CleanPower, Inc.

National Labor Relations Board - Board Decisions

Feb 27, 1995

316 N.L.R.B. 496 (N.L.R.B. 1995)

496
316 NLRB No. 96
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Contrary to the Respondent’s contention, the credited testimony
shows that the Respondent knew of the concerted nature of em-
ployee Mark Kessenich’s activities.
1 At the close of the hearing, General Counsel submitted a ‘‘Sup-
portive Memorandum’’ setting out facts, issues, and legal arguments
supporting his position. However, any references contained therein
to matters not made part of the record at the instant hearing, includ-
ing reference to any affidavits not in evidence, have been dis-
regarded.
2 There is conflicting testimony regarding some allegations of the
complaint. In resolving these conflicts, I have taken into consider-
ation the apparent interests of the witnesses. In addition, I have con-
sidered the inherent probabilities, the probabilities in light of other
events, corroboration or lack of it, and consistencies of inconsist-
encies within the testimony of each witness. In evaluating the testi-
mony of witnesses, I rely specifically upon their demeanor and have
made my findings accordingly. While apart from consideration of
demeanor, I have taken into account the above-noted credibility con-
siderations, my failure to detail each of these is not to be deemed
a failure on my part to have fully considered it. Bishop & Malco,
Inc., 159 NLRB 1159, 1161 (1966). Specifically, I conclude, in
those instances where a conflict exists between the testimony of
Kessenich and Gambino, that Kessinich’s testimony is the more
credible.
3 All dates refer to 1993 unless otherwise indicated.
CleanPower, Inc. and Service Employees Inter-
national Union, Local 150, AFL–CIO, CLC.
Case 30–CA–12220
February 27, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On December 8, 1994, Administrative Law Judge
Peter E. Donnelly issued the attached decision. The
Respondent filed exceptions, a supporting brief, and a
reply brief. The General Counsel filed an answering
brief to the Respondent’s exceptions.
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 briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, CleanPower, Inc., Milwau-
kee, Wisconsin, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
Gerald McKinney, Esq., for the General Counsel.
Ronald S. Stadler, Esq., of Brookfield, Wisconsin, for the
Respondent.
Julie Eisenberg, of Milwaukee, Wisconsin, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge. The
charge herein was filed by Service Employees International
Union, Local 150, AFL–CIO, CLC (the Union or Charging
Party). A complaint thereon issued on September 29, 1993,
alleging that CleanPower, Inc. (the Employer or Respondent)
violated Section 8(a)(1) of the Act by James Gambino, oper-
ations manager, in threatening an employee, Mark Kessenich,
with discharge for complaining to a building manager about
the working conditions of employees. The case was heard
before me on September 23, 1994. A brief has been timely
filed by Respondent which has been duly considered.1
FINDINGS OF FACT
I. EMPLOYER’S BUSINESS
Employer is a corporation engaged in the business of con-
tract janitorial services in the Milwaukee, Wisconsin area.
During the calendar year ending December 31, 1992, Re-
spondent, in the course and conduct of its business oper-
ations, provided services valued in excess of $50,000 for en-
terprises within the State of Wisconsin, which themselves
sold and shipped goods valued in excess of $50,000 directly
to customers located outside the State of Wisconsin. The
complaint alleges, the answer admits, and I find that the Em-
ployer is an employer within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts2
Respondent provides contract janitorial services to ap-
proximately 120 to 130 buildings located in Wisconsin, in-
cluding some 80–100 buildings in Milwaukee. None of the
Respondent’s approximate 900 janitorial employees are rep-
resented by a union. Mark Kessenich was employed by Re-
spondent on May 15, 1993,3 in Milwaukee where he worked
until he left his employment with the Company on August
2. Kessenich started as a substitute at various Milwaukee
buildings until sometime in early June, when he was as-
signed permanently to an office building at 1000 North
Water Street in Milwaukee cleaning restrooms. Kessenich
worked on a crew of 15 to 18 employees, and his normal
work hours were from 5 p.m. to 8:30 p.m.
It was at about this time that he and other employees were
assigned to do additional work but given no additional time
to accomplish it.
Having become dissatisfied with this development,
Kessenich discussed the problem with other employee-mem-
bers of his work crew at the building who shared
Kessenich’s view that the increased workload, without addi-
tional time, was unfair. He expressed this view to manage-
ment in the form of Junette Strika, manager, and Gerald
Griffin, assistant manager, telling them that the present ar-
rangement was too difficult and stressful, and that he heard
other crewmembers say basically the same thing. In early or
mid-July, Respondent allowed an additional 15 minutes of
497CLEANPOWER, INC.
