Campus Housekeeping, Inc.

CAMPUS HOUSEKEEPING. INC. Campus Housekeeping, Inc. and Local 32B-32J, Service Employees International Union, AFL- CIO and Local 796 Amalgamated Workers Union of America, Party to the Contract Local 796 Amalgamated Workers Union of America and Local 32B-32J, Service Employees Interna- tional Union, AFL-CIO and Campus House- keeping, Inc., Party to the Contract. Cases 29- CA-7358 and 29-CB-3896 September 29, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On July 7, 1980, Administrative Law Judge James F. Morton issued the attached Decision in this proceeding. Thereafter, Respondent Campus Housekeeping, Inc., filed exceptions and a support- ing brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent Campus House- keeping, Inc., Staten Island, New York, its officers, agents, successors, and assigns, and Respondent Local 796 Amalgamated Workers Union of Amer- ica, its officers, agents, and representatives, shall take the action set forth in the said recommended Order, except that the attached notices are substi- tuted for those of the Administrative Law Judge. i Respondent Campus Housekeeping. Inc., has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all or the relevant evidence convinces us that the resolutions are incor- rect. Standard Dry Wall Products. Inc., 91 NLRB 544 (150). enfd 188 F.2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing his findings 252 NLRB No. 72 APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT recognize Local 796 Amalga- mated Workers Union of America, or any suc- cessor thereto, as the exclusive representative of our cleaning service employees employed at the campus of Wagner College for dealing with us with respect to rates of pay, wages, hours of employment, or other terms and con- ditions of employment, unless and until Local 796 shall be certified by the Board after having demonstrated its exclusive majority representative status pursuant to a Board-con- ducted election among our employees in the appropriate unit. WE WILL NOT give effect to our collective- bargaining agreement of June 14, 1979, with Local 796, to any extension, renewal, modifi- cation, or supplement thereof, or any supersed- ing collective-bargaining agreement with Local 796; we are not required, however, to vary those wages, hours, seniority, or other substantive terms of employment established under such agreement. WE WILL NOT in any like or related manner interfere with, restrain, or coerc: our employ- ees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL jointly and severally with Local 796 reimburse you for moneys deducted since July 1, 1979, from your earnings for initiation fees, dues, assessments, or other obligations of membership in Local 796, with interest. CAMPUS HOUSEKEEPING, INC. APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT enforce or give effect to our collective-bargaining agreement of June 14, 1979, with Campus Housekeeping, Inc., or to any extension, renewal, modification, or sup- plement thereof or any superseding collective- bargaining agreement with Campus House- keeping unless and until we shall have been certified by the Board after having demon- strated our exclusive majority representative 485 DECISIONS OF NATIONAL LABOR RELATIONS BOARD status pursuant to a Board-conducted election among employees of Campus Housekeeping in the appropriate unit. WE WILl. NOT act as the exclusive collec- tive-bargaining representative of the cleaning services employees of Campus Housekeeping, Inc., who are employed at the campus of Wagner College, unless and until we have been certified by the Board as such representa- tive. WE WII.L NOT cause or attempt to cause Campus Housekeeping, Inc., to discriminate against employees in violation of Section 8(a)(3) of the Act by entering into or maintain- ing any agreement with it which requires, as a condition of employment, membership in our organization, or in any like or related manner cause or attempt to cause Campus Housekeep- ing to discriminate against any employee in violation of Section 8(a)(3) of the Act. WE WILL jointly and severally with Campus Housekeeping, Inc., reimburse those of its em- ployees for moneys deducted from their earn- ings since July 1, 1979, for initiation fees, dues, assessments, or other obligations of member- ship in our organization, with interest. LOCAt. 796 AMALGAMATED WORK- ERS UNION OF AMERICA DECISION STATEMENT OF THE CASE JAMES F. MORTON, Administrative Law Judge: The case was heard by me on March 31, 1980, in Brooklyn, New York. The consolidated complaint alleges that Campus Housekeeping, Inc. (herein called Respondent Employer), signed a renewal contract with Local 796 Amalgamated Workers of America (herein called Re- spondent Union) notwithstanding that they knew that Respondent Union then no longer represented a majority of the unit employees. It alleges that Respondent Em- ployer and Respondent Union thereby violated Sections 8(a)(1), (2), and (3) and 8(b)(1)(A) and (2), respectively, of the National Labor Relations Act, as amended (herein called the Act). Both Respondents assert that they were not aware of any alleged loss of majority status and that the General Counsel's witnesses should not be believed. Upon the entire record, including my observation of the demeanor of the witnesses and after due considera- tion of the briefs filed by Respondent Employer, and the oral argument by counsel for the General Counsel at the hearing together with her post-hearing