Burns Electronic Security Services

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Burns Electronic Security Services, Inc. and The Con- necticut Union of Telephone Workers, Inc. Cases I - CA-13094 and -CA-13943 September 28, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On March 30, 1979, Administrative Law Judge Robert G. Romano issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief; the General Counsel filed exceptions and a brief in support of the excep- tions and resubmitted its brief to the Administrative Law Judge in support of the Administrative Law Judge's Decision; and Respondent filed an answering brief in response to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- I Respondent has excepted to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 Member Murphy would not find, as do her colleagues, that Branch Op- erations Manager Pinrano's statement, "who is filing these ridiculous charges . .., "constituted unlawful interrogation. Piriano's comment was made after receiving a copy of the charge alleging unilateral changes in the working conditions of the operator-runner employees of Respondent, and as he passed by a bulletin board containing the company notice requiring employ- ecs to respond to burglar alarms with a night stick. As found by the Admin- istrative Law Judge, at that point Piriano understood the basis for the charge, and he blurted out the above remark which was not addressed to any particular employee. In these circumstances, Member Murphy concludes that Piriano's statement was nothing more than an exclamation in the form of a rhetorical question and was not intended to elicit any answer (even though an employee who overheard it came forward and answered that any operator-runner could have filed the charge through the Union). Indeed, the answer to the question-if one were truly sought-could be found on the face of the charge itself. Accordingly, Member Murphy would dismiss the allegation of the complaint alleging unlawful interrogation based on this incident, but she agrees with her colleagues in all other respects. Chairman Fanning and Member Jenkins consider Member Murphy's characterization of Piriano's statements as "not intended to elicit any answer" as speculative and, in any event, irrelevant to the question of whether it in fact tended to coerce employees. tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the Respondent, Burns Electronic Security Services, Inc., New Haven, Connecticut, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. IT IS FURTHER ORDERED that the complaint be dis- missed insofar as it alleges violations of the Act not found herein. DECISION SlIAIEMENI 01) ITll CASE ROBERT G. ROMANO, Administrative Law Judge: These consolidated cases were heard on January 11, 18 20, and May 15, 1978. The charge in Case 1 CA 13094 was filed by the Union on May 9, 1977,' (amended June 16). The initial complaint issued on June 21, allleging several violations of Section 8(a)(1) and (5) of the Act, including an allegation that Burns Electronic Security Services, Inc. (herein Re- spondent or BESSI) had refused to bargain with the Union which had been certified on January 6 in an underlying representation proceeding in Case I1-RC-14565. Respon- dent filed an answer (dated July 5), denying commission of any unfair labor practices and raising certain affirmative defenses. The charge in Case I-CA 13943 was filed by the Union on December 12. An order consolidating cases and complaint in Cases I CA 13094 and I CA-13943 issued on December 30 and alleged various violations by Respon- dent of Section 8(a)(1), (3), and (5) of the Act. At the hear- ing Respondent filed an answer to the consolidated com- plaint (dated January 9, 1978) in which Respondent continued its denial of the commission of any unfair labor practices, and raised (several) affirmative defenses. Follow- ing certain prehearing adjustments, counsel for the General Counsel, at the onset of the hearing, with the approval of both the Charging Party and Respondent, withdrew from the consolidated complaint (with prejudice) certain in- dependent 8(a)(1) and 8(a)(5) allegations. Remaining in complaint were allegations that Respondent had violated Section 8(a)(5) and (1) by refusing to recognize and bargain with the Union notwithstanding that the Union had been certified on January 6; had independently violated Section 8(a)(5) and (1) by unilaterally changing certain working conditions of its New Haven operator-runners on October 26; further, had violated independently Section 8(a)(3) and (1) by the latter changes; and had unlawfully interrogated its employees in violation of Section 8(a)(1). Thereupon, counsel for the General Counsel filed a written Motion for Summary Judgment on the remaining 8(a)(5) and (3) com- plaint allegations,2 but orally expressed willingness to ac- cept a partial summary judgment ruling on the (so-called) test of certification (herein general) 8(a)(5) refusal-to-bar- gain allegation. Respondent registered immediate opposi- tion to any grant of the Motion for Summary Judgment All dates are in 1977, unless otherwise stated. 2 Excepted from coverage of the motion was the remaining independent 8(aKX) allegation of unlawful interrogation of employees by Respondent. 245 NLRB No. 96 742 BURNS ELECTRIC SECURITY SERVICES (subsequently filing written opposition thereto on January 18, 1978). The Motion for Summary Judgment with respect to Re- spondent's October 26 conduct (alleged as independently violative of Section 8(a)(3) and (5)) was denied, it appearing that disputed issues of material and competent fact had arguably arisen between the parties.' The Motion for Sum- mary Judgment concerning the general refusal-to-bargain allegation was taken under advisement, it readily appearing from the pleadings and contentions of the parties, apart from contested changes occurring after the representation proceeding (discussed infra), that Respondent was at- tempted to relitigate in this proceeding matters which it had previously litigated or could have litigated in the earlier underlying representation proceeding. Collateral ruling ex- cluded evidence on matters previously litigated or which could have been previously litigated. Respondent objected and made extensive offer of proof, which was in turn re- jected. Permitted was litigation of Respondent's defense based on certain events occurring after the representation hearing.' The case proceeded to be heard on the resulting issues in accordance with the aforesaid rulings. On or about March 3, 1978, counsel for the General Counsel and Re- spondent filed briefs helpful in further clarifying party posi- tions and in resolving the issues. On April 3, 1978, Respon- dent filed a motion to reopen the record seeking admission of two further documents in support of its defense to the alleged independent violations of Section 8(a)(3) and (5). Following issuance of an Order to Show Cause, the General Counsel filed opposition to receipt of the documents, raising questions of diligence and authenticity; and alternatively requested a due process hearing prior to ruling on admis- sion of the documents. The hearing reopened on May 15, 1978, limited, however, to questions bearing on receipt of the documentary evidence. At hearing the General Counsel continued to oppose admission of the two documents (Resp. Exh. 17, 18). However, on the basis of pleadings and evidence presented at the reopened hearing, the documents were concluded to be relevant, not cumulative and properly authenticated. Ruling on admission was reserved pending careful evaluation of the record on the adequacy of Re- spondent's showing of diligence under all the evidenced cir- cumstances. On June 16, 1978. Respondent filed further brief in support of admission of the documents in evidence. Having now considered fully all premises shown, including the facts as conveniently related in discussion of the evi- dence infra, and the record as a whole, the matter being noted as one within my discretion, and being especially mindful that the matter involved is one in nature pending before me on initial decision, I conclude that sufficient Cf. Ore-Ida Foods, Inc., 164 NLRB 438 (1967). Freedom in management of the business clearly may constitute a defense to allegations of unilateral acts in violation of 8(aX5), Fibreboard Paper Products Corp v. N. L. R. B., 379 U.S. 203 (1964). Holding of violation of an 8(aXS) general refusal to bargain may also not conclusively resolve alleged violations of Section 8(aX3) and (I) in another case, Spruce Up Corporatrion, 181 NLRB 721, 722, fn. 4 (1970). Amalgarmated Clothing Workers ofAmerica v. N.L.R. B., 365 F.2d 898, 904- 905 (D.C.Cir. 1966). For purpose of summary judgment, averments of com- petent fact by Respondent must be viewed as true. 4S. S. Kresge Company, et at., 169 NLRB 442 (1968) modified on other grounds. 416 F.2d 1225 (6th Cir. 1969); Frito Lay, Inc., 177 NLRB 820 (1969). showing of diligence under all the circumstances has been made to warrant admission of the documents at this time. Accordingly, Respondent's Exhibits 17 and 18 are received in evidence. Upon the entire record,' including my observation of the demeanor of the witnesses, and after due consideration of all the briefs, memorandums, positions and contentions herein filed and urged by the General Counsel and by Re- spondent. I make the following: FINDINGS OF FA(CT I. URISDI(CTION Respondent, a wholly owned subsidiary of Burns Inter- national Security Services. Inc. (BISSI), is a Delaware cor- poration and is a nationwide company with branches throughout the United States. Respondent is engaged in the business of the sale, installation, monitoring, answering, and servicing of electronic security systems, including bur- glar alarms, fire alarms, hold-up alarms, water-flow alarms for spinkler systems, and industrial process alarms. Services are provided by electric and electronic sensory devices which BESSI installs at the premises of a customer (or "subscriber") and which automatically transmit signals to a central station where personnel are on duty continuously 24 hours a day to monitor the security service: and depending on the service purchased, to answer alarms. Respondent maintains 22 central and satellite stations throughout the United States. Respondent's operations in the State of Con- necticut include, inter alia. a central station at New Haven. a satellite station at Bridgeport, and an installation and maintenance facility at Hamden. These are Respondent's only facilities involved in this proceeding. The consolidated complaint alleges, and Respondent ad- mits in answer that in the course and conduct of its business operations Respondent annually purchases, transfers, and delivers to its various Connecticut facilities, goods and ma- terials valued in excess of $50,000, which goods and materi- als were transported to its various Connecticut locations directly from States other than the State of Connecticut; and also that it annually furnishes services valued in excess of $50,000 for customers located outside the State of Con- necticut. The consolidated complaint alleges, Respondent admits, and I find, that Respondent is and has been at all times material herein an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act: and that the Union herein is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Summary Judgment Issue I. The motion for summary judgment re the basic 8(aX5) allegation The question to be addressed initially is whether (as the General Counsel urges) the Motion for Summary Judgment I Respondent's unopposed motions to correct transcript, dated March 8 and June 7, 1978, are granted and received in evidence as Resp. Exhs. 20 and 21. respectively. 743 DECISIONS OF NATIONAL LABOR RELATIONS BOARD should be granted regarding the complaint allegation that Respondent has unlawfully refused to recognize and bar- gain with the certified union on certain dates in violation of Section 8(a)(5) and (1); or, whether (as Respondent con- tends) summary judgment is unwarranted and should be denied because Respondent is not now, and has never been, under any obligation to bargain with the Union under Sec- tion 8(a)(5) since the unit is in contravention of the explicit provisions of Section 9(b)(3) of the Act; or secondly, be- cause the Union's certification should no longer be consid- ered valid since local and national operational events have occurred subsequent to the representation case hearing which Respondent contends establishes that the aforesaid unit at New Haven is presently inappropriate in that it is shown unquestionably now that it includes employees who are assigned and functioning as guards. I address Respon- dent's initial position first. The consolidated complaint alleges that the Union was certified on January 6; and that on January 17, February 15, April 6, and June I, the Union requested, and is re- questing, Respondent to bargain collectively with regard to wages, hours, terms, and conditions of employment of cer- tain employees employed at New Haven, Bridgeport, and Hamden, Connecticut, who were previously determined to constitute an appropriate unit6 for the purposes of collective bargaining; and that notwithstanding the Union's prior cer- tification as the collective-bargaining representative of said employees on January 6, that Respondent has refused to recognize and bargain with the Union in violation of Sec- tion 8(aX5) and (1) of the Act. In answer to the consolidated complaint, Respondent first has continued a basic attack upon the (claimed) initial inappropriateness of the unit and hence invalidity of the Union's initial certification. Thus averred as its first affirma- tive defense was Respondent's contention that it was under no obligation to bargain collectively with the Union inas- much as Respondent's operator-runners employed at New Haven and Bridgeport, who were included in the unit previ- ously determined appropriate, were guards within the meaning of Section 9(bX3) of the Act; that the aforesaid unit was initially erroneously determined appropriate in that it had included in the unit employees who were guards together with (acknowledged) nonguard employees; that the Union may not itself (statutorily) represent said guards since it (uncontestedly) admits to membership nonguard employees;7 and that consequently the initial certification of the Union as exclusive bargaining representative of em- ployees in such unit was, and is itself unlawful, in contra- vention of Section 9(b)(3) of the Act. The General Counsel contends that Respondent's first defense that its operator-runners employed at New Haven and Bridgeport were guards within the meaning of Section 6The unit found appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act in the underlying representation proceeding in Case I-RC-14565 (and so alleged in the consolidated com- plaint) is as follows: All employees of the Employer employed at its New Haven, Bridgeportn, and Hamden, Connecticut, facilities, including dispatch operators, op- erator runners, installers, sevice men, inspectors, stock clerks, and typ- its, but excluding salesmen, managerial employees, and supervisors as defined in the Act. The parties in the underlying representation proceeding had stipulated that the Union admits to membership nonguard employees. 9(b)(3) of the Act is a contention which Respondent has raised earlier in the underlying representation proceeding, and at that time was completely considered, litigated, and rejected by the Board by virtue of the Board's earlier denial of Respondent's petition for request for review of the Deci- sion and Direction of Election in Case I-RC 14,565, and denial of Respondent's request for reconsideration thereof. Excepted from present consideration are the complaint allegations and defenses pertaining to the alleged October 26 changes in working conditions of New Haven operator- runners and certain national actions/changes occurring af- ter the representation proceeding on December 1, discussed infra. It is readily observable that the parties herein have otherwise joined issue over the allegation of general refusal to recognize and bargain in violation of Section 8(a)(5) in a typical test-of-certification case which the Board has fre- quently resolved by summary judgment procedure if the circumstances otherwise reveal that no substantial or mate- rial issues of fact are presented.8 In that connection the General Counsel (with persuasive authorities argues that the Board and the courts have con- sistently held that issues which were raised or could have been raised-and thus timely determined by the Board-in a prior representation proceeding cannot be relitigated in the subsequent unfair labor practice proceeding, absent ad- ditional evidence which is (in nature) newly discovered or previously unavailable; or unless a claim of special circum- stances is raised and established in the case.9 However, a claim that special circumstances exist must be based on matters not previously raised before the Board and also must be such as would require the Board to reexamine the decision made earlier in the representation proceeding' 0 The General Counsel also contends, and I agree, that Board precedent is clear that a subsequent refusal-to-bargain alle- gation is directly and sufficiently related to a prior represen- tation case proceeding so as to bar a relitigation of issues raised and already determined in that earlier representation case proceeding." The General Counsel further argues that the Board has itself been generally restrained in finding a qualifying claim of special circumstances in cases brought before it." A recent holding of the Board would appear to be especially significant with regards to the proper disposi- tion of a number of the issues raised by Respondent's mul- l Purnell's Pride, Inc., 234 NLRB 197 (1978); Reichart Furniture Company, 238 NLRB 1578 (1978). 'See Pittsburgh Plate Glass, Company v. N.L.R.B., 313 U.S. 146, 162 (1941). N.L. R.B. v. Certified Testing Laboratories, Inc., 387 F.2d 275 (3rd Cir. 1967), enfd., 149 NLRB 881 (1966); Wentworth Institute and Wenrworth Col- lege of Technology, Inc., 210 NLRB 345 (1974); The Hertz Corporation, 190 NLRB 665 (1971); and Rules and Regulations of the National Labor Rela- tions Board, Sections 102.67(f) and 102.69(c). Io Reichart Furniture Company, supra. n Bay Medical Center, Inc., 224 NLRB 69, 70 (1976); Diocese of Fort Wayne-South Bend, Inc., 224 NLRB 1126, 1227 (1976), reversed on other grounds 559, F.2d 1112 (7th Cir. 1977). I The General Counsel cites as examples: Globe Security Services, Inc., 229 NLRB 460 (1977), involving a loss of customer contract and subsequent transfer of employees out of the bargaining unit; Sur-Tan, Inc., and Surak Leather Co., 231 NLRB 138 (1977), involving unavailability of a witness where it was not established that through the exercise of due diligence, the additional evidence could not have been produced in timely fashion to be considered in the representation case; and Dynamic Machine Co., 221 NLRB 1140 (1975), enfd. 552 F.2d 1195 (7th Cir. 1977), involving successor-em- ployer bargaining obligations. 744 BURNS ELECTRIC SECURITY SERVICES tiple defenses in this proceeding. The Board seemingly has indicated that operational and organizational structure changes which have occurred since a representation hearing may, in given circumstances, be examined on the question of whether they are, or are not "kinds of changes which would require the Board to reexamine the decision it made in the representation proceeding." However, it would ap- pear that the conditions for such reexamination of post- hearing changes are to be strictly limited since notably: (I) even where such evaluation is under consideration, matters previously considered and rejected remain not to be reliti- gated; and (2) even in regard to evidenced subsequent changes (there concerning alleged employee contact and similarity in working hours and training) where such changes are shown of record as not having been promptly brought to the attention of the Board, the changes will not be considered newly discovered, or previously unavailable evidence, and will not themselves then be construed as con- stituting special circumstances warranting the relitigation of issues raised in the earlier representation case.1 Respondent appears to take issue with the General Coun- sel's position that it "cannot relitigate any issue raised in the prior representation case, absent newly discovered evi- dence, previously unavailable evidence, or special circum- stances." While seemingly conceding that a party is not normally entitled as a matter of right to relitigate issues in a subsequent unfair labor practice proceeding that were or could have been raised in the representation proceeding, Respondent appears to contend otherwise, e.g., that it may of right, or the Board should permit it to, introduce "addi- tional" material evidence to establish that a full and fair hearing was not initially held on the issue: to establish that the issue was not fully or conclusively litigated, via an offer of additional (material) evidence not earlier presented, and/ or that such relitigation may be allowed in the discretion of the Administrative Law Judge. The latter point of conten- tion would appear to me to be one quickly disposed of as it is the clear duty of an Administrative Law Judge to follow and apply established Board precedent in such matters.'4 With respect to its basic legal contention that a full hear- ing is an essential requirement, Respondent (as did the General Counsel) looks to Pittsburgh Plate, supra, and ar- gues that the fundamental basis for the application of the basic Pittsburgh Plate doctrine against relitigation is lacking in this proceeding in that there was neither a fair hearing nor a complete litigation of the "guard" issue in the earlier representation case because it has additional (noncumula- tive) crucial evidence not previously presented. Conse- quently, they argue the statutory command for a hearing envisioned by Sections 9(c) and (d) and 10(b) of the Act, as well as by basic "due process" considerations mandates the receipt of the additional material evidence at this time. Fur- ther, a reconsideration of the antecedent unit determined is required on a resulting full and complete record of evi- 13 SOHIO Petroleum Co., A Division of SOHIO Natural Resources Co. (formerly B.P Alaska, Inc.), 239 NLRB 281 (1978). Involved as here was a summary judgment proceeding. Basic contention of the respondent employer therein also was that substantial factual changes had occurred at one of the Employer's facilities since the time of the representation case hearing which warranted a relitigation of the representation case issues as those changes nullified any possible factual basis for the Board's initial unit determination. 