Contract Cleaning Maintenance, Inc.

CONTRACT CLEANING MAINTENANCE Contract Cleaning Maintenance, Inc. and Arthur Vasquez. Cases 13-CA-25063 and 3-CA-25145 July 21, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On April 13, 1987, Administrative Law Judge Nancy M. Sherman issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,' and conclusions, as modified, and to adopt the recom- mended Order2 as modified and set out in full below. We agree with the judge that the Respondent violated Section 8(a)(1) of the Act by giving its employees the impression of surveillance. We fur- ther agree with the judge that the Respondent vio- lated Section 8(a)(3) and (1) by demoting and dis- charging employee Arthur Vasquez and by dis- charging employee Avdo Hukic. The Respondent excepts to the judge's conclu- sion that it unlawfully refused to hire four employ- ees of Chemco Corporation (Chemco) when it re- placed Chemco as the maintenance contractor at the United Parcel Service (UPS) Northbrook, Illi- nois facility on May 24, 1985. The Respondent had retained all former Chemco employees when it took over maintenance operations at four other UPS facilities a month earlier. For the reasons set forth below, we find merit in the Respondent's ex- ceptions. 1 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 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1178 ( 1987), interest on and after January 1, 1987, shall be com- puted 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 1, 1987 (the effective date of the 1986 amend- ment to 26 U S C § 6621), shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 2 The judge's recommended Order includes a visitatonal clause author- izing the Board, for compliance purposes, to obtain discovery from the Respondent under the Federal Rules of Civil Procedure under the super- vision of the United States Court of Appeals enforcing the Order Under the circumstances of this case, we find it unnecessary to include such a clause in the Order 995 The judge's conclusion of unlawful retaliatory motivation turns on her finding that the General Counsel made a "prima facie showing that Re- spondent refused to hire the Northbrook employees at least partly because Respondent feared that they would participate in the Union's pressures, includ- ing a threatened strike, in an effort to obtain a higher contractual wage rate than Respondent wanted to pay." Earlier in her opinion the judge characterized these union-related considerations as "about the same" as those that had led to the afore- mentioned unlawful conduct against employees Vasquez and Hukic. We disagree. The union-related considerations were not "about the same" for the Northbrook employees as for Vasquez and Hukic. Those two discriminatees had been outspoken complainants about the Re- spondent's wage reduction plans and proponents of strike action, especially during union meetings of May 13 and 20, 1985. On the other hand, one of four Northbrook employees was not a union member, and there is no evidence that any of the three members held union office or that these four employees engaged in any union activity other than attending the May 13 union meeting, at which the new collective-bargaining agreement between Chemco and the Union was announced. In particu- lar, there is no evidence that any Northbrook em- ployee attended the May 20 union meeting at which former Chemco employees already in the Respondent's employ discussed strike action. Since, as found and emphasized by the judge, the Re- spondent's officials knew what transpired at these meetings, they knew that the Northbrook employ- ees were not engaging in the same union activities as Vasquez and Hukic and had not yet indicated any predilection to strike in an effort to resist wage reductions by the Respondent. Even in the May 21-24 communications with the Respondent about the Northbrook employees' hiring prospects, there is no evidence of any wage or other contract de- mands by those employees. Consistent with this ab- sence of significant union activity by Northbrook employees, there is no evidence that Vice President and Sales Manager Jack Sullivan or any other agent of the Respondent expressed any union animus in dealing with the Northbrook employees. Furthermore, there is uncontroverted evidence supporting the Respondent's assertion that it did not hire the Northbrook Chemco employees be- cause of difficulties it had experienced with former Chemco employees at the four UPS facilities it had begun servicing in the beginning of May. Although the Respondent unlawfully discharged Vasquez and Hukic, it also took the following actions, none of which have been alleged to be unlawful: termi- 289 NLRB No. 131 996 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD nated two former Chemco employees at the Ad- dison facility for leaving work early and punching another employee's timecard; issued warning no- tices for poor work performance and subsequently terminated three former Chemco employees at the Bedford Park facility; and expressed dissatisfaction with the quality of work performed at its other UPS locations. Furthermore, it had received re- ports of deficiencies in its service from UPS. Based on the foregoing, we find that the evi- dence is insufficient to establish that the Respond- ent unlawfully refused to hire the four Northbrook employees. Accordingly, we will dismiss the com- plaint allegation regarding this action. ORDER The National Labor Relations Board orders that the Respondent, Contract Cleaning Maintenance, Inc., Chicago, Illinois, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Giving its employees the impression of sur- veillance over their union activity. (b) Discouraging membership in General Service Employees Union, Local No. 73, Service Employ- ees International Union, or any other labor organi- zation by discriminatorily demoting or discharging employees. (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 Arthur Vasquez reinstatement to the job from which he was unlawfully demoted and later unlawfully discharged, or, if such a job no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights or privileges previously enjoyed. (b) Offer Avdo Hukic reinstatement to his former job from which he was unlawfully dis- charged or, if that job no longer exists, to a sub- stantially equivalent position, without prejudice to his seniority or any other rights or privileges previ- ously enjoyed, and make him whole for any loss of earnings and other benefits suffered as a result of the discrimination against him, in the manner set forth in the remedy section of the decision. (c) Make Vasquez and Hukic whole for any loss of earnings or other benefits suffered as a result of the unlawful discrimination against them, in the manner set forth in the remedy portion of the judge's decision. (d) Remove from its files any reference to the unlawful demotion and discharges (including, with- out limitation, the warning notices bearing Vas- quez' name and dated May 15 and 21, 1985; and the warning notices bearing Hukic's name and dated May 7 and 9, 1985), and notify the employ- ees in writing that this has been done and that the personnel action in question will not be used against them in any way. (e) 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. (f) If possible, post at the Jefferson Avenue and Franklin Park facilities of United Parcel Service copies in English, Spanish, Polish, and Serbo-Cro- atian of the attached notice marked "Appendix."3 If such posting is possible, copies of the notice, on forms provided by the Regional Director for Region 13, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained for 60 consecutive days in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If such posting is not possible, the Respondent shall mail to each employee who works for the Respondent at these facilities, or starts work there within 60 days after the first notice is mailed, a signed copy of the notice in that employee's native language. (g) Notify the Regional Director for Region 13 in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. ' 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. CONTRACT CLEANING MAINTENANCE 997 WE WILL NOT give employees the impression of surveillance over their union activity. WE WILL NOT discourage membership in Gener- al Service Employees Union, Local No. 73, Serv- ice Employees International Union, or any other union, by demoting or discharging employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer to reinstate Arthur Vasquez to the job from which he was unlawfully demoted and later unlawfully discharged and to reinstate Avdo Hukic to the job from which he was unlaw- fully discharged, or, if such jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges previ- ously enjoyed. WE WILL remove from our files any reference to the unlawful discrimination against Vasquez and Hukic and notify them that this has been done and that this personnel action will not be held against them in any way. WE WILL make Vasquez and Hukic whole for any loss of earnings and other benefits resulting from our unlawful discrimination against them, less any net interim earnings, plus interest. CONTRACT CLEANING MAINTENANCE, INC. Douchan Pouritch, Esq., for the General Counsel. Gary S. Laser, Esq. and David Lee, Esq., of Chicago, Illi- nois, for the Respondent. DECISION STATEMENT OF THE CASE NANCY M. SHERMAN, Administrative Law Judge. These consolidated cases were heard before me in Chica- go, Illinois, on 17 through 20 November 1986. The charge in Case 12-CA-25063 was filed on 15 May 1985, and the original complaint in that case was issued on 24 June 1985 . The charge in Case 13-CA-25145 (as correct- ed at hearing) was filed on 19 June 1985 . A consolidated complaint in both cases was filed on 18 June and amend- ed on 27 June and 18 November 1986.1 The complaint in ' Over Respondent's objection, a motion for leave to amend the com- plaint in additional respects was granted on 20 November 1986. The Feb- ruary 1987 posthearing brief of counsel for the General Counsel states that he "withdraws" this amendment, and that in December 1986 Re- spondent's counsel was notified of the General Counsel's intention in his brief to "withdraw" this amendment. No objection to such "withdrawal" has been advanced in Respondent's posthearing brief, which does not dis- cuss the "withdrawn" allegations. I take the foregoing statements by the General Counsel as constituting a motion for leave to amend the com- plaint by withdrawing the allegations added by the 20 November 1986 amendment. The motion is granted. See Sec. 102.17 of the Board's Rules and Regulations. its final form alleges that Respondent Contract Cleaning Maintenance, Inc. (counsel were assisted by two senior law students, Elizabeth Grapentine and Christing Naylor) violated Section 8(a)(1) of the National Labor Relations Act (the Act) by creating an impression among employees that their union activities were under surveil- lance and by threatening an employee with discharge be- cause of his union activities. The complaint further al- leges that Respondent violated Section 8(a)(1) and (3) of the Act by demoting and then discharging employee Arthur Vasquez; by discharging employee Avdo Hukic; and by refusing to hire employees Radmila Marsenic, Johnnie King, Francisco Flores, and Josef Skocz; all in order to discourage membership in General Service Em- ployees Union, Local No. 73, Service Employees Inter- national Union (the Union). On the entire record,2 including the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and Respondent, I make the fol- lowing FINDINGS OF FACT 1. JURISDICTION Respondent is an Illinois corporation, with an office and place of business in Chicago, Illinois. Respondent has at all times material been engaged in the operation of a janitorial service facility. During the calendar year 1985, a representative year, Respondent, in the course and conduct of such business operations, provided serv- ices within Illinois valued in excess of $50,000 for United Parcel Service (UPS). UPS is a business enterprise di- rectly engaged in interstate commerce. The Board has repeatedly exercised jurisdiction over UPS's operations for reasons other than its indirect outflow or indirect inflow.3 I find that, as Respondent admits, it is engaged in commerce within the meaning of the Act. I further find that assertion of jurisdiction over Respondent's op- erations will effectuate the policies of the Act. Siemons Mailing Service, 122 NLRB 81, 85 (1958). The Union is a labor organization within the meaning of the Act. 2 Although all of G .C. Exhs. 10 and 10a are physically in the exhibit folder, only part of them were offered and received into evidence. Al- though the brief of the General Counsel relies on certain portions that were not received, I have disregarded them in making my findings and conclusions. 2 See, e.g., United Parcel Service, 274 NLRB 667, 669-670 (1985), re- manded on other grounds sub nom. Garcia v. NLRB, 785 F.2d 807 (9th Cir. 1986); United Parcel Service, 268 NLRB 1097 (1984); United Parcel Service, 263 NLRB 616 (1982); United Parcel Service, 261 NLRB 1012, 1013 (1982), enfd. in part, vacated, and remanded in part 706 F.2d 972 (3d Cir. 1983), employer's petition for cert. denied 464 U.S. 960 (1983), the Board's petition for cert. granted, judgment vacated, and case re- manded 464 U.S. 979 ( 1983); United Parcel Service, 260 NLRB 11 (1982); United Parcel Service, 252 NLRB 1015, 1017 (1980), enfd. 677 F.2d 421 (6th Cit. 1982). 998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background 1. Respondent's labor relations history Respondent's president, Howard Boltz, founded Re- spondent's business 34 years ago at the suggestion of a business agent of the Union. Respondent had a bargain- ing agreement with the Union (the first labor organiza- tion with which Respondent ever had a bargaining agreement) for 25 years. Respondent had a bargaining agreement with a temporary "off-shoot" of the Union, and has had bargaining agreements covering all its Gov- ernment jobs in Chicago, Illinois, and in Washington, D.C. When Respondent first acquired a contract to clean UPS's Franklin Park operation (one of those involved here) about 1978, Respondent applied to its employees at that location Respondent's existing bargaining agreement with the Union; this was the first time that any unionized cleaning firm had performed cleaning work for UPS. Re- spondent has been a party to at least 30 union bargaining agreements. Apart from the charges in the instant case, no unfair labor practice charges have ever been filed against Respondent. 