Whitewood Oriental Maintenance Co., World Service Co., Lucky Service Co.

WHITEWOOD MAINTENANCE CO 1159 Charles Yoon d/b/a Whitewood Oriental Mainte- nance Company, World Service Company, Song Ae Lim d/b/a Lucky Service Company and Chi Ho Rho and Jung Je Py and Hyung Bok Seo and Service Employees Union, Local 87, Service Employees International Union, AFL- CIO and Service Employees Union , Local 77, Service Employees International Union, AFL- CIO, Party to the Contract Cases 20-CA- 018770, 20-CA-18771, 20-CA-18904, and 2- CA-18903 February 16, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On November 20, 1985, Administrative Law Judge Jerrold H Shapiro issued the attached deci sion Respondent Song Ae Lim d/b/a Lucky Serv ice Company filed exceptions and a supporting brief The General Counsel filed exceptions and a brief in support of her exceptions, in answer to the Respondent's exceptions, and in support of portions of the judge's decision Lucky thereafter filed an answering 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 briefs and has decided to affirm the judge's rulings, findings, i and conclusions only to the extent consistent with this Decision and Order The judge found that Respondent Lucky violat- ed Section 8(a)(1) of the Act through the conduct of its owner, Song Lim, by promising employees better benefits if they voted against Service Em ployees Union, Local 87, and threatening reprisals if they voted in favor of Local 87, violated Section 8(a)(3) and (1) by discharging employees Hyung Bok Seo and Chi Ho Rho, and, as a successor em- ployer, violated Section 8(a)(5) and (1) by refusing to recognize and bargain with Local 87 concerning its employees' terms and conditions of employment, by recognizing another labor organization and en- tering into a contract with it, and by unilaterally implementing changes in employees' working con- ditions Although we adopt all the violations found i Respondent Lucky has excepted to some of the judge s credibility findings The Board s established policy is not to overrule an administra Live 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 re versing the findings by the ,judge ,2 we find that Lucky committed the 8(a)(5) violations because it was a joint employer with World, and not because it was a successor employer The judge also found that the amended com- plaint's 8(a)(2) allegations were not closely related to the violations named in the pending 8(a)(5) charge and therefore required dismissal as they were not timely filed For the reasons set forth below, we reverse the judge's findings and find that those allegations are properly before us and that Lucky and World, as joint employers, violated Section 8(a)(2) and (1) by unlawfully assisting Local 77 Finally, the judge found that Charles Yoon d/b/a Whitewood Oriental Maintenance Company, World, and Lucky (collectively the Respondents) are not joint employers,3 that World's change in subcontractors from Whitewood to Lucky did not violate Section 8(a)(3) and (1), and that the dis charge of employees Jung Je Py and Woo Young Jhun did not violate Section 8(a)(3) and (1) 4 The General Counsel excepts to all of these conclu- sions We find merit to these exceptions and for the reasons set forth below, we reverse I BACKGROUND Respondent World, whose principal place of business is Houston, Texas, is a janitorial contrac tor conducting business throughout the United States In lieu of employing its own janitors, World usually subcontracts its work to other janitorial companies who use their own employees Shik Sony is World's president and owner Gregory Choo, who, during the time material, represented himself to the public as World's executive vice president with Sony's permission, is World's agent in San Francisco handling World s contracts at San Francisco International Airport (SFO) In approximately February 1982, World con tracted with several airlines to perform their janito rial work at SFO Each of these contracts con- tained a nonassignment clause that prohibited World from subcontracting the work without the 2 We also find that World Service Company is jointly responsible for these violations because we find below that Lucky and World are joint employers ' In light of this conclusion that the Respondents are not joint employ ers the judge did not consider whether Whitewood Supervisor Jung s in terrogation of various employees regarding their union sympathies violat ed Sec 8(a)(1) because the General Counsel and Whitewood had entered into a settlement agreement at the hearing covering this alleged miscon duct 4 Although the judge found that Whitewood violated Sec 8(a)(3) and (1) by discharging employee Ronald Albert Kelleher he did not provide a remedial order because of the settlement agreement entered into by Whitewood He also dismissed the allegation as it applied to Lucky and World because of his conclusion that they are not joint employers with Whitewood 292 NLRB No 130 1160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD airline's written permission Nonetheless, World surreptitiously subcontracted the SFO work initial- ly to Respondent Whitewood, a janitorial company to which World had subcontracted work at Los Angeles International Airport since at least 1980 Whitewood is a sole proprietorship owned and op- erated by Charles Yoon, whose residence and place of business are located in Los Angeles World and Whitewood renewed their SFO contract on Janu- ary 1, 1983,5 and signed an agreement whereby World subcontracted all of its SFO janitorial work to Whitewood subject to cancellation by either party with 30 days' notice As discussed below, World decided to cancel this contract in October and replace Whitewood with Respondent Lucky Respondent Lucky is a sole proprietorship owned and operated by Song Ae Lim Choo, World's agent in San Francisco, guaranteed Lim's bank loan so that she could establish this janitorial business Lucky did not commence operations or employ any employees until November 17, when it took over Whitewood's SFO janitorial operation Prior to this time, however, Lim, on behalf of Lucky, had entered into a collective bargaining agreement with Local 77 of the Service Employees International Union, AFL-CIO (Local 77) That agreement, which was signed on April 28, applied to any janitorial employees Lucky might employ within Local 77's geographical jurisdiction in the future A successor agreement, effective by its terms from May 1, 1983, to May 1, 1986, was signed by Local 77 and Lim, on behalf of Lucky, in July or August, even though Lucky had not yet conducted any business This agreement was re negotiated in November, when Lucky took over Whitewood's SFO work Nak Young Sung, a Whitewood janitor at SFO, began a campaign in July 1983 to organize his fellow employees in support of Local 77 Although Sung provided Local 77 with the signed authoriza tion cards and requested it to file a representation petition with the Board, Local 77 failed to do so Sung then contacted Local 87, which provided him with authorization cards After Sung returned the signed cards to Local 87, the Union filed a repre sentation petition on September 22 with the Board's San Francisco Regional Office seeking an election in a unit of Whitewood's SFO janitors 6 Pursuant to a stipulated election agreement be- tween Local 87 and Whitewood, the Board con- ducted an election on November 10 among Whitewood's janitors The tally of ballots showed nine votes for and seven against Local 87, with four challenged ballots Whitewood filed an objec S All dates hereafter are 1983 unless otherwise indicated 6 Case 20-RC-15677 tion to the election on November 17 and a hearing was held to resolve the issues raised by the objec- tion and the challenged ballots The hearing officer recommended that Whitewood's objection and three of the four challenges be overruled and the three ballots counted After the 3 ballots were opened, resulting in a revised tally of 11 for and 8 against Local 87, the Regional Director certified Local 87 as the exclusive bargaining representative of the janitors on March 29, 1984 On October 3, 1983, approximately 2 weeks after Local 87 had filed the representation petition, World gave written notice to Whitewood that it was canceling the SFO contract Pursuant to a verbal agreement between World and Lucky, Lucky replaced Whitewood as World's subcontrac- tor at SFO on November 17 After World s notice to Whitewood, Sony directed Lim to observe the SFO janitorial operation and, along with Choo and labor relations consultant Kenneth R White, to help handle Whitewood's representation election proceeding When Lucky assumed the SFO work on November 17, it offered employment to all of Whitewood's janitors except two who indicated that they did not wish to work for Lucky Lucky also imposed a new set of rules and regulations en titled "Rules and Regulations of Personal Con duct" and required the janitors to return a signed copy of these rules indicating their assent to work ing under these conditions Approximately 11 days later, Lucky also changed the hours of the night shift workers On December 1 Lucky put into effect the terms and conditions of employment set forth in the contract Lucky had entered into with Local 77 7 Between November 22 and December 6 Lucky discharged janitorial employees Jung Je Py, Woo Young Jhun, Hyung Bok Seo, and Chi Ho Rho These discharges are discussed in more detail, below II THE JOINT EMPLOYER ISSUE A World- Whitewood The judge found that because World did not share or co-determine the terms and conditions of employment of Whitewood's SFO janitors, World is not a joint employer In reaching this conclusion, the judge relied on the fact that Whitewood's owner, Yoon, had initially hired the janitors, had set their terms of employment, and had hired su 7 On November 21 Lim and Choo met with Local 77 s president to re negotiate the successor contract which Lim on behalf of Lucky and Local 77 had signed earlier in the year The only changes in this con tract s provisions were the change of the effective date of the contract to December 1 and the exclusion of four members of Lim s family from the contract s coverage WHITEWOOD MAINTENANCE CO 1161 pervisors who directed them He also did not find that the evidence proffered by the General Counsel to establish joint employer status was persuasive Contrary to the judge, we find that World and Whitewood are joint employers of Whitewood's SFO janitors The determination of whether World possessed sufficient control over Whitewood's janitors to qualify as a joint employer "is essentially a factual issue" Boire v Greyhound Corp, 376 US 473, 481 (1964) As the judge correctly noted, the Board continues to adhere to the standard set out in NLRB v Browning-Ferris Industries, 691 F 2d 1117 (3d Cir 1982), to determine whether separate busi ness entities constitute joint employers See, e g , W W Grainger Inc, 286 NLRB 94 (1987), enf denied on other grounds 860 F 2d 244 (7th Cir 1988), TLI Inc, 271 NLRB 798 (1984), enfd 120 LRRM 2631 (3d Cir 1985) Under this standard, the Board must decide "whether two or more em ployers share or co determine those matters gov- erning the essential terms and conditions of em ployment '8 O Voorhees Painting Co, 275 NLRB 779, 780 (1985) The Third Circuit in Browning- Ferris concluded that Browning Ferris Industries (BFI) and the independent trucking brokers which supplied drivers were joint employers because they shared or co determined the following matters the right to hire and fire drivers, the establishment of working hours, the determination of drivers' com pensation, day to day supervision, the direction of workers at certain sites, the use of BFI forms for recordkeeping purposes, the provision of BFI uni forms for the drivers, the right of approval over which drivers to use, and the establishment of rules under which the drivers would operate Applying this standard to the instant situation, we find that World through the actions of its agents Choo Lim, and White, meaningfully affected the Whitewood janitors' terms and conditions of em- ployment The judge erred by concentrating on Yoon s hiring and setting of employment terms after ac- quiring the subcontract from World in 1982 In so doing, the judge failed to focus on the period in which the unfair labor practices are alleged to have 'The Ninth Circuit finds a joint employer relationship when the second business entity exercises authority over employment conditions which fall within the area of mandatory collective bargaining See Sun Maid Growers v NLRB 618 F 2d 56 (9th Cir 1980) Tanforan Park Coun cal v NLRB 656 F 2d 1358 (9th Cir 1981) The Second Circuit has noted that although the Federal circuit courts have applied a variety of tests for determining joint employer status in a subcontracting context evidence of immediate control in the following five areas is particularly relevant under any test ( 1) hiring and firing (2) discipline (3) pay insurance and records (4) supervision and (5) participation in the collective bargaining process Clinton s Ditch Cooperative v NLRB 778 F 2d 132 138-139 (2d Cir 1985) occurred, namely, the period following the filing of the petition by Local 87 to represent Whitewood s janitors The General Counsel has alleged, and we agree, that World co-determined the Whitewood janitors' terms and conditions of employment during this relevant period of September 22 to No vember 17 The record indicates that after Yoon notified World's owner, Sony, of Local 87's petition, Choo and Lim appeared at SFO to handle matters on behalf of World The judge found that Choo, whose business cards identified him as the execu tine vice president of World, held himself out as World's executive vice president to the public He introduced himself in this manner to Whitewood's employees and supervisors, Local 87's representa- tives, and various personnel of airlines with which World had contracts The judge found that Lim also represented herself as World's representative to Whitewood's employees and to Local 87's repre sentatives It is clear that Whitewood had not re- quested these two individuals to handle the election matters because, as the record shows, Whitewood Supervisor Hwa Jong Kim called Yoon to ask who they were and Yoon, in turn, called Sony to ask the same question Rather, Sony sent Choo and Lim to SFO to assist in the handling of Whitewood's election strategy and directed Yoon to follow their instructions As Sony directed his subcontractor to follow the instructions of these two individuals whom he had sent, we find that Choo and Lim were acting pursuant to Sony s au thority White also acted as an agent of World while handling Whitewood s election strategy and em ployment matters Sony hired White in October 1983 and directed him to handle Whitewood s elec- tion representation strategy along with Choo and Lim White signed a retainer agreement only with World at this times Thus, White acted at the behest of World's owner, Sony Moreover, White's duties included more than merely handling Whitewood's election strategy His letters to Local 87 and to the Board's San Francisco Regional Office indicate that he represented Whitewood "in all phases of industrial relations We find that the authorization of these agents of World to deal with Local 87's attempt to represent Whitewood's jani- tors provides evidence of the joint employer status of World and Whitewood See Mar Del Plata Con- dominium, 282 NLRB 1012 (1987) Furthermore, other actions of these three individuals, who acted at the behest of World s owner Sony, establish that 9 White did not sign a retainer agreement with Whitewood until Janu ary 1985 1162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD World meaningfully affected matters relating to the employment relationship of Whitewood's employ- ees Evidence exists that World affected White wood's hiring and firing decisions during the rele vant period Discrediting Yoon's testimony that he made the decision to terminate employee Kelleher, the judge found that White directed Yoon to termi nate Kelleher Having received his instructions from Sony, Yoon complied with this request and the termination letter was sent to Kelleher Kel- leher's termination is therefore evidence of World's control of Whitewood's firing decisions during the relevant period See General Electric Corp, 256 NLRB 753 (1981) World also affected White- wood's hiring decisions As a result of a discrimma tion suit which Local 77 had filed against World 10 in 1982, alleging that World employed only Korean employees at SFO, World entered into an affirma tive action agreement with the San Francisco Human Rights Commission in May 1983 Pursuant to this agreement, World agreed to hire non Korean individuals in order to achieve a more ra cially representative work force World then di rected Whitewood to follow the terms of this agreement in its hiring at SFO Consequently, Whitewood's hiring decisions were limited by this agreement, which World had imposed on Whitewood i l World's provision of workers' compensation cov erage for the Whitewood employees constitutes further evidence of World's joint employer status See, e g, 0 Voorhees Painting Co 275 NLRB at 780 The fact that World's coverage occurred only near the end of Whitewood s tenure at SFO does not diminish its significance regarding World s in volvement in Whitewood's employment policies Rather, as the period of coverage was virtually the same as the period in which the unfair labor prac- tices occurred, that involvement underscores World s increasing control during the critical period 10 Because World sought to hide its subcontract to Whitewood from the public Local 77 did not have any knowledge of Whitewood s exist ence and therefore filed the charges against World who it assumed was the employer of the SFO janitors 11 Whitewood s acquiescence to World s orders in this and other mat tern is explained by the fact that Whitewood s SFO business was depend ent on the contracts that World had negotiated According to the testi mony of Whitewood s owner Yoon the amount World paid Whitewood pursuant to their contract varied monthly depending on whether World had lost a contract with one of the airlines If World lost a contract Whitewood would receive less money Yoon also testified that Whitewood did not perform any work at SFO other than that performed under the contracts negotiated by World Consequently Whitewood s workload and income which affected the number of employees Whitewood could maintain on its payroll depended entirely on World s success in securing and maintaining contracts at SFO We also find that World's appointment of Lim as its SFO coordinator or manager, as well as her ac tions taken pursuant to that authority, provide ad ditional evidence of the joint employer relationship The record establishes that World's vice president, Mayhew, wrote Whitewood's supervisor, Kim, that World no longer required his services because Lim was the manager of World's new company at SFO effective October 16 A few days later Choo wrote Mayhew requesting a formal written confirmation of Sony's appointment of Lim as World's SFO co ordinator The judge correctly rejected the Gener al Counsel's argument that these letters established Lim's supervisory authority over the Whitewood ,janitors, because the record shows that the supervi- sors whom Yoon had hired continued to supervise the janitors in their day-to-day duties Nonetheless, these letters appointing Lim as World's SFO coor- dinator or manager explain Lim's activities in effec tuating World's policy of opposition to Local 87's organization of the Whitewood employees during this preelection period The judge found that, during this period, Lim talked with Whitewood employees during their working hours and prom ised them better wages, hours, and benefits if they voted against Local 87, and threatened them with the loss of their jobs if they voted in favor of Local 87 Lim made these remarks after being in troduced to the employees as World's representa- tive, and the record does not show that the em ployees questioned Lim regarding World's ability to effect these changes in their wages, hours, and benefits Furthermore, World did not attempt to re- pudiate Lim's remarks and Whitewood's personnel did not question her authority to make them Con sequently, Lim's promises to alter the Whitewood employees wages, hours, and benefits while acting as World's agent and appointed SFO manager, pro vide further indicia of World s shared control over the Whitewood employees' terms and conditions of employment during the critical period Finally we note the existence of two additional factors relied on by the court in NLRB v Brown ing Ferris Industries, supra, to establish the joint employer relationship Like the drivers who wore BFI uniforms, the Whitewood janitors here wore badges with World's name while they worked Furthermore, the court noted that the joint em ployers used BFI forms for recordkeeping pur poses In the present case, Whitewood used station ery imprinted with World's name while transacting business with airlines and suppliers In light of the factors specified above, we con elude that World and Whitewood are joint employ ers because they shared or codetermined the .jani tors' essential terms and conditions of employment WHITEWOOD MAINTENANCE CO during the critical period in which the unfair labor practices occurred Accordingly, we find that World is jointly liable for any unfair labor practices committed by Whitewood between September 22 and November 17, 1983 B World-Lucky For many of the same reasons discussed above, we find that World and Lucky are joint employers of the janitors at SFO Choo, who we have found was acting as World's agent, played a major role in matters affecting the janitors' employment when Lucky took over for Whitewood in November The judge found that following Lucky's assump tion of operations, Local 87 Representative Leung contacted Choo and requested that Lucky bargain with Local 87 Choo refused Leung's request, stat ing that Lucky did not have any obligation to bar- gain and would not negotiate a contract with Local 87 He did, however, accompany Lim to meetings with Local 77 and assisted in the negotia tion of the November 21 contract which Lucky signed with Local 77 As noted above, participa tion in the collective bargaining process constitutes a relevant factor in establishing a joint employer relationship Furthermore, World's agent Choo af- fected Lucky's termination decisions The judge found that Choo initiated the discharge of employ ee Seo, a Local 87 adherent When Seo questioned Choo on whose authority the latter could fire him, Choo replied that he was a vice president of World Finally, Choo also explained the new "Rules and Regulations of Personal Conduct" to the Lucky janitors at a November 17 afternoon meeting 12 Labor consultant White drafted, and directed that Lucky institute a set of work rules entitled "Rules and Regulations of Personal Conduct " These rules set forth the terms and conditions of employment for Lucky's janitors As World's presi dent, Sony, had secured the services of White, and as White had entered into a retainer agreement with World, and not Lucky, as of November, we find that White acted on behalf of World when he drafted Lucky' s rules As the court noted in NLRB v Browning-Ferris Industries, supra, the establish ment of work rules under which the employees 12 Choo s role at the meeting was more than that of a mere translator of the rules Rather he explained the basis for imposing the rules the meaning of some of the rules and the necessity of signing the rules in order to retain employment As Choo had been introduced to the janitors as a vice president of World his explanations undoubtedly conveyed the impression to them that World was responsible for the imposition of these rules that defined their conditions of employment Contrary to the judge we therefore find that Choo s participation at the meeting provides evidence of World s joint employer status 1163 will operate constitutes evidence of joint employer status 13 Finally, certain other factors support our finding of a joint employer relationship between World and Lucky The judge found that World's workers' compensation policy covered Lucky's janitors during Lucky's first 6 weeks of business at SFO 14 In addition, Lucky's janitors continued to wear the badges with World's name until May 1984, and Lucky used World's stationery in transacting busi- ness On the basis of our earlier analysis, we find that these factors provide further evidence of World s joint employer status 15 C Whitewood-Lucky The General Counsel further alleges that Whitewood and Lucky are joint employers of the janitors As we have found that World and Whitewood and that World and Lucky are the joint employers of the janitors during the periods in which the unfair labor practices occurred, we find it unnecessary to decide this issue III THE UNFAIR LABOR PRACTICES A Supervisor Jung's Conduct The judge found that after Local 87 filed its peti tion, Whitewood Supervisor Jung questioned em ployees Py, Rho, and Seo whether they had signed a card in support of the Union When Seo replied that he had not signed a card, Jung told him not to get involved in "the union stuff' nd not to sign a card Upon learning that Rho had signed a card, Jung told him that he would have been better off if he had not signed the card Py remained silent when Jung questioned him In response to this si lence, Jung made 'a face" and stated that Py had 13 The judge s finding that White s involvement in Lucky s employ ment matters related solely to the representation proceeding is not cor rect In a January 3 1984 letter to the Board s Regional Office in San F ancisco White states that he represents World Whitewood and Lucky for all purposes of industrial and labor relations Nor do we accept the judge s conclusion that in any event no evidence exists that World paid White for any services unconnected with the representation proceeding or that World knew that White represented Lucky in any matter other than the representation proceeding As discussed above White recom mended and drafted the rules governing the conduct of Lucky s employ ees at a time when he had a retainer agreement with World but not with Lucky Further World s knowledge of White s representation of Lucky in matters other than the representation proceeding is evidenced at the very least by the contents of the January 3 1984 letter which indicates that a copy of the letter was sent to World 14 At p 15 of his decision the judge inadvertently stated that the Gen era] Counsel alleged that World paid the janitors unemployment com pensation insurance coverage instead of their workers compensation coverage 15 We agree with the judge that no evidence was presented indicating that Lucky was required to comply with the affirmative action agreement that World entered into with the San Francisco Human Rights Commis Sion Accordingly we do not rely on that factor in finding that World and Lucky are joint employers 1164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD disappointed him The judge found it unnecessary to decide whether Jung s actions violated the Act because Respondent Whitewood had entered into a settlement agreement with the General Counsel covering this conduct and because he had conclud- ed that neither World nor Lucky is a joint employ- er of Whitewood's employees We find that Super visor Jung's interrogation of the employees con- cerning their union sympathies and his attempts to discourage their support for the union violated Sec tion 8(a)(1) In Rossmore House, 269 NLRB 1176 (1984), affd sub nom Hotel Employees Local 11 v NLRB, 760 F 2d 1006 (9th Cir 1985), the Board stated that in terrogation of an open and active union supporter violates Section 8(a)(1) when, under all the circum- stances, the interrogation reasonably tends to re strain, coerce, or interfere with employees' rights guaranteed by the Act The Board extended this totality of circumstances test to the interrogation of any employee, whether or not an open and active union supporter, in Sunnyvale Medical Clinic, 277 NLRB 1217 (1985) 16 Applying this test to the in stant situation, we find the interrogation to be coer cive Jung raised the question of the Union with all three janitors He wanted to know specifically whether each employee had supported Local 87 by signing a union card He expressed disapproval when Py and Rho did not deny signing a card and warned Seo not to get involved with the Union As Jung's questions sought merely to elicit whether these employees supported Local 87, there was no lawful purpose behind the questioning Indeed, all three were later discharged unlawfully because of their activities on behalf of Local 87 Further, Jung's questions and comments reasonably tended to coerce the employees because of the high posi- tion he held in Whitewood's hierarchy As found by the judge, Whitewood owner Yoon left daily management of the SFO operation to Jung and day-shift Supervisor Kim because Yoon lived in Los Angeles Jung and Kim did all the hiring, firing, scheduling, and assigning of employees' work at the SFO operation The employees there fore realized that Jung held great power in deter- mining their continued employment with Whitewood Finally, as detailed above and below, Jung's questions occurred during a period in which World's agents waged an active campaign, which included unlawful threats and promises, against Local 87 Under all the circumstances, Jung's inter- rogations therefore had a tendency to coerce and 16 Member Cracraft does not adhere to Sunnyvale Medical Clinic However this does not alter her conclusion that the Respondent violated Sec 8(a)(1) by Supervisor Jung s interrogation of the employees concern mg their union sympathies restrain the employees in violation of Section 8(a)(1) As we have found that World and Whitewood are joint employers, we attribute Jung's actions to World because, as stated in Ref Chem Co, 169 NLRB 376, 380 (1968) [a]s joint employers, each is responsible for the conduct of the other and whatever unlawful practices are engaged in by the one must be deemed to have been committed by both Accordingly, we find that World is liable for this 8(a)(1) violation B Song Lim's Conduct Following the filing of Local 87 s petition, Sony sent Lim to SFO to observe Whitewood's janitorial operation During October and November, Lim spoke with several of the janitors concerning the forthcoming November 10 election The judge found that Lim promised employee Py that the em ployees would receive better wages , hours, and benefits if they did not support Local 87 , warned employee Seo that the Company would lose its contract and the employees would lose their jobs if the Company were unionized , promised employees Seo and Rho better benefits if they voted against Local 87, and warned employee Jhun that the Company would close down if Local 87 won the election The judge found that Lim's promises and threats had a tendency to coerce the employees from supporting Local 87 He therefore concluded that Respondent Lucky had violated Section 8(a)(1) Although we adopt the judge's conclusion, we also find that World violated Section 8(a)(1) through Lim's actions because we have found that World and Lucky are joint employers C The Substitution of Subcontractors The judge rejected the General Counsels argu ment that World s substitution of subcontractors violated Section 8(a)(3) and (1) because of his con clusion that World is not a point employer of the SFO janitors Citing Plumbers Local 447 (Malbaff Landscape), 172 NLRB 128 (1968), for the proposi- tion that an employer does not violate Section 8(a)(3) when it ceases doing business with another employer because of the union activities of the Tat- ter's employees, he concluded that World 's termi nation of its subcontract with Whitewood could not violate Section 8(a)(3) even if the termination resulted from antiunion considerations 17 Contrary to the judge, we find that World's substitution of subcontractors violated Section 8(a)(3) and (1) " The judge did not decide whether World terminated its subcontract with Whitewood because of antiunion considerations WHITEWOOD MAINTENANCE CO The resolution of whether World's substitution of subcontractors violated Section 8(a)(3) and (1) requires us to apply the analysis set forth in Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 U S 989 (1982), ap proved in NLRB Y Transportation Management Corp, 462 US 393 (1983) Pursuant to this Wright Line analysis, we must determine initially whether the General Counsel has made a prima facie show- ing that the employees' protected activities were a motivating factor in World's decision to substitute subcontractors Assuming that this showing is made, the burden shifts to World to establish that it would have taken the same action in the absence of the employees' protected activities We find that the requisite elements establishing a prima facie case exist First, World was strongly opposed to Local 87's organization of the SFO janitors Lim, World's agent, attempted to dissuade the employees from voting for Local 87 by promis- ing benefits and threatening reprisals As we have found earlier, she and the other World agents, Choo and White, were instrumental in World's campaign to defeat Local 87 Further, World's knowledge of the janitors' activities on behalf of Local 87 is evident because of Sony s knowledge of the representation petition filed by Local 87 The judge also found that Lim knew that several janitors actively supported Local 87 Finally, the timing of World's action strongly supports an infer- ence of illegal motive While Whitewood had served as World's non union subcontractor at SFO, Local 87's petition had the potential to change Whitewood's nonunion status We conclude that World's president, Sony, made the decision to replace Whitewood only after he learned of Local 87's petition in September By letter dated October 3, a mere 11 days after the filing of the petition, Sony informed Whitewood owner Yoon of his intention to cancel the subcon- tract 18 Further, the actual substitution of subcon- tractors did not occur until November 17, which was only 7 days after the election in which a ma- jority of the votes counted had been cast in favor "'The Respondents attempted to show that Worlds decision to change subcontractors was made several months prior to Local 87 s filing of the petition In January 1984 they provided the Board s Regional Office with a purported March 14 1983 letter from Sony to Lim inform ing her that her company would commence operations at SFO in No vember 1983 The General Counsel established however that Lim did not reside at the address set forth in the purported March 14 letter until July 27 Accordingly we reject that letter as evidence of any earlier de cision by World to change subcontractors We also discount the refer ence in the October 3 letter from Sony to Yoon indicating that Yoon was aware of the commitment that World had made to another subcontractor as early as the previous March Yoon testified that he was never notified of World s intention to change subcontractors until he received this letter 1165 of representation by Local 87 19 Consequently, we find that the employees activities on behalf of Local 87 were a motivating factor in World's deci- sion to change subcontractors We conclude from all the evidence that by changing subcontractors, World hoped to escape from recognizing and bar gaining with Local 87 World apparently believed that it could avoid the Union even if Local 87 won the election be cause Local 87 s petition initially named only Whitewood as the employer of the janitors whom Local 87 sought to represent 20 Indeed, following the election and the replacement of subcontractors, World's agent, Choo, refused Local 87's requests for bargaining by claiming that neither World nor Lucky had any obligation to recognize or bargain with Local 87 because Whitewood had been the sole employer involved in the election Although World replaced Whitewood with a subcontractor that had recognized and entered into an agreement with Local 77, the record establishes that Local 77's wages and benefits were inferior to those of Local 87 In fact, a letter from World's vice presi- dent, Clyde Mayhew, to Republic Airlines' SFO station manager requesting a change in their con tract highlights Worlds motives In this letter Mayhew stated that `World has been battling the union ever since the inception of our contract", that the requested change (changing the name of the party to the contract to avoid any bargaining obligation with Local 87) would save the airline money because `local 87 has a higher wage rate than local 77', and if "Local 87 wins this maneu ver your rates will go up because of their wage rates " In defense, World maintains that legitimate busi ness reasons dictated the change in subcontractors World argues that it was dissatisfied with Whitewood's performance on the basis of com- plaints it had received from the airlines The record, however, refutes this argument Sony's Oc- tober 3 letter informing Whitewood owner Yoon of the cancellation of the subcontract stated that the cancellation "is no reflection on your fine com- pany" and that the "services rendered by you have been satisfactory " Furthermore, despite the Re spondents' testimony concerning the alleged com- plaints, the testimony of the airline officials mdi- ' 9 As noted above the Board ultimately certified Local 87 as the jape tors collective bargaining representative after the resolution of the objec non and the challenged ballots 20 We note that the Respondents failed to inform the Board or Local 87 of the change in subcontractors prior to the November 10 election This failure ensured that Whitewood would be the only employer offs cially involved in the election 1166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cates that the airlines were satisfied with White- wood's services 21 We also find that the Respondents offered shift- ing reasons to explain the substitution of subcon tractors As noted above, World contends that it replaced Whitewood because of complaints it had received from the airlines concerning the services provided by Whitewood In a November 14 letter from labor relations consultant White to Local 87, however, White stated that Whitewood had ceased operations at SFO because of `financial reasons ex clusively " Yet, in a August 27, 1984 letter to East ern Airlines' SFO manager, Lim explained that Lucky had replaced Whitewood as World's sub contractor "due to labor problems " Other than White's November 14 letter, the record is devoid of any evidence establishing that World decided to cancel its subcontract because of financial consider- ations22 Indeed, the record indicates that World actually paid Lucky more for the SFO janitorial services than it had paid Whitewood We therefore reject the Respondents' proffered business reasons to explain the substitution of subcontractors Having found that the Respondents have ad- vanced shifting reasons to explain the substitution of subcontractors and having concluded that these reasons are false, it may be inferred that another, concealed motive for this action exists Shattuck Denn Mining Corp v NLRB, 362 F 2d 466, 470 (9th Cir 1966) We find that the motive was to evade any obligation to recognize and bargain with Local 87, the employees' chosen representative 23 In sum, we find that World substituted subcontrac- tors because of its employees' union activities and failed to demonstrate that it would have taken this action in the absence of their protected activity As the joint employer of the janitors, World thereby discriminated against its employees by depriving them of their right to representation by their freely chosen representative in violation of Section 8(a)(3) and (1) 24 See Syufy Enterprises, 220 NLRB 738, 741 (1975) 21 This contention also fails to explain why if World decided to cancel its subcontract with Whltewood because of complaints received about Whitewood s services the new subcontractor Lucky offered employ ment to the same janitors whom Whitewood had employed 22 The judge also rejected the contention that financial reasons dictat ed the change JD herein at fn 35 The record does include however Choo s testimony that Yoon complained about losing money during the summer of 1983 That statement does not support the Respondents con tention however because it was World not Whitewood that decided to cancel the subcontract 23 The record provides further evidence to support this conclusion Choo testified that Yoon told the employees at the November 17 meeting that he was thanking [them] to kick him out of San Francisco [by] voting for [the] union Consequently Yoon clearly believed that World had canceled its subcontract because of the employees activities on behalf of Local 87 24 As a joint employer of these employees World through its substitu tion of subcontractors deprived its own employees of their rights and not D The Discharges of Py and Jhun Jung Je Py and Woo Young Jhun were two of the Whitewood SFO janitors whom Lucky em ployed when it became World 's SFO subcontrac tor The judge found that Py openly and actively supported Local 87 and that Choo and Lim knew that he was a Local 87 adherent On the other hand , the judge found that Jhun had opposed Local 87's organizational campaign and that Lim knew of Jhun's opposition Both Py and Jhun were present at the November 17 afternoon meeting in which Lucky was introduced as the janitors' new employer The ` Rules and Regulation of Personal Conduct" were handed out to the janitors during this meeting The janitors were told that they had 1 week to sign and return the rules, thereby indi- cating their assent to working under these condi- tions The judge found that Choo provided an oral translation of the rules , which were written in Eng lish, into Korean during the meeting This was nec- essary because Py and Jhun , as well as most of the other janitors, were Korean immigrants who could not read the rules because of their limited knowl- edge of English During their commute home fol- lowing this meeting , Py and Jhun agreed that the rules had been instituted as a `trick" and that they should demand a written Korean translation before signing them On November 21 Lim requested that Py sign the rules and Py replied that he would sign the rules only after receiving a written Korean translation because he did not understand the English version When Lim asked Py for a signed copy of the rules the next morning, he replied that he had not yet signed them because he did not have a written translation He reiterated, however, his intention to sign them once he had received a written transla- tion Lim then discharged him Later that day Lim proposed to Py that he take an unpaid week's vaca tion from work and then fill out an employment application in order to return as a new employee Py stated that he would consider the proposal and asked whether he was still fired Lim replied of firmatively On November 23, the day following Py's dis charge, Lucky distributed a written Korean transla tion of the rules to the janitors and posted a copy of it on the company bulletin board Lim also signed Py's termination slip on this day The slip indicated that Py was discharged for refusing to sign the rules, insulting Lucky s president with merely Whitewood of its subcontract Plumbers Local 447 (Malbaff Land scape) 172 NLRB 128 (1968) is therefore inapposite to the instant situa tion WHITEWOOD MAINTENANCE CO 1167 "bad words," and challenging Lucky's hiring policy Lim also asked Jhun for a signed copy of the rules on November 22 and Jhun, like Py, replied that he could not sign them until he received a written translation The judge found that Lim denied this request and then discharged Jhun when he continued to refuse to sign the rules without a written translation Lim telephoned Jhun at his home the next day and proposed that Jhun take a week's unpaid vacation and then return to work On the same day, however, Lim signed Jhun's ter mination slip, which indicated that Jhun was not eligible for rehire, that he had resigned, and that he was discharged for refusing to sign the rules and for challenging Lucky's hiring policy Jhun re ceived this slip in the mail after his telephone con- versation with Lim He never returned to work The judge concluded that neither the discharge of Py nor the discharge of Jhun