14 Fred Jones Manufacturing Company, 239 NLRB 54 (1978). dence. Simply stated, Respondent's position is thus twofold, viz, that a full and fair representation case hearing was not held; and that the hearing that was actually held did not warrant a conclusion by the Board that there had been a "final and conclusive" litigation of the issue of the guard status of its New Haven operator-runners. In support thereof. Respondent has raised specific con- tentions that: (I) It was precluded by a certain ruling of the Hearing Officer in the underlying representation hearing from introducing claimed material evidence regarding the lack of any difference between the duties of it operator- runners at New Haven-Bridgeport and those of other of Respondent's stations whose operator-runners it alleges have consistently been held to be guards in other Board proceedings; and that despite this preclusion of evidence, it was later found by the Regional Director that the duties of the operator-runners at other locations were difficult from those of New Haven-Bridgeport, and their cases were factu- ally distinguished. (2) The earlier record did not contain any evidence whether the operator-runners' duties actually included patrolling or guarding the subscribers' premises. (3) Not considered was crucial evidence about (preexisting) industry standards as established by an independent com- pany (Underwriters Laboratories. Inc., herein UL): nor BESSI's business commitment to operate "UL"-listed cen- tral stations and national policy implementation thereon. In its brief, Respondent relatedly has sought to contend that the sustaining of an objection in the earlier representation proceeding, to the effect that information concerning other BESSI operations was irrelevant to the determination of guard status of operator-runners at New Haven-Bridgeport. had the effect of preventing BESSI from introducing such evidence. Respondent explains that UL standards in the industry were continuously operative on Respondent in the conduct of its UL-listed central station business. Respon- dent contends that compliance with the UL standard was required at each central station for the listed central station to obtain and maintain accreditation as a UL-listed central station and thus to be empowered to provide a certificate to a subscriber that a UL-listed central station burglar (and fire) alarm service was purchased. With the purchase of such certificated alarm service, the subscriber qualifies for substantial insurance premium discounts from insurance companies on the purchase of related burglary (and fire) insurance policies.' Respondent thus claims that continued compliance with UL standards is critical to Respondent's continuation in the UL central station business to which it is substantially committed, since its national and local com- petition regularly provides such service. Respondent argues that it would lose substantial marketability without UL cer- tification. (4) Although the underlying representation case record contained (national)job descriptions of the chief dis- patch operator and of dispatch operators, the (national) job description for the then-existing dispatch patrolman classifi- cation was not introduced in that record although New Ha- ven operator-runners partly performed the functions of a '' The record supports the finding that in significant instances the amount of discounted premium available to the subscriber from the insurance com- pany is sufficient to pay for the complete burglary (and fire) alarm service when contracted from Respondent. 745 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dispatch patrolman. Nor was there evidence of Respon- dent's national central station standard procedure as it then existed, but only a draft of a proposed procedure. Respon- dent further argues that no attempt was made by the Hear- ing Officer to obtain for the record the referenced job de- scription for dispatch patrolman (which as noted, Respondent contends was a vital part of the functions of an operator-runner) although the Hearing Officer had been made aware of that job description and had a responsibility to develop a full record, call for, and introduce such rel- evant documentary evidence. Respondent finally contends this (asserted) failure has resulted in an omission of evi- dence that would have been material to the Board's proper determination of this issue earlier. The General Counsel contracontends that each of the above specific contentions constitutes an attempt to raise issues which were raised, or which could have been raised, in the prior proceeding. The General Counsel further con- tends that the referenced hearing officer's ruling excluding certain evidence was relevant to the Hartford central sta- tion and did not operate to preclude Respondent's timely offer of evidence regarding the effects of "UL" industry standards, asserted related national standards, policy of BESSI, or other material existing national job descriptions. With minor observation noted infra, I agree. In resolving this matter of summary judgment and the parties' contentions, I trace the development of the Union's prior certification. Accordingly, official notice is taken of"*: (a) the Decision and Direction of Election of the Regional Director for Region I, in Case I-RC- 14565 (dated October 20, 1976), in which the latter, on the basis of evidence pre- sented in the earlier representation hearing, determined as a unit appropriate for the purposes of collective bargaining the unit described supra (earlier noted to be the same unit presently alleged in the complaint herein as constituting the unit appropriate for collective-bargaining purposes); (b) Respondent's subsequent petition for request for review on behalf of the Employer (dated November 2, 1976); (c) the Board's order (dated December 13, 1976) denying the Em- ployer's motion for reconsideration of the Board's initial (earlier) denial of review on November 16, 1976; (d) the tally of ballots showing results of the election subsequently conducted on November 18, 1976, in which the Union re- ceived the clear majority (26) of the ballots cast (41) in the election;" (e) the Employer's subsequent objections filed to conduct affecting the results of the election (dated Novem- ber 24, 1976); (f) the Regional Director's Supplemental De- cision and Certification of Representation (dated January 6), in which the Regional Director, upon investigation, 1 As requested by both the General Counsel and Respondent, official notice is taken herein of the record in the underlying representation proceed- ing, Case -RC-14565, as the term "record" is defined in Sec. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosysems. Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1968); Golden Age Beverage Company, 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Intertype Company, a Division of Harris-lntertype Corp. v. John A. Penello, Regional Director, 269 F.Supp. 573 (D.C.Va. 1967): Fol- lenr Corporation, et al., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. i7 Included in the above unit determined appropriate were 23 operators or operator-runners, 18 employed at Respondent's New Haven central station, and 5 employed part-time at its Bridgeport satellite station. found there was no merit to the Employer's objections s and certified the Union as the exclusive bargaining representa- tive of the employees in the aforesaid unit found appropri- ate: (g) the Employer's additional request for review of the Acting Regional Director's Supplemental Decision and Certification of Representative (dated January 24); (h) the Board's denial of the Employer's request for review (dated February I ); (i) the Employer's request for reconsideration (dated February 14); and (i) the Board's denial of same (dated March 1). The General Counsel's Motion for Summary Judgment recited the pertinent facts of the above representation pro- ceeding and the Union's certification: and additionally, the charge, amended charge, complaint, and answer in Case CA- 13094; the charge in Case I-CA 13943, and order con- solidating cases and complaint earlier adverted to herein. As noted, Respondent's answer to the latter was apparently filed at hearing, and was timely considered in connection with the summary judgment issues. Review, Analysis, and Preliminary Conclusions Both the consolidated complaint and the Motion for Summary Judgment recite, the latter with supporting (un- contested) letters of the Union's president addressed to Re- spondent attached, that the Union had requested Respon- dent to commence bargaining on January 17, February 15, April 6, and June I. The motion recites that Respondent, by certain letters of its branch operations manager dated January 31 and February 28 (copies also attached), had refused the Union's request to bargain; and further recites that Respondent, by wire dated June 1, had stated its posi- tion to be: PER OUR 5/31/77 TELEPHONE CONVERSATION IT IS THE POSITION OF BESSI THAT UNIT CERTIFIED BY REGIONAL DIRECTOR IN REPRESENTATION PROCEEDING NO. I-RC- 14565 IS CONTRARY TO NATIONAL LABOR RELATIONS ACT 9(B) AND THAT BESSI WAS DENIED A FULL AND FAIR HEARING, IN VIOLATION OF SAID ACT AND DUE PROCESS OF LAW, BY RULING DEPRIVING BESSI OF OPPORTUNITY TO ESIABI.ISH TlAI 1tlE NEW HAVEN AND BRIDGEPORT, CONNE(IICUT FAACILIIII.S ARE ID).NllI(AL WITH OTHER BESSI FACILITIES W\IIH RESPECIT IO WHICH PRIOR NL.RB DECISION ESTABLISHl HAT OPERATOR RUNNERS ARE GUARDS UNDER NLRA'S 9(B) WHOM CHARGING UNION IS PRECLUDED FROM CERT'IFI(ATION. LETTER TO FOI LOW. In its answer to consolidated complaint Respondent ad- mits generally that commencing January 17 the Union made requests of BESSI to begin bargaining. It has admit- ted generally that BESSI has refused to recognize and bar- gain with the Union, though the form of its answer was to l! The objections involved (in part) claimed misrepresentations which were determined by the Regional Director to be without merit and were reviewed by the Board under the then applicable standards of Hollywood Ceramics Company, Inc., 140 NLRB 220 (1962) (being received prior to Shopping Kart Food Markel, Inc., 228 NLRB 1311 (1977) issuance). Thus, the Board's reaf- firmance of Hollywood Ceramics, supra, in General Knit of California, Inc., 239 NLRB 619 (1978), would appear to raise no further issue for review herein. I note the objections referenced that employer had made the addi- tional request for reconsideration (of its earlier petition for review) previ- ously noted as also denied by the Board on December 13, 1976. 746 BURNS ELFC'TRIC SECURITY SERVICES deny its refusal to bargain on the dates specified. In it writ- ten opposition to summary judgment. Respondent expli- cated its contention that the January 31 and Fehruary 28 letters do not establish that at that time BESSI was flatil refusing to bargain without explanation. Respondent's let- ters, otherwise uncontested, establish that BESSI had ad- vised the Union of its pursuit in the representation case of a (lawful) further appeal, and subsequentl for a reconsider- ation of its position by the Board; and that it had respect- fully requested on each occasion that the Union await the Board's determination of the representation matter. Re- spondent also notes that its statement of position. as related in the wire of June 1, was addressed to the National Labor Relations Board, Region 1, and (presumably) not to the Union. Nonetheless, as observed. Respondent does not con- test that its position is one of refusing to bargain with the Union, though its answer to the complaint and responses to motion have left indeterminative precisely when it would concede that it had initially commenced refusing to bargain with the Union following demand, in order to test the un- derlying certification in an unfair labor practice proceeding. Be that as it may. I take official notice of the fact that on March 1. 1977, the Board had denied the Emploxer's la.st request for reconsideration in the underlying representation proceeding. Respondent did not contest the authenticity of its manager's February 28 letter in which, inter alia. the Union had been advised by Respondent that the Company would be in touch with the Union following the determina- tion by the Board of the representation matter. The finding is warranted that the Union had renewed its request for bargaining by letter of April 6. The Union therein recited the fact of Employer's exhaustion of all its representation case appeals, and requested that Respondent begin negotia- tions without delay. Finally, in its brief, Respondent admits that it did not respond to the Union's requests of April 6 and June I for commencement of bargaining due to Re- spondent's objection to the unit determined before to be appropriate, a position essentially confirmed by the admis- sion contained in its wire of June . Under all the above circumstances, I am wholly persuaded that the factual find- ing is fully warranted that by as early as March 1, and in any event no later than April 6, Respondent had begun refusing to bargin with the certified Union after having ex- hausted all its representation case appeals and that it then did so to test the Union's certification as the exclusive rep- resentative of the unit determined appropriate.' The ques- tion remains, was it refusal to recognize and bargain with the certified union at that time lawful for any of the multi- ple reasons it asserts. Respondent's contention that it was not provided a full and fair hearing in the underlying representation proceed- ing, and/or that the issue of guard status of its operator- runners was an issue not conclusively litigated must fail on analysis of applicable Board precedent and competent fact thereunder. Thus, a review of the Employer's earlier peti- tion for request for review reveals that BESSI has already advanced its numerous contentions to the Board in that proceeding. Generally, Respondent has contended on ear- lier review that a substantial question of law or policy was raised because of claimed departure by the Regional Direc- " Foarris Mines, 239 NLRB 166 fn. 3 (1978). tor from officially reported Board precedent: that a sub- stantial factual issue was clearlv erroneous on the record and was prejudicial to the Emploer: that a prejudicial rul- ing had been made: and that there were compelling reasons presented for reconsideration of an important Board rule or polioc. With regard to Respondent's contentions in point I - pra, resting essentially on the claim of a prejudicial ruling of the Hearing Officer, the content of Respondent's earlier re- quest for review reveals that BESSI has alread sought a specific review by the Board of the ver! sale (contended) prejudicial ruling of the Hearing Officer as is ought to be raised herein.") Also ready raised for the Board's consider- ation on review were Respondent's related contentions that all of the legal authority advanced bh BSSI had not been duly considered and that specificall3 appearing not consid- ered was an earlier decisional precedent b the Regional Director wherein BESSI's operator'guards, operator 'main- tenance/guards. and operators emplosed at Hartf;rd- Springfield had been concluded to be guards and an appro- priate union (exclusively representing guards} therein certi- fied: and the further collateral contentions made that an untenable position has resulted for the Emploser. namely that BESSI must deal with the latter employees at Hart- ford-Springfield as guards, and now deal with its operator- runners at New Haven-Bridgeport as nonguards. although (it contended) these employees performed the same duties and functions. As to point 2 supra., it is as equally evident that review was previously sought by BESSI on its ques- tioning of the specific finding of the Regional Director, in his Decision and Direction of Election, i:. "there is no evidence to indicate that operator runners patrol the sub- scriber's premises at any time or stand guard at an such premises": together with related contentions raised for re- view that such a finding was erroneous. and inconsistent with other findings simuitaneously made by the Regional Director, essentially in subject areas of operator-runner's duties in assisting police in search of premises (both inside and outside), occasions for continued presence of operator- runners at customers' premises, and in regard to their duties in checking out intruders, and in securing the premises. Specifically, review was requested of asserted record evi- dence about the operator-runner that: He opens up the premises for the local authorities he assists in the search of the premises. he could or could not assist in the capture if there is an actual breakin. After he makes a report out if there is an actual breakin. He. after the fact, if the police department decides there is no breakin he could stand bh on behalf of the subscriber until the subscriber conmes down to ascertain whether there was a breakin. BESSI also requested review by the Board of its contention that the Regional Director, in reaching his decision had 2 The specific ruling involved the hearing officer's sustaining an obcin when it was made by opposing counsel to the relesancs o Bt-SSI's inquir as to the similarity of facilities and operations of BESSI's tlaritord ('Con- necilcur) central station and Springfield (Massachuslts) satellite sation to BESSI's New Haven-Bridgeport staions These tfur tacliles comprised Re- spondent's ('onnecticul and western Massachusettl branch which were un- der the operational cntrol of Branch Manager Eugene Ptaino. the - lne,, tn the sland at the lime. 747 DECISIONS OF NATIONAL LABOR RELATIONS BOARD placed undue reliance upon a humorous response by one of the Employer's witnesses that it an operator-runner came upon an intruder in the premises "He'd probably run the other way." Finally, said review shows BESSI had also raised claims (a) that the primary function of its operator- runners at New Haven and Bridgeport was clearly the pro- tection and guarding of the subscriber's premises; and (b) that in responding to alarms they face the potential for per- sonal confrontation while protecting a subscriber's prem- ises. On the basis of the above review of the pertinent records of the prior representation proceeding it seems quite clear that it simply is not open to serious question that the status of BESSI's New Haven-Bridgeport operator-runners as contended guards was a principal (if not the) issue of litiga- tion in the underlying representation proceeding. Contrary to Respondent's contentions, I also conclude and find that Respondent claimed prejudicial ruling of the Hearing Offi- cer, and the contended ramifications. Further, BESSI's con- tentions concerning the operator-runners' part in the search and patrol of the premises, and related contentions of their claimed basic responsibilities in protecting a subscriber's premises, with potential of confrontation with intruders, were issues definitively raised in the prior request for review by the Board; were considered on the basis of the record previously made therein; and were all determined adversely to Respondent by virtue of the Board's denials of BESSI's petition for request for review and for reconsideration. It is further found that under applicable Board precedent those issues are not to be deemed properly litigable in this pro- ceeding." Respondent's arguments on (3) and (4) infra must also be concluded as not persuasive. Thus Respondent's ar- gument that its "additional" evidence (3) generally as to UL standards, BESSI's business commitment, and related national policy, and point (4) regarding the omitted na- tional job description for dispatch patrolman, as presently reviewable on the initial unit determination, must wholly fail under existing Board precedent no matter what allure may be generated on the surface in raised claims of such being "crucial" evidence. This must be concluded since similar evidence of these matters was unquestionably avail- able earlier." In that connection I find that there is merit to the General Counsel's contention that Respondent had full opportunity to present all such available evidence with the exception, of course, of that evidence reasonably encom- passed within the exclusionary ruling of the Hearing Offi- cer. Thus, with the exception of the excluded evidence as to the facilities and operations of Hartford-Springfield, Re- spondent clearly had full opportunity at that earlier time to present all the evidence it deemed material and which it seeks to present at this time, including evidence as to UL requirements and its own national commitment and na- tional policy on the operation of UL-listed central's sta- 21 Sohio Petroleum Co., A Division of Sohio Natural Resources Co., supra. See also Sec. 102.67(f) of the Board's Rules and Regulations which specifi- cally provides in pertinent part "Denial of a request for review shall consti- tute an affirmance of the Regional Director's action which shall also pre- clude relitigating any such issues in any related subsequent unfair labor practice proceeding." 