2. Respondent's takeover of certain UPS operations other than Northbrook Between 1977 (at the latest) and May 1984, a company called Admiral Maintenance performed the cleaning work at five UPS locations in the metropolitan Chicago area-namely, Franklin Park, Bedford Park, Addison, Jefferson, and Northbrook. Between 1 May 1984 and late April 1985, such cleaning work was performed by Chemco Corporation.4 The Chemco employees who worked at these locations were covered by a collective- bargaining agreement with the Union, effective by its terms between April 1984 and 30 April 1985. About the spring of 1985,5 Respondent submitted bids for all five of these locations. On 19 April, UPS advised Chemco that its cleaning contract was being terminated for all of these locations except Northbrook. About 20 April, UPS advised Respondent that Chemco was being terminated because UPS was dissatisfied with the quality of Chemco's cleaning , and that Respondent was being awarded the cleaning contracts at these four locations. Like Chemco's cleaning contracts covering the UPS fa- cilities, Respondent's cleaning contracts covering such facilities permitted UPS to cancel the contract on 7 days' notice. Respondent took over the cleaning work for the Jefferson location on 28 April; for the Bedford Park lo- cation on 29 April; and for the Franklin Park and Ad- dison locations on 1 May. UPS is a "union company," which regards it as neces- sary or advisable for its cleaning contractor to enter into a union contract regarding employees who work at UPS locations, and to work in harmony with the existing work force. Before signing these cleaning contracts, UPS had told Respondent that it had to work in harmony ' This is the spelling used in the transcript of testimony and in the briefs One of the exhibits suggests that the correct spelling is "KIMCO " 5 All dates hereafter are 085 unless otherwise stated with the Union. When Respondent learned that it was taking over these four locations, it so notified the Union by telephone, and further told the Union that Respond- ent was going to keep the same standards that the Union had in its bargaining agreement with Chemco, except that there would be no more lead persons. Respondent hired all the former Chemco employees who had been working at these four facilities. Further, except that Re- spondent did not pay a premium for a lead person, Re- spondent maintained the standards that had been ob- served under Chemco, including seniority, sick days, and (initially) a pay rate of $12.46 an hour. Respondent never received from UPS any evaluation of any individual's work under Chemco or under Respondent. B. Events Before 13 May 1985 1. Vasquez A few days before Respondent took over the Franklin Park facility, it was inspected by Frank Corona (Re- spondent's operations manager), Jack Sullivan (Respond- ent's vice president and sales manager), and Raymond Palmowski (Respondent's project manager), all of them admittedly supervisors within the meaning of the Act.6 UPS' maintenance supervisor at that site, between early 1985 and June 1986, was Michael Forti, who had also been UPS' maintenance supervisor at Northbrook for a few months when alleged discriminatee Arthur Vasquez was working there. Chemco's then cleaning crew at the Franklin Park facility consisted of Vasquez, Eddie Steele, Ursula Malinowski, and a nonunit employee whom the record identifies as "Christina." Toward the end of the cleaning employees' shift, about 6:30 a.m., Forti introduced Corona, Sullivan, and Palmowski to cleaning employees Vasquez and Steele. Palmowski said, "If you do good work, we'll keep you. If not, we fire you." Forti said that Vasquez and Steele were "probably two of our better workers," that there had never been any problems with them, and that every time Forti went to either of them with a complaint or a question, they were cooperative and attentive to the problem. Then Forti, Respondent's management representatives, Vas- quez, and Steele discussed what supplies were neeed, where they were kept, and what was to be done to solve consistent problems that had cropped up. Later that evening, Palmowski asked Steele what the employees' current wages were and appeared surprised at the answer. Palmowski said that if the Chemco employees at Franklin Park wanted to work for Respondent, they would have to come down that afternoon and fill out an application. They did so. All three unit employees were taken over by Respondent. About August 1985, Palmowski was discharged by Respondent, at least allegedly for poor work. During his discharge interview, he became "very mad " Corona testified that he believed Palmowski is the type of person who would be generally truthful if called to testify under oath, but that Corona would be concerned about Palmowski's veracity if called to testify in the instant proceeding, because Palmowski was very upset when Respondent terminated him I reject the General Counsel's conten- tion that Palmowski's failure to testify calls for an adverse inference against Respondent CONTRACT CLEANING MAINTENANCE My findings regarding Forte's remarks are based on a composite of credible parts of the testimony of Vasquez, who is the charging party and was called by the General Counsel, and Forte, who was called by Respondent. Sul- livan (admittedly a supervisor) and Steele were also called by Respondent, but were not asked about this con- versation. Corona, an admitted supervisor called by Re- spondent, denied being present in the Franklin Park facil- ity on 27 April 1985 (the date that Vasquez attached to this conversation). Corona, however, testified that he and Palmowski visited the Franklin Park facility on 30 April, before Respondent took it over, and that Corona then talked to Vasquez and Steele; nor did Corona deny that Forti made the remarks that Vasquez attributed to him. Forti testified that his remarks about Vasquez and Steele were based on the fact that they came to work and were cooperative, and that Forti had no way of knowing how well Vasquez performed his particular function. More- over, Forti testified that overall, he had been dissatisfied with Chemco's work. There is no evidence, however, that Forti drew these limitations to Respondent's atten- tion. 2. Hukic One of the Chemco employees whom Respondent took over at the Jefferson facility was Avdo Hukic, who had been performing cleaning work at the UPS facilities since 1977. During most of this period, he had been a group leader. Hukic had been a member of the Union since 1977, but had never been president, vice president, or member of the grievance committee, or anything else except a member. On 24 April 1985, while Chemco was still performing the cleaning work, Corona and Raymond Palmowski conducted a "walk-through" inspection at Jefferson. Corona testified that during this inspection he concluded that the floors (which at that time were being cleaned by Hukic) were scuffed and dingy and had a lot of black marks on them, and that "Right offhand" Corona could not recall noticing any other deficiencies.7 At the con- clusion of this "walk-through," Corona and Palmowski advised all the Chemco employees at that location that under Respondent everything would be basically the same, except that Respondent was going to select its own lead person. In Palmowski's presence, Corona told Hukic to fill out an application for employment with Re- spondent. Hukic did so on the following day, 25 April. That evening, Palmowski walked into the Jefferson fa- cility, noticed that employee Frank Sloan was not work- ing that night, and asked Hukic why. Hukic said that Sloan was taking a "personal day." Palmowski said, "How come?" Hukic said that "the contract" gave ev- eryone one "personal day" a year. Palmowski, who was "mad," said that Respondent was going to change "ev- erything," and that Respondent "has got its own people ° Russell Strickland, who in 1985 was UPS maintenance supervisor at Jefferson, credibly testified that in March 1985 he concluded that the floors had not been buffed nor swept and damp -mopped after buffing On 1 March 1985 he sent a memorandum so stating to UPS District Manager Edward Strempek There is no evidence , however, or claim that Strick- land ever so advised Respondent, or that Respondent saw this memoran- dum at any material time 999 who they are going to pay $3 or $4 an hour. Hukic said that the employees had a union contract. Palmowski said that Respondent was going to change unions, too. He told Hukic to come to the office the next day, 26 April. Hukic did come to the office on the next day and asked Palmowski what he wanted. Palmowski said that after Respondent took over the cleaning contract Hukic would no longer be a lead man, that he would have to clean furniture, and that Sloan would be cleaning floors. Hukic, who had been cleaning floors, said that because he had more seniority than Sloan, the contract prohibited Palmowski from thus compelling Hukic to switch jobs with Sloan. Palmowski said that he did not care about "your contract." Then, Hukic turned to Corona and said that Hukic had been cleaning floors for 8 years, that he had more seniority than Sloan, that Palmowski was re- quiring them to switch jobs, and that cleaning furniture gave Hukic a headache.8 Corona said, "We can't have an employee like you are. You should quit. You made too much money by Chemco." After Respondent took over the Jefferson contract on 28 April, Hukic was required to clean furniture and to wash walls; he testified that Respondent required him to perform more work than Chemco had required. He cre- dibly testified that on the nights of 6-7 and 7-8 May, he did the dusting, the spray wiping, and the glass cleaning as well as he had on previous occasions. About midnight between 8 and 9 May, and not long after Palmowski had entered the Jefferson facility, he gave Hukic an enve- lope. Hukic asked what it was. Palmowski said, "Open the envelope and read it. Tomorrow you get another one." Hukic asked him how he knew what was going to happen tomorrow. Palmowski said, "I know," and left. The envelope contained "Warning Notice #1," dated 8 May 1985 and signed by Palmowski. The notice stated as the reason: POOR PERFORMANCE OF WORK. 1. As per walk thru with UPS manager, Russell Strickland on this date (AM), the following chores were not done acceptably : dusting, spray wiping and glass cleaning.9 My findings regarding this Hukic-Palmowski conversa- tion are based on Hukic's uncontradicted testimony. Pal- mowski did not testify (see above fn. 6). Respondent contends that Hukic is unworthy of belief because the warning notice is allegedly corroborated by Strickland's testimony that after a walk-through at Jefferson, he told Palmowski that the quality of work was not acceptable, that Respondent had a problem, and that Palmowski was "to take care of it." Strickland, however, testified that during his May 1985 "walk-through" he checked not only the desks, telephones, and wastepaper baskets (all of which Hukic was supposed to clean), but also the floors (which Sloan was supposed to clean); and that Strickland did not name any individuals whose work was unaccept- 6 Hukic testified that he developed headaches from the constant bend- mg, and then standing, which were required by cleaning furniture There is no evidence, however, that he gave this explanation to Palmowski 9 The warning contains no rhetorical par 2. 1000 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD able; nor is there any evidence that he specified to Pal- mowski which tasks were being unacceptably performed. Nevertheless, Sloan received no warnings before Hukic's discharge, on 20 May, and Corona testified that Sloan's work was satisfactory during the first 2 weeks of May 1985. Moreover, although Corona testified that before he approved the 8 May warning notice , Palmowski said that he wanted to give Hukic a warning notice because Pal- mowski had had a walk-through with Strickland, Strick- land was not sure whether this walk-through preceded or followed 8 May. Hukic impressed me as an honest witness, and I accept his testimony about this 9 May conversation. Shortly before Hukic was scheduled to begin work on 9 May, Palmowski approached him and gave him "Warning Notice #2 ." This notice, dated 9 May, gives as the reason, "NOT COMPLETING WORK AS DI- RECTED: Rooms 101, 102 , 103, 104 downstairs not cleaned at all." 10 Palmowski said, "A lot of people cry on my name. You are going to cry, too." Hukic replied that he never cried, and would get some help from some- body. Then, and still before the scheduled start of his shift, he went to the office of UPS feeder manager Chuck Dwyer, who worked the same hours as Hukic and whose area of responsibility included all the rooms downstairs. Hukic asked Dwyer whether he had seen Hukic clean the downstairs rooms every day. Dwyer said yes, and asked what had happened . Showing him the warning letter, Hukic said that Supervisor Palmowski had given it to Hukic and had said that he did not clean rooms 101-104, all of which are in the downstairs area. Dwyer said that this was not true, and that Hukic had in fact cleaned them. Hukic asked whether Dwyer would be Hukic's witness, if needed. Dwyer said, "Any time." Dwyer credibly testified that Hukic had cleaned the rooms in question, to Dwyer's satisfaction, on 7 and 8 May and every other night . Dwyer, however, has never had any building maintenance responsibility and never made any comments to Respondent about Hukic's work on the shift in question . Moreover, although on 19 April UPS District Maintenance Manager Strempek had termi- nated Chemco's contract because Chemco's cleaning service failed to meet UPS standards, Dwyer testified that he would have been surprised if he had been advised in April 1985 that Chemco's housekeeping work was so inadequate that UPS decided to change contractors. Corona testified that before Palmowski issued the warning notice dated 9 May and received by Hukic that same day, Corona approved the notice . He further testi- fied that Palmowski said that UPS had had an audit that stated that "this work was not done. It was deficient . . . Hukic was supposed to correct the problem but, then when [Palmowski] went back to see if the problem was corrected, it wasn't."" I Further, Corona testified that to 10 Unlike "Warning Notice No 1," this second warning notice did not mention Strickland, who credibly testified that during the first 2 weeks of May, he made only one "walk-through" the exact date of which he could not recall Moreover, he testified that he could not recall whether, during this "walk-through," he had specifically mentioned these particular rooms I I As discussed below, a purported audit of the Jefferson facility was received in evidence as R Exh 1 . Hukic credibly testified that he had assist him in approving the warning , he used a document received in evidence as Respondent's Exhibit 1. Corona initially testified that he received this document from Palmowski on the morning of 8 May ; he later testified that "if I would have seen [the document] it would have had to be around May 9th ; I don't recall . . . I couldn't really say when I had seen it"; thereafter he testified that he "had a memory of' receiving it on 8 May; then testi- fied that he received it on 9 or 8 May; and eventually testified (while having before him both R. Exh . 1 dated 8 May and the writeup dated 9 May) to having received Respondent's Exhibit 1 on the morning of 9 May. This exhibit consists of a printed form of the kind ordinarily used by UPS to memorialize an audit of cleaning work, with certain handwritten entries, including the date of 8 May. Corona was not asked to explain how he interpret- ed the entries on this exhibit ; and as to the period cov- ered by the exhibit, I can conceive of no interpretation that would support the statement, on the 9 May warning slip, that these four rooms were not cleaned at all. t 2 For these and demeanor reasons, I do not credit Corona's tes- timony that in approving the 9 May warning he used Re- spondent's Exhibit 1. Also, because of the discrepancies between that document and the assertions on the 9 May warning to Hukic , I find that Palmowski did not in good faith base that warning on that exhibit . Accordingly, I find it unnecessary to determine whether Respondent's Exhibit 1 is authentic. 13 never seen it before This testimony aside, he was not asked whether Pal- mowski's alleged representations to Corona were true. 13 Corona and two UPS supervisors testified that a check mark indi- cates that an inspected operation was acceptable and an "X " indicates that it was not. If interpreted in accordance with this system, R Exh 1 would show that a total of about five cleaning operations in rooms 101 and 103 were acceptably performed, three of these were operations for which Hukic was responsible Some items under each of the four rooms are marked with an "X," which means either that the service in question was not performed at all or that it was not performed acceptably 13 UPS routinely provides the cleaning contractor with copies of all audits In accordance with UPS' normal business practice , it discarded in January 1986 its file copies of all audits made in 1985 , there is no evi- dence that Respondent, which received in June 1985 the original Board complaint regarding Hukic, ever asked UPS for any file copy of R. Exh. 1 During the investigation of the instant charges , which regarding em- ployee Peter Lysiak were dismissed by the Regional Office, Respondent provided the Regional Office with a UPS audit that was referred to in a warning notice specifying Respondent 's claimed reason for his termina- tion Corona testified that during the Regional Office's investigation of the charges, he never specified that Hukic was fired because of a bad audit, and never told the General Counsel that Corona had had R Exh 1 in his possession between May 1985 and early July 1985, when he gave it to Respondent's counsel Corona testified , in effect, that Respondent failed to provide R Exh 1 during the investigation because it was not mentioned in Hukic's warnings (although, as previously noted, Corona testified that he used the exhibit to assist him in approving the 9 May warning) UPS' investigation showed that R Exh 1 was not written by any of the UPS personnel whose jobs during this period included the preparation of audits Moreover, a first-page entry apparently purporting to show on the exhibit a performance rating of 25 percent regarding the material covered by the exhibit could not have been prepared in accord- ance with UPS' practice in ascertaining such a percentage , UPS' system shows a performance rating of about 45 percent . This "performance- rating" notation is made in colored ink, although the "X's" and check- marks were on the document when it was photocopied and Forti testified that Respondent's management usually waited a few minutes while UPS made copies of an audit CONTRACT CLEANING MAINTENANCE C. Alleged Interference, Restraint, and Coercion; the Alleged Unlawful Demotion of Vasquez When Respondent took over the janitorial work at the UPS Franklin Park facility on 1 May, the janitorial em- ployees, all of whom had worked there for Chemco, consisted of Vasquez, Steele, Malinowski, and Jose Fuentes. In addition to performing janitorial work, until 13 May Vasquez acted as group leader, a position he had also held under Chemco . His duties as such consisted of ordering and keeping up stock and what he described as "supervising" the rest of the employees; Respondent con- cedes that at no material time was he a supervisor within the meaning of the Act. Chemco had paid him a group- leader premium of 25 cents an hour; Respondent paid him and other group leaders the same as other unit em- ployees. 