memorandum, I make the following: FINDIINGS OF FACT I. JURISDICTION As admitted in the pleadings and based on the stipula- tion received at the hearing, I find that Respondent Em- ployer is a subsidiary of Richmond Cleaning Co., Inc., and that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. I further find that Respondent Union is a labor organiza- tion within the meaning of Section 2(5) of the Act. II. IHE ALI.LEGED UNFAIR LABOR PRACTICES A. Background Respondent Union, for over 5 years, has represented the employees of Respondent Employer who perform cleaning, waxing, and other janitorial services at the campus of Wagner College located in Staten Island, New York. In the spring of 1979, there were about 24 employ- ees in the unit it represented there. All dates hereafter are in 1979. On April 19, the president of Respondent Union, Milton Linden, wrote Respondent Employer of its intention to negotiate modifications to the terms of the then current contract for that unit of employees. That contract was scheduled to expire on June 30. On May 23, Respondent Union presented to Respondent Employer its written demands, which included a 60-cent- per-hour raise as of July 1, 1979, and a 50-cent-per-hour increase on July 1, 1981. On June 1, Linden wrote George Sargent, Respondent Union's shop steward at the Wagner College location, to advise him that he, Linden, had met with the president of Respondent Employer, who offered a 10-cent-per-hour increase which Linden, in his letter, characterized as ridiculous. Linden further stated in that letter that he would call a meeting of the unit employees for June 6. He later changed the meeting date to June 13. The General Counsel's witnesses testi- fied, as set out below, that the unit employees did not wait quietly for him until then. B. The Alleged Loss of Majority Status The General Counsel presented two witnesses to sup- port the contention that, before the renewal contract was executed on June 14, the unit employees unanimously withdrew their support for Respondent Union in the presence of Maxine Linwood, Respondent Employer's supervisor of its housekeeping department at Wagner College. The pleadings establish that she was a Section 2(11) supervisor and an agent of Respondent Employer. The General Counsel's first witness, George Sargent, has been and still is the steward for Respondent Union. He testified, on direct examination, as follows. On June 7, all of the approximately 24 employees of Respondent were in Respondent Employer's housekeeping depart- ment office on a coffeebreak and that Linwood, their su- pervisor, was also present. Sargent uses that office as does Supervisor Linwood, who has her desk there. Also located in that office are the employees' timeclock and about 15 chairs. Apparently the room is regularly used to conduct meetings. Sargent told the employees present on June 7 that he had a petition for them to sign "to vote 486 CAMPUS HOUSEKEEPING. INC (Respondent Union) out," and that all signed it at Super- visor Linwood's desk. The petition consisted of a long sheet of paper with the date. "6/7/79" written on it along with the notice "Local 690, AWVA,"' and 23 sig- natures listed under a column headed by the notation, "NAME." Sargent stated that he then went to the re- gional office of the National Labor Relations Board to file that "petition," presumably in support of a petition to decertify Respondent Union and was advised there by a Board agent that the "petition" had nothing on it to indi- cate why the employees signed it. The petition was re- turned to him, along with a note setting forth appropri- ate decertification language. Sargent stated that he pre- pared a new petition along the lines suggested by the Board agent, and on June 8 he took it around to the em- ployees at their work stations. A total of 23 signed it. 2 Sargent further testified on direct examination that he obtained authorization cards from a representative of Local 32B 32J Service Employees International Union, AFL CIO, on June 12 and that most of the employees signed these cards on June 13 at Supervisor Linwood's desk during a coffeebreak, while she was there. Cards for Local 32 dated June 13 and signed by 18 employees were received in evidence. According to Sargent, Respondent Union's president, Linden, arrived at the office about 3:30 p.m. on June 13, to conduct the meeting previously scheduled for that day. He said that Supervisor Linwood sat at her desk waiting for a ride home. When Linden told the assem- bled employees that Respondent Employer offered "about 7-1/2 cents," the employees talked among them- selves and said that they would not work for 7-1/2 cents. Sargent said that the meeting "was confusing." He then asked the employees to "show them exactly how you feel" and that "all those that don't want Local 796, just raise your hand." All did so and said they "would like to have 32B." He quoted Linden as saying that it does not matter what union they have, and that the only way they are going to get something is to go on strike. The em- ployees responded that they "don't want no strike." Linden told them they were fools, and the employees left. A few days later as further recounted by Sargent, Charles O'Bourke, Respondent Employer's operations manager, showed him a new contract which was signed on June 14, and which provided for six 7-1/2-cent-an- hour raises over a 3-year period beginning July 1979. That contract incorporated the union-security and dues- checkoff