United States Service Industries

National Labor Relations Board - Board Decisions

Oct 24, 1997

324 N.L.R.B. 834 (N.L.R.B. 1997)

834
324 NLRB No. 132
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 By letter of January 31, 1996, the General Counsel filed sepa-
rately a copy of p. 50 of his supporting brief which had been omit-
ted from the original brief, and the Respondent filed a response to
p. 50 of the brief of counsel for the General Counsel.
2 We deny the General Counsel’s motion to strike the Respond-
ent’s exceptions because we find that, although the Respondent’s ex-
ceptions and brief are not in strict conformance with Rule 102.46,
they are in substantial compliance with the Board’s Rules. However,
we shall consider the arguments in the briefs only to the extent that
they are supported by the record. Because we have denied the Gen-
eral Counsel’s motion, the Respondent’s motion is moot.
3 The General Counsel, the Charging Party, and the Respondent
have excepted to some of the judge’s credibility findings. The
Board’s established policy is not to overrule an administrative 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 reversing the findings.
4 Earlier cases are reported at 319 NLRB 231 (1995), enfd. mem.
107 F.3d 923 (D.C. Cir. 1997); 315 NLRB 285 (1994), enfd. mem.
72 F.3d 920 (D.C. Cir. 1995); and 314 NLRB 30 (1994), enfd. mem.
80 F.3d 558 (D.C. Cir. 1996).
5 Several issues are remanded because the judge made no findings
on them.
6 Par. 5 of the consolidated complaint alleges that the Respondent
committed 12 separate violations of Sec. 8(a)(3) and (1) of the Act,
including issuing 6 unlawful warnings to employee Maria Treminio,
reducing her working hours, unlawfully transferring her, and ulti-
mately discharging her. Par. 15 alleges that the Respondent discrimi-
nated against employees whom the United States District Court for
the District of Columbia ordered the Respondent to reinstate, by re-
quiring them to fill out new job applications. Par. 16 alleges that the
Respondent unlawfully refused to allow Juan Bolanos to work from
about January 12 to 23, 1995.
7 In reaching a contrary result, the judge cited Westbrook Bowl,
274 NLRB 1009 (1985), revd. and remanded sub nom. Service Em-
ployees Local 399 v. NLRB, 798 F.2d 1245 (9th Cir. 1986), without
United States Service Industries, Inc. and Service
Employees International Union, Local 82,
AFL–CIO. Cases 5–CA–25403, 5–CA–25582,
and 5–CA–25813
October 24, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
On November 6, 1996, Administrative Law Judge
Lowell Goerlich issued the attached decision. The
General Counsel, the Charging Party, and the Re-
spondent filed exceptions and supporting briefs.1 The
General Counsel filed a motion to strike the Respond-
ent’s exceptions and supporting brief, and the Re-
spondent filed a motion to strike the motion of counsel
for the General Counsel.2 The General Counsel filed
an opposition to motion to strike the motion of counsel
for the General Counsel, and the Respondent filed a
reply to the General Counsel’s opposition. The General
Counsel and the Respondent filed answering briefs,
and the General Counsel filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,3 and conclusions as modified and to
adopt the recommended Order as modified and set
forth in full below.
The Respondent provides janitorial services to of-
fices and buildings in Washington, D.C., and adjacent
areas in Maryland and Virginia. As with prior cases in-
volving this Respondent, it is alleged here that the Re-
spondent has interfered with its employees’ exercise of
their basic Section 7 rights.4 At issue here are a con-
solidated complaint (Cases 5–CA–25403 and 5–CA–
25582) alleging numerous violations of Section 8(a)(3)
and (1) of the Act at six separate buildings as well as
violations that were not confined to a specific facility,
and an additional complaint (Case 5–CA–25813) alleg-
ing a separate violation of Section 8(a)(1). The judge
dismissed some allegations and found merit in others.
As discussed below, we affirm the judge in part, re-
verse in part, and remand certain issues for further ap-
propriate action.5
A. The Complaint Allegations the Judge
Dismissed
1. The judge dismissed significant portions of the
consolidated complaint, specifically paragraphs 5, 15,
and 16, without addressing them on the merits.6 The
judge found that these allegations are time-barred by
Section 10(b) of the Act because there was no proof
of service of the original charge or first amended
charge in Case 5–CA–25403. The Respondent admits
proper service of the second amended charge on Octo-
ber 19, 1995. The judge found that the allegations of
paragraphs 5, 15, and 16 are time-barred because they
relate to conduct which occurred before April 19,
1995, more than 6 months prior to the service of the
second amended charge. We disagree.
The consolidated complaint alleges, and the Re-
spondent’s answer denies, that the original charge in
Case 5–CA–25403 was served on the Respondent by
certified mail on June 9, 1995, and that the first
amended charge in Case 5–CA–25403 was served on
the Respondent by certified mail on June 29, 1995. In
support of these allegations, the General Counsel of-
fered at the hearing, and the judge received, affidavits
of service by Board agents certifying that they served
the Respondent with copies of the original and amend-
ed charges in the above case on June 9, 1995, and
June 29, 1995, respectively, ‘‘by postpaid certified
mail.’’ The affidavits are signed and sworn to, and
there is no evidence disputing their authenticity. Under
Board precedent, these affidavits are sufficient by
themselves to establish service of the original and
amended charges in Case 5–CA–25403. Electrical
Workers IBEW Local 11 (Anco Electrical), 273 NLRB
183, 191 (1984).7 In addition, with respect to the
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835UNITED STATES SERVICE INDUSTRIES
acknowledging that the case was overruled by Buckeye Plastic Mold-
ing, 299 NLRB 1053 (1990). In any event, contrary to the judge’s
statement, the service of the charges in the instant case was not
‘‘like’’ the service of the charges in Westbrook Bowl because in that
case, unlike here, the charges were mailed to an incorrect address.
8 There is no post office return receipt for the original charge.
9 The judge found, and we agree, that service of the charge in
Case 5–CA–25582 was proper. We also note that the record contains
an affidavit of service for this charge.
10 We deny, as untimely, the General Counsel’s request, made for
the first time in his exceptions, that the complaint also be amended
to include an August 10, 1995 warning. In light of the fact that the
General Counsel’s motion to amend at the hearing was limited to the
August 11 and 14 warnings, the Respondent could have reasonably
concluded that the legality of the August 10 warning was not in
issue.
11 Member Higgins agrees that the judge, having permitted testi-
mony, should have permitted the amendment of the complaint. How-
ever, he does not now pass on the issue of whether a warning, un-
known to the employee, can reasonably be said to coerce the em-
ployee.
12 Similarly, Sorto’s personnel file, as explained by the Respond-
ent’s list of ‘‘termination codes,’’ does not indicate that Sorto
walked off the job (‘‘Code 15’’), but states the reason for the dis-
charge as ‘‘other’’ (‘‘Code 42’’).
amended charge, the record contains a post office re-
turn receipt showing that this charge was delivered to
the Respondent on June 30, 1995.8
In view of all the above, we find that the original
and amended charges in Case 5–CA–25403 were prop-
erly served on the Respondent. We therefore reverse
the judge’s finding that complaint paragraphs 5, 15,
and 16 are time-barred, and we shall remand these al-
legations to the judge for findings on the merits.9
2. The judge found, and we agree, that employees
Saturnina Contreras, Teresa Avalos, and Ricardo Ortiz
were not constructively discharged, and that the rel-
evant complaint allegations should be dismissed.
