Swilley's Commercial Cleaning

National Labor Relations Board - Board Decisions

Dec 13, 1991

305 N.L.R.B. 841 (N.L.R.B. 1991)

841
305 NLRB No. 120
SWILLEY’S COMMERCIAL CLEANING
1 We agree with the General Counsel’s contention that the judge’s
recommended Order fails to include remedial provisions cor-
responding to the judge’s findings that the Respondent unlawfully
failed to make contributions to the Man-U-Service Contract Trust
Fund and unlawfully failed to pay employees their earned wages, va-
cation pay, and sick leave benefits. We also agree that the rec-
ommended Order does not contain language necessary to remedy the
effects bargaining violation the judge found, as provided in
Transmarine Navigation Corp., 170 NLRB 389 (1968), see also Met-
ropolitan Teletronics Corp., 279 NLRB 957, 960–961 (1968), enfd.
mem. 819 F.2d 1180 (2d Cir. 1987). We modify the remedy and rec-
ommended Order accordingly. We shall also provide that any addi-
tional amounts owed to the trust fund shall be determined in accord-
ance with Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7
(1979). Finally, we shall conform the notice with our Order.
2 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
National 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.’’
Joseph L. Swilley d/b/a Swilley’s Commercial
Cleaning and Laborers’ International Union of
North America, AFL–CIO, Local Union No.
1012, affiliated with Federal Public Service
Employee District Council 37. Case 4–CA–
18671
December 13, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On September 9, 1991, Administrative Law Judge
Bruce C. Nasdor issued the attached decision. The
General Counsel filed exceptions and a supporting
brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order as
modified1 and set forth in full below.
ORDER
The National Labor Relations Board orders that the
Respondent, Joseph L. Swilley d/b/a Swilley’s Com-
mercial Cleaning, Maywood, Illinois, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Laborers’ International
Union of North America, AFL–CIO, Local Union No.
1012, affiliated with Federal Public Service Employee
District Council 37, as the exclusive bargaining rep-
resentative of the unit employees by failing to make
contributions to the Man-U-Service Contract Trust
Fund and by failing to pay bargaining unit employees
their earned wages, vacation benefits, and sick leave
benefits as provided in the collective-bargaining agree-
ment with the Union. The appropriate unit is:
All non-supervisory employees of Swilley’s Com-
mercial Cleaning, Inc., at the Philadelphia Naval
Shipyard, Philadelphia, Pennsylvania 19112.
(b) Failing to bargain in good faith with the Union
concerning the effects on employees of its decision to
cease operations at the Philadelphia Naval Shipyard.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make employees whole for any loss of wages or
benefits resulting from the Respondent’s unfair labor
practices, in the manner set forth in the remedy section
of the Decision and Order, as modified, by remitting
contributions owed to the Man-U-Service Contract
Trust Fund; by reimbursing employees, with interest,
for expenses incurred as a result of the failure to make
trust fund contributions; and by paying employees their
accrued wages, vacation benefits, and sick leave bene-
fits, as provided in the collective-bargaining agree-
ment, with interest.
(b) On request, bargain collectively in good faith
with the Union with respect to the effects on employ-
ees of its decision to cease operations at the Philadel-
phia Naval Shipyard and, if an understanding is
reached, embody the understanding in a signed agree-
ment.
(c) Pay the former Philadelphia Naval Shipyard unit
employees terminated by the Respondent when it
ceased operations in February 1990 their normal wages
for the period set forth in the remedy section of the
Decision and Order, as modified.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Mail an exact copy of the attached notice marked
‘‘Appendix’’2 to the Union and to all employees in the
unit who were employed at Philadelphia Naval Ship-
yard when the Respondent ceased operations. Copies
of the notice, on forms provided by the Regional Di-
rector for Region 4, after being signed by the Re-
spondent’s authorized representative, shall be mailed
immediately.
842 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1990 unless otherwise specified.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
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 or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Laborers’
International Union of North America, AFL–CIO,
Local Union No. 1012, affiliated with Federal Public
Service Employee District Council 37, as the exclusive
bargaining representative of our unit employees by
failing to make contributions to the Man-U-Service
Contract Trust Fund and by failing to pay earned
wages, vacation benefits, and sick leave benefits, as
provided in our collective-bargaining agreement with
the Union. The appropriate unit is:
All non-supervisory employees of Swilley’s Com-
mercial Cleaning, Inc., at the Philadelphia Naval
Shipyard, Philadelphia, Pennsylvania 19112.