14 Steele testified that in his opinion, Vasquez' buffing was unacceptable because it missed spots. Steele further testified that on an unspecified date before 13 May, he told Palmowski that Steele and Malinowski were doing all the work, that Vasquez was not helping them, and that the workload was almost too much for Steele and Malinowski. Steele was not asked whether Palmowski replied; Palmowski and Malinowski did not testify (see above fn. 6). I do not credit the testimony of Steele sum- marized in this paragraph. Such testimony is difficult to reconcile with his further testimony that he did not com- plain about Vasquez to Chemco, regarded it as "fair" that Vasquez was a group leader (at a premium rate) under Chemco, and had no resentment at all against him, even though Vasquez was allegedly not doing any work, allegedly performed poor-quality work, and was junior to (and much younger than) Steele. Moreover, Steele at other points in his testimony admitted that Vasquez cleaned the dispatch building and the Fullerton building, and buffed in the Rose building (where Steele spent all of his working day). Furthermore, it is uncontradicted that when changing the work schedule of other members of the Franklin Park cleaning crew on 13 May (see above), Palmowski gave Steele the additional duties of group leader without changing his janitorial duties at all. About 13 May 1985 Howard Boltz, Respondent's president, received from the Union a telegram requesting a meeting on 15 May to negotiate a contract for Re- spondent's cleaning employees at UPS. The telegram stated, inter alia, "We are determined to protect [our members'] wages, working conditions and fringe bene- fits." As previously noted, Respondent was then paying such employees the $12.46 hourly rate set forth in the Union's expired contract with Chemco. Boltz testified to the belief that the prevailing rate for such work in the area was $8.20. Respondent's contract with UPS called for a specified fixed monthly payment from UPS to Re- spondent. On 13 May, alleged discriminatee Arthur Vasquez telephoned the group leaders at the various UPS build- ings and told them that Respondent's UPS employees were to meet at 8:30 or 9 a.m. that day at the union hall to discuss their contract situation with their union repre- 14 I discuss below part II,H,I,a, the basis for my finding that until 13 May 1985 Vasquez continued to act as group leader under Respondent 1001 sentative. This meeting was attended by 18 or 20 em- ployees, including all 4 of the employees who were then working for Chemco at Northbrook, and whom (the complaint alleges) Respondent discriminatorily refused on 24 May to hire for the Northbrook location, taken over by Respondent on 27 May (see below). During this meeting, Union Representative Edward Radik an- nounced that Chemco had signed a 2-year contract call- ing for a wage increase of 68 cents an hour . Vasquez said that Respondent's employees "couldn't hesitate too much longer, working without a contract," and that the em- ployees needed to have a contract signed "soon." Also at this meeting, alleged discriminatee Avdo Hukic ex- pressed concern at the fact that Respondent's employees were working without a contract, and further com- plained about the two warning letters that he had re- ceived. Further, employees Jan Guzik and Franciszka Guzik complained about warnings that Respondent had given them on 1 May. Among those who attended this meeting was employee Steele, who testimonially denied telling anyone in management what happened there. Operations Manager Corona testified that he did not recall any persons telling him about this meeting, and that he found out about it when Respondent received the Union's 13 May mailgram seeking a bargaining meeting. Corona further testified to having read and then signed a document that he described as an "affidavit," and that concludes with the language, "I have read the statement I fully understand its contents, and I certify that it is true and correct to the best of my knowledge . . . . Sub- scribed and sworn to before me . . . this 30th day of May, 1985. Robert Bell, Board agent, National Labor Relations Board," with the signature of Bell, admittedly the Board agent who investigated this case. This docu- ment states, inter alia: From about May 13 employees told us that they were having a union meeting . We had written sev- eral employees up, Avdo and the Guziks. Employ- ees wanted to know whether there would have been a contract, whether the union would have a contract with us. Over Respondent's timely objection, this material was re- ceived into the record to establish the truth of the con- tents.'5 After, but on the same day as the 13 May meeting, Vasquez reported to work at 10 p.m., his usual hour. About 11:30 p.m., while Vasquez was performing his work, employee Steele came up to him and told him that Palmowski wanted to see him in the office. Then, Steele led him to the office, where Palmowski was waiting. Pal- mowski told Steele to fetch the rest of the cleaning crew. After Steele had left the room, Palmowski re- marked to Vasquez, "You like to play dumb games .. . I tried calling you last night and let the phone ring for a half hour and you didn't answer.'s How is your Com- 15 See Croley Coal Corp, 280 NLRB 899 (1986), United Beef Co, 277 NLRB 1014 (1985). 16 Palmowski had telephoned Vasquez late in the evening of Sunday, 12 May, to ask him for the home telephone number of another Franklin Continued 1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD munist party doing? I hear you're a Communist leader." Vasquez, who has never been a member of a Communist party and had never discussed politics with Palmowski, said that Vasquez did not know what Palmowski was talking about. Palmowski said, "Well, I hear everything that goes down in the Union .... How did the Guziks and Avdo like their reprimands?" At this point, the rest of the cleaning crew, including Steele, came into the office. Then, Palmowski alleged to Vasquez that the floors had not been buffed in over a week. Vasquez said that he was following a written schedule calling for him to buff the offices twice a week.'' Palmowski went on to say that Vasquez was no longer the crew's group leader, that Steele would be the group leader from now on, and that the crew should go to Steele with any problems. Further, Palmowski trans- ferred to Malinowski some of the duties that had previ- ously been performed by Fuentes, and transferred to Vasquez some of the duties that had previously been per- formed by Malinowski. In addition, Palmowski instruct- ed Vasquez to do the buffing of the offices on a nightly basis. Also, Palmowski instructed Fuentes to buff the up- stairs floors on a nightly basis.' 8 No changes were made in Steele's janitorial duties. My findings regarding Palmowski's remarks to Vas- quez, although they were alone in the office, are based on Vasquez' uncontradicted testimony. Palmowski did not testify (see above at fn. 6). Corona corroborated Vas- quez' testimony that on the following day, 14 May, he told Corona that Palmowski had called Vasquez a Com- munist because he had attended a union meeting on 13 May, and that if Palmowski could not address him in a "business manner," he would prefer that Palmowski not talk to him at all. Moreover, Corona testified that he told Palmowski about Vasquez' telephone call. Further, Steele testified that after he became leadman, but before Vasquez' discharge on 21 May, Palmowski remarked to Steele that Palmowski had heard that Vasquez had told Corona that Palmowski had called Vasquez a Commu- nist. Because of Steele's and Corona's testimony in this respect, and demeanor considerations, I credit Vasquez' testimony about what Palmowski told him privately, not- withstanding Respondent's contention that such testimo- ny should be discredited because Steele testified that the group-leader change was announced to the employees while they were in the lunchroom. Park employee whom Palmowski wanted to work at the Addison loca- tion 17 As previously noted, this conference took place on 13 May, a Monday. Under Vasquez' buffing schedule, the upstairs offices would not have been buffed since Thursday , 9 May, and the downstairs offices would not have been buffed since Wednesday, 8 May 18 My findings in these two sentences are based on Vasquez' undemed testimony Vasquez described the building where he and Fuentes per- formed these duties as the "main building." Vasquez' other testimony in- dicates that he habitually refers to the Fullerton building as the "main building " Steele's testimony refers to the Rose building as the "main building " Both men testified that the building they respectively de- scribed as the "main building" was not the building equipped with an alarm system D. The Allegedly Unlawful Discharge of Hukic During a bargaining session on 15 May, the Union asked Respondent to sign an agreement that increased direct wages by $1 an hour, to $13.46, and was otherwise identical to the Union's expired contract with Chemco. As previously noted, Company President Boltz believed that the prevailing wage in the area for such work was $8.20 an hour. He told Union Representative Radik that Respondent was not willing to pay any more than that. Corona credibly testified at one point that during this 15 May bargaining session, Radik stated that during the 13 May union meeting Hukic, among others, had protested some writeups he had received. Corona, however, else- where testified that Radik did not name the employees who attended the meeting or who there complained about their writeups, and that Corona did not know whether Hukic had spoken out at the union meeting. On the following day, 16 May, Corona telephoned Radik that the wages in the Union's proposed contract were too high. Radik said that he had to have an answer by the next day, 17 May. Corona said that on that day Re- spondent would notify Radik whether it would go along with the Union's proposal. Corona testified that the decision to discharge Hukic was made by himself and Palmowski, and was made on Thursday, 16 May, or Friday, 17 May. Corona further testified that he based his decision on a report from Pal- mowski that Hukic's "work hasn't improved since the job class-since he was changed and the work wasn't getting done properly." There is no evidence that Huklc had been criticized for his work since receiving the warning notice, dated 9 May, which was allegedly, but not in fact, based on Respondent's Exhibit 1. By telegram dated 17 May, Boltz advised the Union that its proposed contract was "unacceptable." He testi- fied that by that time he was fearful of a strike. By mail- gram sent that same day to all the unit employees, Corona stated that Respondent "does not recognize the Union . . . at your job location. If you choose to contin- ue employment with us you must be appraised [sic] of our company's wages and working conditions that become effective Sunday May 19, 1985. Contact our office Saturday by phoning . . . for this information."'9 Among the employees to whom Corona sent this 17 May mailgram was Hukic, whom Corona and Palmowski al- legedly decided on 16 or 17 May to discharge. Corona testified that on 17 May, he and Palmowski asked em- ployee Maria Zawartka, who at that time was working for Respondent at another location, whether she "wanted that job" and that she said, "Yes." Zawartka, who at the time of the hearing still worked for Respond- ent, did not testify. Corona testified that Zawartka had 18 Corona testified that Respondent did not consult with an attorney before drafting and sending this letter, and that Respondent thereafter continued to bargain with the Union Neither the charges nor the com- plaint contains an 8(aX5 ) allegation For this reason, and because the pro- priety of Respondent's bargaining with the Union was not litigated before me, I reject the General Counsel's contention (Br at 11 ) that union animus and a discriminatory motive are shown by "Respondent's with- drawal of recognition," and the fact that the employees' wage cut was effected unilaterally CONTRACT CLEANING MAINTENANCE to be trained for Hukic's job, and that 19-20 May was the earliest shift during which she could be trained. On 18 May, Hukic received his copy of the 17 May mailgram to employees. Thereafter, on 18 or 19 May, he telephoned Respondent's office and spoke to President Boltz. After identifying himself, Hukic asked what the telegram meant . Boltz said that from then on, Respond- ent was going to pay Hukic $8.20 an hour, rather than the $12.46 he had been receiving. Hukic said, "We've got a contract with union. You can't destroy union." Boltz said , "Yes, I can"; and asked whether Hukic was still coming to work. Hukic said that he thought so. Boltz said that the conversation was being tape recorded. Hukic said that he did not care. He went on to say that on the following Monday, 20 May, he was going to talk to the Union, and, if necessary, to the Labor Department and "Washington, D.C." Boltz said that this was a good idea. I o On Sunday evening, 19 May, Palmowski drove Zawartka to the Jefferson Avenue facility. That evening, both Sloan and Hukic were working there. Palmowski told Hukic, "As of tonight, [Zawartka] is going to work with you. You have to teach her tonight, show her how and what she has to do." Further, Palmowski made cer- tain representations to Hukic about how much Boltz al- legedly had paid for recording on Saturday the tele- phone calls made in response to the mailgrams . 2 t In ac- cordance with Palmowski's instructions, Hukic showed her the work. Although teaching new employees had been among Hukic's duties as group leader, he was no longer a group leader. Zawartka is Polish-speaking. Pal- mowski speaks Polish and knew that Hukic, although ethnically Yugoslavian, is able to speak Polish. The record fails to show whether Sloan can speak Polish. The shift worked by Hukic, Sloan, and Zawartka ended at 6:30 a.m. on 20 May. About 8:30 or 9 that same morning, about 15 people, including Hukic and Vasquez, attended another union meeting. The employees showed to the union representatives the 17 May mailgrams that the employees had received. The union representatives expressed surprise at the mailgrams, of which these rep- resentatives had not been informed. The employees also told the Union about the 30-percent cut in their wages. Radik said that the employees could strike if they wanted to, but that they should wait until the Union sent out strike notices to Respondent, the UPS, and the 20 My findings in this paragraph are based on a composite of credible parts of the testimony of Hukic and Boltz Boltz testified that this tele- phone conversation was initiated by him. He further testified that apart from initially stating (in response to Boltz' alleged inquiry) that Hukic had not received the mailgram, Hukic said nothing at all, Boltz specifical- ly denied that Hukic said he would check with the Union Because the telegram did not specify the employees ' future wage rate, and because Hukic has a limited command of English (which is not his native lan- guage), I regard his version of the conversation as more probable than Boltz' version Further, because Boltz admittedly never advised Hukic that the tapes of this conversation had been erased by reuse, Hukic had every reason to believe, when he testified, that the tape would impeach any misstatements by him regarding the conversation Moreover, Hukic's demeanor impressed me more favorably than did Boltz' Accordingly, I credit Hukic 21 It is unclear whether the $100 figure given by Palmowski referred to $100 per call, $100 for the calls made to or by Boltz (about 3), or $100 for all the calls made by any management personnel ( 14 at most) 1003 Teamsters Union. Meanwhile, Radik said, the employees should go to work. Vasquez expressed the view that a strike would be the employees' only choice in the matter. Steele, who attended this meeting, testified that he never told anyone in management what happened there. The record fails to show whether Zawartka attended. Corona testified that between 10 and 11 a.m. on 20 May, Steele, Hukic, and several other employees tele- phoned Corona's secretary (who noted these calls on a memo pad) that they were going to come to work and that the Union had told them to come to work if they wanted to keep their jobs. On 20 or (more likely) 21 May, Respondent received from the Union a mailgram, dated 20 May and bearing the hour of 2:14 p.m. eastern standard time (that is, 1:14 p.m. central standard time and 2:14 p.m. central daylight time), which stated, "Since you refuse to recognize the existing contract . . . we are hereby notifying you of impending strike action."22 Corona testified that on 20 May, at an hour that he was not asked to give, he asked Zawartka what she