A & B Janitorial Service

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rosa M. Alexander d/b/a A & B Janitorial Service and Public Service Employees' Local 572, affili- ated with Laborers' International Union of North America, AFL-CIO, and Olivia Wiggins and Brenda Bennett and Patricia Patterson Rosa M. Alexander d/b/a A & B Janitorial Service and National Association of Government Work- ers and Public Service Employees' Local 572, affiliated with Laborers' International Union of North America, AFL-CIO, Party to the Con- tract. Cases 5-CA-11612, 5-CA- 11643, 5-CA- 11643-2, 5-CA-11658, and 5-CA-11716 November 28, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENEI.I.O AND ZIMMERMAN August 14, 1980, Administrative Law Judge Jo- sephine H. Klein issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge and to adopt her recommended Order, as modi- fied3 below: ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Rosa M. Alexander d/b/a A & B Janitorial Serv- ice, Portsmouth, Virginia, her agents, successors, or assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Insert the following as paragraph 2(e) and re- letter the subsequent paragraphs accordingly: i Respondent has excepted to certainl credibility findings made by the Administrative Law Judge. It is the Board's established policy notl to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (195)), enfd. 188 F2d 362 (3d 1951). We have care- fully examined the record and find no for reversing her findings. 2In adopting the Administrative Law Judge's conclusion that Patricia Patterson was unlawfully discharged, we find it unnecessary to reach or pass on her further observation that such conclusion would follow even if Patterson was found Io be a supervisor. In this connection, we note that Patterson's nonsupervisory status was stipulated. a We have modified the Administrative Law Judge's recommended Order to conform to her findings. 253 NLRB No. 64 "(e) Rescind any existing rule prohibiting solici- tation by employees at the Norfolk Naval Shipyard in Portsmouth, Virginia, and remove from the premises of said shipyard any notice or other docu- ment containing such prohibition." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPIOYEES POSTED BY ORDER OF THE NATIONAL LABOR REIATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that I have violated the National Labor Relations Act, as amended, and has ordered me to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. I WIIL NOT question you concerning your attendance at union meetings or your engaging in any other union activities. I W.I. NOT do anything that gives the im- pression that I am keeping a watch on the union activities of any of my employees. I Will. NOT threaten that any employees will be or may be discharged for joining or failing to join any union or for engaging in any union activities. I WILl. NOT promise you any benefits for re- fraining from engaging in activity on behalf of any union. I Wl.l. NOT tell you that any employee has been, is being, or may be discharged for solic- iting on behalf of any union or for engaging in any other union activities. I WIl.l. NOT issue, maintain, or enforce any rule or policy prohibiting my employees from soliciting on behalf of or in opposition to any union during their nonworking time at the Norfolk Naval Shipyard in Portsmouth, Vir- ginia. I w.i. NOT discharge or otherwise discrimi- nate against any employees for soliciting on 508 A & B JANITORIAL SERVICE behalf of or against any union during their nonworking time, or for engaging in any other union activities. I WILL NOT recognize Public Service Em- ployees' Local 572, affiliated with Laborers' International Union of North America, AFL- CIO, as representing my employees and I Wil.l NOT enter or apply any collective-bar- gaining agreement with that Union unless and until it is certified by the National Labor Rela- tions Board as the exclusive collective-bargain- ing representative of my employees pursuant to Section 9(c) of the National Labor Rela- tions Act, as amended. I WIl.l NOT deduct or withhold from the wages of any of my employees any money for the payment of union dues, fees, or assess- ments, except pursuant to employees' written authorizations conforming to the provisions of the Act. I WIL.L NOT in any other manner interfere with, restrain, or coerce my employees in the exercise of the rights guaranteed them in Sec- tion 7 of the Act. I WItI. offer George P. Williams, Patricia Patterson, Brenda Bennett, and Olivia Wiggins immediate and full reinstatement to their former positions, or, if those positions no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority and other rights and privileges, and I WILL com- pensate them for any wages they lost, with in- terest, as a result of my having discharged them in October 1979. I wlll. remove from my records and de- stroy any reference to the discharges of the persons named above. I WILL reimburse past and present employ- ees for any union dues or fees heretofore de- ducted from their wages, with interest. I WILL rescind my existing rule prohibiting solicitation by my employees at the Norfolk Naval Shipyard in Portsmouth, Virginia, and WI.i. remove from the premises of the Ship- yaid any notice or other document containing such prohibition. ROSA M. AI.EXANDLFR D/B/A A & B JANITORIAL SERVICE DECISION JOSEIPHINE H. KIN, Administrative Law Judge: Pur- suant to a charge and an amended charge filed by Public Service Employees' Local 572, a/w Laborers' Interna- tional Union of North America, AFL-CIO (Local 572), on October 22 and November 30, 1979,' respectiely, a complaint was issued on December 10 against Rosa M. Alexander d/b/a A & B Janitorial Service (herein Re- spondent), alleging that on or about October 17 Re- spondent unlawfully interrogated employees in violation of Section 8(a)(1) of the Act2 and terminated the em- ployment of George Williams in violation of Section 8(a)(3) and (1). (Case 5-CA-11612.) Pursuant to a charge filed by Olivia Wiggins on October 29 and amended on December 12, a complaint was issued on December 13. alleging that on or about October 18 and 19 Respondent threatened employees with loss of employment if they supported the National Association of Government Workers (NAGW) and on October 22 terminated Wig- gins' employment in violation of Section 8(a)(3) of the Act. (Case 5-CA- 11643.) Then, pursuant to a charge and an amended charge filed by Brenda Bennett on October 30 and December 12, respectively, a complaint was issued on December 17, alleging that on October 22 Re- spondent unlawfully interrogated employees and discri- minatorily discharged Bennett. (Case 5-CA-11643-2). A charge and an amended charge filed by Patricia Patter- son on November 2 and December 10, respectively, led to the issuance of a complaint on December 20, alleging that on or about October 17 Respondent discharged Pat- terson in violation of Section 8(a)(I).a (Case 5-CA- 11658.) A charge and amended charge filed on Novem- ber 26 and January 11, 1980, respectively, by NAGW led to issuance on January 22, 1980, of a complaint alleg- ing that Respondent committed additional violations of Section 8(a)(l) between October 16 and 19 and on No- vember 17, and additionally violated Section 8(a)(2) on November 15 by recognizing Local 572 as the bargaining representative of Respondent's employees and entering into a collective-bargaining agreement with Local 572. (Case 5-CA-11716.) Thereupon, on March 18, 1980, the complaints were consolidated for hearing. The com- plaints were amended on April 24, 1980. Answers to the complaints were duly filed. Pursuant to due notice, a hearing was held before me in Norfolk, Virginia, on May 8, 1980. The General Counsel, Respondent, and Charging Parties Patterson, Bennett, and Williams were represented by counsel. Local 572, Charging Party and Party to the Contract, was represented by its business manager. All parties were granted full opportunity to present oral and written evi- dence and argument, and to examine and cross-examine witnesses. At the conclusion of the hearing, oral argu- ment was waived. Since the hearing, the General Coun- sel has filed a complete brief and Respondent has filed a short memorandum addressed only to the issue of the Board's jurisdiction over Respondent. Except where otherwise specified, all dates herein are in 197 National Labor Relations Act. as amended. 29 lUSC § 151, e w'q. ' The complaint originally alleged that Patterson as a superisor When that allegation as denied by Respondent's counsel In his ansxer to the complaint and orally at the hearing. it was stipulated that I'aier- son was a nonsupervisory employee and the complaint ",as amended Io allege Patters)ns termination as violalive of Sec. 8(a)(3) 509 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record,4 together with careful obser- vation of the witnesses and consideration of the briefs, I make the following: FINDINGS OF FACT I. PRELIMINARY FINDINGS A. The Employer Respondent, a sole proprietorship, is engaged in pro- viding janitorial services to the Norfolk Naval Shipyard in Portsmouth, Virginia (the Shipyard). She has con- tracts with the Small Business Administration, a United States Government agency, including a contract valued in excess of $1,900,000 to perform janitorial services at the Shipyard, where Navy military ships are maintained and repaired. Thus, Respondent's operations have a sub- stantial impact on national defense and the Board will assume jurisdiction without reference to any other juris- dictional standards. Geronimo Service Company, 129 NLRB 366 (1960); Ready Mixed Concrete & Materials, Inc., 122 NLRB 318, 319, 320 (1958). The General Counsel also established that, as alleged, during the preceding 12 months, Respondent purchased products, goods, and materials valued in excess of $5,000 from other enterprises located within the Commonwealth of Virginia, each of which other enterprises had received the said "products, goods, and materials directly from points outside the State of Virginia." Ray Gallop, a sales- man for G & A Distributing, testified that in May through December 1979 he sold to Respondent supplies valued at approximately $52,000, a minimum of about 60 percent of which supplies G & A had received directly from points outside Virginia. In August 1979 G & A sold to Respondent one order of goods valued at $20,000, which was part of shipments valued at $30,000 that G & A had received directly from points outside Virginia. Additionally, invoices placed in evidence after the hear- ing, pursuant to leave granted, show goods valued at ap- proximately $8,000 apparently shipped to Respondent in April, May, and July 1979 directly from points outside Virginia. Based on these undisputed facts,5 it is found that Re- spondent is an employer subject to the Act and that it will effectuate the policies of the Act for the Board to assume jurisdiction over Respondent. See Trico Disposal Service, Inc., 191 NLRB 104, 105 (1971), and cases cited therein. 