WE WILL NOT fail to bargain in good faith with the
Union concerning the effects on employees of our de-
cision to cease operations at the Philadelphia Naval
Shipyard.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL make employees whole for any loss of
wages or benefits resulting from our unfair labor prac-
tices by remitting contributions owed to the Man-U-
Service Contract Trust Fund; by reimbursing employ-
ees, with interest, for expenses incurred as a result of
our failure to make trust fund contributions; and by
paying employees their earned wages, vacation bene-
fits, and sick leave benefits, as provided in the collec-
tive-bargaining agreement, plus interest.
WE WILL, on request, bargain collectively in good
faith with the Union with respect to the effects on em-
ployees of our decision to cease operations at the
Philadelphia Naval Shipyard and, if an understanding
is reached, embody the understanding in a signed
agreement.
WE WILL pay the Philadelphia Naval Shipyard em-
ployees we terminated when we ceased operations at
the Philadelphia Naval Shipyard in February 1990 their
normal wages for a period specified by the National
Labor Relations Board, plus interest.
JOSEPH L. SWILLEY D/B/A SWILLEY’S
COMMERCIAL CLEANING
Richard Wainstein, Esq., for the General Counsel.
Stephen C. Richman, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
BRUCE C. NASDOR, Administrative Law Judge. This case
was tried at Philadelphia, Pennsylvania, on December 3,
1990.1 The original charge and the amended charge were
filed by counsel for the Union on February 22 and June 28,
1990, respectively. The complaint and notice of hearing
issued on June 29, 1990.
The complaint alleges that Respondent engaged in viola-
tions of Section 8(a)(1) and (5) of the Act by repudiating its
collective-bargaining agreement with the Union and failing
and refusing to make certain contractually required payments
to its employees. Furthermore, it is alleged that Respondent
violated the Act by ceasing its operations at the Philadelphia
Naval Shipyard without prior notice to the Union, and with-
out bargaining about the effects on the employees.
On the entire record, including my observation of the de-
meanor of the witnesses, and after due consideration of the
briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is, and has been at all times material, a
sole proprietorship engaged in the business of janitorial con-
tracting from his office and place of business in Maywood,
Illinois.
During the past year, in the course and conduct of these
business operations, Respondent performed services valued in
excess of $50,000 outside the State of Illinois. The Respond-
ent’s performance of services at the Philadelphia Naval Ship-
yard, Philadelphia, Pennsylvania, are involved in this pro-
ceeding.
The Respondent is, and has been at all times material, an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The Union is now, and has been at all times material, a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE APPROPRIATE UNIT
At all times material, the Respondent has recognized the
Union as the exclusive representative of the Respondent’s
employees at the shipyard in a unit referred to in the provi-
sion entitled ‘‘Bargaining Unit,’’ and in article I of the cur-
843SWILLEY’S COMMERCIAL CLEANING
rent collective-bargaining agreement, effective October 1,
1989, to September 30, 1991, between the Union and the Re-
spondent.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
Although the Respondent did not appear at the hearing and
was not represented by counsel, it filed an answer admitting
the allegations of the complaint with the exception of para-
graph 7(b), which alleges that Respondent ceased its oper-
ations without prior notice to the Union, and without having
afforded the Union an opportunity to negotiate and bargain,
with respect to the effects of such acts and conduct. From
October 1987 to March 1990, Respondent had a contract
with the Philadelphia Naval Shipyard to perform cleaning
and janitorial work at the shipyard. The contract was admin-
istered by the Facilities Support Contracts, a division of the
Public Works Department at the shipyard. Respondent’s em-
ployees worked out of building 151 on the premises of the
shipyard.
Its operations were under the direction of Joseph Swilley,
and his son Roman Swilley and daughter Gail Swilley.
When Respondent commenced to take over the shipyard
janitorial contract in October 1987, it recognized the Union
as the exclusive bargaining representative of the approxi-
mately 89 to 100 janitorial employees. Prior to Swilley tak-
ing over the contract, another contractor, A to Z, had the
contract prior thereto. The janitorial employees at the ship-
yard had been represented by the Union since 1971. The last
collective-bargaining agreement between Respondent and the
Union was effective from October 1, 1989, to September 30,
1991.
