NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,527, UNITED STATES SERVICE INDUSTRIES, INC. and SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 525, AFL-CIO., (Sep. 30, 1994), National Labor Relations Board, (Sep 30, 1994)

UNITED STATES SERVICE INDUSTRIES, INC. and SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 525, AFL-CIO.

315 NLRB No. 38.Case Nos. 5-CA-21399 and -21691. September 30, 1994 Claude R. Wolfe, Administrative Law Judge..

Before Gould, Stephens and Browning.

Ronald Brown, Stephen C. Bensinger and Angela S. Anderson, for General Counsel. Joel I. Keiler, for United States Service Industries, Inc. Eunice Washington, Larry Engelstein and Virginia I. Diamond, for Service Employees International Union, Local 525, AFL-CIO.

Refusal to Reinstate--Defenses--Activity Protected.--Strikers were entitled to reinstatement by their employer, despite the employer’s claim that some of the employees engaged in unlawful intermittent strikes and that the employer didn’t need the strikers because it already had sufficient manpower. The defenses were not timely raised and, even if the defenses could be considered, the employer introduced no evidence to support its theories. Section 8(a)(3).

Back reference: ¶4045.721.

Strikes and Strikers--Fact Finding--Cause or Nature of Dispute.--On the facts, although strikers engaged in more than one strike against an employer, their activity was protected because there was no evidence of a planned strategy designed to harass the employer into a state of confusion. Section 7.

Interference--Reprisal for Union Activity--Refusal to Reinstate Strikers.--By failing and refusing to reinstate or place on a preferential hiring list its striking employees, an employer interfered with the employees’ right to freely select a bargaining representative. Although the employer attempted to claim that its striking employees did not make an unconditional offer to return to work, a union made such an offer on the employees’ behalf. Despite the fact that the union was not certified as the employees’ representative, it organized and supervised the strike, the employees were paid strike benefits and the union clearly acted as the employees’ agent in dealing with the employer. Section 8(a)(1).

Back reference: ¶3830.11.

Interference--Reprisal for Union Activity--Reward for not Striking.--By giving bonuses to its employees who did not engage in strike activity, an employer interfered with its employees’ right to select a bargaining representative. The employer attempted to justify its actions by claiming that the employees who remained on the job were additionally compensated because they performed extra work, but that reason was demonstrated to be pretextual. Section 8(a)(1).

Back reference: ¶3830.1105.

Interference--Coercive Remarks--Threats and Interrogation.--In an attempt to prevent its employees from striking or otherwise engaging in union organizing activity, an employer committed acts that tended to interfere with the employees’ free choice of bargaining representative. These unlawful acts included threatening discharge or retaliation if the employees engaged in strike activity and interrogating employees regarding the content of a union meeting. Section 8(a)(1).

Back reference: ¶3770.082.

From Text of Board’s Decision

1. The Respondent contends that, because several of the employees struck more than one time, this was an intermittent strike not protected by the Act. We disagree.

The judge stated, and we agree, that “hit and run” strikes engaged in as part of a planned strategy intended to “harass the company into a state of confusion” [1] are not protected activity. However, we also agree with the judge that in the instant case there is no evidence that any such strategy was in place, and that the mere fact that some employees may have struck more than once does not render their conduct intermittent striking. See Chelsea Homes, [1989-90 CCH NLRB ¶16,105] 298 NLRB 813, 831 (1990); Robertson Industries, [1974-75 CCH NLRB ¶15,448] 216 NLRB 361, 362 (1975), enfd. [79 LC ¶11,688] 560 F.2d 396, 398-400 (9th Cir. 1976). We conclude that the Respondent has failed to establish that the employees were engaged in unprotected intermittent striking.

2. In support of its argument that the strikers were engaged in unprotected activity and therefore not entitled to reinstatement, the Respondent in its exceptions relies on Administrative Law Judge Arline Pacht’s decision in Service Employees Local 525 (General Maintenance), Case 5-CB-6558 (JD 85-92). That case is currently pending before the Board on exceptions. At the page cited by the Respondent, Judge Pacht found, inter alia, that the Union violated Section 8(b)(4)(B) by picketing at Washington Square (1050 Connecticut Avenue, N.W.) after November 7, 1990, at times that violated the Moore Dry Dock [2] standards for common situs picketing. Judge Pacht also found that a number ofthe Union’s written materials constituted direct evidence of an unlawful secondary objective. The Respondent argues that, therefore, a finding is required that the employees’ conduct in the instant case was unprotected. We find no merit in this exception.