3. At the hearing, the General Counsel moved to
amend the complaint to allege that on or about August
11 and 14, 1995, the Respondent issued written warn-
ings to Ricardo Ortiz, in violation of Section 8(a)(3)
and (1) of the Act. The judge denied the General
Counsel’s motion to amend the complaint. We disagree
with the judge’s ruling.
Initially, the judge ruled that he would grant the
General Counsel’s motion if the General Counsel first
recalled Ortiz as a witness, stating that counsel for the
Respondent should have an opportunity to cross-exam-
ine him. Thereafter, the General Counsel recalled
Ortiz, who testified on direct examination that he had
never before seen either of the two warnings. Counsel
for the Respondent announced that he had ‘‘no ques-
tions on cross’’ and argued to the judge that the mo-
tion to amend should be denied on the ground that
Ortiz could not possibly have been coerced by warn-
ings that he had never seen. The judge then reversed
himself and denied the motion to amend the complaint,
stating: ‘‘I am denying it because there is no proof that
the witness ever received the warnings, which I am ad-
mitting in evidence as a part of his file.’’
In accordance with the General Counsel’s excep-
tions, we find that the judge erred in denying the mo-
tion to amend the complaint with respect to the August
11 and 14 warnings.10 First, it is clear that the Re-
spondent’s counsel had full opportunity to cross-exam-
ine Ortiz with respect to the subject matter of the pro-
posed amendment. In fact, the judge required the Gen-
eral Counsel to recall Ortiz for the specific purpose of
allowing the Respondent to cross-examine him. Sec-
ond, there is no contention that the complaint amend-
ment lacks a sufficient basis in the charges filed in this
case. Indeed, counsel for the Respondent stated on the
record that ‘‘[a]t no time did we complain that the
amendment did not relate to an existing charge’’ and
that Section 10(b) ‘‘isn’t the issue.’’ Third, contrary to
the position of the judge and the Respondent, it is well
established that employee knowledge of the employer’s
conduct is not an indispensable element of an unfair
labor practice finding. See NLRB v. Grower-Shipper
Veg. Assn., 122 F.2d 368, 376 (9th Cir. 1941). Accord-
ingly, for all these reasons, we reverse the judge, grant
the General Counsel’s motion to amend the complaint,
and remand these allegations for findings on the mer-
its.11
4(a). The judge dismissed the complaint allegation
that Milagros del Carmen Sorto was discriminatorily
discharged, finding instead that Sorto walked off the
job and never again returned to employment. Because
of an apparent conflict between the credited testimony
and the documentary evidence, we shall remand this
allegation to the judge for further consideration.
Sorto was hired by the Respondent in February 1995
and was last employed at 1776 Massachusetts Avenue,
N.W., where her hours were from 6 to 10 p.m. From
June 5 to June 14, 1995, she was the only employee
from her building who went on strike. Sorto returned
to work on June 14 wearing a red union T-shirt. The
Respondent’s records reveal that she was discharged
on June 15, the day after she returned from the strike.
The judge appears to have credited the testimony of
the Respondent’s manager, Robin Allen, that she dis-
charged Sorto on June 15 because on that date ‘‘she
walked off the job leaving the job undone. Did not in-
form the supervisor that she did not complete the job.’’
Allen also testified that Sorto ‘‘just walked out’’ and
‘‘never showed up’’ so that Allen was not able to no-
tify Sorto of her discharge.
Sorto’s termination report, however, which Allen au-
thored, does not state that Sorto walked off the job on
June 15.12 Instead, the report states that on June 15
Sorto worked for 2 hours and contains the following
notation: ‘‘dismiss refuse to follow instruction.’’ Under
‘‘discharge for cause,’’ the report refers to conduct that
occurred on June 14, not June 15: ‘‘Milgro Sorto came
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836 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 The judge did not clearly credit or discredit this testimony.
14 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transpor-
tation Management Corp., 462 U.S. 393 (1983).
15 Torres’ supervisory status is in dispute. We find insufficient evi-
dence to establish that he was a supervisor within the meaning of
Sec. 2(11) of the Act. We find, however, that the record establishes
that the Respondent placed Torres in a position where employees,
particularly Villatoro, could reasonably believe that he was acting for
and on behalf of management. Thus, the record shows that on
Villatoro’s first day of work Operations Manager Garcia told her
that Torres was her supervisor. In addition, the Respondent gave
Torres authority to assign work and to sign employee warnings.
Torres also inspected and corrected Villatoro’s work. Accordingly,
we conclude that Torres was the Respondent’s agent and that his ac-
tions are attributable to the Respondent.
16 In view of the General Counsel’s strong case, under Wright
Line, the Respondent’s burden here in substantial. See La Conexion
Familiar & Sprint Corp., 322 NLRB 774, 778 (1996); Federal
Screw Works, 310 NLRB 1131, 1140 (1993).
to work on 6/14/95 and [did] not finish her job, [did]
not clean handicap restroom.’’ The report also reflects
that Sorto worked her full 4-hour shift on June 14. The
‘‘comments’’ section of the report actually tends to
corroborates Sorto’s testimony that when she returned
to work on June 14, she was not allowed to start work
for approximately an hour due to the late arrival of her
supervisor and that her failure to complete her assign-
ments on June 14 was due to this delay in reinstating
her after her participation in the strike.13
In sum, the judge appears to have credited Allen’s
testimony that Sorto was discharged for ‘‘walk[ing] off
the job’’ on June 15. The Respondent’s own records,
however, indicate that Sorto was discharged for ‘‘not
finish[ing] her job’’ on June 14. Further, if Sorto’s tes-
timony were credited, it would support a finding that
it was the Respondent’s tardy reinstatement of Sorto,
after she engaged in protected strike activity, that was
the reason she did not ‘‘finish her job’’ on June 14.
Accordingly, we shall remand the Sorto discharge alle-
gation to the judge for consideration of the apparent
conflict between Allen’s credited testimony and the
Respondent’s records. On remand, the judge should
take into account all the relevant record evidence and
analyze the discharge allegation under the framework
the Board set forth in Wright Line.14
4(b). The complaint also alleges that on about May
31, 1995, the Respondent discriminatorily issued a
warning to Sorto, and that on about June 15, 1995, the
Respondent through Allen told employees that they
could not wear union buttons. With respect to the
‘‘union button’’ allegation, the judge has set out the
conflicting testimony, i.e., Sorto’s claim that Allen told
her to take off her union button and Allen’s denial, but
he made no credibility findings concerning the con-
flicting testimony or findings as to whether an unfair
labor practice was committed. Similarly, with respect
to the warning, the judge quoted Allen’s testimony that
Sorto refused to follow instructions, but he made no
clear credibility determination and failed to analyze the
legality of the warning. Accordingly, we shall also re-
mand these allegations to the administrative law judge
for further consideration.
B. The Unfair Labor Practices Which the Judge
Found
1(a). The judge found, and we agree, that the Re-
spondent violated Section 8(a)(3) by discharging Isabel
Villatoro. In light of the argument the Respondent ad-
vances in its exceptions, however, we find that further
explanation is warranted.
Villatoro was employed by the Respondent from
about February to August 7, 1995, when she was ter-
minated. She worked from Monday to Friday.
Villatoro was a union adherent and the only em-
ployee from her building to participate in a strike on
about June 12, 1995. According to her uncontradicted
testimony, when she returned to work after striking for
1 day, the Respondent’s agent, Avilio Torres, told her
that ‘‘if you’re out for three days on the strike, if you
miss three days, you will be fired,’’ and that ‘‘the per-
son who goes out on strike for the union, we give him
more work . . . [a]nd we harass them.’’15 Villatoro
further testified that Torres told her to discard her
union button and ‘‘throw it in the garbage.’’