22 Ore-Ida Fodds, Inc., 164 NLRB 438, 439 (1967); E-Z Davies Chevrolet 161 NLRB 1380 (1966), enfd. 395 F.2d 191 (9th Cir. 1968). tions. As to the hearing Officer's ruling excluding certain evidence about the contended similarities of facilities and operations at Hartford-Springfield, that very ruling was a matter specifically raised before the Board in BESSI's re- quested review and, consequently, has itself already been determined by the Board not to warrant review of the ap- propriate unit determination previously made. In any event, that ruling itself is not a matter properly litigable before me. Respondent seemingly contends for the first time well after the final Board review in the representation pro- ceeding,2' and the General Counsel denies, that Respondent earlier was denied a full and fair hearing because it was by such prejudicial ruling precluded also from presenting ma- terial evidence of UL standards and BESSI's related na- tional policy and its implementation elsewhere. This con- tention strikes me as a matter governed by prior Board review and precedent and, thus, improperly litigable in this proceeding. However, in the event I take too narrow a view and am in error, e.g., on a due-process consideration under Pirtsburgh Plate. supra, at the request of the General Coun- sel I have reviewed the ruling of the Hearing Officer in the earlier proceeding, excluding certain evidence. I find myself entirely in agreement with the General Counsel's conten- tions in that regard as well. Therefore, I conclude and find that even if such be a (due-process) issue raisable before me at this time, no reasonable construction of the scope of the Hearing Officer's ruling under consideration would warrant a conclusion that that ruling had prevented a direct offer of evidence regarding UL standards governing the alarm in- dustry, or the extent of BESSI's commitment to operation of UL listed central stations; or for that matter, an offer of evidence of any BESSI established national standards for the operation of its UL certified central stations as is now sought to be presented (untimely) for a bearing in its own right on the initial determination of the appropriate unit. I similarly find unconvincing, and thus would reject. assum- ing that the Hearing Officer was aware of a BESSI claim of special significance attached to the job description of dis- patch patrolman (assuming further that it had then been made relevant), Respondent's additional contention that it, which unquestionably was aware also of the existence of that evidence, reserved on it, but did not thereafter seek to produce the document was in some unspecified manner on that account thereby denied a full and fair hearing in the matter, or that an inconclusive hearing in law resulted. Re- spondent would seemingly alternatively seek to explain the omission of such evidence from the earlier representation record, not on a qualifying basis that the referenced evi- dence was in some manner newly discovered or not previ- ously available (thus acknowledgable by me), but with con- sideration advanced seemingly for consideration of such as special circumstances that the representation proceeding was but 109 pages of which only some 40 pages were actu- ally addressed to the duties and functions of operator-run- ners as guards; and with further argument that the bulk of the transcript had related to (many) stipulations, substan- 1" Respondent's prior petition for review otherwise raised claims only that BESSI was thereby precluded from presenting relevant evidence bearing on the history of collective bargaining in the industry. I do note there was an oblique reference in the representation hearing to different rules from under- writers on what the Employer was to do on different alarms. 748 BURNS ELECTRIC SECURITY SERVICES tially to litigation of the supervisory issue of the status of chief dispatch operators (or shift supervisors) and their re- liefs, an issue itself also ultimately stipulated. Respondent thus argues, as a result, that no evidence was adduced con- cerning "UL" standards and that the issue was simply one not fully litigated. I find this argument wholly unpersuasive as involving matter clearly not reviewable by me.2' Accordingly, I now conclude and find that the contended prejudicial ruling of the Hearing Officer and all its con- tended ramifications appropriate herein. 5 It thus appears that in regard to all of the above matters Respondent has raised and attempted, as the General Counsel has herein contended, to raise issues which were specifically consid- ered and earlier resolved by the Regional Director and by the Board in the underlying representation case; or seeks to raise issues in certain of the above respects that it could have earlier timely litigated.2 The Board's prior review of such exceptions is binding on the Administrative Law Judge, cf. M. N. Landau Stores, Inc., d/b/a Clark s Discount Department Store, 175 NLRB 337, 338 (1969). Thus, once the General Counsel has shown that the Union was certi- fied and that Respondent subsequently requested and re- fused to bargain, the General Counsel has established a prima facie case of violation of Section 8(a)(5) of the Act. The burden then shifted to Respondent to establish that the circumstances upon which the underlying unit was found appropriate no longer exist and that the unit is no longer appropriate, Frito-Lay, Inc., 177 NLRB 820, 821 (1969) 'An administrative law judge simply has no authonty to review the Board's final disposition of representation issues or to question its conclu- sions made on an existing record LTV Electrosystems, Inc.. 166 NLRB 938. 940 (1967); enfd. 388 F.2d 683 (4th Cir. 1968). zs BESSI's contentions about the operator-runners' part in the search and patrol of premises; their claimed basic responsibilities in protecting a sub- scriber's premises with the potential of confrontation with intruders; the matter of UL standards in the industry in regard thereto; the national job description of dispatch patrolman, and other related matters were all matters which were, or which could have been timely presented and determined (without delay) in the pnor representation proceeding leading to the unit determined. S. S. Kresge Company, et al., 169 NLRB 442, 443 (1968). modi- fied on other grounds, 416 F.2d 1225 (6th Cir. 1969). X Other cases urged by Respondent in support of certain of its above contentions would appear to be also inapposite or not controlling precedent before me. Thus, unlike the instant case, where BESSI's contentions about its Hartford (guard) unit and New Haven (nonguard) unit have already been presented to the Regional Director and the Board on requested review and determined adversely to BESSI, the Board in Burlington Food Stores, Inc., and Delaware Food Stores, Inc., 172 NLRB 781 (1968) first learned of the potential of a conflicting unit determination in the employer's operations after having sought enforcement of its remedial order issued upon earlier finding that that employer had refused to bargain with a union in violation of the Act. With regard to N.LR.B. v. HowardJohnson Company, 398 F.2d 435 (3d Cir. 1968) and N.LRB. v. Groendyke Transport, Inc., 372 F.2d 137 (10th Cir. 1967), cert. denied 387 U.S. 932, also relied upon by Respondent, the respective courts have differed from the Board's view of the sufficiency of the facts and/or law found applicable in those cases. With due respect to the holding of circuit courts, which from time to time may find themselves in disagreement with Board, I am nonetheless bound to follow existing Board (and Supreme Court) precedent. It has been long established to be the trial court's duty to apply established Board precedent which the Board itself, or the Supreme Court, has not reversed, Insurance Agents' International Union AFL-CIO (The Prudential Insurance Company of America), 119 NLRB 768, 773 (1957); J. Ray McDermott d Co., Inc., 227 NLRB 1347, 1349 (1977). Consequently, the above cases are not viewed as supportive precedent for the positionspresently urged. I would note parenthetically that in any event the Howard Johnson case would also appear readily distinguishable inasmuch as there can be no serious question entertained that the issue of guard status of operator-runners was a principal, if not the, issue previously litigated before the Board. (and see cases cited in fn. 8). Since unit issues (scope and composition) which were raised or could have been raised. may not be relitigated in a related unfair labor practice proceeding absent newly discovered or previously unavail- able evidence or special circumstances. Respondent must meet its burden of showing that the circumstances upon which the underlying unit was found appropriate no longer exist and that the unit is no longer appropriate with evi- dence which is in nature either itself newly discovered or previously unavailable, or with a raised and established qualified claim of(other) special circumstances, the applica- tion of which calls for that result. While, as earlier noted, an administrative law judge is without authority to review the Board's final dispositions of the representation issues or to question its conclusions made on the existing record. LTI Electrosvstems, Inc., supra, and while the Board's findings and conclusions in a prior representation case existing at the time of such decision are binding in a subsequent unfair labor practice case, the Board has otherwise pointed out that its decision tests actions and events in the circum- stances and relations existing at the time of the Board's decision, Bay Medical Center. Inc., 239 NLRB 731 (1978). Indeed the Board had earlier held that an administrative law judge should have received in evidence documentation which had come into existence after the Board's unit deter- mination (which evidence the Board has also noted may or may not amount to new matter which requires a different conclusion) and consider it in relation to the continued ap- propriateness of the unit, S. S. Kresge Companyl, supra. No serious problem is thus to be envisioned with identifying and addressing newly discovered or previously unavailable evidence whether such evidence appears relevant to an is- sue which was previously raised, or to one which could have been raised in the earlier representation proceeding. but was not because the evidence was not earlier known or available. The qualifying claim of "special circumstances." being in the disjunctive of newly discovered or previously unavailable evidence, presented greater complexities (at least in my view initially and prior to SOHIO Petroleum Co., Division of SOHIO Natural Resources Co. (fornmerlv B.P. Alaska, Inc.). 239 NLRB 281 (1978).27 with respect to evidence otherwise admissible, but also with some apparent relevance to an issue of the earlier proceeding on which material evidence was available but not presented. In any event, it would appear that claims of "special circum- stances" by their very nature be approached case-by-case. In view of earlier findings as to the Union's certification. demand for bargaining, and Respondent's refusal, the granting of a summary judgment on the allegation that Re- spondent has generally refused to recognize and bargain with the Union, would appear fully warranted unless, as Respondent would urge, there is previously unavailable e i- dence (e.g., a new national job description applicable to New Haven operator-runners)," or a claim of "special cir- cumstances" is successfully raised and established. As noted by the General Counsel in cases cited, supra, and in other 27 Decided November 14, 1978. Cf. Ross Poria-Plant, Inc., 166 NLRB 494 (1967), enfd. 404 F.2d 1180 (5th Cir. 1968). 28 On December 1, Respondent's national director. dilsion of electronics. issues a new national job descnption for "Operator, Patroller (Runner)" dis- cussed more fully ira. 749 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cases,2 9 the Board has been constrained to find that qualify- ing "special circumstances" exist. Thus, recently in the SOHIO Petroleum Co., case, supra, the Board found that though a certain change had occurred since the representa- tion hearing, it had not been brought to the Board "within a reasonably short period of time after its discovery' and/or implementation," and was not to be considered as newly discovered or previously unavailable and did not constitute "special circumstances." While not so finding in the SOHIO Petroleum Co., case, the Board did indicate that post-hearing operational and structural changes may in a given case present changes which might involve "the kinds of changes which would require the Board to reexamine the decision it made in the representation proceeding." Respondent has specially advanced in answer as a sepa- rate affirmative defense that: "Since the date of hearing held in the underlying representation proceeding Respon- dent has issued a new policy procedure (national job de- scription) setting forth the duties, qualifications and respon- sibilities of the Operator/Patrollers (Runners) at all Respondent's facilities in accordance with Respondent's overall established standards existing nationwide, as a re- sult of which Respondent asserts there cannot be any valid issues if any heretofore existed, that operator-runners at Re- spondent's branches in Connecticut are guards within the meaning of Section 9(b)(3) of the Act." Respondent expli- cates the above national action as one based on its practice of periodically upgrading its procedures in accordance with standards set by UL. However, Respondent frankly ac- knowledged that it seeks on such basis to now alternatively raise before the Board a question of continued appropriate- ness of the unit previously determined appropriate. Additionally, and apart from the latter Respondent ad- vanced at the hearing, the (then) seemingly novel conten- tion that relevant, material, and admissible evidence be of- fered in its defense of the other independently alleged violations of Section 8(a)(3) and (5) as a case procedural development should be construed as giving rise to "special circumstances" within the Board's rules and applicable case precedent. Thus, in defending the above allegations of 8(a)(3) and (5) violations, Respondent proposed to prove that there were no actual changes in working conditions for operator-runners at New Haven on October 26. Respon- dent further sought to prove that its actions at that location did not under the attendant circumstances involve manda- tory subjects of bargaining or were not discriminatory be- cause Respondent was always required by UL to have all personnel responding to burglar alarms (including New Ha- ven operator-runners) to be dressed in full uniform and be armed with night stick or pistol. Respondent urges that on the basis of such evidence the initial determination of the appropriate unit should be reevaluated, or alternatively, the admitted evidence should be at least considered in connec- tion with the issue of the continued validity of the prior unit determination and the Union's certification, especially where statutory exclusions are involved. Simplified the General Counsel continues to assert, contrary to Respon- dent's contentions, that as alleged, Respondent's conduct of i2 Sohio Petroleum Co., A Division of Sohio Natural Resources Co.. supra. S1. Vincent Hospital, 238 NLRB 1525 (1978). October 26 involved changes in working conditions that violated Sections (a)(3) and (5): and argues Respondent's national action of December , as made applicable to New Haven, is but a further attempt to litigate the basic matter previously litigated, and a further evidence of Respondent's general refusal to bargain with the Union. The res judicata issue, or the proper denial of any proba- tive effect of evidence which arises in an independent 8(a)(3) and (I) context (or which might arise from an in- dependent 8(a)(5) context, if such were based on compe- tently disputed fact) in respect to a contemporaneously liti- gated 8(a)(5) issue of general refusal to recognize and bargain, was raised, but as I construe the case holding, not decided by the Board in Ross Porta-Planlt Inc., supra at 495."' However the Board has seemingly approved language of an administrative law judge to that effect in a later case. See Eidal International Corporation. 224 NLRB 911. 912- 913 (1976), and cf. footnote 2 at 911. After due deliberation, I am constrained to reject Re- spondent's urgings that evidence offered in defense of in- dependent allegations of changes discriminatory in viola- tion of Section 8(a)(3). and unilaterally accomplished in violation of Section 8(a)(5) may be also considered by an administrative law judge as a "special circumstance" aris- ing out of case procedural development, for any relevant (double) effect of the evidence in a manner such as to con- stitute in essence a relitigation of the unit initially deter- mined appropriate. The approach urged by Respondent ap- pears to me to be essentially contrary to already well established Board precedent that evidence, which in nature was unquestionably earlier available but not presented for timely consideration, is itself not matter properly triable or litigable in a subsequent unfair labor proceeding on a re- lated 8(a)(5) allegation; involves precedent that ought not to hinge on an accidental exigency of contemporaneous hearing would appear as well to be disruptive of final ad- ministrative considerations in regard to representation unit proceedings important to effecting the purposes of the Act: involves in its essence basic considerations foreclosed to the administrative law judge by Section 102.67(f) of the Board's Rules and Regulations: and does not qualify as a "special circumstance" under applicable Board precedent thereon because resting on matter not timely brought to the attention of the Board. Pittsburgh Plate Glass Company v. N.L.R.B.. supra,' E-Z Davies Chevrolet, supra; Ore-Ida Foods, Inc.. supra; Sohio Petroleum Co.. A Division of Sohio Natural Resources Co., supra; LTV Electrosystems, Inc.. 166 NLRB 938 (1967); and Bay Medical Center, Inc., 239 NLRB 731 (1978). Post-hearing documentary evidence is to be compatibly considered on changes. S. S. Kresge Com- pany, supra. 0 In the Ross Poria-Plant case the trial examiner concluded that Sec. 102.67(f) of the Board's Rules and Regulations did not preclude litigation of the supervisory status of department heads (previously considered in any underlying representation proceeding) in an 8(aX3) and ( I ) context, although also concluding that as far as its effect the concomitantly heard 8(aX5) alle- gation he could not "look behind" the Board's certification of the Union and concluded that the Respondent had violated Sec. 8(aX5) by refusing to rec- ognize and bargain with the Union as alleged. The Board found it unneces- sary to resolve that issue on the General Counsel's exceptions concluding. contrary to the trial examiner's finding, that the department heads were not supervisors. 750 BURNS ELECTRIC SECURITY SERVICES To consider Respondent's final contentions that if none of its "additional" evidence arguments may prevail at least its national operational upgrading actions on December I1' and its local management actions of October 26, correction any local laxity in required operation of a UL listed central station are such as to constitute the "kind of change" or "special circumstances" of change respectively, calling for evaluation of the continued validity of the unit previously determined appropriate (re inclusion of operator-runners who now work as guards) and consequently of the contin- ued validity of the certification, calling for a denial of sum- mary judgment on this allegation. In that regard Respon- dent has argued generally that the Board itself, upheld by the courts, has not felt itself bound by prior representation findings and has allowed relitigation of issues that it has decided warrant reconsideration such as supervisory status. whether or not the prior determination is shown to have been erroneous. Respondent also contends that the Board is the more likely to recognize such a situation where "a disputed matter involves a legal, as distinguished from mere policy issue, and [the Board] will reconsider such underly- ing legal premise if we believe our earlier resolution to be incorrect" for "the public confidence in the administrative process requires a tribunal to admit its errors and not push a matter to its erroneous conclusion under the guise of pro- cedural regularity."3' Merit aside, such argument and pre- sentment in support of same, is to be more appropriately addressed to the Board.' Before resolving the efficacy of Respondent's final con- tentions placed in opposition to grant of summary judg- ment on the issue of Respondent's general refusal to bar- gain, it would clarify to first address the remaining complaint allegations and related pleadings and to resolve. as necessary, the disputed material facts. 1 The General Counsel filed a post-heanng motion to amend the consoli- dated complaint that also alleged that the new December national position description requirements (viz., required uniforms, carrying fire arms, and ap- prehension of intruders on customer premises) for the New Haven and Bridgepor operator-runners constituted an additional unilateral change and was in violation of Sec. 8(a(5). The motion was subsequently withdrawn for reasons which appear of record. Thus no finding is warranted that Respon- dent's national conduct of December I was independently violative of the Act. Of course. that evidence is to be considered insofar as relevant to the alleged violations specified in the complaint. '2 Respondent would reply on: Suburban Homes Corporation, 173 NLRB 497 (1968); Morrison Cafeteria Company, Inc., Morrison Food Service of Ala- bama, Inc., 179 NLRB 593 (1969), affd. 449 F.2d 350 (5th Cir. 1971); Spruce Up Corporation, 181 NLRB 721, 722, fn. 4 (1970); 4malgamated Clothing Workers of America, AFL-CIO, 365 F.2d 898. 904 905 (D.C.Cir. 1966); and Burlington Food Stores, Inc., and Delaware Food Store. Inc., 172 NLRB 781 (1968). However, I would note, even at this juncture. that these cases simply do not carry the day for Respondent where the issue of fact raised and litigated bears upon the unit question (scope or composition) in a related 8(aXS) refusal to bargain unfair labor practice proceeding. Thus, excepting Spruce Up. supra, Burlington Food, supra, the other cases cited did not in- volve attempted litigation of unit issues in a related 8(aX5) refusal to bargain unfair labor practice proceeding. Indeed that type case, in my view, was reasonably indicated as one distinguishable in Spruce Up, supra, at 722. fn. 4; and in Suburban Homes, supra at 497, fn. ; and unquestionably so refer- enced by the D. C. Circuit Court in Amalgamated Clothing, supra. at 904. Burlington Food supra, has earlier been shown distinguishable as inapposite on its facts. '" Respondent would rely on American Broadcasting Companv, a Division of American Broadcasting-Paramount Theatres, Inc, 134 NLRB 1458. at 1459, fn. I (1961). 