violated the Act Despite finding that Lucky was hostile to Local 87 and knew that Py was a Local 87 adherent, the judge found that the General Counsel had failed to establish a prima facie case that Py's protected ac- tivity was a motivating factor in Lucky's decision to discharge him The judge further found that even if a prima facie case had been established, Lucky had shown that it would have discharged him even in the absence of protected activity be cause of his insubordinate act of refusing to sign the rules The judge also found that Jhun's dis- charge did not result from protected activity and even if the General Counsel had established this fact, Jhun's insubordinate act of refusing to sign the rules justified Lucky's discharge of him We re verse the judge's conclusions that the discharges did not violate the Act In reaching our conclusion, we apply the Wright Line analysis set out above Contrary to the judge we find that the General Counsel has established that Py's protected activity was a motivating factor in Lucky s decision to dis charge him As found by the judge, Lucky's owner Lim had animus towards Local 87 and the employ ees who supported that union She also knew of Py's active support of Local 87 Consequently, the requisite elements of antiunion animus and knowl- edge of the employee's protected activity exist Furthermore, we find that the timing of Py's dis charge supports an inference of illegal motivation as the discharge occurred 5 days after Lucky took over and 12 days after the election in which Local 87 had received a majority of the votes counted In light of the discharges of other supporters of Local 87 during this period of time, the inference exists that the Respondents sought to convey a message to the janitors that this new subcontractor would not permit union activities on behalf of Local 87 The shifting reasons advanced by Lucky to justify Py s discharge further support an inference of ille gal motivation While Lucky asserts that Py was discharged for his insubordinate act of refusing to sign the rules, Py's termination slip stated that he was discharged for using insulting language and challenging the company's hiring policy The judge correctly concluded, however, that these alleged reasons had no support in the record and were false JD herein at fn 54 As we have noted above, when a party advances shifting reasons to explain its actions and these reasons are shown to be false, it may be inferred that another, concealed motive for the action exists We also reject the judge's conclusion that Lucky would have discharged Py for his refusal to sign the rules25 even in the absence of Py's protected activity The record suggests that Lucky did not consider the employees' adherence to these rules to be a serious matter In this regard, the record shows that when the rules were distributed at the November 17 meeting, Choo joked about them and explained that they "mean nothing really' Fur- thermore, after Py's discharge, Lucky hired several employees who were not required to sign the rules as a condition of employment That fact demon strates not only that Lucky did not consider the rules important enough to require later hired em- ployees to sign them, but also establishes disparate treatment 26 Finally, the record shows that Py stated that he would sign the rules if Lucky pro vided him with a written translation so he could understand what he was signing Lucky's owner, Lim, refused this request, however, and discharged him Nevertheless, the very next day, Lucky pro- vided the janitors with the very translation that Py had requested These events lead to the conclusion that by refusing Py's request, but granting it for the other employees, Lucky needed a pretextual reason to cover up its unlawful reason for discharging Py All of these factors indicate that Py's refusal to sign the rules was not the real reason why Lucky discharged him Consequently, we find that World 25 We unlike the judge find the rules were instituted unlawfully and the refusal to sign them therefore would not in any event constitute a legitimate basis for discharge 26 The Respondents contend that as Lucky required all employees who attended the November 17 meeting to sign the rules evidence of whether Lucky required later hired employees to sign the rules is irrelevant to a finding of discriminatory treatment We disagree The record establishes that only the former Whitewood janitors attended the November 17 meeting These janitors had voted in the election in which Local 87 had received a majority of the votes counted and some of them had been active supporters of Local 87 Thus the requirement that only these em ployees but not other employees hired later sign the rules as a condition of retaining their employment is evidence of disparate treatment on the basis of union activity in support of Local 87 1168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and Lucky have not rebutted the General Coun- sel's prima facie case and that the discharge there fore violated Section 8(a)(3) and (1) The same elements of animus and timing under- lying the prima facie case of unlawful discharge of Py exist with regard to Jhun The judge conclud- ed, however, that a prima facie case was not estab- lished because Jhun had informed Lim that he op posed Local 87's organizational campaign Al- though Jhun told Lim that he opposed Local 87 during a conversation 7 to 10 days before the No- vember 10 election, the record establishes that Jhun decided to support Local 87 a few days after the election We conclude that when Lim dis- charged Jhun, she believed that Jhun had become an active supporter of Local 87 In reaching this conclusion, we rely on a De cember 11 letter that Lim sent to White Lim set out in that letter a list of complaints under the heading of "unfair labor practices and harrassment [sic] against Union 87 " The list included the asser tions that Py had "organized an opposition to sign the company rules' and that Jhun had "refused to sign W 4 forms and refused to furnish Social Secu- rity numbers " This letter demonstrates that Lim believed that Jhun had engaged in certain activities to "harass" Lucky on behalf of Local 87 We therefore find that Lucky had the requisite knowl- edge of Jhun's activities on behalf of Local 87 and conclude that the General Counsel has established a prima facie case of unlawful discharge For the same reasons set forth in our discussion of Py's dis charge, we reject the Respondents proffered alleg edly legitimate reason of insubordination to estab lish that Jhun would have been discharged even in the absence of his union activity Accordingly, we find that the General Counsel's prima facie case has not been rebutted and that Jhun s discharge violated Section 8(a)(3) and (1) E The Discharge of Ronald Albert Kelleher The judge found that Whitewood discharged Ronald Kelleher in violation of Section 8(a)(3) and (1) As the judge had decided that neither World nor Lucky is a joint employer of Whitewood s jani tors, however, he dismissed the complaint insofar as it alleged that World and Lucky were responsi ble for Kelleher's discharge He also did not enter a remedial order requiring reinstatement for Kel leher, as Whitewood and the General Counsel had entered into a settlement agreement Because we have found that World is a joint employer of Whitewood's janitors and because we adopt the judge's conclusion that Kelleher's discharge violat- ed Section 8(a)(3) and (1),27 we conclude that World is liable for this violation and will amend the Order to require reinstatement F The Refusal to Recognize and Bargain with Local 87 The judge concluded that Lucky was a successor employer of the Whitewood janitors and therefore was obligated to honor the Board's certification of Local 87 as the janitors' exclusive bargaining repre- sentative Having found that Lucky had a legal ob ligation to recognize and bargain with Local 87 when it assumed the Whitewood operation, the judge found that Lucky committed several 8(a)(5) and (1) violations These violations were Lucky's rejection of Local 87's requests to bargain after Local 87 was certified as the janitors' collective- bargaining representative, Lucky's recognition of Local 77 as the janitors' bargaining representative, Lucky's negotiation of its contract covering the janitors with Local 77 on November 21, Lucky's enforcement and maintenance of the terms and conditions of employment contained in its contract with Local 77 since December 1, Lucky's unilater al change of the night shift employees' work sched- ule on November 28, and Lucky's unilateral change of the janitors' terms and conditions of em- ployment resulting from the December 1 imple mentation of the Local 77 contract terms Although we affirm the judge's finding of all these violations, we do not rely on his rationale that Lucky was a successor employer Rather, we find that Lucky committed these violations as a joint employer with World As a joint employer of the Whitewood janitors, World was obligated to recognize and bargain with Local 87 because of the certification of Local 87 as the janitors' exclusive bargaining representative World's legal obligation was ongoing when Lucky assumed control of the Whitewood operation Having found that Lucky is a joint employer of the janitors with World, we note that Lucky's obligation to bargain with Local 87 `was no less than that of" World See American Air Filter Co, 258 NLRB 49, 53 (1981) According ly, Lucky's unilateral changes in the janitors' terms and conditions of employment and its refusals to bargain with Local 87 specified by the judge con stitute violations of Section 8(a)(5) and (1) 28 27 The Respondents did not except to the judges finding that Kel leher s discharge violated Sec 8(a)(3) and (1) 28 Even though Local 87 was not certified until March 29 1984 Lucky acted at its peril in making unilateral changes pending the deter mination of the outstanding election objection and challenges See e g Mike 0 Connor Chevrolet 209 NLRB 701 703 (1974) enf denied on other grounds 512 F 2d 684 (8th Cir 1975) WHITEWOOD MAINTENANCE CO 1169 The judge also found that Lucky's unilateral im- plementation of the "Rules and Regulations of Per sonal Conduct' did not violate the Act because as a successor employer, Lucky was entitled to set initial terms on which it would hire Whitewood's janitors We reverse this finding Having concluded that Lucky's bargaining obligation arose immedi- ately on its assumption of the Whitewood oper- ation because of its joint employer status, Lucky's unilateral implementation of these rules on Novem- ber 17 violated Section 8(a)(5) and (1) 29 We fur ther find that as a joint employer, World is liable for all the 8(a)(5) and (1) violations committed by Lucky G Lucky's Recognition of Local 77 On December 16 discharged employee Kelleher filed a charge as an individual on behalf of Local 87 alleging that Lucky had violated Section 8(a)(2) and (1) by recognizing Local 77, which did not represent a majority of Lucky's employees This charge was dismissed on January 10, 1984, for lack of cooperation of the Charging Party and the dis missal was not appealed 30 Local 87 filed a charge on April 13, 1984, and an amended charge on April 20, 1984, alleging that Lucky had refused to recog nize or bargain with it, in violation of Section 8(a)(5) Those charges did not include an 8(a)(2) al legation, nor was any charge alleging a violation of Section 8(a)(2) filed by the time that the 10(b) limi tations period had expired Nonetheless, the amend- ed complaint included an allegation of an 8(a)(2) violation on the basis that the allegation was close- ly related to the timely filed and pending charge al leging a violation of Section 8(a)(5) The judge, however, dismissed the 8(a)(2) charge He found that the 8(a)(2) allegations were not closely related to the 8(a)(5) allegations and were therefore time barred by Section 10(b) In light of this finding, the judge did not address Respondent Lucky s alter- nate contention that the closely related doctrine does not apply because the original 8(a)(2) charge filed by Kelleher was dismissed The General Counsel has excepted to the judge's conclusion that the 8(a)(2) allegations are not closely related to the 8(a)(5) allegations Respondent Lucky has excepted 29 Although the actual service on Lucky of the charge alleging this November 17 violation did not occur until May 22 1984 Sec 10(b) does not preclude the finding of a violation Because World was served with this charge on April 16 1984 because World and Lucky are joint em ployers and because the charge concerns matters for which they were jointly responsible we find that the charge was filed and served on Lucky within 6 months of the commission of the violation See Mar Del Plata Condominium 282 NLRB 1012 (1987) Photo Somcs Inc 254 NLRB 567 570 fn 2 (1981) enfd 678 F 2d 121 (9th Cir 1982) so As the judge found the reason for not cooperating in the investiga Lion was that Local 87 believed that processing of this charge would block or otherwise delay Local 87 s certification in the representation proceeding involving Whitewood s SFO janitors to the judge's failure to find that the dismissal of the only 8(a)(2) charge filed bars the application of the closely related doctrine In Redd-I Inc, 290 NLRB 1115 (1988), the Board concluded that it would apply the closely related test to determine whether the untimely alle- gation was factually and legally related to the alle gations of the timely charge "without regard to whether another charge encompassing the untimely allegation has been withdrawn or dismissed " The Board explained that the decision whether certain untimely allegations can be added to a complaint as closely related to a pending timely charge should be entirely separate from a decision on whether a with drawn or dismissed charge containing these untimely allegations can be reinstated outside the 10(b) period Under the "closely related" test, there is no reason why a person who has never filed a timely charge concerning a par- ticular allegation should be in a better position than a person who has attempted to preserve his rights by filing a timely charge that is later withdrawn or dismissed [Id at 1118 ] Accordingly, we reject Respondent Lucky's argu- ment and find that we can apply the closely related test even though an earlier charge encompassing the 8(a)(2) allegation was dismissed The Board stated in Redd I, supra, at 1118, that in applying the closely related test, it would exam- ine three primary factors These factors are wheth er the otherwise untimely allegations involve the same legal theory as the allegations in the pending timely charge, whether the otherwise untimely al legations arise from the same factual situation or sequence of events as the allegations in the pending timely charge, and whether a respondent would raise similar defenses to both allegations We reject the judge's finding that the legal theo ries underlying the 8(a)(2) and (5) allegations are unrelated The legal theories are related on the basis that Local 87 is the lawful collective-bargain ing representative of Lucky's employees That fact means that Lucky may not refuse a demand to rec ognize and bargain with Local 87 in violation of Section 8(a)(5), and if it recognizes and bargains with any other labor organization, it necessarily violates Section 8(a)(2) Lucky's recognition and execution of a new collective-bargaining agreement with Local 77 on November 21, 1983, constituted unlawful assistance because Lucky had an obliga- tion to recognize and bargain with Local 87 Fur ther, the Board has previously recognized that the legal theories underlying 8(a)(2) and (5) violations may be closely related See, e g , American Pacific 1170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Concrete Pipe Co, 262 NLRB 1223 (1982), enfd mem 709 F 2d 1514 (9th Cir 1983) 31 According ly, we find that the legal theory underlying the un timely 8(a)(2) allegation involves the same legal theory underlying the 8(a)(5) allegation We also find that the 8(a)(2) allegation arises from the same factual situation and sequence of events as the 8(a)(5) allegations As noted above, Lucky re executed a collective bargaining agree merit with Local 77 on November 21, 11 days after Local 87 had won the election to represent its em- ployees In response to Local 87's requests for bar gaining, Lucky maintained not only that the repre serration election had involved a different employ er, but also that it had entered into a valid collec- tive bargaining agreement with Local 77 Lucky's actions in unlawfully assisting Local 77 were there- fore part of the same course of conduct in which Lucky was attempting to avoid bargaining with Local 87 The judge reached a different conclusion because he improperly focused on the sequence of events in April when Lim originally entered into the collective-bargaining agreement with Local 77 on behalf of Lucky The amended complaint al leged, however, that Lucky's recognition and re execution of the collective bargaining agreement with Local 77 on November 21 constituted unlaw- ful assistance in violation of Section 8(a)(2) Conse quently, it is Lucky's actions on and after Novem- ber 21 that we have considered and found to be part of the same course of conduct underlying Lucky s unlawful refusal to bargain with Local 87 We further find that Respondent Lucky would raise similar defenses and preserve similar evidence for both allegations Indeed, Lucky has argued that it had a valid collective bargaining agreement with Local 77 and, thus, could not have unlawfully re fused to bargain with Local 87 In defending against the allegations of unlawful assistance, Lucky would also argue that its collective-bargain ing agreement with Local 77 was valid and that its actions could not therefore constitute unlawful as sistance Finally, we note that Lucky's actions on and after November 21, which underlie the 8(a)(2) alle gations, occurred within 6 months of the timely filed 8(a)(5) charge Accordingly, we conclude that Section 10(b) does not bar our consideration of the 8(a)(2) allegations because those allegations are 31 We do not agree with the judge that American Pacific Concrete Pipe is distinguishable because the same record evidence supported the 8(a)(2) and (5) allegations in that case but not this case In both cases the em ployer unlawfully recognized and entered into a collective bargaining agreement with a labor organization in violation of Sec 8 (a)(2) during a period in which it was required to recognize and bargain with the em ployees chosen representative closely related to the allegations in the timely filed 8(a)(5) charge 32 As the record establishes that Lucky recognized and entered into a collective bargaining agreement with Local 77 at a time when Local 87, not Local 77, represented a majority of Lucky s employees, we find that Lucky thereby violated Section 8(a)(2) and (1) 33 We further find that as a joint employer of Lucky's employees, World is liable for these violations AMENDED CONCLUSIONS OF LAW 1 Substitute the following for the judge's Con clusions of Law 1, 3, and 5-9 ` 1 Respondents World Service Company and Charles Yoon d/b/a Whitewood Oriental Mainte nance Company are joint employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act Respondents World Service Compa- ny and Song Ae Lim d/b/a Lucky Service Compa- ny are joint employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act "3 All janitorial employees employed by Re spondents World Service Company and Lucky Service Company at the San Francisco Internation- al Airport, excluding all other employees including office clerical employees, guards and supervisors as defined in the Act, constitute an appropriate bar gaining unit "5 By refusing to recognize and bargain with Local 87 as the exclusive bargaining representative of all the employees in the appropriate unit, Re- spondents World Service Company and Lucky Service Company have engaged in and are engag- ing in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act "6 By recognizing Service Employees Union, Local 77, as the exclusive bargaining representative of the employees in the appropriate unit in deroga tion of their obligation to recognize and bargain 32 Applying the test set out in his concurring opinion in Redd I supra Chairman Stephens agrees that the 8(a)(2) allegations are not time barred For the reasons stated by his colleagues he agrees that they are closely related to the allegations of the timely filed 8 (a)(5) charge He also finds that the Respondents would not have been misled by the dismissal of the 8(a)(2) charge into concluding that the matters encompassed within it could not be litigated under the timely filed 8(a)(5) charge He bases this conclusion on the fact that the original charge was dismissed for reasons unrelated to its merits and on the fact that those matters encompassed within the 8(a)(2) allegations that we have considered in this case are in extricably linked to the timely filed 8 (a)(5) charge Indeed the Respond ent s liability under the 8(a)(5) charge would be inconsistent with any as sumption that the employees were covered by a valid contract with Local 77 during the period in question 33 We also find merit to the General Counsel s exception that because the agreement with Local 77 contained a union security clause Lucky violated Sec 8(a)(3) and ( 1) by enforcing that clause See e g Bell Energy Management Corp 291 NLRB 168 169 (1988) WHITEWOOD MAINTENANCE CO 1171 with Local 87 and by entering into and maintaining a collective bargaining contract with Local 77 cov ering the unit employees, Respondents World Serv ice Company and Lucky Service Company violat- ed Section 8(a)(5) and (1) of the Act "7 By unilaterally instituting the Rules and Regulations of Personal Conduct without afford- ing Local 87 an opportunity to bargain about the matter, by unilaterally changing the work schedule of the unit employees employed on the night shift without affording Local 87 an opportunity to bar gain about the matter, and by unilaterally institut- ing the terms and conditions of employment incor- porated in Lucky Service Company's contract with Local 77 without affording Local 87 an opportuni- ty to bargain about their effect on the unit employ- ees' existing terms and conditions of employment, Respondents World Service Company and Lucky Service Company violated Section 8(a)(5) and (1) of the Act "8 By discharging employees Hyung Bok Seo, Chi Ho Rho, Jung Je Py, and Woo Young Jhun because of their Local 87 sympathies and activities, Respondents World Service Company and Lucky Service Company violated Section 8(a)(3) and (1) of the Act "9 By promising employees better terms and conditions of employment if they did not support Local 87 and by threatening employees with the loss of their jobs if they supported Local 87, Re spondents World Service Company and Lucky Service Company violated Section 8(a)(1) of the Act" 2 Insert the following as Conclusions of Law 10-14, and renumber the judge's Conclusion of Law 10 as Conclusion of Law 15 `10 By recognizing and executing a collective bargaining agreement with Local 77 at a time when Local 77 did not represent a majority of the employees in the above appropriate unit, Respond ents World Service Company and Lucky Service Company violated Section 8(a)(2) and (1) of the Act "11 By executing and maintaining a collective- bargaining agreement with Local 77 that contained a union security clause requiring membership in Local 77 as a condition of employment when Local 77 did not represent a majority of the em- ployees in the above appropriate unit, Respondents World Service Company and Lucky Service Com pany violated Section 8(a)(3) and (1) of the Act "12 By interrogating employees concerning their union sympathies and by threatening employees with reprisals for signing a union card, Respondent World Service Company violated Section 8(a)(1) of the Act 13 By discriminatorily changing subcontractors in an effort to deprive the unit employees of their right to representation by Local 87, Respondent World Service Company violated Section 8(a)(3) and (1) of the Act 14 By discharging employee Ronald Albert Kelleher because of his Local 87 sympathies and activities, Respondent World Service Company violated Section 8(a)(3) and (1) of the Act " REMEDY Having found that Respondents World Service Company and Lucky Service Company have en- gaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(5), (3), (2), and (1) of the Act, we shall order that they cease and desist and take certain affirmative action necessary to remove the effects of the unfair labor practices and to effectuate the policies of the Act Having found that Respondents World Service Company and Lucky Service Company violated Section 8(a)(5) and (1) of the Act by refusing to bargain with Service Employees Union, Local 87, at the outset of that union's certification year, we shall order that the initial period of certification begin on the date Respondents World Service Company and Lucky Service Company commence to bargain in good faith with Local 87 as the rec ognized bargaining representative in the appropri- ate unit See Dynamic Machine Co, 221 NLRB 1140, 1143 (1975), and the cases it cites Having found that Respondents World Service Company and Lucky Service Company violated Section 8(a)(5) and (1) of the Act by unilaterally instituting the `Rules and Regulations of Personal Conduct", by unilaterally changing the work schedule of unit employees employed on its night shift, and by unilaterally instituting the terms and conditions of employment contained in the contract with Service Employees Union, Local 77, without affording Service Employees Union, Local 87, an opportunity to bargain about these changes in the unit employees' terms and conditions of employ ment, we shall order the Respondents World Serv- ice Company and Lucky Service Company to make whole any employees who may have in- curred a monetary loss as a result of the unilateral implementation of these changes Reimbursement is to be with interest as prescribed in New Horizons for the Retarded 34 34 283 NLRB 1173 (1987) Interest on and after January 1 1987 shall be computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts accrued prior to January 1 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp 231 NLRB 651 (1977) 1172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Having found that Respondents World Service Company and Lucky Service Company violated Section 8(a)(5), (2), and (1) of the Act by recogmz ing and contracting with Service Employees Union, Local 77, when Local 77 did not represent a majority of the unit employees, and in derogation of their statutory obligation to recognize and bar- gain with Service Employees Union , Local 87, as the unit employees' certified bargaining agent, we shall order Respondents World Service Company and Lucky Service Company to withdraw and withhold recognition from Local 77 and to cease giving effect to the collective bargaining contract entered into with that labor organization, or any modifications, renewals, or extensions thereof As the record reveals that in connection with both their illegal enforcement of the contract with Local 77 and their illegal unilateral changes in the unit employees' terms and conditions of employment, Respondents World Service Company and Lucky Service Company have violated Section 8(a)(3) and (1) of the Act by requiring the unit employees to join Local 77 as a condition of continued employ- ment, we shall order Respondents World Service Company and Lucky Service Company to reim- burse unit employees for any dues and initiation fees that may have been withheld from their pay pursuant to the union-security provisions in the un- lawfully executed contract with Local 77 Reim bursement is to be with interest as prescribed in New Horizons for the Retarded, supra Having found that Respondent World Service Company violated Section 8 (a)(3) and ( 1) of the Act by discharging employee Ronald Albert Kel leher and having found that Respondents World Service Company and Lucky Service Company violated Section 8(a)(3) and ( 1) of the Act by dis- charging employees Hyung Bok Seo, Chi Ho Rho, Jung Je Py, and Woo Young Jhun , we shall order that Respondents World Service Company and Lucky Service Company offer each of them imme- diate and full reinstatement to their former jobs or, if those jobs no longer exist , to substantially equiv- alent positions , without prejudice to their seniority and other rights and privileges and make them whole for any loss of pay or other employment benefits they may have suffered as the result of their discharges Backpay shall be computed on a quarterly basis in accordance with F W Wool worth Co, 90 NLRB 289 ( 1950), with interest to be computed in the manner prescribed in New Hori- zons for the Retarded, supra We shall also order Respondents World Service Company and Lucky Service Company to remove from their files any reference to the illegal discharges, and to notify employees Seo, Rho, Py, Jhun , and Kelleher in writing that they have done so and that their dis- charges will not be used against them in any way ORDER The National Labor Relations Board orders that Respondents, World Service Company , Houston, Texas, and Song Ae Lim d/b/a Lucky Service Company, San Francisco, California , their respec tive officers , agents, successors, and assigns, shall 1 Cease and desist from (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Service Employees Union, Local 87, as the exclusive bargaining repre sentative of their employees in the following ap propriate unit All janitorial employees employed by the Re spondents World Service Company and Lucky Service Company at the San Francisco Inter- national Airport, excluding all other employ ees including office clerical employees, guards, and supervisors as defined in the Act (b) Instituting changes with respect to the terms and conditions of employment of the employees in the aforementioned unit without prior notice to and bargaining with Service Employees Union, Local 87 (c) Recognizing and contracting with Service Employees Union, Local 77, as the bargaining rep- resentative of any of the unit employees for pur- poses of collective bargaining, unless and until that labor organization has been certified by the Nation al Labor Relations Board as the exclusive bargain ing representative of those employees (d) Giving effect to the collective bargaining agreement with Service Employees Union, Local 77, executed on November 21, 1983, which is effec tive December 1, 1983, to May 1, 1986 , or to any extension, renewal , or modification thereof, provid ed, however, that nothing in this Order shall be construed as requiring the Respondents to take any action unfavorable to any individual employee re- garding wages, hours, and other substantive terms or conditions of employment , provided further that nothing in the first proviso shall limit the rights of Service Employees Union, Local 87, with respect to action that the Respondents have taken unilater- ally (e) Discouraging membership in or support of Service Employees Union , Local 87, or any other labor organization, by discharging employees or otherwise discriminating against employees in any manner with regard to their hire or tenure of em ployment or any term or condition of employment WHITEWOOD MAINTENANCE CO 1173 (f) Promising employees better terms and condi tions of employment if they do not support Service Employees Union, Local 87, or any other labor or ganization (g) Threatening employees with the loss of their jobs if they support Service Employees Union, Local 87, or any other labor organization (h) Interrogating employees concerning their support for any labor organization (i) Threatening employees with reprisals for sign- ing a card in support of any labor organization (1) In any like or related manner interfering with, restraining, or coercing employees in the exercise 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) On request, bargain with Service Employees Union, Local 87, as the exclusive representative of all the employees in the above-described unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an un derstanding is reached, embody the understanding in a signed agreement (b) On request, rescind the `Rules and Regula tions of Personal Conduct" that were instituted on about November 17, 1983, on request, rescind the change in the work schedule of the unit employees employed on the night shift that was instituted on about November 28, 1983, and reinstate the sched- ule which existed at that time, and, on request, re scind the changes in the unit employees' rate of pay, wages, hours, and other terms and conditions of employment made on December 1, 1983, and make whole the unit employees for any wages and/or benefits lost to them by this unilateral con- duct, with interest (c) Withdraw and withhold all recognition from Service Employees Union, Local 77, as the exclu sive collective-bargaining representative of the em- ployees in the above described unit, unless and until that labor organization has been certified by the National Labor Relations Board as the exclu- sive representative of those employees (d) Reimburse their present and former employ- ees employed in the bargaining unit described above for all fees, dues, and other moneys they may have been required to pay as a condition of employment to Service Employees Union, Local 77, pursuant to the contract with that labor organi- zation, with interest (e) Offer to Hyung Bok Seo, Chi Ho Rho, Jung Je Py, Woo Young Jhun, and Ronald Albert Kel leher immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent ones, without prej- udice to their seniority or other rights and privi leges previously enjoyed, and make them whole for any loss of earnings or other employment benefits they may have suffered as a result of the discrimi- nation against them, in the manner set forth in the remedy section of this decision (f) Remove from their files any references to the unlawful discharges of Hyung Bok Seo, Chi Ho Rho, Jung Je Py, Woo Young Jhun, and Ronald Albert Kelleher and notify them in writing that they have done so and that the discharges will not be used against them in any way (g) Preserve and, on request, make available to the Board or its agents, for examination and copy ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due and the rights of reinstate ment under the terms of this Order (h) Post at their facility in the San Francisco International Airport copies of the attached notice marked Appendix "35 Copies of that notice shall be in English and Korean on forms provided by the Regional Director for Region 20 and, after being signed by the Respondents' authorized repre sentatives, shall be posted by the Respondents im mediately upon receipt and maintained for 60 con secutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Re spondents to ensure that the notices are not altered, defaced, or covered by any other material (i) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondents have taken to comply as 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 Section 7 of the Act gives employees these rights To organize To form, join, or assist any union 1174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities WE WILL NOT refuse to bargain collectively con- cerning rates of pay, wages, hours and other terms and conditions of employment with Service Em ployees Union, Local 87, as the exclusive bargain ing representative of our employees in the follow ing appropriate unit All janitorial employees employed by our companies at the San Francisco International Airport, excluding all other employees includ ing office clerical employees, guards, and su- pervisors as defined in the Act WE WILL NOT make changes in the terms and conditions of employment of the employees em ployed in the above described unit without giving prior notice to and bargaining with Service Em ployees Union, Local 87 1 WE WILL NOT recognize and enter into a con- tract with Service Employees Union, Local 77, as the collective bargaining representative of any of the employees in the unit described above unless and until Local 77 has been certified by the Na- tional Labor Relations Board as the exclusive bar gaining representative of the unit employees WE WILL NOT give effect to the collective bar gaining agreement with Service Employees Union, Local 77 executed on November 21, 1983, which is effective December 1, 1983, to May 1, 1986, or to any extension, renewal, or modification thereof, provided, however, that nothing in this Order shall be construed as requiring our companies to take any action unfavorable to any individual employee regarding wages, rates of pay, and other substan- tive terms or conditions of employment, provided further that nothing in the first proviso shall limit the rights of Service Employees Union, Local 87, with respect to action which our companies have taken unilaterally WE WILL NOT discourage membership in or sup port of Service Employees Union, Local 87, or any other labor organization, by discharging employees or otherwise discriminating against employees in any manner with regard to their hire or tenure of employment or any term or condition of employ- ment WE WILL NOT promise employees better terms and conditions of employment if they do not sup port Service Employees Union, Local 87, or any other labor organization WE WILL NOT threaten employees with the loss of their jobs if they support Service Employees Union, Local 87, or any other labor organization WE WILL NOT coercively question employees concerning their support for any labor organiza tion WE WILL NOT threaten employees with reprisals if they sign a card in support of any labor organiza tion WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act WE WILL, on request, bargain with Service Em ployees Union, Local 87, as the exclusive repre- sentative of all the employees in the above de scribed unit with respect to rates of pay, wages, hours, and other terms and conditions of employ ment and, if an understanding is reached, embody the understanding in a signed agreement WE WILL, on request, rescind the "Rules and Regulations of Personal Conduct" that were insti tuted on about November 17, 1983, on request, re scind the change in the work schedule of the night shift that was instituted on about November 28, 1983, and reinstate the schedule that existed at that time, and, on request, rescind the changes in the unit employees' rate of pay, wages, hours, and other terms and conditions of employment made on December 1, 1983, and make the employees whole for any wages and/or benefits lost to them by this unilateral conduct, with interest WE WILL withdraw and withhold all recognition from Service Employees Union Local 77, as the exclusive collective-bargaining representative of the employees in the above described unit, unless and until that labor organization shall have been certified by the National Labor Relations Board as the exclusive representative of the employees WE WILL reimburse our present and former em ployees employed in the unit described above for all fees, dues, and other moneys they may have been required to pay as a condition of employment to Service Employees Union, Local 77, pursuant to our contract with that labor organization, with in terest WE WILL offer to Hyung Bok Seo, Chi Ho Rho, Jung Je Py, Woo Young Jhun, and Ronald Albert Kelleher immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent ones, without prej- udice to their seniority or other rights and privi leges previously enjoyed, and make them whole for any loss of earnings or other employment benefits they may have suffered as a result of the discrimi nation against them, with interest WHITEWOOD MAINTENANCE CO 1175 WE WILL notify Hyung Bok Seo, Chi Ho Rho, Jung Je Py, Woo Young Jhun, and Ronald Albert Kelleher that we have removed from our files any reference to their discharges and that their dis- charges will not be used against them in any way WORLD SERVICE COMPANY, SONG AE LUN D/B/A LUCKY SERVICE COMPANY Sally N Spencer and Kenneth J Shapiro Esqs, for the General Counsel Patrick W Jordon Esq (McLaughlin & Irvin) and Ken neth White Esq (Kenneth R White Inc), for the Re spondents Stewart Weinberg Esq (Van Bourg Weinberg Roger & Rosenfeld), for Charging Party Local 87 Dennis Hayashi (Asian Law Caucus) for Charging Parties Chi Ho Rho, Jung Je Py, and Hyung Bok Seo DECISION STATEMENT OF THE CASE JERROLD H SHAPIRO, Administrative Law Judge The hearing in this proceeding held during a 10 day period in April 1985 was based on the allegations contained in a second amended consolidated complaint issued 13 March 1985 by the Regional Director for Region 20 of the Na tional Labor Relations Board (the Board) on behalf of the Board s General Counsel It alleged that Charles Yoon d/b/a Whitewood Oriental Maintenance Company (Respondent Whitewood), World Service Company (Re spondent World), and Song Ae Lim, Pyong H Lim Jay Ha Lim and Lay Sil Lim d/b/a Lucky Service Compa ny (Respondent Lucky), collectively referred to as Re spondents by themselves and as joint employers violated Section 8(a)(1) (2) (3), and (5) of the National Labor Relations Act (the Act) The second amended consolidated complaint is based on the following unfair labor practice charges A charge filed on 27 February 1984 in Case 20-CA-18770 by Chi Ho Rho and another charge filed on the same date in Case 20-CA-18771 by Jung Je Py in which charges were served on Respondents 29 February 1984 by certi feed mail a charge filed on 13 April 1984 in Case 20- CA-18903 by Service Employees Union, Local 87 and another charge filed on the same date in Case 20-CA- 18904 by Hyung Bok Seo, which charges were served on Respondent Whitewood and Respondent World by certified mail on 16 April 1984 and by personal service on Respondent Lucky on 22 May 1984 Local 87 filed a first amended charge on 20 April 1984 in Case 20-CA- 18903 that was served by certified mail on the same date on Respondents Whitewood and World and by personal service on Respondent Lucky on 22 May 1984 The complaint alleges that Respondents violated Sec tion 8(a)(1) of the Act by interrogating employees during September and October 1983, about their union member ship, activities, and sympathies by promising employees during October and November 1983 that their wages and other terms and conditions of employment would im prove if Local 87 lost a Board representation election, and by threatening employees during this same period of time that their employer would lose its contract and close if Local 87 won the representation election The complaint alleges that Respondent World and Re spondent Lucky violated Section 8(a)(2) and (1) of the Act by granting recognition to Service Employees Union, Local 77 on or about 21 November 1983 as the exclusive bargaining representative of World s and/or Lucky s janitorial employees employed at the San Fran cisco International Airport (SFO) and by entering into a collective bargaining contract with Local 77 on that same date, even though Local 77 did not represent a ma jority of the employees, and by maintaining and enforc ing its contract with Local 77 since 1 December 1983 i The complaint alleges that Respondents violated Sec tion 8(a)(3) and (1) of the Act by discharging employee Ronald Albert Kelleher on or about 8 November 1983 because of his union or other protected concerted activi ties, and that Respondent World and Respondent Lucky violated Section 8(a)(3) and (1), as follows By discharg ing employees Woo Young Jhun and Jung Je Py on or about 22 November 1983, discharging employee Hyung Bok Seo on or about 23 November 1983, and discharging employee Chi Ho Rho on or about 7 December 1983 be cause of their union or other protected concerted activi ties by terminating World s contractual relationship with Whitewood on an undisclosed date prior to 16 Novem ber 1983, pursuant to which World had been subcon tracting its SFO janitorial work to Whitewood, and on or about 16 November 1983 substituting Lucky to per form this work in place of Whitewood and by engaging in the conduct because the SFO janitorial employees supported Local 87 and to discourage the employees from supporting Local 87, by changing the SFO .janitors al employees terms and conditions of employment on or about 16 November 1983 because of the SFO janitorial employees support of Local 87 and to discourage