8 4 As amended by an order issued simultaneously herewith correcting the transcript in minor respects, including a correction requested in an unopposed motion by the General Counsel. 5Although it was not essential for the General Counsel to establish the allegation in the complaints that Respondent had a direct inflow of mate- rials valued in excess of $50,000 the evidence probably supports that alle- gation. 6 In opposition to the assumption of jurisdiction in this case, Respond- ent cites Schauffler v Philadelphia Window Cleaners and Maintenance Workers Union Local 125, 196 F.Supp. 396 (D.C. Pa. 1961), in which the court dismissed for lack of jurisdiction an action for an injunction under Sec. 10(l) of the Act. In the underlying unfair labor practice case, howev- er, the Board assumed jurisdiction over the Employer on the basis of a relatively small amount of work performed for the Signal Corps. Phila- delphia Window Cleaners. etc.. Local 125 (Atlantic Maintenance Col. 136 NLRB 1104, 1107-08 (1962). B. The Labor Organizations I. Local 572 is, and was at all material times, a labor organization within the meaning of Section 2(5) of the Act. 2. NAGW is, and was at all material times, a labor or- ganization within the meaning of Section 2(5) of the Act. II1. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Chronology This section of the Decision contains a summary chro- nology of the major events involved. The facts here stated are generally not in dispute. Detailed findings, with credibility resolutions where needed, are set forth in the ensuing section 11, B. Respondent is a subcontractor of the Small Business Administration pursuant to Section 8(a) of the Small Business Act.7 The contract here involved calls for jani- torial services at the approximately 500 buildings in the Norfolk Naval Shipyard (the Shipyard) in Portsmouth, Virginia.8 Respondent's contract began on May 1, 1979, when she replaced the former contractor, Kentucky Building Maintenance. Respondent's contract was for 1 year, through April 30, 1980, later extended through April 30, 1981. She employs some 210 to 280 persons for work at the Shipyard. Alexander herself works full time at the Shipyard, entrusting supervision under her other contracts to Winzolla Smith, a contract manager. Direct- ly under her at the Shipyard are two "contract manag- ers"-her son, Thaddeus Bennett, and Theron Bumpers.9 There also are three inspectors, who apparently report to the contract managers. There are 15 persons designated "supervisors," who are in regular immediate contact with the employees. Employees clock in and out in Alex- ander's office and are transported by a bus operated by Respondent between that location and the buildings where they work. Alexander's office is several miles from some of the buildings serviced. Early in June, employee George Williams spoke to Helen Artis, business manager of Local 572, concerning the possibility of organizing Respondent's employees at the Shipyard. Kentucky Maintenance's employees at the Shipyard had been represented by Local 572. Williams received authorization cards from Artis and returned ex- ecuted cards to her. It does not appear what the cards said or how many were executed. In June, having learned of the union activity, Alexan- der called an employee meeting. In attempting to dis- 15 U SC. Sec. 637(a)(1). Respondent also holds or held contracts for janitorial services for Navy commissaries in Norfolk, Portsmouth, and Virginia Beach, Virgin- ia, from December 1, 1978, through November 30, 1979, extended through November 30, 1980; Building 3175 at the Naval Amphibious Base, Little Creek. Virginia Beach. from April 11, 1979, through April 1(1, 1980. then extended through April 10, 1981; Navy Commissary Cen- tral Meat Plant, Scott Center, Norfolk Naval Shipyard, Portsmouth, April 1, 1979, through September 30, 1979. 9 The complaint in Case 5-CA-11716 alleges that Bumpers and Thad- deus Bennett were supervisors. Although Respondent's answer to the complaint denied their supervisory status. Alexander's pretrial affidavit stated that they had authority to hire and fire, and in testifying she in effect acknowledged their supervisory authority 510 A & H JANITORIAL SERVICE suade the employees from becoming unionized, Alexan- der informed them that Local 572's dues were $7 per month, plus 52 or 53 cents per hour worked. She told them further that, if they chose to be represented, they would have to pay the specified union dues retroactively to May . Because of that information, the employees abandoned their attempts to seek representation by Local 572. There was no further union talk or activity until around October 11,10 when Patterson called Louis Fais- son, whose identity as president of NAGW she had learned from employee Brenda Bennett's" t boy friend. Faisson explained to Patterson the mechanics for obtain- ing representation and told her to arrange a meeting. At the Shipyard she circulated a paper on which employees desiring to attend a meeting signed their names. A meet- ing was then held on the evening of October 16, attend- ed by some 30 employees. George Williams did not attend that meeting. The employees present signed a pe- tition authorizing NAGW to represent them. Employees Bennett, Wiggins, and James Lane took additional peti- tions on which to obtain signatures of employees who did not attend the meeting. The next day, October 17, Patterson and Williams were discharged. Then, also on October 17, Alexander called a meeting of all employees, where she stated her reason for having discharged Patterson. Alexander pro- ceeded to say that, if the employees wanted a union, she would get them one, and any employee not joining within 30 days would be terminated. On the next morning, November 19, Alexander was visited by two representatives of the Work Incentive Program of the Virginia Employment Commission (WIN), with which she had a training contract. Later in the day, at Alexander's request, the WIN representatives attended an employee meeting assembled by Alexander. After some discussion of work problems, the meeting turned to consideration of unionization. The meeting generally became very heated, and Wiggins engaged in an agitated dispute with employee Glen Hicks. On Monday, October 22, the next working day, Bennett and Wiggins were discharged. On November 12, Artis telephoned Alexander. Artis said she had heard that another union had been given an opportunity to speak to Respondent's employees and Local 572 would like "equal time." Alexander replied that Artis was welcome to speak to the employees during the shift break. On November 15, three men rep- resenting Local 572 and the Laborers' District Council went to the Shipyard, where they met with the employ- ees in three meetings and obtained signed authorization cards. The exact number of cards does not appear. Claiming to have cards signed by a majority, the repre- sentatives demanded recognition of Local 572. Alexander granted recognition and thereupon signed the Local 572 collective-bargaining agreement. Sometime thereafter the recognition and the contract were rescinded. 'o As set forth below, Wiggins mentioned a union meeting scheduled in August. However, it appears probable that the incident occurred in June. II Apparently not related to contract to the contract manager, Thad- deus Bennett, Alexander's son. B. The Evidence 1. Preliminary discussion It may be helpful at the outset to state my conclusion that Alexander, Respondent's principal witness, 12 was not reliable or credible. There were significant unexplained respects in which Alexander's testimony flatly contradicted pretrial affida- vits she had given to Board agents. For example, on ex- amination by counsel for the General Counsel, she testi- fied that "supervisors" are not authorized to recommend hiring or firing and a "supervisor can't make that sugges- tion" and may not impose discipline. But a pretrial affi- davit says: "The supervisors do not work, they assign duties and oversee their work, and are responsible for discipline." An affidavit further says: "They do not have the authority to hire or fire, but they can recommend either and I usually go along with this." There are simi- lar contradictions between her testimony and her pretrial affidavits concerning the authority of contract managers Bennett and Bumpers. She testified that the contract managers could only suspend employees for 3 days and could not hire or fire. However, her affidavits say that contract manager Bumpers "has the authority to hire and fire" and the contract managers "were in charge of the shop, below" her. Additionally, there were several important matters on which Alexander changed her position or contradicted herself. And frequently her testimony was essentially in- consistent with statements by her counsel in his opening statement at the hearing. Not least of the deficiencies in her testimony is the fact that a large portion of it was given in response to leading questions by her own coun- sel. And throughout most of the testimony Alexander testified at length without providing direct or responsive answers to the questions put to her. On the other hand, there is no reason to discredit the testimony of the General Counsel's witnesses. To be sure there were some minor discrepancies as to such matters as precise dates and occasional failures of memory. How- ever, none of these lapses concerned any crucial matter and none reflected any apparent self-serving motivation. And most of the General Counsel's evidence was uncon- tradicted. In large part, the discredited testimony by Al- exander concerned her subjective reasons for taking cer- tain actions, matters as to which the General Counsel's witnesses could have no personal knowledge and thus could not testify. 2. Section 8(a)(1) and (3) a. General observation The complaints alleges several independent violations of Section 8(a)(l). However, those allegations concerned facts inextricably intertwined with the discharges alleged to violate Section 8(a)(3). Thus the evidence concerning the 8(a)(l) and 8(a)(3) violations will be presented to- gether. 