Civic Center Cleaning Co., Inc.

760 DECISIONS OF NATIONAL Civic Cnter Cleaning Co., Inc. and International Brotherhood of Painters and Allied Trades of the United States and Canada, Local 327, AFL- CIO. Case 6-CA-12895 September 30, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On June 23, 1980, Administrative Law Judge Karl H. Buschmann issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed a brief in answer to Respondent's ex- ceptions. 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 briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Civic Center Cleaning Co., Inc., Pittsburgh, Penn- sylvania, its officers, agents, successors, and assigns, shall take the action set forth in the said recom- mended Order, as so modified: 1. Substitute the following for paragraph 2(a): "(a) Offer Francis Michael Harmuth immediate employment in the position he would have re- Respondent 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 credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950). enfd 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings In par. 2(a) of his recommended Order, the Administrative Law Judge required Respondent to reinstate Francis Michael Harmuth to his former position. Since the violation centers upon Respondent's refusal to hire Harmuth, we shall modify the recommended Order, and conform the notice accordingly, to incorporate the remedy traditionally ordered by the Board, i.e., that Harmuth be offered the employment that he was denied. Respondent contends that it is unable to offer employment to Francis Michael Harmuth because its cleaning contract with Woodward State Hospital has terminated. We are of the opinion that resolution of this contention is best left to the compliance stage of this proceeding Member Jenkins would compute the interest due on backpay in ac- cordance with his partial dissent i Olympic IMedical Corporation. 250 NLRB No. 11 (198)) LABOR RELATIONS BOARD ceived absent Respondent's discrimination against him or, if that position is no longer available, to a substantially equivalent position, and make him whole for any loss of pay that he may have suf- fered by reason of Respondent's discrimination against him in accordance with the recommenda- tions set forth in the section of the Administrative Law Judge's Decision entitled 'The Remedy."' 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The National Labor Relations Act gives em- ployees the following rights: To organize themselves To form, join, or help unions To bargain as a group through representa- tives they choose To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things. WE WILL NOT threaten any employees that those who have filed unfair labor practice charges with the National Labor Relations Board will not be hired. WE WILL NOT refuse or fail to hire employ- ees, or otherwise discriminate against them, because they have filed unfair labor practice charges with the Board. 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 offer Francis Michael Harmuth immediate employment in the position he would have received had we not discriminated against him or, if that position is no longer available, to a substantially equivalent position, and make him whole for any loss of pay, with interest, that he may have suffered by reason of our discrimination against him. CIVIC CENTER CLEANING CO., INC. 252 NLRB No. 110 CIVIC CENTER CLEANING CO. INC. DECISION STATEMENI 01 TIHE CASE KARI. H. BUSCHMANN, Administrative Law Judge: This case arose upon a charge filed on November 6, 1979, as amended on January 29, 1980, by International Brotherhood of Painters and Allied Trades of the United States and Canada, Local 327, AFL-CIO, (herein the Union). The complaint issued on January 29, 1980, against Civic Center Cleaning Co., Inc., herein the Re- spondent, and was subsequently amended on March 10, 1980. It charged Respondent with a violation of Section 8(a)(l) of the Act, because of threats to an employee that individuals who had previously filed charges with the National Labor Relations Board would not be hired, and with a violation of Section 8(a)(4) and (1) of the Act, be- cause Respondent refused to hire Francis M. Harmuth because he had filed charges with the Board. Respondent, admitting all jurisdictional allegations in the complaint, as well as the supervisory status of George Mandros, denied the commission of any unfair labor practices. A hearing was held on March 25, 1980, in Pittsburgh, Pennsylvania. Briefs were filed by counsel for the Gener- al Counsel and by Respondent on April 30 and May 6, 1980, respectively. Upon the entire record in this case, and from the de- meanor of the witnesses, I make the following: FINDINGS OF FACT Civic Center Cleaning Co., Inc., is a Pennsylvania cor- poration located in Pittsburgh, Pennsylvania, and is en- gaged in janitorial and housekeeping services. In the fall of 1979, Civic Center was selected as the successful bidder for janitorial services at Woodville State Hospital, effective November 1, 1979. Its predecessor was McGin- ley Maintenance, Inc., which had performed that service until October 1979 and which, as the unsuccessful bidder, had lost the contract. The record contains testimony describing in detail sev- eral encounters between George Mandros, Respondent's vice president, and the employees of McGinley. During a particular meeting in the Geriatrics Building which oc- curred on October 26, 1979, Respondent expressed an in- terest in hiring these employees for the Woodville State Hospital contract. It was established policy in the janito- rial industry to hire employees fired by other mainte- nance companies. Most of the McGinley employees, in- cluding Francis M. Harmuth, wanted a job with Civic. They were concerned about wages, seniority, benefits, and their union contract with International Brotherhood of Painters and Allied Trades of the United States and Canada, Local No. 327, AFL-CIO. Mandros told the employees that he intended to bring his own union in, but that he did not have