Villatoro was discharged on Monday, August 7,
after being absent the preceding Thursday and Friday,
August 3 and 4. The Respondent’s policy was that an
employee would be terminated if absent three times
without a valid excuse. It is undisputed that Villatoro
was absent on August 3 and 4, but the parties disagree
over whether she had a valid excuse.
The General Counsel has shown that Villatoro en-
gaged in union activity and that the Respondent had
knowledge of that activity. The Respondent’s union
animus has been demonstrated by its agent’s, Torres,
statements to Villatoro and by the numerous unfair
labor practices it committed in this and the previous
three cases cited in footnote 4, supra. Thus, the Gen-
eral Counsel has presented a strong case that antiunion
sentiment was a motivating factor in Villatoro’s termi-
nation.
Therefore, under Wright Line, the burden shifts to
the Respondent to show that Villatoro would have
been discharged even in the absence of her protected
activities.16 Villatoro’s termination report, signed by
Operations Manager Garcia, states the cause of dis-
charge as ‘‘tardiness/absenteeism.’’ The ‘‘comments’’
section emphasizes that Villatoro ‘‘hasn’t shown up
three times without a valid excuse.’’ The obvious
problem with this defense is that even assuming
arguendo that Villatoro had unexcused absences on
August 3 and 4, she still would not have violated the
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837UNITED STATES SERVICE INDUSTRIES
17 Of course, the day Villatoro was on strike cannot be counted
as an unexcused absence, because participation in a strike is pro-
tected by Sec. 7 and Sec. 13 of the National Labor Relations Act.
18 We leave to compliance the issue of the effect, if any, that the
resignations of Ricardo Ortiz and Maria Teresa Avalos, and the de-
parture from the country of Saturnina Contreras and Victoriano Flo-
res, should have on their right to reinstatement to the day shift at
the 401 M Street location. See Dauman Pallet, Inc., 314 NLRB 185,
187 (1994); Goodman Investment Co., 292 NLRB 340 (1989).
19 The Respondent has stipulated that Fallas is a supervisor.
Respondent’s three-unexcused-absence rule.17 Thus,
the judge found, and we agree, that in discharging
Villatoro ‘‘Garcia departed from the rule.’’
In its exceptions, the Respondent argues that al-
though it has a three-unexcused-absence rule, ‘‘it was
not the reason for Villatoro’s discharge.’’ Instead, the
Respondent argues that before Villatoro had engaged
in any union activities she had been warned that if she
were absent one more time she would be discharged.
Therefore, according to the Respondent, after her two
absences on August 3 and 4, she was lawfully dis-
charged in accordance with the prior warning, ‘‘not
[on the basis of] the rule cited by the ALJ.’’ The dif-
ficulty with this position is that it conflicts with the
Respondent’s own termination report, which clearly re-
lies on the three-unexcused-absence rule, rather than
the ‘‘prior warning’’ rationale, as the justification for
Villatoro’s discharge. It is well established that such
shifting of defenses weakens the employer’s case, be-
cause it raises the inference that the employer is
‘‘grasping for reasons’’ to justify an unlawful dis-
charge. Royal Development Co. v. NLRB, 703 F.2d
363, 372 (9th Cir. 1983).
Accordingly, we find, in agreement with the judge,
that the Respondent has not satisfied its Wright Line
burden, and we adopt his conclusion that the Respond-
ent violated Section 8(a)(3) and (1) by discharging
Villatoro.
1(b). The complaint also alleges that following
Villatoro’s participation in the strike Torres engaged in
closer supervision of her work in violation of Section
8(a)(1) of the Act. Although the judge appears to have
credited Villatoro’s testimony to this effect, the judge
made no finding on this complaint allegation. We
shall, therefore, remand this allegation to the judge for
explicit findings.
2. The judge found, and we agree, that the Respond-
ent discriminated against employees who participated
in a strike from June 6 to about June 13, 1995, by
transferring them on about July 31, 1995, from a facil-
ity in Washington, D.C., to a facility in Rosslyn, Vir-
ginia, thereby increasing their commuting time and
costs, and reducing their working hours.
Eight strikers, all of whom lived in the District of
Columbia or Maryland, were employed at 401 M
Street, S.W., when the Respondent’s night cleaning
contract at that location was terminated. The strikers
were all transferred to Rosslyn, but nonstrikers were
retained on the day shift at 401 M Street. After the
transfer, the day shift doubled in size from about 20
to about 40 employees.
The judge found, and we agree, that a motive to dis-
criminate against the strikers is manifested by the Re-
spondent’s retention of only nonstrikers at 401 M
Street, and the transfer of all strikers to Rosslyn with
a reduction of hours and an increase in travel time and
costs, even though the Respondent had enough jobs
available for them on the day shift at the M Street lo-
cation. We further agree with the judge that the Re-
spondent has offered no credible explanation for trans-
ferring all strikers to less desirable jobs when jobs in
the same building from which they were transferred
were available. Accordingly, we agree with the judge
that the Respondent has violated Section 8(a)(3).18
The judge further found, however, that Maria Teresa
Avalos, who chose to go to Rosslyn, rather than trans-
fer to another building in the District of Columbia, was
not a victim of discrimination. We disagree. As the
judge has found, the discrimination occurred when the
Respondent transferred all the strikers and did not
allow them to remain in the M Street facility on the
day shift as it did with the nonstrikers. Thus, Avalos,
like the other strikers, was discriminated against when
the Respondent denied her the opportunity to remain in
the M Street facility on the day shift. We shall, there-
fore, reverse the judge as to Avalos and shall include
her name in the Order with those who are to be of-
fered jobs on the day shift at 401 M Street, S.W.,
Washington, D.C.
3. The judge found, and we agree, that the Respond-
ent violated Section 8(a)(1) when Herman Romero, in
the presence of Project Manager Giovanni Fallas, in-
structed employees wearing union T-shirts to take
them off.19 Fallas, by his silence, condoned the in-
struction, and the employees removed the T-shirts.
The Respondent admits that Romero made the re-
mark, but contends that it was rescinded when Vice
President of Operations Richard Gallaher instructed
Antonio Dominguez to tell the employees that they
could wear the T-shirts. The Respondent did not call
Dominguez to testify, and there is no evidence to es-
tablish whether Dominguez did as he was instructed or
to which employees, if any, he imparted this informa-
tion.
Under certain circumstances an employer may re-
lieve itself of liability for unlawful conduct by repudi-
ating the conduct. To be effective, however, such repu-
diation must be ‘‘timely,’’ ‘‘unambiguous,’’ ‘‘specific
in nature to the coercive conduct,’’ and ‘‘free from
other proscribed illegal conduct.’’ There must be ade-
quate publication of the repudiation to the employees
involved, and there must be no proscribed conduct on
the employer’s part after the publication. Finally, the
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838 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 Consistent with our most recent decision involving this Re-
spondent, we find that, in order to effectuate the purposes and poli-
cies of the Act, the broad order shall apply ‘‘to all of Respondent
Employer’s current worksites and any new worksites where the Em-
ployer may be engaged to perform cleaning services during the 60-
day posting period.’’ 319 NLRB at 259. Similarly, the notice shall
‘‘be posted at all of the Employer’s current worksites and any new
worksites acquired within the 60-day posting period in the metro-
politan Washington D.C. area.’’ Id.