12 Respondent's only other ,itness w'as Beverkl Cosvinglon who. as set forth below. testified concerning B Bennett's discharge 511 DE{CISIONS ()F NATIONAL LABOR RLATIONS BO()ARD Additionally, uncontradicted evidence, received with- out objection, establishes 8(a)(l) violations not specifical- ly alleged. Because such evidence was also directly relat- ed to the Section 8(a)(3) violations, I hold that additional Section 8(a)(1) violations were fully litigated and may be found where established in the record. As set out above, it is alleged that four employees were discharged in violation of Section 8(a)(3) of the Act. Each discharge will be discussed in this portion of the Decision. However, one factor common to all four allegations should be noted here. In his opening statement at the hearing, Respondent's counsel referred to the four alleged discriminatees as "dissidents." He then said: [Alexander's] first real test with the dissidents-and we claim that all four got together as a vengeance, wholly held together by their own fabrications, to strike back at this small business lady because she did, in fact, discipline them for being tardy. And then with the cohesiveness of the dissidents, they began to talk unionism.... And everything was going along good, with the ex- ception of some disciplinary problems that the dissi- dents persisted in, until it came to pass they had to be discharged for them. In the actual hearing of the case, there was no evidence that any of the four alleged discriminatees had been guilty of or ever accused of or purportedly disciplined for tardiness. At no time did counsel or Alexander state the manner in which the four employees here involved were "dissidents" or "got together as a vengeance." So far as appears, the only thing the four employees had in common was their active desire for unionization. b. George P. Williams Williams started to work for Respondent "about June," apparently early in the month. Around the middle of June,' 3 he spoke to Artis, business manager of Local 572, about foiming a union. Artis sent him union cards, an unspecified number of which he had signed and then returned to Artis. Thereafter, around the end of June, Alexander called a general employee meeting. Concerning the substance of that meeting, Williams testified that Alexander- . . .stated anyone was crazy who would pay 52 cents per hour to a union and said how the previous union, how those people belonged in it, and she didn't have nary one of those peoples. Other evidence establishes that, according to Alexander, Local 572's dues were $7 per month plus 53 cents per hour worked. There is no direct evidence that Alexander : te estified that it was ill the second week of June. did not hire any of Kentucky Maintenance employees. However, in a pretrial affidavit, she said that she had hired 85 employees through WIN, and the rest "came in from the street-walk in-and applied for jobs."' 4 And in a pretrial affidavit she said that she was "afraid or' Williams and "was warned of this by the previous con- tractor, who would not hire Williams." Olivia Wiggins testified that Williams informed the other employees of a scheduled union meeting, but none of the employees attended.'" Wiggins proceeded: "During the time Alexander told [Williams] if she heard any more about a union meeting, she was going to fire him." The union referred to apparently was Local 572. Williams was generally very inarticulate, while Wiggins was notably articulate and self-assured. Thus, although Williams did not testify that Alexander threatened to dis- charge him, I credit Wiggins' uncontradicted testimony as to such threat. As noted above, there was no union activity among the employees until October II11, when Patterson made contact with NAGW. That was followed by a union meeting on October 16. On the morning of October 17, Williams was called to the office, where Alexander dis- charged him. Williams testified that Alexander said she had heard that he was signing up employees to form a union on Al- exander's time. Williams replied that he was signing up employees but on his own time. He testified that Alexan- der further said that she heard he had attended a meeting the evening before. He maintained that, although he had been invited, he had not attended the union meeting on October 16. Other credited evidence establishes that Wil- liams had not attended. Maintaining that she "had a wit- ness" to his presence at the meeting, Alexander fired Williams. On the next day, October 18, Alexander called em- ployees Wiggins, B. Bennett, and Rosetta Williams' 6 to the office. Bennett testified that in the course of the meeting Alexander said that "she had to get rid of [George] because of that union thing." As previously noted, on October 19, two WIN representatives attended an employee meeting. Richard L. Andrews, supervisor for the Virginia Employment Commission in the WIN program, clearly a disinterested witness, testified that in the WIN meeting Alexander said that Williams was fired 4 In passing, it may be noted that, in his opening statement at the hearing, Alexander's counsel said that her "conception is to go to welfare and take from the welfare rolls able-bodied workers and put them into a productive capacity"; "that she was warned that that work group has an attrition rate of 80 to 90 percent"; and that "she interviewed . . over 400 applicants through the WIN program. Put over 280 to svork" He then said that employees "continued to beg [Alexander] to fire them so they could get back on welfare. They were happier with $383 a month. rather than every two weeks." However, Alexander testified that a the time of the hearing she still had some 90 percent of the employees origi- nally hired, a year before. She said she had sent about 30 to 35 employees home for 3 days and "practically all of them" returned willing to do their work WIN representative Richard L. Andrews testified that Alexander had remarkable success at keeping her enployees. i5 Although Wiggins placed this incident in August, it appears likely that it occurred earlier, probably around the end of June The date is not crucial. " It does not appear whether Rosetta Williams was related to George Williams. 512 A & B JANITORIAL SERVICE for "soliciting at the Navy yard for a union." Employee Brenda Bennett also testified that Alexander again said that she "had to get rid of [Williams] on account of the union." Bennett and Wiggins also testified that Alexan- der indicated her belief (erroneous) that Williams had been responsible for Patterson's engaging in union activi- ties. Alexander did not specifically deny any of the testi- mony just summarized. When called by the General Counsel as an adverse witness, Alexander testified that Williams had difficulty getting along with people, particularly George Scott, with whom Williams worked. Williams, who testified after Alexander, said that he and Scott "got along pretty good, other than if [Scott] didn't want to work, and then [Williams] would call Mrs. Alexander and would tell her." When recalled by her counsel, Alexander did not deny that Williams had reported to her on deficiencies by Scott. Scott did not testify. When called by her own counsel, Alexander testified that Williams "could not get along with any of the em- ployees [she] put him to work with." No employees other than Scott were named. And it does not appear that she placed sole blame on Williams, since she testified that she "begged them to please cut this out." (Emphasis supplied.) According to Alexander, Williams accused her of discharging him because he went to a union meeting and, when she denied the accusation, Williams said, "I am going to get you if it's the last thing I do." The most noteworthy aspect of Alexander's testimony concerning Williams was the fact that when she was re- called as a witness, after the General Counsel's case, in answer to leading questions by her own counsel, she tes- tified, in effect, that Williams left her employ for a better job. 7 But she also testified that she told Williams she was "tired of [his] bickering and fighting and carrying on." And in a pretrial affidavit she said, "I told George Williams, I discharged him because he was creating me too many problems, job performance is poor, and he won't follow instructions." In the same affidavit, Alexander said that she had con- tract manager T. Bennett, her son, present when she dis- charged Williams. T. Bennett did not testify. m7 Ier lestimony \was, in part: Q. (By Mr ashara): When Mr WVilliams left your employ- he did leave your employ, did he notl A Yes, he did Q D he gise you a reason for leaving? A. Yes, he did Q What swas that reason' A. He had a etter obh A lady in the employment office called me and told me Mr Wil- liams had been oer and applied fr a job I did not ask Mr Wil- liams then, because I felt like if he wanted a better job, that',s hal we are all working for-h-beltr jobs. I didn't tell him nrot to g apply for the job, bhut he wenlt on n time during the time he was at work c. Patricia Patterson As previously noted (fn. 3), for the purpose of this proceeding the parties have agreed that Patricia Patter- son was a nonsupervisory employee. She was discharged on October 17, the same day that Williams was terminat- ed. So far as appears, Patterson had no connection with Williams' abortive attempts to organize the employees in Local 572. It was she, however, who made the initial contract with NAGW, by calling Louis T. Faisson, its president, on October II11. She identified herself as a su- pervisor and then told Faisson that she believed a union was necessary for Respondent's employees. Faisson ex- plained the procedure for organizing. Pursuant to Fais- son's advice, Patterson spoke to other employees the next day. She circulated a blank piece of paper on which employees desiring to attend a union meeting could sign their names. Patterson testified that she engaged in these activities "before work and at lunch and after work" be- cause she "felt like [she] could talk to them more . . when they weren't working." As a result of her efforts, on the evening of October 16, a meeting was held. at- tended by about 34 employees. In answer to employee questions, Faisson said that NAGW dues were $7 per month, which would provide a $10,000 life insurance policy and "lawyer's fees." A union petition was circu- lated and apparently signed by about 30 employees. The next day Patterson was called to the office, where she spoke with Alexander in the presence of Thaddeus Bennett and Alexander's two secretaries, none of whom testified. Alexander first expressed surprise at Patterson's involvement in union activities. Alexander testified that she asked why Patterson was soliciting for a union. When Patterson replied that the employees were dissatis- fied, Alexander asked why they did not quit. Alexander then said she had pictures of Patterson "going from building to building to building during the day to get names." Patterson expressed her doubt, saying that she had solicited only before and after work and during the lunch break. According to Patterson, Alexander said that "a union would really benefit" Respondent and that Artis was her friend. Patterson replied that the employ- ees did not want Artis' union, Local 572.'9 Patterson's meeting with Alexander on October 17 ended with Alex- ander saying she could not keep Patterson because of her union solicitation. When first called as an adverse witness by the General Counsel, Alexander testified unequivocally: "I fired Patsy Patterson because she was soliciting on the ship- yard." She added that she fired Patterson because a gen- eral foreman, unidentified, called and said that Patterson was "soliciting on government property" and he "want[ed] her out of this building immediately and off the shipyard." 