the answers to some of their questions concerning seniority, sick leave, or other bene- fits. At this meeting, Mandros, according to the testimony of Harmuth, stated that he had a list of employees who had been fired by McGinley and who had filed charges with the National Labor Relations Board. In his testimo- ny, Mandros denied the existence of such a list or his ref- erence thereto. Although the other McGinley employees who testified were also present at the meeting, only Har- muth recalled Mandros' reference to this list Moreover the record contains the testimony by several witnesses relating to other lists in Mandros' possession. Because Harmuth may have been confused concerning Mandros' reference to a list of employees who had been fired by McGinley or who had filed charges with the Board, and because Harmuth's was the sole testimony among several witnesses to this incident, I have not credited his testimo- ny in this regard. During this meeting, Mandros requested Shirley Cos- tello, one of the McGinley employees, to compile a list of McGinley employees who desired employment with Respondent. Costello passed out two sheets, one on yellow paper which several employees, including Har- muth, signed, and one on white paper on which most employees-but not Harmuth-listed their names. Cos- tello handed both lists to Mandros.' Several days after that meeting, Costello called Man- dros to remind him that he had promised to hand out job applications. On October 29, after the employees had heard nothing from Respondent, Harmuth, at the behest of Costello, decided to call Mandros. Because of Har- muth's inability to read Costello obtained the telephone number and placed the call for Harmuth from the east lobby at Woodville. The telephone was equipped with an amplification device so that it was possible for Costello and another employee, Mary Krawczynski, to overhear the conversation. All three testified that in reply to Har- muth's question, whether he would hand out job applica- tions, Mandros replied that he would not hire trouble- makers or employees who had filed unfair labor practice charges with the Board.2 Upon hearing Mandros' remark concerning troublemakers, Harmuth was visibly worried and upset. A month earlier, on September 10, 1979, Harmuth had actually filed an 8(a)(1) charge against McGinley Mainte- nance, Inc. (Case 6-CA-12731) and an 8(b)(1)(A) charge against the Union (Case 6-CB-4842). Of approximately 23 former McGinley employees who had worked at Woodville, Respondent hired 8 individ- uals, including Costello and Krawczynski. Harmuth was not hired. In November, Costello approached Mandros at the west utility room at Woodville State Hospital. Krawc- I These lists are surrounded by a great deal of confusion. Mandros tes- tified that during a meeting with the employees he received only one list on white paper which did not contain Harmuth's name (Resp. Exh. 4). Costello initially testified that she had circulated a list which definitely contained Harmuth's name She subsequently recalled that two lists wvere circulated, that Harmuth signed only one of them and that she handed both lists to Mandros. When asked why she circulated two lists, she ex- plained that she simply attempted to make sure that she had all the names Her testimony was corroborated by Harmuth I credit their con- vincing and earnest recollection of these events. 2 Because all three employees testified unequivocally and convincingly about this conversation. I have credited their estimony, rather than Man- dros' denial of such a remark Respondent has pointed to several appar- ent inconsistencies between the testimony iof these witnesses and their af- fidavits In my opinion, such inconsistencies were superficial and do not affect the credibility of the testimony the substance of which was consisl- ent and plausible. 761 DECISIONS OF NATIONAL LABOR RELATIONS BOARD zynski was also present and corroborated Costello's rec- ollection of the conversation. She testified as follows about that conversation: A. Yes. I was talking to Mr. Mandros and I was asking about if he would hire Mike. You know, for a job, you know, hire him for a job, and he says, and he says, well, he said, you know, I'll see, you know but I can't go 'round hiring people that cause, you know, troublemakers and go to Labor Rela- tions Board, and he said, if you don't be quiet, you'll lose your job. In other words, you'll get fired, put it that way. On December 4, 1978, Harmuth and Wanda Allen de- cided to go to the Civic Center's office to fill out job ap- plications. Mandros engaged them in a conversation and asked if they knew why McGinley had lost its contract at the hospital. Allen, whose testimony was fully cor- roborated by Harmuth, recalled the conversation as fol- lows: He wanted to know why I felt McGinley lost their contract. And I told him that they hadn't lived up to their contract with the state. They hadn't had double buckets, they didn't buy smocks, and things like this. And he said he didn't feel this was the reason. He thought it was more political-And I didn't know what he meant by more political. And he kept saying, no, no, more political. I asked George if he meant when Mike and I went to the National Labor Relations Board and filed charges with the Company and he said yes. And I said is that why we're not getting hired, and he said I don't know what I can do for you. I told George that we voluntarily dropped the charges against the Union and with the Company and we got along after that. And he said he still didn't know what he could do for us. He asked the buildings we worked in, if he could talk to the nurses for the buildings we worked in and he'd get back to us. Q. Did you ever get a job with Civic? A. No. Analysis Considering the first issue, whether Respondent had threatened an employee that those employees who had previously filed charges would not be hired by Respond- ent, the record is clear that Mandros had made such a statement, as alleged in the complaint, on October 29, 1979. Harmuth