We deny the General Counsel’s request for attorneys’ fees on the
ground that the Respondent’s defenses were not frivolous within the
meaning of Frontier Hotel & Casino, 318 NLRB 857 (1995), enf.
denied in part 118 F.3d 795 (D.C. Cir. 1997).
repudiation should give assurance to employees that in
the future their employer will not interfere with the ex-
ercise of their Section 7 rights. Passavant Memorial
Area Hospital, 237 NLRB 138 (1978).
Applying the Passavant standards here, it is clear
that even accepting Gallaher’s testimony as true, there
is insufficient evidence to show repudiation. As noted
above, the Respondent has presented no evidence to
establish that Dominguez did as he was instructed or
to which employees, if any, he imparted this informa-
tion. Hence, there is no showing that there was the
requisite adequate publication of the repudiation to the
employees involved. Even assuming arguendo that
Dominguez imparted the information to the employees
involved, there is no evidence as to when this occurred
and hence no evidence that any such publication was
timely. Further, a simple statement by Dominguez that
employees could wear the T-shirts would not be an un-
ambiguous countermand of an order given by Romero
and condoned by Fallas where, as here, there is no in-
dication that Dominguez referred to that order. Finally,
the Respondent does not even claim that it assured em-
ployees that it would not interfere with their Section
7 rights, and there is abundant evidence that the Re-
spondent in fact continued to interfere with those
rights. We thus agree with the judge that the Respond-
ent violated Section 8(a)(1) by Romero’s directive, and
we further find that the Respondent did not effectively
rescind that order.
4. The judge found, and we agree, for the reasons
set forth by the judge, that the Respondent violated
Section 8(a)(1) by Operations Manager Gilbert
Bonilla’s threatening employees with loss of jobs.
C. Request for Sanctions Against Respondent’s
Attorney and Motion to Discipline
The General Counsel has excepted to the judge’s de-
cision not to ‘‘exercise jurisdiction’’ over the General
Counsel’s request that the Respondent’s counsel, Joel
I. Keiler, be sanctioned and disciplined for aggravated
misconduct at the hearing. This aspect of the proceed-
ing shall be severed and considered separately by the
Board.
D. The Remedy
The General Counsel and the Charging Party have
excepted to the judge’s failure to provide a broad
cease-and-desist order. In United States Service Indus-
tries, 315 NLRB, supra at 286, and in United States
Service Industries, supra, 319 NLRB at 231, we found
that a broad remedial order was warranted because the
Respondent demonstrated a proclivity to violate the
Act and exhibited a general disregard for the employ-
ees’ fundamental statutory rights. In this case, we have
found that the Respondent has continued to violate the
Act by, inter alia, discharging a union adherent, trans-
ferring eight returned strikers to less desirable jobs,
and threatening employees with job loss. Accordingly,
we shall modify the judge’s recommended Order and
substitute broad cease-and-desist language.20
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, United States Service Industries, Inc.,
Washington, D.C., its officers, agents, successors, and
assigns, shall take the action set forth in the Order as
modified.
1. Cease and desist from
(a) Discouraging union or concerted activities of its
employees or their membership in Service Employees
International Union, Local 82, AFL–CIO, or any other
labor organization, by unlawfully and discriminatorily
discharging its employees or discriminating against
them in any manner in respect to their hire and tenure
of employment or conditions of employment.
(b) Unlawfully directing employees to remove union
T-shirts.
(c) Unlawfully transferring returned strikers, thereby
increasing their commuting time and costs, and reduc-
ing their working hours, in order to discourage union
activities.
(d) Unlawfully threatening loss of jobs in order to
discourage union activities.
(e) In any other manner interfering with, restraining,
or coercing employees in the exercise of rights guaran-
teed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Isabel Villatoro full reinstatement to her former job or,
if that job no longer exists, to a substantially equiva-
lent position, without prejudice to her seniority or any
other rights or privileges previously enjoyed.
(b) Make Isabel Villatoro whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against her, in the manner set forth in
the remedy section of the judge’s decision.
(c) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
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839UNITED STATES SERVICE INDUSTRIES
21 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.’’
22 Because the Board has been advised that Judge Goerlich has re-
tired from the Agency, the Board requests that the chief administra-
tive law judge ascertain the availability of Judge Goerlich. In the
event that Judge Goerlich is not available, the case is remanded to
the chief administrative law judge who may designate another ad-
ministrative law judge in accordance with Sec. 102.36 of the Board’s
Rules.
charge of Isabel Villatoro, and within 3 days thereafter
notify her in writing that this has been done and that
the discharge will not be used against her in any way.
(d) Within 14 days from the date of this Order, offer
the following returned strikers:
Maria Teresa Avalos
Enrique Hernandez
Ricardo Ortiz
Marina Reyes
Saturnina Contreras
Victoriano Flores
Ana Esmeralda Funes
Rudy Alvaro
jobs on the day shift at 401 M Street, S.W., Washing-
ton, D.C., or, if those jobs no longer exist, to substan-
tially equivalent positions in Washington, D.C., with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed.
(e) Make the above-named returned strikers whole
for any loss of earnings and other benefits suffered as
a result of the discrimination against them, in the man-
ner set forth in the remedy section of the judge’s deci-
sion.
(f) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful trans-
fers, and within 3 days thereafter notify the above-
named returned strikers in writing that this has been
done and that the transfers will not be used against
them in any way.
(g) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(h) Within 14 days after service by the Region, post
at all of its current worksites in the Metropolitan
Washington, D.C. area and any new worksites acquired
there within the 60-day posting period copies of the at-
tached notice marked ‘‘Appendix.’’21 Copies of the
notice, in both English and Spanish, on forms provided
by the Regional Director for Region 5, after being
signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees
employed by the Respondent at any time since June 5,
1995.
(i) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the record in this pro-
ceeding be reopened and the allegations of paragraphs
5, 15, and 16 of the consolidated complaint which the
judge dismissed as barred by Section 10(b): the allega-
tion relating to warnings placed in Ricardo Ortiz’ per-
sonnel file; the allegations relating to the unlawful rep-
rimand and termination of Milagros del Carmen Sorto;
the allegation relating to the Respondent, through
Robin Allen, telling employees at 1776 Massachusetts
Avenue that they could not wear union buttons; and
the allegation relating to the closer supervision of Isa-
bel Villatoro, be remanded to Judge Lowell Goerlich
for further appropriate action in accordance with this
Decision and Order.22
IT IS FURTHER ORDERED that the General Counsel’s
request for sanctions against the Respondent’s attorney,
Joel I. Keiler, and motion to discipline are severed and
will be considered separately by the 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 or-
dered 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
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
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840 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent claims that there was not a proper proof of serv-
ice of the original and first amended charges on the Respondent in
that there was no evidence offered of returned receipts of the mail-
ing. The Respondent further argues that the charges are time-barred
by Sec. 10(b) of the Act.
The Respondent admits proper service of the second amended
charge which was served on October 19, 1995. Thus, if the Re-
spondent is correct, any allegations in the consolidated complaint cit-
ing incidents which occurred prior to April 19, 1995, must be dis-
missed. The Respondent cites Westbrook Bowl, 274 NLRB 1009
(1985), which holds that a like service was improper. Thus, allega-
tions in the consolidated complaint of incidents occurring prior to
April 19, 1995, must be dismissed. Id. Since the incidents which are
described in pars. 5a–5l, 15, and 16 are alleged to have occurred
from December 7, 1994, through February 3, 1995. Pars. 5, 15, and
16 are dismissed in their entirety.