them from supporting Local 87 The complaint alleges that Respondents World and Lucky violated Section 8(a)(5) and (1) of the Act as fol lows By refusing since about 18 November 1983 to rec ognize and bargain with Local 87 as the bargaining rep resentative of the janitors employed by Respondent Lucky and/or Respondent World at SFO by recogniz ing Local 77 as the bargaining representative of Re spondents World s and/or Lucky s SFO janitors on or about 21 November 1983 and by entering into a contract with Local 77 on that date covering the janitors and en forcing the provisions of that contract including the con tract s union security provision by dealing directly with Respondents Lucky s and/or World s SFO janitors with respect to the signing of rules and regulations governing their employment, by terminating World s contract with Whitewood on an undisclosed date prior to 16 Novem ber 1983 pursuant to which World had been subcontract ing its SFO janitorial work to Whitewood, and on or i The complaint also alleges that the enforcement by Respondents Lucky and World of the union security proviso in their contract with Local 77 constituted a violation of Sec 8(a)(3) of the Act as well as Sec 8(a)(2) and (1) 1176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD about 16 November 1983 substituting Lucky to perform this work in place of Whitewood and by engaging in the aforesaid conduct unilaterally without notice to Local 87, by changing the SFO janitorial employees terms and conditions of employment on or about 16 November 1983 unilaterally without notice to Local 87 Respondents in their answers to the amended consoli dated complaint deny they have engaged in the alleged unfair labor practices 2 Also Respondent Lucky raises a number of affirmative defenses and at the outset of the hearing it filed a motion to dismiss the 8(a)(2) and (5) al legations in their entirety based on the fact that said al legations are barred under Section 10(b) of the National Labor Relations Act, as amended On the entire record 3 and from my observation of the demeanor of the witnesses and having considered the General Counsel s and Respondents posthearing briefs, I make the following FINDINGS OF FACT I THE ALLEGED UNFAIR LABOR PRACTICES A The Background and Setting Respondent World, a corporation with its principal place of business in Houston , Texas does business as a janitorial contractor throughout the United States It contracts with commercial airlines to do their janitorial work World normally does not employ its own employ ees, but usually subcontracts its work to other janitorial companies who use their own employees to do the work Shik Sony is World s president and owner Clyde Mayhew is a vice president of World responsible for its operation During the time material , Gregory Choo a friend of Sony who lives in San Francisco represented himself to the public as World s executive vice president He did this with Sony s knowledge and permission Also with Sony's authorization he acted as World s agent concerning certain matters involving World's SFO air line contracts Respondent Whitewood a sole proprietorship is owned and operated by Charles Yoon whose residence and place of business is in Los Angeles California Whitewood has been in business as a janitorial contractor for several years in the Los Angeles area The majority of its Los Angeles work is performed under a subcon tract with World for airlines at the Los Angeles Interna tional Airport World has subcontracted its Los Angeles airport janitorial work to Whitewood since at least 1980 Respondent Lucky a sole proprietorship owned and operated by Song Ae Lim 4 commenced doing business 2 Respondents admit that they each meet one of the Board s applicable discretionary jurisdictional standards and that each is an employer en gaged in commerce within the meaning of Sec 2 (6) and (7) of the Act Likewise Respondents admit that Locals 87 and 77 are labor organiza tions within the meaning of Sec 2(5) of the Act 3 The General Counsel s and the Respondents joint motion to correct the transcripts is granted 4 The amended complaint alleges and Respondent Lucky s answer to the complaint admits that Lucky is a partnership Also the record shows that several members of Song Ae Lim s family loaned her money to fi nance Lucky s business and that Lim told representatives of Local 77 that Lucky was a family business Nonetheless I am satisfied from my on 17 November 1983 as a subcontractor for World at SFO when Whitewood discontinued its SFO business It was not until 17 November 1983 when Lucky took over Whitewood s SFO business that Lucky began doing buss ness and employed its first employee Gregory Choo, who guaranteed Song Ae Lim s bank loan so she could go into the janitorial business at SFO assists Lim in op erating Lucky s business and in certain respects acts as Lim s agent In approximately February 1982 World contracted with several airlines at SFO including Republic, Ameri can PSA, and Eastern Airlines to do their SFO janitori al work Thereafter World also entered into a contract with Lockheed Air Terminal (LAT) to service certain international airlines who were members of the San Francisco Foreign Flag Carriers (SFFFC) which con tracted with LAT for facility maintenance Each of these contracts, as was customary in the industry contained a nonassignment clause that specifically prohibited World from subcontracting the janitorial work without prior written permission from the airlines Despite this World consistent with its usual practice subcontracted the jani torial work at SFO to Whitewood and then to Lucky without advising the airlines Since Whitewood s owner, Yoon lived in Los Ange les, California where his Company s office is located he normally visited Whitewood s SFO operation only once or twice monthly After hiring the initial complement of employees and establishing their initial terms and condi tions of employment Yoon left the everyday manage ment of the Company s business at SFO in the hands of Hwa Jong Kim and Tai Sun Jung Kim was the Compa ny s SFO operation manager and supervised the day shift Jung supervised the night shift Kim and Jung did all of the hiring firing scheduling assigning of employ ees work and they otherwise managed the Company s SFO business On 1 January 1983 World and Whitewood renewed their SFO contract World signed an agreement with Whitewood whereby World subcontracted all of its jani torial work at SFO to Whitewood subject to cancellation by either party with 30 days notice World paid Whitewood a monthly fee of between $ 18 000 and $19 000 On 3 October 1983 World gave Whitewood written notice that it was canceling their SFO contract On 17 November 1983, pursuant to a verbal agreement between Lucky and World Lucky became World s SFO subcontractor On 17 November 1983, when Whitewood discontinued its SFO operation it employed about 19 or 20 employees there and was performing work under its contract with World for the following airlines Republic, American PSA, Western and LAT Under its verbal contract with World Lucky agreed to do this work for $26 000 a month When Lucky began doing this work, it continued to employ all of Whitewood s employees except for two, who decided not to work for Lucky SFO is situated in the county of San Mateo which is within Local 77 s territorial jurisdiction In 1983 Local review of the whole record that as Lim testified Lim is the sole proprie tor of this employer I therefore grant the General Counsels request that the pleadings and case caption conform to this finding WHITEWOOD MAINTENANCE CO 77 had collective-bargaining contracts with approximate ly four SFO janitorial contractors Local 87, Local 77 s sister local, has jurisdiction over the city and county of San Francisco which is immediately adjacent to San Mateo County Local 87, whose contracts contain a higher pay scale than Local 77 s has no collective bar gaining contracts covering janitorial employees em ployed at SFO When Whitewood began to do business at SFO early in 1982, the work it took over was either in whole or in part formerly performed by janitorial con tractors who were signatories to contracts with Local 77 Whitewood did not employ the employees of the predecessor employers Almost all of Whitewood s SFO employees were like Whitewood s owner, Korean In 1982 Local 77 filed charges with the San Francisco Human Rights Commission5 alleging that World, and the airlines that had contracted with World, had violated im migration laws and discriminated in hiring because they hired only Korean employees Local 77 picketed at SFO in support of these charges On 28 April 1983 Song Ae Lim, on behalf of Respond ent Lucky, entered into a collective bargaining contract with Local 77 covering janitorial employees Lucky might employ in the future Subsequently in July or August 1983 Song Lim entered into a successor contract with Local 77, which by its terms was effective from 1 May 1983 until 1 May 1986 When Song Lim entered into these contracts Respondent Lucky was not doing business and employed no employees Song Lim entered into these contracts in anticipation of eventually securing a subcontract from Respondent World to perform janito rial work at SFO It was not until 17 November 1983, when Lucky took over Respondent Whitwood s SFO janitorial work that Song Lim commenced doing janito rial work and employed her first employee Thereafter on 21 November 1983 Song Lim met with Local 77 s president and they re executed the 1983-1986 contract which had previously been signed by them in July or August 1983 They changed the terms of this contract in two respects the contracts effective date was changed from 1 May 1983 to 1 December 1983, and four members of Lim s family employed at SFO as janitors were ex cluded from the contracts coverage Commencing 1 De cember 1983 and continuing thereafter, Respondent Lucky has complied with all of the provisions of its Local 77 contract 8 In July 1983 Nak Young Sung a janitor employed at SFO by Respondent Whitewood initiated a campaign to organize employee support for Local 77 and continued this campaign even after 10 August 1983 when he quit work in order to return to school By 6 September 1983 Sung possessed Local 77 authorization cards signed by 16 of Whitewood s SFO janitors, and on that date he gave the cards to a representative of Local 77 and asked that the union immediately file a petition with the Board for a representation election When Local 77 did not file 5 Although situated in San Mateo County SFO is owned and operated by the city and county of San Francisco 6 The record reveals that Lucky was delinquent in complying with the contract in one respect it was sevral months late in making the health and welfare contributions required by the contract for the months of De cember 1983 and January 1984 1177 the petition, Sung on more than one occasion went back to its office and without success tried to get it to file a representation petition with the Board seeking an elec tion among Whitewood s SFO janitorial employees On 17 September 1983 Sung visited Local 87 s office and was assured by a Local 87 s representative that if he se cured a sufficient number of employees signatures on Local 87 authorization cards, Local 87 would immediate ly file a representation petition with the Board for an election among Whitewood s SFO janitorial employees Sung then returned to SFO with authorization cards sup plied to him by Local 87 Between 17 and 20 September 1983 an undisclosed number of Whitewood s SFO janito rial employees signed these cards On 20 September Sung returned the signed cards to Local 87 On 22 Sep tember 1983 Local 87 used these cards as its showing of interest and filed a representation petition with the Board s Regional Office in Case 20-RC-15677 seeking an election in a unit of Whitewood s SFO janitorial employ ees Thereafter pursuant to an election agreement entered into between Local 87 and Respondent Whitewood which was approved on 21 October 1983 by the Board s Regional Director for Region 20 an election was con ducted by the Board on 10 November 1983 among Whitewood s SFO janitorial employees The tally of bal lots shows that of the approximately 21 eligible voters, 9 voted for Local 87, 7 voted against union representation and 4 voters cast challenged ballots 8 On 17 November 1983 Respondent Whitewood filed a timely objection to the election based on alleged Local 87 preelection misconduct On 25-26 January 1984 a hearing was conducted before a hearing officer to resolve the issues raised by the challenges and objection On 16 February 1984 the hearing officer issued a report recommending that Whitewood s objection be overruled and that the chal lenge to the ballot of Kim be sustained and that the other three challenges be overruled and those ballots counted On 20 March 1984 the three challenged ballots for which the challenges were overruled were opened and on that day a revised tally of ballots issued which showed Local 87 had won the election 11 to 8 On 29 March 1984 the Board s Regional Director issued a Certification of Representative certifying Local 87 as the exclusive bargaining representative of all the janitorial employees employed by Whitewood at SFO In September 1983 Shik Sony World s owner prom ised Song Ae Lim Lucky s owner that in the near future Lucky would replace Whitewood as World s SFO subcontractor Thereafter Lim visited SFO to observe Whitewood s employees at work and to talk to them 9 r On 30 September 1983 Local 87 amended the petition in Case 20- RC-15677 to name Respondent World as well as Respondent Whitewood as the employers of the employees s Two of the challenged ballots cast by Ronald Albert Kelleher and Hyon Kuk Chang were challenged by the Board agent conducting the election because their names did not appear on the voter eligibility list The ballots of Shin Yi Choi and Kwa Jong Kim were challenged by Local 87 as being statutory supervisors Song Ae Lim prior to taking over Whitewood s SFO janitorial busi ness had no prior Janitorial business experience 1178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD She visited SFO on a daily basis from late September 1983 until 17 November 1983 when she took over Whitewood s SFO operation and at times Gregory Choo accompanied her However, it was not until early October 1983 that she began to speak with Whitewood s employees 10 Besides visiting Whitewood s SFO operation to ob serve the way it functioned in anticipation of taking it over, the record also shows that another purpose of Lim s preelection visits to SFO in October and Novem ber 1983 was to persuade the employees not to support Local 87 s organizational campaign and that she engaged in this conduct in anticipation of Lucky taking over Whitewood s SFO business As I have found infra, Lim not only spoke to the employees about their work, but on more than one occasion introduced the subject of union representation into her conversation with employ ees in an effort to discourage them from supporting Local 87 s organizational campaign Also when Whitewood s owner Yoon asked Worlds owner Sony why Lim was visiting Whitewood s SFO operation and talking to the employees, Sony stated that Lim and Choo were there to help handle the NLRB election proceeding (Tr pp 955 970-971) And despite the fact that Lim s company was not expected to take over Whitewood s SFO business until sometime after the 10 November elec tion, World s vice president Mayhew on 21 October 1983 wrote Whitewood s supervisor, Kim, that effective 16 October Song Lim of Lucky Service Company was the manager of the new company providing janitorial serv ices at SFO and because of this World no longer needed Kim s services the clear implication being that as of 16 October, in anticipation of Lim s company going into business to replace Whitewood at SFO, Lim would serve as World s personal representative at SFO, instead of Kim 11 That this is what Lim understood the arrange 10 It is undisputed that when Lim introduced herself to the employees she did not tell them she was the owner or representative of a company that would be taking over Whitewood s SFO business In dispute is whether she told some of the employees she was an employee or repre sentative of World Lim denied introducing herself in this manner The testimony of employees Kelleher and Seo and the affidavit of employee Jhun corroborate this testimony However Lim s affidavit submitted to the Board prior to the hearing states I did not want the employees to know that I was going to get the contract so when I introduced myself I told them I was from World Services Lim did not deny that she told this to the Board agent who wrote out her affidavit The testimony of employee Py that the day shift supervisor Kim introduced Lim to him as a secretary from World and the testimony of employee Rho that Lim introduced herself to him as an employee of World and the testimo ny of Local 87s representatives Leung and Sung that Lim indicated to them she was a representative or working for World s owner Sony are consistent with Lim s affidavit Since the testimonial demeanor of Py Leung and Sung was good whereas the testimonial demeanor of Lim was poor I find that Supervisor Kim introduced Lim to employee Py as a secretary from World and told Local 87 representatives Leung and Sung that she was employed by Worlds owner Sony or was his repre sentative Also I rejected Lim s testimony that Sung when he met with Lim told the group of people present that Lim was the new contractor Finally I reject Pho s testimony that Lim introduced herself as an em ployee of World inasmuch as Rho inconsistently testified at a San Fran cisco Human Rights Commission hearing that Lim introduced herself as someone totally unrelated to World 11 As I have found infra Song Lim did not supervise Whitewood s employees or manage Whitewood s SFO business operation Rather Whitewood s supervisors continued to do this until Lucky on 17 Novem her 1983 took over the SFO operation ment to be is evidenced by Choo s letter of 25 October 1983 to Vice President Mayhew in which after transmit ting certain information relating to the representation elec tion proceeding, Choo asked Mayhew for a formal written confirmation of the verbal appointment of Song Ae Lim to the position of World Service Company SFO Coordi nator by Mr Sony effective October 19 Subsequently on 29-30 October and 13 November 1983, Lim was present when Labor Relations Consultant White met with Whitewood s owner Yoon for the purpose of dis cussing how the representation election would be han died It was at this time that Labor Relations Consultant White began to represent Lucky even though it had not taken over Whitewood s SFO business operation and was not expected to do so until after the election Also on 30 October 1983 when White wrote out for Yoon s signa ture a statement of position addressed to Whitewood's employees concerning Local 87 s organizational cam paign, it was Lim who saw to it that the statement was typed and translated into Korean 12 The translation was done by Lim s brother Jae Lim, who loaned money to Lim so she could start her business and who worked for Lim as a supervisor when she commenced operation When on or about 1 November 1983 the statement to the employees was distributed, Lim personally handed it to at least one of the employees 13 When all the foregoing circumstances are viewed in their totality, I am persuad ed they estblish that when Song Lim visited SFO in Oc tober and November 1983 and spoke to Whitewood s employees in an effort to discourage them from support ing Local 87 s organizational campaign, she acted in her own interet in anticipation of her company Lucky re placing Whitewood as World s subcontractor after the election B World s Status as a Joint Employer of Whitewood s SFO Janitors I find that World did not share or codetermine the terms and conditions of employment of Whitewood s SFO janitors so as to make it a joint employer of the janitors 14 In 1982 when Whitewood s owner Yoon entered into a contract with World to perform the SFO janitorial work Yoon personally hired all of Whitewood s SFO 12 The statement dated 1 November 1983 was signed by Yoon and ad dressed to Whitewood s SFO employees It asked them to vote no in the representation election and advised them that we do not want a union we and you do not need a union and warned that the advent of a union owuld jeopardize our ability to bid on jobs for our airlines or other customers [and] that in turn of course affects you 13 Employee Py testified that on I November 1983 Lim handed him the statements along with his paycheck Lim denied that she distributed the statement to employees I have credited Py s testimony because his testimonial demeanor was good whereas Lim s was poor 14 The appropriate standard for determining joint employer status was applied by the Third Circuit in NLRB v Browning Ferris Industries 691 F 2d 1117 (3d Cir 1982) There the court found that where two separate entities share or codetermine those matters governing the essential terms and conditions of employment they are to be considered joint employers for purposes of the Act The Board has approved of this standard and has also stated that to establish (joint employer) status there must be a showing that the employer meaningfully affects matters relating to the employment relationship such as hiring firing discipline supervision and direction [case cited] TLI Inc 271 NLRB 798 (1984) WHITEWOOD MAINTENANCE CO 1179 work force Likewise Yoon established the janitors wages fringe benefits, work schedules and shifts Whitewood s SFO Supervisors Kim and Jung who were hired by Yoon were responsible for and supervised the day to day work of Whitewood s SFO janitors They hired fired, directed, assigned and scheduled the .jani tors It was Whitewood that paid the janitors wages, benefits, and taxes In view of the evidence the General Counsel has failed to prove that World exercised control over essential terms and conditions of employment of Whitewood s SFO janitors, so as to qualify as their joint employer The General Counsel does not dispute the above de scribed evidence, but contends that there is certain cir cumstantial evidence that compels the inference that World exercised control over terms and conditions of employment of Whitewood s SFO janitors More specifi cally, the General Counsel points to the following (1) World and Whitewood, when dealing with third parties, represented that World was the SFO janitors employer, (2) World s vice president, Mayhew, stated that Whitewood s supervisor Kim, was employed by and re sponsible to World, (3) World s conduct connected with the San Francisco Human Rights Commission (SFHRC) litigation demonstrates that World directly controlled Whitewood s SFO hiring practices, (4) World controlled the economics of its business relationship with White wood (5) Whitewood s SFO janitors were covered by World s workers compensation insurance policy (6) World discharged Whitewood s employee Kelleher, and (7) World determined and controlled Whitewood s repre sentation election strategy I am of the opinion for the reasons set forth that the above factors when considered individually or together do not in the circumstances of this case establish that World and Whitewood were joint employers of Whitewood s SFO janitors Regarding (1) World s contracts with the airlines at SFO each contain a nonassignment clause that specifical ly forbids World from subcontracting without the prior written permission from the airlines, but unknown to the airlines World subcontracted this work to Whitewood without the airlines permission It was in order to pre vent the airlines from discovering this breach of contract that at all times material World and Whitewood in their dealings with the airlines and governmental agencies such as the SFHRC and the NLRB falsely represented that World employed the SFO janitors Likewise the identification badges issued to the SFO janitors oy the airport authorities identified them as employees of World In short the reason World and Whitewood rep resented to third parties that World employed the SFO janitors was not because World controlled the employ ees terms and conditions of employment but in order to keep secret World s breach of its contracts with the air lines Regarding (2) other than Mayhew's 21 October 1983 letter to Supervisor Kim stating that effective 16 October 1983 Kim was no longer employed or responsible to World Service Company but that Song Lim of Lucky Service was now manager of our new company perform ing services at SFO there is no evidence Kim was em ployed by World or that in supervising Whitewood s SFO janitors that Kim acted on behalf of World 15 Not only was Kim hired and paid by Whitewood but there is no evidence that in supervising Whitewood s SFO .jani tors he did not follow Whitewood s employment poll cies Moreover after Mayhew s 21 October letter Kim s employment at SFO did not end instead he continued to work for Whitewood at SFO in his same supervisory po sition and continued to occupy this position when Lucky took over Whitewood s role as World s SFO subcontrac tor Also there is no evidence that Lim, prior to 17 No vember when Lucky took over Whitewood s SFO buss ness supervised or exercised control over the janitors terms and conditions of employment The foregoing con siderations plus the fact that at the time Mayhew wrote this letter World s owner Sony and Lucky s owner Lim had reached a tentative verbal agreement that Lim would take over Whitewood s subcontract in the near future, warrant the inference that Mayhew, by this letter was merely in effect confirming to Kim, as Lim had al ready told Kim Lim s company would be replacing Whitewood as World s subcontractor in the near future In any event considering the circumstances Mayhew s 21 October letter, by itself and in the context of the entire record does not establish that in supervising Whitewood s SFO employees Kim acted as World s agent Regarding (3), in connection with the charges filed by Local 77 in 1982 with the SFHRC against World alleg mg that World was discriminating in hiring at SFO be cause it employed only Korean employees 16 in May 1983, World and the SFHRC entered into an affirmative action agreement Under the terms of that agreement World agreed to employ non Korean employees so as to achieve the racial mix set forth in the agreement and agreed to periodically furnish employment records to the SFHRC so that it could police World s compliance 17 Worlds vice president Mayhew told Whitewood s owner Yoon that the SFHRC had stated that World was hiring only Korean employees at SFO and had ordered World to employ a racial mix by a certain date and also told Yoon that Whitewood had to employ other employ ees besides Korean employees This was World s sole in volvement in Whitewood s hiring policies 18 Thereafter 15 World s vice president in charge of operations Mayhew testified that Kim was not employed by World i6 When Whitewood started doing business at SFO in 1982 it em ployed virtually all Korean employees i'i As I have found supra in order to hide the fact that it had subcon tracted its SFO janitorial work to Whitewood in violation of its contracts with the airlines World represented to third parites that World s employ ees were doing the SFO work Consistent with this policy World and Whitewood throughout the proceedings before the SFHRC maintained the fiction that World employed the SFO janitors and following the exe cutlon of the affirmative action agreement it was a representative of World who submitted the compliance information to the SFHRC after receiving it from a representative of Whitewood Also on one occasion Whitewood s Supervisor Kim represented himself as an official of World and submitted such compliance information to the SFHRC Under the circumstances these representations to the SFHRC that World was the employer of the SFO janitors does not establish that World exercised control over the employees terms and conditions of employment in any significant manner 18 The General Counsel contends that the affirmative action agreement by its terms also pertains to employees wages However I can find noth Continued 1180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Whitewood s SFO supervisors continued to exercise sole control over whom they hired but in order to comply with the law as embodied in the affirmative action agreement presumably made an extra effort to employ non Korean employees In other words, there is no evi dence that World involved itself in Whitewood s hiring policies other than requiring Whitewood to obey the law as embodied in the affirmative action agreement with the SFHRC Considering this circumstances and considering the lack of evidence that World controlled any other aspect of the terms and conditions of employment of Whitewood s SFO employees, this limited involvement by World in Whrtewood s hiring policies was insufficient to make World a joint employer of Whitewood s SFO employees 19 Regarding (4), World s ability to end its business rela tionship with Whitewood with only 30 days notice, and the fact that World was Whitewood s principal custom er at most indicates that due to its economic position World was in a strong bargaining relationship when it dealt with Whitewood There is no evidence, however that Whitewood allowed World to take advantage of its strong economic position by allowing it to assume con trol over any of the terms and conditions of employment of Whitewood s SFO employees See TLI Inc & Crown Zellerbach Corp 271 NLRB 798 cf Seafarers Local 777 (Yellow Cab) v NLRB 603 F 2d 862 870-871 fn 22 (D C Cir 1978) (economic power is not in itself enough to establish the existence of an employer employ ee relationship, rather the critical question is whether the power is used to exert excessive control ) NLRB v A Dute Pyle Inc 606 F 2d 379 386 (3d Cir 1979) ( Even if the stronger party may dictate the terms of a contract the weaker party does not become an employee unless those terms create substantial control over the de tails of his performance ) Regarding (5) the record reveals that in the event one of its subcontractors did not have its own workers com pensation insurance coverage World was required by law to maintain an umbrella workers compensation policy The fact that toward the end of its tenure as Worlds subcontractor at SFO Whitewood s employees were covered by Worlds umbrella policy constitutes such a limited involvement in the employees terms and conditions of employment that it does not establish Worlds joint employer status particularly where as here, virtually all the other essential terms and conditions of employment were controlled solely by Whitewood Regarding (6) the record shows that shortly before the 10 November 1983 representation election when Labor Relations Consultant White and Whitewood s owner Yoon reviewed the voting eligibility of Whitewood s employees, that Yoon misinformed White that employee Kelleher who had been absent from work for several weeks due to an injury had not been granted mg in the agreement which mentions employees wages and there is no evidence that Whitewood s wage policies were in any way affected by the agreement 19 Bricklayers Local 29 (J E Hoetger) 221 NLRB 1337 1339 (1976) and Teamsters Local 363 (Rodlayn Americana) 214 NLRB 868 872 (1974) cited by the General Counsel are factually distinguishable in sig nificant respects from the instant case and are otherwise inapposite a leave of absence by supervision White responded by not only advising Yoom that Kelleher was ineligible to vote in the representation election but also told Yoon to discharge Kelleher which resulted in Kelleher s dis charge When White told Yoon to discharge Kelleher there is no showing White acted as World s agent rather than in his capacity as Whitewood s labor relations con sultant The sole evidence presented which is pertinent to this issue is as follows World s owner Sony recom mended White to Whitewood s owner Yoon and paid White for the work he did for Yoon Yoon employed White after he had independently approved of him, White worked for Yoon with no instructions from Sony Sony and Yoon entered into an arrangement whereby World would recoup the money Sony paid for White s services performed for Yoon by deducting this money from the money Sony owed Yoon for performing the SFO janitorial work These circumstances do not estab lish that White was an agent of World or even assuming he was an agent that when he told Yoon to discharge Kelleher he was acting within the general scope of his agency authority Regarding (7) the General Counsel contends that World controlled Whitewood s handling of the represen tation election and controlled Whitewood s election strategy through the conduct of World s agents White, Lim and Choo As I have found supra there is insuffi dent evidence to establish that Labor Relations Consult ant White acted as World s agent when he formulated Whitewood s election strategy and advised Whitewood s owner Yoon concerning the election Assuming Lim and Choo acted as World s agent in connection with their representation election conduct the nature of their con duct does not warrant a finding that World exerted con trol over Whitewood s labor relations policy or other wise exercised control over the Whitewood SFO em ployees terms and conditions of employment Lim s con duct consisted of her preelection conversations with the Whitewood employees when she attempted to dissuade them from supporting Local 87 s campaign 20 She also had Yoon s written statement to the employees that Whitewood prepared translated into Korean and typed and she distributed that statement to one employee Choo kept World s vice president Mayhew informed about the election proceeding and inasmuch as his com mand and understanding of the English language was somewhat better than Yoon s accompanied Yoon to the 10 November preelection conference and informed those present he was Whitewood s representative Likewise, Choo represented Yoon at the postelection hearing Lim s and Choo s conduct assuming it was engaged in on behalf of World and was within the general scope of their agency authority does not establish that World was in control of Whitewood's labor relations policy to any significant degree but merely shows that World was as sisting Whitewood in its handling of the representation election 20 Lim s efforts to discourage the employees from supporting Local 87 was consistent with Yoon s sentiments as expressed in his written state ment opposing Local 87 s organizational campaign distributed to the Whitewood employees WHITEWOOD MAINTENANCE CO It is for the reasons set forth above that I have con cluded after reviewing all the circumstances of World s relationship with Whitewood s SFO janitors, that World did not exert sufficient control over essential terms of their employment and therefore cannot be considered their joint employer with Whitewood 21 C World s Status as a Joint Employer of Lucky s SFO Janitors I find that World and Lucky did not share or codeter mine the terms and conditions of employment of Lucky s SFO janitors so as to make them a joint employer of the janitors During the time material Lucky s owner Song Lim controlled all aspects of the hiring firing, discipline, work scheduling assignments, and supervision of Lucky s employees Likewise, it was Lim who deter mined their terms and conditions of employment and who paid their wages, fringe benefits and taxes In view of the circumstances, the General Counsel has failed to establish that World exercised control over essential terms and conditions of employment of Lucky s SFO janitors so as to qualify as their joint employer In finding the General Counsel has failed to prove that World exercised control over essential terms and condi tions of employment of Lucky s SFO janitors, I consid ered the General Counsels contention that Lucky and World were joint employers because (1) Both Lucky and World represented to third parties that World was the janitors employer (2) World exercised control over Lucky s hiring policies, (3) World paid the janitors un employment compensation insurance coverage, (4) World controlled the economics of its business relation ship with Lucky and (5) World exercised control over Lucky s labor relations policies Regarding (1) as described previously, it was to pre vent the airlines from discovering that World was violat ing its contracts with the airlines by subcontracting the janitorial work to Lucky that Lucky s representatives, Lim and Choo and World s representative Mayhew represented to the airlines and third parties that Lim and Choo were acting on behalf of World and that the ,jani tors were World s employees Likewise because it was World that had the contracts with the airlines, the identi fication badges issued to the janitors by the airport iden tified them as World s employees 22 In short, the reason 21 As I have found supra World exercised limited control over Whitewood s hiring policies by virtue of the SFHRC affirmative action agreement and during the end of Whitewood s stay at SFO paid for the Whitewood employees workers compensation benefits These circum stances are insufficient to establish World s joint employer status where as here there is insufficient evidence that World otherwise shared or co determined any of the employees other terms and conditions of employ ment 22 In November 1983 when she began doing business Lim unsuccess fully tried to obtain identification badges from the airport identifying Lucky as the janitors employer Eventually in May 1984 when World no longer was doing business at SFO and Lucky had replaced World as the contractor of some of the airlines the airport issued identification badges to Lucky s employees which identified Lucky as their employer I agree with Respondent Lucky that the fact that World assisted Lucky in obtaining some of those contracts is not relevant to World s alleged joint employer status 1181 Lucky and World told the airlines and third parties that Lim and Choo were employed by World and that Lucky s janitors were World s employees, was to keep World s breach of its contracts with the airlines a secret, not because World controlled Lucky s employees terms and conditions of employment 23 Regarding (2) in May 1983 World and SFHRC en tered into an affirmative action agreement which re quired World to employ non Korean employees at SFO, so as to achieve the racial mix set forth in the agreement The circumstances surrounding this agreement have been previously described The General Counsel contends that by virtue of such an agreement World controlled Lucky s hiring policies However, there is no evidence that in November 1983 when Lucky began doing busi ness at SFO, it knew about the agreement or that World or the SFHRC attempted to enforce its terms vis a vis Lucky or that in hiring employees Lucky s hiring poli cies were governed by the terms of the agreement In any event, for the reasons set forth in my previous dis cussion dealing with World s alleged joint employer status with Whitewood, even if Lucky s hiring policies were governed by the terms of the affirmative action agreement 24 this limited involvement by World in Lucky s hiring policies under the particular circum stances, would have been insufficient to make World a joint employer of Lucky s SFO janitors Regarding (3) the record shows that for the first 6 weeks of its business at SFO Lucky did not have work ers compensation insurance coverage for its employees, and during this period the employees were covered under World s umbrella coverage as required by law World s involvement in the employees terms and condi tions of employment in this respect was so limited and of such a short duration that it does not establish World s joint employer status particularly since the employees other essential terms and conditions of employment were controlled solely by Lucky Regarding (4) the fact that for the first several months Lucky s existence was totally dependent on business with World does not establish World s joint employer status because there is no evidence Lucky allowed World to take advantage of its strong economic position by allow ing it to assume control over essential terms and condi tions of employment of Lucky s SFO janitors The General Counsels final argument that World ex ercised control over Lucky s labor relations policies rests on the General Counsels contentions that Worlds owner Sony was responsible for Lucky s collective bargaining relationship with Local 77 that Labor Relations consult 23 In view of World s and Lucky s policy of representing to third par ties that World rather than Lucky was the SFO janitors employer it is not surprising World s vice president Mayhew in a letter to an airline described Lucky s relationship to World at SFO as our company quasi Under the circumstances Mayhew s remark does not amount to an admission that World was in fact the real employer of Lucky s SFO employees or that World exercised joint control over the employees 24 The General Counsel also contends that the agreement by its terms also pertains to employees wages However I can find nothing in the terms that mentions employees wages and the entire thrust of the agree ment seems to be directed toward hiring practices Moreover there is no evidence Lucky s wage policies were affected by this agreement 1182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ant White acting as World s agent prepared the work rules for Lucky s employees, and that Choo acting as World s agent, was involved in Lucky s collective bar gaining negotiations with Local 77, discharged employee Seo and on 17 November 1983 informed Lucky s em ployees about Lucky s employment policies This argu merit is without merit for these reasons Although World s owner Sony suggested to Lucky s owner Lim that because San Francisco was a union city, if she intended to operate her business successfully she should recognize a union and personally become a member of a union, there is insufficient evidence to es tablish Sony told Lim that she should affiliate with Local 77 or told her as a condition of doing business with him at SFO she would have to sign an agreement with Local 77, or that Sony, in any other way dictated Lim s subse quent dealings with Local 77 On 16 November and 21 November 1983 when Gregory Choo accompanied Lim to Local 77 s office even assuming that Choo was there as an agent of World there is no showing that other than participating in Lim s conversations with the Local 77 business agents that Choo dictated or effectively rec ommended Lim s conduct There is insufficient evidence to show that when Labor Relations Consultant White complied with Lucky s request and furnished it with a copy of the rules and regulations governing employees conduct used by one of Whites employer clients that White acted as an agent of World Assuming arguendo, that the evidence warrants the inference White, in his dealings with Lucky during this period acted as World s agent,25 there is in sufficient evidence that when he recommended the rules and regulations for Lucky s use he acted within the gen eral scope of his agency authority where as here it is clear from the record World s owner Sony agreed to pay White only for his services performed in connection with the representation election proceeding and that when White met with Whitewood s owner Yoon and Lucky s owner Lim their discussion centered around White rep resenting them in the handling of the representation elec tion proceeding 26 In view of the circumstances, the General Counsel has failed to prove Labor Relations Consultant White acted as World s agent when he re commened a set of work rules for Lucky s use Lastly there is a lack of evidence that Gregory Choo in his capacity as an agent for World as urged by the General Counsel was jointly responsible with Lucky s owner Lim for establishing Lucky s labor relations poll cies 27 The basis for this contention as set forth in the 25 In this regard the record reveals Worlds owner Sony paid White for the services he performed for both Lucky and Whitewood during the period in question and Lucky s owner Lim testified she did not pay White any money in 1983 and in 1983 she did not hire White 26 I recognize that in his 1 December letter to Local 87 s lawyer Weinberg that White stated he was authorized to represent Lucky for purposes of labor relations However Weinberg s inquiry which prompted