thought of the job, and again asked her whether she wanted it; and that she again said yes. Corona further testified that, thereafter, on a date and at an hour he was not asked to give, he told Palmowski to terminate Hukic. Shortly after 4 p.m. on 20 May, Palmowski telephoned Hukic and, without giving him a reason, told him that he was fired. Thereafter, Zawartka performed Hukic's job at an initial rate of $5 an hour. Corona testified that he visited the Jefferson facility on at least two occasions after Respondent took it over on 28 April 1985, and that he observed deficiencies in the cleaning of both the floors and the furniture, which were the respective responsibilities of Sloan and Hukic before Hukic's discharge. The record fails to show whether these visits were made before or after Hukic's discharge. E. The Allegedly Unlawful Discharge of Vasquez 1. Sequence of events About 2 a.m. on Friday, 17 May, Palmowski handed Vasquez an envelope and said, "Welcome to the Compa- ny." The envelope contained a "Warning Notice #1 dated 15 May, signed by Palmowski and stating that a copy had been sent to Corona. The warning stated, in part, "Poor peformance of work, especially buffing. You have five days to bring your work up to the degree of cleanliness expected by UPS . . . . You spend too much time driving electric cart." On an undisclosed date before 13 May, UPS Maintenance Manager Forti had complained to Palmowski that Vasquez was using an electric cart that was needed by UPS personnel to do their own work. On 1 May, however, Corona had seen Vasquez use an electric cart to move supplies for Re- spondent. Moreover, on undisclosed dates before 17 May, Vasquez had used the electric cart to drive Pal- 22 My finding that Respondent likely did not receive this mailgram until 21 May is based on Boltz' testimony that it was on this date that he began calling the Union to ask, "What does it mean, what do you want to do, we are always ready to sit down and talk " Moreover, Corona at one point testified that this mailgram arrived in the morning mail on 21 May (see below, part II,E,2,c) 1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD mowski to his car in the parking lot. Nonetheless, before Palmowski gave Vasquez this document, nobody from Respondent, UPS, or Chemco had ever told him not to use the electric cart, which he had been using to shuttle supplies between the buildings and to haul garbage.23 About 5:30 or 6 a.m., Forti came into his office. Vas- quez asked him if there was a problem in the building. Forti said that there had been a few problems, but noth- ing particularly serious.24 Vasquez showed him the writ- ten warning and asked whether Forti thought Vasquez was doing a good job. Forti said that although he him- self had no problems with Vasquez' work performance, Forti did not really know whether Vasquez was doing a good job individually, because UPS audits covered the entire building or a sampling of the entire building, and covered the service and not the individual. Forti went on to say that Vasquez was obviously having a serious prob- lem if his employer had gone to the extent of writing him a warning letter; and that when Forti got to that point with one of his own employees, that employee was in a serious situation and should at least try to work it out with his supervisor. Forti further said that he had heard (from a source he did not give, so far as the record shows) that Respondent was trying to build a case against Vasquez to terminate him; and expressed the opinion that the warning notice was "their start of build- ing their case."25 Regarding the electric cart matter, Forti said that UPS had been advised, for insurance rea- sons, not to permit outside "vendors" to use equipment such as electric carts, and that the electric cart had to be kept on a battery charger when UPS personnel were not using it so that the cart would be usable when they needed it again. Forti suggested that Vasquez use one of the UPS' pushcarts instead. Vasquez worked two more shifts for Respondent (17- 18 and 20-21 May), during which Corona visited the Franklin Park facility at least once. He testified that during the visits, he noticed that "basically, [Vasquez'] buffing was down." During the visits, Vasquez ignored Corona's "hello" and walked on. On previous occasions, Vasquez had been "real friendly" or, at least, had said hello. Corona testified that to him, Vasquez' conduct in this respect showed "a definite attitude change." When asked whether Corona had a conversation with Pal- mowski after 15 May about Vasquez' work, Corona testi- fied, "I know we were discussing it. I can't remember anything specific, what he was saying, but I knew he 23 Steele testified that "every time I would look up . I would see" Vasquez riding the electric cart. Steele further testified that concerning his alleged complaint to Palmowski before 13 May about a heavy work- load, Steele told Palmowski that Vasquez "was just riding around, he was doing more talking and riding and we were doing the work." I do not accept this testimony, for the reasons set forth concerning Steele's general testimony about his alleged complaints regarding Vasquez (see above, part II,C) 24 This finding is based on Forti's testimony that he had "probably" received "a few" complaints and that he relayed them to Pahnowski, and on Vasquez' testimony that Forti did not say that the Franklin Park audits showed the work there was bad and needed improvement. 25 My finding in this sentence is based on Vasquez' testimony. When asked whether Forti had told him that Forti thought Respondent was doing something wrong in writing Vasquez up, Forti replied, "Not that I can remember." This testimony aside, Forti was not asked about the re- marks referred to in the sentence to which this footnote is attached was talking about an attitude change and that the work wasn't really up to par, you know, for the job itself." Early in the morning of Saturday, 18 May, Vasquez received a telephone call from Company President Boltz, who asked him whether he had received a copy of the 17 May mailgram. When Vasquez said no, Boltz told him that the conversation was being recorded, and then read him the mailgram, which (as previously noted) states that Respondent "does not recognize the Union" and, in effect, that Respondent was changing the employees' wages. Then, Boltz said that if Vasquez wanted to work for Respondent, he would have to work under Respond- ent's conditions. Boltz asked him whether he was sched- uled to start his workweek on Sunday or Monday night. Vasquez said that he was scheduled to start on Monday, 20 May. Boltz said that Vasquez had as late as Monday afternoon to contact Respondent and let it know wheth- er he was coming to work under these conditions. Vas- quez said that he had no remarks to make until he spoke to his union business representative. Boltz testified that during this conversation, Vasquez was somewhat surly and gruff.26 As previously noted, at a union meeting attended by Vasquez and Steele on the morning of 20 May, Vasquez advocated a strike for a new contract, and union repre- sentative Radik said that strike notices would be sent out. Also on 20 May, Respondent received Vasquez' initial charge, alleging discrimination against him since about 13 May.27 Boltz testified that receipt of this charge was quite a shock to him. On the evening of 20 May, a Monday, Vasquez reported to work at his usual hour of 10 p.m. This was Vasquez' first scheduled shift after his conversation with Boltz. Vasquez testified that an hour or two after the shift began, Palmowski told him to return to his regular buffing schedule, which was buffing the upstairs offices on Tuesdays and Thursdays and the downstairs offices on Mondays and Wednesdays.28 After Vasquez had acknowledged these instructions, Pal- mowski walked out the door.29 About 2 or 2:30 a.m., while Vasquez was working up- stairs in the dispatch building, Steele entered that build- ing and called him. Vasquez came down the stairs and 26 My findings regarding the Vasquez-Boltz conversation are based on a composite of credible parts of their testimony. Boltz testified at one point that as of 21 May, he did not know that Vasquez had threatened to go to the Union about the cut in his wages. Boltz, however, elsewhere testified that during this 18 May conversation , "I believe" or "I think" that Vasquez said he would check with the Union and see what it ad- vised him to do. Moreover, a portion of Boltz' prehearing statement (re- ceived without objection for purposes of impeachment or corroboration) states that Vasquez "said he would check with his union . 'I don't know what I'm going to do until I talk with the Union."' Furthermore, because Boltz admittedly never told Vasquez that the tapes of this conversation had been erased through reuse, Vasquez, when he testified as the first witness, had every reason to believe that these tapes would impeach any misstatements by him about this conversation , including his testimony that he said he would speak to the Union 27 The receipt was signed by Corona's wife, who works as a secretary in the same suite of offices as her husband and Boltz. 28 Vasquez testified that this assignment was in the "main building" (see above, fn 18). 29 My findings regarding the Palmowski-Vasquez conversation are based on Vasquez' uncontradicted testimony, which I credit for the rea- sons stated below part II,E,2,a Palmowski did not testify (see above, fn. 6) CONTRACT CLEANING MAINTENANCE 1005 sat down. Steele asked him to cut some corners on his regular work and buff the floors upstairs. Vasquez said that he was already cutting as many corners as he could to perform all of his regular work assignment. He said that if Steele wanted him to, he would stop performing his regular work and buff the upstairs floors for Steele. Steele said that he would get these floors buffed by em- ployee Fuentes, whose regular job consisted of the buff- ing in question3° and whatever else Steele wanted him to do. It is undisputed that Steele did in fact have Fuentes perform the work that Steele had asked Vasquez to do. My findings in the foregoing paragraph are based on a composite of credible parts of Vasquez' and Steele's testi- mony. Steele testified that he told Vasquez to buff only in front of the "bosses' office," an 8-minute job, to which Vasquez replied that he would do it if he had time; and that Steele did not say he would have Fuentes do the job. For demeanor and other reasons discussed below, part II,E,2, I do not credit the foregoing testimony by Steele. I do not accept the contention in Respondent's brief that Steele's version of this conversation should be accepted because Vasquez initially testified (although he withdrew this testimony on cross-examination) that the conversation took place in the Rose building. I am unable to perceive why he should believe that this latter testimony (and not his corrected testimony) would add credence to his testimony that at that time he had 2-1/2 or 3 hours' work to do in the Rose building, as well as 1- 1/2 hours of work to do in the dispatch building.31 As previously noted, on 20 May or in the morning of 21 May, Respondent received a telegram from the Union "notifying you of impending strike action." Corona testi- fied that Respondent thereupon advised UPS of the "im- pending strike" and that UPS directed Respondent, if there was a strike, to use a particular door. He went on to testify that on 21 May he or Sullivan called all the employees to ascertain whether they were coming to work that night or were going to strike, and that all em- ployees reached by management said they were coming in. About 3:30 p.m. on 21 May, Corona telephoned Vas- quez, said that Corona had heard that "you" were sup- posed to go on strike today, and asked whether Vasquez was going to work. Vasquez said that he had not heard anything about it, and planned to be at work as sched- uled. Corona asked him to use the side entrance if it were still open when he arrived.32 About 15 or 20 minutes later, Vasquez received a tele- phone call from Boltz. Boltz said that he had received some complaints that the floor had not been buffed. Vas- quez said that Palmowski had told him to follow the schedule of buffing the upstairs on Tuesdays and Thurs- days and the downstairs on Mondays and Wednesdays. 30 Regarding which building was involved, see above, fns. 18 and 28. 31 My ultimate determination in this case is in no way affected by whether Vasquez was in fact too busy, or sincerely believed he was too busy, to perform the task Steele asked him to do. 32 Regarding the date and substance of this conversation, my findings in this paragraph are based on Vasquez' and Corona's mutually corrobo- rative testimony. As to its hour, my finding is based on Vasquez' testimo- ny. I do not accept Corona's testimony that the conversation occurred about 10 or 11 a.m. As discussed below, part II,E,2,c, Corona's recollec- tion of the sequence of events on that day was confused in the extreme. Boltz said that this was "aside from the point," and that he was "still going to have to terminate your employ- ment."33 Boltz testified that after receiving the Union's "impending strike action" telegram, he tried three times on 21 and 22 May to call the Union about "what does it mean, what do you want to do, we are always ready to sit down and talk"; but that he received no response. Vasquez had started to work under Admiral as a jani- tor at a UPS facility, and was taken over by Chemco when it took over the UPS cleaning. While employed by these two firms, he had never received any disciplinary actions, such as warnings or suspensions . On 14 April 1986, almost a year after Respondent discharged him, he was reemployed by Admiral at $5 an hour (that is, $10,400 a year for 52 weeks of 40 hours each). By the time of the hearing in November 1986 he was receiving $23,000 a year as a field supervisor. 2. Reasons for credibility findings; Respondent's evidence regarding the events on the day of Vasquez' discharge a. As previously noted, Vasquez testified that at 10 or 11 p.m. on Monday, 20 May, Palmowski told him to return to his former schedule of buffing the upstairs of- fices on Tuesdays and Thursdays and the downstairs of- fices on Mondays and Wednesdays. Steele testified with- out objection or limitation that about 10:30 or 11 that same evening, Palmowski told Steele that Palmowski had told Vasquez that he had to buff upstairs, and told Steele to "make sure that he does it" (cf. cases cited below at fn. 39). Palmowski did not testify (above at fn. 6). Steele went on to testify that later during that shift, he told Vasquez that "the upstairs hallway near the bosses' office, had to be buffed," a job that (according to Steele) would take 5 to 8 minutes and that Fuentes in fact per- formed before the shift ended. Moreover, Steele went on to testify that Palmowski telephoned Steele at home on the morning of 21 May to find out whether Vasquez "buff[ed], like I told him," and "got mad" when Steele said that the job had been done by Fuentes. I think it un- likely that Palmowski would have been so concerned at having a 5- to 8-minute job performed by Vasquez (or any other particular employee), that Palmowski would have told Vasquez to perform it, then told his leadman to see that Vasquez did it, then telephoned the leadman at home to find out whether Vasquez did it, and got "mad" when advised that someone else had done it. Moreover, there is no evidence that when asking Vas- quez to perform the buffing job on 21 May, Steele made any claim that he was relaying instructions from Pal- mowski. Accordingly, and for demeanor reasons, I credit Vasquez' testimony that the job Steele asked him to per- form on 20 May was buffing the upstairs floors, and dis- credit Steele's testimony that the job consisted merely of buffing in front of the "bosses' office." For similar rea- sons, I do not credit Steele's testimony that on 20 May, Palmowski told Steele to make sure that Vasquez obeyed 58 My findings regarding to the substance of this conversation are based on Vasquez' testimony. For reasons discussed below, part II,E,2,d, I do not accept Boltz' somewhat different version. 