2 The Respondent claims that there was not proper service of this
charge on the Respondent. Proof in respect to service of this charge
shows that it was sent by certified mail to the Respondent, addressed
to James Matthews, United States Service Industries, Inc., 1424 K
Street, N.W., Washington, D.C. 20005. This was the same address
to which the second amended charge in Case 5–CA–25403 (of
which service the Respondent did not contest) was sent. Apparently
the certified mail was refused. The service of the charge was proper.
See Powell & Hunt Coal Co., 293 NLRB 842 (1989); National
Automatic Sprinklers, 307 NLRB 481 (1992); and Michigan Expedit-
ing Service, 282 NLRB 210 (1986).
WE WILL NOT discourage union or concerted activi-
ties of our employees or their membership in Service
Employees International Union, Local 82, AFL–CIO,
or any other labor organization, by unlawfully and
discriminatorily discharging our employees or discrimi-
nating against them in any manner in respect to their
hire and tenure of employment or conditions of em-
ployment.
WE WILL NOT unlawfully direct employees to re-
move union T-shirts.
WE WILL NOT unlawfully threaten employees with
loss of jobs to discourage union activities.
WE WILL NOT unlawfully transfer returned strikers
thereby increasing their commuting time and costs and
reducing their working hours in order to discourage
their union activities.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the
Board’s Order, offer Isabel Villatoro full reinstatement
to her former job or, if such job no longer exists, to
a substantially equivalent position, without prejudice to
her seniority or any other rights and privileges pre-
viously enjoyed.
WE WILL make Isabel Villatoro whole for any loss
of earnings and other benefits as a result of the action
against her, with interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
Isabel Villatoro’s discharge and WE WILL, within 3
days thereafter, notify her in writing that this has been
done and that the discharge will not be used against
her in any way.
WE WILL, within 14 days of the date of the Board’s
Order, offer the following named returned strikers,
Maria Teresa Avalos
Enrique Hernandez
Ricardo Ortiz
Marina Reyes
Saturnina Contreras
Victoriano Flores
Ana Esmeralda Funes
Rudy Alvaro
whom we unlawfully transferred from 401 M Street,
S.W., Washington, D.C., to Rosslyn, Virginia, on
about July 31, 1995, jobs on the day shift at 401 M
Street, S.W., Washington, D.C., or, if those jobs no
longer exist, to substantially equivalent positions in
Washington, D.C., without prejudice to their seniority
or any other rights and privileges previously enjoyed.
WE WILL make the above-named returned strikers
whole for any loss of earnings and other benefits
which they may have suffered by reason of their trans-
fer, with interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful transfers of the above-named returned
strikers, and WE WILL, within 3 days thereafter, notify
them in writing that this has been done and that the
transfers will not be used against them in any way.
UNITED STATES SERVICE INDUSTRIES,
INC.
Cindy Ramirez Holman, Esq. and Eric Fine, Esq., for the
General Counsel.
Joel Keiler, Esq., of Reston, Virginia, for the Respondent.
Eunice Harris Washington, Esq., of Washington, D.C., for
the Charging Party.
DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Administrative Law Judge. The origi-
nal charge in Case 5–CA–25403 was filed by Service Em-
ployees International Union, Local 82, AFL–CIO (the Union)
on June 5, 1995, and a copy of it was mailed to Respondent
United States Service Industries, Inc. by certified mail June
9, 1995. The first amended charge in Case 5–CA–25403
(which was identical to the original charge in content) was
filed by the Union on June 20, 1995, and a copy of it was
mailed to the Respondent by certified mail in October 1995.
The second amended charge in Case 5–CA–25403 was filed
by the Union on October 19, 1995, and a copy of it was
properly served by certified mail on the Respondent on the
same day. (The charge incorporated the allegations contained
in the original and first amended charges.)1
The charge in Case 5–CA–25582 was filed by the Union
on August 23, 1995, and a copy of it was properly served
by registered mail on the Respondent on September 8, 1995.2
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841UNITED STATES SERVICE INDUSTRIES
3 Requests of the General Counsel and the Respondent for correc-
tion of the transcripts are granted and the transcript is corrected ac-
cordingly.
4 The facts found here are based on the record as a whole and on
the observation of the witnesses. The credibility resolutions here
have been derived from a review of the entire testimonial record and
exhibits, with due regard to the logic of probability, the demeanor
of the witnesses, and the teachings of NLRB v. Walton Mfg. Co., 369
U.S. 404, 408 (1962). As to those witnesses testifying in contradic-
tion to the findings here, their testimony has been discredited either
as having been in conflict with the testimony of credible witnesses
or because it was in and of itself incredible and unworthy of belief.
All testimony has been reviewed and weighed in the light of the
entire record. No testimony has been pretermitted. 5 He was unable to be identified in the record.
The charge in Case 5–CA–25813 was filed by the Union
on December 4, 1995, and a copy was properly served by
certified mail on the Respondent on December 14.
An order consolidating cases, consolidated complaint and
notice of hearing was issued in Cases 5–CA–25403 and 5–
CA–25582 on February 2, 1996. A complaint and notice of
hearing was issued in Case 5–CA–25813 on March 5, 1996.
An order consolidating cases and setting hearing date in
Cases 5–CA–25403, 5–CA–25582, and 5–CA–25813 was
issued on May 6, 1996. The complaints charged the Re-
spondent with violations of the National Labor Relations Act
(the Act).
The Respondent filed timely answers denying that it had
engaged in the unfair labor practices alleged.
The cases came on for hearing at Washington, D.C., on
June 17–21 and July 1, 2, and 8, 1996. Each party was af-
forded a full opportunity to be heard, to call, to examine and
cross-examine witnesses, to argue orally on the record, to
submit proposed findings of facts and conclusions, and to file
briefs. All briefs have been carefully considered.
On the entire record in this case3 and from my observation
of the witnesses and their demeanor, I make the following
FINDINGS OF FACT,4 CONCLUSIONS, AND REASONS
THEREFOR
I. BUSINESS OF THE RESPONDENT
At all material times the Respondent, a Delaware corpora-
tion, with an office and place of business in Washington,
D.C. (the Respondent’s main facility), has been engaged in
the business of providing full service janitorial services to of-
fices and buildings in Washington, D.C., and adjacent areas
in Maryland and Virginia.
During the preceding 12 months, a representative period,
the Respondent, in conducting its business operations de-
scribed above, derived gross revenues in excess of $1 million
and purchased and received goods and supplies valued in ex-
cess of $5000 directly from points located outside the Dis-
trict of Columbia.
At all material times the Respondent has been engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is now, and has been at all times mate-
rial, a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A series of unfair labor practice complaints issued against
the Respondent in Cases 5–CA–23629, 5–CA–23724, 5–CA–
24030, 5–CA–24168, 5–CA–24291, and 5–CA–24547, dur-
ing the period of time from December 23, 1993, to August
10, 1994, which were consolidated for trial in a case in
which the Board subsequently issued its opinion and order in
United States Service Industries, 319 NLRB 231 (1995). The
Respondent was found guilty of unfair labor practices.
On November 3, 1994, pursuant to the unfair labor prac-
tices alleged in the complaints described above, the United
States District Court for the District of Columbia in the case
of Louis J. D’Amico v. United States Service Industries, Inc.,
Civil Action No. 94–1795, issued an order granting a tem-
porary injunction requiring the Respondent, in pertinent part,
to offer interim reinstatement to employees Juan Bolanos,
Maria Ester Terminio, Augustin Barrero, and Carlos
Ipanaque to their former positions, without prejudice to their
former seniority or other rights and privileges, displacing, if
necessary, other persons hired or reassigned by the Respond-
ent as their replacements or, if those positions no longer
exist, to substantially equivalent positions.