White s response pertained to the representation election In any event the statement of White the alleged agent is insufficient to es tablish the scope of his agency I also note there is ro evidence that World paid White for any services which were not connected with the representation proceeding or evidence that World knew White was rep resenting Lucky in matters other than the representation proceeding 27 It is undisputed that even though Choo was Lim s advisor and con fidant and Lucky s agent he received no payment for any of the services General Counsels posthearing brief is that Choo advised Lim about labor relation matters including Lucky s choice of bargaining representative engaged in negotia tions with Local 77 on behalf of Lucky, communicated Lucky s labor relation policies to its employees at the 17 November employee meeting prepared employees termi nation notices advised Lim about employees termina tions and made the decision to discharge employee Seo First of all I note that except in the isolated instance in volving employee Seo s termination discussed infra there is no evidence that in matters involving the employees terms and conditions of employment that Choo ever gave Lim advice, or if he gave her advice what that advice involved and whether Lim accepted the advice without first conducting an independent evaluation of the situation Regarding Choo s connection with Lucky s relationship with Local 77, as I have found previously there is no evidence that Lim relied on Choo s advice or did anything more than merely discuss with Choo her dealings with Local 77 The General Counsels further contention that Choo exerted his control over the Com pany s labor relation policies by verbally translating the Company s rules and regulations to the employees at the 17 November meeting is frivolous Likewise frivolous is the further contention Choo exercised such control by preparing the employees termination slips, because it is undisputed Choo merely followed Lim s instructions in their preparation Although Choo effectively recom mended Seo s discharge it is undisputed that the ultimate decision was Lim s Moreover, Choo s involvement in Seo s discharge was an isolated episode This is the only discharge of a Lucky employee in which Choo was in volved It was Lim who uniformly exercised control over the discipline and discharge of the employees and, because of his superior command of the English Ian guage it was Choo who following Lim s instructions filled out the termination slips It is for all the foregoing reasons that the General Counsel s claim Choo exercised control over Lucky s labor relation policies is without merit Moreover assuming there is sufficient evidence to establish Choo s involvement in the determination of Lucky s labor relation policies there is insufficient evi dence to show that when Choo engaged in this conduct he acted as World s agent Although World by its con duct designated Choo as its agent at various times for certain limited purposes such as assisting in the handling of the representation proceeding the negotiation of a set tlement of a bill it owed an attorney and to supply infor mation to the SFHRC, there is insufficient evidence to establish that it was within the general scope of Choo s limited agency authority to act on World s behalf in giving advice to Lim about the terms and conditions of employment of Lucky s SFO employees 28 he performed for Lucky nor did he ever receive any payment for the services he performed for World 28I have considered that Labor Relations Consultant White during the investigatory stage of this litigation informed the Board s Regional office on behalf of the Respondents that Choo was not as agent for both Lucky and World but was World s representative and overseer of World s subcontractors In addition to being conclusionary this dec laration is too vague to establish Choo s agency status with respect to Continued WHITEWOOD MAINTENANCE CO It is for the reasons set forth above that I have con cluded after reviewing all the circumstances of World s relationship with Lucky s SFO janitors, World did not exert sufficient control over essential terms and condi tions of their employment and therefore, cannot be con sidered their joint employer with Lucky D Lucky's Status as a Joint Employer of Whitewood s SFO Janitors I find that Lucky and Whitewood did not share or co determine the terms and conditions of employment of Whitewood s SFO janitors so as to make them joint em ployers of the janitors As I have found supra the essen tial terms and conditions of employment of Whitewood s SFO janitors including matters such as hiring, firing, su pervision, and direction, were solely controlled by Whitewood s owner and supervisors The General Coun sel s argument that Lucky and Whitewood were joint employers is based on the following World Vice Presi dent Mayhew s 21 October 1983 letter to Whitewood Supervisor Kim stating that effective 16 October 1983 Kim was no longer employed or responsible to World and that Lucky s owner Lim was now manager of World s new company servicing SFO on 8 November 1983 Lim told Whitewood employee Kelleher that he was discharged and, Lucky s owner Lim and its agent Choo anticipating Lucky s takeover of Whitewood s subcontract with World, acted on Whitewood s behalf in several different ways connected with the 10 November 1983 representation election The General Counsels ar gument, for the reasons set forth, is without merit There is no evidence that Lim supervised the SFO janitors or exercised control over their terms and condi tions of employment prior to 17 November 1983 when Lucky took over Whitewood s SFO business Also there is no evidence that during the month immediately before Lucky s takeover that Whitewood s owner and supervi sors did not as they had done in the past supervise and control the employees terms and conditions of employ ment Under the circumstances, it would be impermissi ble for me to draw the inference from Mayhew s 21 Oc tober 1983 letter that Lim supervised and/or controlled Whitewood's SFO janitors terms and conditions of em ployment 29 Regarding Lim s 8 November 1983 notification to Whitewood's employee Kelleher that he was discharged the record reveals Lim was merely communicating a de cision that was made during a conversation between Whitewood s owner Yoon and Labor Relations Consult World concerning his involvement in Lucky s labor relation policies es pecially in view of White s testimony that the basis for this declaration was Sony s statement to White that in matters concerning SFO oper ations that [White] could talk with Gregory Choo for whatever informa lion [White needed] to perform [his] services for World [referring to the services connected with the representation election] for Whitewood and for Lucky 29 As I have indicated supra there is a strong suggestion in the record that in sending this letter Mayhew was merely confinng to Supervisor Kim what Lim had already personally told Kim that in the near future Lim s company Lucky would be replacing Whitewood as World s SFO subcontractor In any event whatever the object in sending the letter it is insufficient to establish that Lim acted as the manager of Whitewood s employees 1183 ant White There is no evidence that Lim even partici pated in this particular conversation Regarding Lim s and Choo s involvement in the repre sertation election there is no showing that Lucky by this conduct exercised meaningful control over White wood s labor relation policies There is no showing Lucky s representation election related conduct meaning fully affected matters associated with the employment re lationship such as hiring, firing discipline, supervision, or direction 30 Based on the foregoing, I find that the General Coun sel has failed to prove that Lucky and Whitewood were joint employers of Whitewood s SFO janitors E The Alleged Independent Violations of Section 8(a)(1) of the Act I The conduct attributed to Whitewood s Night time Supervisor Jung a The evidence Tai Sun Jung Whitewood s nighttime supervisor at SFO, is admittedly a supervisor within the meaning of Section 2(11) of the Act and Whitewood s agent It is undisputed that after Local 87 filed its representa tion petition, that Supervisor Jung asked employees Jung Je Py, Chi Ho Rho and Hyung Bok Seo if they had signed a union card He spoke to the employees separate ly in their working areas while they were either at work or preparing to go to work, and he was the one who brought up the subject of the Union Each of the em ployees had previously signed a Local 87 card, however, there is insufficient evidence to determine whether any one of the employees at the time were openly and pub licly supporting Local 87 s organizational campaign Late in October 1983 Jung asked Py if he had signed a union card 31 When Py remained silent Jung respond ed by making a face and stating Py disappointed him Py remarked that he believed the employees should support union representation Late in September 1983 Jung asked Rho if he had signed the union card Rho remained silent Jung repeat ed the question, whereupon Rho answered, Yes Jung responded by stating that it did not make any difference whether Rho signed the card but that Rho would have been better off if he had not signed it °° Lim in speaking to employees attempted to persuade them to vote against Local 87 and engaged in several ministerial acts connected with the election such as having Whitewood s election campaign statement translated typed and distributed Choo also assisted in several different respects connected with the election 31 One month after Py signed a Local 87 card and approximately 2 to 3 weeks after his interrogation by Supervisor Jung Py voluntarily in formed Day Shift Supervisor Kim that he had signed a union card and was assisting Local 87 s campaign to organize the employees I realize at one point Py testified that he signed his Local 87 authorization card ap proximately the first week of August 1983 and further testified he spoke to Supervisor Kim about that card approximately I month after he signed it Py however was mistaken about the date on which he signed his Local 87 card which the record shows was not signed by Py until 20 September 1983 (Tr 635 L 12 to p 636 L 18) Accordingly Py s con versation with Supervisor Kim about that card did not take place until on or about I month after 20 September 1983 1184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Late in September 1983 Jung asked Seo if he signed the union card When Seo responded by stating that he had not signed the card Jung told him not to get in volved in the union stuff and not to sign a union card b Discussion and conclusions The question presented is whether under all the cir cumstances Supervisor Jung s interrogation of employee Py Rho and Seo reasonably tends to restrain coerce or interfere with rights guaranteed by the Act, thereby vio lating Section 8(a)(1) of the Act I have not considered this question because neither Respondents World or Lucky are liable for Supervisor Jung s alleged unlawful interrogation because as I have found supra neither one was a joint employer of Whitewood s SFO employees The General Counsel during the hearing entered into a settlement agreement with Respondent Whitewood cov ering Jung s alleged misconduct and does not seek a re medial order in this proceeding covering that conduct I have however set out the pertinent facts in case I erred in finding that neither World or Lucky were joint em ployers of Whitewood s SFO janitors 2 The conduct attributable to Lucky s owner Lim a The evidence Employee Jung Je Py testified that late September or early October 1983 during the working hours at SFO he had a conversation with Song Lim about the Union His testimony follows Ms Lim stated this Company is a Korean company So the Koreans have the obligation to protect this company And then I said about the Unions, if the Union wins the company will close She did not use the term election at that time but she implied it She said, in the future the company will offer better benefits and increase wages And she also said that they can increase the work hours for those who need more money After she said this I said the Korean company should employ more Korean employees Py further testified Lim also stated that even if we do the Union, we cannot get the benefits from doing that She said that not our generation but the next generation will get the benefits from that Song Lim s description of this conversation differs sharply She testified in sub stance that Py complained to her about working hard for low wages and said that on account of this he had decid ed to join Local 87, and that Lim responded by telling Py it did not matter whether he joined the Union but his primary responsibility was to do a good job and that when Py stated he intended to vote for the Union she shook hands with him and complimented him on his hon esty I reject Lim s and credit Py s testimony because Py s demeanor was good whereas Lim's was poor 32 32 The General Counsel contends that despite Py s testimony then I said about the Unions if the Union wins the company will close that it was Lim who made this statement In view of Py s testimony which im mediately followed [s]he did not use the term election at that time but she implied it an argument can be made that Py misspoke and that from I am also persuaded when viewed in context that Lim s above described conduct constituted an implied promise that the company for whom Py worked would increase the employees wages hours and employment benefits if the employees did not support Local 87 s or ganizing campaign and that the employees would not re ceive these improved conditions of employment if they support that union Employee Hyung Bok Seo testified that on or about 10 October 1983 while at work Supervisor Kim told him Lim wanted to speak to him and took Seo to where Song Lim was seated Seo further testified Lim told him if the company was unionized the company would lose its contract and as a result the employees would lose their jobs and this would not do the Korean employees any good Lim explained that the Company would lose its contract because it had underbid the contract and the nature of its contract with American Airlines was like that Seo testified that when he replied by indicating the employees needed a union because they did not receive paid medical treatment for their on the job injuries Lim stated Seo seemed to be a little bit radical and disputed his contention the Company was not paying the employ ees medical treatment for on the job injuries Lim testi fled that she did not know and did not remember what was stated during this conversation However she denied stating if Whitewood became union it would lose the contract and further testified that when Seo coin plained that the Company lacked workers compensation coverage for the employees, she indicated to him she did not feel this was true I have credited Seo s description of the conversation because when they testified about this matter Seo s demeanor was good and Lim s was poor In the last week of October 1983 it is undisputed that Song Lim spoke to employees Hyung Bok Seo and Chi Ho Rho during their working hours in the vicinity of the American Airlines janitors room Seo and Rho testified about this conversation and a composite of their testimo ny that is mutually consistent in significant respects fol lows Lim told them that if they did not vote for the Union in the scheduled representation election they would be granted better employment benefits including insurance and wages Rho indicated that he did not think it was legal for Lim to make such a statement and he indicated he did not believe her promise of better bene fits and stated in his opinion the union offered the em ployees better benefits Lim s description of this conver sation is as follows She testified initially that she indicat ed to Seo and Rho she felt they were not working hard but were talking instead of working and in the same breath assured them when a new company takes over you will get a raise in salary as well as better benefits She later testified I may have said that if Rho and Seo voted no in the representation election they would re ceive higher wages and benefits When questioned fur ther about what she stated on this subject Lim testified the context of his testimony it appears he was referring to what Song Lim was saying Nonetheless in view of the ambiguity the General Counsel has failed to prove that it was Lim not Py who stated If the Union wins the company will close WHITEWOOD MAINTENANCE CO 1185 she told the two employees, don t make so much com motion, or a lot of noise and if you vote no, we 11 raise your salary and you will get benefits, and in reply Rho stated it was wrong for her to talk about wages and benefits 33 In short it is undisputed that Lim told employees Rho and Seo that if they voted against union representation in the scheduled representation election, they would re ceive improved benefits of employment including wages Insofar as Lim testified that she advised the employees this increase was also conditioned on their working in stead of talking, I have rejected Lim s testimony because when she testified about this conversation her testimonial demeanor was poor In his prehearing affidavit employee Woo Young Jhun who during the time material had publicly expressed his opposition to unionization, states that on approximately five or six occasions before the 10 November 1983 repre sentation election Song Ae Lim talked to him about the election and asked him to do whatever he could to help the company win the election and on approximately two occasions shortly before the election Lim also told him the company would have to close down if the Union won the election '34 No one else besides himself and Lim were present during these conversations Song Lim testified that she spoke to Jhun at SFO ap proximately 7-10 days before the 10 November 1983 election and that Jhun brought up the subject of the Unions by stating he thought employers should never be unionized and that he was on the side of the Company because the Company had to exist first so Jhun could exist According to Lim she replied by nodding that she agreed with his sentiments and ended the conversation by telling him keep up the good work or words to that effect Lim specifically denied she told him Whitewood would have to close down if the Union won the election I have rejected Lim s denial and credited the statement contained in Jhun s affidavit that Lim shortly before the election on two occasions told him `the company would have to close down if the Union won the election In reaching this conclusion I have considered that when viewed in the context of the whole record the statement in Jhun s affidavit is not inherently implausible and more significantly it is consistent with employee Seo s testimo ny that prior to the election Lim told Seo if the Compa ny was unionized the Company would lose its contract and the employees would lose their jobs 33 Lim testified that the reason she told Rho and Seo they would re ceive higher wages and benefits was that when she took over Whitewood s SFO business the employees wages would be raised to $5 25 from $4 50 an hour pursuant to the terms of her contract with Local 77 Lim was unable to explain why she did not tell the employees that regardless of whether they voted for or against Local 87 in the rep resentation election they would receive a pay raise 34 Jhun on the dates of the hearing in this case was bedridden he was suffering from a terminal illness and because of this was unavailable to testify Previously on 29 April 1984 during the investigatory stages of this proceeding he submitted a sworn affidavit to the Board s General Counsel This affidavit was admitted into evidence without objection pur suant to Rule 804 of the Federal Rules of Evidence All the parties to this proceeding agreed that under the circumstances it is appropriate for me to consider everything contained in the affidavit Employee Albert Kelleher testified that late September or early October 1983 when Song Lim first approached him while he was working at SFO, she asked him about his work and during the ensuing conversation told him the employees should forget the Union because the em ployees were Korean and Koreans should stick together and stated we'll give you the benefits Lim did not deny speaking to Kelleher about Koreans sticking to gether, but she denies she spoke to him about the Union or told him to forget about the Union or that he would get more benefits if he voted against the Union Neither Kelleher nor Lim when they testified about this matter impressed me demeanor wise as being very reliable witnesses Also in Kelleher s case the affidavit he submitted to the Board concerning this disputed con versation merely states Lim talked to him about Koreans sticking together and helping each other His affidavit omits the most significant portions of this conversation Kelleher s explanation that he simply forgot to tell the Board agent these significant matters was not given in a convincing matter and does not ring true Under the cir cumstances I have rejected Kelleher s above described testimony b Discussion and conclusions As I have found supra, when Lim visited SFO and spoke to Whitewood s employees during working hours in October and November 1983 prior to the 10 Novem ber election in an effort to persuade them not to support Local 87 s organizational campaign Lim was acting in anticipation of her own company Lucky replacing Whitewood in the near future as World s subcontractor Lim had prematurely entered into a collective bargaining contract with Local 77 Local 77 s standard janitorial contract in anticipation of doing business at the SFO air port Local 87 s standard janitorial collective bargaining contract contains more costly terms and conditions of employment than Local 77 s contract which presumably accounts for Lim s efforts to persuade the employees not to support Local 87 s organizational campaign by prom ising employee Py better wages hours and employment benefits if the employees did not support Local 87 by warning employee Seo that if the Company was union ized it would lose its contract and the employees would lose their jobs 35 by promising employees Seo and Rho that if they did not vote for Local 87 they would be granted better benefits of employment, and by warning employee Jhun that the Company would have to close down if Local 87 won the election Respondent Lucky urges that Lim s above described promises of benefits and threats of reprisal are not attrib utable to Lucky because when Lim expressed them to the employees, Lucky was not in operation and thus was as Lim explained to Seo that the reason the Company would lose its contract was it had underbid the contract and that the janitorial contract with American Airlines was like that No evidence was offered to sup port these assertions Quite the opposite witnesses for World and Whitewood testified the reason Whitewood lost its SFO subcontract with World was not because of financial problems but due to the fact World terminated its subcontract with Whitewood because of customers com plaints 1186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD not an employer under the Act I disagree It is plain that when Lim made her remarks to the employees that Lucky, while not in actual operation, was already in ex istence and that Lim, based on her understanding with World s owner Sony, expected to replace Whitewood as World s SFO subcontractor in the immediate future So when Lim attempted to dissuade Whitewood s employ ees from supporting Local 87, she was engaging in this conduct for her own benefit, her desire to have a collec tive bargaining relationship with Local 77, rather than with Local 87 Under the circumstances, Lim s above de scribed promises and threats made to employees Py, Rho, Seo and Jhun, are attnbutable to Respondent Lucky The more difficult issue is whether these prom ises and threats can reasonably be found to have a tend ency to restrain or coerce the employees from support ing Local 87 s organizational campaign, even though none of the employees involved had any knowledge about Lim s relationship with Lucky or that Lim would be their new employer in the near future I need not decide this question because each of the employees to whom Lim expressed her promises and threats were em ployed by Lim on 17 November 1983 at which time they learned that Lim was Lucky s owner and that she had the authority to carry out the threats and promises she previously had made to them Lim did not repudiate these threats or promises Under these circumstances, I find that Lim s above described threats and promises made to employees Py Seo Rho and Jhun reasonably tended to restrain or coerce these employees from sup porting Local 87 I therefore find that Respondent Lucky violated Section 8(a)(1) of the Act by promising employee Py better wages hours and employment bene fits if the employees did not support Local 87 by warn ing employee Seo that if the Company was unionized it would lose its contract and the employees would lose their jobs by promising employees Seo and Rho that if they did not vote for Local 87 they would be granted better benefits of employment and by warning employee Jhun that the Company would have to close down if Local 87 won the election 36 36 I have not decided whether Lim was acting as Whitewood s agent when she engaged in this conduct because as noted previously the Gener al Counsel entered into a settlement agreement covering Whitewood s al leged violations of Sec 8 (a)(1) and (3) of the Act and is not requesting a remedial order in this proceeding to cover those alleged violations Re garding Worlds responsibility for Lim s conduct as I have indicated supra there is evidence that Sony authorized Lim to assist World in con nection with the handling of the representation election case The ques tion of whether Lim was acting within the general scope of this limited agency authority when she made the threats and promises of benefits to the employees to dissuade them from supporting Local 87 is a close one but on balance I am not persuaded the General Counsel has established that she was acting within the general scope of that agency authority when she engaged in this conduct or that her agency authority was not so limited Moreover Lim s threats and promises were not made under circumstances leading employees reasonably to believe they reflected World s policy rather than Lim s sentiments F The Alleged Violations of Section 8(a)(3) and (1) of the Act37 1 Miscellany The complaint alleges in substance that when Re spondent World terminated its subcontract with Whitewood covering the airlines SFO janitorial work and entered into a subcontract with Lucky covering this work, World violated Section 8(a)(3) and (1) because by engaging in this conduct World was motivated by the Whitewood employees support of Local 87 These alle gations are without merit and I shall recommend their dismissal because World, as I have found supra was not a joint employer of the SFO janitors with either Whitewood or Lucky Therefore, even assuming that in changing subcontractors World was motivated by hostile ty toward Local 87 s organizing efforts,38 this type of conduct did not violate the Act because an employer does not discriminate against employees within the mean ing of Section 8(a)(3) by ceasing to do business with an other employer because of union or nonunion activity of the latter s employees ' Plumbers Local 47 (Malbaff Landscape), 172 NLRB 128, 129 (1968) 39 The complaint alleges in substance that when Lucky took over Whitewood s SFO janitorial business Lucky violated Section 8(a)(3) and (1) of the Act oy changing the employees terms and conditions of employment be cause they supported Local 87 and to discourage them from supporting Local 87 The record shows that when Lucky took over Whitewood s SFO business on 17 November 1983 it re tamed all of Whitewood s janitors who desired to contin ue in its employ but made some changes in the employ ees terms and conditions of employment namely, it im mediately instituted rules and regulations of personal conduct that included a system of progressive discipline and on 28 November 1983 changed the night shift s work schedule and effective 1 December 1983 Lucky institut ed all the benefits of employment contained in its con tract with Local 77 including a raise in pay from $4 50 to $5 25 an hour The sole argument advanced in the General Counsel s posthearing brief in support of the allegation that the above described changes in employees terms and condi tions of employment was discriminatorily motivated is based on the contention World was a joint employer of Whitewood s and Lucky's SFO janitors and that since World s change of subcontractors from Whitewood to Lucky was discriminatorily motivated it follows that 37 Since I have found supra that Respondents Whitewood and World were not joint employers of Lucky s SFO,janitors I shall recommend the dismissal of the several complaint allegations that Respondents World and Whitewood violated Sec 8(a)(3) and (1) of the Act by discriminating against Lucky s employees 38 In view of my conclusion that World was not a joint employer I have not considered whether World switched subcontractors because of union considerations 39 The complaint does not allege and the record does not establish that World directed instructed or ordered either Whitewood or Lucky to discharge or otherwise affect the working conditions of their employees because of their union activities thus Dews Construction Corp 231 NLRB 182 fn 4 (1977) and the cases cited are inapposite WHITEWOOD MAINTENANCE CO 1187 Lucky s change in the employees terms and conditions of employment likewise was discriminatorily motivated Howver, since I have found that World was neither Whitewood s nor Lucky's joint employer, I have not considered that argument When Lucky s conduct of changing the employees terms and conditions of em ployment is viewed in the context of its status as the sole employer of those employees, I am persuaded the Gener al Counsel has failed to establish a prima facie showing of illegal motivation Although Respondent Lucky s owner Lim was ex tremely hostile toward Local 87's effort to organize Lucky s employees, as is evidenced by her conduct which I have found to have violated the Act, there are no other considerations present from which to infer that Lim was motivated by this hostility when she changed the employees terms and conditions of employment The timing and the context of the changes when scrutinized do not support an inference of illegal motivation Quite the opposite, the timing and content of the changes indi cate they were dictated by legitimate business consider ations Thus, when an employer such as Lucky that was never in business previously, takes over some other em ployer s business, it is customary for the new employer to rearrange the employees working hours and work schedules and to establish a set of rules and regulations to govern the employees' conduct especially where as here the predecessor employer did not have any rules or regulations With respect to the increase in the employ ees wages and benefits which were implemented to comply with the terms of Lucky s contract with Local 77, it is apparent these employment benefits would have been granted regardless of Local 87 s organizational ac tivity, inasmuch as the record reveals that Lucky s col lective bargaining and contractual relationship with Local 77 antedated Local 87 s appearance on the scene Based on the foregoing, I find the General Counsel has not established that Lucky violated Section 8(a)(3) and (1), as alleged in the complaint by changing the employ ees terms and conditions of employment when it took o,,er Whitewood s SFO business 2 The discharge of Jung Je Py a The evidence Jung Je Py began work on 10 March 1983 for Whitewood at SFO as a janitor Like the vast majority of Whitewood s SFO employees, he was a Korean who had recently immigrated to the United States and for this reason his knowledge of the English language was very limited Py continued to work for Lucky when that Company on 17 November 1983 took over Whitewood s SFO business Py, who voted in the 10 November representation election, openly and actively supported Local 87's orga nizational campaign On at least one occasion prior to the election Py was with Local 87's representatives Leung and Sung at SFO when Lucky s owner Song Ae Lim, came over and spoke to them After the election, Lim learned from employee Jhun that Py was telling em ployees that because Local 87 had won the election, the employees would get $8 an hour plus additional benefits On 21 November 1983, when Py asked Lim to provide him with a Korean translation of the Company s rules and regulations, according to Lim s testimony, Lim asked why Py did not ask the Local 87 people to trans late the rules All of these circumstances plus the fact that Gregory Choo, an admitted agent of Lucky and Lucky s Day Shift Supervisor Kim an admitted statuto ry supervisor knew that Py was an adherent of Local 87, warrant the inference that Lucky's owner Song Lim likewise knew Py was a Local 87 adherent On 17 November 1983, when Respondent Lucky took over Whitewood s SFO business, Lucky s owner Song Lim and Gregory Choo, her advisor, met with the first and second shift employees who were scheduled to work that day and told them Lucky was now their employer During the meeting that lasted about 2 hours the em ployees were given two copies of a 3 page document en titled, Rules and Regulations of Personal Conduct which sets out 31 different acts of misconduct and pro vided for immediate discharge in the case of 10 of the offenses and for the issuance of written disciplinary warnings in the case of the other 21 offenses, and for dis charge if employees committed a similar offense after re ceiving one or two disciplinary warnings A preamble to the rules and regulations explained why the Company was instituting them The final page contains a space for an employee s name and signature with the declaration that the employee had received a copy of the rules and regulations, agreed to abide by them and understood that any employment is at will and for no definite period subject to termination with or without just cause The employees were instructed to sign a copy of these rules of regulations and return it to Lim within a week The rules and regulations were printed in English Because virtually all the employees were Korean with only a limited understanding of English, they were unable to read and make sense of the rules and regulations Choo and Lim testified that during the meeting, Choo verbally translated the rules and regulations into Korean and translated them in their entirety line by line Py testi feed that Choo gave a rough translation of just ap proximately one third of the rules The only other evi dence concerning this meeting is the affidavit of employ ee Jhun which as described supra was placed into evi dence without objection because he was unavailable to testify in this proceeding within the meaning of the Fed eral Rules of Evidence Jhun s affidavit states that Choo translated the rules into Korean and further states that Jhun thereafter refused to sign the rules, because he did not trust Choo's translation for it was a verbal transla tion I am persuaded if Choo, as Py testified had only roughly translated approximately one third of the rules and regulations that Jhun would have stated this in his affidavit in justifying his refusal to sign the rules Under the circumstances even though I am not persuaded Choo translated the rules line by line,40 I am convinced 40 I note Choo s and Lim s testimonial demeanor was not good when they testified about the manner in which Choo translated the rules How ever Py s demeanor was just as bad when he testified on this subject 1188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Py s testimony was an exaggeration and Choo translated the rules in their entirety to the employees albeit not in the precise manner that he claims to have translated them Choo also testified that as he translated the rules em ployees Py and Jhun asked questions about them He tes tified Py asked numerous questions, including why the Company needed the rules, asked what certain rules meant, how they would apply, and in particular ques tioned Choo about each one of the 10 rules which pro vided for immediate discharge 4 i Regarding employee Jhun s questions Choo testified that Jhun stated he did not like the rules and asked several questions about the rules which Choo testified he was unable to remember Lim testified in effect that only one employee Py ques tioned Choo about the rules 42 that Py asked several questions about the rules and asked why it was necessary to have them In a letter dated 11 December 1983 that she sent to Labor Relations Consulant White Lim in de scribing what took place during the 17 November meet ing, stated, among other things that Lucky Service Company also gave the employees a copy of the rules for one week to allow them to study and discuss them with anyone, before they were asked [to] sign them At the meeting the em ployees were allowed to ask questions and said they had none Py testified that he only asked two questions at this meeting not one of which pertained to the rules he asked about the employees ID badges and about the status of the 10 November 1983 representation election I find Py contrary to Choo s and Lim s testimony did not question Choo about the rules Choo s and Lim s tes timonal demeanor was poor whereas Py s was good when he testified about this portion of the meeting Also less than 1 month after the meeting Lim advised Labor Relations Consultant White that none of the employees questioned Choo about the rules during the meeting I also find that Jhun contrary to Choo s testimony did not question Choo about the rules Choo s testimonal de meanor was poor when he testified about this subject Lim contradicted Choo s testimony in this respect in both her testimony given at the hearing and in her 11 December 1983 letter to Labor Relations Consultant White In summation, on 17 November 1983 when Lucky commenced operations at SFO, its instituted a written warning and progressive disciplinary system for 21 named offenses and a system of immediate discharge for 41 When the General Counsel on cross examination attempted to test Choo s memory concerning Py s questions Choo refused to answer coun sel s questions he suggested that because the topic had already been cov ered counsel go on to another topic and when the General Counsel con tinued to press Choo for an answer he declared I think we re just wast mg time Eventually he testified that Py asked so many different ques tions he was unable to remember them all 42 Lim at one point also testified that employee James Kelleher asked questions but it is plain from her entire testimony that Kelleher who un derstood English did not ask any questions and on reading the rules ex pressed his dissatisfaction with them and abruptly left the meeting stating he did not intend to work under such rules 10 other more serious offenses Two copies of these rules and regulations were distributed to the day and swing shift employees scheduled to work that day The rules and regulations which were printed in English, were verbally translated on 17 November by Choo to the em ployees who were instructed to return a signed copy to Lim Employees Py and Jhun were both employed at SFO by Whitewood and then by Lucky on the day shift and commuted to and from work together Jhun like Py is Korean with only a limited understanding of the English language On their way home on 17 November after having received the rules and regulations they discussed whether they should sign them Jhun asked what Py in tended to do about the rules and regulations and whether Py felt that the only way they could prevent the Compa ny from using the rules as a trick to fire them would be to ask the Company to furnish a Korean translation of them and not for anything that violated the rules Jhun stated he agreed with Py and told Py it was apparently important for people in the United States to sign things and stated that they should ask Song Lim to furnish the employees with a Korean translation of the rules and regulations 43 On 21 November 1983, while Py was working Lim came to him and asked that he stop work and accompa ny her to the PSA lunchroom They went to the lunch room and talked Lim asked Py to sign the rules and reg ulations Py told her that he was unable to sign them at that time because he had been in the United States only 10 months and would not have been working as a janitor if he understood the type of English used in the rules and regulations He stated if Lim translated the rules and regulations into Korean, he could then understand them thoroughly and would sign the translated rules Lim re plied by stating that she would give Py one more day to sign the rules and regulations She suggested he ask one of his relatives for help in translating them Py told her he was unable to have his sister translate the translating rules he could not get to his sisters home because he did not have an automobile but repeated that if Lim fur nished him with a Korean translation he would be will ing to sign the translation This ended the conversa tion 44 43 The description of Py s conversation with Jhun about the rules and regulations is based on Py s testimony Py s demeanor was good when he testified about this conversation 44 The description of this conversation is based on Py s testimony Lim testified that the conversation took place at the PSA boarding area She testified that Local 87 Representative Sung was seated there with four of his friends who he had previously told Lim they were college students Lim further testified that when Py told her he would sign the rules and regulations if Lim furnished him with a Korean translation that Lim asked why if Py needed a Korean translation he did not ask his friends referring to Local 87 Representative Sung and the people sit ting with Sung to translate the rules for him I have rejected Lim s testi mony because her testimonal demeanor was poor whereas Py s was good Moreover I note that when Lim earlier in her testimony desrcibed the 21 November 1983 conversation with Py which allegedly occurred at the PSA boarding area where Local 87 s representative Sung was sup posedly seated Lim sigmficantlly made no mention of any conversation between herself and Py concerning the signing of the Company s rules and regulations (Tr 1819-1821 ) WHITEWOOD MAINTENANCE CO 1189 On 22 November, when Py arrived at work that morning, Lim asked him for a signed copy of the Com pany s rules and regulations Py told her that he had been unable to go to his sister s to have the rules translat ed because he did not have an automobile and stated if Lim gave him a Korean translation he would read it and sign it Lim replied by stating to Py in effect he was dis charged 45 Immediately after his termination on 22 November, Py telephoned Local 87 s office and informed Local 87 s representative Sung about his termination Py arranged to meet with Sung early that afternoon at SFO In the meantime as discussed infra , employee Jhun had also been terminated by Song Lim for refusing to sign the Company s rules and regulations So, at approximately 1 p in on 22 November Py and Jhun met Local 87 Repre sentatives Leung and Sung at SFO After failing to locate Song Lim, the four of them went to the SFO office of Union Maintenance Company another janitorial company, where Song Lim s younger brother, Jae Lim worked as Union Maintenances SFO operations manag er Jae Lim had assisted his sister financially in starting Respondent Lucky by loaning her $2000 and at the time was employed by Lucky after 5 p in as a working super visor, when his workday ended for Union Maintenance Local 877 Representatives Sung and Leung introduced themselves to Jae Lim, and they complained about his sister having terminated employees Py and Jhun They told Jae Lim that they did not think it was fair for his sister to have terminated the employees for not signing something which they did not understand and they asked that the Company s rules and regulations be trans lated into Korean, and Jhun and Py be rehired