1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Palmowski's instructions that "he had to buff upstairs," and that on the morning of 21 May, Palmowski re- proached Steele by telephone because he had not seen to it that Vasquez buffed in front of the manager's office. Further, because of my fording regarding what Steele asked Vasquez to do, and for demeanor reasons, I credit Vasquez' testimony about what Palmowski told him on 20 May. Finally, because of my finding that Vasquez otherwise gave an accurate account of his conversation with Steele on 20 May, because Steele admitted that Fuentes in fact performed the work Steele asked Vasquez to do, and for demeanor reasons, I credit Vasquez over Steele regard- ing their 21 May conversation (to the extent that their testimony differs), including Vasquez' testimony that Steele said he would have Fuentes perform such work. I do not agree with Respondent that Vasquez' testimony in this respect is impeached by his failure to tell this to Boltz when he told Vasquez, during the discharge con- versation, that the floor had not been buffed. Vasquez obviously thought that Boltz was referring to Vasquez' failure to buff the offices, which Palmowski had re- moved from his work schedule for the preceding shift, rather than Vasquez' failure to perform the buffing job that Steele told him Fuentes would perform, which Fuentes did perform, and which was on Fuentes' regular work schedule. b. On 21 May, Steele left the Franklin Park facility at 6:30 a.m. and drove home, where he arrived at 7 or 7:15 a.m. He testified that later that morning, on his home telephone, he had a conversation with Palmowski that Steele initially timed about 8 a.m. and later timed as oc- curring at an hour that enabled him to reach Respond- ent's office, a 10-minute drive from his home, by 8:30 or 9 a.m. Steele testified that during this conversation, Pal- mowski asked him whether Vasquez had performed the work that Steele had told him to perform, Steele said no, and Palmowski told him to come down to the office to write Vasquez up. Although at certain points Steele ex- pressed some uncertainty about who initiated this call, he mostly testified that Palmowski called him, testimony that leaves unexplained how Palmowski acquired the al- leged suspicion that the work in question had been per- formed by an employee other than Vasquez. 34 On direct examination, Steele testified that he remained at home between his arrival at 7 or 7:15 a.m. and his conversation with Palmowski on Steele's home telephone. On cross- examination, however, he testified that between about 7:45 a.m. and this telephone conversation, which at cer- tain points in his testimony he timed as about 8 a.m., he drove his wife to her job in the Loop (Chicago's central business district), a round trip of 8 or 9 miles on an ex- pressway in rush-hour traffic. 34 Steele testified that during this telephone conversation, Palmowski said "to meet him down to the office, that he would be down there about 8.30 or 9 o'clock." Although such testimony strongly implies that Pal- mowski was not telephoning from Respondent 's Chicago office, and al- though Palmowski's job required him to visit the various locations where Respondent performed cleaning work, Steele was not asked to explain how, if he initiated the call, he knew where to reach Palmowski by tele- phone Respondent's office doors are not unlocked until 8 :30 am at the earliest Steele testified that in Respondent's office on 21 May, and sometime between 8:30 and 9:45 a.m., he related to Palmowski the incident (earlier that morning) when Steele had asked Vasquez to perform an additional buff- ing operation; and drafted, signed, and gave to Pal- mowski the following "Warning Notice #2" to Vasquez, dated 21 May and stating, "You were advised that the buffing must be done in front of managers [sic] office (long corridor) and you did not do this work." Steele testified that during this conversation in Respondent's office, he told Palmowski that Vasquez "refused" to per- form the work; and that during Steele's telephone con- versation earlier that morning, he told Palmowski that Vasquez "wouldn't do it." I do not credit Steele's testi- mony in these respects because no such averment is in- cluded either in the "Warning Notice #2" or in Steele's testimonial account of his conversation with Vasquez. c. Corona testified that on the morning of 21 May, he was told (1) that about 10:30 or 11 p.m. on 20 May, Pal- mowski had told Vasquez to do "some buffing of the second floor of the UPS area";35 (2) that about 3 hours later, Steele had "also" told Vasquez about "buffing this area upstairs on the second floor landing;" and (3) either that "he didn't do it" or that he "refused to do it."36 When asked who told Corona this, he testified, "I either learned it from Eddie Steele when he came in for the writeup or I learned it from [Palmowski] when he came in earlier" (emphasis supplied). Steele did not testify to conversing at the office that morning with anyone but Palmowski. Steele testified that before leaving the office that morning, he gave the signed writeup to Palmowski; that when Steele left the office, "I suppose [the writeup was on somebody's desk or in the hands of Mr. Pal- mowski;" that Steele did not know, when he left the office, whether Corona was there; and that Steele prob- ably left about 9:30 or 9:45 a.m. Corona testified that he did not reach the office until about 10 a.m. on 21 May, and that he found warning notice 2 on his desk when he arrived.37 He did not testify that he conversed with Pal- mowski before reaching the office that morning. More- over, Corona initially testified that he and Boltz were in Boltz' office when Corona first learned of the Vasquez incident, and further testified that Boltz did not come into the office that day until after Corona's arrival about 10 a.m. On direct examination, Corona initially testified that on his initially receiving a report in Boltz' presence about the Vasquez incident, he relayed the report to Boltz, who said that Vasquez "can't really do this" and immediately tried to telephone him. On the following day, but still on direct examination, Corona testified that he saw the warning notice 2 about 10 a.m. on 21 May; as The only direct evidence regarding what Palmowski told Vasquez that day is Vasquez' credible testimony that Palmowksi told him to return to his former schedule, which required less buffing . According to Steele's discredited testimony, Palmowski told him that Palmowski had told Vasquez "that he had to buff upstairs." ae As previously noted, the warning notice #2 refers to "buffing in front of managers office (long corridor)," and states that Vasquez "did not do this work." See also below at fn. 38 87 In contending that Corona vaned in his testimony about the hour of the day when he first saw this document , the General Counsel misreads the portions of the testimony on which he relies. CONTRACT CLEANING MAINTENANCE that he then proceeded to do his normal work; that "sometime that morning, I went into [Boltz'] office and discussed" that warning notice; that "Through our dis- cussion of this writeup and what happened, he decided to fire Vasquez"; and that Boltz thereupon tried to tele- phone him. On cross-examination, Corona initially reiter- ated that he and Boltz discussed the writeup. He testi- fied, however, "I told him [Vasquez] refused to work; whether or not I mentioned to [Boltz] that Vasquez was written up, that I don't know";38 and that Corona did not recall whether Boltz said he was going to fire Vas- quez. Although Corona testified that Boltz knew about the strike notice before trying to telephone Vasquez, and testified at one point that Corona's alleged discussion with Boltz about Vasquez began before Respondent at least allegedly received the Union's strike notice in the mail on 21 May after 10 a.m., other portions of Corona's testimony about this alleged discussion make no refer- ence to any break during which Boltz learned of the strike notice, and Corona allegedly called Vasquez to as- certain if he was nonetheless coming to work that day (see above at fn. 32). Corona further testified that after Boltz' alleged unsuccessful effort (in Corona's presence) to telephone Vasquez, Boltz wrote Palmowski a note telling him to fire Vasquez that night if Boltz had not yet reached him. Corona testified that his alleged conversa- tion or conversations with Boltz about Vasquez on 21 May occurred in the morning of that day. Respondent's counsel did not ask Boltz to testify about the decision to discharge Vasquez, and the record con- tains very little testimony from Boltz about this matter. No evidence contradicts Vasquez' testimony that Boltz discharged him by telephone shortly after 3:30 p.m. on 21 May, more than 3 hours after the alleged Corona- Boltz conversation testified to by Corona.39 A prehear- ing statement by Boltz about Vasquez' discharge (see below part II,E,2d) avers that 5 minutes elapsed between certain representations to Boltz by Palmowski, which al- legedly triggered Boltz' discharge decision, and the tele- phone call when Boltz discharged Vasquez. Neither Boltz' very skimpy testimony about Vasquez' discharge, nor the portions of Boltz' statement received into evi- dence, aver that before discharging Vasquez, Boltz con- sulted Corona, saw the alleged writeup about Vasquez allegedly prepared on 21 May,40 unsuccessfully tried to telephone him, or wrote a note to Palmowski (who ac- cording to Boltz' statement had talked with Boltz only 5 minutes before Boltz reached Vasquez) telling Pal- mowski to discharge Vasquez; nor does Respondent con- tend that the unreceived portions of that statement con- tain any such averments. 38 As discussed below, the wnteup did not state that Vasquez had re- fused to do any work Nor is there any evidence that Vasquez had in fact done so R Br at 21 reads Corona's testimony as attributing to Boltz the statement that Vasquez "refused to do any work" 99 At one point, Corona testified without objection that at 3 or 4 p in on 21 May Boltz told him, in effect, that Boltz had fired Vasquez by tele- phone in the afternoon of 21 May (see Tr 398, 441) See American Rubber Products Corp v NLRB, 214 F 2d 47, 52-53 (7th Cir 1954), Alvin J Bart & Co, 236 NLRB 242, 243 (1978), enf denied 598 F 2d 1267 (2d Cir 1979), Today's Man, 263 NLRB 332 (1982) 40 Boltz' reference at Tr 251 to "a complaint written up by Steele" describes Boltz' actions and mental processes after Vasquez' discharge 1007 d. Regarding Vasquez' 21 May 1985 discharge, a por- tion of Boltz' statement to Board investigator Bell on 30 May 1985, which portion was received in evidence with- out objection or limitation, states. On May 21, I got a call from a woman who runs Franklin Park for UPS. She complained that the buffing had not been done two nights in a row. Our contract calls for daily buffing. Around that time, Raymond [Palmowski] came into the office. He told me that he had told Steele to tell Vasquez that he had to buff Monday night. I thought to myself, Vas- quez thinks the Union can protect him, and he's going to ruin me with UPS. I thought he's not doing the work because he wanted Admiral to get the contract again [see supra Part II E 1]. Five min- utes after talking to Raymond I called Vasquez and fired him. I told him he had to do the work. He said Raymond told me to go back to the old work schedule. I said, "What old schedule?" I took it as an excuse and fired him. Regarding the "call from a woman who runs Franklin Park for UPS," Boltz testified that the call was from a woman whose voice he did not recognize and who did not say she was calling about Franklin Park. Boltz went on to testify that he received this call in the morning, and that "later in the day," when he learned where the buffing had not been done, he "took it for granted" she had called from Franklin Park. At that time, UPS' only female maintenance supervisor worked in UPS' Addison facility. Boltz testified that he "asked around and nobody knew" who this woman was; and that between the June 1985 issuance of the complaint regarding Vasquez (about 6 weeks after he filed his initial charge) and Palmowski's discharge about August 1985, Boltz "never did get to ask [him] if he had left a message for someone to call. I never got to that." Regarding the Tuesday complaint from Boltz' caller that buffing had been omitted for 2 days in a row (that is, Sunday night and Monday night), I note Vasquez' uncontradicted testimony that on the preceding Saturday, 18 May, he told Boltz that Vasquez was not scheduled to work on Sunday night. Corona's testimony about his alleged discussions with Boltz on 21 May before Vasquez' discharge does not refer to any sus- picion that Vasquez' motive for his alleged nonperform- ance of work was a desire for Admiral to get the con- tract again. Regarding the material quoted from Boltz' prehearing statement beginning with the words "Around that time," Boltz testified, "This is inaccurately constructed here. This is not the sequence of events. This is what it says, but it is not what happened." He gave no other version of these events. Boltz testified that he had been unable to read Board agent Bell's handwriting and, in effect, that Boltz signed the statement in reliance on Bell's reading the statement to him. I do not credit Boltz' testimony in this respect, for demeanor reasons, because he admittedly made and initialed some changes in the statement (in- cluding a scratch out between the words "What" and "old"), and because I believe it unlikely that a man with Boltz' 31 years of experience as Respondent's president 1008 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD would sign a document that he could not read.41 In any event, I infer that any reading by Bell to Boltz of his statement was in fact accurate. See FTC v. Owens-Cor- ning Fiberglas Corp., 626 F.2d 966, 975 (D.C. Cir. 1980). Because of the foregoing peculiarities in Boltz' state- ment and testimony about Vasquez' discharge, and for demeanor reasons, I credit Vasquez' testimony about the telephone conversation when he was discharged, and dis- credit Boltz' version except to the extent that it is cor- roborated by Vasquez. F. The Allegedly Unlawful Refusal to Hire Radmila Marsenic, Johnnie King, Francisco Flores, and Josef Skocz Although the four UPS cleaning contracts that Re- spondent took over between 29 April and 1 May had been bid for in a bid that included all five of Chemco's UPS locations, Chemco retained its cleaning contract at UPS' Northbrook facility until 24 May. As previously noted, Chemco and the Union executed on an undis- closed date before 13 May a bargaining agreement that covered Chemco's Northbrook employees, among others; and that increased their wages to $13.14 an hour. The execution of this agreement was announced at the union meeting following which Palmowski had said that he heard "everything that goes down in the Union." About mid-May 1985, Sullivan (Respondent's vice president and sales manager) and Palmowski came over to look at UPS's Northbrook location. When they were asked by Gerhard Lingner, UPS' plant maintenance man- ager at that location, why they wanted to look over the building, they replied that they were looking into the possibility of taking over the cleaning contract from Chemco. Lingner, who had known Sullivan for several years, asked whether, if Respondent got the contract, Respondent would consider taking over the existing Chemco crew. Sullivan said that Respondent was not sure about it, and had been talking about it. He asked why Lingner was interested. Lingner said that he was getting good work and his job was made very easy by the existing crew.42 On 20 May, Sullivan learned that Respondent had ob- tained the Northbrook contract; like the contracts that UPS had previously had with Chemco and Respondent, the Northbrook contract could be canceled by UPS on 7 days' notice. On the following day, Lingner asked Sulli- van whether Respondent was going to hire the Chemco crew. Sullivan said that he did not know, and would let Lingner know later in the week. About 22 May, alleged discriminatee Radmila Marsenic , a Northbrook employee who was the leader of Chemco's Northbrook crew, told Lingner that the crew would like to continue to work at Northbrook and would like to talk to the new contrac- 41 On the stand, Boltz appeared to have genuine difficulty in reading Bell's handwriting Boltz, however, testified, that he usually reads with reading glasses, that he had left his reading glasses at the office, that he "can struggle without them," and that he can read "somewhat" without reading glasses if he holds the document far enough away from him Bell's handwriting is not very good , but neither is it strikingly bad 42 My finding in this sentence is based on Lingner's testimony Sulli- van's version was, "they are not doing a bad job " tor. Lingner said that he would make an appointment with the new contractor to meet with the crew. Boltz testified that on 21 and 22 May, he "diligently attempted" to reach the Union by telephone to find out what was meant by the 20 May "impending strike" tele- gram, "what do you want to do, we are always ready to sit down and talk"; and that he received "no response." On 23 May, Lingner telephoned Sullivan that the em- ployees were interested in staying on under the new con- tractor, and that they had asked Lingner to call Re- spondent and find out if it would come out for a meet- ing. Sullivan said yes, and that "we" would be out on the following day, 24 May. Lingner said that the crew- members were good workers and asked Sullivan if he would take the crew over. Sullivan said, "We're not sure about that, but we will talk to them about it."43 Thereaf- ter, Lingner told Marsenic that he had made an appoint- ment for the crew to meet with Sullivan on Friday, 24 May at 6:30 a.m., the time of day when their shift ended. When