1 LTV Electrosysiems, Inc.. supra. cf. Tanferan Park Food Purve'or's Council and the Hap Smith Compan,, 239 NLRB 1061 fn. 3 (1978). B. The Remainig A l/ered 'tOilttion,, ofl' S'cilion.s (l)(lI) (3), and (5) I. The allegations and part contentions The complaint alleges that on October 26 Respondent changed the working conditions of operator-runners em- ployed at New Haven by requiring that to ansxwer calls in uniform, including cap, shield and badge, and to carr a night stick or pistol: that the ftoregoing conduct constituted unilateral changes in violation of Section 8(a)(5) andl (1): and separately alleges that the same conduct violated Sec- tion 8(a)(3) and (I).' It is further alleged Ihat t he Respon- dent unlawfully interrogated its emploees on December 14 in violation of Section 8(a)( I). It is General Counsel's position that given the nion's prior certification as collective-bargaining representative of the employees in the appropriate unit, including operator- runners, any unilateral changes subsequently effected in the working conditions of the New Haven operator-rurlners are in direct contravention of Respondent's established obliga- tion to bargain with the Union and are, as a matter of law. violative of Section 8(a)(5).31 With regard to the indepen- dent 8(a)(3) allegation, the complaint specifically alleged that the changes in working conditions were accomplished to disqualifying New Haven operator-runners as guards and thus preventing them from joining or assisting the Union or engaging in other protected concerted activitv for the purpose of collective bargaining or other mutual aid or protection. The General Counsel also argues that these changes violated Section 8(a)3) because good faith busi- ness justification for their occurrence was then absent: and that the discriminatory purpose of Respondent is effectively revealed in the unexplained timing of the initiated changes. as well as in the animus displayed by Respondent thereafter in unlawfully interrogating its employees concerning who had filed the unfair labor practices (in regard to these changes) against Respondent. The General Counsel further contends that the changes were made to undermine and effectively destroy the bargaining obligation of the estab- lished unit: and, even if not shown as so motivated, should be concluded as so inherently destructive of the bargaining unit as to be concluded violative of Section 8(a)(3) on that account.' Contrary to the General Counsel, Respondent contends that it had substantial business reasons for its actions; de- nies that it has unlawfully interrogated any employees: and contracontends that the General Counsel has wholly failed to produce any evidence which would warrant a finding of animus on the part of Respondent towards the Union. It is essentially Respondent's position that as a nationwide com- pany it has been engaged in the business of providing cen- " Although the independent 8(a)(3) and (5) allegations only refer to opera- tor-runners at New Haven. the issues were fully litigated concerning opera- tor-runners employed at both New Haven and Bridgeport 'IGeneral Counsel relies on N. L. R. B e Benne Kat. etc. d/h a H'illhm.- burg Steel Products Co., 369 U.S. 736 (19621; and .N'. R B v. 4'.i,ster Dii- sion of Borg-Warner Corp., 356 U.S 342 (1958)1 "General Counsel relies on Pilot Freight (arrier. Inc,. 221 NLRB 1026 (1975). reversed, 558 F.2d 205 (4th Cir. 1977). cerl denied 434 US 1011 (1978). and Am.Del-Co. Inc and Compton Setrlwe C,,mponi, Jointly, 225 NLRB 698 (1976). 751 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tral station alarm services for the protection of its custom- ers' premises which it does through operation of 22 central and satellite stations located throughout the country, all of which (including New Haven-Bridgeport stations) are UL listed or certified, save one, the last being under active evaluation for UL certification in 1978. As stations are qualified individually, BESSI must meet and maintain stan- dards of operation and performance at each of its UI. listed stations as prescribed by UL to obtain and maintain indi- vidual station U listing which empowers the station to issue a certificate to subscribers of the given U central alarm service purchased. With such certificate issuance, the subscriber can secure sizeable premium reduction from their insurance companies. Respondent asserts that UL standards in effect for many years include, inter alia, re- quirements that the central station maintain guards on duty to receive and investigate alarms and that such guards are required to be properly uniformed and equipped with pistol or night stick. Respondent asserts that to maintain its UL listing and insurance rating, and therefore its UL central station marketability, it is, and has been BESSI's national policy that UL standards for the operation of a central sta- tion be implemented and maintained in all its U. listed central stations. Respondent further contends that if the UL requirements were not maintained at a given UL listed sta- tion (e.g., New Haven), it was due to local managerial lax- ity and not BESSI policy; and that to the extent an individ- ual UL listed station fails to maintain those standards because of lax management, it is out of compliance with acceptable BESSI procedure and is accountable to higher management for compliance with established BESSI policy. First Respondent contends that there were no actual changes in the working conditions of its operator-runners at New Haven by local management on October 26 since the particular job requirements posted on that date were at all material times conditions required by UL established stan- dards. Further, since Respondent's national business com- mitment has been to operate UL listed central stations, in- cluding the one at New Haven, the above requirements were always applicable to the New Haven operator-run- ners, even if local management at New Haven had become lax in their enforcement. Respondent argues that local management's posting on October 26 that the above condi- tions were requirements of their position has effected only clarification of, but no actual changes in, the duties or working conditions of New Haven operator-runners irre- spective of whether the Union was earlier validly certified or not. Second Respondent contends that even if the Union was validly certified earlier, and even if it is concluded that local management's actions on October 26 have effected some changes for the operator-runners at New Haven, Re- spondent did not thereby engage in any unilateral conduct in violation of Section 8(a)(5) because the actions taken locally were no less pursuant to UL established standards and Respondent's already established national policy to op- erate its central stations (including New Haven-Bridgeport) as UL listed central stations. Consequently, Respondent ar- gues that local management's October 26 memorandum was essentially no more than a local administrative imple- mentation on a basic core business decision made much earlier and involving substantial financial investment. Re- spondent argues that given that, these requirements are es- tablished and enforced by an independent company. Given BESSI's national prior business decision to operate its cen- tral stations, including New Haven, as UL listed central stations, Respondent contends it has paramount right in the management of its business to ensure continuance of a UL operation at New Haven by having that central station meet the UL standards. Respondent further argues that since the established UL standards must be met to continue to operate New Haven as a listed central station, the need of New Haven operator-runners to meet these requirements is not a matter upon which BESSI may negotiate with the Union. Respondent thus argues that what is necessarily in- volved in such circumstances is the exercise of the manage- ment's core right to direct the business enterprise and not the establishment of new working conditions for New Ha- ven operator-runners. In short, Respondent argues that what is involved is a nonmandatory subject of bargaining. Accordingly. so argues Respondent. there was no violation of Section 8(a)(5) in its actions on October 26 under any view of the above circumstances. Respondent further con- tends that because of the foregoing business reasons it clearly has not discriminated on the hire, tenure, and condi- tions of employment of any of its employees to discourage their union membership or to prevent them from engaging in collective bargaining. Respondent further contends that the General Counsel's evidence of alleged animus is insuffi- cient to establish the contrary.) Respondent additionally contends in regard to the in- stant independent allegation of violation of Section 8(a)(5) that either the General Counsel must concede certain fac- tual finding in the underlying representation proceeding is (in part) inaccurate, or it is to be concluded that the allega- tion itself is invalid and without merit and should be dis- missed because the allegation presents factual assertions which are inconsistent with certain earlier findings made by the Regional Director that the operator-runner in New Ha- ven "is bonded and wears a uniform with a badge." Re- spondent, however, contends that there was an incomplete determination in the earlier proceeding as to what was re- quired in the job of operator-runner because the earlier finding of the Regional Director was only that "In actual practice the runners may or may not carry the guns or billy clubs." I conclude there is no merit to Respondent's first contention, but merit to the latter. The issue properly be- fore me is the determination of merit or nonmerit of the alleged unfair labor practice as pleaded in the complaint." Clearly the complaint has raised as an essential element the assertion that working conditions of wearing uniform and badge, as well as carrying a night stick or pistol, became b It is Respondent's contention, as discussed infra, that the General Coun- sel's evidence in support of alleged interrogation of employees by Respon- dent amounted to but one conversation of its branch operations manager with one employee. It denies the record sufficiently establishes that it has unlawfully interrogated even that employee therein. The General Counsel would disagree. .9 In this regard I have also been attentive the Board's most recent holding in Westinghouse Electric Corporation. 240 NLRB 731 (1979). that in the con- sideration of an independent 8(a)(5) allegation only a question of law may anrise because of findings in a prior representation proceeding and the govern- ing nature of certain exhibits therein. However, the instant 8a{5) allegation (and the related 8(a)(3 allegation, though perhaps moreso on other grounds) as earlier noted appear to remain readly distinguishable as involving under- lying facts, which in my view, are actively and competently disputed by the parties for reasons herein stated. 752 BURNS ELECTRIC SECURITY SERVICES required of the New Haven operator-runners as of October 26. The General Counsel has pursued this complaint allega- tion with supporting evidence discussed infra. It is my view that the aforesaid allegation that Respondent has engaged in unilateral acts in violation of Section 8(a)(5) by changing these working conditions in requiring its New Haven opera- tor-runners as of October 26 to wear uniform and badge is not necessarily inconsistent with the Regional Director's earlier finding that operator-runners at New Haven wear a uniform and badge, although the allegation and the Gen- eral Counsel's pursuit of same do appear to me to represent an acknowledgment on the part of the General Counsel that the element of a requirement of these conditions for the operator-runners position was not necessarily a prior deter- mined finding of fact by the Regional Director.4 It thus seems to me that General Counsel's active pursuit of this complaint allegation by an offer of evidence that wearing of uniforms and badge were not always required of the opera- tor-runners prior to October 26. is not necessarily inconsis- tent with the above earlier findings of the Regional Direc- tor. It is thus a matter presently and properly litigable by the General Counsel. As is, it would appear to me to the same extent, Respondent's contrary factual urgings that there had not been earlier determination of the requirement as to carrying of a night stick or pistol; and that its pursued defense is viable that these conditions as reflected on Octo- ber 26, were always requirements applicable to the New Haven central station as a UL listed station, and any defi- ciencies in that respect are to be explained by local manage- ment's lax enforcement of such requirements. Again, the issues of whether the instant matter was already factually determined so that the complaint in seemingly (in part) al- leging the contrary, is defective and should be dismissed: and if not involving a matter already factually determined, as I above conclude, whether Respondent has, as alleged, independently violated Section 8(a)(5) by effecting certain unilateral changes in working conditions of New Haven op- erator-runners on October 26 in derrogation of an estab- lished bargaining relationship of the Union; or, as Respon- dent contends, merely corrected prior lax local enforcement of previously existing requirements of a UL central station in a manner properly defended as being not independently violative of Section 8(aX5). Not properly before me in any sense is a review of the prior unit determination on the basis of any related evidence that was previously available to Respondent, but not presented timely for consideration, that issue being wholly beyond my province as I under- stand the above existing Board precedents governing such issue. 2. The evidence a. The interoffice memoranda of October 26 It is the General Counsel's essential position that prior to October 26 Respondent's operator-runners at New Haven were not required to respond to alarms in full uniform and 40 To conclude otherwise would, in effect, be to opt for one of two possible meanings which would seem to me to lead to inconsistency. Such an ap- proach is improper where another plausible meaning readily appears which leads to no such inconsistency and was one actually pursued. armed with a night stick or pistol. In support of such posi- tion the General Counsel relies on the testimony of em- ployee Frederick Dowling and certain BESSI documents, hut principally two interoffice memoranda, each dated Oc- tober 26. Employee Dowling had a broken service record with Re- spondent over 4 years. When first hired Dowling was em- plohed for approximately 6 months as an operator on the 4 p.m. to midnight shift. He subsequently became a relief chief (a part-time supervisory position) on that shift. There- after he was promoted to chief dispatch operator (a full- time supervisory position) on midnight shift, a position he occupied for approximately 2 years until approximately Oc- tober 1976. when his initial employment terminated. In De- cember 1976 he was reemployed as an operator at the high- est operator rate.4' Dowling was last assigned to work on day shift. At the time of the hearing Dowling had been elected union steward by the employees. Dowling testified that during his periods of employment prior to October 26, that the New Haven operator-runners were not required to answer alarm calls in full uniform, wear cap. shields or badge. or carry a night stick or pistol when answering calls, although they regularly carried a flashlight. Dowling recalled that two interoffice memoranda, each dated October 26, were posted on or about that date, one shortly after the other, and testified that these memoranda had effected changes in the existing working conditions of the operator-runners. Essentially, the first memorandum, prepared by New Haven Central Station Manager Herbert B. Arrington, notified the runner-operators that they would be required to be in uniform and must either carry a night stick or have a permit to carry a pistol, and that the wearing of the uniform would be strictly enforced. There was no reference in the first memorandum to UL requirements or the limitation of the requirement of carrying a night stick or pistol to an operator-runner when responding to a burglar alarm, as there are in the second memorandum. However, Dowling testified that the second interoffice memorandum was issued and posted shortly after the first. Branch Operations Manager Eugene Piriano, with re- sponsibilities over New Haven-Bridgeport (and Hartford- Springfield) confirmed that the first memorandum had been prepared by Arrington. Both Piriano and Arrington have offices at New Haven. Piriano testified that he had occasion to review Arrington's first memorandum when it was issued and was dissatisfied with certain phrases and the tone of the memorandum, concluding it was unduly harsh. Piriano ex- plained that the second memorandum was one that he had redrafted for Arrington's signature (and posted) because he knew what Arrington had intended to say, but also because he wanted all employees to know that the requirements as set forth in the memorandum were not just company policy, but UL requirements for the operation of a listed central station. The second interoffice memorandum, also dated 41 The record presents limited evidence on conflicting considerations as to whether Dowling had quit In October 1976, was constructively discharged. or terminated for an improper work performance As in my iew the rel- evance of such runs solely to credibility urgings and as I find the state of the record on that subject unhelpful. the details of the conflict need not be related, particularly n view of Dowling's subsequent rehire. 753 DECISIONS OF NATIONAL LABOR RELATIONS BOARD October 26, was addressed to all personnel (with copies to supervisors) and was captioned "UL Procedures N" and provided as follows: According to UL Manual 611 Section 307, operator- runners when responding to a burglar alarm are re- quired to be in uniform which includes a cap, shield and badge. They must also have in their possession a flashlight and either a night stick or a pistol. If they have in their possession a pistol, a pistol permit is required. Persons who have not been issued a uniform, will be issued same promptly. If, for any reason, an individual feels that he cannot abide by the above UL regulations. please contact the writer. Dowling testified that he did not remember ever being aware of, or seeing, a UL manual section that had required carrying a night stick or pistol. Dowling also testified that it had been a day or two before the posting of the above memorandum and at a time when he was aware the com- pany lawyers were in the building preparing for the initial hearing that was subsequently cancelled, 2 that Piriano had inquired of Dowling if there was a policy on employees carrying guns, if any employees did carry guns, and how many had permits to carry a gun. Dowling informed Pir- iano that he was one of the few operators who did have a permit; and that, with few exceptions, he had not known a gun to be taken out of the central station. Piriano did not controvert Dowling's account of this conversation. I credit Dowling as to the particulars of this conversation. Piriano denies that he had instructed Arrington to issue the first memorandum, that he had been instructed by any corporate superiors to post the memorandum, or had dis- cussed the posting with counsel. However, Piriano recalled clearly having a conversation with Arrington in which Pir- iano had expressed his dissatisfaction with a certain prac- tice he had observed in the central station. Piriano relates he had observed that the salesmen (on day shift) had used the night stick outside the central station to prop open a door to circulate air. Piriano concluded this conduct was unprofessional and directed Arrington to purchase a holster for the night stick and thereafter have it kept in the central station. However, Piriano was unable to say whether he had otherwise discussed with Arrington the UL procedural re- quirements of operator-runners responding to burglar alarms in full uniform and armed with night stick or pistol. Arrington did not testify in the initial proceeding, and thus did not testify on the issuance of the first memorandum. On the basis of the foregoing I am nontheless convinced that the conclusion is to be drawn reasonably from all the above circumstances as one more plausible than not-that Arrington's (first) memorandum and Piriano's (redraft) memorandum were posted at least in part because of Pir- iano's expressed interest and discussions earlier with Dowl- ing and Arrington on these subjects. Although I credit Pir- 42 It is observed that hearing on the initial complaint herein in Case I CA 13094 was at one point scheduled to commence October 3 1., but was rescbed- uled to commence January 11. 