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12/01/72 National Labor v. Ship Shape Maintenance Co.

December 1, 1972




Before the Company obtained the 500-550 building contract, Service Employees International Union, Local 536, AFL-CIO (hereinafter the "Union") had been engaged in a campaign to organize the employees of the predecessor supplier of janitorial services there. When the Company assumed its cleaning duties, the Union altered its organizing campaign to concentrate on the new Company personnel. Within several days, the Union obtained authorization cards ostensibly signed by 17 Company employees.



Wilbur K. Miller, Senior Circuit Judge, and McGowan and MacKinnon, Circuit Judges.


MacKINNON, Circuit Judge.

The National Labor Relations Board (Labor Board) has petitioned this court for enforcement of a remedial order entered against the Ship Shape Maintenance Company (hereinafter the "Company"), which resulted from the Labor Board's finding that the Company had violated certain unfair labor practice provisions of the National Labor Relations Act, as amended .1 The Company has challenged both the sufficiency of the evidence supporting the Labor Board's unfair labor practice determinations and the propriety of a portion of the Board's remedial order. For the reasons discussed below, we grant enforcement of the Labor Board's order, as modified by our rejection of its proposed bargaining order. I

The Company is a Maryland corporation which provides janitorial services in approximately 35 office buildings in Washington, D.C. On October 19, 1969, the Company obtained the contract to clean the building at 500-550 12th Street, S.W. (hereinafter the "500-550 building"), and it commenced work at this location on the evening of October 20. The nature of the Company's business is such that it generally has a high rate of employee turnover. It employs approximately 600 persons at all of its locations. During 1969, it employed about 1800 different individuals, only 300 of whom were relatively permanent employees, to fill these 600 positions. Between January 1, 1970, and July 9, 1970, it employed 149 different persons at the 500-550 building, with an average work complement of 35-40.

On October 24, the Union wrote to the Company, claiming to represent a majority of the 28 statutory "employees"2 at the 500-550 building and demanding recognition. The Company did not respond to the Union's request. Simultaneous with its letter to the Company, the Union filed a representation petition with the appropriate Regional Office of the Labor Board, requesting a representation election among the Company employees at the 500-550 building. The Regional Office mailed notification of the Union's petition to the Company on October 27.

Sometime during November, 1969, Company President James Netterstrom decided to utilize the 500-550 building as a training facility for new employees, before transferring them to other locations3 where the Company performs janitorial services. However, at no time did Netterstrom or the Company's attorneys reveal to the Labor Board or to the Union that the Company considered the 500-550 building to be a training site and that, consequently, employees would work there only temporarily prior to being reassigned to other Company locations. Nor did the Company ever disclose this decision to the realty management firm with which it had contracted to clean the 500-550 building, or to the Company employees working there.

On December 2, the Company and the Union executed a stipulation for certification consent election agreement, which was approved by the Board's Regional Director on December 3, covering the 500-550 building employees of the Company. This stipulation limited voting eligibility to those employees working in the proposed unit4 during the week ending November 22, excluding "any employees who have since quit or been discharged for cause." The election was scheduled for the evening of January 9, 1970, in the basement storeroom of the 500-550 building.

On December 5, 1969, Netterstrom mailed to the Regional Office the list of employees required under the Labor Board's " Excelsior " doctrine.5 This list, which contained 32 names, purported to cover the Company's employees at the 500-550 building as of November 22, 1969.

By January 2, 1970, one week before the scheduled representation election, 16 of the 32 persons named on the Excelsior list had left the Company's employ for reasons not at issue here. On the evening of January 2, 15 of the 16 persons on the Excelsior list who were still in the company's employ worked their final shift at the 500-550 building. Three of these persons quit on that day, and two more were terminated for reasons not relevant here. The remaining 11 persons on the Excelsior list were informed on January 2 that they were being transferred to other Company locations. One other employee who had been hired into the 500-550 building unit after November 22, 1969, and who was therefore not on the Excelsior list or eligible to vote in the representation election, was also included in the transfer order.

All but one of the 11, a supervisor,6 were ordered to report on Monday evening, January 5, to one or another of the other buildings where the Company performed cleaning services. Two of these employees did not report for work as ordered, and they never worked for the Company again. Eight reported to their new assignments on January 5, and were working at their new locations on the date of the January 9 election. Subsequently, one of these eight quit at the end of January, 1970, and another quit in March, 1970. During the week of January 5, 1970, the Company performed its chores at the 500-550 building with a full complement of approximately 30 employees, all of whom had been hired after the November 22, 1969, representation election eligibility date.

On January 9, 1970, the Labor Board's election agent endeavored to conduct the scheduled representation election, despite notification from the Company's attorney that it considered none of the employees on the Excelsior list eligible to vote, due to the fact that all of the named individuals were no longer employed at the 500-550 building. Only one person named on the Excelsior eligibility list ...

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