Jae Lim stated that Py and Jhun should return to work and Lucky would try to provide a Korean translation of the rules and regulations as soon as possible 46 On 22 November Py after speaking with Jae Lim re turned to work and was at work for about one half hour when Song Lim observed him and asked what he was doing here Py told her that Local 87 representatives Leung and Sung had talked to her younger brother who had told him to return to work Lim questioned the right of her brother to interfere with her business called her brother a bastard and threatened to break his head Song Lim then stated Py this is my position would you think about this? She proposed to Py that he take a weeks vacation from work and at the end of the week fill out another employment application form and begin 45 The description of this conversation is based on Py s testimony Lim testified that when she asked Py for a signed copy of the Company s rules and regulations Py simply told her he did not have one and Lim in effect stated that he was terminated I have credited Py s and rejected Lim s testimony because Py s testimonial demeanor was good whereas Lim s was poor 46 What occurred in Jae Lim s office on 22 November is based on Sung s and Leung s testimony Jae Lim testified Leung talked about Lucky s rules and regulations and stated he wished they were translated into Korean and in response Jae Lim stated he would ask his sister to translate the rules Jae Lim further testified that as Py Leung and Sung left the office that he overheard Leung state Go back to work Jae Lim did not specifically deny stating at this meeting the employees should return to work I have credited Sung s and Leung s testimony be cause their testimonial demeanor was good whereas Jae Lim s was poor work for the Company as a new employee 47 Py replied he would think about the offer The conversation ended with Py asking whether he was still fired Song Lim an swered in the affirmative 48 Later on 22 November, while Py was sitting in an SFO cafeteria Song Lim approached him and asked whether Jae Lim had really told him to return to work When Py answered yes, she stated she would check into the matter She shortly thereafter returned with her brother who denied having told Py to return to work 49 During the afternoon of 22 November, Jae Lim in formed Song Lim that Local 87 Business Representatives Leung and Sung had asked that the rules and regulations be translated for the employees into Korean and that he Jae Lim told them that Song Lim would make such a translation Song Lim responded by informing Jae Lim they should try to have the rules and regulations translat ed immediately 50 Later that afternoon or evening Song Lim asked Gregory Choo to prepare such a translation, and that night Gregory Choo asked his wife Juliet Choo, to do this J Choo worked later into the night preparing the Korean translation which the next day 23 November, was photocopied and distributed to employ ees who wanted a Korean translation and posted on a company bulletin board 51 On 23 November 1983, Song Lim signed a Termina tion of Employment slip which stated that Py was dis charged on 22 November 1983 gave three reasons for his discharge as follows (1) Refused to sign Company Rules and Regulations of Personnel Conduct (2) Insult with bad words to President in front of employees and willful disobedience and insubordination (3) He challenged hiring policy He insisted to hire only Korean nationals Early in December 1983 Py received a copy of this terminal slip in the mail 41 Lim testified that her intent was that this would be an unpaid vaca tion 48 The description of Song Lim s conversation with Py s is based on Py s testimony Lim testified she told Py to take a week s vacation and return to work with a new mood and new spirit and that Py stated he would think about it Lim also testified that during this conversation Py stated he could not sign the rules and regulations because of his commit ment to the Union I have credited Py s and rejected Lim s testimony beause Py s testimonial demeanor was good whereas Lim s was poor 4e Based on Py s undenied testimony so Based on Jae Lim s testimony 51 Juliet Choo a native of Korea has been in the United States for 20 years and holds a degree from an American University When her bus band asked her to translate the rules and regulations she questioned her ability to make an accurate translation because her English was not good and suggested to her husband he use a professional translator but her husband replied he did not have time to do that A comparison be tween J Choo s translation and the English version of the rules and regu lations reveals a large number of differences some of them substantive One of the differences is that section 7 of the rules and regulations pro vides in substance that a copy of warnings issued to employees shall be given to the Steward and the Union whereas the Korean translation stated relevant institutions will be notified about employees warnings The General Counsel apparently contends this change was made for some devious reason I disagree J Choo testified in effect that her use of the phrase relevant institutions instead of Steward and Union was like the rest of her translation based on her own personal feelings as to how the rules and regulations should be translated and had nothing to do with any knowledge she may have had concerning problems that were occurring at SFO Lim s testimonial demeanor was good when she testi fled about her translation of the rules and regulations 1190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD b Discussion and conclusions The General Counsel has failed to establish that Py s Local 87 sympathies and activities were a motivating factor in Lim s decision to discharge him Moreover, even if the General Counsel has established this, Re spondent Lucky has proven that Lim would have dis charged Py even in the absence of his Local 87 activities and sympathies These findings are based on the follow ing reasons Song Lim s hostility toward Local 87 s efforts to orga nize the employees and her knowledge that Py was a Local 87 adherent is not sufficient by itself to establish Py's discharge was motivated by Lim s Local 87 animus and there are insufficient additional circumstances to infer illegal discrimination The timing of the discharge is not particularly significant because even though it oc curred shortly after Song Lim assumed Whitewood s SFO janitorial business, when Lim took over the bust ness she hired all of Whitewood's SFO employees, in cluding those, like Py, whom she knew were Local 87 adherents Also the reason for Py s discharge, when closely scrutinized, does not warrant an inference of ille gal discrimination The misconduct that resulted in Py s discharge, his refusal to obey Lim s order to sign the Company s rules and regulations was an act of insubor dination for which the Company s rules and regulations stated he was to be immediately discharged 52 There is no evidence of disparate treatment or that Lim treated employees more leniently who, under circumstances similar to Py s refused to sign the rules and regula tions 53 I recognize that Py s termination slip, and the statement of position submitted on Song Lim s behalf to the Board s Regional Office during the investigatory stage of this case, state that Py was discharged not just for refusing to sign the Company s rules and regulations, but for other reasons that were not relied on by Lim when she testified and that have no support in the record 54 Nonetheless the fact that in justifying Py s dis 52 Lim s order that Py sign the English rules and regulations was rea sonable inasmuch as previously Gregory Choo at the 17 November em ployee meeting verbally translated the rules and regulations and gave the employees including Py an opportunity to ask questions about the rules Thereafter Py was given 5 days to consult with others about the meaning of the rules before being asked to sign them 53 The record reveals that in the case of employees such as Seo who were not present at the 17 November employee meeting where the rules were verbally translated that when those employees refused to sign the rules because they did not understand them Song Lim provided a Korean translation of the rules Py however attended the 17 November meeting 54 Song Lim testified that her only reason for discharging Py was she believed that he really did not need a Korean translation of the Compa ny s rules and regulations but was just trying to casue her trouble by re fusing to sign them However the termination slip which Lim sent to Py and the reasons justifying the discharge which were transmitted to the Board during the investigation of this case state that Py was discharged for not only refusing to sign the rules and regulations but also because he insisted that the Company hire only Korean nationals and insulted Lim by using bad words and offensive and abusive language when speaking to her in front of employees There is no evidence that Py used bad words or abusive or offensive language when speaking to Lim Regard ing the contention that Py insisted the Company hire only Korean nation als assuming for the sake of argument Py engaged in this conduct it is clear that Lim did not view this as employee misconduct For when em ployee Kim Kyun Yil resigned from his employment on 23 November 1983 Lim wrote on his termination slip he was eligible for rehire even charge Lim exaggerated the reason for the discharge is not sufficient under the circumstances, to warrant the in ference of illegal motivation Moreover immediately after discharging Py for refusing to sign the Company s rules and regulations Lim offered to reinstate Py as a new employee after a 1 week suspension without pay This is not the conduct of an employer intent on finding a pretextual reason to rid itself of an employee for an it legal reason It is for all of these reasons that I find the General Counsel has failed to prove Song Lim s Local 87 animus was a motivating factor in her decision to dis charge Py In any event, assuming the General Counsel has estab lished that a motivating factor in Py s discharge was Lim s Local 87 animus, I am persuaded Respondent Lucky has established that, even absent Py s Local 87 sympathies and activities, Lim would have discharged him when he refused to obey her order to sign the Com pany s rules and regulations Py s misconduct constituted insubordination which under the Company s rules and regulations was ground for immediate discharge, and there is no evidence of disparate treatment or that Lim has condoned this conduct or conduct of a comparable nature It is for these reasons I conclude Py s insubordi nation caused his discharge and would have done so even in the absence of his Local 87 sympathies and ac tivities The General Counsel in the alternative urges the record establishes Py s discharge was motivated by Song Lim s hostility toward him because of his protected con certed activity In support of this contention the General Counsel relies on a statement in Liin s 4 April 1984 pre hearing affidavit, which she repudiated at the hearing and a statement included in a 11 December 1983 letter she wrote to Labor Relations Consultant White The affi davit states in pertinent part that Lim believed employ ees Py and Jhun had entered into a compact not to sign the Company s rules and regulations and this belief was based on the fact everyone other than Py and Jhun signed the rules Lim s letter to Labor Relations Consult ant White among other things complains about several alleged acts of harassment committed by employees on behalf of Local 87 which Lim informed White included, Py organized an opposition to sign the company rules This evidence does not expressly or by implica tion constitute an admission that Lim discharged Py for these reasons Viewed most favorably to the General Counsel it establishes when viewed in the light of the whole record that Lim believed Py had entered into an agreement with employee Jhun not to sign the Compa ny s rules and regulations so long as they were in Eng lish and that Py was attempting to persuade other em ployees to enter into the same agreement and Lim viewed Py s conduct with displeasure However, for the same reasons I have pre,, iously relied on in this section in rejecting the General Counsels contention Py was dis charged because of his Local 87 sympathies and activi ties I reject the General Counsei s contention he was though he informed Lim he was resigning because he objected to the Company s hiring policies and wanted the Company to hire only Korean nationals (See R Exh 21 ) WHITEWOOD MAINTENANCE CO discharged because of his above described concerted ac tivlty 5s Based on the foregoing I shall recommend the dismis sal of the portion of the complaint alleging Py s dis charge was illegal 3 The discharge of Woo Young Jhun a The evidence Jhun was employed by Whitewood as a janitor at SFO and continued his employment there when Respondent Lucky, on 17 November 1983 took over Respondent Whitewood s SFO business He attended the 17 Novem ber employee meeting where Lucky s owner Song Lim introduced herself and where Lucky s rules and regula tons were handed out to the employees with instructions to sign a copy and return the signed copy to Lim within a week Because the rules and regulations were printed in English and most of the employees were Koreans with a limited understanding of English, Lim s advisor Greg ory Choo verbally translated the rules and regulations Jhun is one of the employees whose native language is Korean, thus he was unable to read the rules and regula tions As I have found supra, Jhun and employee Py on their 17 November commute home from work agreed that because of their inability to read the rules and regu lations in English that they would not sign the English copies distributed to them by Lim, but would only sign a translated copy It is undisputed that on the morning of 22 November 1983, Lim asked Jhun, dust as she had asked Py earlier that morning to sign the Company s rules and regula tions and that like Py Jhun refused In dispute howev er is Lim s response The pertinent evidence follows Jhun s affidavit states that on 22 November 1983 while at work Lim asked him to sign a copy of the Company s rules and regulations and gave him a copy to sign that Jhun replied he could not sign unless he was given a written Korean translation that Lim refused this request and again asked him to sign the rules and regula tions, and when Jhun continued to insist on being given a Korean translation to sign that Lim told him she con sidered his refusal as meaning that he was no longer in terested in working for her and stated he could leave work right then or work for the rest of the day 56 When Jhun according to his affidavit chose to cease work im mediately Lim told him he did not need to come to work the next day Jhun s affidavit also states that on about 23 November Lim telephoned him at home and ss In view of my conclusion that the record does not establish that Py was discharged because of his concerted activity I have not decided whether Py s agreement with employee Jhun constitutes protected con certed activity However as discussed later in connection with my eval nation of Lim s reasons for discharging employee Jhun I am extremely doubtful that it is the type of concerted activity which is protected by Sec 7 of the Act 58 As discussed supra Jhun s affidavit was admitted into evidence without objection because all parties agreed that Juhn was unavailable to testify within the meaning of the Federal Rules of Evidence The affida vit dates this conversation as occurring 23 November but it is clear from the whole record that it occurred 22 November Although Lim initially testified that it occurred 23 November after her memory was refreshed she acknowledged it occurred 22 November 1191 stated, lets make it a one week unpaid vacation and come back to work after one week, 57 but that Jhun did not return to work at the end of 1 week because he felt that Lim was playing games with [him] and he did not trust her Shortly after his last day of employment, Jhun re ceived a termination slip from Lim dated 22 November 1983 that stated that he resigned from his employment and in the space entitled State in Detail the Reason for Termination the following comments were written Refused to sign the company rules and regulations He resigned', He challenged co hiring policy-He insist to hire only Korean nationals The termination slip is signed by Lim and in the space titled, To Be Completed by Supervisor it is noted Jhun was not eligi ble for rehire and at the bottom of the slip in the space titled, Recorded by is Lim's signature with the date 23 November 1983 Lim s description of what took place on 22 and 23 No vember differs considerably from Jhun's Lim testified that when at approximately 11 a in on 22 November she asked Jhun to sign the Company s rules and regulations that Jhun stated he would not sign unless he was given a Korean translation and when Lim repeated her request, Jhun again refused to sign the rules and regulations Lim testified that she responded by telling Jhun to do what ever he wanted and that she left him at his work station When asked whether she told Juhn that his refusal to sign the Company's rules and regulations meant that he no longer wanted to work for the Company, Lim in an swering this question appeared uncertain She testified I don t think I said things like that Lim further testi fled that she telephoned Jhun at his home the next evening 23 November and asked him to return to work and that Jhun told her he did not want to work for a woman whereupon Lim told him that she had made a mistake58 and pleaded with him to return to work and that she told him if he did not want to return to work immediately why didn t he take a 2 week vacation and then return to work Jhun according to Lim replied by thanking Lim very much and admitting that he had also made a mistake Lim testified this ended the conversa tion It is undisputed that Jhun never did return to work Regarding Jhun s termination slip Lim testified that it was made out by Gregory Choo based on information that Lim had given him Lim further testified that she did not sign Jhun s termination slip until 25 November and that the 23 November date was incorrect Lim did not explain why she misdated the termination slip when she affixed her signature to it Lim also testified that Jhun s termination slip was incorrect insofar as it stated Jhun was not eligible for rehire Lim was unable to ex plain why the slip stated this 54 Although the affidavit states that this conversation occurred on or about 24 November it is plain that because Jhun mistakenly dated the 22 November conversation as having occurred on 23 November this con versation took place as Lim testified on 23 November 58 Lim testified that when she told Jhun she had made a mistake she was referring to the fact that she had made Jhun who was older than herself upset and this bothered her 1192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Lastly one of the affidavits submitted to the Board by Lim prior to the hearing states in pertinent part I be lieve that Py and Jhun had made a compact not to sign the rules becuase everyone else signed the rules Lim repudiated this portion of the affidavit she testified that she did not remember the Board agent reading that por tion to her before she signed it 59 I reject Lim s testimony and credit Jhun s description of what occurred First, Lim s testimonial demeanor was poor Second Jhun s version of what occurred is consist ent with the probabilities of the situation Thus on 22 November, 2 hours before Jhun s refusal to sign the Company s rules and regulations unless he was given a Korean translation, when employee Py engaged in this identical conduct, it is undisputed that Lim reacted to Py s refusal by informing him that he was terminated and shortly thereafter advised Py that he could take a 1 week vacation and return to work as a new employee Jhun s affidavit states in effect that Lim reacted to his refusal to sign the Company s rules and regulations in exactly the same way she reacted to Py s refusal Lim did not ex plain why she allegedly treated Jhun s conduct different ly than Py s even though their conduct was identical It is for these reasons that I reject Lim s testimony and credit Jhun s description of what took place when he re fused Lim s request that he sign the Company s rules and regulations 60 In other words I find that when Jhun re fused to obey Lim s order to sign the Company s rules and regulations that she responded by terminating him b Discussion and conclusions The complaint alleges in substance Respondent Lucky discharged Jhun on 22 November 1983 because of his Local 87 activities and sympathies, and because he en gaged in other protected concerted activities The allega tion that Jhun was discharged because of his Local 87 activities and sympathies is frivolous because it is undis puted that during the time material Jhun was opposed to Local 87 s organizational campaign and Lucky s owner Lim knew this 61 Accordingly I shall recommend the dismissal of this allegation Regarding the allegation Jhun was discharged for en gaging in protected concerted activity the General Counsel contends he was discharged because he entered into an agreement with employee Py that they would only sign a translated copy of the Company s rules and regulations I have serious doubts whether this type of 59 Although the affidavit contained a Iurat above Lim s signature which states that Lim had read the affidavit that she understood its con tents and that it was true and correct to the best of her knowledge she testified because she had difficulty understanding English she did not read the affidavit before signing it but the Board agent who wrote out the affidavit read it to her 60 In crediting Jhun s affidavit rather than Lim s testimony I have carefully considered that Jhun unlike Py did not return to work 22 No vember after Local 87 Representatives Leung and Sung advised him to do so Nonetheless I am persuaded that the probabilities of the situation and Lim s poor testimonial demeanor warrant the finding that Jhun s affi davit should be credited Regarding Jhun s failure to return to work as Py did Jhun in his affidavit states that the reason for this was that he was so upset about what happened that he went home which is a reason able explanation for this conduct 8 1 1 t was not until 22 November 1983 after his discharge that Jhun signed a card for Local 87 conduct is protected by Section 7 of the Act inasmuch as it appears employees Py and Jhun by entering into such an agreement were attempting to both remain on the job and to determine for themselves which terms and condi tions of employment they would observe See e g Bird Engineering 270 NLRB 1445 (1984) In any event the record fails to establish that a motivating factor in Lim s decision to discharge Jhun was Jhun s agreement with Py not to sign the Company s rules and regulations until they were translated For assuming the statement in Lim s affidavit, I believe that Py and Jhun had made a compact not to sign the rules establishes that despite Lim s repudiation of the statement she believed or knew about Py s and Jhun s agreement not to sign the rules it does not establish that Lim was hostile toward Jhun for engaging in this conduct While an inference can be drawn from Gregory Choo s testimony and from Lim s 11 December 1983 letter to Labor Relations Consultant White that Lim was hostile to Py because she believed Py was trying to persuade other employees not to sign the Company s rules and regulations and had succeeded in persuading Jhun to agree not to sign the rules there is no evidence that Lim was mad at Jhun for entering into this agreement Also the reason for Jhun s discharge when scrutinized, does not warrant an inference that he was really fired for agreeing with Py not to sign the Company s rules and regulations The misconduct which resulted in Jhun s discharge his refusal to obey Lim s order to sign the Company s rules and regulations was an act of insubordination which under the Company s rules and regulations constitutes grounds for immediate discharge 62 Nor is there evidence of disparate treatment or that under circumstances similar to Jhun s employees who refused to sign the rules and regulations were treat ed more leniently 63 I recognize that Jhun s termination slip states he resigned even though he was discharged and it states the reason for his termination was he object ed to the Company s hiring policies in addition to his re fusal to sign the Company s rules and regulations None theless for the above reasons these circumstances, when viewed in the context of the whole record are insuffi cient to warrant the inference that on 22 November Lim seized on Jhun s refusal to sign the Company s rules and regulations as an excuse to discharge him for agreeing with Py not to sign them Moreover the day after the discharge Lim on further reflection offered to reinstate Jhun as a new employer after a 1 week suspension with out pay This is not the conduct of an employer intent on finding a pretextual reason to rid itself of an employee for an illegal reason It is for all of these reasons that I find the General Counsel has failed to prove that Lim s 62 Lim s order that Py sign the rules and regulations was perfectly rea sonable inasmuch as previously Gregory Choo during the 17 November employee meeting verbally translated the rules and regulations and gave the employees including Jhun an opportunity to ask questions More over 5 days had passed since that meeting thus affording the employees a further opportunity to have the rules translated by others ea The record reveals that in the case of employees such as Seo who did not attend the 17 November employee meeting where Choo verbally translated the rules when those employees refused to sign the rules be cause they did not understand them Lim provided a Korean translation Jhun however attended the 17 November meeting WHITEWOOD MAINTENANCE CO belief that Py and Jhun had entered into an agreement to refuse to sign the Company s rules and regulations was a motivating factor for her decision to discharge Jhun In any event assuming the General Counsel has proven that a motivating factor in Jhun s discharge was Lim s belief Jhun had entered into an agreement with Py not to sign the Company s rules and regulations Re spondent Lucky has established that even absent this belief Lim would have discharged Jhun when he refused to obey her order to sign the Company s rules and regu lations Jhun s misconduct constitutes insubordination which, under the Company s rules and regulations, is a reason for immediate discharge, and there is no evidence of disparate treatment or that Lim condoned this con duct or conduct of a comparable nature It is for these reasons that I conclude Jhun s insubordination caused his discharge and would have done so even in the absence of any concerted activity engaged in by him Based on the foregoing, I shall recommend that the portion of the complaint alleging that Jhun s discharge was illegal be dismissed 4 The discharge of Hyung Bok Seo a The evidence Seo immigrated to this country from Korea in August 1983 and in September 1983 began working for Whitewood as a janitor at SFO He continued to work there for Lucky when that Company, on 17 November 1983 took over Whitewood s SFO business During the time material , the period Seo was employed by Lucky he worked on the swing shift (3 30 p in to 12 midnight) and cleaned the area used by American Airlines On 19 November 1983 Seo signed an employment ap plication for Lucky and returned it to Lim that day Lim testified that on 19 November when Seo signed his em ployment application she interviewed him In response to Respondent counsel s question did you talk about lunch Lim testified that during the interview she told Seo, you start and finish all the work (upstairs) by 5 30 and then you have your lunch at 5 or 5 30 and that by 5 or 5 30 or 6 you should finish your lunch She further testified, in response to a leading question that during the interview she told Seo to have lunch after he fin ished his American Airlines upstairs work Seo testified in effect he was unable to remember being interviewed by Lim when he turned in his application but testified that no one from supervision ever instructed him about when he should take his lunchbreak I credit the above described testimony of Seo whose testimonial demeanor was good that no one from super vision gave him instructions about his lunch period I reject Lim s testimony whose testimonial demeanor was poor, that during a 19 November job interview she gave him specific instructions concerning his lunch period Not only was Lim s testimonial demeanor poor when she gave this testimony, but the record as a whole contra dicts her testimony that she interviewed Seo Thus there is a space in Lucky s employment application forms set aside for interviews which provides for the person doing the interviewing to sign his or her name and date the interview along with any remarks pertaining to the appli 1193 cants interview or employment In those instances where Lim interviewed former Whitewood employees Lim signed and dated this portion of the application and at times made written comments whereas in the cases of former Whitewood employees Py and Jhun who were admittedly not interviewed Lim printed a large NO in that portion of the application set aside for the interview Likewise Lim printed a large NO in this portion of Seo s application Under the circumstances, Lim s testi mony that she interviewed Seo and during the interview gave him detailed instructions concerning his lunchbreak is not credible, particularly where as here Lim s testimo nial demeanor was poor and her testimony was generally denied by Seo whose testimonial demeanor was good On or about 19 November 1983 Lim gave Seo a copy of the Company s rules and regulations which she told him to take home and return to her with his signature after he had someone translate the rules and regulations into Korean 69 On 22 November 1983, when Lim asked for Seo s signed copy of the rules and regulations Seo told her he had not signed them because he could not read English Lim and the Day Shift Supervisor Kim promptly sat down with Seo, and they roughly translat ed the rules and regulations verbally Following their translation Seo signed a copy of the rules and regulations with the following caveat If you translate this into Korean by the 25th of November I will read it and if there is a part that I could not accept or understand the signature above is not valid On 23 November shortly after 3 30 p in when Seo began work Lim, accompanied by Gregory Choo came to his work station and showed him the Korean transla tion of the Company s rules and regulations which Choo s wife had prepared the previous evening They discussed the translation with Seo, and Lim asked him to sign it Seo, despite Lim s explanation stated he could not understand the meaning of one of the sections of the rules and refused to sign it Lim told him if he did not sign by the end of the day he would be discharged and in effect stated that he should sign because she did not want to have to discharge him On 23 November at approximately 5 p in Seo went to the American Airlines supply room where Lucky stores its equipment and supplies He went there for the purpose of getting equipment he needed for his work Present in the supply room was Chi Ho Rho who worked for Lucky on the night shift thus he was not scheduled to begin work until later that evening 65 Rho 64 Seo was not at work 17 November thus he did not attend the em ployees meeting held that day for the day and swing shift employees where Gregory Choo verbally translated the rules and regulations for the employees 65 Rho was present because he had come early in order to participate in a Local 87 demonstration at SFO which had been scheduled to take place earlier that day but was canceled at the last moment I recognize that Rho testified that there in fact was a Local 87 demonstration held that day that he participated in However I am persuaded Rho was con fusing another Local 87 demonstration with this one inasmuch as Local 87 representatives Leung and Sung and Seo each testified that although Local 87 had scheduled a demonstration for 23 November it was can celed by Local 87 at the last moment Neither Choo nor Lim who were present at SFO during the afternoon and early evening of 23 November Continued 1194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and Seo talked briefly about having lunch, about the Korean translation of the Company s rules which had been posted in the supply room earlier that day, and about the cancellation of Local 87 s demonstration that had been scheduled for that day 66 During this conversa tion Py, who, as discussed supra , had been discharged the day before, entered the supply room and joined the conversation Shortly thereafter, Lim entered She asked Py what he was doing there and asked him to leave, which he did Lim then in effect, reprimanded Rho and Seo for allowing Py to come into the supply room, ex plaining he was no longer an employee of the Company After lecturing them about the dangers of allowing unau thorized persons into the area, Lim left Seo and Rho to gether in the supply room Before leaving, however, she referred to the persons who had come to the airport that day to participate in the Local 87 demonstration as crippled bastards and declared that if they came here to do the demonstration why did not they go ahead and do it ' After she left they continued their conversation for a short time and then left the supply room to have lunch at the cafeteria located in the central terminal, a little over 600 feet away 67 As Seo and Rho walked toward the central terminal cafeteria, they were observed by Lim, who was seated with Gregory Choo in front of one of the airline ticket counters located in the central terminal Seo and Rho were not accompanied by anyone else Lim asked where Seo was going Seo stated that he was going to have lunch Lim looked at her watch and told him she would count or watch the time Just as Seo and Rho were about to continue on their way to the cafeteria, Choo suddenly, without any explanation, told Lim to fire Seo Seo questioned Choo s authority to fire him Choo replied he was vice president of World Service Compa ny Lim told Seo he was fired and asked him to return his company keys Seo took the keys and instead of handing them to Lim threw them on the ground Seo then asked why he had been fired In response to this question Choo removed from his person a business card, placed it on an airline ticket counter and wrote on both the back and front sides of the card and crossed out cer tarn things on the front side He then called Lim over and Lim signed her name on the back of the card which testified that a demonstration occurred on that day However the record shows Lim knew that Local 87 had scheduled a demonstration at SFQ for that day 66 The General Counsel contends that while in the supply room during the time in question Seo was working I disagree Seo testified the reason he went to the supply room was to get some equipment he needed to do his work Contrary to the General Counsel I do not construe his testimo ny as indicating that he was working while in the supply room talking with Rho Py and Lim 67 The description of what took place in the supply room on 23 No vember is based on a composite of Rho s and Seo s testimony Their testi momal demeanor was good when they testified about this subject and their testimony was inconsistent in only one respect namely the time of day when Seo and Rho commenced to talk in the supply room which is not a matter of significance I have rejected Lim s testimony about her conversation with the employees in the supply room because of her poor testimonial demeanor In any event I note that her testimony only specif ically refutes Seo s and Rho s description in one significant respect she testified in effect the translated rules and regulations that had been posted in the supply room were not there and she asked Seo and Rho if they knew of the whereabouts of the printed translation Choo then handed to Seo Choo had written on the back side of the card [Seo] you are terminated as of now- you left working station without Co permission Imme diately following this, Lim had signed her name on the card and written Lucky Services Choo had also print ed 5 55pm on the back of the card, which was the time of Seo's discharge The front of the card states that Choo was an executive vice president of World Service, but Choo s business address, which had been printed on the card, had been inked out by Choo and in its place he had written Song Lim s address The description of the immediate circumstances sur rounding Seo s discharge is based on Seo s testimony which was corroborated in all respects by Rho s testimo ny Their testimony was disputed by Lim, who gave a completely different version of what occurred Lim testi feed when Seo walked into the central terminal on 23 November and was observed by herself and Choo that, besides Rho, he was accompanied by five or six other persons whom she could not identify but who she thought were there to participate in the Local 87 demon stration scheduled for that day Lim testified that she asked where Seo was going, that Seo did not answer, and that when she asked him if he was going to lunch he answered no, and at this point Lim asked for Seo s company keys, which Seo threw at her When Seo threw the keys according to Lim, she responded by stating Whom do you dare throw keys at I don t need this, go home today and that someone standing behind Seo told Seo to ask for something in writing Lim testi fled that the fact this other person told Seo to ask for something in writing upset her so she instructed Choo to write something to the effect that Seo was fired as of that day and Choo wrote this and Lim signed it and gave it to Seo When Seo and Rho testified about the events that oc curred on 23 November when they encountered Lim and Choo they did so in a straightforward manner and their testimonial demeanor was good and they corroborated each other in all respects On the other hand Lim s testi monial demeanor was poor her testimony in significant respects was not corroborated by Choo and her testimo ny was internally inconsistent and contradicted by Choo s in significant respects It is for all of these reasons I have credited Seo s and rejected Lim s testimony con cerning Seo s 23 November encounter with Lim and Choo When questioned about her reason for firing Seo, Lim testified when she told Seo go home today, her intent was not to fire him but to just suspend him for the day because she felt he was idling around Lim testified she changed her mind about suspending him for the day and decided to fire him because he threw the keys at me But as set forth above, Lim, in her initial testimony about the events of 23 November which resulted in Seo s discharge testified it was in response to Seo s conduct of throwing the keys at her that she told him go home today Under further questioning, however Lim revert ed back to her original testimony of what occurred she now testified that she changed Seo s 1 day suspension to a discharge only after one of Seo s friends told Seo to WHITEWOOD MAINTENANCE CO 1195 ask for a written explanation, which request angered Lim But this testimony was squarely contradicted by Choo, who testified it was only after Lim had told Seo, you re fired that Seo s friend told Seo to ask Lim for a written explanation 68 I also note that Choo s testimony did not corroborate Lim s testimony that Seo was ac companied by five or six other persons besides Rho Choo testified in effect that Seo was accompanied by one person who at various times Choo described as being a friend of Seo or a Local 87 organizer In addition, Lim s testimony that Seo was accompanied by five or six per sons besides Rho is further impunged by Seo's termina tion slip which states, in pertinent part, that Seo was wandering around central terminal with friend (Empha sis added ) It is undisputed that within 1 week of his 23 Novem ber discharge Seo received from Lucky a termination slip, which was signed by Lim and dated 23 November and stated that Seo had been discharged for a combina tion of reasons, namely, he had violated the company rules and regulations by his absence from regular work ing station without authorization from supervisor', by his `engaging in personal work of any nature without au thorization", by his ' failure to carry out any reasonable order of management including refusal to work on jobs assigned by supervision Also noted as an additional reason for Seo's discharge was he threw the Co s keys at floor when management asked On the face of the termination slip it was further noted that, I gave termi nation notice on small business card Not enough space to cover above charges and that Mr Seo was wander ing around central terminal with friend Found by Presi dent ' Regarding Seo s alleged failure to carry out a reasona ble order of management including his refusal to work on jobs assigned by a supervisor Seo testified he en gaged in no such conduct during his employ with the Company and there is no evidence in the record he en gaged in such conduct or that Lim had any grounds for believing he had engaged in such conduct b Discussions and conclusions I find for the reasons set forth below that Respondent Lucky s discharge of employee Seo was motivated by se Choo was called by the General Counsel as an adverse witness and questioned about the events of 23 November insofar as they involved Choo writing the reason for Seo s discharge on one of Choo s World Service business cards When Respondent Lucky called Choo as its wit ness during its case in chief it made no effort to have Choo corroborate Lim s testimony Choo did not specifically deny Seo s and Rho s testimo ny that on 23 November he told Lim to discharge Seo nor did he specif ically deny that Seo challenged his authority to fire him or that Choo responded by stating he was a vice president of World I also note that Choo s description of the circumstances that resulted in his using one of his World Service business cards to write the reason for Seo s discharge does not ring true He testified that the reason he wrote the reason for Seo s discharge on the back of his World Service business card was that because all the airlines ticket counters were closed he was unable to find a piece of writing paper and so he looked in Song Lim s purse for a piece of writing material and in the process discovered one of his business cards That Choo accidently discovered one of his business cards while rummaging for a piece of writing material in Lim s purse is unbelievable especially as Choo later testified that he normally carried one of these cards in his pocket to use as a means of identification to enter the restrict ed areas of SFO where Lucky s janitors cleaned Seo's support of Local 87 and that Respondent Lucky failed to prove that it would have discharged him absent his support of Local 87 69 First, Seo signed a Local 87 authorization card and, thereafter, openly and actively supported Local 87 s campaign to represent Lucky s SFO janitors Second, Respondent Lucky s owner Song Lim knew that he was one of the most active Local 87 supporters in her employ Thus, the Lucky day shift supervisor, Kim, admittedly a statutory supervisor, observed Seo carrying a Local 87 picket sign at a Local 87 demonstra tion held at SFO only 2 days before the 10 November representation election Previously, on 10 October 1983, Seo had informed Lim he thought the employees needed union representation And on 10 November 1983, the day of the election, Seo acted as Local 87 s election ob server 70 Third, as already discussed supra, Lim was extremely hostile toward Local 87's efforts to represent her em ployees, and in order to discourage the employees from supporting that union promised them employment bene fits and threatened them with loss of jobs in violation of Section 8(a)(1) of the Act Additionally as I have previ ously found in this section of the decision, on the day of Seo s discharge, Lim characterized the persons who she thought were present to participate in a Local 87 demon