had asked Mandros over the telephone about employment applications, and Mandros stated that he would not hire troublemakers or people who filed charges with the Labor Board. Mandros made similar statements on subsequent occasions. Such conduct clear- ly constituted an interference with concerted and pro- tected activities. Accordingly, I have no difficulty in concluding that Respondent committed an independent 8(a)(1) violation. With regard to the next issue, whether Respondent re- fused to employ Harmuth because he had filed charges with the Board against his former employer, General Counsel relies basically on Mandros' repeated statements to that effect and the fact that Harmuth was not hired. Respondent, on the other hand, argues that the record herein does not show that Mandros had actual notice of Harmuth's charges which he had filed with the Board, and that Harmuth was simply not hired because Re- spondent did not need any employees in the "scrubber" classification. Respondent is correct in stating that the record does not contain any direct evidence that Re- spondent knew of Harmuth's unfair labor practice charges filed with the Board. However, the record does contain testimony that Respondent hired Robert Fife who had done the work of a scrubber and who apparent- ly had a special talent involving the Geriatric Ward at the hospital. In any case, these and other factors pointed out by Respondent would be convincing and plausible in evaluating Mandros' actions if it were not for Mandros' repeated statements to various individuals, including Har- muth, Allen, and Costello, as overheard by Krawczynski, that he would not consider troublemakers or individuals who had filed charges with the Board for employment. In each of the three instances related above, Mandros did not make these statements as idle remarks, but as a direct and sole response to Harmuth's interest in being employed. Not once during Harmuth's several requests for employment did Mandros simply say that he was not interested in "scrubbers." To the contrary, Mandros had only one explanation for his lack of interest in accepting Harmuth as an employee and that was that he would not hire people who filed charges with the Board. Indeed, during his conversation with Allen and Harmuth on De- cember 4, Mandros attributed McGinley's loss of the contract at the hospital to the fact that the two employ- ees had filed charges with the Board. Under these cir- cumstances, the inference is compelling, Respondent did not consider Harmuth for employment because Mandros considered him to be a troublemaker for having filed unfair labor practice charges against his previous em- ployer and the Union. Section 8(a)(4) of the Act specifi- cally prohibits an employer's discriminatory conduct against individuals who have filed charges with the Board. CONCLUSIONS OF LAW 1. Respondent, Civic Center Cleaning Co., Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. By threatening an employee that those employees who were troublemakers and who had filed unfair labor practice charges with the Board would not be hired, Re- spondent violated Section 8(a)(I) of the Act. 3. By failing and refusing to employ Francis Michael Harmuth, because he had filed unfair labor practice charges against his previous employer and the Union, Respondent discriminated against an employee, in viola- tion of Section 8(a)(4) and (1) of the Act. THF. REMEDY Having found that Respondent engaged in unfair labor practices in violation of Section 8(a)(1) and (4) of the Act, I recommend that Respondent be ordered to cease 762 CIVIC CENTER CLEANING CO., INC. and desist from its unlawful practices. I further recom- mend that Respondent be ordered to post an appropriate notice and take affirmative action in order to effectuate the policies of the Act. In addition, I recommend that Respondent offer Fran- cis Michael Harmuth immediate reinstatement with back- pay and interest thereon, to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).3 Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I recommend the issuance of the following recommended: ORDER 4 The Respondent, Civic Center Cleaning Co., Pitts- burgh, Pennsylvania, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees that those who had filed unfair labor practice charges with the National Labor Relations Board would not be hired. (b) Failing or refusing to hire employees or otherwise discriminate against any employees because they had filed unfair labor practice charges with the Board. 3 See, generally. Isis Plumbing & Heating Co., 138 NLRB 716 (19621 4 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 Reguletions, be adopted hy the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed aied for all purposes (c) In any like or related manner unlawfully 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 which will ef- fectuate the policies of the Act: (a) Offer Francis Michael Harmuth immediate and full reinstatement to his former position or, if such position no longer exist, to a substantially equivalent position, and make him whole for any loss of pay that he may have suffered by reason of Respondent's discrimination against him in accordance with the recommendations set forth herein under "The Remedy." (b) Preserve and, upon request, make available to the Board or its agent, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records, and reports, and all other records rel- evant and necessary to a determination of compliance with paragraph (a) above. (c) Post at its Pittsburg, Pennsylavania, office and plant copies of the attached notice marked "Appendix." s Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by Re- spondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 6, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. s In the event that this Order is enforced by a Judgement of the United States Court of Appeals, the words in this notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pur- suant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 763