'i Further signatures ere obtained hb emploee s iBi Bennetl, ig- gins, aid James Lane. ho took petitionls fr circulation at the Shipsard. as discussed helow 1 .Aks Patterson testified: A an employee meeting aroultd Ma., Alex- ander "put on the blackhoard exactly ho, much t sas going to colI--52 cents tin hour, plu, $7 a month and that's whcr ls- when wec asv hos much iI ,as going to cost, she liierall> talked ua out of IIt 513 S $ DECISIONS OF NATIONAL LABOR RELATIONS BOARD Alexander then offered additional reasons for Patter- son's discharge, namely, that Patterson three times had taken Alexander's car and left the Shipyard and "every- time [Alexander] would beep her, she couldn't answer the beeper." No details were provided and there was no substantiating or corroborative evidence of these reasons. In cross-examining Patterson, Respondent's counsel corroborated Patterson's prior testimony that she was fired for soliciting for the Union. The cross-examination was, in part: Q. (By Mr. Bashara): And you were told by Mrs. Alexander not to subscribe to or solicit for any union while on government property? A. Right. Q. And contrary to those instructions you did seek the application of names, according to your testimony? A. Yes. Q. While on government property? A. Yes. Q. Mrs. Alexander told you not only had you violated her specific instructions, but that she would have to fire you because of same? A. Right. Q. Soliciting on government property? . .. It was her reason to you for letting you go? A. Yeah, that's what Mrs. Alexander put. Employees Brenda Bennett and Wiggins testified, without contradiction, that the next day Alexander told them that Williams had been the cause of Patterson's dis- charge. Alexander testified that at the meeting she told Wiggins that Patterson was fired "for soliciting on the shipyard, and the shipyard demanded [Alexander] to fire her." However, Alexander later disclosed that no Navy representative had requested the discharge-the "demand" was simply a provision in her contract with the Navy, which contract was never produced. Brenda Bennett quoted "supervisor" Covington 20 as having said that Patterson had been discharged for union activities. It appears that Alexander believed, erroneously, that Wil- liams had instigated Patterson's activity on behalf of NAGW.2 1 When called as a witness by Respondent's counsel, Al- exander expounded on Patterson's violation of a no-so- licitation rule. Alexander claimed that Respondent was bound by a Navy rule which completely prohibited so- licitation on Shipyard premises. Although she first indi- cated that such Navy rule was in writing and posted, she later testified that it appeared only as a provision in her contract with the Navy. But Alexander then disclosed 2" Covington's status is discussed below in connection with Bennett's discharge 21 Alexander testified that in the discharge interview Patterson "went on to tell [Alexander] who was telling her to get the petition going." However, Alexander's pretrial affidavit says that. when she asked Patter- son why she was soliciting. Patterson replied: "Some man asked me to do it " The affidavit continues: "[Patterson] did not identify him and I didn't ask. I believe that it was George Williams who asked her to do this" that she could, and did, authorize solicitation at the Ship- yard. She testified at length that she permitted three rep- resentatives of Local 572 to meet with her employees and sign them up for that union on Shipyard premises. The Shipyard security guards permitted the Local 572 representatives to enter the Shipyard on Alexander's au- thorization. As Alexander's testimony proceeded, it became appar- ent that the only written rules possibly in existence had been promulgated by her. They read, in pertinent part: The following actions on your part cannot be toler- ated and the appropriate disciplinary action will be taken. IMMEDIATE TERMINATION Soliciting on Shipyard Alexander testified that the rules were posted above the timeclock in her office. Patterson testified that she had never noticed any rules posted. It appears probable that the asserted rules were posted after Patterson was discharged. This probability stems from the fact that the General Counsel introduced the rules in evidence as one page of a two-page document, the second page being a notice by contract manager Thaddeus Bennett addressed to all employees and dated November 6. In offering the document into evidence, counsel for the General Counsel identified it as a two-page document he had received from Respondent pursuant to a subpena. Although at times Alexander suggested that what she found objectionable in Patterson's conduct was that she had solicited on Alexander's time, it is indisputable that the printed rule could not be read as so restricted and Alexander did not so understand it.2 2 As reflected in his leading questions, as quoted above, Respondent's counsel generally made no distinction between working and non- working time. And Alexander testified that she would not permit solicitation during an employee's lunch hour. Wanda Baker, a former employee who had quit be- cause of illness, testified that contract manager Bennett had regularly sold candy on the Shipyard premises, in- cluding, specifically, Alexander's office. Alexander testi- fied she was unaware of any such activity. I credit Baker. One bit of irony may be noted. Alexander testified that when she was fired Patterson asked if she could apply for unemployment compensation. Alexander replied that she would agree to Patterson's receiving such compensa- tion even though that would cause Alexander's "rates [to] go up." And then, in answer to a leading question by her counsel, Alexander said that Patterson left with "no hard feelings . . . whatsoever." 22 In a pretrial affidavit Alexander said: "When I first started working I told employees that they could not solicit on government property I did not distinguish between working time or nonworking time because employees are not allowed on the property during nonworking time." 514 A & B JANITORIAL SERVICE d. Brenda Bennett B. Bennett commenced to work for Respondent on May 3. She actively supported the NAGW campaign by assisting in circulating a petition at the October 16 meet- ing and then taking a petition with her and obtaining sig- natures thereon at the Shipyard. She testified that, as in- structed by Faisson at the meeting, she restricted her so- licitation to nonworking time; i.e., before and after work. 23 Upon Patterson's discharge early on the morning of October 17, she was replaced by Beverly Covington as Bennett's "supervisor." Alexander testified that Coving- ton was a "supervisor trainee," having all the duties and functions of a "supervisor," but at a lower rate of pay.2 4 In Respondent's modus operandi, "supervisors" do no physical work themselves. They have participated in dis- ciplinary interviews conducted by Alexander. Because some of the approximately 500 buildings the employees work in are several miles from Alexander's office and there is only one "contract manager" on the day shift and one on the night shift, it appears necessary that there be supervisors with authority to exercise independent judgment concerning the work of employees, particular- ly since it appears that the employees generally are not well educated and have had little, if any, job training or experience. Accordingly, I find that Covington was a su- pervisor within the meaning of Section 2(11) of the Act. In any event, I agree with the General Counsel's con- tention that, even if Covington were not a statutory su- pervisor, she would be an agent of Respondent. She was held out as a "supervisor" and in dealing with employees spoke on behalf of Alexander. B. Bennett testified that on October 17, after Patterson was discharged, Covington said that she would be Ben- nett's "new supervisor because Mrs. Alexander had fired Patricia [Patterson] on account of the union." Bennett further testified that she had been instructed "to keep a close eye" on the building in which Bennett worked be- cause "Mrs. Alexander said she needed something so she could fire" Bennett and "was going to try to get rid of her." The next day, Bennett, Wiggins, and Rosetta Williams were called to the office. Alexander said she had called them in because she felt they were upset by Patterson's discharge and Alexander explained that "she had to get rid of [Patterson] because she was soliciting on govern- ment property and was causing trouble." 25 Bennett fur- ther testified that Alexander said that the three employ- ees were not getting their work done. Bennett also testi- fied that she had never before been disciplined or criti- 23 Opportunity for solicitation was provided by the bus trips between Alexander's office, where employees clocked in and out, and the various buildings in which they worked. 