1978. iano on his clear denials that he was instructed by any corporate supervisors or counsel to post or have posted the memorandum at that time, I find it difficult to accept that either Arrington's initial posting or Piriano's discussions earlier with Dowling and Arrington were in no way related to Respondent's actions in preparation for this hearing. For example, Arrington's first memorandum makes no refer- ence to misuse or proper location of the night stick in the future. Rather, the first memorandum only discusses the requirements that the operator-runners wear full uniforms and carry night sticks or pistols when responding to alarms. The second memorandum equally so, though definitively restricting such to burglar alarms and informing employees that such were requirements of UL. It is recognized that these are subjects of substance in all of Respondent's urged defenses. The aforesaid memoranda are wholly compatible with the prior lax enforcement of such conditions locally (if shown otherwise to have initially existed), as it can be read- ily inferred that such conditions were not being entirely enforced in the memorandum's provision that: "If, for any reason, an individual feels that he can not abide by the above UL regulations, please contact the writer." I was also not impressed with Piriano's initial candor in this area as I was with his other testimony. I do, however, conclude that the first memorandum was promptly clarified by Piriano and that Respondent's requirements as placed on its opera- tor-runners at New Haven at this time are more properly to be measured as reflected in the second memorandum. I so find. The issue nonetheless remains whether the require- ments as set forth in the second memorandum in any degree were previously required of New Haven operator-runners as Respondent contends or a change as the General Coun- sel contends," and the effect of same on the alleged viola- tions of Sections 8(a)(5) and (3) of the Act. The record reveals that during all material times a gun cabinet was maintained at the New Haven central station which contained four '38 Smith and Wesson pistols. Two shotguns were maintained on the wall for protection of the central station itself from attack. There was appropriate ammunition for these weapons. Prior to October 26, one night stick was regularly maintained at the central station. After December 1, three night sticks were available. ' One pistol and night stick were always at Bridgeport. owling acknowledged on cross-examination that he had seen his priar description, chief dispatch operator, and was aware that it recited as a requirement of his position that he be familiar with the requirements of UL regarding the proper operation of a central station. However, Dowling in his testimony maintained that he had seen only parts of the applicable UL standards and had never seen the entire document, Standard 611, as introduced in this record. I credit Dowling in this matter, although I am fully con- vinced that an (old) copy of the full standard was available at the central station as other supervisors testified. Dowling otherwise acknowledged that he was aware of certain re- quirements of the UL certified alarm response that they 41 In either event, it is necessary to address what the conditions in these areas were prior to October 26. " Supervisor William Shanks confirmed credibly that prior to December there had been, but one night stick available at the New Haven central station, and that three night sticks were available. 754 BURNS FLECTRIC SECURITY SERVICES were to provide (that the dispatched operator-runners had to arrive at the premises within a required time), 45 but as- serted he had known nothing about a UL requirement that the operator-runner had to respond in proper uniform. Re- spondent established on cross-examination of Dowling that the UL procedures were generally followed. However, I note that it was Dowling's testimony that he followed the procedures pursuant to training and instructions that he had received directly from his superiors. Thus I credit his testimony that he was not personally aware of any UL re- quirements that an operator-runner was to respond to bur- glar alarms in full uniform, or armed with night stick or pistol. Arrington, called as a witness by Respondent in re- opened hearing, testified that he had not required supervi- sors (who regularly did not leave the station) to be in full uniform. Record evidence also warrants findings that uni- forms and night sticks or pistols were not required by UL standards when operator-runners responded to alarms other than burglar alarms. In that regard, Piriano testified that it was neither practical nor customary for New Haven central station employees to report for work without a uni- form even though he acknowledged that services of an indi- vidual employee who did on occasion report for work with- out a uniform, e.g., while personal uniform was being cleaned, could be otherwise effectively used to operation the board in the central station, or to respond to a nonbur- glar alarm. Piriano received some support that regularly wearing a uniform was a practical necessity from UL offi- cial William Gallagher, whose testimony is more fully dis- cussed infra. At this juncture I note that Gallagher testified that although uniforms were not required on nonburglar alarm responses, it was not practical for central station per- sonnel who were assigned to respond to alarms not to be uniformed at work to be able to respond promptly and properly to certified burglar alarms.'6 Although Piriano and Arrington assert they have in the past inquired when ob- serving an employee at work out of uniform, I am per- suaded by the record that they principally relied on shift supervisors to enforce these and other requirements of the job. However, it readily appears from the record that shift supervisors, at least prior to October 26, did not strictly enforce the uniform requirement nor did they always bring employee failures to higher management attention. Rather, they regularly exercised discretion in reporting an individ- ual who reported to work out of uniform based on practical considerations. Thus, the record further warrants findings that there had been not infrequent involuntary delays in initially outfitting new employees, in replacing worn out uniforms, and to some extent voluntary delays to order group purchases. In short, I find there were a variety of factors in the system at New Haven to account for, indeed to mask if not encourage, some laxity in wearing uniforms: and moreso in carrying night sticks or pistols in an assigned response to a burglar alarm, vis-a-vis, incident of other re- " For example the record reveals that a class A certificated burglar alarm service required a 15-minute response Class B required a 20-minute re- sponse: and class C required a 30-minute response * I further note supportive was Gallagher's testimony that some UL test jacks may (for reasons of record) be located at a noncertified subscriber, hut this is a matter of choice of the Ermplo, er sponses where such conditions were not even required. I thus credit Dowling that he did not carry a gun or night stick on alarms, was not required to do so, and had ob- served others not doing so prior to October. Nonetheless I credit Supervisor William Shanks as well that he had ob- served employees carrying night sticks on many occasions though neither he nor many others ever carried a pistol. b. 7/ie applicable "L" 611 standard (as pe rtinent to inaltiers properliv litigated htereinl) Called by Respondent as a witness, William E. (iallagher testified that he has been emploxed by UL since 1955. Gal- lagher is currently associate managing engineer in charge of UL's burglary department for the East Coast. Gallagher testified credibly and without contradiction as to the follow- ing particulars of UL's central alarm certificate service. Underwriters Laboratories. Inc., is an organization that provides a testing service for public safety. However, UL also has a burglary department. which in addition to testing products for usual safety hazards, also provides a certificate service for the installation of alarm systems for the benefit of the public and insurance companies. Insurance compa- nies in turn support the use of the above service by regu- larly providing substantial premium discounts to subscrib- ers who install such an alarm system. The certificate service provided to alarm companies is a service whereby UL initially establishes concensus stan- dards based on responses from companies in the alarm sys- tem industry, police departments, and other interested par- ties. The standards cover the installation of an alarm system with listed equipment at the protected premises, and ex- tends to the operation and maintenance of the central sta- tion. "UL 611" is the present established standard for safety for central station burglar alarm units and systems.' After alarm system equipment is tested and listed, subsequent in- spections are regularly conducted of the manufacture of the listed equipment. Additionally. the burglary department is the only department of UL. which after checking the safets of listed equipment, also goes out and checks the installa- tion of the listed equipment. and the maintenance and op- eration of that equipment in the field. UJL's initial inspec- tion of a central station of an alarm company intending to operate its central station as a Ul. certified central station is made once a month over an initial 3-4 month period of operation. Thereafter there is at least one annual surprise inspection of the alarm company's individual UL listed cen- tral station service, both in the field (at subscriber's prem- 4 As a still further example, Dowling testified with some other record support and without contradiction that prior to October there was not even a holster for the night slick which meant the employee in responding to an alarm with a night stick had to carry it in his hand. along with the required flashlight. U After the standard is established by UL it is submitted to the Amencan National Standards Institute. which requires standards to be reviewed every 5 years "UL 61 " 1972). in evidence, was recently reviewed and resulted in certain changes In equipment and testing standards (1977) not matenal herein "U. 61 I" (1971 is also in evidence and reseals there were only nu- meric changes In 1972 from 1971 pertinent to these considerations. There were no changes oI substance in material proslsions It is apparent that Piriano's source for October 26 memorandum was ain old 11971 standard as Sec 3017 hecame 61 I in 1972 Ihe subst.nce 1o the prolsions ere the same. 755 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ises) and of the operation and maintenance of the central station itself. UL inspections thus cover surprise service tests at a subscriber's premises, e.g., to determine how long it actually takes for the dispatched personnel to respond to the (testing) alarm. The equipment at the subscriber's prem- ises is inspected. Inspection of central station itself covers inspection of the maintenance of equipment, and also re- view of reports49 generated in the central station's service provided on prior (alarms) incidents for 3 months. A writ- ten UL report on the results of its inspection is prepared and all discrepancies are noted which must be subsequently corrected by the central station within a certain time. Addi- tional inspections may be conducted by UL when, and if; it is determined that an alarm company continues to be in noncompliance with the requirements of the established standards. If the alarm company, more pointedly the cen- tral station of the alarm company, were to continue to fail to comply with the standard's requirements, the central sta- tion would face loss of its listing or certification by UL. The subscriber to a UL certified central station can use the UL certificate it receives (after installation of the system) to obtain an insurance premium discount on its burglary (and fire) insurance. If a central station loses its UL listing the subscribers to that central station alarm service then loses their eligibility for the insurance discounts. I credit Galla- gher in the above particulars. Gallagher also testified, without contradiction and with substantial corroboration from various other of Respon- dent's managers, that the provision presently contained in "UL 611 Section 60.1" had been in force for 20 years. That section provides: 60.1 The operating company shall have on duty at all times a minimum of one trained operator at each Cen- tral-Station. During the "closed period," as previously defined the company shall maintain on duty, in addi- tion to operators, at least two employees trained to act as guards. Over and above these minimums, a suffi- cient number of employees shall be maintained at Cen- tral-Stations to receive and investigate troubles and alarms promptly and effectively.?° Gallagher also testified, with corroboration from a number of Respondent's managers, that "UL 611 Section 61.1 and 61.2" were in effect for 10 years (or more). Those sections provide: 61.1 Guards shall be equipped with a pistol, or night stick, flashlight, police whistle, identification badge, and with a uniform and headgear which readily identi- fies their company affiliation. 61.2 Firearms are to be provided except where pistol '*The reports used are entitled "Dispatch patrolman report of burglary attack," but are made out in New Haven by the dispatched operator-runner. Recorded therein, inter alia, is the time alarm is received and the time of arrival of the operator-runner at the premises. 0 The terminology of the dispatched person as a guard as shown is, of course, that of UL. Gallagher testified that almost all of the central stations use the police as one of the two guards to be dispatched, as provided for in Sec. 65.1. The additional reference to "a sufficient number of employees' relates to either additional operators or guards depending on central station size and need of additional operators for monitonng alarm boards or (refer- enced) guards for dispatch in response to alarms. permits cannot be obtained for reasons not within the control of the operating company. Gallagher explained that the origin of the uniform require- ment was from law enforcement authorities since when the employee dispatched from the alarm company appears at the premises in a "burglar alarm," the local police authori- ties want to readily know that he is a guard. Accordingly a uniform including a badge or shield on the hat, or shoulder patch, some means of identifying company affiliation, is re- quired. Gallagher further explained that the requirement of carrying a pistol or night stick was established for the self- protection of a person dispatched to an alarm site. How- ever, according to Gallagher, the standard provides that the Company must first try to provide firearms, although as a practical matter UL recognizes that permits for revolvers must be obtained from State and local authorities, whose rules vary significantly in permit issuances. And UL is aware that companies are not always able to procure the required permits. Gallagher testified that the inspection conducted by UL in the field at subscriber's premises would be not only to see how long the person dispatched takes to get there, but significantly, also to determine whether the person dispatched is properly uniformed with hat and badge so that he can be readily identified as a member of the particular alarm company, and that he is properly armed with either a pistol or night stick. The inspector will accept appearance with either night stick or pistol. Galla- gher significantly testified that if a dispatched person failed to respond to a testing alarm in uniform, with a cap and badge or shoulder patch, or failed to arrive with pistol or night stick, the UL inspector should write up that failure as a discrepancy, and that it was a deficiency that would have to be subsequently corrected. The record otherwise war- rants finding that in the last two inspections of New Haven prior to this proceeding, Respondent's New Haven station had not been so cited. On the basis of the foregoing I am wholly convinced that Respondent has established, and I accordingly find, that the wearing of a uniform with a visible company identification (badge or shoulder patch) and the carrying of a pistol or night stick were long time requirements for employees as- signed to respond to a UL system burglar alarm when re- ceived by the UL listed or certified central station, and that such were requirements (inter alia), of performance for the central station, that is established and intended by UL to be enforced upon the central station for the latter to retain its certification from "UL."5' I further find that although UL required that the alarm company provide firearms unless permits could not be obtained, UL recognize State and lo- cal difficulties exist in obtaining permits, and further that local UL inspectors would conclude an acceptable response if the dispatched employee appeared with either pistol or night stick. The evidence as to Respondent's commitment to the operation of a UL listed central station of New Ha- ven and elsewhere is no less persuasive. 51 Gallagher's frank admission that it was possible that an inspector might not catch a person who had responded without a pistol or night stick does not detract from his testimony that such was the standard and was to be enforced by his inspectors. 756 BURNS ELECTRIC SECURITY SERVICES c. Respondent's "UL" listed central station at New Haven and elsewhere At time of hearing Arch T. Fournier had been BESSI national director, division of electronics, for 18 months. having earlier served as BESSI's national operations man- ager for 18 months. Prior to that Fournier had been em- ployed 16 years in the industry with a competitor ADT, last serving as ADT general manager. While serving as BESSI's national operations manager, Fournier had occasion to visit each of the 22 central and satellite stations operated by BESSI. Fournier testified credibly that all of BESSI's sta- tions are UL certified except one, West Orange, New Jer- sey; and that this last station itself was being evaluated for certification later that year. Fournier also testified that the cost to Respondent for the equipment, maintenance, and operating personnel required in the operation of one listed central station is anywhere between $75,000 to $150,000. Further, the national cost to BESSI of operating its present UL listed central station system is well over a million dol- lars a year. 2 Fournier also testified that customers elect to use UL listed central stations basically for two reasons: (a) to minimize risk of property loss from burglary or fire; and (b) to obtain the available insurance premium discounts for burglary and fire insurance 3 that are available to a sub- scriber who uses a UL listed central station. Burdett Spie- gel, administrative manager at BESSI's New Haven central station since 1973, testified that the available premium dis- count for burglary stock insurance may be from 15-20 per- cent to a high of 70 percent;" and that there are also sub- stantial discounts for subscribers using fire alarm systems of a listed UL central station. Spiegel testified credibly that in many instances the premium discounts provided by insur- ance companies to subscribers using a UL listed central station burglary (and fire) alarm system actually exceed the cost of the protective service purchased by the subscriber. Indeed, the record convincingly reveals that very feature has been one long nationally advertised by BESSI. There is no factual issue herein as to New Haven for- merly being operated as a UL listed central station. Accord- ing to Spiegel, who was previously employed by Connecti- cut Protective Systems (Respondent's predecessor at New Haven), the New Haven central station was UL listed when initially purchased by Respondent in 1968, and has been such ever since. Spiegel acknowledged that BESSI being in the general alarm business also installs non-UL alarm sys- tems, but testified, and I find credibly so, that UL alarm systems is their premium business, is what BESSI at New Haven (and elsewhere) had been designed to provide, and is the business which their sales force at New Haven is trained and encouraged to seek. 52 Clyde w. Campbell, regional manager for the north east region, one of four such regional managers now reporting to Fournier, corroborated Four- nier's testimony that the West Orange central station, within his jurisdiction, was being evaluated for certification in the upcoming year at a cost esti- mated at around $100,000. 53 Although UL does not inspect fire alarm systems itself, other organiza- tions on behalf of insurance companies do. The latter require the use of UL listed equipment. A UL listed central station satisfies all such requirements. 54 Discounts to subscribers will vary depending on the type and grade of alarm service being provided, and on other factors e.g., whether the pro- tected premises are below or above grade, and whether keys to premises are provided. Spiegel estimated that 40 percent of BESSI's customers have UL listed alarm systems for both fire and burglary with 300-400 customers served by the New Haven central station. Piraino's estimate was that there were 192 certified burglary alarm systems at New Haven which he estimated as a minimum was 25 percent, and could be higher. I find the burglar alarm systems at New Haven were 25 to 40 percent of all alarm systems. Apparently 60 percent of all alarm systems in service at New Haven required runner response of some type. (Sales brouchures and other litera- ture in use for more than 5 years is fully corroborative.) There is thus no question, and I find, that Respondent's New Haven facility during all material times was held out and actively operated by BESSI as a UL listed (and insur- ance approved) central station. There remains but to con- sider the properly relevant evidence as to New Haven's ac- tual practices in regard to its operator-runners use of full uniforms (with identification) and pistols or night sticks in regard to the separately alleged violations of 8(a)(3) and (5). d. The New Haven operation Clyde W. Campbell. regional manager, north east region with jurisdiction over New Haven, testified (with support from BESSI Procedure Manual effective since September 9, 1969) that the requirement that personnel whose duties call for response to alarm signals appear in prescribed uniform was Respondent's national standard and his regional stan- dard which included New Haven." New Haven Supervisor William Shanks testified credibly that there was a prior re- quirement that operator-runners wear uniforms when pro- vided and that it was in the past enforced indeed on one occasion against him. However Shanks also testified that prior to December , while employed as a shift supervisor. he would not automatically send an employee to the man- ager if the employee reported without a uniform, but would first inquire into the nature of the employee's excuse. Shanks' procedure was based on the practical aspect that he always had one or more employees report in uniform, in- deed that 9 out of 10 times he had two or three employees in full dress uniform. He further credibly testified that it was rare that he would send out more than one operator at a time on an alarms. According to Shanks, he rarely had no one show up for work without a full uniform and in that instance he would simply require one of the operators to "Campbell received corroborative support from Peter M. Barry. opera- tions manager at White Plains (within his jurisdiction), and William A. Switzer, operations manager at Buffalo. New York (under the jurisdiction of the central regional manager.) Piraino, present operations manager over New Haven (and a former assistant operations manager at Chicago), cor- roborated that appearance in full uniform in his experience was always a UL requirement for a UL central station and was so at New Haven since his amval in January 1975. Piraino supported the same with evidence of a train- ing slide presentation (earlier used at New Haven) showing an operator- runner responding to alarm in full uniform with badge and shield and carry- ing a pistol. Piraino also testified that central station employees should be in uniform at all times and if not should be reprimanded by the shift supervisor. However, Piraino did concede that he was not aware of any prior reprimand of an operator-runner for responding without uniform. On the other hand Piraino did not see all reprimands. There was no evidence presented of any UL inspection citation about the failure to wear uniform or to carry a night stick or pistol. 