stration scheduled for that day as crippled bastards , a further indication of her animus toward Local 87 and the employees who supported that union s efforts to repre sent her employees Fourth, contrary to the Company s usual practice Lim s advisor Choo, rather than Lim herself decided to discharge Seo, which in the circumstances of this case further supports an inference that Seo s discharge was it legally motivated As I have described in detail above immediately after Lim cautioned Seo that she would be checking to make sure that he did not remain away from his work station too long for lunch Choo suddenly and without any explanation, told Lim to discharge Seo Lim, without further discussion told Seo he was dis charged 71 This despite Choo s and Lim s testimony that sa The General Counsels further contention that the record establishes Seo was discharged because Respondent Lucky s owner Lim believed he was a part of the concerted refusal of employee Py and Jhun to sign the company rules and regulations is not only without merit but when con sidered in the light of the whole record can only be characterized as a frivolous contention 70 On 10 November Lucky s owner Lim was present for the counting of the election ballots She also took an active interest in the election pro ceedings imsmuch as she actively campaigned against Local 87 during the preelection period and attended preelection meetings between Whitewood s owner and Labor Relations Consultant White where elec tion strategy was discussed Gregory Choo was present not only for the counting of the ballots on election day but attended the preelection con ference held that same day where the parties designated their election ob servers Choo Lucky s admitted agent and Lim s business advisor had guaranteed owner Lim s bank loan so she could get sufficient capital to start her business and during the time material he was conferring with her on almost a daily basis concerning Lucky s business operations In view of all the foregoing circumstances plus Lim s failure to deny know ing that Seo was Local 87 s election observer I find it is reasonable to conclude that Lim knew Seo was Local 87 s election observer 71 I note that Lim admitted she did not read the reason for Seo s termi nation written by Choo on the business card which was given to Seo at Continued 1196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Lim was the sole person responsible for discharging em ployees and that Choo did not even advise her on mat ters of that nature Fifth, in discharging Seo Respondent Lucky deviated from its published system of progressive discipline and treated Seo different than other former Whitewood em ployees who committed either the same or more serious acts of misconduct than attributed to Seo, thus bolstering the inference that Seo s discharge was discriminatorily motivated As described supra when Seo was notified of his discharge on 23 November, he was told the reason for the discharge was because he left his work station without the Company s permission 72 The record reveals that former Whitewood employees Ngo and Wallace en gaged in either the same kind of misconduct or more se rious misconduct, yet, unlike Seo, were not discharged but instead were issued written disciplinary warnings under Respondent Lucky s system of progressive disci pline For as stated in the Company s rules and regula tions of Personal conduct, an employees absence from regular work station without authorization from supervi sor calls for a written disciplinary notice on the first two offenses, and for discharge only after the third of fense Regarding employee Ngo, on approximately 23 December 1983 Lim issued him a written disciplinary warning for violating the Company s rules and regula tions as follows ( 1) He was absent from his work station without authorization when he left his work station to take a baggage cart to the refund station for the refund money (2) His work was incompetent as Lim was re ceiving too many complaints about his work from cus tomers On about 9 January 1984, Lim issued employee Ngo a second written disciplinary warning for violating the Company s rules and regulations as follows (1) He was absent from his regular work station without author ization inasmuch as he had punched out and went home without notice (2) He had left his work station without authorization to return airport luggage carts for refunds conduct for which he had already received many warn ings and (3) He did not do competent work inasmuch as the quality of his work was poor he worked too slow, and Lim had received many customer complaints about his work Regarding employee Wallace, on about 28 De the time of his discharge Lim s further testimony that she failed to read what Choo had written because she assumed he had written what she had instructed him to write is refuted by Lim s later testimony which shows Lim did not give Choo any reason for discharging Seo but left it to Choo to supply the reason Thus Lim testified she told Choo to write something to the effect that [Seo] was fired as of that day whereas Choo wrote you are terminated as of now-you left working station without Co permission 72 I recognize the termination slip mailed to Seo several days after his discharge lists several other reasons besides his alleged absence from his work station without authorization as the grounds for his discharge It further states the reason these additional grounds for discharge were not furnished to Seo at the time of his discharge was there was insufficient room on Choo s business card to include all the grounds for the dis charge I reject this assertion Neither Lim nor Choo testified that this was the reason why at the time of his discharge Seo was given only one of the reasons for his discharge and not all the reasons I also note as I have found supra when Seo asked Choo and Lim to furnish him with the reason for his discharge that he did not ask that this information be fur niched in writing but simply asked why he had been fired In any event as discussed infra each of the termination slip s additional reasons for the discharge are false cember Lim issued a written disciplinary warning to him for violating the Company s rules and regulations by his frequent absences from work without proper authonza tion or reasonable cause after having received numerous warnings On 9 January 1984 Lim issued Wallace a second written disciplinary warning for being absent from his work station without his supervisors authoriza tion inasmuch as on 8 January Lim was unable to find him in his work area between 11 p in and 2 am Lim did not explain why in disciplining Seo she did not follow her Company s progressive system of discipline before discharging him, nor did she explain why she treated Seo differently than employee Ngo and Wallace I recognize that when Lim asked Seo to return the Com pany s keys that instead of handing them to her as re quested, he threw them to the floor However, as I have found supra, this insubordinate conduct occurred only after Seo had already been told by Lim that he was dis charged, thus Respondents reliance on this act of insub ordination to distinguish Ngo s and Wallace s cases is misplaced Sixth each of the additional reasons for Seo s dis charge listed by Lim on the termination slip mailed to him several days after his discharge are false, thereby further buttressing the inference Seo s discharge was dis criminatorily motivated As described supra the postdis charge termination slip signed by Lim and mailed to Seo states that, besides his absence from his work station without authorization, Seo was terminated for a combi nation of other reasons namely, throwing the Company s keys at the floor in response to managements request for them doing personal work without authorization and failing to carry out reasonable management orders, in cluding his refusal to work on jobs assigned by supervi sion The throwing of the keys could not have had any thing to do with the Company s decision to discharge Seo because as I have found supra, Seo threw the keys on the floor only after he was told that he was dis charged The conclusionary allegations that Seo violated the Company s rules and regulations by doing personal work without authorization and by failing to carry out reasonable management orders including his refusal to do the work assigned to him by supervision, were not ex plained by Lim She failed to testify what specific con duct engaged in by Seo these conclusionary allegations encompassed Seo testified in effect he did not engage in conduct of this type, and the record fails to establish that he did or that Lim had reasonable grounds for be lieving Seo had engaged in conduct of this nature The several above described factors when taken to gether persuade me the General Counsel has proven that Seo s support for Local 87 was a motivating reason for his discharge I am also persuaded for the reasons set forth that Respondent Lucky has not proven Lim would have discharged Seo even absent his support for Local 87 73 79 The formula I have used in this decision to determine whether the discharges of Seo and the other alleged discriminatees were unlawfully motivated was articulated in Wright Line 251 NLRB 1083 (1980) Under this test once employer opposition to union or protected concerted activ Continued WHITEWOOD MAINTENANCE CO 1197 Lim testified she fired Seo for a combination of three reasons (1) to some extent because he threw the set of keys at her when she asked for them (2) Lim was an gered when persons accompanying Seo told him to ask for a written statement explaining why he was being sent home from work and (3) because as Lim testified at that time whether American Airlines74 would give us a contract or not was in discussion 75 At that time I saw him at 5pm downstairs [referring to their earlier meeting on 23 November in the supply room] and that means that he had spent an hour for lunchtime, and that doesn t make sense to me Lim s testimony Seo s discharge was based in part on the fact that he threw a set of keys at her when she asked for them is false As found supra it was only after Lim told Seo he was discharged that Seo, understand ably upset, threw the keys Moreover as found supra the keys were not thrown at Lim, as Lim testified but were thrown at the floor as Seo and Rho testified, and as stated in the termination slip signed by Lim which was sent to See several days after the termination In view of these circumstances, I find that Seo s throwing of the keys was not relied on by Respondent Lucky when it decided to discharge Seo Lim s testimony that Seo s discharge was based, in part, on the fact that she got angry when persons accom panying Seo told him to ask for a written statement ex plaining why he was being sent home is false 76 As I have found supra, only one person, employee Rho ac companied Seo and it was Seo who, on being told that he was discharged personally asked for an explanation for his discharge As I have also discussed previously, Choo squarely contradicted Lim s testimony that Seo s discharge was based in part on Lim s loss of temper when she heard the people accompanying him tell Seo to get a written explanation 77 In view of these circum stances I find that this reason which was advanced by Lim to justify Seo s discharge, never existed ity has been shown to be a motivating factor for a discharge an unfair labor practice is established unless the employer is able to demonstrate as an affirmative defense that the discharge would have occurred even in the absence of the protected conduct NLRB v Transportation Manage ment Corp 462 U S 393 (1983) Of course where the inference of un lawful motivation is based in part on proof that the employers proffered lawful reason for a discharge is a mere pretext to disguise discrimination the inquiry is logically at an end As the Board explained in Wright Line 251 NLRB at 1084 where it has been shown that the claimed lawful reason advanced by the employer either did not exist or was not in fact relied on there is no remaining predicate for any determination the dis charge would have taken place even in the absence of the union activity See also NLRB v American Geri Care Inc 697 F 2d 56 63-64 (2d Cir 1982) Postal Service 275 NLRB 510 (1985) 94 Seo was assigned to clean up the area used by American Airlines 75 I note that Lim s testimony that as of 23 November 1983 whether American Airlines would give us a contract or not was in discussion is suspect because the record reveals that it was not until 3 months later 24 February 1984 that Lucky received an invitation from American Airlines to bid on its work 75 As described supra Lim further testified that at this point of time her intent had been to only suspend Seo for the rest of the day 77 I also note that this reason for the termination was not included among the several reasons included in the termination slip mailed by Lim to Seo several days after the discharge Regarding Lim s testimony that Seo s discharge was based in part on her belief Seo had taken an hour instead of 30 minutes for lunch assuming Lim had good reason to believe Seo engaged in this conduct when she ob served him walking in the central terminal with Rho it does not establish this conduct would have resulted in his being discharged by Lim during the normal course of business For, as I have found supra, the other two rea sons which Lim testified she relied on to discharge Seo either did not exist or were not relied on to discharge him Therefore, it is not clear whether Lim s belief that Seo had been abusing his lunch break privilege on that particular occasion would by itself have resulted in Seo s discharge by Lim during the normal course of business Moreover it is clear that by itself this type of conduct would not during the normal course of business have resulted in Seo s discharge For the record reveals that under Lucky s system of progressive discipline this was not the type of misconduct that would have resulted in Seo s discharge Rather, it would have resulted in the is suance of a disciplinary warning at most, as is evidenced by Lim s treatment of employees Ngo and Wallace de scribed supra It is for the reasons set forth above that I find Re spondent Lucky has failed to establish it would have dis charged Seo even absent his support of Local 87 In view of my previous finding that the General Counsel has established Seo s 23 November 1983 discharge was motivated by his support for Local 87 I further find Re spondent Lucky s discharge of Seo violated Section 8(a)(1) and (3) of the Act 78 5 The discharge of Chi Ho Rho a The evidence Rho immigrated to the United States from Korea in January 1983 and in September 1983 began working for Whitewood as a janitor at SFO He continued working there for Lucky when that company took over Whitewood s SFO business He was employed on the night shift Rho signed a Local 87 card and attended several Local 87 organizational meetings He made his pro Local 87 sentiments known to Lucky s owner Lim when, late in October 1983 in response to Lim s statement that if the employees did not vote for Local 87 they would be granted better benefits of employment Rho stated that he did not think it was legal for Lim to make such a statement and that, in any event he did not believe her promise of better benefits and thought that Local 87 of fered the employees better benefits than the company On 5 December 1983 on his day off from work Rho attended a press conference and demonstration held by Local 87 at San Francisco City Hall It was directed 78 Seo s conduct of throwing the Company s keys on the floor when Lim asked for them was not so egregious when considered in context so as to warrant denying him the usual offer of reinstatement remedy for his unlawful discharge Seo engaged in this unpremeditated conduct as a result of a loss of temper caused by his illegal discharge See NLRB v M&B Headwear 349 F 2d 170 174 (4th Cir 1965) Model A Motor Car Reproductions Corp 259 NLRB 555 fn 4 (1981) 1198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD against certain of Respondent Lucky s alleged unfair em ployment practices Rho carried a picket sign containing a legend which, in substance, stated Lucky and World had unfairly fired employees and were engaging in a campaign of union busting The next day, 6 December, an article about the press conference and demonstration appeared in a local newspaper of wide circulation, The San Francisco Examiner, which discussed Local 87 s dis pute with Respondents Accompanying this article was a photograph that showed Rho holding a picket sign Under this photo was the caption Korean American Janitors picket at San Francisco International Airport- They say the City pays no heed to the fact they re over worked and underpaid Considering the nature of the story I am persuaded it is a fair inference that on 6 De cember this article with Rho s picture came to Lim s at tention 79 And it is undisputed that when she read this article, Lim was very displeased about the allegation made against her Company by Local 87 and considered Local 87 s conduct in making the allegation as a form of harassment against her Company (See G C Exh 102, Lim s letter dated 11 December 1983, to Labor Relations Consultant White ) On the night of 6 December 1983 shortly before Rho was to begin work at 11 p in, Lim took him to the downstairs level of the American Airlines area at SFO where she spoke to him in a small office adjacent to the supply room where Lucky stored its supplies and equip ment There is a significant conflict between Rho s and Lim s description of what occurred during this conversa tion Rho s description of what took place on the night of 6 December between himself and Lim follows When they got to the office Rho before Lim could speak to him about what she had in mind, asked whether in computing the amount of money deducted from his pay for income tax purposes, Lim was now figuring the deduction based on an exemption of one dependent family member 80 Lim indicated it did not make any difference whether she included one dependent family member or none, as the amount deducted would remain the same Lim then asked whether Rho could operate the waxing and sham poo machine Rho stated that he did not know how to operate it but he would learn fast Lim asked how he expected to be able to operate this machine when it was taller than him and stated that Rho should work on the swing shift from 6 to 11 p in Rho replied if his work shift ended at 11 p m he would be unable to get home and asked Lim how he could work the swing shift under those circumstances 81 Lim told him his problem in get ting home from work was not her concern, and she would consider that Rho was not interested in working and stated So I will fire you ' Rho then asked her to give him his check referring to his 1 December pay check which he apparently had not as yet received 98 Lim did not deny that this was the case 80 Rho had previously asked Lim to deduct his income taxes on the basis of an exemption of one dependent family member 81 Soon after Lim took over the Whitewood s SFO business Rho told her since he lived in Alameda California it took him about 2 hours to get from his home to work because he had to transfer between buses sev eral times and asked her to understand his situation whereupon Lim asked him to sign a W 4 form Rho re plied he did not know what a W 4 form was and stated he did not remember having ever signed such a form when he was employed by Whitewood Lim responded by stating, Where is the punk who does not know what the W 4 form is while living in America9 82 Rho replied by asking Lim How can you say things like that even if you are the owner and the president of a company whereupon Lim called him a little punk and Rho at this point swore at Lim He called her among other things a fucker and a crazy insane bitch and Lim re sponded by calling Rho various obscene names and as Rho left the office where they had been talking Lim fol lowed him and the exchange of obscenities continued as they walked up the stairs leading to the American Air lines lobby at which point Rho told Lim You re firing me because you saw me in the paper, and Lim an swered, Yes, that s right So what This ended the en counter between Lim and Rho, because when Rho reached the American Airlines lobby, he went to the telephone to make a call Lim s description of what took place on the night of 6 December between herself and Rho follows Lim began the conversation by asking if Rho knew how to use the shampoo machine Rho answered No, but he stated that he could learn to use it Lim asked how he could learn to use it when the machine was taller than him Lim then stated she asked Rho What about transferring to the swing shift9 Rhos response was that he could not transfer to that shift Lim testified Rho gave her no explanation for his refusal to transfer to the swing shift but further testified he did state he had to transfer buses two or three times Lim told him that this was his prob lem and she changed the topic of conversation to Rho s paycheck She told him she had heard that he had a complaint about his paycheck 83 Rho stated when Whitewood paid him that he had claimed one dependent for tax purposes and now Lim was deducting too much from his paycheck for taxes Lim apologized for this and explained she had not known whether he was married which was why her accountant had deducted so much money During this conversation Lim was holding a W 4 form in her hand and now asked Rho to sign it at which point Rho virtually pressed himself up against Lim and with his hands on his hips indicated that Lim had no right to expect him to sign this form and called her a prostitute a fucker and a bitch Lim respond ed by stating Where is the punk who doesn t know what a W 4 form is while living in America Rho stated Dont worry you bitch I will not work for a bitch like you Lim told him not to worry because anything like you cannot work for me even if you 82 Lim s conversation with Rho was in Korean It is undisputed that Lim used the Korean term nom which the translator interpreted as punk Frank Synn an expert in Korean language and culture testified that in the abstract nom could be translated into English as rascal or bastard or even little boy but given the context in which Rho testi fled the term was used by Lim that it could not have meant either a little boy or rascal but testified that it definitely bears the demeaning aspect of the word bastard 83 According to Lim Supervisor Choi told her that Rho had a pay check quest on or problem WHITEWOOD MAINTENANCE CO want Rho then left the office and went to the adjacent supply room for his personal belongings, and with Lim following proceeded up the stairs to the American Air lines lobby On their way Rho continued to call Lim ob scene names, and when they arrived at the lobby they found that several night shift employees, including Night Shift Supervisor Choi, were waiting to begin work Lim told them Rho was calling her a bitch and a fucker and asked them to make him stop In the meantime Rho had sat down with the employees and Foreman Choi and continued to call Lim a bitch, and he stated she could not get him to sign the W 4 form Lim instructed Supervisor Choi that Rho was fired and that Choi should not let him go back downstairs to work On 7 December, the day after Rho s discharge, Lim signed a termination slip for Rho which was sent to Rho between 1 and 2 weeks after his termination Despite the fact Lim testified the only reason that she fired Rho was because he was calling me names, the termination slip in the space for the reasons for an employees termina tion states Rho was discharged for different reasons as follows Frequent tardiness, threatening and intimidating Lim refused to use the shampoo or buffer machine, dis obeyed the new work schedule, used indecent language to Lim many times in front of many employees, refused to sign a W 4 form and refused to furnish the Company a social security number The record reveals that while employed by Lim, Rho was tardy for work at most only once In other words, this portion of the termination slip was false Lim offered no explanation for this fabrication The record reveals Rho did not refuse to use the shampoo or buffer machine, but instead offered to learn how to operate this machine Lim was unable to explain the reason for this fabrication The record reveals that Rho did not refuse to furnish the Company with his social security number Quite the contrary on his application for employment Rho listed his social security number Lim offered no explanation for this fabrication Lim offered no explanation for the fact that even though she testified the sole reason for Rho s discharge was his name calling his termination slip contained sev eral other reasons for the discharge Regarding the sharp conflict in Rho s and Lim s testi mony about their 6 December encounter I have credited Rho s testimony because his testimonial demeanor was good and Lim s was poor when they testified about the events of that day Moreover, in evaluating Lim s testi mony, I cannot ignore the fact that on the very next day, on a closely related matter the matter of Rho s termina tion slip the record reveals that Lim fabricated a signifi cant number of the reasons for Rho s discharge set forth on the termination slip Finally whereas Rho s descrip tion of what took place during his 6 December conversa tion with Lim was given for the most part in a straight forward manner, Lim s description of this conversation in a number of significant respects was given in a dis jointed manner It is for all of these reasons, in particular my assessment of the witnesses testimonial demeanor 1199 that I have credited Rho s and rejected Lim s version of the events of 6 December 84 b Discussions and conclusions I find for the reasons set forth below that Song Lim s discharge of employee Rho was motivated by Rho s sup port of Local 87, and that Lim failed to prove she would have discharged Rho absent his support of Local 87 First, this is one of those rare cases in which the em ployer s own words are a direct, unequivocal indict ment of its actions NLRB v Southern Plasma Corp 626 F 2d 1287, 1294 (5th Cir 1980) Thus, on 6 December 1983, when Rho after having been told by Lim he was discharged, accused Lim of discharging him not for the reason given but because she had seen his picture in the newspaper, Lim responded by stating, Yes, that s right So what9 The record establishes Lim and Rho were re ferring to the picture of Rho in that days edition of The San Francisco Examiner showing him carrying a picket sign in support of Local 87 s dispute with Lim s company Under the circumstances, Lim s remark amounts to an outright confession that she discharged Rho because he was an active adherent of Local 87 Second the timing of Rho s discharge supports an in ference it was motivated by Rho s support of Local 87 Thus Lim discharged Rho only hours after she observed Rho s picture in The San Francisco Examiner carrying a picket sign in support of Local 87 s dispute with Song Lim's company Third, Rho was an active adherent of Local 87 s orga nizational campaign and Lim knew this Thus Rho openly and actively supported Local 87 s campaign to organize Lim s employees He made known his pro Local 87 sentiments to Lim late in October 1983 when, in response to Lim s promise of better employment bene fits if the employees did not vote for Local 87 Rho stated that he did think it was legal for Lim to make such a statement and, in any event he did not believe Lim s promise of better employment benefits and thought Local 87 offered the employees better employment bene fits than the Company Then on the same day as Rho s discharge Lim learned from the picture of Rho in a local newspaper which showed him carrying a Local 87 picket sign he was still actively supporting Local 87 in its campaign to represent Lim s employees Fourth Lim was extremely hostile toward Local 87 s organizational campaign as is demonstrated by her efforts to discourage employees from supporting Local 87 s campaign by promising them employment benefits and threatening them with the loss of their jobs Fifth the shifting reasons, some of them palpably false which were advanced by Lim to justify Rho s discharge lends further support to the inference that Rho was dis 84 I have considered Respondent Lucky s contention that it is incom prehensible that after having fired Rho that Lim as Rho testified would have asked him to fill out a W 4 form However this would only be in comprehensible if the record had revealed that Lim possessed a W 4 form signed by Rho There is no such evidence On the other hand Rho testified he did not recall ever signing such a form and he further tests fled it was not until the instant unfair labor practice proceeding that he discovered what a W 4 form was 1200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD charged because of his Local 87 sympathies and active ties NLRB v Mid State Sportswear 412 F 2d 537 539 (5th Cir 1969) ( vacillations as to the reasons for the dis charge support a finding of discrimination) Jeffrey Mfg v NLRB 654 F 2d 944, 949 (4th Cir 1981) (shifting and unsupported reasons for a discharge warrants inference of unlawful motivation), Royal Development v NLRB 703 F 2d 363 372 (9th Cir 1983) (an adverse inference can be drawn when an employer strains to bolster its de fensive story before the Board with insubstantial implau sible, or shifting explanations for conduct) Lim told Rho on 6 December that he was discharged because he had indicated he could not accept a transfer from the night to the swing shift because of transportation problems Rho s termination slip signed by Lim the day after the discharge and Lucky s answer to the complaint in this proceeding states Rho s discharge was based on a combi nation of tardiness, the use of indecent and threatening language when he spoke to Lim refusing to use the shampoo/buffer machine disobeying a new work sched ule, refusing to sign a W 4 form and refusing to furnish a social security number Three of these reasons were pa tently false Subsequently Lim when she testified during the hearing in this case, disavowed all the reasons she previously gave for discharging Rho except for one she testified that the only reasons she discharged Rho was because he was calling me names Lim failed to ex plain why she included all the additional reasons in Rho s termination slip, including the ones which were patently false Nor did she explain her reason for later disavowing all of these reasons The several above mentioned consideration when taken together persuade me that the General Counsel has proved that Rho s support of Local 87 was a moti vating factor for his discharge I am also persuaded for the reasons set forth that Respondent Lucky has not proven Lim would have discharged Rho even absent his support of Local 87 Lim testified her only reason for discharging Rho on 6 December was that Rho called her obscene names on that day However I have found it was only after Lim on 6 December had told Rho he was discharged that Rho called Lim obscene names Moreover Lim even after Rho called her the obscene names responded to Rho s accusations that he was being discharged because Lim had seen his picture in the newspaper carrying a Local 87 picket sign by admitting this was the reason for the discharge No mention was made by Lim about Rho s calling her obscene names Also the next day, when Lim signed Rho s termination slip it included not just Rho s use of the obscene language but a number of other reasons as a basis for the discharge some of which are palpably false These circumstances persuade me the obscene names which Rho called Lim were not relied on by Lim to discharge him on 6 December but like the other reasons set forth in Rhos termination slip, the ob scene name calling was used as a pretext in order to bus tify Rho s discharge because of his Local 87 activities Regarding Rho s refusal to be transferred from the night to the swing shift the reason which Lim on 6 De cember initially gave to justify his discharge I am per suaded that the record establishes Lim s decision to transfer Rho to another shift was made with the intent of having him refuse the transfer so Lim could use the re fusal as a reason to rid herself of Rho because of his Local 87 activities This inference flows reasonably from the evidence set forth above which comprises the Gener al Counsels prima facie case and additional evidence that shows Lim must have known that due to his transporta tion problems Rho would have been unable to accept a transfer to the swing shift Also Lim failed to explain why she suddenly needed one less worker on the night shift and one more worker on the swing shift or why she decided to transfer Rho rather than one of the other night shift workers All of these circumstances persuade me Lim s transfer of Rho on 6 December to the swing shift was not motivated by legitimate business consider ations, but was motivated by Lim s hostility toward Rho because of his support for Local 87 It is for the reasons set forth above that I find Re spondent Lucky has failed to establish it would have dis charged Rho even absent his support of Local 87 I therefore further find that by discharging employee Rho on 6 December 1983 Respondent Lucky violated Sec tion 8(a)(1) and (3) of the Act Having found that Lim discharged Rho on 6 Decem ber 1983 because of his union sympathies and activities in violation of Section 8(a)(3) and (1) of the Act, the usual remedy for this unfair labor practice would be for Lim to offer Rho reinstatement But on 6 December after having been unlawfully discharged Rho as I have described in detail above called Lim several obscene names The question presented is whether by engaging in this conduct Rho has made the usual reinstatement remedy inappropriate Although I do not condone Rho s conduct I do not believe that it warrants his forfeiting the opportunity for reinstatement My reasons for this conclusion are as follows The discharge of an employee is normally a very trau matic experience and it becomes even more traumatic if the discharge comes abruptly and unexpectedly and the employee involved is qualified for only a very limited number of the available jobs on the job market because of a limitation in an essential work qualification such as an ability to understand English Rho who only recently immigrated to America from Korea and whose under standing of English was limited, was abruptly and unex pectedly discharged by Lim for a transparently pretex tual reason because of his union activities Under the cir cumstances I am persuaded that when Lim discharged Rho because of his union activities that she must have known and reasonably intended that the discharge would provoke an emotional response The record also warrants the inference that the several statements Lim made to Rho on 6 December before Rho started calling Lim obscene names were made by her with the intent of provoking Rho into committing an act of misconduct which Lim could use as an excuse to discharge Rho because of his Local 87 sympathies and activities Thus as I have found supra when Lim told Rho he was being transferred to the swing shift she did so with the intent of having him refuse the transfer so she could use the refusal as an excuse to discharge him WHITEWOOD MAINTENANCE CO because of his Local 87 activities Likewise Lim s con duct was colored by her animus toward Rho because of his Local 87 activities and on account of this animus she was intent on provoking him into committing an act of misconduct when she falsely told him that his claim for additional dependent deductions would not change the amount of taxes deducted from his pay, when she insult ed him about his small size in response to his stated will ingness to learn to operate a piece of equipment he had never operated and when she questioned his intelligence when he expressed his ignorance of a W 4 form even though Lim knew that Rho had only recently immigrat ed to this country and from his job application she knew that this was his first job I also note that when the con versation is viewed in the context of the Korean Ian guage and culture that the record establishes that Lim should have reasonably expected an angry response when Lim stated, Where is the punk who does not know what the W 4 form is while living in America, and when Lim called Rho a little punk in response to Rho s protest that Lim should not speak to him in that fashion It was only then that Rho lost his temper and called Lim several obscene names Last, as I have found supra although Rho called Lim several obscene names, he did not engage in this conduct in the presence of any of Lim s other employees In summation , the record reveals that immediately before Rho lost his temper and called Lim several ob scene names that not only had Lim discharged him for a transparently pretextual reason on account of his Local 87 activities in violation of the Act but Lim also en gaged in a course of conduct that was calculated to pro yoke Rho to commit an act of misconduct that Lim could use as an excuse to discharge him because of his Local 87 activities In view of these circumstances and bearing in mind that Rho s obscenities were expressed outside of the presence of Lim s other employees I am persuaded Rho s misconduct was not so egregious in re lation to Lim s provocation so as to warrant denying him the usual offer of reinstatement remedy for his unlawful discharge As the court stated in NLRB v M&B Head wear Co, 349 F 2d 170 174 (4th Cir 1965) An employer cannot provoke an employee to the point where she commits such an indiscretion as is shown here and then rely on this to terminate her employment The more extreme an employer s wrongful provocation the greater would be the em ployee s justified sense of indignation and the more likely its excessive expression To accept the argu ment addressed to us by the company would be to provide employers a method of immunizing them selves from the only real sanction against violations of Section 8(a)(3) Reinstatement in the instant case is not, as the employer puts it a reward to the em ployee for insurgency Rather as we see it, refusal to reinstate her would put a premium on the em ployer s misconduct 85 1201 Based on the foregoing I find that by discharging em ployee Rho Respondent Lucky violated Section 8(a)(3) and (1) of the Act 6 The discharge of Ronald Albert Kelleher a The evidence Ronald Albert Kelleher was employed by Whitewood at SFO as a janitor He started working for Whitewood about 8 August 1983 and during the time material worked on the swing shift under the supervision of Haw Jong Kim Between 17 and 20 September 1983 Kelleher signed a card for Local 87 and attended Local 87 organizational meetings and openly spoke with Local 87 s organizer Sung when he visited SFO Beginning late in October 1983 until the 10 November 1983 representation election, Kelleher who was not working due to an injury visited SFO and on seven or eight occasions solicited White wood s employees to support Local 87 On 18 October 1983 Kelleher learned from his doctor that his left wrist, which was previously injured had been fractured and until the fracture healed he would be able to perform only light work using only his right hand Kelleher brought a doctor s note to Supervisor Kim explaining this But after returning to work with his left wrist in a cast Kelleher found that it was too painful to continue to work and informed Supervisor Kim he intended to stop work and file a worker s com pensation claim for disability pay and he would return to work when his left wrist was better which he told Kim might take 3 6 or 12 months Kim responded by granting Kelleher permission to absent himself from work he stated that Kelleher should return to work as soon as his hand felt better and that in the interim he would replace him with someone named Tony Kel leher s last day of work was 20 October 1983 and on 26 October 1983 he filed a worker s compensation claim against Whitewood On 29 October 1983 as I have found supra White woods owner Yoon met with Labor Relations Consult ant White to discuss how Whitewood would handle the representation election scheduled for 10 November 1983 It is undisputed that at some point during that day they visited SFO so White could observe the areas where Whitewood s employees worked and the work they per formed and while there they encountered Local 87 Busi ness Representatives Leung and Sung who were accom panied by Kelleher Leung spoke to Yoon and White, while Kelleher and Sung waited off to the side Howev er Yoon walked over to where Kelleher was standing with Sung and asked Kelleher how his injured wrist was feeling Kelleher stated that the wrist still hurt and asked Yoon for the name of the insurance company that car reed Whitewood s workers compensation policy Yoon gave Kelleher the name of an insurance company and the insurance policy number Kelleher also asked about 85 See Model A Motor Car Reproduction Corp 259 NLRB 555 fn 4 (1981) E I du Pont Co 263 NLRB 159 (1982) 1202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD his employment status, whether he was terminated and Yoon told him that he was on sick leave 86 On 31 October 1983 White, in connection with the Local 87 representation election scheduled for 10 No vember wrote the Board s Regional Office conducting the election that he was representing Whitewood in that proceeding and enclosed certain documents including an up dated Excelsior list as of October 25 1983 The Ex celsior list which is a list of the employees whom the Company felt were eligible to vote in the election, in cluded Kelleher s name It is undisputed that earlier in October 1983 Yoon telephoned Local 87 Representative Sung and asked why Sung was bothering him When Sung explained he was trying to organize Yoon s Korean workers so as to im prove their working conditions Yoon made a veiled threat to have Sung, who was in the United States on a student visa deported, and he warned Sung that the company would close if the company was unionized On 8 November 1983 at approximately 2 30 p in Kel leher, while at SFO s central terminal, showed Supervi sor Kim a letter typed in English which stated in sub stance Kelleher had been a permanent employee of Whitewood since 8 August 1983 and was presently em ployed by Whitewood as a full time employee Kelleher translated this letter into Korean for Kim and asked him to sign it, explaining he wanted to bring his Korean wife into the United States and intended to send this letter to the United States Embassy in Korea in an effort to bring his Korean wife into the United States 87 Kim signed the letter On securing Supervisor Kim s signature Kelleher pro ceeded to leave the central terminal As he was exiting, he encountered Song Lim who was ertering the termi nal 88 Lim observed Kelleher and told him in English 86 The above description of what was stated by Yoon and Kelleher during their 29 October conversation is based on Kelleher s and Sung s testimony Yoon testified that he spoke to Kelleher or Kelleher s brother at SFO about workers compensation insurance coverage but he thought the person he had spoken to was Kelleher s brother not Kelleher Later he testified unequivocally that he did not have a conversation with Kel leher at any time prior to the 10 November representation election I credited Kelleher s and Sung s testimony because their testimonial de meanor was good when they testified about this matter whereas Yoon s was pooi I also note in the affidavit that Yoon submitted to the Board prior to the hearing in this case and that was taken by a Board agent in the office of Labor Relations Consultant White in White s presence it says that either on 29 October or 4 November 1983 Yoon s hile at SFO with White encountered Kelleher with Local 87 Representatives Leung and Sung and that while Leung and White argued about whether the Local 87 representatives could speak to Whitewood s employees Kel leher asked Yoon about his company s workers compensation coverage It is clear from the affidavit that Yoon was speaking with Kelleher and not with Kelleher s brother Yoon did not deny that what is contained in that portion of the affidavit was what he told the Board agent 8r The above description of Kelleher s conversation with Supervisor Kim is based on Kelleher s undenied testimony When he gave this testi mony Kelleher