacuum cleaner would pick them up. 68 French's daughter, Kim, worked briefly at the Desert Inn facility, being discharged with French. other one."69 Denekamp's account concluded that she said "okay," gave Todisco the key to the store, "gath- ered up" her things, and left. Denekamp denied sorting the cards the day of the dis- charge. Rather, she testified, she spent the day playing solitaire and rebagging clothes that had been "bagged wrong" the day before by a replacement. She admittedly had sorted cards at the West Sahara store for "a week or so" in February, but assertedly discoutinued it at Todis- co's request. She did it "for a friend," she testified, as a "therapy thing" and not a "moneymaking project." "Some days," she explained, there were only 10 custom- ers "all day long." 70 The cards were casino cutoffs. They were notched so signifying, and the resulting slices sometimes fell off during sorting. Even so, according to Denekarrip, there was no troublesome accumulation of debris." She recalled, however, that "there was always a mess on the floor" at the West Sahara store, "lint and all of that"; and that a vacuum cleaner was never avail- able "to clean it in there." Todisco twice related how he happened to be in the West Sahara store on 18 March. Examined by Respond- ent's counsel late in the trial, he testified that Kathy Straube had tried without success that morning to reach the store by telephone, after which he tried, "for about an hour and a half." "The line was busy" all that time, he averred, and the operator refused his entreaties to break in, prompting him to go to the store. Earlier, asked by the General Counsel if he had tried to call Denekamp that day, he was more tentative, answering, "Yeah, I think I did try to call her." Then asked if he reached her, he replied, "I don't think so." Finally, asked if that was his reason for going to the store, he testified: "That might have been part of the reason. I'm not sure now . . . . I went to the stores once in a while to make sure things were running smoothly." Todisco denied, during his earlier testimony, that misuse of the telephone figured in Denekamp's discharge. Kathy Straube disputed Denekamp's testimony that the two had a telephone conversation the morning of 18 March. She testified that she tried to call Denekamp at the West Sahara store "for at least a half hour to 45 min- utes"; that "the line was busy repeatedly"; that she, too, sought the intervention of an operator, discovering that "they cannot tell you if there is conversation of the line"; and that she finally reported the situation to Todisco, who said he would "take care of it." Straube testified that she could not "recall the exact reason" she wanted to reach Denekamp. She then was working at the Desert Inn plant, so supposedly had no authority over any of the dropoff stores. 69 Denekarnp testified that she received an hourly raise from $3.50 to $4 "about a week before" her discharge. 70 Todisco testified that "a lot of' those employed in the dropoff stores knit or crochet to pass the time, and that he does not "mind that at all, because it doesn't mess the place up." He also testified that he told French, when she was at the West Sahara store, that he "didn't mind" if she sorted 'cards, "a few decks at a time, in an area where there was no rug," but that he didn't like boxes all over the counter." 71 French testified that she sorts cards in her apartment "all the time," that the fallout is readily picked up by a vacuum cleaner, and that "there is never a mess." 910 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Todisco would have it that 18 March was not his only encounter with Denekamp over the sorting of cards. He testified that she had been warned "several times" about it. He didn't count the warnings," he elaborated, but he "would call her up and tell her that the floor is a mess," and also "pointed it out to her and showed her." He added that he even "sent over" his "personal vacuum cleaner," and showed her how to "take a broom in front of the cleaner and try to move the nap up so it would pick -more"— at the same time telling her that she was "sick and tired of . . . seeing that mess on the floor" when he came to take inventory in the evening. Todisco testified that he spoke to Manthei about the situation, as well; and that Manthei said to "get rid of her." Todisco assertedly "resisted" Manthei's counsel "at the beginning," however, explaining: "[T]he woman is in her forties. I don't want to just fire somebody. I like to give him a warning first." Manthei testified that Todisco called him at home on "several occasions" about problems with Denekamp. Manthei particularized: [H]e called me at home one night and said that . . he had walked in there and found her doing sideline work with cards while she was supposed to be on our time. And I said, "Did you fire her?" And he said, "No, I gave her a warning." I said: "Well, I really feel that if somebody's being paid by me, on my time, they shouldn't be doing part-time work. I don't have any objection to somebody doing part-time work, but they should do it on their own time." And I advised him at that time, I told him, he should have fired lies. Manthei added that Todisco brought the problem to his attention one more time, when Denekamp was dis- charged, and that the discharge had his endorsement. He testified that union considerations had nothing to do with it; that he "didn't know anything about the Union." As earlier detailed, Denekamp's discharge was not the only event of note on 18 March, that being the day that Todisco failed to meet as arranged with Dambro to dis- cuss French's discharge, and that he and Philip Straube, by word and deed, signified Respondent's unlawful with- drawal of recognition from the Union. B. Conclusion