6 I note as corroborative the circumstance that at this time the Company provided only one marked vehicle for operator-runner response. 757 DECISIONS OF NATIONAL LABOR RELATIONS BOARD obtain a uniform immediately. While there is some evi- dence that certain employees were not provided a full uni- form, the record is clear (excepting Dowling's claimed cir- cumstance discussed infra), that such instances were because of delays due to initial fittings, returns, or group purchase, or other special individual circumstance, e.g., pregnancy period. Piriano testified that it was discretionary that the opera- tor-runner carry either a pistol or night stick as both the UL standard and the new job description say (disjunctively) "or." 57 Shanks, who has been employed for about 4-1/2 years and has been a shift supervisor for about a year and 4 months, confirmed that operator-runners were not required to be armed (with a pistol) in his experience. Although Shanks testified that about three or four employees had permits to carry pistols, apparently only one did so regu- larly. Shanks did not have a permit and had not ever car- ried a gun on the job though he had carried a night stick. Shanks testified that he had seen a night stick carried in response to alarms "a hundred times," but that he would not necessarily follow up whether an operator-runner took a night stick when assigned a burglar alarm because of the press of other duties. Shanks also testified that five out of eight individuals on his first shift had hats, but this had caused no problem as they could be used in other ways.58 Offered in rebuttal of the above evidence, Dowling testi- fied that he had only been issued parts of a uniform, namely pants and shirts, but had not ever been issued a cap or badge. (As earlier noted a shoulder patch was sufficient for UL.) Accordingly to Dowling, prior to October, he also had not worn a uniform to work every day. He further testified that he had received no warning or reprimand prior to Oc- tober, though he did receive a written reprimand on Janu- ary 6, 1978, for coming to work in a dress shirt and pair of slacks.59 Dowling also testified that he had responded to alarms without a night stick or pistol, conceding signifi- cantly, however, that he was aware even prior to October that a night stick was clamped by the front door of the central station tofulfill requirements of UL. From the fore- going it would appear warranted to conclude that the prac- tice at New Haven was that most employees were equipped with full uniforms and wore them, but that at best very few responded to burglar alarms carrying a pistol, and that oth- ers might or might not carry a night stick. The refined issue remains what were the requirements of the position. Finally to be considered and evaluated are the two docu- "7 In this Piriano was technically incorrect but it would appear in practical sense correct. Thus although the UL standard reflects the disjunctive it does press initial burden on the alarm company to provide fire arms if permits for same can be obtained and the new job description of December I pledges the Company's assistance in obtaining such permits. However on the practical side, Spiegel, whom I credit, testified that in Connecticut every hamlet police chief has a say in who obtains a permit and some simply will not issue them, or delay in issuance of them. 1 It has been earlier observed that UL requirements relate to burglar alarms only, and not to fire or other supervisory alarm services. Shanks testified also that they seldom had two such alarms at the same time. I note the number of burglar alarms for 1976 as is evidenced by the numbered attack report in the record also would seem to generally support the same. 5 Although Dowling testified he also had seen others at work out of uni- form, his testimony on cross-examination revealed he had referred to specific individuals whose circumstances were adequately explained of record. More- over, I am satisfied that such instances are not persuasive of work rule or controlling on determination of the existing practice prior to October 26. ments now received as a result of reopened record. They confirm that the operators at New Haven had been re- quired to wear uniforms, though I note neither memoran- dum addressed any requirement about carrying a night stick or pistol. The first document is a memo authored by Spiegel (at the time operations manager), dated March 16, 1971, addressed to (then central station managers at New Haven and at Hartford (E.J. Pinski and O. K. Nelson). This memoran- dum advised each central station manager that they were authorized to issue full uniforms including caps, badges, and whistles to each of their personnel. The second docu- ment, dated January 24, 1975, authored by Arrington, pro- vided "Uniforms have been supplied to all personnel and it is mandatory that they are worn when on duty. Anyone reporting to work without uniform will be expected to cor- rect this situation at loss of time." The latter document re- quested employees to please sign the memorandum. Thir- teen employees and/or supervisors actually signed. Dowling, notably, was not a signator.6 On the basis of all the above evidence and the record as a whole6s I now conclude and find that the wearing of a full 60 At the reopened hearing I ruled the foregoing evidence was deemed not cumulative and fter hearing the evidence that there was no question of authenticity of the documents. The only issue was whether due diligence had in fact been exercised in the initial production. With regard to the Spiegel memorandum, Spiegel testified credibly that he knew there had been such a memo issued and distnbuted by him earlier, but had not recalled this specific memorandum. However, since 1973, Spiegel has been employed in a differ- ent job. Spiegel testified that he had searched his own file for the memoran- dum, but had not found it. He also testified it was his belief at that time that the likely place for such a memo would be at the central station. Spiegel did note that the central station at New Haven had moved twice in the interim from his memo issuance. He did know his memo had been recently found in storage in the basement of the central station at New Haven, but did not know under what circumstances. Amngton testified credibly that he had never seen Spiegel's 1971 memorandum, but that he had issued his own memorandum on the subject on January 24, 1975, and had enforced the instruction to wear a uniform when a discrepancy had been brought to his attention. More to the point of diligence, Arrington testified that he had become ill in December January while on vacation, and in early January was forced to undergo tests on a senous illness for which he was hospitalized and out of work for some 3-4 months. Arrington was back to work at time of reopened hearing on May 19, on a half day basis. Arrington testified that he had procured several other documents for Respondent as requested in the preparation for the hearing before his hospitalization, and had searched un- successfully for the latter memorandum. Arrington candidly concedes that not having searched the entire central station (e.g., records stored in the basement) for the instant memorandum essentially was an oversight on his part, though occasioned (I conclude understandably) in no small part by his anxiety over his illness. Daniel J. Heery, Hartford central station manager, assigned as acting cen- tral station manager at New Haven during Arrington's continued illness, testified that while engaged in other business in the basement he had acci- dentally come across the memoranda and brought them immediately to counsel's attention, who in turn promptly verified the documents on return of the principals and filed the appropriate motion. In view of all the above circumstances, particularly as the matter is one pending initial decision, and a matter deemed within my discretion, I conclude that Respondent has made a sufficiently reasonable showing for the late production of the evidence. I conclude in any event that the interest of justice and reasonable pursuit of factual accuracy in the matter are best served by receipt of this evidence upon a material issue of fact before me at this time. s6 The General Counsel also introduced certain other operational docu- ments of Respondent, viz, central station procedures, effective May 16; and addendum-central station procedures, effective November 14. presumably for material bearing on subjects of required uniforms, care of firearms, etc., and target practice. I have considered the same, particularly in the light of Respondent's (pnor operational) exhibit, "Instructions for Operating and 758 BURNS ELECTRIC SECURITY SERVICES uniform, including cap. shield. or badge (or identifying shoulder patch acceptable to UL) in response to burglar alarm was a requirement for operator-runners at the New Haven central station under "UL 611"; was required for continued listing of the New Haven station as a UL central station; was a specific work rule established by "UL 611" and existing locally well prior to October 26; was in prac- tice during material times substantially adhered to and gen- erally enforced; and to the limited extent not so enforced. essentially was accountable to practical operating consider- ations and discretion then exercised by shift supervisors. However, in regard actually carrying a night stick or pistol I conclude that the weight of the evidence presents quite a different consideration. While it is clear that UL require- ments stress provision for firearms to be provided to New Haven operator-runners, the standard permits them carry either a pistol or night stick. It appears during material times to have been enforced by UL inspectors in a manner that required only one of them to be carried. More point- edly, in view of the record evidence above, I am fully con- vinced that although New Haven in operating as a UL listed central station was subject to the UL standard's pref- erence for the carrying of a pistol, the New Haven central station had no effective local work rule or practice on re- quired use of guns or pistols by its operator-runners. On this record such probably has resulted from the difficulties indi- viduals have encountered in the past in procuring permits locally, excusable under the standard. The more difficult determination on this record would appear to be whether there was an existing local rule and practice as to require carrying a night stick. I am persuaded to conclude that in view of Respondent's long standing commitment to operate New Haven as a UL listed central station, the evidenced enforcement of the UL requirement that New Haven op- erator-runners carry either pistol or night stick, and the ef- fect of the UL standard on continued operation of New Haven a UL central station, it is sufficient to warrant the conclusion that a work rule was thereby generated prior to October 26, which required operator-runners to carry, if not a pistol, alternatively a night stick when responding to a burglar alarm: and thus was a work rule applicable to the operation of the New Haven UL listed central station in regard to response to burglar alarms. However, I am as equally convinced that there had been a substantial period of lax enforcement prior to October 26 no doubt because of interaction of the various factors related earlier, but none- theless of sufficient scope to warrant the conclusion that an undefined or mixed practice existed for a considerable time which, if local management did not consciously counte- nance, at least must be concluded to have been laxly en- forced for a considerable period. Before evaluating these determined facts in the light of alleged changes in violation of Section 8(a)(5) and (3) it is warranted to address the evidence as to the independently alleged unlawful interro- gation of employees in violation of Section 8(a)( ). Service Personnel," effective September 9. 1969. and related testimony of Clyde W. Campbell concerning the prior relationship of BESSI operations managers to BESSI agency branch heads about target practice and training. I conclude nothing therein warrants further review herein. G.C. Exh. 5, in- troduced by joint stipulation is a new job description effective nationally on December I, and is considered fully infra. e. The alleged unlawful interrogation of emplqvoyees in violation of Section 8(a)(1) The facts of this incident are attested to by employee Dowling and Branch Operations Manager Piraino. None of the parties offered other corroborative witnesses. There was nothing observed in the demeanor of either witness to war- rant wholly crediting one over the other. Their testimonies are substantially similar, but also in certain areas signifi- cantly different. Certain such testimony of each was not refuted by the other, e.g., either on direct testimony of Piraino, or on rebuttal by Dowling. I have carefully consid- ered all of the above factors and being essentially guided by what I view are the inherent probabilities of the incident's circumstances then existing in view of earlier findings. I find the following to be the essential facts of the incident. It will be recalled that the charge in Case I-CA 13,943 was filed on December 12. Within a few days Piraino re- ceived a copy of the charge which alleged that the Com- pany had unlawfully changed working conditions of the operator-runners on October 26. However, Piraino could not discern from the charge what the nature of the alleged change was as the charge language did not definitively re- late it. Piraino went upstairs intending to discuss the charge's meaning with Arrington. In passing through the central station Piraino scanned the bulletin board and then noticed the posted interoffice memorandum of October 26 which had instructed employees, inter alia, that they were to respond to burglar alarms with a night stick as required by UL. He immediately realized that the memorandum was the basis for the additional charge of change in working conditions. I find that at this time Piraino, with that sudden realization, as acknowledged by Respondent, said in an out- burst, who is filing these ridiculous charges in regard to carrying of night sticks being a change in company policy ." Dowling then approached Piraino and answered that any operator-runner could have filed the charge through the Union. He told Piraino that there was no need (for opera- tor-runners) to carry night sticks or weapons, that they were not guards, and they did not have to do that. The foregoing is noted essentially to be a combination of plausible and credited testimony of both witnesses. In that connection, I also note that Piraino first related that there had been a brief conversation between them which had oc- curred before Dowling was brought to the office. Dowling called in rebuttal on other matters did not refute this earlier communication with Piraino. I also detected some degree or generality in transition in Dowling's testimony on the above and their (agreed) further discussion in the office about the requirements of UL and the use of night sticks. However, I am convinced that with Piraino's sudden realization of what the charge actually referred to, he reacted to it imme- diately and thus more probably in the manner Dowling has recalled, albeit in a spontaneous and editorial fashion. For the above reasons I credit Piraino's firm recounts that he had not asked Dowling individually, if he had filed the charge, or knew who had. I am further persuaded, contrar) 6t The record reveals Piraino had always regarded the requirements of UL as alternatives and knew at that time that only a few runners had a permit to carry a pistol Dowling's recollection respecting the remark's coverage lim- ited to night stick is plausible 759 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the General Counsel's contention, and I find, that Dowl- ing as elected steward more probably than not took it upon himself at that point to respond to Piriano, telling Piriano that any employee could have filed the charge through the Union. Dowling further stated their nosition that the opera- tor-runners did not have to do that because they were not guards (as are referenced in UL). I am further convinced that the latter announcement is why Piriano then had Ar- rington call Dowling to the office for further discussion of the UL requirements, company instructions, and Dowling's understanding of them. Dowling relates that Arrington had askd him to accom- pany Arrington down to Piriano's office. According to Dowling there was a discussion between them about the fact that there had always been a night stick by the front door available for the operator-runner to take along when responding to a burglar alarm. According to Piriano, he first told Dowling that he was not seeking anything, that he just wanted to know what Dowling thought the dispatch patrolman63 was supposed to do. Dowling then told him. Piriano told Dowling (the requirement) that the operators were to respond with a night stick was nothing new, it was a UL requirement, and always had been. Dowling replied if that was the case, they had been in violation of UL for the 4 years he had worked at the central station because he had never seen any one take a night stick out. He again told Piriano it was not required to take a night stick out. Piriano told Dowling that he had been in the business approxi- mately 20 years. Piriano then asked Dowling how long he was in the business. Dowling answered 4 years. According to Dowling, Piriano asked him which of them then would be the better qualified to know about the operation of the central station. Dowling did not reply, feeling at that point he should not respond. Piriano recalled telling Dowling that for as long as he was in the business, this had been standard operating procedure; and in substance that his 20 years of experience should suffice as to whether the operator-run- ners should carry night sticks. According to Dowling, Pir- iano then told Dowling that they were both reasonable peo- ple, that they could sit down and discuss things, but now that the Union was involved the only people that would benefit from what was going on were the union and com- pany lawyers because that was their job. Piriano did not refute Dowling's testimony in the latter respect. Analysis, findings, and conclusions re 8(a)(I) I addressed initially the last allegation of unlawful inter- rogation. On fact found above" it is essentially the General Counsel's contention that this was not a mere conversation, but rather that Piriano was attempting to get further infor- mation about the Union and its supporters and did so with- out giving proper assurance against reprisal. The General Counsel further argues that in context, Piriano's inquiry into Dowling's refusal to accept guard status is itself an unlawful interference, since the issue had been previously '3 Here Piriano is referring to the functions of the New Haven operator- runner when on dispatch to an alarm, and even more particularly herein when responding to a burglar alarm. " In view of evidence now of record indicative Arrington were seriously ill at time of initial hearing I do not draw adverse inference as urged by the General Counsel. litigated and Dowling was well within his rights to contest Piriano's assertion that Dowling was a guard. The General Counsel also argues generally that Respondent's refusal to accept the Board's ruling in the earlier case does not give it license to coerce its employees into believing that they are as a matter of fact and law guards within the meaning of the Act. Respondent contra argues the alleged unlawful in- terrogation amounts to nothing, but an isolated comment not to be concluded as resulting in any interference with, restraint, or coercion of employee Dowling, or any other employee, in the exercise of Section 7 rights; and in any event is insufficient to support a Board order. The test of interference, restraint, and coercion under Section 8(a)(1) does not turn on the employer's motive, or on a demonstration of a successful effect of coercion, but on whether the employer's conduct and words have reasonable tendency to interfere with the exercise of employee rights under the Act, El Rancho Market, 235 NLRB 468 (1978). However, circumstances may be such that what is essen- tially involved is no more than general supervisory func- tions not violative of the Act, cf. The Trading Port, Inc., 224 NLRB 980, 983 (1976). Remarks merely disparaging of the Union are not violative of the Act, The Berry Schools, 234 NLRB 942 (1978); Hospital Service Corporation dib/a Blue Cross, 219 NLRB I (1975). As noted, I am fully convinced that Piriano's utterance, viz, who is filing these ridiculous charges, in regard to carry- ing night sticks being a change in company policy, was in origin and in nature an exasperation, but not addressed to any particular employee; that Dowling had volunteered his initial responses that any employee could have filed the charge through the Union; and that operator-runners were not guards and did not have to do it. However, neither is dispositive of the issue because Respondent's intent is ir- relevant in an allegation of 8(a)(l), as is a consideration of whether Dowling felt subjectively interfered with or co- erced. Shorn of these considerations the question abruptly asked in the presence of employees was who had filed charges. Thus, on its face, involved is a question put to employees in a subject area unquestionably of concern to the Board. The circumstance that Dowling in effect warded off the question is not dispositive. The remark was anything but casual. Given the presence of clear indignation in the circumstances I am constrained to conclude the statement in the form an interrogation had a tendency to interfere with the exercise of employee's Section 7 rights, and conse- quently was violative of Section 8(a)(l) of the Act,6" W. T. Grant Company, 168 NLRB 93, 95 (1967). As to the contin- ued conversation in Piriano's office, contrary to the General Counsel's contentions, I find no violation. To begin with, this conduct was not alleged as violative in the complaint. However, even were I to conclude it as a matter fully litigated I would find no violation. Thus I have earlier concluded that the requirement of carrying a night stick to a burglar alarm had been adhered to nonuniformly for a long time and thus laxly enforced. Nonetheless, given the few pistol permits issued to operator-runners at New Haven the "UL 611" standard required an operator-runner assigned to respond to a burglar alarm to carry a night stick if New Haven was to ensure keeping its certification. 