A. The Termination of Saturnina Contreras
The General Counsel asserts that Saturnina Contreras was
a constructive dischargee.
Contreras cleaned bathrooms at M Street, S.W. in Wash-
ington, D.C., commencing on May 9, 1995. Her working
hours were from 9:30 p.m. to 6 a.m., 9 hours. She worked
from Monday to Friday. She testified that her supervisor was
Sixto.5
On occasion Contreras met with union representatives out-
side the building where she worked. She went on strike on
May 15, 1995, and returned to work shortly thereafter.
On July 31, 1995, a meeting of the employees was held
by Supervisor Jose Barahona. According to Contreras,
Barahona told the employees that the contract for the build-
ing had been finished and that Esmeraldi, Victoriano Flores,
Ricardo, and Contreras were being transferred to Rosslyn,
Virginia. He also said that those who would be going to
Rosslyn would work fewer hours, starting from 11 p.m. and
finishing at 7 a.m. Contreras stated that she did not go to
Rosslyn, ‘‘Because I was going to be working fewer hours
over there and I was going to spend more money on trans-
portation.’’
On cross-examination, it was revealed that Contreras did
not take the transfer because she ‘‘had to go to El Salvador’’
where she remained for 6 months. Contreras testified, ‘‘I re-
ceived a notification from El Salvador that I had to go to El
Salvador to bring my visa back from over there. . . . I was
going to bring back my residency.’’ Her husband, Victoriano
Flores, went with Contreras to El Salvador.
In the case of Red Arrow Freight Lines, 289 NLRB 227
(1988), the Board stated:
In order to prove that an employee was construc-
tively discharged, the General Counsel must establish
that the burdens imposed on the employee ‘‘must cause,
and be intended to cause, a change in working condi-
tions so difficult or unpleasant as to force [the em-
ployee] to resign’’ and that the burdens were imposed
because of the em-
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842 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployee’s union activity. Crystal Princeton Refining Co.,
222 NLRB 1068, 1069 (1976).
The General Counsel has not met this burden. Contreras
quit to go to El Salvador. The allegations in the consolidated
complaint are dismissed as to Contreras.
B. The Termination of Maria Teresa Avalos
The General Counsel asserts that Maria Teresa Avalos was
also a contructive dischargee.
Avalos started working for the Respondent on April 31,
1994, in a building located at 401 4th and M Streets, S.W.,
Washington, D.C., from 9:30 p.m. to 7 a.m., which was later
changed to 10:30 p.m. to 6 a.m. She cleaned offices. She
was paid $6 an hour.
Avalos, along with other employees, engaged in a strike
for 2 days after which she returned to work at the same
building. She had contacted Supervisor Jose Barahona who
told her to come back to work ‘‘but not to continue with the
Union.’’
Thereafter, Barahona met with around 12 employees in
Avalos’ group at 2 a.m. He advised the employees that they
were being transferred to Virginia. He said ‘‘[t]hat those who
wanted would go to Virginia and those of us could stay in
a building. I do not remember where.’’ Three employees
were told to stay in the building. None of these individuals
had participated in the strike. Avalos told Barahona that she
‘‘would rather go to Rosslyn [Virginia].’’ She accepted the
job because ‘‘I needed the job and I did not want to remain
in a building in Washington . . . because it was a woman
supervisor and she was very demanding. She assigned a lot
of work to me.’’ (Avalos had worked there before for 1 day.)
Avalos went to Rosslyn for only 1 day, ‘‘[b]ecause I
would finish very late and I had very short time to go to
Wheaton where I had four hours.’’ Her hours at Rosslyn
were from ‘‘11:00 to 6:30’’ at night. At Wheaton her hours
were from 7 to 11 a.m. Avalos testified, ‘‘I would finish, get
out of my work at USSI and go to Wheaton. . . . I was bet-
ter off in Wheaton compared with the job at USSI.’’ Avalos
had been working at Wheaton ‘‘about 6 months’’ at which
time her hours at USSI were from 10:30 p.m. to 6 a.m. It
took Avalos about 15 minutes to go from her home to Whea-
ton and about 15 minutes to go to Rosslyn.
The General Counsel bases his claim that Avalos was a
constructive dischargee because she was transferred to
Rosslyn where the hours were such that she could not meet
the hours assigned to her in Wheaton where she was also
working. There is no credible evidence that the Respondent
knew of her alleged problem or sent her to Rosslyn because
of her union activities. In fact, she was offered a choice of
jobs; she chose Rosslyn apparently because she thought it
would be less arduous. I find no disparate treatment of
Avalos or intent to offer her a job ‘‘so difficult or unpleasant
as to force her to resign.’’ See Red Arrow Freight Line,
supra. In fact, the Employer had offered her a choice. She
could have stayed in Washington where she had been work-
ing.
The allegations in the consolidated complaint in respect to
Avalos are dismissed.
C. The Termination of Ricardo Ortiz
The General Counsel claims that Ricardo Ortiz was also
a constructive dischargee.
Ortiz started working for the Respondent on or about May
31, 1995, at 401 M Street, S.W. Ortiz picked up garbage. His
hours were from 9:30 p.m. to 6:30 a.m. Ortiz met with union
representatives outside the building where he worked. He
also went on strike. When he returned to work after the
strike he was wearing a red union T-shirt. He returned to 401
M Street, S.W. Thereafter, Supervisor Jose Barahona con-
vened the employees at 401 M Street, S.W. According to
Ortiz, Barahona told the employees that there would be no
more work in the building and that the employees would be
transferred to different buildings. He added that some would
be transferred to a building ‘‘close by’’ and that Teresa,
Septonino, Victoriano, and Alberto would be transferred to a
building in Rosslyn. Ortiz stated, ‘‘He said that at the build-
ing the work would be from four to five hours. And that we
would be working days.’’ Only those who had been on strike
were transferred to Rosslyn. According to Ortiz’ timecard, he
worked 7 days at Rosslyn and quit. His hours were 7:30 p.m.
to 7 a.m. Ortiz testified that he quit—‘‘too much work.’’
Ortiz testified that he went out on strike ‘‘because the work-
ing conditions [at M street] were so terrible, and you were
asked to do too much work in to short of time.’’ Ortiz fur-
ther testified that the conditions at Rosslyn were ‘‘just as
bad’’ as they were at M Street, S.W.
It is clear that Ortiz quit because he didn’t like his work
assignments which were not unlike the ones he struck against
at M Street, S.W. I find no constructive discharge here. See
Crystal Princeton Refining Co., supra.
The allegations in the consolidated complaint as to Ortiz
are dismissed.
D. The Termination of Milagros del Carmen Sorto
According to Milagros del Carmen Sorto she commenced
employment with the Respondent February 23, 1995.
Her last place of employment was 1776 Connecticut Ave-
nue. Her working hours were ‘‘6 to 10 at night.’’ She testi-
fied, ‘‘I would take out the garbage and dust and vacuum.
And a private bathroom.’’ Her supervisor was ‘‘Josephina.’’
Sorto went on strike; she was the only one from her building
on strike. When Sorto returned to work after the strike she
was wearing a red union T-shirt. According to Sorto on the
day she returned to work she was assigned her old job. She
was able to do all of it except a private bathroom. Sorto
looked for the supervisor to tell her that she was unable to
do the bathroom. The next day Sorto was told to help vacu-
um another floor. She said she could not because she was
sick. Allen gave Sorto a verbal reprimand telling her that su-
pervisor’s orders were to be obeyed. Sorto responded that
she had been sick.