the employees' shift ended at 6:30 a.m. on Friday, 24 May, nobody from Respondent had yet ar- rived at the facility. The cleaning crew gathered in the cafeteria. Marsenic went to Lingner's office and asked if he could telephone Respondent to find out if anyone from Respondent was going to come to Northbrook that morning. Then, she rejoined the others in the cafeteria. A little later, Lingner came to the cafeteria, told the em- ployees that some Northbrook representatives were coming, and stated that they wanted to talk to Marsenic. Marsenic went to Lingner's office and picked up the telephone. Sullivan, who was on the other end, asked what she wanted. Marsenic said that Lingner had al- ready told him that the employees wanted to talk to him, and he was supposed to be there at 6:30 a.m. He said that he would be there in 40 minutes.44 Sullivan and Palmowski arrived at Lingner's office a little before 7:30 a.m.45 Lingner said that the Chemco cleaning crew was waiting in the cafeteria and wanted to talk to Sullivan. Sullivan said that Respondent had decid- ed to hire new people, and that he had nothing to talk to the employees about. Lingner said that the employees had been waiting for Sullivan for a couple of hours, and asked him to at least talk to them. Sullivan said that he would. Then, Lingner took Sullivan and Palmowski into the cafeteria and introduced them to the employees, all four of whom were still waiting there. The crew asked Mar- 41 My findings regarding this conversation are based on a composite of credible parts of Lingner 's and Sullivan's testimony. My finding regard- ing the date of this conversation is based on the testimony of Sullivan who, concerning this matter, appeared to have a recollection superior to Lmgner's For the reasons discussed below, I do not accept Sullivan's testimony that he said he would be at the Northbrook location at 6 a.m on 24 May if he had anything to talk to the employees about, and that if he was not there, this meant that he had nothing to talk to them about 44 My findings as to this call are based on Marsemc 's testimony For demeanor reasons, and for the other reasons discussed below, I do not accept Sullivan's testimony that he had no telephone conversations that day with anyone before coming to the Northbrook facility 45 This finding is based on Marsenic's testimony. Because she was waiting to see Sullivan after having completed a full shift , I regard her memory concerning this matter as more reliable than Sullivan 's (8 am) or Lingner's (7 a in ) CONTRACT CLEANING MAINTENANCE 1009 senic to serve as spokesman. Marsenic told Sullivan that the employees would like to have the address and tele- phone number of the new company they were going to work for; would like to have a "company regulation book"; would like to know what their hourly wages, their vacations, and their benefits were going to be; and would like to know "what union we are going to be. 1146 Sullivan got up and became red in the face. He said that Respondent was not going to hire the Chemco crew, but was going to start the building with a brand new crew. Marsenic asked him why he was there if he did not want to hire them. He said that "I have my own people," that he wanted to start the building with a fresh crew, and that there was nothing he could do about it. He further said that he did not know what this new crew would be paid. He told the employees to leave their names and telephone numbers, suggested that they take a vacation if they had one coming, and said that Respondent would call them if it had anything for them. After he left, Mar- senic translated Sullivan's remarks into Polish for Skocz, whose command of English is very limited. My findings in the foregoing paragraph are based on a composite of credible parts of the testimony of Sullivan, Marsenic, King, and (through an interpreter) Skocz. Pal- mowski did not testify (see above at fn. 6), and Flores (whose native language is Spanish, but who understands English) could not be found. For demeanor reasons and notwithstanding Sullivan's denial, I credit the testimony of Marsenic and Skocz that Marsenic asked what union the employees were "going to be"; such an inquiry would appear to be natural in view of the employees' ex- perience with unions (see above at fn. 46).47 Respondent does not claim that these witnesses' prehearing affidavits failed to refer to such an inquiry. I do not credit Marsen- ic's testimony, however, that when she asked, "What union are we going to be," Sullivan replied in terms, "I am not going to be no union"; or King's testimony that she asked Sullivan whether Respondent was going to recognize "the union" and he said no. I so find because these alleged remarks were not referred to in these em- ployees' respective prehearing affidavits, although Mar- senic testified that she told the Board investigator about the statement she attributed to Sullivan. All four of the employees with whom Respondent began operations at Northbrook were paid $5 an hour. Lingner testified that the quality of their work was roughly comparable to that of the Chemco employees. Although one of the four Chemco employees at North- brook may have filled out a written application for em- ployment by Respondent, Respondent never hired any of them. All four of them had attended the 13 May union meeting. At least three of them (Marsenic, King, and Skocz) were union members; but Marsenic and King 46 Of the Northbrook employees, at least three (Marsenic, Skocz, and King) had worked for Admiral, which had bargained with a sister local of the Union. 44 It is unclear whether Skocz was basing his testimony on what he heard Sullivan say in English or on Marsenic's interpretation to him in Polish. Even assuming that the latter was the sole basis for his testimony in this respect, under Fed.R.Evid. 801(d)(1)(B), such testimony would be probative to establish what Sullivan said. Nor did Respondent object to the receipt of his testimony for this purpose; cf. above at fn. 32. were not officers or members of the grievance commit- tee, and there is no evidence that such a position was held by Skocz, who testified through a Polish-English in- terpreter. Boltz testified that if Respondent had acquired the Northbrook contract on 1 May 1985, Respondent would have hired the former Chemco employees. Corona testified that in early May 1985 , Sales Manager Sullivan told him that Respondent had not obtained the Northbrook contract with the other UPS contracts be- cause "right now they were happy with the people that were doing Northbrook, and they just didn't want to make a change." Sullivan testified that when Respondent acquired the cleaning contracts at Jefferson Street, Bed- ford Park, Franklin Park, and Addison (which four con- tracts Respondent began to perform on various dates be- tween 29 April and 1 May 1985), UPS told him that one reason why Respondent was not then obtaining the Northbrook contract was that UPS was "not all that upset with" the cleaning there. Corona testified that Steele was named leadman at Franklin Park on 13 May partly because Lingner, UPS plant maintenance manager at Northbrook, had spoken highly of Steele's work there. Boltz testified that prior union meetings or a possible strike threat had no bearing on his decision not to hire the Chemco employees at Northbrook, and denied that antiunion animus of any kind entered into that decision. He testified that Respondent did not hire Chemco's per- sonnel at Northbrook on 24 May because Respondent had had problems with what he regarded as an unreason- ably high proportion of the Chemco employees. At the four UPS facilities that Respondent took over on or before 1 May 1985, Respondent hired a total of 12 em- ployees, not including Vasquez or Hukic. Before starting to work at Northbrook, Respondent had had problems with 5 of these 12. More specifically, about 9 May Re- spondent terminated two Addison employees because one of them had left early and the other had punched him out for breaks and at the regular quitting hour. Fur- ther, on 1 May Respondent issued warning notices to two Bedford Park employees for poor work; one of these employees thereafter worked poorly and only intermittently, and the other punched out early on 2 May and failed to call in for the rest of the month .48 On I and 9 May, a third Bedford Park employee received warning notices.49 Further, Corona testified that as of 21 May 1985 he was not satisfied with the quality of work being performed at the other locations previously serv- iced by Chemco,50 that Palmowski had reported that such work was not "up to standards" there, that Pal- mowski and Sullivan had told Corona during this period that UPS was not happy with the work at these locations (although company witness Sullivan was not asked about this matter), that UPS' building maintenance supervisor at Addison had pointed out deficiencies in the cleaning 48 Both of them were discharged on 31 May, after Respondent's refus- al to hire Chemco's Northbrook employees. 48 He was discharged on 3 June , after Respondent refused to hire Chemco's Northbrook employees. 60 As of that date, only 9 of the 14 former Chemco employees were still actively working for Respondent. Hukic and Vasquez, however, had been discharged as recently as 20 and 21 May, respectively. 1010 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of that building, and that other, unnamed UPS personnel had told him that the quality of the work was not up to par. Corona further testified (without corroboration from Boltz) that before Boltz decided not to take over Chem- co's employees at Northbrook, the two of them discussed the different problems and the quality of work at differ- ent locations and the problems with some of the people. Corona testified that the decision not to hire the Chemco employees at Northbrook was made "probably the week of the 23rd" of May, a Thursday. There is no evidence that Sullivan was responsible for the selection of employees to be hired at Northbrook. He was not asked who told him about the decision not to take over the Chemco employees there. Although neither was he asked in terms when he learned about this decision, his testimony, if unreservedly accepted, shows that he learned about it between his 23 May telephone conversa- tion with Lingner (when, according to both men, Sulli- van said that Respondent had not yet decided whether to take over the Chemco employees) and the time when Sullivan would have had to start for the Northbrook fa- cility to reach it by 6 a.m. on 24 May (see above at fn. 43). Boltz testified that he may have told Sullivan about this decision on the night of Wednesday, 22 May, but "more than likely" told him about it at an undisclosed hour on 23 May. Contrary to Sullivan and Boltz, I find that Sullivan was advised of this decision after his tele- phone conversation with Marsenic a little after 6:30 a.m. on 24 May (when, according to her credited testimony, he told her that in 40 minutes he would be at North- brook to talk to the employees), although before the hour when he would have had to start for Northbrook in order to reach it a little before 7:30 a.m. on 24 May. I do not credit Sullivan's denial that he had this telephone call with Marsenic, or his related testimony that on 23 May he told Lingner that if Sullivan did not show up by 6 a.m. on 24 May, he had nothing to talk to the employ- ees about. The credited evidence shows that the employ- ees waited for Sullivan for about an hour after the end of their shift; Sullivan testified, in effect, that they waited for an hour and a half. They would not likely have waited this long if the message testified to by Sullivan had been given them by Lingner, as he likely would have done if he had in fact been so advised. Further, I do not believe that they would have waited so long without making, during this period, some contact with Respondent. Because of Sullivan's 23 May undertaking to come out to Northbrook to talk to the employees at 6 a.m. on 24 May, I think it likely that he would have been promptly informed of the hiring decision. If that decision had been reached by the end of the business day on 23 May, he would almost certainly have been so informed on that day as a matter of business routine. Further, in order to avoid an unnecessarily early rising on 24 May, Sullivan likely took steps to ascertain before his bedtime on 23 May whether the hiring decision had been made. As of 6:30 a.m. on 24 May, however, he clearly had not been told about it. I find that Respondent's decision not to hire the four Chemco employees at Northbrook was reached no earlier than the night of 23-24 May, and was probably made between 6:30 and 6:50 a.m. on 24 May. G. Aftermath On an undisclosed date in June 1985, Respondent began to negotiate with the Union regarding all five UPS locations. By 1 August 1985, an agreement had been reached on wages. A complete agreement was exe- cuted on 1 November 1985 calling for a wage scale ret- roactive to 1 August 1985. The contract called for hourly rates of $8.20 to Jefferson employees and $4.25 to $5.50 to employees at the other four UPS locations. At that time, all of Respondent's employees at UPS became union members. Thereafter, on undisclosed dates before 19 November 1986, Respondent agreed with the Union to extend the August 1985 contract to locations where Respondent was performing cleaning for two other firms. Corona denied that any of the decisions to fire, discipline, or not to hire former Chemco employees were made because of their union membership or activities or because they at- tended a union meeting. He went on to deny taking any action against Vasquez because he may have attended a union meeting.5 t H. Analysis and Conclusions 1. The alleged discrimination a. Vasquez' alleged demotion and Hukic's discharge The record shows that Company President Boltz does not oppose unions in principle, and has for many years recognized and contracted with this Union and other labor organizations at a number of Respondent's loca- tions. Further, the instant charges are the only charges ever filed against Respondent during its 34 years of exist- ence. When Respondent took over the UPS cleaning con- tracts at Jefferson, Bedford Park, Franklin Park, and Ad- dison, Respondent's ability to retain and profit by the cleaning contracts was diminished by the Union's repre- sentative status, which limited Respondent's right to cut the wage scale established by Chemco's expired union contract and which Respondent continued for several weeks to pay at least some of the employees at UPS.52 Although Respondent's ability to show a profit while continuing to pay this wage scale (which Boltz believed to be about 50 percent higher than prevailing rates for such work in the area) was limited by the size of the fixed-sum monthly payments from UPS, the Union could be reasonably expected to (as it did) resist efforts by Re- spondent to cut this wage scale. These problems were aggravated by UPS' injunction to Respondent to work in 51 R Br at 2-3 seems to suggest that I take judicial notice of Adminis- trative Law Judge William A Gershuny's action on 12 February 1987 in dismissing on the record , and immediately after the General Counsel had rested, the complaint in Case 13-CB-10989, Service Employees Local 73 The complaint in that case alleged , inter sate, that the Union violated Sec 8(b)(1)(A) of the Act by failing, for arbitrary and capacious reasons, to process the grievances of all the employees alleged as discnminatees in the case before me. The underlying charges in the CB case were filed by Vasquez on 19 June 1985 and 23 May 1986 I perceive nothing in Judge Gershuny's ruling, which is relevant to the instant case 52 Cf NLRB v Katz, 369 U S 736, 743 (1962), NLRB v Burns Security Services, 406 U S 272, 292-296 (1972) CONTRACT CLEANING MAINTENANCE 1011 harmony with the Union (an injunction that UPS might deem violated should the Union strike Respondent) and by UPS' right to terminate Respondent's cleaning con- tracts on 7 days' notice. Cf. NLRB v. Erie Resistor Corp., 373 U.S. 221, 229 fn. 8 (1963). On the very day after Respondent learned that it was being awarded these contracts, and before actually begin- ning to perform them, Respondent's management evinced their anxiety to relieve Respondent of the pres- sures that the Union's status could be expected to impose. Thus, on 24 April, while Chemco was still per- forming the cleaning work at Jefferson under the still-ef- fective union contract, Project Manager Palmowski became "mad" on learning that an employee's absence was warranted by the contractual "personal-day" provi- sions. Palmowski said that Respondent was going to change "everything" and to replace the incumbent em- ployees at UPS with employees who worked for Re- spondent elsewhere and who would be paid $3 or $4 an hour. When employee Hukic said that the employees had a union contract, Palmowski said that Respondent was going to change unions, too. On the following day, when Hukic told Palmowski that the union contract prohibited a job change that