651 thus find the cases cited by Respondent inapposite. 760 BURNS ELECTRIC SECURITY SERVICES Piriano had but some 6 weeks earlier taken steps (lawful- ness of that act momentarily aside) to inform employees generally and to enforce that UL requirements specifically at New Haven by posting the October 26 memorandum, which also invited employees encountering any difficulty in abiding by the instruction to discuss it with management. With Dowling's announcement that operator-runners did not have to do that, Piriano might well have reasonably conclude that he was faced by this assertion of Dowling with an intent on Dowling's part not to follow the posted instruction. It seems to me that in the general management of the business, management is under such circumstances entitled to clarify and discuss with the employee the em- ployees' job understanding and responsibility so long as not coercively accomplished. Piriano's opening remark that he was not seeking anything, in my view, was a sufficiently clear disclaimer of intent to inquire about union matters. There was in fact no further questions about the Union; rather Piriano's demonstrated interest was in regard to Dowling's understanding of his job and its requirements. Nor was a committal to the job requirements extracted co- ercively. There is no evidence in this record that Dowling ever was threatened with or received discipline for failing to carry a night stick. Dowling's reprimand of January 6. 1978, was for failing entirely to wear a uniform without excuse, a requirement of the job which I find preexisted, and one which in my view Respondent was priviledged to enforce." Here any disparagement the Union through a ref- erence to union counsel was visited as well upon the Re- spondent's counsel. The remark otherwise was not violative of the Act as mere expression of restricted contact is not violative of Section 8(aXl), cf. Baker Manufacturing Co., Inc., 218 NLRB 1295, 1300 (1975). In passing I would pres- ently note that although I find the above single remark of Piriano was violative of the Act and do not find it war- ranted to conclude it to be isolated in view of the nature and findings on other allegations in the complaint, I would nonetheless note at this juncture that in so finding the viola- tion I do not reach such conclusion on the basis that there was any intended interrogation by Piriano, but rather that objectively viewed the circumstances of the question's oc- currence had a tendency to interfere with Section 7 rights. The General Counsel expressed reliance on this sole 8(a)(1) incident to establish a general animus on the part of the Employer is in my view a weak reed indeed. f. The nationaljob description of December I A new position description from BESSI procedural man- ual was introduced by the General Counsel but by joint stipulation of the parties." The position description for operator/patroller (runner) was made effective nationally " Firestone Coated Fabrics Company, Division of the Firestone Tire Rub- bher Company, 179 NLRB 724 (1969). 7 The General Counsel contends that Respondent did not use consistent terminology when describing the employees employed at given central sta- tions. The record before me supports that contention. However, the record reveals that since September 1969 until December 1, 1977. Respondent has had two basic national position descriptions for (nonsupervisory) employees employed in the operation of a central station, viz., dispatch operator and dispatch patrolman. To the extent that the General Counsel would argue that the operator-runners at New Haven were merely operators in the sense they performed none of the functions of the dispatch patrolman, I disagree. on December I by National Director Fournier. The posi- tion's major responsibility was "to monitor and/or respond to central station alarm and supervisor signals." isted as the "Position Additional Responsihilites and Duties" are the following: 7.01 Following the required training, the Operator/ Patroller (Runner) will be required to carry nightsticks. and firearms if licensed, when responding to a sub- scriber premise. The Company, Burns Electronic Secu- rity Services, Inc., will assist in obtaining all necessary permits for such weapons, and require their use. 7.02 In the event of a fire, holdup or burglary signal, the Operator/Patroller (Runner) should leave immedi- ately for the location of the trouble, while other per- sonnel in the Central Station notifyr the fire or police department. 7.03 Upon arrival at the premise, the Operator/Pa- troller (Runner) will initiate a search of the premise for signs of forcible entry or fire, whether or not the police have arrived. The Operator/Patroller (Runner) will be required to detain and apprehend or attempt to detain and apprehend any unauthorized intruders. 7.04 At the very minimum, once the police or fire department arrives, the Operator/Patroller (Runner) will be required to (A) assist the police in searching for and capturing any unauthorized intruders: (B) assist the fire department in searching for the fire and when asked, assist them in whatever manner possible under the circumstances. 7.05 If the alarm system is damaged and cannot be repaired without the expertise of the Service Depart- ment, the Operator/Patroller (Runner) will be required to remain on the premises until officially relieved and/ or the equipment is repaired and tested by the Service Department. It is General Counsel's position that this new position description constituted a marked departure from prior pro- cedure in certain respects in that the employees (at New Haven, operator-runners) were required in 7.03 to "initiate a search of the premises for signs of a forcible entry or fire. whether or not the police have arrived. The Operator/Pa- troller (Runner) will be required to detain and apprehend or attempt to detain and apprehend any unauthorized in- truders." In 7.04, the same, as to "At the very minimum. once the police or fire department arrives the Operator/ Patroller (Runner) will be required to "assist the police in searching for and capturing any unauthorized intrud- ers...." In pertinent part the Regional Director had earlier found: If the runner arrives at the premises prior to the local police, he waits outside for their arrival and enter only in their presence, after unlocking the door for them. The runner will then assist the police in a search of the premises, both inside and outside the building, check- ing for broken windows, signs of forced entry, and the reason for the alarm. The police arrest any individuals or intruders where warranted and. as the Employer representative testified, the runner would probably "run the other way" if he came upon an intruder. 761 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fournier testified that in issuance of this job description he was only updating procedures to clarify and improve operations as he had in the past in accordance with U. standards. The record reveals that Fournier had issued pre- viously a shift supervisor position description effective Sep- tember 1, 1976, Central Station Procedures effective May 16, and an addendum on November 14. It was Fournier's testimony otherwise that he had concluded 10 years ago (at ADT) it was more efficient to combine the positions, but just had never got around to doing it earlier at BESSI. It is the General Counsel's contention that the new posi- tion description, while purporting to establish uniform na- tional standards, in fact did not do so, but rather was only an attempt by Respondent to clarify Respondent's policies prepared for purposes of litigation. The UL associate managing engineer testified that if the company runner or guard arrives at the scene first, UL does not require that he do anything before the police arrive though it is a good idea to make an exterior search of the building. Even more pointedly, in testifying that there was no requirement of the guard to make apprehension of someone who is an intruder, Gallagher testified that: Not specifically spelled out like he is supposed to make the apprehension. In think-I'm pretty sure of this that almost all of the central station companies use the po- lice as a second guard. Because, number one, they don't want to get themselves shot and they let the po- lice do the actual capturing of the burglar but as far as making any actual apprehension--No. Some alarm companies, the guards will bang with the night stick and make a lot of racket hoping to scare the burglar away."" Fournier acknowledged that 7.03 included requirements over and above UL requirements, but that it was now cor- porate policy. However, it is clear both that the position description provided for a lesser minimum operation and that 7.03 in that regard, viz., entry and search of premises showing signs of forcibly entry before police arrival was not only thereafter not followed at New Haven, it was not fol- lowed at other central stations in the northeast and central regions where the individual employee was allowed to exer- cise personal discretion." Analysis, Findings, and Conclusions With regard to the remaining allegations it would appear that the independent allegation of Section 8(a)(3) is next most readily considered. To an allegation of violation of Section 8(a)(3) the governing principle is the usual one of an assessment of all of the facts, however complex, for dis- cernment of the "real motive" or "true purpose" of the Re- spondent's actions; for "the 'real motive' of the employer in an alleged 8(a)(3) violation is decisive." N.L.R.B. v. John Brown d/b/a Brown Food Stores, 380 U.S. 278, 287 (1965). Invariably, "It is the 'true purpose' or 'real motive' in hiring s Respondent correctly established that Gallagher had referred to another company, not BESSI. Nonetheless the record has revealed that the latter operational use of the night stick in that fashion was not considered a dis- crepancy by UL. Based on credited testimony of Respondent's witnesses Shanks, Camp- bell. Barry, and Switzer. or firing that constitutes the test." Local 357, International Brotherhood of' Teamsters, Chauffeurs, Warehousemen and Helpers of A lerica [Los Angeles-Seattle Motor Express] v. N.L.R.B., 365 U.S. 667, 675 (1961). However, specific evi- dence of subjective discriminatory intent is "not an indis- pensible element of proof of violation." he Radio Officers' Union of the ('onmmercial Telegraphers Union, A.F.L. v. La- bor Board, 347 U.S. 17. 44. The natural foreseeable conse- quences of certain action may warrant the inference, and "the outcome may well be the same when intent is founded upon the inherently discriminatory or destructive nature of the conduct itself:." N.L.R.B. v. Erie Resistor Corp. 373 U.S. 221, 228 ( 1963). However, in evaluation of the latter may be involved "weighing the interest of employees in concerted activity against the interest of the employer in operating his business in a particular manner and of balancing in the light of the Act and its policy the intended consequences upon employee rights against the business ends to be served by the employer's co [nduct." Id. 228 It will be recalled that the General Counsel's contentions regarding the 8(a)(3) allegation are essentially threefold: (a) that there was no good faith business justification for the October 26 changes; (b) that on the basis of an unexplained timing of those changes and animus subsequently evi- denced by Respondent in Piriano's December interroga- tion, Respondent's conduct is shown motivated as alleged; and (c) even if not ultimately shown so motivated, the changes in required use of uniforms with identification, and pistols or night stick were inherently destructive of the bar- gaining unit and warrant finding a 8(a)(3) discrimination. Respondent contra-argues that it has shown lawful, sub- stantial, and compelling business reasons for its actions on October 26, and that the General Counsel has interposed no substantial evidence of animus towards the Union or un- lawful motivation in answer. I conclude and find that the Respondent has shown a substantial business justification as the basis for Piriano's action on October 26. The allegation that Respondent changed working conditions by requiring its New Haven operator-runners to wear uniform, with cap, shield, or badge is also observed deficient on a more basic account. Thus as to the latter, I have found that the New Haven central station during all material times operated as a UL listed station and was required through "UL 611" stan- dards to have its employees (assigned to respond to burglar alarms) respond in uniform with a cap, shield, or badge, shirt chest, or shoulder patch (all being acceptable to UL). I have further found that there was a prevailing work rule and practice at New Haven (and Bridgeport) which re- quired the operator-runners to wear uniforms with identifi- cation, and that such requirements had been operative and generally enforced (though with discretion of supervisors) over time. Thus to the extent the complaint 8(a)(3) allega- tion alleges that on October 26, Respondent has changed working conditions of the operator-runners by requiring them to wear uniform, with cap, shield, or badge, thereby discriminating against its operator-runners, such is, in my view, demonstrably without merit. In passing it is conve- nient to note at this time that the mere fact enforcement as to Dowling, or even limitedly as to certain others, was lax did not constitute an abandonment, or pro tanto abandon- ment, of that rule. Accordingly as to the additional allega- 762 BURNS ELECTRIC SECURITY SERVICES tion that the same conduct of posting that requirement (wearing of uniform, with cap, shield or badge) was unilat- eral action violative of Section 8(a)(5), is also deemed to be without merit. I conclude that the holding of Firestone Coated Fabrics Company, Division of the Firestone Tire & Rubber Company, 179 NLRB 724 (1969) is applicable. It is thus found that at all material times, a rule on wearing of full uniform with identification was in effect; that there was no change in that respect; and consequently no indepen- dent violation of Section 8(a)(3) or (5) in the October 26 posting. I have also found that the same "UL 611" standard at all material times also placed a requirement upon a UL listed central station that its personnel respond to burglar alarms equipped preferably with a pistol, but alternatively with a night stick. However, at the New Haven central station there was this important distinction and for some time the weight of the evidence has convinced me and I have found that there was substantial laxity in local uniform enforce- ment. In my judgment, the considerations to be applied in resolution of the independent allegations of Section 8(a)(3) and (5) differ, as do the results. With regard to the allega- tion that the October 26 posting of a requirement that all the operator-runners carry a pistol or night stick was dis- criminatory and a violation of Section 8(aX3 ), I note that this requirement, as a basic requirement for a UL central station no less existed; was no less subject to enforcement by UL on surprise inspection; and was no less compelling upon Respondent in continued operation of a UL listed central station at New Haven by virtue of future effects of a noncompliance on listings, and direct effects of a loss of such a listing on its business. In the view the facts and the content of the October 26 memorandum, local management had become aware of its deficiency in these respects (from whatever source) and took appropriate action on October 26 to correct the deficiency in compliance with "UL 61 I." Clearly such considerations constituted substantial business justification for its actions. The General Counsel's second point of contention that the action was (nonetheless) dis- criminatory rests on the observation that Respondent ear- lier had not uniformly required all its operator-runners to carry night sticks, and in starting to do so on October 26, is shown to have been discriminatorily motivated because there had been no contemporaneous prodding by UL and the corrective action at that time, reasonably, had a dis- criminatory purpose in the instant proceeding. viz., as part of its program to contest the Union's certification. I simply am not persuaded by this argument. The compulsion for the operator-runner who responds to a burglar alarm of a UL listed central station subscriber, it seems to me, here comes forcibly from continued existence of the require- ments of "UL 611" and Respondent's continued business need to comply with the standard in order to ensure contin- ued operation of a UL listed central station affecting 25 to 40 percent of its New Haven business. The business justifi- cation was a continuing one. As to the General Counsel's third and final point of contention regarding the 8(a)(3) allegation, I have already observed that the only remark found independently unlawful and in violation of 8(a)( ) is not significantly motivational under all the circumstances. It does not give appearance of supporting the earlier dis- crimination so much as it simply evidences an emphatic attitude on Piriano's part that the charges in questioning his actions were without foundation. The General Counsel has failed to show by other evidence that a discriminatory mo- tive was present: and alternatively argues that, direct mo- tive aside, the changes were discriminatory because they were inherently destructive of the unit. To begin with the only (remaining) charges alleged in the complaint as unlaw- ful and in violation of Section 8(a)(3) is the instant required carrying of a pistol or night stick. Given the small number of operator-runners with permits and Piriano's view that an option of carrying a night stick was in any event permissi- ble, it is clear that the change relates in a practical sense to a required response to burglar alarms by most operator- runners carrying a night stick. It would seem as minimally necessary to establish the 8(aX3) violation that the circum- stances be supportive for an implied motivation, e.g., that as a reasonable consequence that guard status would derive from that work condition requirement. However, the Gen- eral Counsel cites no case where wearing a uniform and carrying a night stick would automatically confer guard sta- tus. I do not believe such does, and it would appear to me neither has the Regional Director or the Board on review, inasmuch as earlier findings were that the operator-runner wore uniform and badge and may (or may not) carry a gun or billy club. Certainly such term or working condition of employment may be a factor for consideration as they were, but only along with other factors. They clearly were not the only factors considered in the resolution of the operator- runner status issue. To the extent that the General Counsel seeks to argue that wearing a uniform with identification and carrying a night stick, when combined with the new national position description effective December I, particu- larly in regard to the changes requiring new operator/pa- trollers (runners) to enter the premises showing evidence of forcible entry without the police, and requiring apprehen- sion of intruders, was inherently destructive of the unit'o and thus violative of Section 8(a)(3). Such a combination of required changes is not that which is the allegation of the present complaint. Nor does the latter December I consid- eration, considered merely as additional evidence, convinc- ingly reveal discriminatory motivation in the earlier night stick requirement in view of UL requirements in regard car- rying of night sticks already existing and with business jus- tification made applicable to New Haven operator-runners. Accordingly I now conclude and find that the allegation that on October 26 Respondent changed the working condi- tions in violation of Section 8(aX3) is in its entirety without merit, and it will be recommended that it be dismissed. In reaching the above conclusions I have not been unmindful of the General Counsel's intended reliance on Pilot Freight Carriers, Inc., 221 NLRB 1026 (1975),. reversed 558 F.2d I do not overlook the relevance of a required carrying of a night stick and apprehension and detention of intruders as constiluting material changes from the Regional Director's earlier findings in these respects. On the requirement that a matter be one fully litigated see Merrvwearher Optical Companva 240 NLRB 1213 (1979). " It is further observed that the General Counsel can denve no support for finding of the alleged violation of Sec 8(aX(3 een if it be found that the same conduct is in some respect violative of Sec 8a)s5) without the addi- tional showing of discriminatory motivation. Production Molded Plarrics. Inc.. and Deiroit Plastic Molding Co. 227 NL.RB 776 (1977). 