According to Sorto, on the third day of her employment
she wore a red union T-shirt and a union button on top of
the ‘‘overshirt.’’ Supervisor Robin Allen told Sorto to take
the union button off; that she was to wear the ‘‘I.D. on that
side.’’ ‘‘She took off my button and put the I.D. there.’’
Robin Allen, the Respondent’s manager, testified that she
fired Sorto. She denied that she had told employees to not
wear union buttons. She testified that she gave Sorto a warn-
ing slip ‘‘letting her know how it is important to be sure that
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843UNITED STATES SERVICE INDUSTRIES
6 ‘‘Its a thing that you wear that is saying who you work for, so
when you are in the building, the tenants know who the person is
on the floor, knowing that they work for a cleaning company.’’
7 The strikers names were:
Enrique Hernadez
Maria Avalos
Ricardo Ortiz
Marina Reyes
Saturnia Contreras
Victoriano Flores
Ana Esmeralda Funes
Rudy Alvaro
you work behind locked doors and make sure the lights are
turned off when you finish.’’ The warning notice is dated
May 17, 1995. Allen gave Sorto a second warning notice on
May 30, 1995, ‘‘[b]ecause Ms. Santos [sic] refuses to follow
instructions. She wouldn’t vacuum properly. She wouldn’t
dust properly. Her whole attitude had changed.’’ Allen gave
Sorto another warning notice dated June 15, 1995, because
‘‘she wasn’t completing her job, she wasn’t doing her job
properly.’’ Allen discharged Sorto on June 15, 1995, because
‘‘Ms. Santos [sic] did not complete her job and she walked
off the job leaving the job undone. Did not inform the super-
visor that she did not complete the job.’’
Allen also testified that all employees are required to wear
a ‘‘cobbler’’6 to let people know who are employees. It was
that which she called to Sorto’s attention not a ban on a
union button. According to Allen, it was her sole decision to
discharge Sorto, ‘‘She just walked out. She didn’t inform
anyone.’’ According to Allen she was informed by a super-
visor that she couldn’t find Sorto and that the restrooms
‘‘wasn’t done.’’ ‘‘I came over there . . . . I helped the su-
pervisor do the job and I told her that if Ms. Santos [sic]
ever show up here, tell her to come to the office to see me.’’
Santos [sic] ‘‘never showed up.’’
It appears that Sorto walked off the job and never again
returned to employment. Thus, I cannot find that her separa-
tion from employment was the result of discrimination. Alle-
gations in the consolidated complaint in respect to Sorto are
dismissed.
E. The Termination of Isabel Villatoro
Isabel Villatoro returned to work for the Respondent on
February 2, 1995. She worked at 2120 L Street, N.W., Wash-
ington, D.C. She described her job: ‘‘I worked vacuuming,
taking out the trash, I also worked in four bathrooms. I
cleaned the walls. I took the garbage down stairs.’’ She
worked on floors four and five. Avilio Torres was her super-
visor; the operations manager was Fernando Garcia.
Villatoro was a union partisan and went on strike and
joined in strike activities. She was the only striker from her
building. She was out on strike for 1 day after which she re-
turned to her job. According to Villatoro, when she returned
from the strike Torres told her ‘‘the person who goes out on
strike for the union, we give him more work . . . and we
harass them.’’ (Torres did not testify.) Torres changed her to
the sixth and seventh floors. Torres also told Villatoro that
she should discard her union button and ‘‘throw it in the gar-
bage.’’ Villatoro also wore a union T-shirt. Garcia told
Villatoro if she wanted to wear the T-shirt she should wear
it under the uniform. According to Villatoro, Torres in-
spected her work more often after she returned from strike.
Villatoro was fired on August 7, 1995, by Torres who told
her ‘‘that Fernando Garcia told me that I was fired for not
having called, and for not having come.’’ Villatoro was ab-
sent Thursday and Friday because she was sick. According
to Villatoro she tried to call Avilio whom she was unable to
reach. She then tried Garcia. She was able to reach his an-
swering machine on which she left a message relating that
she was not coming to work because she was sick. She made
calls on both Thursday and Friday.
Before Villatoro went on strike, Garcia had told her that
if she missed one more day she would be fired. There is
nothing in her affidavit about a call on Thursday. There is
nothing in the affidavit about the union button. Villatoro tes-
tified that after she had read the affidavit she told counsel
for General Counsel that it was not complete. Garcia testified
that he told Villatoro that if she was absent one more time
she would be fired and that she did not call in on Thursday
but called in on Friday. Garcia testified that he fired
Villatoro because he told her that if she continued ‘‘not
showing up’’ he would fire her. However, he also testified
that the rule was that ‘‘after three times without excuse, a
valid excuse a person is fired.’’ Here, Garcia departed from
the rule in that Villatoro was not absent three times and she
had a valid excuse, sickness.
By the General Counsel having established a prima face
case, it was incumbent on the Respondent to show that
Villatoro would have been discharged even if she had not
been engaged in union or protected activities. Wright Line,
251 NLRB 1083 (1980). The Respondent’s defense is that
Villatoro’s discharge was lawful. It has been held that an
employer may discharge for a good reason, a bad reason, or
no reason at all as long as it is not discriminating. Under the
circumstances of this case, the discharge appears to have
been discriminatory and would not have taken place if
Villatoro had not been a union partisan. Thus, I find that by
Villatoro’s discharge the Respondent violated Section 8(a)(1)
and (3) of the Act.
F. Alleged Unlawful Transfer and Discrimination
Against Returned Strikers
The General Counsel contends that the Respondent dis-
criminated against employees who participated in a strike
from June 6 to about June 13, 1995, by transferring them on
or about July 11, 1995, from the 401 M Street, S.W., Wash-
ington, D.C. location to another facility in Rosslyn, Virginia,
by increasing their commuting time and costs and reducing
their working hours.
By letter dated June 6, 1995, 11 of the 27 employees as-
signed to the night shift at 401 M Street, S.W. informed the
Respondent that they were going on strike. Thereafter, they
engaged in a strike for varying periods of time. All returned
to work. On July 31, 1995, Operations Manager Barahona
advised the 16 night-shift employees employed at 401 M
Street, S.W. that the Respondent was eliminating the night
shift at the facility and was transferring employees to
Rosslyn, Virginia. Some would remain at 401 M Street, S.W.
Eight strikers7 were transferred to Rosslyn. All nonstrikers
were retained on the first shift at 401 M Street, S.W. except
for nonstrikers Oscar Reyes and Alberto Portillo. The work-
ing hours at Rosslyn were 1 hour less than at 401 M Street,
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844 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 It is immaterial whether Romero is a conceded supervisor since
a project manager was present.
S.W. After the transfer, the day shift at 401 M Street,
S.W. doubled in size from about 20 employees as-
signed to work during the payroll period ending July
31, 1995, to about 40 employees assigned to work dur-
ing the payroll period ending August 15. All strikers
lived in Washington, D.C.
According to Avalos, three employees who were nonunion
were told to stay on 401 M Street, S.W.—Erika Villata, a
striker and a union leader, was transferred to Rosslyn on
about June 25, 1995. On August 1, she was transferred back
to 401 M Street, S.W. The General Counsel asserts that by
separating Villata from the rest of the strikers at Rosslyn the
Respondent diminished and impaired the Union’s organiza-
tional efforts.