Palmowski wanted to (and later did) impose on Hukic, Palmowski said that he did not care about "your contract," and Corona said that Hukic had made too much money under Chemco and should quit. After Hukic had thus relied on, and Palmowski and Corona had deprecated the Union and its contract, Corona had thereupon encouraged Hukic to quit, and 10 days after Respondent had taken over the cleaning con- tract at Jefferson , Palmowski gave Hukic a written repri- mand, ostensibly for poor work ascertained during a walk-through by UPS Manager Strickland , which may not have preceded issuance of the warning notice. The bona fides of this reprimand are rendered questionable not only by Respondent's failure to issue a similar warn- ing notice to Sloan, whose work was equally implicated by Strickland's comments to Palmowski, but also by Pal- mowski's statement, when giving Hukic the 8 May warn- ing slip, that he would get another one the next day. The suspicion that Palmowski's prescience thus cast on the bona fides of the warning slip that Hukic did get the next day is confirmed by the demonstrated falsity of Corona's claim that he and Palmowksi based this warning on Re- spondent's Exhibit 1, the purported audit report. I con- clude that Palmowski issued both of these warning no- tices because of Hukic's open espousal of the Union and to provide a paper basis for subsequent personnel action against Hukic should such action prove advantageous to Respondent. Thereafter, on 13 May, a telegram from the Union ad- vised Respondent that the Union was indeed going to seek a contract that called for the existing , at least sup- posedly, above-standard wage scale. Further, by 11:30 p.m. that day (as shown by Palmowski's comments to Vasquez), Respondent learned about the union meeting that morning. Palmowski's comments unequivocally es- tablish his knowledge that Vasquez and Hukic had at- tended that meeting , and that Hukic had there com- plained about his reprimands. I infer from such com- ments to Vasquez ("How is your Communist party doing, I hear you're a Communist leader," with the ex- planation "I hear everything that goes down in the Union") that Palmowski also knew that during that meeting, Vasquez had said that the employees could not hesitate too much longer, working without a contract; that he had played a part in organizing that meeting; and that Hukic had also expressed concern there about work- ing without a contract. Immediately after the foregoing discussion , Palmowski reproached Vasquez for failing to buff the floors often enough, ignored (so far as the record shows) Vasquez' assertion that he had been following the employees' work schedule, removed him as group leader, and gave the job to Steele instead . Because Palmowski took this action immediately after calling Vasquez a Communist for his part in the union meeting earlier that day, I fmd that the General Counsel has shown, at least prima facie, that Respondent demoted Vasquez because of his union activity. Two days later, during the 15 May bargaining confer- ence, Respondent learned that, far from being willing to agree to a wage cut, the Union was seeking a contract with a wage increase . Credible portions of Corona's sus- piciously vacillating testimony about when and how much he learned regarding Hukic 's union activity estab- lish that, at least by the end of this conference, Corona knew that Hukic had attended the 13 May meeting and had there complained about his reprimands . Moreover, as previously noted, Palmowski had said on 13 May con- cerning that meeting, where Hukic expressed concern about working without a contract, that Palmowski knew Hukic had complained at that meeting about his repri- mands and that Palmowski heard "everything that goes down in the Union." On 18 May, Hukic complained to Company President Boltz that Respondent 's proposed pay cut breached the union contract and "You can't de- stroy union." When Boltz replied that he could indeed destroy it, Hukic said that on 20 May he was going to talk to the Union . On 19 May, when both Hukic and Sloan were on duty, Palmowski selected Hukic to train Zawartka and reminded Hukic that Boltz had tape re- corded the telephone conversation during which Hukic had asserted that his pay cut was contrary to the union contract and he was going to complain about it to the Union on 20 May. True to his word, Hukic went to the 20 May union meeting, during which the Union said that it was about to send out strike notices; as previously noted, Pal- mowski had said on 13 May that he heard "everything that goes down in the Union." Later that same day, 20 May, Hukic and several other employees advised Re- spondent that they were going to come to work and that the Union had told them to come to work if they wanted to keep their jobs. Shortly after 4 p.m. that day, Pal- mowski discharged Hukic without giving him a reason. The foregoing sequence of events strongly suggests that Hukic was discharged because of his favorable com- ments in late April about the Union and its contract, his 13 May action in attending a union meeting and there ex- pressing concern about working without a contract, his action on 18 or 19 May in telling Boltz that a union con- 1012 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tract forbade Respondent's projected wage cut and on 20 May Hukic would speak to the Union about it, and Hukic's 20 May action in attending a union meeting at which the Union stated that it was sending out strike no- tices. I do not accept Corona's testimony that the deci- sion to discharge Hukic was made as early as 16 or 17 May. Between 16 May and Hukic's discharge on 20 May, Corona included Hukic among the employees who were sent a mailgram on 17 May telling them to tele- phone Respondent's office if they wanted to keep their jobs. Moreover, on 18 May, the day before Hukic began his last shift of work for Respondent, Boltz asked him whether he was still coming to work, told him that his pay was being cut, and went to the trouble and expense of recording this conversation; indeed, according to Boltz, he initiated this conversation and (apart from read- ing Hukic the mailgram) limited his remarks to asking whether Hukic was still coming to work for Respondent. Corona testified that the decision to discharge Hukic was made by Corona and Palmowski, and that this deci- sion was based on Palmowski's report to Corona that "His work hasn't improved since the job class-since he was changed and the work wasn't getting done proper- ly."53 As previously found, however, Respondent's claim that it was initially dissatisfied with Hukic's work is impeached by its action on 8 and 9 May, when, in giving him warnings for alleged poor work, Respondent resorted to a demonstrated sham basis . Moreover, there is no evidence that after 9 May, any member of manage- ment reproved Hukic for poor work or for any other reason.54 On the contrary, on 17 May Corona sent him a mailgram telling him to call Respondent's office if he wanted to keep his job, and on 18 May Boltz (according to his testimony) telephoned Hukic to find out whether he would continue to work for Respondent. For the foregoing reasons, I find that the General Counsel has made a prima facie showing that Hukic was discharged at least partly because of his protected union activity. Accordingly, the burden is on Respondent to prove by a preponderance of the evidence that Vasquez would still have been demoted, and Hukic would still have been discharged, even absent their union activity.55 As to Hukic, Respondent's efforts to exaggerate any work defi- ciencies he may have had by giving him warnings alleg- edly for poor work, but with a demonstrated sham basis, preclude any fording that on the preponderance of the evidence, Respondent regarded his work as sufficiently poor to call for his discharge irrespective of his union ac- tivity. Although Palmowski's remarks when demoting Vasquez suggest that his failure to buff floors often sa Similarly, R. Br at 25 asserts that Respondent "fired Hukic for poor work that did not improve " See also below at fn. 59. 54 Strickland's adverse report to Respondent about the quality of the Jefferson cleaning work may have been made a few days after 9 May. As previously indicated, however, this report did not name Hukic; it was equally applicable to Sloan, and Sloan was not reprimanded before Hukic's discharge. 66 NLRB v. Transportation Management Co., 462 U S. 393, 398-404 (1983); NLRB v. Del Rey Tortillerta, 787 F.2d 1118, 1123 (7th Cir 1986); NLRB v. Bliss and Laughlin Steel Co., 754 F.2d 229, 234 (7th Cir. 1985), Vought Corp., 273 NLRB 1290, 1292-1293 (1984), enfd. 788 F 2d 1378 (8th Cir 1986); Schurpack, Inc., 283 NLRB 188 fn. 1 (1987). enough may have entered into the decision to demote him, Palmowski ignored Vasquez' assertion that he was following the work schedule, and the record fails pre- ponderantly to show that any such deficiency would have led to his demotion irrespective of his union activi- ty. Indeed, Respondent makes no such contention. Rather, Respondent contends that while in its employ, Vasquez was never a group leader. In support of this contention, Respondent relies on Corona's testimony that because Chemco was terminated for poor work and "that is a direct reflection on the janitors and the group leaders," Respondent decided not to accept any of Chemco's group leaders in that capacity (although it did hire all of Chemco's janitors, including group leaders, at the first four UPS locations), and at the outset not to have any group leaders. However, company witness Steele corroborated Vasquez' uncontradicted testimony that when making Steele a group leader 12 days after Respondent took over the Franklin Park operation, Pal- mowski told Vasquez that he was "no longer" group leader, and that Steele was the group leader "from now on." Nor did Corona contradict Vasquez' testimony that on 14 May, Corona told Vasquez that Corona would ar- range to provide that evening some supplies that Vas- quez had previously requested, pursuant to his duties, as a group leader, to order such supplies. I find that before 13 May 1985, Vasquez was a group leader for Respond- ent. For the foregoing reasons, I find that Respondent vio- lated Section 8(a)(3) and (1) of the Act by demoting Vas- quez and discharging Hukic. b. Vasquez' discharge Although Corona gave suspiciously vacillating testi- mony regarding when he found out about the 13 May union meeting and the identity and conduct of those present, he admittedly learned about Vasquez' attendance when, on 14 May, he complained to Corona that Pal- mowski had called Vasquez a Communist for attending a union meeting. Three days later, and four days after Pal- mowski had demoted Vasquez from group leader be- cause of his union activity, Palmowski gave him a warn- ing notice that stated, inter aha, that he was spending too much time driving the electric cart. Because nobody from Respondent, UPS, or Chemco had ever before told Vasquez not to use the electric cart, which he had been using to shuttle supplies (on one occasion, in Corona's presence) and haul garbage, and because Vasquez had also been using the electric cart to transport Palmowski to his car in the parking lot, I conclude that Palmowski issued this warning notice at least partly in further retal- iation for Vasquez' union activity, and in order to pro- vide a paper basis for subsequent personnel action against him should such action prove advantageous to Respond- ent. On the following day, 18 May, Boltz asked Vasquez whether he was willing to work for Respondent under the conditions described in Respondent's 17 May mail- gram. Boltz at certain points in his testimony attempted to conceal the portions of Vasquez' reply, which gave Boltz reason to fear that Vasquez might join the "im- CONTRACT CLEANING MAINTENANCE 1013 pending strike." Boltz' prehearing statement, however, and other portions of his testimony corroborate Vasquez' credible testimony that he replied he had no remarks to make until he spoke to his union representative. More- over, on 20 May, at a union meeting where the union representative had announced that strike notices would be sent out, Vasquez advocated a strike for a new con- tract; as previously noted, Palmowski said that he heard "everything that goes down in the Union." Further, on that same day, Boltz was admittedly "shocked" by re- ceiving Vasquez' initial charge.56 On the following day, Boltz telephoned Vasquez that Boltz had received some complaints that the floor had not been buffed. Vasquez truthfully said that Palmowski had told him to follow the schedule of buffing the up- stairs on Tuesdays and Thursdays and the downstairs on Mondays and Wednesdays. Boltz said that this was "aside from the point," and that he was going to have to discharge Vasquez anyway. Even standing alone, this sequence of events strongly points to the conclusion that Vasquez was discharged at least partly because during the union meetings of 13 and 20 May, he advocated a strike; because, on 18 May, he told President Boltz that Vasquez would not commit himself to work under' Respondent's unilaterally imposed working conditions until he had checked with the Union; and because he had filed the charges in the instant case. Moreover, this conclusion is reinforced by the incoher- ence in Respondent's explanations for his discharge and in management's accounts of how the discharge decision was reached. Respondent's brief at 25 asserts that Respondent fired Vasquez "for poor work and failure to obey an order." This assertion, however, elides the assertion in Boltz' preheating statement, which is Boltz' only explanation for the discharge, that he discharged Vasquez because certain alleged reports to Boltz led him to believe that Vasquez was failing to do the work because he wanted Admiral to get the contract again. Nor was this motiva- tion testified to by any other member of management or supported by any other substantial evidence.57 The sin- cerity of Boltz' stated motivation is further undermined by those portions of his statement that attribute his al- leged conclusion to a telephoned complaint that could not have related to Vasquez' Franklin Park location. Boltz' statement and his testimony contain no reference to any belief that Vasquez performed poor work or to any knowledge before Vasquez' discharge of any warn- ing issued to him for that or any other reason; nor does his statement or testimony refer to any contact with Corona about Vasquez. Although Corona testified that 66 The complaint does not allege that Vasquez' discharge violated Sec. 8(a)(4). The General Counsel's opening statement, however, averred that Vasquez was discharged partly because he filed charges with the Board against Respondent. 