impressed me as a credible witness 88 The description of Kelleher s 8 November conversation with Lim is based on Kelleher s testimony Lim testified that before speaking to Kel leher on 8 November she learned from Supervisor Kim that Kim had signed Kelleher s above described letter Lim testified she thought Kel letter did not need Kim s signature on such a letter to get his wife admit ted into the United States but had some other deceptive purpose in mind in getting Kim s signature on the letter So she went to Kelleher and as she further testified spoke to him in Korean and told him it wa, her understanding he was fired and asked if it was okay for him to get You re terminated as of today Kelleher replied You re crazy and continued on his way out of the ter urinal 89 On 8 November immediately after his encounter with Lim, Kelleher participated in a Local 87 sponsored dem orstration outside of SFO s central terminal protesting World s alleged failure to pay Whitewood s janitorial employees the prevailing wage Kelleher carried a picket sign The demonstration was observed by Supervisor Kim from a distance of about 20 feet thus he presumably observed Kelleher s participation On 8 November a letter purportedly signed by Yoon and purportedly on Whitewood s stationery was mailed to the Board s Regional Office in connection with the representation election This letter advised the Board that the following is a corrected list of the employees of Whitewood Oriental for SFO as of October 14 1983 and listed the names of the employees including Kel leher s name with an asterisk aside of Kelleher s name noting he had been terminated as of October 21 1983 On 9 November a letter addressed to Kelleher which was purportedly signed by Whitewood s owner Yoon and which was typed on stationery that was purportedly Whitewood s stationery was mailed in San Francisco, California The letter dated 26 October 1983 copies of which were sent to the Boards Regional Office and Labor Relations Consultant White, stated You are ter minated from your position with our company as of Oc tober 21 1983 due to absenteeism It is undisputed this was Kelleher s first official notification of his termina tion 90 On 10 November 1983, Kelleher accompanied Local 87 s representatives Leung and Sung to the preelection conference conducted at SFO by the Board agent in charge of conducting the representation election held that day Kelleher was going to be Local 87 s election observer However during the preelection conference Gregory Choo, who attended with Yoon informed the Local 87 s representatives that he was there to represent the Company and that Kelleher was not eligible to par ticipate in the election because he had been terminated previously Leung communicated this information to Kim s signature on the letter even though he was fired What if anything Kelleher stated in reply to this Lim did not testify I have credited Kel leher s testimony and rejected Lim s because when they testified about this matter Kelleher s testimonial demeanor was good whereas Lim s was poor 88 Kelleher testified the reason he ignored Lim s declaration that he was terminated was because as far as he was concerned she had nothing to do with Whitewood 90 I recognize employee Rho testified Kelleher told him on or about 22 or 23 October that he had been fired from his job The record as a whole reveals Rho was mistaken about the date Kelleher said this to him The only evidence that anyone ever told Kelleher he was terminated is the evidence that Song Lim so advised him on 8 November that he was sub sequently told this at the 10 November preelection conference and on 11 November when he received the 26 October termination letter Under the circumstances I am persuaded Rho was mistaken in dating Kelleher s remarks about being terminated and that Kelleher in all probability spoke to him abou this matter either after Lim spoke to him 8 November or after the 10 November preelection conference or after his receipt of the 26 October termination letter WHITEWOOD MAINTENANCE CO 1203 Kelleher and Local 87 designated another employee Seo as its election observer 91 b Discussion and conclusions The record establishes that a motivating factor in Re spondent Whitewood s decision to terminate Kelleher was his support of Local 87 My reasons for reaching this conclusion follow Kelleher was an adherent of Local 87 and Whitewood, by virtue of Supervisor Kim s observation of him picket ing for Local 87 on 8 November and Owner Yoon s ob servation of him with Local 87 Business Agents Leung and Sung on 30 October knew that he was a Local 87 adherent Respondent Whitewood was hostile toward Local 87 s organizational campaign as is evidenced by Owner Yoon s 1 November 1983 statement of position urging the employees to vote against Local 87 and by Yoon s threat made early in October 1983 to have Local 87 or ganizer Sung deported because he was organizing Whitewood s employees, and his further threat to Sung that the company would close if the company was unionized Even though Whitewood knew as early as 20 October 1983 that Kelleher would be absent from his job for an indefinite period of time due to his broken wrist, it was not until 9 November 1983, the day before the represen tation election, that Whitewood for the first time notified Kelleher of his termination Previously Whitewood had notified the Board that Kelleher was one of the employ ees eligible to vote in the NLRB election, and Whitewood s owner had informed Kelleher that his ab sence would be considered as a sick leave and Super visor Kim had informed Kelleher that he had a job wait ing for him when he recovered Thus on 20 October Su pervisor Kim, on learning Kelleher was leaving work for an indefinite period of time due to his wrist injury as cured him that he had a job waiting for him when his wrist recovered and granted him permission to be absent On 29 October Owner Yoon specifically assured Kel leher he was not terminated but was on sick leave ' On 31 October 1983 consistent with Yoon s 29 October dec laration that Kelleher was on sick leave Labor Rela tions Consultant White who previously had met with Yoon on 29-30 October to discuss the scheduled repre sentation election notified the Board on behalf of Whitewood that Kelleher was one of the employees in Whitewood s employ eligible to vote in the election And on 8 November in order to assist Kelleher to ar range for his Korean wife to immigrate into the United 91 The description of what went on during the 10 November preelec tion conference is based on Leung s and Sung s testimony Yoon testified he did not recall whether it was himself or Choo who objected to Kel leher s eligibility Choo testified Yoon told him Kelleher was not eligible to vote having been previously fired but then he testified inconsistently that he did not have any discussion with Yoon about Kelleher s voting eligibility When asked what Yoon said to him at this conference he re fused to answer but stated the General Counsel should ask Yoon the question and eventually testified it was someone other than himself who objected to Kelleher s eligibility I have credited Leung s and Sung s tes timony because their testimonial demeanor was good whereas Yoon s and Choo s was poor when they testified about this preelection confer ence States from Korea Supervisor Kim signed a letter for Kelleher which stated Kelleher was presently employed by Whitewood as a full time employee The first notice Kelleher received of his termination from a represents tive of Whitewood was at the 10 November preelection conference, Whitewood s 26 October 1983 termination letter was not mailed until 9 November 1983 the day after Supervisor Kim observed Kelleher participate in Local 87 s 8 November demonstration The circumstances surrounding Whitewood s 26 Octo ber termination letter sent to Kelleher, when viewed in the context of the other factors set forth supra, warrant the inference Kelleher s discharge was motivated by Whitewood s animus toward Local 87 First although the termination letter was dated 26 October it was not mailed until 9 November and no explanation was offered for the backdating of the letter second, the signature on the termination letter, although purporting to be Owner Yoon s is not his signature , and there is no evidence to explain this forger} or the reason for the forgery or who committed it, third, the stationery on which the termina tion letter was written, although purportedly to be Whitewood s stationery, was not and once again there is no evidence to explain this forgery or the reason for the forgery or who committed it fourth, the testimony about the circumstances that resulted in the preparation of the termination letter in significant respects was inconsistent and contradictory Song Lim testified the letter was typed by her friend pursuant to a request made to Lim by Owner Yoon 92 Later, Lim inconsistently testified it was Labor Relations Consultant White not Yoon who gave her this letter to have typed On the other hand, White testified he was not the one who prepared or drafted the letter and was unable to identify the person who did He also testified he did not know who the person was who prepared or drafted the letter But Owner Yoon testified in effect, White was the person who took care of everything, including Kelleher s ter urination letter I am persuaded the highly unusual cir cumstances surrounding the issuance of Kelleher s terms nation letter and the inconsistent and contradictory tests mony presented by Whitewood s witnesses in connection with Whitewood s efforts to explain the issuance of this letter when considered in context warrants an inference that Kelleher was terminated by Whitewood because of his support of Local 87 s organizational campaign The above described circumstances in their totality persuade me the General Counsel has, by a preponder ance of the evidence made a prima facie showing suffi dent to support the inference that a motivating factor in Respondent Whitewood s decision to terminate Kelleher was Kelleher s support of Local 87 s organizational cam paign Accordingly, Respondent Whitewood must dem onstrate by a preponderance of the evidence that Kel leher would have been terminated even absent his sup port of Local 87's organizational campaign I shall set out and evaluate the evidence presented by Respondent Whitewood in support of its contention that its decision 9 2 Lim further testified she did not remember when she gave the letter to her friend to be typed nor did she have any recollection of ever re ceiving it back from the typist 1204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to terminate Kelleher was motivated entirely by legiti mate business considerations Owner Yoon testified he personally decided to termi nate Kelleher and made this decision at the start of No vember 1983, and at a subsequent meeting with Labor Relations Consultant White at the Kyoto Hotel in San Francisco that he told White he wanted Kelleher terms nated because Kelleher had not told Yoon how long he would be absent from work, whether he would be absent for 1 month or a year and that Yoon could not leave Kelleher s job open any longer Yoon further testified he asked White to take care of Kelleher s termination in cluding Kelleher s termination letter In this last regard Yoon testified he did not prepare or sign Kelleher s 26 October termination letter and did not know who signed or prepared the letter When asked if he recognized the termination letter, Yoon testified, As I talked to Ken White at the [Kyoto Hotel] coffee shop Ken White took care of everything, and further testified, I made the decision and I asked White to take care of it, to take care of the documents White testified that on 3 November 1983, he met with Gregory Choo and Owner Yoon at the Kyoto Hotel cof feeshop where, among other things, they went through the names of the employees previously submitted to the NLRB as being eligible to vote in the 10 November elec tion White testified he asked Yoon whether any of these employees had been laid off or terminated and learned Kelleher was no longer on the company payroll because of an injury White testified when he was informed of this he asked whether Yoon had given Kelleher a leave of absence or said anything formally to Kelleher in that respect When Yoon answered no White told Yoon that Kelleher was not an eligible voter and instructed Yoon to discharge him White testified he did not pre pare or draft Kelleher s termination letter and did not know who prepared or drafted the letter I reject Yoon s and White s testimony because their demeanor was poor when they testified about the events surrounding Kelleher s termination Also they contra dicted each other on significant matters Yoon testified in effect that prior to his 3 November meeting with White he had already decided to terminate Kelleher and during the meeting asked White to take care of Kel leher s termination including the preparation of the ter urination letter On the other hand White testified he had nothing to do with Kelleher s termination letter and did not even know who drafted it He testified in effect that the decision to discharge Kelleher was made by himself, not Yoon, when during the 3 November meet ing after learning from Yoon that Kelleher had not been given a leave of absence White told Yoon Kelleher was not eligible to vote in the representation election and told Yoon to terminate his employment Moreover, assuming White s testimony is credible it does not warrant a finding Kelleher would have been discharged even absent his support of Local 87 s organs zational campaign For it was based on owner Yoon s in formation that Kelleher had not been granted any kind of a leave of absence that White told Yoon to terminate him As I have found supra Supervisor Kim and owner Yoon each granted Kelleher a leave of absence Thus, the fact that White may have been acting in good faith when he told Yoon that Kelleher was not an eligible voter and to terminate his employment is no defense to the allegation that Kelleher s termination was illegally motivated where, as here, after learning from White it would be permissible to terminate Kelleher if he had not been granted some kind of a leave of absence Yoon falsely informed White that Kelleher had not been given a leave of absence The surrounding circumstances war rant a finding that in giving White this false information Yoon was motivated by a desire to prevent Kelleher from voting in the representation election because he knew Kelleher was a Local 87 adherent Based on the foregoing, I find the General Counsel has proven by a preponderance of the evidence that in terms nating employee Ronald Albert Kelleher on or about 9 November 1983, Respondent Whitewood was motivated by its animus toward Kelleher for supporting Local 87 I further find that by engaging in this conduct Respondent Whitewood violated Section 8(a)(3) and (1) of the Act 93 However, I shall recommend the dismissal of the com plaint insofar as it alleges World and Lucky were re sponsible for Kelleher s discharge inasmuch as I have found, supra, they were not joint employers of Whitewood s SFO janitors G The Alleged Violation of Section 8(a)(2) and (1) of the Act On 28 April 1983 Lucky s owner Song Lim, on behalf of Lucky entered into a collective bargaining contract with Local 77 covering Lucky s janitors Thereafter, in the summer of 1983 she entered into a successor con tract with Local 77 effective from 1 May 1983, until 1 May 1986 When Lim entered into the collective bar gaining contract, Lucky was not in business and em ployed no employees She entered into the contract with the expectation of eventually getting a subcontract from World to do janitorial work for airlines at SFO It was not until 17 November 1983 when Lucky took over Whitewood s SFO business that Lucky began doing business as World s contractor at SFO and employed its first employees Thereafter on 21 November 1983, Lim met with Local 77 s president Buchanan they reexecut ed the 1983-1986 contract that they previously had signed in the summer of 1983 and changed the effective 93 I have not provided a remedial order for Kelleher s discharge be cause at the start of the hearing Whitewood and the General Counsel with the approval of Charging Party Local 87 settled this matter infor mally and the General Counsel stated on the record that no remedial order was being sought against Respondent Whitewood for Kelleher s it legal discharge The General Counsel in its posthearing brief however argues that Respondent Lucky as a successor employer has the duty to remedy Whitewood s illegal discharge of Kelleher by offering Kelleher reinstatement because Lucky s owner Lim and its agent Choo were re sponsible for Kelleher s discharge and Lucky had knowledge of the ille gal termination I reject the General Counsels request because there is no showing Lucky was responsible for Kelleher s discharge nor is there a showing Lucky knew at the time it became Whitewood s successor that there was unfair labor practice litigation with the NLRB involving Kel leher s discharge See Golden State Bottling Co v NLRB 414 U S 168 170-172 (1973) This is not surprising inasmuch as no unfair labor prac tice charge was filed concerning Kelleher s discharge until after Lucky took over Whitewood s SFO business WHITEWOOD MAINTENANCE CO date from 1 May to 1 December 1983, and added an ap pendix to the contract in which Local 77 agreed to ex elude from the contracts coverage four members of Lim s immediate family who were employed by Lucky as janitors On 1 December 1983 Lucky, in fact, ample mented all the terms of the contract, including the con tractual union security provisions Neither on 17 Novem ber 1983 or on 21 November 1983 had a majority of the employees employed by Lucky at SFO designated Local 77 as their collective bargaining representative On 1 December 1983, Labor Relations Consultant White wrote Local 87 s lawyer that Lucky s employees at SFO were represented by Local 77 As found infra there is no evidence that prior to this date Local 87 knew or should have reasonably known about Lucky s collective bargaining relationship with Local 77 On 16 December 1983, Ronald Albert Kelleher, an employee formerly employed as a janitor at SFO by Whitewood, filed a charge in Case 20-CA-18582 alleg ing among other things, Lucky violated Section 8(a)(1) and (2) of the Act by `on or after 16 November 1983 recogniz(ing) [Local 77] which did not represent a majority of the employer's employees On 10 January 1984 this charge was dismissed by the Board' s Regional Director for lack of cooperation and no appeal was taken from the dismissal Kelleher filed this charge at Local 87 s direction Local 87 s reason for not cooperat ing in the investigation was it believed the pendency of the charge would block or otherwise hold up Local 87 s certification in the representation proceeding involving Whitewood's SFO janitors On 29 March 1984 the Board certified Local 87 as the collective bargaining representative of Whitewood s SFO janitors On 13 April 1984, Local 87 filed its charge in Case 20- CA-18903 which alleged in pertinent part Lucky was violating Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with Local 87 The charge did not allege, either directly or by implication that Lucky s col lective bargaining relationship with Local 77 violated Section 8(a)(2) and (1) of the Act, or violated the Act in any other respect The charge contained no 8(a)(2) alle gation The charge was not served on Lucky until 22 May 1984 Despite the absence of an 8(a)(2) allegation in the charge the amended complaint in this proceeding issued after the expiration of the 10(b) limitations period alleges that besides violating Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with Local 87 since on or about 18 November 1983 that Lucky also violated Section 8(a)(2) and (1) of the Act on or about 21 No vember 1983 by granting recognition and entering into a collective bargaining contract with Local 77 and by en forcing the terms of that contract effective 1 December 1983 notwithstanding that Local 77 did not represent a majority of Lucky s SFO janitors when Lucky recog nized and entered into the contract with that union Respondent Lucky at the start of the hearing filed a motion to dismiss which I reserved ruling on asking that the complaint's 8(a)(2) allegations be dismissed be cause of the absence of an 8(a)(2) allegation in the under lying unfair labor practice charges The General Counsel 1205 contends the 8(a)(2) allegations were properly included in the amended complaint because they are closely re lated to the 8(a)(5) allegations contained in the underly ing charge Respondent Lucky, however, takes the pose tion the 8(a)(2) and (5) allegations are not closely relat ed and, in any event the closely related doctrine is inapplicable because the Boards General Counsel previ ously dismissed an unfair labor practice charge initiated by Local 87 containing the identical 8(a)(2) allegations as were included in the complaint It is well settled that the complaint may allege viola tions of a different Section of the Act than that alleged in the charge if they are closely related to the violations named in the charge and occurred within 6 months of the filing of the charge American Pacific Concrete Pipe Co, 262 NLRB 1223 fn 1 (1982), quoting from Sunrise Manor Nursing Home, 199 NLRB 1120, 1121 (1972) I am persuaded for the reasons set forth that the complaint s 8(a)(2) allegations are not closely related to the 8(a)(5) violations alleged in the charge, and for this reason I shall recommend the dismissal of the complaints 8(a)(2) allegations 94 First, the actual acts charged differ from what is al leged in the complaint Lucky was charged with refusing to recognize and bargain with Local 87 in violation of Section 8(a)(5) and (1) because Local 87 was the certified bargaining representative of its employees whereas the complaint alleges that Lucky s recognition of and its contract with Local 77 violated Section 8(a)(2) and (1) of the Act because Local 77 did not represent a majority of Lucky s employees Second, the acts charged and the acts alleged in the complaint are not part of the same course of conduct There is no evidence that when Lucky entered into its collective bargaining relationship with Local 77 that it did so in order to avoid having to bargain with Local 87 Quite the opposite the record reveals that anticipating being given a contract by World to do janitorial work for airlines at SFO Lucky entered into its collective bar gaining relationship with Local 77 long before Local 87 ever appeared on the scene In other words not only do the actual acts charged differ from what is alleged in the complaint but the record reveals they were not engaged in as part of a common endeavor for a single purpose Third the legal theories concerning Lucky s alleged it legal refusal to bargain with Local 87 and its alleged ille gal collective bargaining relationship with Local 77 are unrelated The refusal to recognize and bargain with Local 87 is predicated on the theory that Lucky was a successor employer to Whitewood and as such stood in Whitewood s shoes and assumed its obligation to bargain with Local 87, whereas the alleged illegality of Lucky s bargaining relationship with Local 77 is predicated on the fact Local 77 did not represent a majority of Lucky s employees 94 I have not considered Respondent Lucky s alternate contention that the closely related doctrine is not applicable because of the General Counsel s prior dismissal of the 8(a)(2) charge filed by employee Kelleher that was initiated by Local 87 Likewise I have not considered whether the alleged 8(a)(2) violations concurred within 6 months of the filing of Local 87 s charge in Case 20-CA-18903 1206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In summation the only connection between the allega tion in the complaint that Lucky violated Section 8(a)(2) because of its bargaining relationship with Local 77 and the allegation in the charge that it violated Section 8(a)(5) by refusing to recognize Local 87 is that they are related in time They are predicated on totally different facts and do not involve a common endeavor engaged in for a single purpose Accordingly the two allegations are not closely related and do not arise out of the same course of conduct 95 I shall therefore dismiss the com plaint s 8(a)(2) allegations H The Alleged Violations of Section 8(a)(5) and (1) of the Act96 1 Respondent Lucky s refusal to recognize and bargain with Local 87 a The evidence On 10 November or 11 November 1983 Respondents World and Lucky finalized their agreement that Lucky would take over Whitewood s contract with World to perform janitorial work at SFO for several airlines 97 Thereafter, Lucky purchased all of Whitewood s equip ment and supplies used in Whitewood s SFO business and on 17 Novemeber 1983 took over the business When Lucky took over Whitewood s SFO business it continued to use the equipment and supplies formerly used by Whitewood and continued to purchase a signifi cant amount of its equipment and supplies from suppliers with whom Whitewood had done business Also, Lucky performed the identical work at SFO as Whitewood for the same customers formerly serviced by Whitewood at the same location, and it continued to employ as supervi sors one of the two supervisors employed by Whitewood, the other having terminated his employment just prior to Whitewood s cessation of business On 16 November 1983 its last full day of operation Whitewood employed 18 nonsupervisory employees of whom all but two, who chose not to apply for employ ment were hired on 17 November 1983 by Lucky to work as janitors at SFO The record also reveals that on 17 November 1983 Lucky s first day of operation, Lucky employed 16 nonsupervisory janitors all of whom 95 American Pacific Concrete Pipe 262 NLRB 1223 fn 1 ( 1982) and Sunrise Nursing Home 199 NLRB 1120 1121 (1972) cited by the Gener al Counsel are factually distinguishable in significant respects In Sunrise Manor the complaints 8(a)(2) allegation and the charges 8(a)(5 ) and (1) allegations were based on the identical set of facts In American Pacific Concrete Pipe which relied on Sunrise Manor the Board specifically noted that in this case the basis for the amendment is the close relation ship between the 8(a)(2) and 8(a)(5) allegations of the charge and com plaint which are supported by the same record evidence (Emphasis added ) 96 The amended complaint alleges Respondent World violated Sec 8(a)(5) and (1) of the Act by refusing to bargain with Local 87 in several different respects These allegations are based on the premise that World was a joint employer of the unit employees involved in this case with Respondents Lucky and Whitewood I have previously rejected this con tention I therefore shall recommend the dismissal of the allegations which charge World with refusing to bargain within the meaning of Sec 8(a)(5) and (1) of the Act 97 As I have found supra by letter dated 3 October 1983 World gave Whitewood notice that effective on or about 15 November 1983 it was canceling World s janitorial subcontract with Whnewood were former Whitewood SFO janitors 98 and continued to employ a majority of former Whitewood SFO janitors throughout the month of November 1983 until at least 2 December 1983 These janitors exercised the same skills and used the same tools and equipment as had been the case when they were employed by Whitewood It is also undisputed that commencing on 17 November 1983 Lucky employed a substantial and representative comple ment of janitors Lastly with respect to the number of former Whitewood employees employed by Lucky, the record shows that by the time Local 87 was certified by the Board on 29 March 1984, as the exclusive majority representative of Whitewood s SFO janitors, that a ma jority of Lucky s janitors were no longer former Whitewood employees 99 As I have described in detail supra, on 10 November 1983 the Board conducted a secret ballot election among Whitewood s SFO employees based on an election pets tion filed with the Board by Local 87, to determine whether the employees desired to be represented by Local 87 for purposes of collective bargaining Nine em ployees voted in favor of representation by Local 87, seven against and four ballots were challenged, thus making it necessary for the Board to resolve the chal lenges before declaring the final election result Also, fol lowing the election, Whitewood filed a timely objection to the election asking that it be set aside because of Local 87 s alleged act of misconduct In late January 1984 a hearing was conducted by a Board hearing officer on the challenges and objection that eventually resulted in Whitewood s objection being nonmeritorious and three of the challenged ballots being opened On 20 March 1984 when the challenged ballots were opened the revised tally of ballots showed that Local 87 won the election 11 to 8 On 29 March 1984 the Board issued a Certification of Representative, certifying that Local 87 was the exclusive collective bargaining representative of all the nonsupervisory janitors employed by Whttewood at SFO On 10 November 1983 immediately after the ballots were counted in the representation election held that day, Local 87 s business agent Richard Leung as he was leaving the election area, spoke to Whitewood s owner Charles Yoon in the presence of Lucky s agent Gregory Choo It is admitted that Leung asked Yoon when Yoon would sit down and negotiate with Local 87 now that 98 Lucky also employed four of Owner Lim s immediate family whom the parties to this proceeding agree are not to be considered in determin ing Local 87 s status as a successor employer See NLRB v Action Auto motive 469 U S 490 ( 1985) Indeed these family members were specifical ly excluded from the coverage of Lucky s collective bargaining agree ment with Local 77 e 9 The record shows that of Lucky s 10 bargaining unit janitors em ployed on 29 March 1984 there were three former Whitewood employ ees and that a fourth Kim II whom Lucky in its posthearing brief asserts was employed at that time had in fact quit his employment early in Janu ary 1984 Because I have found that employees Seo and Rho were illegal ly discharged by Lucky their inclusion in the computation would raise the number of holdover employees from three to five still insufficient to make the holdovers a majority I reject the General Counsels contention that discriminatee Albert Kelleher shoulo be included in the computation Kelleher was discharged by Whitewood prior to Lucky s assumption of Whitewood s business and as I have found supra Lucky is not responsi ble for remedying his illegal discharge WHITEWOOD MAINTENANCE CO 1207 Local 87 had won the election, and that Yoon responded by stating In a hundred years Likewise it is undis puted that late in March 1984 apparently after the 20 March 1984 revised tally of ballots issued in the repre sentation case showing that Local 87 had won the elec tion Leung spoke to Choo and informed him that inas much as it looked like Local 87 had won the election, you have to bargain with me Choo replied by stating that Leung had picked the wrong party again and in dicated he did not have the authority to bargain with Local 87 Thereafter, on 4 April 1984, Respondent Lucky received a mailgram from Local 87 stating Local 87 had been certified by the Board as the collective bar gaining representative for Lucky s SFO janitors and asked Lucky to contact Local 87 as soon as possible to arrange for collective bargaining sessions Lucky did not respond In dispute is whether in November 1983, after learning Respondent Lucky had taken over Whitewood s SFO operations Leung asked Song Lim and Gregory Choo, on separate occasions, to negotiate for a contract with Local 87 Leung testified that approximately 1 week after the 10 November election, when he was informed about Lucky s assumption of Whitewood s SFO business, he went to SFO to discover what was going on At that time Leung spoke to Choo and told him he thought Lucky and Whitewood were playing the corporate shell game in an effort to avoid bargaining with Local 87 and stated that since Local 87 had won the election there was no reason why Lucky should not sit down and negotiate with Local 87 In response Choo stated the election did not involve Lucky and Lucky was a new company not obligated to bargain with Local 87 Subse quently late in the afternoon or early evening on 22 No vember 1983, after receiving word from employee Py that Lim had discharged him for the second time that day, Leung testified he telephoned Lim and, after pro testing Py s discharge asked her to sit down and negoti ate with Local 87 In response, Lim stated Lucky was not obligated to bargain with Local 87 and told Leung not to bother her 100 Leung also testified that on 23 No vember 1983 late in the afternoon or early evening he met Choo at SFO and after speaking about employee Seo s discharge told Choo they should sit down and ne gotiate Choo replied by stating Lucky was not obligated to bargain with Local 87 and was on his way to Los An geles Leung s testimony concerning this conversation is corroborated in significant respects by Local 87 s orga nizer Nak Sung However he places the conversation as having occurred the next day Song Lim and Gregory Choo testified they did not have the above described conversation with Leung Lim denied receiving a telephone call from Leung on 22 No vember She further testified she never received a tele phone call from him Choo testified that after Lucky took over Whitewood s SFO operation, the first time Leung mentioned contract negotiations was when Leung as described supra spoke to him late in March 1984 Also Choo Choo s wife and Lim gave testimony which if credible impugn s description of Choo as the man whom he spoke to on 23 November However, while there is some doubt in my mind about Leung s reli ability when he described in his affidavit what Choo was wearing and carrying on 23 November there is no doubt in my mind that in November 1983, as Leung testified after learning Lucky had taken over Whitewood s SFO operation he spoke to both Choo and Song Lim about negotiations For when Leung testified about these con versations his demeanor was good, whereas when Lim and Choo testified about these conversations their de meanor was poor i 0 i In concluding that when Leung in November 1983 learned Lucky had taken over Whitewood s SFO operation that he spoke to Song Lim and Choo about contract negotiations, I have considered the possibility that Leung s testimony is unworthy of belief because of the fact that it was not until the issu ance in late March 1984 of the revised tally of ballots, that it was demonstrated Local 87 had in fact won the election However it is undisputed, as I have found supra, that on 10 November 1983, immediately following the representation election, Leung confronted White wood s owner Yoon with the assertion that Local 87 had won the election and demanded Whitewood negotiate with Local 87 Under the circumstances it is not surpris ing when Leung discovered Lucky had taken over Whitewood s SFO janitorial business that he, as he had previously done in the case of Whitewood, promptly spoke to Lucky s representatives and demanded Lucky sit down and negotiate with Local 87 In summation I find that on 22 November 1983 Local 87 s business agent Leung asked Lucky s owner Lim to sit down and negotiate with Local 87 and Lim replied by stating Lucky was not obligated to bargain with Local 87 and for Leung not to bother her Thereafter on the Board's issuance of Local 87 s certification on 29 March 1984 Local 87 on 4 April 1984, telegrammed Lucky and repeated Leung s earlier request that Lim meet with Local 87 to negotiate a contract for Lucky s SFO janitors In addition I find that on or about 17 No vember and 23 November 1983 and again soon after the issuance of the revised tally of ballots on 20 March 1984 Leung spoke to Lucky s agent Choo and asked Lucky to sit down and negotiate a contract with Local 87 I am also persuaded that in view of Choo s close business rela tionship with Lim it is a fair inference that Choo kept Lim informed about Local 87 s demands for recognition and bargaining i02 100 Leung testified the telephone number he used to reach Lim was a number that employees had given him and was the number of the Union Maintenance Company s SFO operations office The record shows Song Lim s brother Jae Lim who had helped Song Lim finance Lucky was employed by Union Maintenance Company in November 1983 as its SFO operations manager and that he worked at that company s SFO office from 8 a in to 5 p in and after 5 p in he was employed by Song Lim at SFO as a working foreman 101 I also note that while Sung was mistaken about the date on which he overheard Leung speak to Choo his testimonial demeanor was good when he described what he overheard 102 Choo was the person who enabled Lim to go into business by guaranteeing her bank loan Also he was present at SFO quite frequently in connection with Lucky s business especially during the first few months of Lucky s operations The record further reveals Choo on Lucky s behalf negotiated contracts with airlines purchased and re Continued 1208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD a Discussions and conclusions The amended complaint alleges that commencing on or about 18 November 1983 and continuing to date, Lucky failed and refused to recognize and bargain with Local 87 as the exclusive collective bargaining represent ative of Lucky s SFO janitors There is no dispute that these janitors constitute an appropriate bargaining unit Lucky s statutory obligation to recognize and bargain with Local 87, however depends on Lucky s obligation to honor the Board s 29 March 1984 certification of Local 87 as the janitors exclusive collective bargaining agent, even though the certification names Whitewood not Lucky, as the janitors employer The resolution of this issue depends on whether when Whitewood s SFO business was transferred to Lucky on 17 November 1983 Lucky was a successor employer so that for purposes of the 10 November 1983 Board conducted representation election which resulted in the Board s 29 March 1984 certification of Local 87, Lucky stood in Whitewood s shoes and was legally obligated to honor the Board s cer tification 1 03 I am persuaded that on 17 November 1983 when Lucky commenced doing business at SFO in Whitewood s place Lucky did so as a successor employ er for purposes of the representation election which had been conducted among Whitewood s janitors a week ear her and which was then pending before the Board Be cause of it., status as a successor employer, Lucky was obligated under the Act to honor the Board s 29 March 1984 certification of Local 87 In reaching this conclu sion I relied on the following considerations On 17 November 1983 when Lucky took over Whitewood s SFO business, it hired a substantial and representative complement of 16 nonsupervisory bargain ing unit janitors each one of whom had worked for Whitewood and each one of whom had voted in the Board conducted representation election held 1 week earlier 1 04 The record also establishes there was a sub ceived supplies on at least one occasion represented himself to an airline as Lucky s president in connection with a contract bid and on another occasion was introduced by Lim to an airline representative as Lim s su pervisor Also it was Choo who effectively recommended that Lim dis charge employee Seo and it was Choo who accompanied Lim on 16 and 21 November 1983 when she visited Local 77 to discuss Lucky s bargain mg relationship with that union and Choo participated in those discus stons During the hearing Respondent Lucky stipulated that during the time material Choo acted as Lucky s agent and in its posthearing brief Respondent Lucky describes Choo as Lim s principal advisor and confi dant In view of the circumstances I am persuaded it is a fair inference that whenever Local 87 representative Leung spoke to Choo about Lucky bargaining with Local 87 as the janitors collective bargaining rep resentative that Choo in his role as Lim s principal advisor and conft dant kept her informed of these demands ioa See Dynamic Machine Co 221 NLRB 1140 (1975) enfd 552 F 2d 1195 (7th Cir 1977) 104 Although all 16 of the former Whrtewood SFO janitors were hired by Lucky on 17 November 1983 it is undisputed that when Lucky s owner Lim met with the employees on that day she told them they were being hired on a temporary basis and must fill out employment applica tions and that Lim would interview them It is apparent however that the requirement that the employees fill out an employment application and be interviewed was in the nature of a condition subsequent and was not essential to their employment Thus no applications were ever sub mitted to Lucky by employees Pedro Ngo Kun Yd Kim and Edward Wallace and in some instances it was not until several days after 17 No vember that the employment applications were filled out and/or the em ployees interviewed and in the cases of at least three employees-Seo stantial continuity in the employing industry following Lucky s takeover The janitors when employed by Lucky performed the same services using the same skills and equipment as had been the case when they worked for Whitewood and Lucky serviced the same customers as Whitewood at the same locations Also highly significant in determining Lucky s status as a successor employer for purposes of assuming the ob legations incurred by Whitewood in the representation election proceeding pending before the Board when Lucky took over Whitewood s SFO business, is the fact that on or about 11 November 1983 when Lucky final ized its agreement with World to take over World s sub contract with Whitewood and on 17 November when Lucky replaced Whitewood as World s subcontractor, Lucky owner Song Lim was well aware of the penden cy of the representation case involving Whitewood s janitors She knew about Local 87 s representation pets tion and about the results of the 10 November 1983 elec tion She knew Local 87 might eventually be certified as the janitors exclusive bargaining representative More over both Lim and Lucky s agent Gregory Choo were intimately involved in various aspects of the representa tion election Late in October and early in November 1983 they attended and participated in meetings between Labor Relations Consultant White and Whitewood s owner Yoon where Whitewood s election strategy was formulated and discussed During this same period of time Lim in anticipation of taking over Whitewood s SFO business attempted to discourage Whitewood s janitors from voting for Local 87 in the scheduled repre sentation election by threatening them with reprisals and promising them employment benefits Also Lim and Choo prior to the election assisted Whitewood s owner Yoon in a number of ways concerning the election 505 Their involvement concerning the election did not cease on the day of the election but they were also involved in the postelection day proceedings involving the chal lenged ballots and the objection filed by Whitewood to the election Thus, the 11 November 1983 Declaration of Whitewood employee Wallace filed with the Board on behalf of Whitewood in support of Whitewood s ob jection was witnessed by Lim and Choo and Choo rep resented Whitewood s owner Yoon at the hearing on ob jections and challenges conducted by the Board and he Jhun and Py-no interviews were ever conducted Moreover there is no evidence that any of the employees hired on 17 November were subse quently terminated as a result of Lim s interviews or because of informa tion contained in their employment application Also it is significant that Lucky s owner Lim did not testify about the employment status of the 16 former Whitewood employees who she admittedly hired on 17 Novem ber She did not testify that their status as employees was conditioned on the outcome of their interviews Under these circumstances my finding that Lucky on 17 November 1983 hired a substantial and representative complement of 16 nonsupervisory janitors each one of whom had worked for Whitewood is warranted despite the fact that Lim when she employed the employees indicated to them that their employment was temporary pending their submission of an employment application and an interview ios As indicated previously Lim saw