4 Gulden was employed by the owners of the building and was not
an employee of Respondent.
pay per shift for the additional work. Nonetheless, in about
mid-July, Kessenich began to discuss with other employees
the possibility of drafting a petition, setting out what they
viewed as unfair work assignments and presenting it to Re-
spondent’s management on the theory that the complaint
would be more effective presented collectively than as indi-
viduals. Several employees, including Kessenich, contributed
to the language of a petition which was drafted and typed
by Kessenich. The petition reads:
During the past two weeks, we have been overloaded
with new work assignments. CleanPower does not give
us enough time to do all of this new work. We try to
do all this new work, but we cannot do a quality job
in the time given. Stop the unfair work assignments!
The petition was signed by Kessenich and four other crew-
members, including Greg Adams. Thereafter, Kessenich so-
licited Griffin to sign the petition, but Griffin declined saying
that he was a management employee and did not want to
jeopardize his position.
On about July 25, Kessenich and Adams discussed the
possibility of going to the building manager, James Gulden,4
to voice their complaint in the hope that Gulden would speak
to the Respondent and help to resolve the problem.
On the following day, Kessenich and Adams went to see
Gulden in his office at the building before work at about
4:30 p.m. Kessenich complained to Gulden about the in-
creased workload with no additional time and explained that
Respondent had been insensitive to the matter and asked
Gulden if he could help them. Gulden said that he would be
seeing Timothy Dittman, president of Respondent, and that
he would talk to him about the matter.
Kessenich also told Gulden that he and Adams were not
the only ones dissatisfied and that several of the crew had
put together a petition protesting the problem. Gulden asked
to see the petition, but Kessenich declined since he felt that
the petition was incomplete since all of the crewmembers
had not yet signed it.
On about July 29, Respondent held a meeting of employ-
ees at the North Water Street building. The meeting began
with employee awards for length of service followed by an
address by James Gambino, Respondent’s operations man-
ager. Gambino told those assembled that he was aware that
the Union was talking to them but that they should be sure
that they get both sides of the story and that all the Union
wanted was to get a contract and take dues out of their pay-
checks.
When he was finished, Gambino asked if there were any
questions and Kessenich raised the matter of having too
much work for the time available on the shift. Gambino told
him that those arrangements were simply the way that the
Company was doing it. Kessenich complained that it was un-
fair to require such a heavy workload and told Gambino that
the employees on the crew had put together a petition and
that they had seen the building manager. Gambino denied
that Kessenich told him that anyone had gone with him to
see Gulden, however Kessenich’s testimony in this regard is
more credible, as noted above. Gambino concedes that he
told Kessenich that he should not have done that and that the
Company had a policy of open communications and that he
should have brought the matter to the attention of manage-
ment. Gambino told Kessenich that if property managers
wanted to deal with such problems, they could do the main-
tenance work themselves. Gambino also stated that by going
to the building manager, Kessenich had jeopardized the
Company as well as the people he worked with because the
owners could look for another contractor to do the mainte-
nance work. The matter was left with Gambino saying that
he would look into the problem and get back to them.
On about August 2 at about 7 p.m., Gambino again visited
the building. Kessenich was cleaning a bathroom when
Gambino came in to speak to him. No one else was present.
Gambino told Kessenich that he had gone around speaking
to others on his crew and that no one seemed to have any
complaints except him. Kessenich asked Gambino how he
expected crew members to respond to a company executive.
Kessenich told Gambino that if he were the only one with
a complaint, he would leave, but he knew that there were
others with the same complaint.
Gambino asked Kessenich what he planned to do with the
petition and Kessenich responded that he planned to get
some more signatures on it and show it to the building man-
ager and the tenants in the building. Gambino told Kessenich
that he was way out of line and that he had no right to bring
the petition to those people and that by so doing it would
jeopardize the jobs of his crew and other building employees.
Further, that if he continued to talk to the building manager,
he would be fired. Gambino denied telling Kessenich that he
would be fired but admits saying that he would be dis-
ciplined. For the reasons expressed above, I credit Kessenich
who then stated that he would do what he felt had to be
done. It appears that neither Gulden nor Gambino was ever
shown the actual petition.
B. Discussion and Analysis
The basic facts are not in dispute. The record discloses
that Kessenich was threatened with discharge for expressing
to Gambino his intention to bring to the attention of a third
party, Gulden, the building manager, an employee petition
about having too much work to do on their shifts.