and Reasons In Wright Line, 251 NLRB 1083, 1089 (1980), the Board stated: [VV]e shall henceforth employ the following causa- tion test in all cases alleging violation of Section 8(a)(3) or violations of Section 8(a)(1) turning on employer motivation. First, we shall require that the General Counsel make a prima facie showing suffi- cient to support the inference that protected con- duct was a "motivating factor" in the employer's decision. Once this is established, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct.72 It is concluded that the General Counsel has made the requisite prima facie showing with respect to Dene- kamp's discharge; that Respondent has failed to over- come it by demonstrating that the discharge would have occurred even absent her union activities; and that the discharge therefore violated Section 8(a)(3) and (1). That the General Counsel has made a prima facie showing derives from this aggregate of considerations: (a) Denekamp was a valued employee, as revealed by her having received a raise shortly before the discharge and by Todisco's remarking, in the discharge conversa- tion, that she had been doing "a good job" and that he had been "thinking of giving [her] another one."73 (b) Denekamp had joined the Union a matter of days before the discharge. (c) Todisco knew about and evinced displeasure over her having joined before the discharge. He also had shown displeasure earlier on learning that Burton and Harvey had joined. This attitude quite obviously stemmed from his concern that fringe-benefit contribu- tions under the union contract would have to be made for anyone becoming a member. (d) In addition to discharging Denekamp on 18 March, Todisco failed to meet as arranged with Dambro and an- nounced to certain employees that Respondent was not a union shop, and he and Philip Straube expressed extreme hostility toward Dambro, directly or indirectly—all of which amounted to the unlawful withdrawal of recogni- tion. The inference is all but unavoidable that these sev- eral same-day events, the discharge among them, were part of an orchestrated whole, calculated to rid Respond- ent of an increasingly ominous union situation. Concerning Respondent's burden, Todisco's testimony about the playing cards, the attendant mess, and the re- sulting unpleasantness from Denekamp simply is not be- lieved. That scenario being central to Respondent's de- fense, the defense necessarily fails. More than that, the inference of unlawful motive is strengthened. Extracting from Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966): If [the administrative law judge] finds that the stated motive for a discharge is false, he certainly can infer that there is another motive. More than that, he can infer that the motive is one that the em- ployer desires to conceal—an unlawful motive—at least where . . . the surrounding facts tend to rein- force that inference. Not only was Todisco's story dissimilar in every detail to that of Denekemp, who was an altogether persuasive witness in both demeanor and content, but it was marred—as was his testimony throughout—by uncon- 72 The formulation received Supreme Court approval in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). 73 Denekamp is credited that Todisco so spoke, that the discharge con- versation in general was as she described, and that she had Just received a raise. She was a witness of manifest good faith and competence. The madequactes of Todisco's version are discussed below. T , MR. CLEAN OF NEVADA 911 vincing demeanor, vagueness, inconsistency, poor re- sponsiveness, and implausibility. Putative corroboration from Manthei and the two Straubes on this or that point was not enough better to save him. Todisco's testimony why he went to the West Sahara store on 18 March, for instance, did not hang together from one time to the next. His latter version—about the telephone being busy "for about an hour and a half," the operator refusing to intervene, etc.—plainly was of after- the-fact contrivance, as well, presumably to show that the discharge was without premeditation—that the deci- sion was made only after Todisco encountered the mess and Denekamp's pervefsity.74 As for the supposed mess itself, Todisco came across again as struggling with an ill-rehearsed script. That Denekamp had brought in 17 boxes, each "at least 2-1/2 by 2-1/2 [feet]", —or, as Todisco later amended, 14-by-14 and 24-by-24 inches—imposes on the gullibility of even 7 4 And perhaps, hopeful of blunting the General Counsel's single-em- ployer contention, to convey the impression that Todisco called on the dropoff stores only in extraordinary circumstances. Todisco himself pretty much sabotaged that notion, however, testifying that he "went to the stores once in a while to make sure things were running smoothly" the most naive. Nor was his testimony a seemless web concerning what and how much stuff Denekamp left behind after the discharge; and his one assertion—that she left "about half a dozen" boxes, later taken to the back room by Philip Straube—was directly contradicted by Straube's testimony that he "didn't see" any such boxes. CONCLUSIONS OF LAW 1. Respondent, a single-employer comprised of Mr. Clean of Nevada, Inc. and Clean II is an employer en- gaged in and affecting commerce within the Section 2(2), (6), and (7) of the Act. 2. Respondent violated Section 8(a)(5) and (1) of the Act on 1.8 March 1983 by withdrawing recognition from the Union as the systemwide representative of its counter-service employees and shuttle drivers, and by re- pudiating its 1981-1984 contract with the Union as a nec- essary corollary of that withdrawal. 3. Respondent violated Section 8(a)(3) and (1) of the Act on 18 March 1983 by discharging Patricia Dene- kamp. [Recommended Order omitted from publication.]