First, we reject the Respondent’s contention because the Respondent has failed to timely raise this defense. At the hearing on December 7, 1993, more than a year after Judge Pacht’s decision, the judge in the instant case asked the Respondent’s counsel to state his position as to why the strikers were not taken back. Counsel’s reply cited two factors: (1) that some of the employees engaged in intermittent strikes and were not entitled to reinstatement, and (2) that the Respondent already had sufficient personnel in the building. (Tr. 774.) Counsel’s reply, however, made no reference to the employees’ participation in secondary picketing as a defense for failure to reinstate them, nor did the Respondent advance this theory in its brief to the judge. This defense was accordingly not considered by the administrative law judge in this proceeding, and may not be considered for the first time on exceptions to the Board. See Wind-Chester Roofing Products, [1991-92 CCH NLRB ¶16,638] 302 NLRB 878 fn. 1 (1991); Operating Engineers Local 520 (Mautz & Oren), [1989-90 CCH NLRB ¶16,088] 298 NLRB 768 fn. 3 (1990); Yorkaire, Inc., 297 NLRB 401 (1989), enfd. [1989-90 CCH NLRB ¶15,866] 922 F.2d 832 (3d Cir. 1990).

Second, even if the defense had been timely raised, the Respondent has introduced no evidence in this proceeding to support it. Thus, there is no evidence in the record of this case establishing that USSI was not present in the building at the time these employees picketed, or that these employees otherwise participated in unlawful secondary picketing. Accordingly, we cannot find on the record before us that the employees were engaged in unlawful secondary activity.

To the extent that the Respondent may be citing Judge Pacht’s decision in support of its contention that the strikes in the instant case were part of a nationwide campaign and, therefore, constituted intermittent striking, we still find no merit in this exception. As stated above, the mere fact that some employees struck more than one time is not sufficient evidence on which to base a finding of unprotected intermittent striking. On the record before us, we cannot make a finding that the striking employees in the instant case were engaged in a campaign to harass the Company into a state of confusion. [3] Based on the evidence in this case, we agree with the judge that these employees were engaged in a protected economic strike and were thus entitled to reinstatement in the absence of proof that they had been permanently replaced.

3. The Respondent has excepted to the judge’s finding that the employees made a valid unconditional offer to return to work. The Respondent contends that the offer to return to work was conditioned on the employees’ returning to the same job on the same shift and also contends that there is no showing that the strikers designated the Union to make any offer for them to return. We find no merit in this exception.

The August 3 and December 5, 1990 letters which the Union effectively delivered to the Respondent are set out in full in the judge’s decision. Each letter specifically states that it is an unconditional offer to return to work. The offers are not rendered conditional by the subsequent statement that the employees are ready to return to their same shifts and buildings. An application will not be treated as conditional unless it gives the employer reason to conclude that any offer of equivalent employment would be rejected. Continental Industries, [1992-93 CCH NLRB ¶15,545] 264 NLRB 120 (1982); Hartmann Luggage Co., [1970 CCH NLRB ¶22,088] 183 NLRB 1246 (1970), enfd. in relevant part [67 LC ¶12,321] 453 F.2d 178 (6th Cir. 1971).

We find that the Union made a valid unconditional offer to retrun on behalf of the employees. Although there is no evidence that the Union was the certified or recognized representative of the striking employees, the strike was organized and supervised by the Union. Striking employees had shirts and picket signs supplied by the Union. They were paid strike benefits by the Union, and the strike was ended by a union-conducted vote. On August 3, 1990, James Hessey, who was then organizing director for the Union, was accompained by some of the strikers when, prior to attempting to deliver the letter discussed above, he made a verbal offer on behalf of all striking employees to return to work. Under such circumstances, we agree with the judge that the Union clearly acted as agent of the employees in making the unconditional offers to return to work. We find that it was not necessary for the Union to have majority status in order to make these offers. See Marlene Industries Corp. v. NLRB, [98 LC ¶10,300] 712 F.2d 1011, 1017-1018 (6th Cir.1983).

4. The Charging Party has excepted to the judge’s failure to provide a broad cease-and-desist order. We find merit in this exception. In light of the nature and extent of the Respondent’s violations, i.e., its total disregard for the Laidlaw [4] rights of its employees, its commission of unfair labor practices at seven different locations and against numerous employees, its unlawful threats to discharge strikers, its unlawful bonuses to nonstrikers, and its unlawful discharge of an employee in United States Service Industries, [1993-94 CCH NLRB ¶15,333] 314 NLRB No. 8 (June 13, 1994), on the ground that she had “been stirring up the other workers,” it is clear that the Respondent has demonstrated a proclivity to violate the Act and has exhibited a general disregard for the employees’ fundamental statutory rights. Accordingly, we conclude that under the standard of Hickmott Foods, [1979-80 CCH NLRB ¶15,937] 242 NLRB 1357 (1979), a broad remedial order is warranted. [5]