provisions of the then current contract. On cross-examination, Sargent acknowledged that his prehearing affidavit made no reference to Linwood as being present during the meeting on June 7. The affida- vit also recites that Sargent told the employees on June 6 that he would have a petition for them to sign on June 7 to vote Local 796 out. Sargent further conceded that his affidavit related that he called everyone into the office i The parties stipulated that Respondent Union had previously been known as Local 690, Amalgamated Workers Union of America 2 On June 13. Sargent riled a petition in Case 29-RD 319 apparently using the signatures on the June 8 petition to support it. A copy of the petition was received by Respondent Employer on June 20 On July 6, Region 29 dismissed the petition as untimely filed. on June 8 to have them sign the second petition, but he insisted at the hearing that he had in fact gone around to the employees on June 8 while they were working to have them sign it. He also stated on cross-examination that, on June 13, there was a discussion about a strike vote. The General Counsel's second witness, Eva Aragona, was an employee who was present at the meetings re- ferred to in Sargent's testimony. She essentially corrobo- rated his accounts of the events of June 6, 7, and 13. She further testified that when she and other employees were filling out Local 32B cards on June 13, they asked Su- pervisor Linwood for information, "like a date" each began to work for Respondent Employer. Aragona said that a number of the employees who are "Spanish," and did not understand the cards, asked for help. She stated that Supervisor Linwood got information for them, and also for herself, Aragona, from her files. The Local 32B authorization cards received in evi- dence, and which were signed by Aragona and other employees on June 13 contain no inquiry as to an em- ployee's starting date of employment. I note that some of the employees listed Campus Housekeeping, Inc., as their employer, one simply put the word "Housekeeping" on that line, others wrote "Richmond Cleaners" (apparently a reference to Respondent Employer's parent company) and one put down the name of a street. Two of the em- ployees on the line alongside the question, "Where Em- ployed"-wrote dates, e.g., "10-18-76" which were crossed out and alongside the words "Wagner College" appear. Other data noted on the cards by the employees were social security numbers, zip codes, and telephone numbers. Respondent Employer called Supervisor Linwood and its operations manager as witnesses. Supervisor Linwood responded "No" to a series of questions as to whether she ever heard any employees complain about Local 796 or mention Local 32B, or state that they wanted to get rid of Respondent Union. She also testified that at the meeting on the afternoon of June 13, she heard several employees complaining that they never get anything they ask for. Supervisor Linwood stated that she told them to shut up and to, in effect, address their comments to Respondent Union's president. Supervisor Linwood stated that she left the meeting at that point and stood in the hallway outside, but had no discussions with any of the employees as they passed her in the hallway after they later left the meeting. Charles O'Bourke, Respondent Employer's operation manager, testified that when he reached agreement on June 14 with Respondent Union for a renewal contract, he had not heard anything about any of the unit employ- ees wanting to get rid of Respondent Union, or of any interest on their part in being represented by Local 32B- 32J of the Service Employees International Union, AFL-CIO. Respondent Union's only witness was its president, Linden. He testified that none of the employees indicated to him at the June 13 meeting that they did not wish to be represented any longer by his Union. He said he told them that Respondent Employer's wage offer was ridicu- 487 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lous, and called for a strike vote. He testified that he asked those in favor of a strike to raise their hands, but no one did. He told them they were fools. As noted above, Linden signed a 3-year contract with Respondent Employer on the following day, June 14. C. Analysis 1. The basic credibility issues In its brief, Respondent Employer urges that the Gen- eral Counsel's witnesses should be discredited as to their assertions that its supervisor, Linwood, was present during meetings at which the employees signed petitions to "vote out" Respondent Union, signed cards to substi- tute Local 32B as their bargaining representative, or indi- cated to Respondent Union's president their desire to oust it as their bargaining agent. It argues in its brief that the testimony of the General Counsel's principal witness is unworthy of belief on the ground that he gave contra- dictory accounts of the June 7 meeting. In essence, Sar- gent testified that he told the employees on June 6 and 7 that he wanted them to sign a petition to get rid of Re- spondent Union. Respondent Employer's counsel then had Sargent concede the obvious, that it was not neces- sary for Sargent to repeat on the 7th, his request on the 6th that they sign the petition as they already knew (from the discussion on the 6th) why he wanted them to sign the petition. Respondent contends that by, in effect, making this concession, Sargent contradicted his testimo- ny given on direct examination that he asked his cowork- ers on June 