Motive to discriminate against the strikers is manifested by
the Respondent’s retention of only nonstrikers at 401 M
Street, S.W. and the transfer of all strikers to Rosslyn with
a reduction of hours and an increase in travel time and costs
to their jobs. Although the Respondent had sufficient jobs
available for them on the first shift at 401 M Street, S.W.
It is reasonable to infer that it was not just coincidental that
all the strikers were chosen to be transferred to less attractive
jobs while nonstrikers were retained in the more attractive
jobs by an employer whose union animus is well established.
Cf. Fluor Daniel, Inc., 304 NLRB 970 (1991). As above
noted, all known union members were transferred. While it
was theoretically possible that the Respondent could have
fortuitously selected for transfer all returned strikers, com-
mon sense and the laws of mathematical probability indicate
that this was highly unlikely. See Ventre Packing Co., 163
NLRB 540, 541 (1967).
The Respondent has offered no credible explanation for its
choosing all the strikers for less desirable jobs. Cf. Wright
Line, supra. Thus, by transferring all strikers to less desirable
jobs when jobs in the same building from which they were
transferred were available, the Respondent violated Section
8(a)(1) and (3) of the Act.
G. Bar Against Wearing Union T-shirts
Herman Romero8 informed employees wearing union T-
shirts to take them off. Project Manager Giovanni Fallas was
present when such instruction was given and by his silence
condoned the instruction. The employees removed the T-
shirts.
By Romero’s instruction to employees to remove union T-
shirts, the Respondent violated Section 8(a)(1) of the Act.
H. The Alleged 8(a)(1) Statements of Gilberto Bonilla
The General Counsel claims that Operations Manager
Gilberto Bonilla threatened employees with termination and
building closure to wit.
Bonilla asked the employee to cooperate with the Com-
pany, stating that he was forced to work with the Union once
and he had not been satisfied. Bonilla then threatened em-
ployees by stating that before negotiating with the Union he
preferred to give back the building and that Bonilla told the
employees not to feel forced to talk to the Union because all
they wanted was dues. Bonilla then threatened employees by
telling them that USSI preferred to turn in the building rather
than accept a union contract and that if they turned in the
building employees would be left with out a job and he had
no vacancies or jobs in another building but as time went by
he would try to find employees a place in other buildings.
I find that the General Counsel’s claim is well taken that,
by his remarks, Bonilla threatened the employees with loss
of jobs if they continued union affection and thereby the Re-
spondent violated Section 8(a)(1) of the Act.
I. Jurisdiction Question
The Respondent’s claim that portions of the amended
complaint which allege activity that would violate the 10(j)
injunction should be dismissed is not well taken. NLRB v.
John S. Swift & Co., 302 F.2d 342 (7th Cir. 1962).
J. Alleged Counsel Misconduct
Both counsel for the General Counsel and the Respondent
have raised what appears to be questions in respect to coun-
sel misconduct. The Respondent claims alleged misconduct
on the part of counsel for the General Counsel and the
Charging Party’s counsel, whereas the counsel for the Gen-
eral Counsel claims alleged misconduct on the part of the
Respondent’s counsel. (See R. Br. pp. 16 and 17, to the ad-
ministrative law judge and pp. 61, 62, 63, 64, 65 and 66,
memorandum to the administrative law judge on behalf of
the General Counsel, respectively.)
In the Board’s Statements of Procedure Section 101.11 in
respect to the administrative law judge’s decision it is stated:
Sec. 101.11 Administrative law judge’s decision.—
(a) At the conclusion of the hearing the administrative
law judge prepares a decision stating findings of fact
and conclusions, as well as the reasons for the deter-
minations on all material issues, and making rec-
ommendations as to action which should be taken in
the case. The administrative law judge may recommend
dismissal or sustain the complaint, in whole or in part,
and recommend that the respondent cease and desist
from the unlawful acts found and take action to remedy
their effects.
It is clear from this statement that it is not anticipated nor
directed that the administrative law judge incorporate in the
decision matters touching the misconduct of counsel. The de-
cision is confined to the material issues. Misconduct of coun-
sel has no bearing on the resolution of the material issues.
Moreover, the Board’s Rules have provided for the way in
which misconduct of counsel shall be treated. The Board’s
Rules and Regulations, Section 102.44, provides:
Sec. 102.44 Misconduct at hearing before an admin-
istrative law judge or the Board; refusal of witness to
answer questions.—(a) Misconduct at any hearing be-
fore an administrative law judge or before the Board
shall be ground for summary exclusion from the hear-
ing.
(b) Such misconduct of an aggravated character,
when engaged in by an attorney or other representative
of a party, shall be ground for suspension or disbarment
by the Board from further practice before it after due
notice and hearing.
(c) The refusal of a witness at any such hearing to
answer any question which has been ruled to be proper
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845UNITED STATES SERVICE INDUSTRIES
9 While strikers Contreras and Ortiz were discriminated against
along with the other strikers no loss of earnings would have accrued
to them after they voluntarily ceased employment with the Respond-
ent. Avalos, who chose to go to Rosslyn, was not discriminated
against.
shall, in the discretion of the administrative law judge,
be ground for striking all testimony previously given by
such witness on related matters.
From the Rules it is clear that the administrative law
judge’s involvement in matters of counsel misconduct is ex-
clusion from the hearing. The administrative law judge is not
concerned with what occurs after the hearing is closed or the
nature of the sanction in respect to counsel misconduct.
Under the Rules that is reserved to the Board. Thus, I do not
exercise jurisdiction in the premises. Nevertheless, I note that
I did not exclude any counsel from the hearing. Moreover,
there was a fair, full, and a complete presentation of the
issues at the hearing by all parties before me; nor has this
decision been tainted or influenced by the alleged mis-
conduct of counsel.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act,
and it will effectuate the purposes of the Act to exercise ju-
risdiction.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing employees
in the exercise of the rights guaranteed them by Section 7
of the Act, the Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act.
4. By unlawfully discharging Isabel Villatoro on August 7,
1995, the Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the Act.
5. By unlawfully transferring employees from 401 M
Street, S.W., Washington, D.C., to Rosslyn, Virginia, on or
about July 31, 1995, the Respondent has violated Section
8(a)(1) and (3) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I recommend that it cease and desist
therefrom and take certain affirmative action designed to ef-
fectuate the policies of the Act. Having also found the Re-
spondent unlawfully discharged Isabel Villatoro, I rec-
ommend that the Respondent remedy such unlawful dis-
charge. In accordance with Board policy, I recommend that
the Respondent offer Isabel Villatoro immediate and full re-
instatement to her former position or, if such position no
longer exists, to a substantially equivalent position, without
prejudice to her seniority or any rights or privileges pre-
viously enjoyed, dismissing, if necessary, any employees
hired on or since the date of her discharge to fill the posi-
tion, and make her whole for any loss of earnings she may
have suffered by reason of the Respondent’s acts detailed
here, by payment to her of a sum of money equal to the
amount she would have earned from the date of her unlawful
discharge to the date of a valid offer of reinstatement, less
her net interim earnings during such periods, with interest
thereon to be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Co., 90 NLRB
289 (1950), and with interest to be computed in the manner
prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
In regard to those employees who were unlawfully trans-
ferred from 401 M Street, S.W., Washington, D.C., to
Rosslyn, Virginia, on or about July 31, 1995, the Respondent
shall offer them available jobs in Washington, D.C., equiva-
lent to those which they held at 401 M Street, S.W. before
they were transferred and in conformity with the Board’s
policy, make them whole9 for any loss of earnings which
they may have suffered by reason of their unlawful transfer
with interest.
[Recommended Order omitted from publication.]
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