Section 8(a)(1) of the Act provides, inter alia, that employ-
ees are entitled to engage in protected concerted activity, free
from interference on the part of the employer.
A threat to discharge is clearly interference, but the ques-
tion in this case is whether or not the threat was directed to
activity that was protected and concerted.
As to the question of being protected activity, it is clear
that the preparation, circulating, and signing of a petition re-
lated to the working conditions of employees by employees
is protected activity and that threats directed against such ac-
tivity constitutes a violation of Section 8(a)(1) of the Act.
Liberty Natural Products, 314 NLRB 630 (1994). The instant
case, however, presents another question, since the threat was
not directed at the formulation and circulation of a petition
itself, but was directed to Kessenich’s remark that he in-
tended to bring the complaint and the petition to the attention
of a third party, the building manager who represents the
owners of the building, in an effort to have him intercede
with Respondent in resolving the problem. In my opinion,
this is also protected activity. The record does not disclose
that it was the intention of Kessenich to damage Respondent
498 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
6 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.’’
by causing the building owners to sever their contract with
Respondent and thereafter to contract maintenance services
to a union contractor. It was the testimony of Kessenich that
he and Adams were motivated to speak to Gulden only to
seek relief from the overload work problem. While it is true
that Kessenich’s seeking such third-party intercession may
not have been desirable for Respondent in circumstances
where the Union was actively seeking to organize, the evi-
dence does not support the conclusion that Kessenich’s inten-
tions were in furtherance of that effort. In short, I conclude
that Kessenich and Adams were reaching out to Gulden to
seek his assistance in helping to resolve a work dispute and
this was protected activity. Phoenix Newspapers, 294 NLRB
47, 50 (1989); Allied Aviation Service Co., 248 NLRB 229
(1980).
Having concluded that Kessenich’s intended activity was
protected, was it also concerted? Respondent argues that
Kessenich was speaking only for himself in pursuing this
complaint and that he was not engaged in any activity in
concerted with other employees as required by the Act. I dis-
agree. The facts fully support the conclusion that the over-
work problem was discussed among employee crewmembers.
Thereafter, a petition was drafted and signed by five crew
members. Prior to the conversation in issue on about August
2, Kessenich and Adams both went to Building Manager
Gulden to solicit his assistance with their complaint and that
is what Kessenich told Gambino in his conversation with
Gambino on July 29. While Gambino characterized the com-
plaint as individual to Kessenich, the testimony of Kessenich,
which I have credited, makes it clear that his intention was
to get more signatures for the petition and again present it
to the building manager and to the tenants. This intention
was expressed to Gambino. This would have been protected
activity.
In summary, I conclude that when Kessenich told
Gambino that he intended to bring a petition signed by em-
ployees describing a work-related complaint to the building
manager for the purpose of soliciting the building manager
to intervene with the Respondent on behalf of employees, he
was engaged in protected concerted activity and Gambino, by
threatening him with discharge for engaging in that activity,
violated Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with Respondent Employer’s
operations described in section I, above, have a close and in-
timate relationship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
REMEDY
Having found that Respondent has engaged in, and is en-
gaging in, unfair labor practices, I recommend that it cease
and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
Since it appears that Respondent no longer has a mainte-
nance contract for the 1000 North Water Street building,
posting at that facility would provide no meaningful relief.
Instead, I shall recommend that Respondent be ordered to
mail, by regular mail, copies of the notice provided for here-
in to all employees employed by Respondent at that building
on August 2, the date on which the unfair labor practice
herein occurred.
The General Counsel also requests that remedial relief in-
clude posting of notices at each of the Respondent’s current
building accounts where employees who were performing
cleaning services for Respondent at the 1000 North Water
Street account during the months of July and August 1993
are now employed. In my opinion, the relief set out above
is adequate and the General Counsel’s request for additional
relief is denied.
CONCLUSIONS OF LAW
1. Respondent CleanPower, Inc. is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. By threatening employees with discharge for engaging
in protected concerted activity, Respondent has violated Sec-
tion 8(a)(1) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, CleanPower, Inc., Milwaukee, Wisconsin,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with discharge for bringing
work-related complaints to customers of the Respondent for
the purposes of seeking their assistance in resolving such
complaints.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) In lieu of posting, notices, after being signed by Re-
spondent’s authorized representative, shall be mailed, by reg-
ular mail, as provided for in the remedy section above.6
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
499CLEANPOWER, INC.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT threaten employees with discharge for
bringing work-related complaints to customers of
CleanPower, Inc. for the purposes of seeking their assistance
in resolving such complaints.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
CLEANPOWER, INC.