It provided that Respondent be required to pay employees
on a biweekly basis. Moreover, pursuant to the terms of the
agreement, Respondent was required to pay unit employees
certain wages, sick leave, and vacation pay. Respondent was
also required to make contributions to the Man-U-Service
Contract Trust Fund.
On Thursday, February 1, 1990, the first payday of the
month, employees did not receive their paychecks. James
Clarke, the Union’s business manager, called Joseph Swilley
at his office in Illinois. Swilley told Clarke that there had
been a little problem but he took care of it. He went on to
explain to Clarke that the shipyard had been fining him, but
he gave him his assurance that the employees would be paid.
The following week the employees did in fact receive their
paychecks.
The next payday, February 15, Respondent again failed to
deliver the employees paychecks. Arthur Raines and
Learman Gonzales, shop stewards, approached Swilley at
building 151 on February 15, inquiring about the paychecks.
Swilley admitted that he had known for a week that the em-
ployees were not going to be paid, and he further stated that
he had been fined by the shipyard and was going to meet
with Public Works the following day. He advised the shop
stewards that if things went as planned he would issue the
paychecks on that day.
On February 16, Joseph Swilley and Raines met with the
employees on the day and evening shifts. Swilley advised
them that he did not know when he was going to be able
to pay them. He asked them to continue to work, but advised
that they would not be penalized if they did not work with-
out their paychecks. He gave no explanation as to why he
had not paid the employees but he appealed to them that he
was a man of his word. The shop steward testified that when
the employees commenced work for Swilley initially they
did not get paid for 6 weeks and the first time they were
paid their checks bounced. Therefore, shop steward Raines
let the employees make their own decision whether they
wanted to continue to work.
On February 16, Business Manager Clarke called Re-
spondent’s office and spoke with Gail Swilley. She told him
that she would relay his message to her father. He also spoke
to Roman Swilley at the shipyard. Roman Swilley told
Clarke he had no authority to give him any information but
he would leave a message for his father. Swilley had not
contacted Clarke by February 22 and 23, so Clarke called
him on those days and left messages which were never re-
turned.
The employees worked on February 20 and 21 (February
19 was a holiday), despite being advised by Roman Swilley
that there were no checks, and Respondent did not know
when they were forthcoming. On February 22, when Roman
Swilley told the employees they were not getting their pay-
checks that day and he could not say when or how they
would be paid, the employees refused to work. On Friday,
February 23, the employees showed up at building 151,
which was locked and Respondent’s management were not
on the premises. The employees continued coming to the
building for another month but Respondent never appeared.
The employees were not aware that on December 29,
1989, the shipyard issued the Respondent a ‘‘Cure letter’’
detailing certain areas where the Respondent was not per-
forming in compliance with its contract with the shipyard.
The letter gave the Respondent 10 days to cure its perform-
ance for the shipyard or terminate the contract as the result
of a default. On February 23, the shipyard issued the Re-
spondent a ‘‘Show Cause letter,’’ citing Respondent’s contin-
ued lack of performance and giving it 5 days to show cause
why the shipyard should not terminate the contract. The ship-
yard offered Respondent an alternative to the default pro-
ceedings wherein Respondent had the option of signing a
neutral agreement to terminate the janitorial contract. Re-
spondent accepted this alternative method and, on March 5,
Joseph Swilley signed an agreement terminating Respond-
ent’s contract with the shipyard, effective March 1, 1990.
Respondent never communicated to the Union that the ship-
yard had instituted default proceedings against it or that it
might lose the janitorial contract, or that it was negotiating
an agreement to terminate the contract. Respondent never
communicated to the Union that it had indeed agreed to ter-
minate the contract nor did it ever inform the Union or the
employees that the employees were laid off or terminated.
Moreover, the Respondent did not give the Union any notice,
prior to February 15, that it was not going to pay the em-
ployees on that day nor was any notice of the lockout given
prior to February 23, when the employees found the building
locked.
Pursuant to the collective-bargaining agreement the Re-
spondent was to make monthly contributions on behalf of its
employees to the health and welfare fund, known as the
Man-U-Service Contract Trust Fund. Payment each month
was due on the 20th of the following month. Respondent
never notified the Union that it would not make these pay-
ments. Respondent admits it failed to make payments due on
844 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
September 20 and October 20, 1989. It also admits it failed
to make any payments under the latest agreement for the
month of October 1989 to date. Pursuant to the recent collec-
tive-bargaining agreement, Respondent was also obligated to
pay employees their earned wages and earned vacation bene-
fits and sick leave. On February 15, and thereafter, Respond-
ent failed to meet these obligations thereby repudiating the
collective-bargaining agreement.