to it that Yoon s preelection statement to the employees was typed and translated into Korean and she distributed at least one copy of the statement to an employee Choo assisted Yoon at the preelection conference held on the day of the elec tion WHITEWOOD MAINTENANCE CO 1209 0 assisted Labor Relations Consultant White in presenting the Company s case at that hearing Under the circum stances I find that when Lucky took over Whitewood s SFO business it was not only well aware of the pending representation election case involving Whitewood s jam tors pending before the Board and that it could result in the Board s certifying Local 87 as the exclusive bargain ing representative of the janitors but that Lucky through its owner Lim and its agent Choo, actively par ticipated in all phases of that election proceeding Considering that on 17 November 1983 when Lucky commenced doing business at SFO, all of its nonsupervi sory janitors had been formerly employed by its prede cessor Whitewood and constituted a substantial and rep resentative complement of the janitors that Lucky would thereafter employ, i 06 considering that they constituted an appropriate bargaining unit considering there was a substantial continuity in the employing industry follow ing Lucky s takeover, considering Lucky knew of the pending representation case before the Board involving the janitors and that it could result in the Board certify ing Local 87 as the exclusive representative of the ,jani tors and that Lucky also actively participated in all phases of the election proceeding, even to the extent of campaigning against Local 87, and, considering that all the employees who were employed by Lucky when it commenced doing business voted in the representation election I am persuaded the General Counsel has proven by a preponderance of the evidence that when Lucky began doing business at SFO on 17 November it was a successor employer to Whitewood for purposes of the representation election proceeding which was pending before the Board, and as Whitewood s successor stood in its shoes with regard to the results of that proceeding It is for this reason that I further find that when the Board in the election proceeding on 29 March 1984 certified Local 87 as the exclusive collective bargaining represent ative of Whitewood s SFO janitors that Lucky was obli gated to honor and abide by the certification Dynamic Machine Co 231 NLRB 1140 (1975) enfd 552 F 2d 1195 (7th Cir 1977) Having found Respondent Lucky as the successor em ployer of Whitewood s SFO janitors was obligated under the Act to honor the Board s 29 March 1984 certi fication of Local 87 as the exclusive bargaining repre 106 Because Lucky employed a substantial and representative comple ment of unit employees on 17 November 1983 when it took over Whitewood s SFO business and employed a majority of Whitewood s former bargaining unit employees it was not necessary for the General Counsel to also establish that Lucky employed a majority of former Whitewood unit employees on either 29 March 1984 when the Board issued its certification or on 4 April 1984 when following the certifica tion Local 87 demanded recognition and bargaining The day that Whitewood s SFO business was transferred to Lucky is an especially ap propriate one to use to determine Lucky s status as Whitewood s succes sor for purposes of the Board s representation election because the elec tion took place only I week before the transfer and each one of the em ployees hired by Lucky voted in that election I also note that in succes sorship cases which involve the question of when a successor employer is obligated to bargain with a labor organization the law is settled the bar gaining obligation is normally determined at the time of transfer if the successor employer at that time employs as in this case a substantial and representative complement of unit employees NLRB v Hudson River Ag gregates 639 F 2d 865 870 (2d Cir 1981) Indianapolis Mack Sales 272 NLRB 690 (1984) sentative of those janitors, 107 I further find that Re spondent Lucky violated Section 8(a)(5) and (1) of the Act when it failed and refused to respond to Local 87 s 4 April 1984 demand that in accordance with the Board s certification Lucky recognize and bargain with Local 87 as the janitors collective bargaining representative roe Respondent Lucky in its posthearing brief argues that under the special circumstances here a bargaining order is inappropriate and in support of this argument con tends (1) The parent organization of Local 77 and Local 87 Service Employees International Union (SEIU), reas signed the jurisdiction of Lucky s SFO janitors from Local 77 to Local 87 without affording the janitors an opportunity to express their sentiments in the matter, (2) Lucky has a good faith doubt as to the continued majors ty status of Local 87 Regarding (1) the record shows Locals 77 and 87 sub mitted their dispute over which local had jurisdiction of Lucky s SFO janitors to the SEIU which after a hear ing, on 5 April 1984 awarded Local 87 the jurisdiction Thereafter, both local unions notified Lucky of the award and Local 77 notified the unit employees about the award and further advised them their membership would be transferred from Local 77 to Local 87 109 107 In making this finding I have taken into account Lucky s collec five bargaining relationship with Local 77 As described supra several months before it took over Whitewood s SFO business Lucky entered into a prehire contract with Local 77 in which it agreed to recognize that union as the collective bargaining representative of any janitors it might employ in the future In other words Lucky s collective bargaining rela tionship with Local 77 was not based on the desire of a majority of the employees it employed when Lucky took over Whitewood s SFO busy ness rather it was based on Lucky s desire to have that union represent its employees The employees who Lucky employed when it commenced doing business while they were employed by Whitewood had indicated that they wanted Local 87 to be their collective bargaining representative by voting for that union in a secret ballot election conducted by the Board When Lucky took over Whitewood s SFO business it knew each one of its employees had voted in that election and was well aware of the possibility that a majority of them had voted for Local 87 and as a result the Board would certify that union as the employees collective bargain mg representative It is for all the foregoing circumstances that Lucky s collective bargaining relationship with Local 77 does not preclude the finding Lucky succeeded to Whitewood s obligation under the Board s certification i08 Respondent Lucky takes the position this allegation should be dis missed because it alleges Lucky s initial refusal to recognize and bargain with Local 87 occurred on or about 18 November 1983 which was out side of the limitations period established by Sec 10(b) of the Act As I have found supra on 17 November 1983 a date outside of the 10(b) limn tations period Lucky s agent Choo refused Local 87 s demand for bar gaining Respondent Lucky s 10(b) argument is premised on the assump tion that on 17 November it was obliged by the Act to sit down and bar gain with Local 87 for a contract covering the unit employees and that Choo as Lucky s agent was acting within the scope of his authority real or apparent in receiving and rejecting such a request Assuming this to be the case the law is settled that when as here an employer has a con tinning bargaining obligation that each refusal to bargain is a viola tion of the employers duty and that the passage of more than 6 months time from one such refusal does not bar action by the National Labor Relations Board on a timely complaint based on a subsequent refusal [cases cited] Ray McDermott & Co 571 F 2d 850 (5th Cir 1978) Accord C & P Telephone Co v NLRB 687 F 2d 633 (2d Cir 1982) 109 Under the union security provision in Lucky s contract with Local 77 as found supra the unit employees were required to join Local 77 as a condition of continued employment 1210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD However because Lucky as I have found supra was ob legated under the Act to recognize and bargain with Local 87, which was the unit employees certified collec tive bargaining representative SEIU s award of jursidic tion over them to Local 87, rather than to Local 77 did not change the identity of the employees collective bar gaining representative Accordingly, the fact that the em ployees were not given an opportunity to participate in the SEIU award and express their sentiments in this matter was of no consequence Under the circumstances, Lucky s contention that the employees lack of participa tion excused its refusal to recognize and bargain with Local 87 is without merit Lucky s further contention that it has [a] good faith doubt as to the continued majority status of Local 87 is based on Respondents Exhibit 33, a petition dated 3 February 1985 addressed to SEIU s president It was purportedly signed by approximately 16 of Lucky s unit employees on various dates between 2 and 17 February 1985 It states the employees desired to stay with Local 77, not with Local 87 When Lucky offered this petition into evidence, the General Counsel objected on the grounds of relevancy Lucky did not justify its admission into evidence on the ground that it established Lucky s good faith belief of Local 87 s continued majority status rather Lucky stated the relevance goes to my merger argument and explained that a sub argument in this case is that if 77 attempted to transfer its jurisdiction to Local 87[ ] there was testimony there was no vote among the employees and this document shows in our judgment their sentiments I sustained the General Counsels objection and rejected the petition Lucky of fered no evidence establishing the petition was what it purported to be, or that Lucky ever received a copy of the petition Nor did Lucky make an offer of proof in connection with its offer of the petition Under the cir cumstances Lucky s contention made for the first time in its posthearing brief that the petition is relevant to show Lucky has a good faith doubt of Local 87 s majority status comes too late Accordingly I deny Lucky s re quest that I reverse my ruling and admit the petition Lucky s Exhibit 33 into evidence In any event assum ing arguendo Lucky did prove that a majority of the unit employees in February 1985 wanted to be represented by Local 77 rather than by Local 87 and informed Lucky of this it would not justify Lucky s illegal refusal to recog nize and bargain with Local 87 which occurred 10 months earlier For once it has been determined an em ployer has unlawfully withheld recognition to which the employees bargaining representative was entitled, the employer is precluded from defending against a remedial bargaining order by pointing to an intervening loss of employee support for the union that is the foreseeable consequence of the employer's unfair labor practice Franks Bros Co v NLRB, 321 US 702 (1944) Here not only did the evidence of employee dissatisfaction with Local 87 postdate the time at which Lucky became obligated to bargain and failed to do so but also such dissatisfaction was a foreseeable consequence of Lucky s illegal refusal to recognize and bargain with Local 87 Had Lucky voluntarily bargained with Local 87 the em ployees certified bargaining representative the employ ees might not have signed the petition Furthermore be cause of the 1 year certification bar Lucky may not rebut Local 87 s presumption of majority support by showing as it attempts to do, that it had a good faith doubt of Local 87 s majority status in February 1985 which is within Local 87 s certification year Dynamic Machine Co v NLRB, 552 F 2d 1195, 1204-1205 (7th Cir 1977) citing Brooks v NLRB 348 US 96, 98-99 (1954) 2 Respondent Lucky recognizes and contracts with Local 77 The amended complaint alleges Respondent Lucky since on or about 21 November 1983 has refused to bar gain with Local 87 within the meaning of Section 8(a)(5) of the Act by recognizing Local 77 as the bargaining representative of Lucky s SFO janitors and entering into a collective bargaining contract with that union covering the janitors, and by maintaining and enforcing the con tract since 1 December 1983 As I have found supra, several months before it took over Whitewood s SFO business and employed employ ees, Lucky entered into a prehire contract with Local 77 whereby it agreed to recognize Local 77 as the collec tive bargaining representative of any janitors Lucky might employ in the future, and it agreed that the jani tors terms and conditions of employment would be gov erned by the terms of the contract which was effective from 1 May 1983 to 1 May 1986 On 21 November 1983 4 days after taking over Whitewood s SFO business Lucky s owner Lim met with Local 77 s president Bu chanan in an effort to negotiate concession in the con tract s terms Buchanan however would agree to only two changes in the existing contract and Lim and Bu chanan resigned the 1983-1986 contract with these two changes the effective date was changed from 1 May 1983 to 1 December 1983 and an appendix was added to the contract stating in effect that four members of Lim s immediate family who were employed by Lucky as jani tors at SFO, were excluded from the contracts cover age On 1 December 1983 Lucky placed into effect the terms and conditions of employment contained in the contract and since then has maintained and enforced the contract As described in detail supra 1 week before Lucky took over Whitewood s SFO business Whitewood s jani tors voted in a Board conducted representation election nine to seven in favor of being represented by Local 87 The results of the election however were not final inas much as there was a sufficient number of challenged bal lots to be determinative, and Whitewood filed a timely objection to the election Subsequently the Board re solved the challenged ballots and found Lucky's objet tion to be without merit, and the result was that Local 87 wor the election and on 29 March 1984, was certified by the Board as the exclusive collective bargaining rep resentative of Whitewood s SFO janitors As I have found supra Lucky, as a successor employer of Whitewood s SFO janitors was obligated under the Act to honor the Board s 29 March 1984 certification This meant that whatever obligations Whitewood would have WHITEWOOD MAINTENANCE CO had under the Board s certification if it had remained in business at SFO were assumed by Lucky when it took over Whitewood s SFO business Dynamic Machine Co 221 NLRB 1140 (1975) enfd 552 F 2d 1195 (7th Cir 1977) Accordingly absent compelling economic con siderations Lucky was obligated to refrain from making unilateral changes in the janitors terms and conditions of employment during the pendency of the representation election without first affording Local 87 an opportunity to bargain about the matters O'Connor Chevrolet Buick GMC, 209 NLRB 701 (1974), Van Dorn Plastic Machin ery, 265 NLRB 864 865 (1982) Injected Rubber Products 258 NLRB 687, 696-697 (1981) Han Dee Pak 249 NLRB 725 (1980) As the Board stated in 0 Connor Chevrolet supra 209 NLRB at 703 absent compelling economic considerations for doing so, an employer acts at its peril in making changes in terms and conditions of employment during the period that objections to an election are pending and the final determination has not yet been made And where the final determination of the objections results in the certification of a repre sentative the Board has held the employer to have violated Section 8(a)(5) and (1) for having made such unilateral changes Such changes have the effect of bypassing, undercutting, and undermining the union s status as the statutory representative of the employees in the event a certification is issued To hold otherwise would allow an employer to box the union in on future bargaining positions by im plementing changes or policy and practice during the period when objections or determinative chal lenges to the election are pending In the instant case it is plain when Lucky during the pendency of the election proceeding recognized and en tered into a collective bargaining contract with Local 77 and enforced and maintained in effect the terms of that contract, this conduct by its very nature had the inevita ble effect of obstructing collective bargaining between Lucky and Local 87 the employees certified collective bargaining representative and of bypassing undercut ting and undermining Local 87 s status as the employees certified bargaining representative 'to It is for the reasons set forth above that I find as al leged in the amended complaint Respondent Lucky re fused to bargain with Local 87 within the meaning of 110 I note that the respondent employer in Mike 0 Connor Chevrolet supra was a successor employer who took over the predecessors bust ness during the pendency before the Board of a representation proceed mg which resulted in the union s certification (209 NLRB at 707) In finding the unilateral changes made by the respondent employer during the pendency of the representation election violated Sec 8(a)(5) and (1) of the Act the Board rejected the respondent employer s defense that as a new employer it had to make known its policies to its employees (209 NLRB at 704) In the instant case Lucky makes no contention its bar gaining relationship and contract with Local 77 was necessitated by compelling economic considerations I also note that even in the ab sence of a request for bargaining by Local 87 prior to Lucky s recogni tion and contract with Local 77 that Lucky s conduct constituted an the gal refusal to bargain See Fugazy Continental v NLRB 725 F 2d 1416 (D C Cir 1984) citing with approval Injected Rubber Products Corp 258 NLRB 687 696-697 (1981) 1211 Section 8(a)(5) and (1) of the Act on 17 November 1983, by recognizing Local 77 as the exclusive representative of its janitors on 21 November 1983 by renegotiating its prehire contract with Local 77 covering the janitors, and by enforcing and maintaining the terms of that contract since 1 December 1983 I also find, as alleged in the amended complaint that Respondent Lucky violated Section 8(a)(5) when on 1 December 1983, without affording Local 87 an opportu nity to bargain, it unilaterally placed into effect the terms of its contract with Local 77 including the 75 cent an hour pay raise and the requirement that employees join Local 77 as a condition of continued employment t I' Because I have found, supra Lucky violated Section 8(a)(5) by enforcing and maintaining the terms of its col lective bargaining contract with Local 77 in derogation of its statutory duty to bargain with Local 87 it follows that on 1 December 1983 Lucky committed an addition al violation of Section 8(a)(5) by unilaterally instituting the terms and conditions of employment incorporated in that contract without affording Local 87 an opportunity to bargain about the significant changes in the unit em ployees terms and conditions of employment caused by this unilateral conduct 112 In concluding that Lucky violated Section 8(a)(5) and (1) of the Act by recognizing contracting and enforcing its contract with Local 77 during the pendency of the representation election which resulted in Local 87 s certi fication I have considered Lucky s argument that the unfair labor practices are time barred by the limitations provision in Section 10(b) of the Act, because the charge that contains the refusal to bargain allegation was not served on Lucky until 22 May 1984 113 This argument lacks merit because Local 87 did not know about the unfair labor practices in question until on or about 2 De cember 1983 and in the alternative because a substantial portion of the alleged illegal conduct involved which of fected Local 87 and the employees it represented fell within the 6 months limitation period The law is settled that [t]he Act s statute of limits tions does not begin to run until the aggrieved party knew or should have known that his stuatutory rights were violated Wisconsin River Valley District Council (Skippy Enterprise) v NLRB 532 F 2d 47 53-54 (7th Cir 1976) This is so even if the aggrieved party s unaware ness of the unfair labor practices resulted merely from the circumstances of the case and not from the respond ent s active concealment See Wisconsin River Valley Dis tract Council supra, Peerless Roofing Co v NLRB, 641 111 The record shows that pursuant to the contracts union security provision that effective 1 December 1983 Lucky required those employ ees covered by the contract to join Local 77 as a condition of continued employment Lucky s owner Lim testified that prior to this none of the employees had been members of Local 77 111 1 note there is nothing in the record to warrant my concluding that dung the normal course of establishing its employees initial terms and conditions of employment that Lucky absent its contract with Local 77 would have instituted the same or similar terms and conditions of em ployment as contained in its contract with Local 77 113 Sec 10(b) provides in pe*tment part that no complaint shall issue based on any unfair labor practice occurring more than 6 months pnor to filing of the charge with the Board and the service of a copy thereof on the person against whom the charge is made 1212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD F 2d 734, 746 (9th Cir 1981) Metromedia Inc v NLRB 586 F 2d 1182 1189 (8th Cir 1978) NLRB v Longshore mens ILA Local 30 (US Borax), 549 F 2d 698 700-701 (9th Cir 1979) There is no evidence that before Local 87 s lawyer re ceived Labor Relations Consultant White s letter dated 1 December 1983 informing him among other things, that Lucky was a unionized company whose employees were represented by Local 77, that Local 87 knew or reasonably should have known about Lucky s collective bargaining relationship with Local 77 Thus there is no evidence or contention that before White s 1 December 1983 letter that anyone from Lucky or Local 77 in formed Local 87 of their collective bargaining relation ship Nor could Local 87 have received this information prior to the receipt of Whites 1 December letter from any of Lucky s employees, for there is no credible evi dence that prior to 1 December Lucky or Local 77 told any of Lucky s employees about their collective bargain ing relationship I have considered the affidavit of em ployee Jhun which states, in pertinent part, that during the 17 November 1983 employee meeting of the first and second shift employees that Lucky s owner Lim told the employees Lucky had a contract with Local 77 and that pursuant to the terms of the contract was rais ing the employees wages 114 However, not one of the witnesses who testified about this meeting corroborated Jhun s affidavit Choo testified, in effect he did not re member Lim making such a statement Lim specifically denied making this statement She testified when she mentioned the pay raise to the employees she did not connect it with Local 77 s contract or otherwise explain the reason for the increase In view of these circum stances-the lack of corroborating evidence, and Lim s denial she made the statement attributed to her-I have not credited the statement attributed to Lim in Jhun s of fidavit It is for the above described reasons that I find Lucky has failed to prove that Local 87 knew or reasonably should have known about Lucky s bargaining relation ship with Local 77 prior to its receipt of Labor Relations Consultant Whites 1 December 1983 letter 115 Accord ingly the 10(b) limitations period did not commence to run until that date Even assuming Local 87 knew about Lucky s relation ship with Local 77 as early as the day Lucky took over Whitewood s SFO operation, Lucky s 10(b) defense lacks 114 As noted supra Jhun s affidavit was admitted into evidence with out objection because he was unavailable to testify within the meaning of the Federal Rules of Evidence 11 s I have considered and rejected Lucky s contention that it must be inferred Local 87 knew as early as 16 November 1983 about Lucky s bar gaining relationship with Local 77 because the charge filed with the Board on 16 December 1983 at the instigation of Local 87 by employee Kelleher alleged on or after 16 November 1983 [Lucky] replaced [Whitewood] and recognized [Local 77] which did not represent a major ity of the Employers employees The charge does not allege on No vember 16 rather it alleges on or after November 16 Moreover it is reasonable to infer the reason for the use of this phraseology was that since Local 87 knew Lucky had taken over Whitewood s SFO business on or about 16 November that when Lucky learned from Whitewood s I December letter about Lucky s bargaining relationship with Local 77 that Local 87 guessed that the relationship commenced when Lucky took over Whitewood s business merit because the record establishes that the gravamen of the illegal conduct involved occurred within the 10(b) limitations period Although Lucky and Local 77 entered into their prehire contract several months before Lucky took over Whitewood s SFO business, well outside of the 10(b) limitations period, it was not until 21 Novem ber 1983, just within the 10(b) limitations period that they in effect renegotiated the contract,' i 6 and it was not until 1 December 1983 well within the 10(b) limita tions period that for the first time the terms and condi tions of the contract were placed into effect Thus, a sub stantial portion of the alleged illegal conduct involved that affected Local 87 and the employees whom it repre sented fell within the 6 month limitations period See NLRB v Sweet Lumber Co, 515 F 2d 785 (10th Cir 1975) 3 Lucky institutes Rules and Regulations of Personal Conduct and Lucky changes the night shift s work schedule a The evidence On 16 November 1983, Lucky s owner Lim wrote Whitewood s owner Yoon that Lucky intended to accept applications from former employees of Whitewood and that a preferential hiring list will be maintained to ensure Whitewood employees of first considerations and that those Whitewood employees whose qualifica tions skills and abilities comply with the standards of employment required by Lucky, will be absorbed and hired by Lucky On 17 November 1983 when it commenced its oper ations Lucky hired a substantial and representative com plement of 16 nonsupervisory janitors all of whom had been former Whitewood janitors Only two of Whitewood s SFO janitors James Kelleher and Ho Kil Lee were not hired by Lucky The reasons they were not hired with the 16 other former Whitewood janitors was that they did not apply Kelleher failed to apply, be cause he objected to having to work under Lucky s Rules and Regulations of Personal Conduct All but three of the former Whitewood SFO janitors hired by Lucky were required to fill out employment ap plications as a condition of employment and while a sub stantial number of them were interviewed by Lucky s owner Lim at least three of them were not interviewed The record also shows that in several instances it was not until several days after the applicants hire that the employment applications were filled out and the inter views conducted The record further shows that Whitewood s former SFO janitors constituted a majority of Lucky's janitors through at least 2 December 1983 116 As described in detail supra on 21 November Lucky s owner Lim met with Local 77 s president Buchanan to advise Buchanan that she had commenced doing business at SFO and to renegotiate certain provi lions of the prehtre contract that she and Buchanan had signed several months previously Although Buchanan refused to agree to most of the contract concessions asked for by Lucky he did agree to change the of fective date of the contract so that it would not be effective until I De cember 1983 and he agreed to exclude from the contract s contacts cov erage four of Lim s family who worked for Lucky at SFO as janitors WHITEWOOD MAINTENANCE CO 1213 Before Lucky took over Whitewood s SFO operation, Lucky s owner Lim decided the janitors she employed would be required to work under certain rules and regu lations which she had printed in a three page document titled, Rules and Regulations of Personal Conduct Be sides informing the employees of the particular types of conduct which Lucky considered to be grounds for dis cipline it set out a system of written warnings and pro gressive discipline for 21 named offenses and immediate discharge for 10 other more serious offenses The last page of these rules and regulations contains a space for the employees name and signature and immediately above there is a statement to the effect that the employee has received a copy of the rules and regulations and agrees to obey them and that the employee understands any employment being offered is at will and for no defi nite period of time and is subject to termination with or without just cause On 17 November 1983, when it took over White wood s SFO operation Lucky immediately met with the day and swing shift employees Copies of the Rules and Regulations of Personal Conduct were distributed to the employees and verbally translated into Korean The employees were given an opportunity to ask ques tions concerning the rules and regulations and instructed to return a signed copy to the Company 117 Also the employees were given employment applications that they were asked to fill out and return Lucky s owner Lim ad vised them they were being hired by Lucky on a tempo rary basis and she would be interviewing them as soon as possible on an individual basis Later during 17 November another employee meeting was held for the night shift Lim introduced herself and told the employees they were being hired as temporary workers and that her brother, Jae Lim would be a su pervisor and that former Whitewood employee Choi would be a temporary supervisor Lim then turned the meeting over to Jae Lim who told the employees Lucky would hire those employees who supported the Compa ny and who were motivated to work because they were hungry and advised them he was an ex marine and in tended to supervise them in the manner of a marine 118 b Discussion and conclusions The amended complaint alleges in substance Respond ent Lucky during the pendency of the representation election which resulted in Local 87 s certification unilat erally changed the employees terms and conditions of employment, without affording Local 87 an opportunity to bargain about the changes thus violating Section 8(a)(5) and (1) of the Act The unilateral changes are as follows On 17 November 1983 the day Lucky took 1 i 7 James Kelleher abruptly left the meeting stating he could not work for Lucky because of his dislike for the ruels and regulations 18 Employee Rho for the General Counsel and owner Lim for Lucky testified about this meeting Neither Jae Lim or Gregory Choo who Rho placed at this meeting testified about the meeting even though they testified on Lucky s behalf regarding other matters Nor were any of the night shift employees other than Rho called to testify about the meeting The above description of what occurred is based on the testimo ny of Rho whose testimonial demeanor was good I have rejected Lim s completely different version of what took place because her testimonial demeanor was poor over Whitewood s SFO operation it instituted the Rules and Regulations of Personal Conduct described in detail supra And on 28 November 1983 Lucky changed the hours of the night shift workers from 9 pm-530am to 11 pm-lam 119 I have found supra, that as Whitewood s successor em ployer Lucky assumed Whitewood s obligation under the Board s 29 March 1984 certification of Local 87 and, be cause of this, in the absence of compelling economic considerations Lucky was legally obligated to afford Local 87 an opportunity to bargain about changes in the unit employees terms and conditions of employment Dynamic Machine Co 221 NLRB 1140 (1975), enfd 552 F 2d 1195 (1977), 0 Connor Chevrolet, 209 NLRB 701 (1974) However, as a successor employer, when Lucky took over Whitewood s operation it was ordinarily free to set the initial terms on which it would hire Whitewood s employees NLRB v Burns Security Service, 406 US 272 294-295 (1972) In Burns the Supreme Court reasoned that the duty to bargain will not normal ly arise that early because it is not usually evident the union represents a majority of the employees until the successor has hired a full complement of employees Id at 294-295 But the Court also recognized that there will be instances in which it is perfectly clear that the new employer plans to retain all of the employees in the unit and in which it will be appropriate to have him mi tially consult with the employees bargaining representa Live before he fixes terms Id at 294-295 Guided by the above principles, I am persuaded Lucky was not obligated to bargain with Local 87 about the institution of the Rules and Regulations of Personal Conduct, but was obligated to bargain with Local 87 about the change of the night shifts hours of employ ment The record does not establish Lucky had committed itself to retaining the former Whitewood unit employees when it decided to employ only those applicants who agreed to accept its Rules and Regulations of Personal Conduct as a condition of employment Before its 17 November 1983 takeover of Whitewood s SFO business Lucky decided that whomever it employed would be governed by its Rules and Regulations of Personal Con duct 120 and the first thing Lucky did on 17 November 19 The record also reveals that in the space included in Lucky s em ployment applications reserved for the written notations of the person who interviews applicants that in four of the applications filled out by former Whitewood employees that Lucky s owner Lim wrote 4 days a week or 4 days only No testimony was presented concerning the cir cumstances surrounding these notations what Lim said to the employees during the interviews on that subject or whether the employees work week was reduced from 5 days or more to 4 days The record as a whole including the employees timecards are of no help in shedding light on this matter Also I note employee Rho whose application con tams such a notation and who testified about a change in the hours of the night shift which took effect 28 November 1983 did not testify about this notation or testify that his workweek had been reduced from 5 or more days to 4 days a week Under the circumstances I find the record is in sufficient to warrant the conclusion Lucky changed the terms and condi lions of employment of some of the employees by reducing their employ ment to 4 days a week 120 Lucky s decision to institute the Rules and Regulations of Person al Conduct was made pnor to its 16 November 1983 letter to Continued 1214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD when it took over Whitewood s SFO business was to meet with the first and second shift employees and ex plain to them that they were being hired on a temporary basis subject to their filling out an employment applica tion and being interviewed and that their employment was conditioned on their agreeing to work under Lucky s Rules and Regulations of Personal Conduct copies of which were distributed to them for their signa ture In view of these circumstances, the General Coun sel has failed to prove that Lucky s institution of the Rules and Regulations of Personal Conduct as an iris tial term and condition of employment, occurred subse quent to an expression of intent by Lucky to retain Whitewood s employees Accordingly, I find Lucky was not obligated to bargain with Local 87 about instituting the Rules and Regulations of Personal Conduct as an initial term and condition of employment of the unit em ployees Half Century Inc, 241 NLRB 555 (1979) see also Starco Farmers Market, 237 NLRB 373 (1978) In contrast to the institution of the Rules and Regula tions of Personal Conduct, the change in the night shift employees work schedule from 9-5 30 p in to 11 p in -7 a in was not an initial term and condition of employment and Lucky when this change was made on 28 Novem ber 1983 by its conduct had already demonstrated its intent to retain the unit employees formerly employed by its predecessor During the first 11 days of their employ ment with Lucky, the night shift employees continued to work the hours that the night shift had worked for Whitewood, 9 p in -5 30 a in There is no credible evi dence that Lucky at any time indicated to them that they could expect this work schedule would be changed Moreover Lucky offered no evidence regarding the cir cumstances surrounding the change in the night shift s schedule or the reason why the change was not institut ed prior to 28 November, or that the change was neces sitated by compelling economic considerations And there can be no doubt that by 28 November it was Lucky s intent to retrain the former employees of Whitewood who, at that time, still consituted a majority of the unit employees Under the circumstances, Lucky was obligated to bargain with Local 87 before changing the existing work schedule of the night shift employees Accordingly by unilaterally changing the night shift s work schedule on 28 November 1983 Lucky failed to honor its bargaining obligation and thereby violated Sec tion 8(a)(5) of the Act CONCLUSIONS OF LAW 1 Song Ae Lim d/b/a Lucky Service Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Service Employees Union Local 87 Service Em ployees International Union, AFL-CIO is a labor organs zation within the meaning of Section 2(5) of the Act Whitewood indicating that it would give preferential treatment to the employment applications submitted by Whitewood s former unit employ ees In any event the letter fails to establish an intent by Lucky to retain all of Whitewood s former employees inasmuch as it states Lucky intend ed to independently evaluate each of the applicants and hire only those who met Lucky s employment standards 3 All janitorial employees employed by Respondent Lucky Service Company at the San Francisco Interna tional Airport excluding all other employees including office clerical employees, guards, and supervisors as de fined in the Act constitute an appropriate bargaining unit 4 Since 29 March 1984, Local 87 has been and now is the certified and exclusive representative of all employ ees in the appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act 5 By refusing to recognize and bargain with Local 87 as the exclusive bargaining representative of all the em ployees in the appropriate unit, Respondent Lucky Serv ice Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act 6 By recognizing Service Employees Union, Local 77 as the exclusive bargaining representative of the employ ees in the appropriate unit in derogation of its obligation to recognize and bargain with Local 87 by entering into and maintaining a collective bargaining contract with Local 77 covering the unit employees by unilaterally in stituting the terms and conditions of employment incor porated in its contract with Local 77 without affording Local 87 an opportunity to bargain about their effect on the unit employees existing terms and conditions of em ployment, Respondent Lucky Service Company violated Section 8(a)(5) and (1) of the Act 7 By unilaterally changing the work schedule of the unit employees employed on the night shift without of fording Local 87 and opportunity to bargain about the matter, Respondent Lucky Service Company violated Section 8(a)(5) and (1) of the Act 8 By discharging employees Hyung Bok Seo and Ho Chi Rho because of their Local 87 sympathies and activi ties, Respondent Lucky Service Company violated Sec tion 8(a)(3) and (1) of the Act 9 By promising employees better terms and conditions of employment if they did not support Local 87 and by threatening employees with the loss of their jobs if they supported Local 87, Respondent Lucky Service Compa ny violated Section 8(a)(1) of the Act 10 The unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that Respondent Lucky Service Compa ny has engaged in and is engaging in unfair labor prac tices within the meaning of Section 8(a)(1), (3) and (5) of the Act I shall recommend that it cease and desist, and that it take certain affirmative action necessary to remove the effects of the unfair labor practices and to of fectuate the policies of the Act Having found Respondent Lucky Service Company to have violated Section 8(a)(5) and (1) of the Act by refus ing to bargain with Service Employees Union Local 87 at the outset of that union s certification year I shall rec ommend that the initial period of certification begin on the date Respondent Lucky Service Company com mences to bargain in good faith with Local 87 as the rec WHITEWOOD MAINTENANCE CO 1215 ognized bargaining representative in the appropriate unit See Dynamic Machine Co, 221 NLRB 1140, 1143 (1975), and the cases cited Having found Respondent Lucky Service Company to have violated Section 8(a)(5) and (1) of the Act by uni laterally changing the work schedule of unit employees employed on its night shift and by unilaterally instituting the terms and conditions of employment contained in its contract with Service Employees Union, Local 77 with out affording Service Employees Union Local 87, an op portunity to bargain about these changes in the unit em ployees terms and conditions of employment, I shall rec ommend that Respondent Lucky Service Company make whole any employees who may have incurred a mone tary loss as a result of the unilateral implementation of these changes Such reimbursement is to be with interest as prescribed in Florida Steel Corp 231 NLRB 651 (1977) 586 F 2d 436 (5th Cir 1978) see generally Isis Plumbing Co 138 NLRB 716 (1962) Having found Respondent Lucky Service Company to have violated Section 8(a)(5) and (1) of the Act by rec ognizing and contracting with Service Employee Union, Local 77 in derogation of its statutory obligation to rec ognize and bargain with Service Employees Union, Local 87, as the unit employees certified bargaining agent, I shall recommend that Respondent Lucky Serv ice Company be required to withdraw and withhold rec ognition from Local 77 and to cease giving effect to the collective bargaining contract entered into with that labor organization, or any modifications renewals, or ex tensions thereof Because the record reveals that in con nection with both its illegal enforcement of its contract with Local 77 and its illegal unilateral changes in the unit employees terms and conditions of employment Respondent Lucky Service Company has required the unit employees to join Local 77 as a condition of contin ued employment, I shall recommend that Respondent Lucky Service Company be ordered to reimburse unit employees for any dues and initiation fees that may have been withheld from their pay pursuant to the union secu rity provision in Respondent Lucky Service Company s unlawfully executed contract with Local 77 121 Such re imbursement is to be with interest as prescribed in Flora da Steel Corp 231 NLRB 651 (1977) See generally Isis Plumbing Co 138 NLRB 716 (1962) Having found Respondent Lucky Service Company to have violated Section 8(a)(3) and (1) of the Act by dis charging employees Hyung Bok Seo and Ho Chi Rho I shall recommend that Respondent Lucky Service Com pany offer each of them immediate and full reinstatement to their former jobs or if those jobs are no longer in ex istence, to substantially equivalent positions without prejudice to their seniority and other rights and privi leges and to make them whole for any loss of pay or other employment benefits they may have suffered as the result of their discharge Backpay shall be computed on a quarterly basis in accordance with F W Woolworth Co, 90 NLRB 289 (1950), with interest as prescribed in Florida Steel Corp, above, see generally Isis Plumbing Co , above I shall also order Respondent Lucky to remove from its files any reference to the illegal dis charges, and to notify employees Seo and Rho in writing that it has done so and that their discharges will not be used against them in any way [Recommended Order omitted from publication ] 121 As found supra it is undisputed that Respondent Lucky Service Company enforced and maintained this portion of the contract Of course it can be ascertained in the compliance stage of this proceeding whether Lucky on behalf of Local 77 actually withheld dues and fees from its employees pay