7 to sign the petition. I find no merit to this view. The fact that there is no reference in his affidavit to the presence of Supervisor Linwood on June 7, speaks more to the investigative techniques of the Board agent than to Sargent's veracity. Respondent Employer further would have me reject Aragona's testimony on the ground that she said Linwood furnished the employees with information needed to fill out the Local 32B cards, such as dates they started employment. Respondent Em- ployer notes that the Local 32B cards do not request starting dates of employment and it therefore brands Aragona's testimony as a total fabrication. I disagree. My examination of the Local 32B cards indicates that Ara- gona's account should be accepted. It is obvious that most of the employees were aided in filling out there cards, and at least two of them had initially filled in what looked like starting dates of employment. I reject Supervisor Linwood's denials that'she was ever made aware of the employees' desire to be rid of Respondent Union. She said at one point she never heard any complaints by them about Respondent Union; later, she said she told several employees while Respondent Union's president talked to them to shut up when they were complaining among themselves that they never get anything they ask for. I find incredible Supervisor Lin- wood's denial that she knew anything about employees signing Local 32B cards. On June 13, 18 employees signed such cards. No one disputes that. Supervisor Lin- wood's own account discloses that her office is used for Respondent Union's meetings, and that she was present for at least one of them. I also reject Linden's testimony that, on June 13, the employees indicated only that they did not want to go on strike and that he did not learn until a week afterwards that the employees had signed Local 32B cards on June 13. His own testimony shows that there was bitter antagonism between himself and the employees. He called them "fools." He just finished tell- ing them that Respondent Employer offered a 7-1/2- cent-per-hour raise instead of the 60-cent-per-hour raise they had sought. They already had shown him that they were not willing to support a strike by Respondent Union. Linden's testimony would suggest that the em- ployees somehow overlooked telling him of their dissatis- faction with Respondent Union as earlier evidenced by the June 7 and 8 petitions and the Local 32B cards. I find that they did not fail to bring that matter to Lin- den's attention on June 13. They most certainly did, as Sargent and Aragona testified, and Supervisor Linwood heard it all that day. I credit the accounts of Sargent and Aragona and not the denials of Linwood and Linden. 2. The applicable principles of law It is now clear that an employer and a union violate the Act if they sign a renewal contract when the union has lost its majority and the employer has knowledge of this.3 Based on the credited testimony of Sargent and Aragona, I find that Respondent Employer and Re- spondent Union signed a renewal contract on June 14 notwithstanding that Respondent Union was then no longer the representative of a majority of the unit em- ployees and notwithstanding that Respondent Employer and Respondent Union were fully aware of this. CONCLUSIONS OF LAW I. By signing a renewal contract on June 14, which contains a union-security clause and notwithstanding that Respondent Union at that time had lost its majority status among the unit of cleaning service employees em- ployed by Respondent Employer at the Wagner College campus in Staten Island, New York, and although Re- spondent Employer and Respondent Union were aware then that the majority of these employees no longer wished to be represented by Respondent Union, Re- spondent Employer and Respondent Union violated Sec- tions 8(a)(1), (2), and (3) and 8(b)(1)(A) and (2) of the Act, respectively. 2. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY I recommend that Respondent Employer be ordered to withdraw recognition from Respondent Union as the col- lective-bargaining representative of the unit of employees described above, and that Respondent Union be ordered to cease acting as such representative unless and until Respondent Union shall have demonstrated its majority status pursuant to a Board-conducted election among the employees in that unit. I also recommend that Respond- ent Employer be ordered to cease giving effect to, and 3 Clark Equipment Company, 234 NLRB 935, 937 (1978), and cases cited therein at fn 2 See also Presbyterian Community Hospitral, 230 NLRB 599 (1977), and Andersen Pharmacy. e al., 187 NLRB 301 (1970) 488 CAMPUS HOUSEKEEPING, INC. that Respondent Union be ordered to cease seeking to enforce, their collective-bargaining agreement of June 14 or any succeeding agreement, modification or renewal of that agreement. However, nothing contained herein shall be construed as requiring Respondent Employer to aban- don or vary any wage, hour, seniority, or other substan- tive terms of employment which it may have established in the performance of that agreement. I recommend further that both Respondents be re- quired jointly and severally to reimburse those employ- ees with the moneys deducted since July 1, 1979, from their earnings as union dues pursuant to the checkoff provisions of their renewal collective-bargaining agree- ment, and with interest thereon in accordance with the Board's decision in F. W. Woolworth Company, 90 NLRB 289 (1950), Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and Florida Steel Corporation, 231 NLRB 651 (1977). Upon the foregoing findings of fact and conclusions of law, upon the enitre record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER 4 The Respondent, Campus Housekeeping, Inc., Staten Island, New York, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Recognizing Local 796 Amalgamated Workers Union of America, as the exclusive representative of its cleaning service employees at the campus of Wagner College in Staten Island, New York, for the purpose of dealing with Campus Housekeeping, Inc., concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until Local 796 shall have demonstrated its exclusive majority status pursuant to a Board-conducted election among those employees. (b) Giving effect to the collective-bargaining agree- ment, dated June 14, 1979, between Respondents or to any extension, renewal, or modification thereof; pro- vided, however, that nothing herein shall be deemed to require Respondent Employer to vary or abandon any wage, hour, seniority, or other substantive term of em- ployment established under such agreement. (c) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agree- ment requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action which is deemed to effectuate the policies of the Act: (a) Withdraw and withhold all recognition from Local 796 Amalgamated Workers Union of America, as the ex- ' In the event no exceptions are filed as provided by Sec. 10246 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions, and recommended order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes clusive bargaining representative of those employees for the purpose of dealing with Campus Housekeeping, Inc., concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of em- ployment, unless and until the said labor organization shall have demonstrated its exclusive majority status pur- suant to a Board-conducted election among those em- ployees. (b) Post at its office at the Wagner College Campus, copies of the attached notice marked "Appendix A."5 Copies of such notice, to be furnished by the Regional Director for Region 29, shall, after being duly signed by its authorized representative, be posted by Respondent Employer immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by Respondent Employer to insure that such notices are not altered, defaced, or covered by any other material. (c) Post at the same places and under the same condi- tions as set forth in (b) above, and as soon as they are forwarded by the Regional Director, copies of Respond- ent Union's notice herein marked "Appendix B." B. The Respondent Local 796, Amalgamated Workers Union of America, its officers, agents, representatives, successors, and assigns, shall: 1. Cease and desist from: (a) Acting as the exclusive bargaining representative of the cleaning service employees of Campus Housekeep- ing, Inc., employed at the campus of Wagner College in Staten Island, New York, for the purpose of dealing with Campus Housekeeping, Inc., concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until Local 796 shall have demonstrated its exclusive majority status pursuant to a Board-conducted election among those employees. (b) Causing, or attempting to cause, Respondent Em- ployer to discriminate against employees in violation of Section 8(a)(3) of the Act by entering into, or maintain- ing, any agreement with Respondent Employer which requires, as a condition of employment, membership in Respondent Union, or in any like or related manner causing, or attempting to cause, Respondent Employer to discriminate against any employee in violation of Section 8(a)(3) of the Act. (c) In any like or related manner restraining or coerc- ing the employees of Campus Housekeeping, Inc., in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affect- ed by an agreement requiring membership in a labor or- ganization as a condition of employment as authorized in Section 8(a)(3) of the Act: 2. Take the following affirmative action which it is deemed will effectuate the policies of the Act: I In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notlice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the Natiotnal Labor Relations Board " 489 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Post at its offices and meeting hall in Richmond Hills, New York, copies of the attached notice marked "Appendix B." 6 Copies of said notice, to be furnished by the Regional Director for Region 29, shall, after being signed by Respondent Union's representative, be posted by it immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other materi- al. 6 The provisions of f. 5 also apply o Appendix B (b) Mail to the said Regional Director signed copies of Appendix B for posting by Respondent Employer at its office on the campus of Wagner College, as provided above. Copies of said notice, to be furnished by the said representative, be forthwith returned to the Regional Di- rector for disposition by him. (c) Both Respondents shall be ordered to: 1. Jointly and severally reimburse those employees for all moneys deducted since July 1, 1979, from their wages pursuant to the checkoff provisions of the contract cov- ering them, together with interest theron as set forth in the section entitled, "The Remedy." 2. Notify the Regional Director for Region 29, in writ- ing, within 20 days from the date of this Order, as to what steps they have taken to comply therewith. 490