Duffy, Schnackenberg, and Swygert, Circuit Judges.
Alton-Arlan's Department Store, Inc. requests us to set aside an order of the National Labor Relations Board, in which it was held to have violated section 8(a)(3) and (1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(3), (1), by discharging four employees for engaging in protected activity. The Board's decision and order are reported at 150 NLRB No. 124.
Petitioner operates a nationwide chain of department stores, including one in East Alton, Illinois. Before the East Alton store began operations in August, 1963, the union*fn1 organized the newly hired employees and demanded recognition. Petitioner acceded to the demand, and a bargaining agreement was signed on November 12, 1963. The bargaining unit defined in the contract did not include custodial employees.
Petitioner hired four custodial employees who worked at night when the store was closed. The primary duties of these employees were janitorial; they were, however, required to report any unusual occurrence, such as a fire or break-in.
During the period from the opening of the store until December 1, 1963, Chris Gill, the store manager, reprimanded the custodial employees on a number of occasions for the unsatisfactory performance of their work. His dissatisfaction with these employees finally prompted Gill to discuss with his district supervisor the advisability of subcontracting the work. Thereafter, Gill solicited and received bids from independent cleaning services interested in performing the custodial work, including one operated by Donald Basden.
On December 1, Gill discovered three of the custodial employees sleeping on the job. He told them to punch out immediately and leave the store. The next day Gill called his district supervisor and related the incident. He was given approval to subcontract the custodial work.
Gill testified at the hearing before the trial examiner that on the same day, December 2, he contacted Basden and subcontracted the custodial work to Basden's organization. He testified that Basden said he could not start operations until December 4, and that in order to insure continuity of work until then, he, Gill, withheld notifying the employees of their discharge until the 4th.
In the meantime, unknown to Gill, a spokesman for the custodial employees contacted the union and objected to the fact that the custodial employees were not being paid according to the contract rate. The union business agent, Ray Haggard, discussed the matter with him and later decided that the custodial employees were covered by the contract.
On December 3, in the presence of two of the custodial employees, Haggard called Gill. Haggard testified before the trial examiner that he informed Gill that the custodial employees were complaining because they were not receiving the union scale. He testified that Gill told him that he did not think these employees were covered by the contract, that the store could not afford to pay the union scale and would discharge them if forced to pay the scale. Haggard further testified that Gill said that an outside service would probably do the work at a cheaper rate.
Gill's testimony at the hearing about his conversation with Haggard on December 3 was different. According to Gill, the call was made in connection with the sleeping incident of December 1. He testified that in the course of the discussion Haggard raised the question of contract coverage, that he told him that the custodial employees were not covered by the contract and that in any event the store had made arrangements to subcontract the work. He also said that he gave Basden's name to Haggard and told him that Basden employed union help. Gill further testified that immediately after this telephone conversation he called petitioner's attorney and told him that he had subcontracted the work to Basden, and that he had just informed Haggard of this fact. The testimony of petitioner's attorney tended to corroborate Gill's testimony concerning this latter telephone conversation.
The four custodial employees were discharged on December 4, and replaced by Basden's employees.
In his decision, the trial examiner observed that the petitioner, having found three of the custodial employees sleeping on the job, would have been justified in discharging them, particularly in light of the fact that their prior work had been unsatisfactory. The examiner concluded, however, that the employees' sleeping on the job was used as a pretext by the petitioner for discharging them so that it would not have to deal with the union on their behalf. He ruled that the custodial employees were discharged after engaging in protected activity in violation of section 8(a)(3) and (1) of the act. He also held that petitioner violated section 8(a)(5) by subcontracting the custodial work without first bargaining with the union.
The Board overruled the trial examiner's finding with respect to the section 8(a)(5) violation,*fn2 but adopted his finding of a violation of section 8(a)(3). The Board's order requires petitioner to offer ...