24 Alexander's pretrial affidavit says that each supervisor "has about 9 or 10 people to direct." However, Patterson testified that she had super- vised 18 employees. which would accord with testimony that there were up to 280 employees 2 Bennett, like other employees, accused Alexander of appealing to racial prejudice, then and at other times, based on the fact that Patterson was the only white supervisor, whereas most of the employees were black. Although I credit such employee testimony, which is uncontradict- ed, it would serve no useful purpose to repeat or summarize it here. cized and supervisors had twice sent memos to Alexan- der praising the work of Bennett's group. Bennett then testified concerning the meeting with WIN officials, referred to above. According to Bennett, Alexander there said that "she had to get rid of [Wil- liams] on account of the union" and "she was going to fire everybody that had anything to do with the union, that went to the meeting" on October 16. According to Bennett, Alexander also stated that "she had the petition that everybody had signed" and "she was going to get rid of' all signers. On October 22, the next working day, Covington took Bennett to Alexander's office. Thaddeus Bennett was present in the office with Alexander. Alexander asked B. Bennett if she had attended the union meeting. B. Ben- nett testified that she refused to answer, saying that it was none of Alexander's business because the meeting was held on Bennett's "own time." Bennett testified that Alexander thereupon said that "everything that goes on in the shipyard is her business" and, because Bennett dis- agreed on that point, Alexander "could not use [her] any longer." Neither Alexander nor Covington, Respondent's only witnesses, denied the major portion of Bennett's testimo- ny. The only disparity in the evidence was between Ben- nett's and Alexander's testimony concerning their en- counter on October 22, when Bennett was discharged. Alexander testified that employee Sheila Uzzle had come to the office greatly disturbed by the fact that some other employees, including Bennett, had been spreading a false rumor that Uzzle had attended a union meeting. Alexander testified that she said to Uzzle: "Suppose you were?" and the employee said she did not "want them lying on me because I'm a supervisor. I'm trying to get this job as a supervisor." Alexander testified that she then called Bennett to the office. Alexander did not reveal what other employees Uzzle had named; nor did Alexander indicate why she chose to speak only to Ben- nett. Alexander testified that she first stated that Ben- nett's attending the union meeting had "nothing to do with whatever [Alexander was] going to ask," which re- ferred to Uzzle. Alexander proceeded to charge that Bennett had been unable to get along with her supervisor and, without specifics, said that "this is the third time I have had you in here, but this time it is a little bit differ- ent." Alexander then proceeded to ask why Bennett did not like Uzzle. According to Alexander, Bennett replied: "It's none of your goddamn business what I do when I leave this MF job." Alexander thereupon fired Bennett as a "disrespectful employee." Alexander testified that the only other reason for the discharge was that Bennett "was giving her supervisor a hard time . ..and she ad- mitted it." There is no evidence of an "admission." In testifying, Bennett unequivocally denied that she had had any difficulty with her supervisor or had been accused of giving her supervisor a hard time. She also denied that she had ever cursed Alexander. Patterson, who had been Bennett's "supervisor" through October 16, also denied that she had had any problems with Ben- nett. Covington, who was Bennett's supervisor for a day 515 I)lCISI()NS ()F NAII()NAL AI()R REtLATI()NS B()AR1) or two, did not testify to any problems with Bennett.26; Most significant was Alexander's testimony that Bennett said it was no concern of Alexander what Bennett did after work. he general tenor of Alexander's testimony on the matter was that there was a work-related dispute between Uzzle and other employees, including Bennett. Since Alexander did not indicate that she was puzzled or surprised by Bennett's reference to her activities after work, one might reasonably infer that the difficulty, if any, concerned the Union, an inference bolstered by Al- exander's testimony that Uzzle's disturbance was caused by a rumor that she had attended a union meeting. In testifying, Wiggins listed Uzzle as one of the employees present at the union meeting. One might also reasonably infer that Uzzle conveyed to Alexander information con- cerning the union activities of the employees. That would help explain why Bennett was the only one called to the office. Wiggins, the only other ardent union activ- ist then left in Respondent's employ, was discharged the same day as Bennett. On October 18, Alexander had ad- vised Bennett and Wiggins2"' to resign because discharge would not look good on their records. It should be noted that Respondent did not call Uzzle as a witness. Additionally, in a pretrial affidavit, Alexan- der said that when she "called Brenda [Bennett] into [her] office to discharge her [Alexander] had Eunice Thomas, a secretary, to witness what was said," because Alexander testified that what Bennett said at the October 22 interview was the principal (indeed, the only) reason for her discharge, Respondent's failure to call Thomas requires an inference that Alexander's chosen "witness" would not support Alexander's claim. e. Olivia Wiggins As previously noted, Wiggins, like Patterson and B. Bennett, was very active on behalf of NAGW. Like Ben- nett, Wiggins solicited signatures on a union petition at the Shipyard. Like Bennett, Wiggins was called to the office on October 18, when Alexander expressed her dis- pleasure at the employees' having "gone behind her back" to get a union, stated her reason for having dis- charged Patterson, 2x and advised the three employees to resign so as to avoid having discharges on their records. Wiggins testified that Alexander complained of Wiggins' not being friendly to other employees, to which Wiggins replied that she had her job to work, not to make friends. Wiggins then testified that, later on October 18, Cov- ington warned Wiggins to "watch out" because Alexan- der had said that she "want[ed] to get rid of [Wiggins] some kind of bad." This testimony was not contradicted by Covington or Alexander. In her initial testimony, when called by the General Counsel, Alexander stated three reasons for Wiggins' dis- 21 Covington's testimony concerned principally Wiggins She was not questioned about Bennell 27 Along ith Rosetta Williams, wshose role is not shown(ii in tihe record 28 Alexander testified that in his nmeeting she accused the three cm ployees of causing Patlerson's discharge "I said, 'You girls should be ashamed of yourselves You have made that girl lose her obh for no reason You boosted this girl Io (lo something You knew it was vrong. You know the rules"' charge: (I) "She kept fighting with the people she worked with"2" (2) "She wouldn't pay any attention to nothing I would tell her to do"; (3) "Fighting with the supervisor every day, and the boy that worked [with her]-nobody couldn't work with her, and I have had her under three supervisors." First, it should be observed that Alexander maintained that Wiggins' personality problems, which made her a problem employee, existed throughout her employment. Yet Alexander also testified that at one time Wiggins quit and was later rehired. Thus, her alleged difficulty in personal relationships can hardly be said to have been the immediate cause of her discharge on October 22. Second, it should be noted that Alexander did not identify or call as witnesses any of the "three supervi- sors" under whom Wiggins had allegedly worked. Pat- terson, who had supervised Wiggins, denied having had any difficulty. And Covington, who was Wiggins' super- visor for a day or two, did not indicate that she had any problems with Wiggins. Alexander's principal asserted reason for Wiggins' dis- charge appears to be two unfriendly exchanges between Wiggins and Glen Hicks, a young coworker. The first of these contretemps occurred at the employee meeting on October 19, attended by two representatives of the WIN program. Although Alexander and several other wit- nesses testified to this encounter, nobody actually told how the dispute arose or even what it concerned.3 0 Al- though the evidence does not disclose whether Hicks or Wiggins was (or if both were) at fault, the testimony of WIN representative Andrews, obviously a disinterested witness, is illuminating. ()n cross-examination by Re- spondent's counsel, Andrews testified, in part, as follows: Q.... Ms. Wiggins used foul, profane words, curse words, obscene words to Mrs. Alexander; isn't that true?' Sir, you know that to be true, don't you? A. I really can't remember. I can only say that it was a very heated argument. Verbal words were coming back. I couldn't say what she said exact- ly. . .. A number of people just talking out. It was very heated.... But to say that certain words were said, I just can't say yes or no, because it was just a lot of things said at that meeting. 2' Alexander added "I had to send the police down to the building to get her" Alexander's other estinlor, howsever, indicates that she called the police only on the day after W'iggins' discharge, hen she returned to the Shipyard to dcliscr her ID badge Calling the Na,.y police was ap- parcnrtly unnlecessary. silcc Wiggins had left her badge and departed before they arrived " Alexander testified that licks told Bennett that she should not talk toi Alexan;lder the wsas she as talking N details or amplificattit was pro\iled. 5 A & JANIT()RIAL SR VIC'I: Q. Now, this argument you're talking about he- tween Ms. Wiggins and another gentleman-was that other gentleman trying to physically restrain her? A. They just got in a heated argument. I think the gentleman would have done bodily harm if he could have, or tried to. ill my opinion. That's the way it looked like. According to Alexander, Wiggins called Hlicks a "god- damn dog." Wiggins denied having used any curse words but conceded that she expressed agreement when Alexander accused her of treating Hicks like a dog. The second unpleasant exchange between Hicks and Wiggins occurred at work on Monday, October 22. Cox- ington, who was then serving as supervisor, testified that when she entered the building in which they were work- ing Wiggins pointed out sonic items of work that Hicks had failed to perform. Blicks approached the two women "and one word led to another.... It was name calling back and forth. She called him a queer, names and things, and he was responding, you know, with little words." Covington thereafter testified that she "appreci- ated [Wiggins'] showing [he r] things" that were nrot being done properly. Covington testified that she and Wiggins walked over to Hicks arid "I guess he got ex- cited, and [Wiggins] did too, and one thing led to an- other." According to Covington, Wiggins was extremely loud and profane and could not be calmed down. Cov- ington told Hicks to talk away, and as he did so he called taunts and challenging remarks to Wiggins. Covington reported the incident to Alexander. She told Alexander that "Olivia and Glen were arguing back and forth, and Olivia was loud as well as Glen. But [Covington] could not control Olivia mostly." Alexander instructed Covington to bring Wiggins to the office. Al- exander testified that, before Wiggins was brought to the office, Hicks telephoned and said that Wiggins had start- ed the dispute and that he was "scared to work with this girl," who was "threatening to kill" him. According to Alexander, after Wiggins arrived at the office she "start- ed cursing and saying, 'I don't like this GD job . . . I don't want this GD job. Give me my check."' Alexander testified that she then got her checkbook out and wrote a