Conclusion and Analysis
The facts in this case are essentially undisputed.
Respondent officially ceased to operate at the shipyard on
March 5, when it signed the agreement with the shipyard,
terminating the janitorial contract. The Union, was not given
any prior notice and Respondent has never informed the
Union even after the fait accompli, nor was the Union told
the employees would be locked out on February 23. Further-
more, neither the Union or the employees were told that pay-
checks were not forthcoming, despite Joseph Swilley’s ac-
knowledgment to the shop stewards that he had prior knowl-
edge of this, 1 week earlier.
As early as December 1989, Respondent was involved in
default proceedings and had several opportunities to so ad-
vise the Union, but chose a path of secrecy.
The Union was therefore denied the opportunity to bargain
over the effects of Respondent’s decision to cease doing
business at the shipyard in violation of Section 8(a)(1) and
(5) of the Act.
Furthermore, Respondent’s failure to make contributions to
the Health and Welfare Fund (Man-U-Service Contract Trust
Fund) constitutes a unilateral act of repudiation of the collec-
tive-bargaining agreement in violation of Section 8(a)(1) and
(5) of the Act.
Respondent further repudiated the collective-bargaining
agreement in violation of Section 8(a)(1) and (5) of the Act,
by failing to pay sick leave, vacation, and wages to the em-
ployees. Any averment that it was financially unable to make
the payments is no defense to Respondent’s failure to abide
by and observe the terms of the collective-bargaining agree-
ment.
I therefore conclude, that by all the above acts, Respond-
ent has engaged in violation of Section 8(a)(1) and (5) of the
Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent’s employees at the shipyard referred to in
the provision entitled ‘‘Bargaining Unit’’ and in article I of
the current collective-bargaining agreement (effective Octo-
ber 1, 1989, to September 3, 1991), between the Union and
the Respondent is appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. At all times material, the Union has been the designated
exclusive bargaining representative of the employees in the
unit described above.
5. By its repudiation of the collective-bargaining agree-
ment and its refusal to bargain collectively with the Union
as the exclusive representative of all the employees in the ap-
propriate unit, the Respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of Section
8(a)(1) and (5) of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and (5)
of the Act, I recommend that it be ordered to cease and de-
sist therefrom and to take certain affirmative action to de-
signed to effectuate the policies of the Act.
It is recommended that Respondent be required to make
whole its employees for its unlawful failure to make pay-
ments into the Man-U-Service Contract Trust Fund by trans-
mitting the required contributions to the fund, and further to
make whole employees for any losses they may have suf-
fered or expenses they may have incurred by reason of Re-
spondent’s failure to make payments to the fund.
Respondent should also be required to make employees
whole by paying their earned wages, vacations benefits, and
sick leave benefits and any other unpaid contractual benefits
with interest.
It also is recommended that Respondent be ordered to pay
backpay as set forth in Transmarine Navigation Corp., 170
NLRB 389 (1968). It is recommended that Respondent be or-
dered to pay backpay to all the employees at the shipyard
facility at the time of the closing until the occurrence of the
earliest of the following conditions:
(1) The parties bargain to agreement; (2) the parties reach
bona fide impasse; (3) the failure of the Union to request
bargaining within 5 days of the issuance of the bargaining
order, or to commence negotiations within 5 days of the em-
ployers notice to the Union of its desire to bargain; or (4)
the subsequent failure of the Union to bargain in good faith;
but in no event shall the sum paid to any employees exceed
the amount which each would have earned as wages from the
time Respondent terminated its shipyard facility to the time
each secured equivalent employment elsewhere, or the date
on which Respondent shall have offered to bargain, which-
ever occurs first; provided, however, in no event shall the
sum be less than such employees would have earned for a
2-week period at the rate of their normal wages when last
in Respondent’s employ.
Backpay should be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest paid in
the manner set forth in New Horizons for the Retarded, 283
NLRB 1173 (1987).
In view of the fact that Respondent is no longer per-
forming work at the shipyard facility, posting of a notice at
such facility would be a study in futility. I therefore rec-
ommend that the Respondent be required to mail the notice
marked ‘‘Appendix A’’ to the most recent address of all of
Respondent’s employees who had worked at the shipyard fa-
cility at the time of the closing.
[Recommended Order omitted from publication.]