67 In fact, the only evidence regarding this matter shows that Vasquez worked for Admiral for an undisclosed period before May 1984 ; and re- sumed work for it, almost a year after Respondent discharged him, at $5 an hour, about 40 percent of his Chemco wages , about 60 percent of his wage scale when Respondent discharged him, and about the same as the wage scale under Respondent 's union contract. At the time of the hear- ing, Respondent was still performing all five of the UPS contracts here at issue. he and Boltz discussed Vasquez on the day he was dis- charged, Corona did not testify that he showed Boltz Palmowski's 17 May written warning to Vasquez, which referred to his work as well as his use of the electric cart, or testify in terms that he told Boltz that Vasquez performed poor work. It is true that Boltz' statement at least implies that he received and acted on a report that Vasquez had failed or refused to comply with buffing in- structions, that Corona testified to receiving reports that Vasquez had failed or refused to comply with buffing in- structions, and that Corona further gave at least implied testimony that he had discussed these alleged reports with Boltz before he fired Vasquez. Boltz' statement, however, avers that the report he received was given by Palmowski personally and involved instructions given by Steele at Palmowski's behest. On the other hand, Corona testified that the report he received involved instructions to Vasquez from Palmowski and then Steele, and (at cer- tain points) that Corona discussed with Boltz the writeup (signed by Palmowski and Steele), which Boltz' state- ment does not claim that he saw at any material time, and regarding Respondent's evidence about its alleged 21 May preparation is very fishy indeed (see above, part II,E,2,a-c). Finally, as previously found, Vasquez did not in fact fail or refuse to comply with either Palmowski's or Steele's instructions regarding buffing. Because of the foregoing, I find that the General Counsel has made a prima facie showing that Vasquez was discharged at least partly because of his union activi- ty. Further, I find that Respondent has failed to show by a preponderance of the evidence that Vasquez would have been discharged absent his union activity (see above at fn. 55). In this connection, I note that Pal- mowski and Corona were personally acquainted with the male UPS manager at Franklin Park, and that by the tes- timony of both Vasquez and Steele, Vasquez did not refuse to comply with any buffing instructions by Steele, and the work involved was performed by Fuentes. Ac- cordingly, I find that by discharging Vasquez, Respond- ent violated Section 8(a)(3) and (1) of the Act. c. The four Northbrook employees As previously noted, no later than 21 May Respondent received a mailgram from the Union threatening strike action to require Respondent to observe the Union's bar- gaining agreement with Chemco, including the above- standard wage scale. Further, by the end of that day, Re- spondent had unlawfully demoted and then discharged Franklin Park employee Vasquez, who had urged the employees to strike for a new contract, and Jefferson employee Hukic, who had early and repeatedly invoked the union contract when Respondent took personnel action (including wage cuts), which he disliked. Mean- while, about 20 May, Respondent was advised that it had obtained the cleaning contract at UPS Northbrook facili- ty. By that time, these employees were covered by a contract with the Union that set a wage scale of $13.14 an hour, 68 cents an hour higher than the wage scale set by the union bargaining agreement when Respondent had taken over the other four facilities. Further, by the time Respondent learned it was receiving the North- 1014 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD brook cleaning contract, Respondent had reduced the wage scale of the unit employees at the other four UPS locations to $8.20 an hour. Moreover, all four of the Northbrook employees had attended the 13 May union meeting, at which the new Chemco contract was an- nounced and which was followed by Palmowski's remark that he heard "everything that goes down in the Union." Also, on 21 and 22 May Boltz was making dili- gent and futile attempts to find out from the Union the implications of its "impending strike" telegram. In short, the union-related considerations, presented when Re- spondent refused on 24 May to hire the four Northbrook employees, were about the same as the union-related considerations that had led to Vasquez' unlawful demo- tion on 13 May and to Hukic's and Vasquez' unlawful discharge on 20 May and 21 May respectively.58 Moreover, not only did Boltz concede that Respond- ent would have hired all four of the Chemco employees at Northbrook if Respondent had taken over the North- brook location on 1 May, but also the considerations that led to Respondent's action in taking over about 1 May all the Chemco employees who worked at the other four locations were present with even greater force at North- brook on 24 May. Thus, UPS had advised Respondent in early May that the reason the Northbrook contract had not been included with the four contracts at locations where UPS had been dissatisfied with the quality of Chemco's services was that "right now [UPS was] happy with the people that were doing Northbrook," and be- cause UPS was "not all that upset with the cleaning there." As late as 13 May, Respondent promoted Frank- lin Park employee Steele to group leader because Lingner, the UPS plant maintenance manager at North- brook, had spoken highly of Steele's work there. Fur- ther, in mid-May and before Respondent obtained the Northbrook contract, and also on the day before Re- spondent advised the four Chemco employees at North- brook on 24 May that Respondent was not going to rehire them Lingner, whose recommendation regarding Steele had been accepted on 13 May, told Respondent that Lingner thought the Chemco crewmembers were doing good work and should be retained. Finally, Corona testified, and Respondent's bnef at 33- 34 avers, that Respondent refused to hire the Chemco's Northbrook employees partly because of the "difficulties that we had with" Hukic and Vasquez. As found above, however, these "difficulties" consisted largely of their union activity. Cf. Crown Cork & Seal Co., 255 NLRB 14, 40-42 (1981), enfd. 691 F.2d 506 (9th Cir. 1982); Birch Run Welding & Fabricating v. NLRB, 761 F.2d 1175, 1180 (6th Cir. 1985), and cases cited.59 58 "[E]vidence of contemporaneous unfair labor practices is highly rel- evant in establishing motive under Section 8 (aX3)." NLRB Y. Sure-Tan, Inc., 672 F.2d 592, 600 (7th Cir 1982), rehearing denied 677 F.2d 584 (7th Cu 1982), affirmed in relevant part and remanded in part 467 U.S. 883 (1984), decision on remand 277 NLRB 302 (1985) R. Br. cites only the court of appeals opinion ae Indeed, concerning this argument, R. Br at 34 goes on to state that Hukic "griped." So far as the record shows, Hukic's only gnpmg consist- ed of complaints about his unlawfully motivated wnteups, and complaints that Respondent was not planning to adhere to perceived requirements in the Union's expired bargaining agreement with Chemco Plainly, Huluc could not lawfully be discharged for "griping," at a union meeting, about For the foregoing reasons, I find that the General Counsel has made a prima facie showing that Respond- ent refused to hire the Northbrook employees at least partly because Respondent feared that they would par- ticipate in the Union's pressures, including a threatened strike, in an effort to obtain a higher contractual wage rate than Respondent wanted to pay. Further, Respond- ent has failed to discharge its burden (see above at fn. 55) of showing by a preponderance of the evidence that for lawful reasons, it would have refused to hire them anyway. As previously noted, Respondent contends that it refused to hire the Chemco employees at Northbrook because of Respondent's "difficulties" with the former Chemco employees at the other four locations. Respond- ent, however, did not reach its decision regarding the Northbrook employees until the morning of Friday, 24 May, although an early decision would protect Respond- ent from the possibility of being hurried in obtaining a new work force. Respondent knew by 20 May that it would be taking over the Northbrook contract on Monday, 27 May, and (except for Respondent's "difficul- ties" with Vasquez and Hukic owing to their union ac- tivity) Respondent's "difficulties" with the former Chemco employees had substantially manifested them- selves by 9 May, 4 days before Respondent promoted Steele partly because UPS had commended him for his Northbrook work under Chemco.80 For the foregoing reasons, I find that Respondent vio- lated Section 8(a)(3) and (1) of the Act by refusing to hire Marsenic, King, Flores, and Skocz. 2. The alleged independent 8(a)(1) violations Paragraph V(a) of the complaint in its final form al- leges that on or about 13 May 1985, at the UPS Franklin Park facility, Respondent through Palmowski violated Section 8(a)(1) of the Act by creating an impression among its employees that their union activities were under surveillance. The credible evidence shows that on 13 May (about 15 hours after a union meeting held that day), and at the Franklin Park facility, Palmowski told Vasquez, "I hear everything that goes down in the the unlawful wnteups; see Vought, above, 273 NLRB at 1295 fn. 13. The record evidence is insufficient to show either whether Respondent was under an obligation to adhere at Hukic's Jefferson location to the wages and working conditions generated by the Chemco contract (which is not in the record) or whether Hukic's discharge for such "griping" would be unlawful on the ground that the real source of such griping was Re- spondent's announced intention not to comply with such an obligation Cf Burns, above, 406 U.S 272; NLRB v. City Disposal Systems, 465 U.S. 822 (1984), decision on remand 766 F 2d 969 (6th Cir. 1985). Respond- ent's reliance on such "griping" in justification of Hukic's discharge and the refusal to hire the Northbrook employees constitutes some further evidence that such action was unlawfully motivated 80 Because Respondent has failed preponderantly to show that it would in any event have refused to hire Chemco's Northbrook employ- ees because of its difficulties with other former Chemco employees (except Vasquez and Hukic), Respondent's citation to Inland Container Corp., 267 NLRB 1187 (1983), is beside the point. When later reversing this decision (Inland Container Corp., 275 NLRB 378 (1985)), the Board does not appear to have withdrawn from the legal propositions set forth in its 1983 decision Respondent brief would have shown better form by citations to the history of this case In addition to the Inland Container Corp , decisions already cited , see 273 NLRB 1856 (1985), and 274 NLRB 887 (1985) CONTRACT CLEANING MAINTENANCE Union"; implied, as was in fact the case, that Vasquez had played a leading role concerning that meeting; and further implied, as was in fact the case, that at that meet- ing, Hukic and the Guziks had complained about their reprimands. I find that Respondent thereby violated Sec- tion 8(a)(1) in the manner alleged. NLRB v. Gold Stand- ard Enterprises, 679 F.2d 673, 676-677 (7th Cir. 1982); Tomco Carburetor Co., 275 NLRB 1, 4-5 (1985); Union National Bank, 276 NLRB 84 (1985); Eagle Headers, 273 NLRB 1486, 1490 (1985). No different result is suggested by NLRB v. Pilgrim Foods, 591 F.2d 110, 113-114 (1st Cir. 1978), cited by Respondent; by calling Vasquez a Communist for his part in this meeting, Palmowski dis- played extreme displeasure at it. Paragraph V(b) of the complaint in its final form al- leges that on or about 14 May 1985, at the Franklin Park facility, Respondent through Palmowski violated Section 8(a)(1) of the Act by impliedly threatening "an employ- ees" with discharge because of his union activities.61 The General Counsel's posthearing brief does not discuss this allegation, nor do I see anything in the record to support it. That paragraph will be dismissed. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has violated Section 8 (a)(1) of the Act by giving employees the impression of surveillance. 4. Respondent has violated Section 8 (a)(3) and (1) of the Act by demoting and discharging Arthur Vasquez; by discharging Avdo Hukic; and by refusing to hire Radmila Marsenic , Johnnie King, Francisco Flores, and Josef Skocz. 5. The unfair labor practices set forth in Conclusions of Law 3 and 4 affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent has not violated the Act by making an implied threat of discharge for union activities. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that Respond- ent be required to cease and desist therefrom, and from like or related conduct, and to take certain affirmative action in order to effectuate the policies of the Act. As Respondent discharged employee Avdo Hukic in violation of the Act, Respondent will be required to offer him immediate reinstatement to the job of which he was unlawfully deprived or, if such a job no longer exists, a substantially equivalent job. As Respondent un- lawfully demoted and thereafter unlawfully discharged Arthur Vasquez, Respondent will be required to offer him reinstatement (1) to the job from which he was un- lawfully demoted, and (2) to the job from which he was unlawfully discharged; or, if such job or jobs no longer exist, to a substantially equivalent job or jobs. Such 81 The corresponding portion of the original complaint reads "an em- ployee." 1015 offers of reinstatement to Hukic and Vasquez shall be without prejudice to their seniority or other rights and privileges previously enjoyed. Further, Respondent will be required to offer to employ Marsenic, King, Flores, and Skocz in the jobs for which Respondent unlawfully refused to hire them, or, if such jobs no longer exist, sub- stantially equivalent jobs, without prejudice to the se- niority or other rights and privileges they would have enjoyed if they had been hired by Respondent effective 27 May 1985. In addition, Respondent will be required to make all six of these employees whole for any loss of pay they may have suffered by reason of the discrimina- tion against them, less net interim earnings, to be com- puted in the mannner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as called for in Flori- da Steel Corp., 231 NLRB 651 (1977).62 Also, Respond- ent will be required to remove from its files any refer- ence to the unlawful demotion, the unlawful discharge, and the unlawful refusals to hire, and to notify the discri- minatees that this has been done and that evidence of such unlawful actions will not be used as a basis for future personnel actions against them. Regarding Hukic, this expunction order will include, without limitation, the warning notices issued to him on 7 and 9 May 1985, in view of my finding that they were issued because of his union activity and in order to provide a paper basis for subsequent personnel action against him. Regarding Vas- quez, this expunction order will include, without limita- tion, the warning notice dated 15 May 1985 and given to him on 17 May 1985, and the warning notice bearing his name and dated 21 May 1985, in view of my finding that the 15 May notice was issued at least partly for the same reasons as the Hukic warnings and the warning notice dated 21 May (which Vasquez never received) was pre- pared as part of Respondent's efforts to conceal the un- lawful motivation for his discharge. Alert Medical Trans- port, 276 NLRB 631 (1985). In addition, Respondent will be required to make ap- propriate notices available to its employees. The record indicates that the employees involved in this case seldom, if ever, go to Respondent's office in Chicago. Moreover, the record fails to show whether the UPS fa- cilities where the employees do work have employee bulletin boards on which Respondent can post notices without the consent of UPS. If Respondent has such bul- letin boards, or if UPS consents to posting on bulletin boards controlled by it, Respondent will be required to post notices at the UPS locations where the unfair labor practices occurred. Otherwise, Respondent will be re- quired to mail notices to the employees who work for it at such locations during what would otherwise be the posting period. The record shows that some of Respond- ent's employees speak Polish, Spanish, or Serbo-Croatian as a native language, and have limited or no knowledge of English. Accordingly, notices will be required in all four of these languages. The General Counsel contends that the gross backpay of the four employees (Marsenic, King, Flores, and 62 See generally Isis Plumbing Co., 138 NLRB 716 (1962), enf. denied on other grounds 322 F.2d 913 (9th Cir. 1963); NLRB v. Central Illinois Public Service Co., 324 F.2d 916, 919-920 (7th Cir. 1963). 1016 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Skocz), whom Respondent unlawfully refused to hire at the Northbrook facility, should not be based on the $5 hourly wage scale of the employees who were in fact hired for those jobs. The General Counsel at least princi- pally contends that the Northbrook employees constitut- ed an accretion to a unit consisting of Respondent's em- ployees at the other four UPS facilities, and that, there- fore, the gross backpay of the four Northbrook discri- minatees should be calculated at the rate the other em- ployees in the unit were in fact paid, or (under the obli- gations imposed by Sec. 8(a)(5)) should have been paid when Respondent began to perform the Northbrook cleaning contract on 27 May 1985. As an alternative or supplemental argument, the General Counsel seems to be contending that Respondent is a successor to Chemco re- garding Northbrook and, perhaps, regarding all five fa- cilities, and that, therefore, the gross backpay of the Northbrook employees should be calculated at the $12.46 rate they were receiving under Chemco.as Because nei- 89 See State Distributing Co., 282 NLRB 1048 (1987). The General Counsel, however, stated at the hearing that Vasquez' and Hukic's gross backpay should be calculated at the $8.20 rate they were actually receiv- ther the unit nor the successorship issue was fully litigat- ed before me, the merits of the General Counsel's claims in these respects will be deferred to the compliance stage. I note that as of 1 August 1985, the hourly rate for the Northbrook employees, and for the employees at Franklin Park (where Vasquez had worked), was fixed by the union bargaining agreement at $4.25 to $5.50, de- pending on length of service (see Tr. 155-157). I further note that the complaint contains no 8(a)(5) allegations. The General Counsel's request for a visitatorial clause will be granted because litigation of the General Coun- sel's successorship contention would likely require evi- dence from Chemco and litigation of his unit contention may present some complexity. Hilton Inn North, 279 NLRB 45 (1986); but see E. B. Manning & Son, Inc., 281 NLRB 1124 (1986). [Recommended Order omitted from publication.] ing when they were discharged. Further, neither at the hearing nor in the General Counsel's brief does he seek a backpay remedy for Vasquez based on his demotion from his group leader's job, for which Chemco paid a premium but Respondent did not.