check, whereupon Wiggins left. 3 There are two particularly noteworthy factors in 'aj: faire Wiggins; i.e., Alexander apparently did not question Hicks or otherwise investigate the matter and Hicks was not called as a witness. Finally, note should be taken of Alexander's apparent contention that Wiggins quit her job when informed that she would "have to work with" Hicks if she was "going to stay down there." As noted above, in a pretrial affidavit, Alexander had said that she "called Brenda into [the] office to discharge her." al Alexander added that Wiggins Irook her 11) badge with her and t's against the law to take the badge off the shipyard " Ihere wa s o c,i i- dence that Alexander asked for Wiggins' badge It is inderstandlhle haLt under the circumstances, such matter would escape rhe attentiotn of bhth women Wiggins' lapse ohsioulsly played no part in her disc h ilge 3. Section 8(a)(2) As previously noted, around the middle of May. Alex- ander dissuaded the employees from choosing to be rep- resented by Local 572 b informing them that the union dues were 7 per month plus 53 cents per hour and that the employees would be required to pay dues from May I on. Then, in October, some employees, spearheaded by Patterson, undertook to organize for representation by NAG VW. Upon learning of the union activities in October. Alex- arider complained that employees had gone behind her back to get a union, and said that. if they wanted one. she would get them one. She referred to Local 572. When the employees said they did not want that union. she threatened to recognize it and sign its collective-bar- gaining agreement, which she had before her. She in- formed the employees that, if she signed that contract, anrty emrployee who did not join the union within 30 days would be automatically discharged. She then announced the even stronger position that the employces were already represented by Local 572 alnd covered by the collective-bargaininig agreement oft that IrUnion with Kentucky Maintenance. the previous janitorial contractor. As said by Respondent's counsel in his opening statement at the hearing, concerning a em- ployee meeting on October 18, Alexander "explained to them that the union contractor was already on the job, whether they x, anited it [or] didn't wrant it. .. :'2 On November 12, Helen Artis, business manager of l.ocal 572. telephoned Alexander and stated that she had learned that representatives of another union had been permitted to talk to A & B's employees on the Shipyard and local 572 demanded an equal opportunity. Artis tes- tified that James l.ane, an employee of Respondent, had informed her of the other union's solicitation. However, James Lane did not testify and the record is clear that no outside representative of NAGW ever solicited at the Shipyard. Nonetheless, Alexander said that Artis would be welcome to speak to Respondent's employees on non- working time at the Shipyard. Thereupon, on the next day, Robert Ashworth, president of the Virginia and North Carolina Laborers' District Council: . L. Liver- man, business manager of the Council; and J. Carlin Taylor, agent for a local (presumably Local 5 7 2 )."a went to the Shipyard, where they were admitted by the secu- rity guards on Alexander's telephonic authorization. The three men spoke to all of Respondent's employees in three meetings during shift break. Alexander informed the employees of the meetings as they were waiting to clock in or out. a4 At the conclusion of each meeting Local 572 authori- zatioi cards were solicited. Ashworth testified that when the cards were being signed there were present two a' Counsel obhsiously was an "agent"'' of Respondent C'f (; ntrl ('art- age. Inc. 236 NI Rl 1212, 1244 45, 1254 (197;4, enfd h' the Seentlh ('iretilt in all illnpublished order :: Apparent l l Arti was olhers iste ellgaged that dl, :4 t is not clear ho'.,, inti lime i any, there .as hels.cii shl'ts Nor is it lervi hor. ist vwa indicated, the day-shift emrplosees i who were Ica,, iig c ld 1 ha.c attidenl ieenlilngs before the night-shift emplosees alid t l:l\ ;ill the i tcliiIsv conidutled on lnolr orkliig lirn 51 7 DECISIONS OF NATIONAL LABOR RELATIONS BOARD people whom he did not know but who "looked to be maybe making job assignments." In testifying, Alexander denied that any representative of Respondent had been present at the card signings. However, in a pretrial affi- davit she unequivocally stated that the contract manag- ers had witnessed the card signings. 35 In view of her pretrial affidavit, I discredit Alexander's denial that com- pany representatives witnessed the card signing. It ap- pears clear that Bumpers and Bennett were the two men who Ashworth testified had been present. Ashworth testified that in the first two meetings about 120 cards were signed. He took the cards to Alexander, said he thought the Union had a majority, and requested recognition. He thus proceeded to the third meeting. He did not testify as to how many, if any, cards were signed at the third meeting. Nor did he testify that he ever gave Alexander any cards obtained at that meeting. However, after the third meeting he again requested recognition. Without counting or examining the cards, Alexander forthwith executed a written recognition commitment presented by Ashworth. Then she similarly signed a Local 572 collective-bargaining agreement. It appears that thereafter union dues were checked off', although it does not affirmatively appear that the union cards contained checkoff authorizations or that separate checkoff authorizations were ever executed. However, there is no suggestion that any employees were ever dis- charged pursuant to the union-security clause in the con- tract. 36 The General Counsel acknowledges that thereafter Re- spondent withdrew recognition from Local 572 and the collective-bargaining agreement was rescinded. In the course of Alexander's testimony, although not specifical- ly examined in this regard, she indicated that she has compensated the employees for union dues deducted from their wages. 4. Discussion and conclusions a. Preface As stated above, supported by representative examples, I have concluded that Alexander's testimony is totally unreliable and cannot be credited. Her pretrial affidavits, which were used for impeachment, contain numerous substantial admissions. Under the circumstances present- ed, the affidavits may be considered as affirmative evi- dence. Alvin J. Bart and Co., Inc., 236 NLRB 242 (1978), enforcement denied on other grounds 598 F.2d 1267 (2d Cir. 1979); Snaider Syrup Corporation, 220 NLRB 238, fn. 1 (1975). Cf. Central Cartage, Inc., supra, 236 NLRB at 1251. And, as the General Counsel observes, testimony 3s Excerpts from her affidavit dated December 9 read [M]y contract manager who has the authority to hire and fire, his name is Theron Bumpers was watching people sign the cards. I did not check signature because he was watching people, sign. . . Mr. Bennett, the daytime contract manager, also watched the dayshift employees sign the cards. . . [O1ne of the [unionl men let me know when they finished the meeting and I sent both contract managers out to watch employees sign cards. Mr Bennett went home after the dayshift employees signed the cards. Mr. Bumpers stayed and watched both groups of employees sign cards. a6 Since Virginia is a right-to-work State, the union-security clause was unlawful. by Alexander adduced by "leading questions under direct examination" is entitled to "minimal weight." H. C. Thomson, Inc., 230 NLRB 808, 809 fn. 2 (1977). Alex- ander's testimony, when not flawed by inconsistencies and when not unwittingly against her own interest, is not given any weight because "conclusionary in nature" and "not generally supported by the facts in their fullest con- text as extensively developed at the hearing." Local Union o. 673, International Union of Operating Engi- neers, AFL-CIO (Westinghouse Electric Corporation), 229 NLRB 726 (1977). And, as indicated above, Respond- ent's failure to call any witnesses who were obviously in positions to know the facts and her failure to produce documentary evidence, such as the Navy contract under which she was operating, require inferences adverse to her. Goodyear Tire & Rubber Company Highway Transpor- tation Department, 190 NLRB 84, 86, fn. 3 (1971), enfd. 456 F.2d 465 (5th Cir. 1972); Zapex Corporation, 235 NLRB 1237, 1240 (1978), enfd. 621 F.2d 328 (9th Cir. 1980). The issues here presented are largely factual. The credibility resolutions lead directly to the conclusions, with little need for legal discussion or citation of authori- ty. b. Section 8(a)(1) The complaints allege some 11 independent violations of Section 8(a)(l) of the Act. With some minor excep- tions, all these specific allegations were proved by credi- ble and, in the most part, undisputed evidence. Evidence presented without objection and not contradicted or dis- puted establishes numerous violations of Section 8(a)(1) in addition to those specifically alleged. These additional 8(a)(1) violations are so inextricably bound up with the 8(a)(2) and (3) allegations that they were necessarily fully litigated. Accordingly, they will be included in the con- clusory findings here made. The evidence establishes the following violations of Section 8(a)(1): Interrogation: On October 22, Alexander unlawfully asked Wiggins why employees "had gone behind her back" to get a union and asked Brenda Bennett if she had attended the NAGW meeting on October 16. Threats: I have credited Wiggins' testimony that Alex- ander threatened Williams with discharge if Alexander heard any more about a union meeting. Although this separate threat was not specifically alleged in the com- plaints, it was clearly relevant to the allegation that Wil- liams was discriminatorily discharged. Since it behoved Respondent to deny such testimony if it were untrue, it is held that the matter was fully litigated and it violated the Act. According to the credited testimony of Baker and Brenda Bennett, it is found that on October 16, 17, and 18 Alexander threatened to sign a contract with Local 572 and that employees who did not join that Union within 30 days would be fired. Since Local 572 did not represent the employees, both statements by Alexander were threats violative of Section 8(a)(l). Creating the impression of surveillance: When discharg- ing Patterson on October 17, Alexander stated that she 518 A & B JANITORIAL SERVICE had pictures of Patterson going from building to building soliciting employees to join the Union (NAGW). On the same day, October 17, Covington, then a supervisor, told Bennett that Alexander had instructed Covington to watch Bennett carefully because Alexander "was going to try to get rid or' Bennett. The evidence as a whole requires the inference, which Bennett drew, that Alexan- der's instructions were motivated by Bennett's union ac- tivities. And WIN Representative Andrews testified that at the October 19 meeting Alexander stated that she had the names of employees who had attended a union meet- ing. This evidence establishes that on October 17 and 19 Respondent, through Covington and Alexander, respec- tively, violated Section 8(a)(1) of the Act by creating the impression that employees' union activities were being kept under surveillance. Promise of benefits: Wiggins credibly testified that in the WIN meeting on October 19 Alexander said: "You be good girls, and at Christmas time I'm going to re- member you." In the context of that meeting, where unionization became the chief topic of discussion, Alex- ander's statement implicitly constituted an unlawful promise of benefits at the end of the year if the employ- ees eschewed the Union. Although this statement was not alleged in the complaints, it was made in the course of a meeting which was thoroughly litigated. Statements that employees had been discharged for union activities: WIN Representative Andrews testified that at the meeting on October 19 Alexander stated that "she fired Patterson and George Williams because they were soliciting at the Navy Yard for a union." Since, as dis- cussed below, there was no valid no-solicitation rule, Al- exander's statement was violative of the Act. There was considerable evidence that Alexander made similar state- ments on October 17 and 18. It is manifestly coercive within the prohibition of Section 8(a)(l) for an employer to inform employees that they and/or other employees have been discharged for engaging in union activities, since such statements necessarily constitute a threat that other employees will meet the same fate if they support a union. Unlanful no-solicitation rule and enforcement thereof: Surprisingly, the complaints do not allege that Respond- ent violated the Act by promulgating, maintaining, and enforcing an invalid no-solicitation. However, Respond- ent injected the no-solicitation rule into the proceedings as her basic defense to the allegation that Patterson was unlawfully discharged. The existence and terms of the no-solicitation rule were fully litigated, primarily by Re- spondent. Accordingly, consideration of the lawfulness of the rule is properly an issue in this proceeding. The only written no-solicitation rule presented was promulgated by Respondent and was a broad, uncondi- tional prohibition of solicitation anywhere on the Ship- yard. No distinction is made between working and non- working time, and Alexander indicated that no such dis- tinction was intended or understood. There can be no doubt that Respondent's no-solicitation rule violated Sec- tion 8(a)(1) of the Act. a7 Stoddard Quirk Manufacturing Co., 138 NLRB 615 (1962). Respondent also violated Section 8(a)(l) of the Act by discriminatorily applying and enforcing her no-solicita- tion rule. Patterson was discharged for soliciting for NAGW, whereas Alexander arranged meetings at which outside representatives of Local 572 could solicit em- ployee memberships. And I have credited former em- ployee Wanda Baker's testimony that contract manager Bennett, Alexander's son, had sold candy to Respond- ent's employees on the Shipyard, including sales in Alex- ander's office. Accordingly, I find and conclude that Respondent vio- lated Section 8(a)(1) of the Act by promulgating,3 8 main- taining, and discriminatorily enforcing an unlawfully broad no-solicitation rule. c. Section 8(a)(3) The subsidiary findings set forth above leave no doubt of the conclusion that, as alleged, Respondent violated Section 8(a)(3) and (1) of the Act by discharging "dissi- dents" Williams, Patterson, Bennett, and Wiggins for their union activities. The evidence establishes that Alexander knew that Williams initiated the Local 572 organizational activity and she believed he later induced Patterson to solicit for NAGW. It is also clear that Alexander opposed both or- ganizational campaigns, although she found Local 572 the lesser evil.39 Alexander also vacillated as to the rea- sons for Williams' termination, with none of her explana- tions supported by credible evidence or able to withstand analysis. There can be no doubt of the unlawfulness of Patter- son's discharge. It is Respondent's own position that Pat- terson was discharged for violation of a no-solicitation rule which is invalid on its face. This establishes a viola- tion of Section 8(a)(1). Daylin Inc., 198 NLRB 281 (1972), enfd. 496 F.2d 484 (6th Cir. 1974); Glassmaster Plastics Company, 203 NLRB 944, 950 (1973). It is also clear that in Alexander's view Patterson's offense was not solicitation per se, but rather the purpose of the so- licitation; namely, representation of the employees by NAGW. Thus Patterson's discharge contravened Section 8(a)(3) and (1) of the Act. Sunnyland Packing Company, 227 NLRB 590, 596 (1976), enfd. 557 F.2d 1157 (5th Cir. 1977).4 0 al No opinion is here expressed as to whether this conclusion would be different if, as Alexander maintained. a complete prohibition of solici- tation on Shipyard premises had been imposed by the Navy as a term of her operating contract The contract was not produced And when Alex- ander was reminded that she had permitted Local 572 representatives to solicit at the Shipyard, she said that such solicitation did not violate the Navy rules "once they got permission from security." The only "permis- sion" they received from the Navy was to enter the Shipyard, given on Alexander's authorization a" Since Respondent's Shipyard contract began on May , the rule must have been promulgated within the 6 months immediately preceding October 22, the date of the first charge filed herein '9 Ashworth testified that when Alexander introduced the Local 572 representatises to the employees she said: "You-all kno, I'm not crazy about any union. 40 If the complaint in Case 5 CA-11658 had not been amended in ac- cordance with Respondent's denial that Patterson was a supervisor and if Continued 519 I))ECISI()NS ()F NA IONAI. IABOR RELA'IO()NS H()ARI) Bennett's and Wiggins' discharges were at least equally clearly violative of Section 8(a)(3). They had been lead- ing union activists. That Alexander knew that is clearly reflected in her calling them into the office and accusing them of having "gone behind her back to get a union" and explaining to them that Patterson had been dis- charged for soliciting for the Union in violation of the no-solicitation rule. Bennett's discharge interview started with Alexander's asking if Bennett had attended the NAGW meeting and the actual discharge followed Bennett's assertion of her right not to reply to the question. In discharging Wiggins, Alexander made no investiga- tion of the comparative responsibility of Hicks and Wig- gins for the difficulties between them. There was no evi- dence that Wiggins had been the instigator of the con- frontations. Supervisor Covington did not apportion blame and testified that she appreciated Wiggins' hav\ing pointed out deficiencies in Hicks' work. Alexander's ex- planation of the Wiggins' discharge is further weakened by a belated attempt to show that Wiggins actually had not been fired, but rather had quit. Finally, it is not with- out significance that, despite Alexander's claim that Wig- gins was chronically unable to get along with people, Al- exander had previously rehired Wiggins after she had quit. And, as the General Counsel notes, although Alex- ander testified that she had suspended 30 to 35 employ- ees for various reasons, Wiggins had never been disci- plined. Accordingly, I find that, as alleged, employees George Williams, Patricia Patterson, Brenda Bennett and Olivia Wiggins were discharged on October 17 and 22 in viola- tion of Section 8(a)(3) and (1) of the Act. 4 d. Section 8(a)(2) Little need be said concerning the alleged violation of Section 8(a)(2). A plethora of evidence establishes that, when it became clear that the employees would probably choose to be represented by NAGW, Alexander threatened to recognize and execute a collective-bargaining agreement with Local 572, which she had previously successfully fended off. She arranged meetings in which nonem- ployee representatives of Local 572 solicited among all the employees and then had employer representatives witness the employees' signing of Local 572 authoriza- tion cards. Then, without even counting the cards, Alex- ander formally recognized Local 572 and executed a col- lective-bargaining agreement. it were found that she was a supervisor. I should finld that hic discharge was violative of Sec. 8(a)(1) of the Act as an integral part Respondecn's overall plan to restrain and coerce emploetes ii derogation of their rights under Section 7 of the Act DR K' ( orporution d/h, a lro(rhcr Ithre, Cabhi nets, 248 NI RB 828 (19K(t) 4' Wanda Baker. wtho quit Respondent's employ because of illness. cs- tified, without contradiction, that she had been a "supervisor and inspec- tor" but around Ithe end of October "vas demoted for having a lunlilj petition in [her] possession, and Alexanderl said she ouldn't trust [Baker] any more. Baker, however, .as aiot the subject of any charge or complain It It does ot appear shehcr her crnploce status was the sanie as Patterson's, hut Respolndent denied Covinigtoln's supervisory staltus, i she denied that Patterson was a supervisor (C'ases 5-CA - I 1658 and CA-11716 This course of conduct clearly constituted unlawful as- sistance to local 572. Employees certainly cannot be ex- pected to act according to their free will if they sign cards solicited at meetings arranged by and conducted under the watchful eyes of management. This is particu- larly true here, where Alexander had previously threat- ened to recognize and contract with Local 572 regard- less of the employees' wishes and had said that the em- ployees were already represented by ocal 572, whether they liked it or not, and would be discharged if they did not join within 30 days. Alexander's failure to count the cards is also of great significance in view of the testimony of Ashworth, repre- sentative of the Laborers' District Council, that he had given Alexander about 120 cards and the evidence shows that there may have been up to 280 employees in the unit, with Alexander placing the number at 250. Thus, without counting them, Alexander could not rely on the cards as showing a majority. On all the evidence, I find that, as alleged, Respondent violated Section 8(a)(2) of the Act by giving unlawful as- sistance to Laborers' Local 572. CONCILUSIONS 01 LAW I. Respondent, Rosa M. Alexander d/b/a A & B Jani- torial Service, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Public Service Employees' Local Union 572, affili- ated with Laborers' International Union of North Amer- ica, AFL CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. National Association of Government Workers is a labor organization within the meaning of Section 2(5) of the Act. 4. Respondent violated Section 8(a)(l) of the Act by: (a) Coercively interrogating employees concerning union activities. (b) Telling employees that other employees had been discharged because of their union activities. (c) Creating the impression that employees' union ac- tivities were being kept under surveillance. (d) Threatening employees with discharge for engag- ing in union activities. (e) Promising benefits to employees if they refrained from engaging in union activities. (f) Promulgating, maintaining, and enforcing an unlaw- ful rule prohibiting solicitation by employees on behalf of a union. (g) Discrimninatorily enforcing a no-solicitation rule. (h) Threatening to execute a collective-bargaining agreement with Local 572 whether or not the employees wanted to be represented by that union. (i) Threatening employees with discharge if they did not join I.ocal 572. 5. Respondent violated Section 8 (a)(3) and (1) of the Act by discharging employees Patricia Patterson, George Williams, Brenda Bennett, and Olivia Wiggins because of their uniolon activities 6. Respondent violated Section 8(a)(2) and (1) of the Act by unlawfully assisting local 572 in obtaining union designation cards front employees: by recognizing and 520 A & H JANITORIAL. SRVICE' executing a collective-bargaining agreement with Local 572 when said Union did not represent an uncoerced ma- jority of the employees in the unit covered thereby by incorporating in said agreement a union-security clause requiring employees to become or remain members of an illegally assisted uion as a condition of continued em- ployment; and by checking off Local 572 dues from em- ployees' wages. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mealing of Sec- tion 2(6) and (7) of the Act. Till- R MEI)' Having found that Respondent has engaged in unfir labor practices, I shall recommend that she be required to cease and desist therefrom and to take certain affirma- tive action designed to effectuate the policies f the Act. Since it has been found that Respondent unlawfulh discharged George Williams, Patricia PIatterson, Brenda Bennett, and Olivia Wiggins, it will be recommended that she hbe required to offer them immediate and full re- instatement and make them whole fr any earnings lost by them as a result of their discharges, the amount of backpay to hbe computed in the manner prescribed inl W Woolworth Company, 90 NLRB 289 (1950). with in- terest computed in accordance with Florida Steel Corpo- ration, 231 NR 651 (1j977).42 It is also recommended that Respondent be required to expunge from her re- cords all reference to the discharges here involved and to any asserted violations of Respondent's no-solicitation rule. The reinstatement and backpay requirement herein recommended is specifically made applicable to Patricia Patterson even if it should be determined in some other proceeding or at some other time that her position was and is a supervisory position. Whatever her actual status her discharge was an integral part of Respondent's course of unlawful conduct designed to prevent union- ization of the employees and thus restoration of the status quo as to Patterson is required. See DR W' Corpora- lion d/b/a Brothers Three Cabinets, supra, 248 NLRH 828, where the Board required reinstatement and backpay for a supervisor in view of a course of conduct by tie em- ployer similar to that involved in the present case Normally an order remedying 8(a)(2) violations such as those here found would require that Respondent with- draw recognition of the unlawfully assisted union and re- scission of the collective-bargaining agreement with the assisted union. However, counsel for the General Coun- sel has stipulated that such remedial action has already been taken and accordingly he does not request the in- clusion of such affirmative requirements in the order to be issued herein. However, although Alexander testified that she has already reimbursed the employees for union dues checked off, the General Counsel has not stipulated or otherwise conceded that such action has been taken. Accordingly. because of the general unreliabililx and im- precision of Alexander's testimony I shall recommend that the order contain an affirmatise requirement for such reimbursement to the extent that it has not alre;idx 42 See. general \ , tlit PlunhrnW &{ /caris (,., 11s N Rll '1, (]'Q I ) been effectuated. Such reimbursement shall be made with interest in accordance with Florida Steel Corp.. supra. The remaining question concerns the scope of the cease-and-desist order to he issued. Respondent's unfair labor practices were widespread alld bespoke a determination to serve her own self-inter- est, without regard to her employees' rights under Sec- tioi 7 of the Act. While the unfair labor practices might haLve resulted from the absenlce of any previous experi- encc or knos vledge of the requirements of the Act, Alex- ander's tcstlimony and demeanor at the hearing failed to shoa, that she has made any attempt to familiarize herself swith her responsibilities under the Act or to mitigate her pursuit of her self-interest, In m opinion, her unfair labor practices and her conduct in the litigation, includ- ing the conflicts between her pretrial affidavits and her subsequent testimony, give reason to fear that there ma5 be future violations. In other words, I find that Alexan- der has sho)n a proclivity to violate the Act, [and] has engaged in such egregious [and] widespread misconduct as to demonstrate a general disregard for the employees' fundamental statutory rights." Ifickmnott oods, Inc., 242 NI.RI3 1357 (1979). Accordingly I shall recommend is- sualice of a broad cease-and-desist order. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of Ithc Act, I hereby issue the following recommended: ORDER 4 1 The Respondent, Rosa M. Alexander d/h/a A & Janitorial Service, Portsmouth, Virginia, her officers agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning union activities. (b) Telling employees that any employees have been discharged because of their union activities. (c) Creating the impression that employees' union ac- tivities are being subjected to surveillance. (d) Threatening employees with discharge if they engage in union activities. (e) Threatening to recognize and execute a collectixe- bargaining agreement with aborers' Local Union 572 unless and until such iabor organization is duly certified by the Board as the collective-bargaining agent of Re- spondenl's employees piursuant to Section 9(c) of the Act. (0) Threatening employees ,ith discharge if they do not join aborers' Iocal inion 572 or any other labor organizationl. (g) Promulgating, maintaiing, or enforcing any rule or policy prohibiting employees from soliciting for or against any union at the Norfolk Naval Shipyard ill Portsmouth, Virginia, during the emplo,ces' nonworking time. I4 t 11 I ",ll nl ll. r pt ls ,t :1 s pr4,aldcd h S ,et 1l2 4 ,1 iIt Ru'lI , Jnd Rcguli.ltrls eT 11 NatillOial I air Rc.latnws Hls td, It( lil.l ilg. I Ik l iiiNill],, 111 rcc. ,lllll'l die,1 i(r,dcr hcrirl 'Aill , :1i.T i, Tdi.-ldl ]I St 1 t2 4 ,/0 r cl R' ll cguilt s hi ,tdllp -i \ ilt II-,,rcd and OL1t111 - IlI, llt ,,1 C tlu't11lf:l ;l td r .11 l] ill [rpcct l shall tbc t ~ 11rl d a. ' rl.l uposes 521 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (h) Discharging or otherwise disciplining any employ- ees for soliciting on behalf of or against any labor organi- zation on the Norfolk Naval Shipyard in Portsmouth, Virginia, during the employees' nonworking time. (i) Promising any employees benefits if they refrain from engaging in union activities. (j) Assisting or contributing support to Laborers' Local Union 572 by recognizing or bargaining with such labor organization as the exclusive representatives of her employees for the purpose of collective bargaining unless and until Local 572 is certified by the Board as the col- lective-bargaining representative of said employees pur- suant to Section 9(c) of the Act. (k) Maintaining or giving any force or effect to the collective-bargaining agreement with Local 572 dated November 15, 1979, or extension or modification thereof; provided, however, that nothing in this Order shall au- thorize or require the withdrawal or elimination of any wage increase or other benefits or terms and conditions of employment which may have been established pursu- ant to the performance of that contract. (I) Withholding from the pay of any employees union dues or other union fees or assessments which have been deducted because of any obligation of membership in Local 572, and paying to Local 572 any dues, fees, or as- sessments which have been deducted from the pay of her employees. (m) Discharging or otherwise discriminating against employees with regard to hire and tenure of employment or any term or condition of employment for engaging in activities on behalf of or against a labor organization. (n) In any other manner interfering with, restraining, or coercing her employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer George Williams, Patricia Patterson, Brenda Bennett, and Olivia Wiggins immediate and full reinstate- ment to their former positions of employment or, if any such position no longer exists, to a substantially equiva- lent job, without prejudice to their seniority or other rights and privileges. (b)Make George Williams, Patricia Patterson, Brenda Bennett, and Olivia Wiggins whole for any loss of pay they may have suffered as a result of the discrimination against them, in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (d) Rescind Respondent's no-solicitation rule and remove from her records and destroy all references to the discharges of Williams, Patterson, Bennett, and Wig- gins and to violations of the no-solicitation rule. (e) To the extent Respondent has not already done so, reimburse past and present employees for any union dues or fees heretofore deducted from their wages, such reim- bursement to bear interest as set forth in the Remedy section of this Decision. (f) Post at Respondent's offices in the Norfolk Naval Shipyard in Portsmouth, Virginia, copies of the attached notice marked "Appendix." 4 4 Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by Respondent, shall be posted by her immediately upon receipt thereof, and be main- tained by her for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 5, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 44 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 522