763 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 205 (4th Cir. 1977), cert. denied, 434 U.S. 1011 (1978). In Pilot Freight, the Board indicated its agreement with a con- tention advanced by the General Counsel (without relying on same because motivation was otherwise established) that certain acts of Respondent in that case which were taken during a period when a certain supervisory issue "was unre- solved were inherently destructive of the important em- ployee right under Section 7 to be represented for bargain- ing with fellow employees unless determined, by unit clarification, to be supervisors, and that an 8(a)(3) finding here may also be appropriate without specific evidence of union animus...." Herein, however, the General Counsel had contended that the unit issue has already been initially determined, and I agree. The only open issue is whether there have been post-hearing changes warranting review of its continued appropriateness. As I construe Pilot Freight, supra, it appears that as part of a settlement agreement, the parties had agreed that a representation issue was to be reserved for the Board's subsequent determination, but that the employer's subsequent conduct was discerned to be dis- tortive of the facts then existing and thus affected the very issue reserved. Reasonable foreseeable consequences of re- spondent's actions thus clouded the reserved issue and also reasonably influenced the result not otherwise to be ex- plained by mere codification of the supervisory authority then contended already possessed. Here, the requirements alleged (carrying of a pistol or night stick) were in origin external, previously applicable (by virtue of New Haven's listing as a central station) and clearly were not exceeded. Consequently I conclude that Pilot Freight is inapposite on its facts to the current allegation of 8(a)(3). In Am-Del-Co., Inc. and Compton Service Company, Jointly, 225 NLRB 698 (1976) on which the General Counsel would also rely, the Board found a violation of Section 8(a)3), but seemingly concluding so on the basis that respondent's attempt to con- vert its employees to independent contractor status had been part of its overall attempt (otherwise shown) to elimi- nate the union and to discourage membership and activities on its behalf. The facts of the Am-Del Co., case clearly reveal that it was determined in an alter ego employer set- ting, and that the employer was otherwise found to have engaged in conduct which included threats to employees, remarks disparaging of the union, and a clear attempt to avoid the existing union contract and an aband the union, circumstances not present in the instant case. Other cases relied upon by the General Counsel which rested on estab- lished antiunion animus are readily seen inapposite; e.g., Prote Contracting Corp., 214 NLRB 79 (1974); and Bridg- ford Distributing Co., 229 NLRB 678 (1977). Reliance on Abex Corporation-Aerospace Division, 215 NLRB 665 (1974) on an issue of 8(a)(3) in classification change would appear improvident, cf. fn. 3. Finally any balancing considerations of N.L.R.B. v. Erie Resistor Corp., 373 U.S. 221, 228 (1963) would appear inapplicable for the reasons above stated; principally, that the change specifically alleged in the com- plaint was not shown "inherently destructive" under the total circumstances. The allegation that Respondent's conduct of October 26 was independently violative of Section 8(a)(5) presents dif- ferent considerations, and requires further analysis, as the alleged unilateral change of carrying a pistol or night stick is concerned. For reasons earlier related, including the find- ings that there were operative work rules and practices at New Haven regarding the wearing of uniforms with identi- fication, which during material times were generally en- forced, I conclude and find that the independent allegation of 8(a)(5) (insofar as wearing of uniforms, with cap, shield or badge is concerned) is without merit; and it will be rec- ommended that it be dismissed. As to the October 26 memorandum, I conclude that al- though carrying a pistol, or alternatively, carrying a night stick had been a policy for 10 years (or more), and are "UL 61 I" requirements for a UL listed central station, and thus arguably shown to have been initially a work rule estab- lished at New Haven which operator-runners had followed in the past, in more recent years I am convinced that in actual practice such requirements had not been uniformly adhered to by New Haven operator-runners, or uniformly enforced by local management at New Haven for a long time.72 It would reasonably follow that the circumstances of 4 years of at best nonun'iform and more probable simple nonenforcement of a requirement of carrying a pistol or night stick on certain alarms, is sufficient to conclude that despite the external requirements of UL, Respondent's work rule and practice at New Haven had become debili- tated to the point that it must now be concluded that during the times material herein carrying a pistol or night stick no longer constituted a required work rule, or at least a uni- form practice at New Haven." I conclude and find that the October 26 posting did bring about actual changes in the working conditions of the New Haven operator-runners in that it then required all the op- erator-runners to uniformly and regularly carry (at least) a night stick on dispatch to a burglar alarm in accordance with the existing UL requirement for the operation of a listed central station. Respondent would concede that it did not initially consult with the Union about these matters prior to its October 26 action. Since the Union has already been shown primafacie to have been the exclusive collec- tive-bargaining representative, inter alia, of the aforemen- tioned operator-runners at that time, I conclude necessarily "7 Dowling's testimony that few operator-runners had a permit to carry a gun, and that he had not either carried a gun or night stick, or observed others carrying a night stick during his employment, is not overcome by the record even considered as a whole. Respondent's offered evidence simply does not convincingly meet or refute this testimony of experience. I have accordingly credited Dowling that such was his work experience over the 4- year period of his employment which I must note included 2 supervisory years." The general inability over the years of operator-runners to procure a permit from Connecticut hamlet police chief no doubt was a factor (as Spie- gel suggests) in operator-runners not carrying a pistol. Over the years the carrying of a night stick (as a holster was not provided) as well as the neces- sary flashlight may well have lost out to the convenience of carrying the flashlight alone. Be that as it may, it does appear to me that the above conclusion is the more warranted to be drawn from all the circumstances where, as here, the period of nonenforcement and substantial practical disuse has become long enough t bear significantly on the employees' likely and reasonable understanding of their established working conditions (e.g., in view of employee turnover); and particularly so, where the nonuniform en- forcement appears to have encompassed the entire period of the Union's organizing campaign, employee designation of the Umnon, and resulting cer- tification of the Union as the employee representative. For these reasons I have not viewed the holding of Firestone Coaled Fabrics Company, supra, (and similar such cases cited by Respondent), as controlling the requirement to carry a pistol or night stick as I have on the operative, and from time to time enforced, weanng of uniforms. 764 BURNS ELECTRIC SECURITY SERVICES that the General Counsel has made out a primafacie case as well of independent violation of Section 8(a)(5) in Respon- dent's unilateral posting on October 26. Respondent would defend its unilateral action in that regard on October 26, and irrespective of the Union's earlier certification, on two- fold basis: (a) that there were no actual changes made be- cause of the requirement of UL (which I conclude to be without merit for reasons just stated); and (b) because Re- spondent's posting of such requirements in essence must be deemed to have involved a nonmandatory subject of bar- gaining. In my view, the requirement that an operator-run- ner carry a pistol or night stick when responding to a bur- glar alarm, on its face clearly affects "other terms and condition of employment" of operator-runners within the meaning of the Act, and absent some other paramount con- sideration the same qualifies as a mandatory subject of bar- gaining, cf. Labor Board v. Wooster Division of Borg- Warner Corporation, 356 U.S. 342, 349 (1958). Thus, the Board's holding in The Capital Times Company, 223 NLRB 651, relied upon by Respondent would appear inapposite." Fi- nally, Respondent would also essentially rely upon the Su- preme Court's observation made in Fibreboard Paper Prod- ucts, Corp. v. N.L.R.B., 379 U.S. 203 (1964), when it considered whether subcontracting work previously done by unit employees constituted a mandatory subject of bar- gaining, that "to require the employer to bargain about the matter would not significantly abridge his freedom to man- age the business." In conjunction therewith Respondent ar- gues the mandatory nature of the UL requirements. On first view this argument appears persuasive. However, it is im- mediately to be considered that the runner response was only a portion of Respondent's business at New Haven, and indeed pertinent instances of actual runner response to bur- glar alarms (in which the requirement would alone apply) even less. Respondent may cogently argue that any other arrangement short of requiring all its operator-runners to meet the standard's requirements would not be cost effi- cient. (Left unconsidered is the effects thereof, e.g., the mat- ter of further procedures upon carrying the night stick). However, as the Supreme Court itself noted in response to economic arguments in Fibreboard, supra, "the short answer is that, although it is not possible to say whether a satisfac- tory solution could be reached, national labor policy is founded upon the congressional determination that the chances are good enough to warrant subjecting such issues to the process of collective negotiations." Id. 214. This has been the Board's traditional approach in the balance of changing business conditions and employee collective-bar- gaining rights, cf. Ozark Trailers, Inc., 161 NLRB 561, 566; Brockway Motor Trucks, Division of Mack Trucks, Inc., 230 NLRB No. 147; though it is otherwise where there is clear entrepreneural action as in withdrawal of capital, cf. G. M. Corp., GMC Truck & Coach Div., 191 NLRB 951, 952. However, the Board has had occasion to remind its admin- istrative law judges not to take too narrow a view of the a In Capital Times, supra, involved was the issue of an employer's unilat- eral establishment of a code of ethics, which was determined not to directly affect wages, hours, or other terms or conditions of employment; and thus held to constitute a nonmandatory subject of bargaining. However, even in the Capital Times case it was noted that a duty to bargain over a decision would apply where considerations bearing close relation to employees are involved. field within which the process of collective bargaining works International Harvester Company, 227 NLRB 85, 86. Thus, in International Harvester, the issue involved was the unlawful removal of a classification from an established unit, defended as a consequence of a contended substantial shift in assets from branches and a fundamental change in the company's structure. However, the Board observed that at the most a wholly internal realignment of capital was involved. In the instant case there was no consideration of with- drawal of capital or investment, or imminent threat to con- tinuation of its present investment. The matter must be viewed in the light of the statute's actual requirements con- tained in Section 8(a)(5) and (d) viz., the duty of the parties is to bargain with each other with respect to "wages, hours and other terms and conditions of employment .. ." though the duty is limited to those subjects, within those subjects "neither party is legally obligated to yield." Fibreboard Pa- per Products Corp., supra, at 210. Nor did Respondent ever offer to bargain about the effects of its unilateral action upon the operator-runners." For the above reasons I thus find that Respondent's contention that a nonmandatory subject of bargaining was involved is also without a sub- stantial merit. Accordingly, I conclude and find that Re- spondent in having reinstituted requirements on October 26, long dormant in enforcement at New Haven, that all the operator-runners carry pistol or night stick, without notice or consultation with their exclusive bargaining representa- tive independently violates Section 8(aX5). The same re- quires remedy unless some other circumstances has super- vened, which brings me to consideration of Respondent's final urging that the unit does not have continuing validity, nor should the Union's certification have continuing effi- cacy, because of the effect of Respondent's new national position description (which became effective December I) upon the continued appropriateness of the unit. The central thrust of change in the new job description is contained in section 7.03 which would (considered alone) require the New Haven operator-runner as an operator/patroller (run- ner) to "initiate a search of the premise for signs of forcible entry or fire, whether or not the police have arrived .. ." (emphasis supplied), and "to detain and apprehend or at- tempt to detain and apprehend any unauthorized intrud- ers."'6 As noted and found, however, not only are these duties and responsibilities immediately diminished by the alternative minimum set forth in 7.04, it is clear on the record before me that 7.03 was never followed or enforced at New Haven, nor for that matter convincingly shown fol- lowed (even) substantially in all the other actual stations in the northeast and central regions. I find it unnecessary to go so far as the General Counsel would appear to urge, that the new job description (in its entirety) was issued solely for ' Cf. W. R. Grace & Co., Construction Products Division, 230 NLRB 617 (1977). would note in passing the parties collateral ability to even realign a certification through negotiations; or of course to independently seek unit clarification if changed circumstances brought on by negotiations or other- wise warranted it. "I The General Counsel would apparently concede the new job descrip- tion's above-described duties would bring the operator-runners within the statutory definition of guards. Sec. 9(bX3) in pertinent part relates "any individual employed as a guard to enforce against employeec and other per- sons rules to protect property of the employer or to protect the safety of persons on the employer's premises...." 765 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purposes of relitigating the New Haven's unit's appropri- ateness and validity of the Union's certification at New Ha- ven. In view of National Director Fournier's length of ten- ure with Respondent, prior background, and earlier updating activity, the timing of the December 1 national job description following the October 26 posting (only in part herein determined unlawful) is at best inconclusive, if not speculative. Further no allegation of independent un- lawfulness of the December I new job description was placed in issue before me, or fully heard, and none is deter- mined by me. However, it would appear that the nature of evidence offered may be evaluated on an 8(a)(5).7 1 am constrained to conclude, insofar as this same national job description is presently advanced and urged for consider- ation on the issue that is before me, viz., the raised question of continued validity of the unit's appropriateness because of the above-described changes, and particularly where the controlling changes 5 are shown not to have even been put into effect at New Haven, or many other locations, to note the "self serving" and "beefing up" nature of the argument, and to conclude warrant is shown for careful scrutiny; and that cause appears to disregard same under those circum- stances, as the Board has had occasion to do in the past, Ross Porta-Plant, Inc., 166 NLRB 494 at 496 (1967), enfd. 404 F.2d 1180 (5th Cir. 1968); S. S. Kresge Co., et al., 169 NLRB 442, 443 (1968), modified on other grounds, 416 F.2d 1225 (6th Cir. 1969). It is concluded and found that the new national job description of December I, has in fact and law raised no substantial change of circumstance or new matter that would require the Board to either reexam- ine the decision it made in the earlier representation pro- ceeding or reevaluate the continuing validity of the unit found appropriate. Consequently there appears no collat- eral question raised as to the continuing efficacy of the Union's certification. Accordingly, it having been found on the pleadings en- tered that the Union has been the established and certified as the exclusive bargaining representative of the employees in the unit found appropriate and that Respondent as early as March I and no later than April 6 has generally refused to recognize and bargain with the Union upon demand: and it further now appearing that no changes or special circumstances as raised upon consideration are with merit or otherwise warrant a reexamination of the initial validity of the unit or review by the Board of its continuing validity, Respondent's aforesaid general refusal to recognize and bargain with the Union upon lawful demand is concluded both to have been in violation of Section 8(a)(5) of the Act, " Cf. Highland Terrace Convalescent Center, A Wholly Owned Subsidiary of Centennial Villas, Inc., 233 NLRB 87 (1977). n There appears to have been other changes in the description insofar as New Haven would be concerned. Thus, in 7.01 (the Company's intended assistance in securing permits) there is some though conflicting evidence that such was a change; and apparently in 7.02 leaving immediately on holdup alarm, as a requirement, was a change. I do not find either controlling. I would note no convincing evidence was presented sufficient to warrant find- ing that the prior experience of New Haven operators in attempting to secure gun permits had or would appreciably change. As to 7.04 and 7.05, both Campbell and Piriano testified these provisions involved no change. This matter must be viewed as involving the very same arguments and conten- tions earlier raised in the underlying representation case. Although the docu- mentary evidence was admissable, it is thus not evidence amounting to new matter which would warrant or require a different conclusion, cf. S. S. Kresge, supra. and one which must be remedied. The General Counsel's motion for summary judgment thereon is accordingly granted, and an appropriate remedy will be provided herein. It is further found on the weight of the evidence presented herein that on October 26 Respondent has en- gaged in conduct independently violative of Section 8(a)(5) in unilaterally instituting a requirement, after 4 or more years of at best nonuniform enforcement, that operator- runners at New Haven carry a pistol or night stick. An appropriate remedy will be provided hereinafter. CONCLUSIONS OF LAW 1. The Respondent, Burns Electronic Security Services, Inc., is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, the Connecticut Union of Telephone Workers, Inc., is a labor organization within the meaning of Section 2(5) of the Act. 3. At all times since January 6, 1977, the Union has been, and is now, the sole and exclusive bargaining repre- sentative of Respondent's employees in the following de- scribed appropriate bargaining unit for the purposes of col- lective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment. All employees of the Employer employed at its New Haven, Bridgeport, and Hamden, Connecticut facili- ties, including dispatch operators, operator-runners, in- stallers, service men, inspectors, stock clerks and typ- ists, but excluding salesmen, managerial employees, and supervisors as defined in the Act. 4. By failing and refusing on or after March 1, 1977, to meet and bargain collectively with the Union as the sole and exclusive bargaining representative of the employees in the appropriate unit described above, Respondent has vio- lated, and is violating, Section 8(a)(5) and (1) of the Act. 5. By unilaterally changing working conditions of opera- tor-runners at Respondent's New Haven and Bridgeport fa- cility on October 26 by requiring the operator-runners to carry a pistol or night stick, Respondent has violated Sec- tion 8(a)(5) and (1) of the Act. 6. By unlawfully interrogating employees as to who had filed unfair labor practice charges against it, Respondent has violated Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices within the meaning of 2(6) and (7) of the Act. 8. Respondent did not engage in unfair labor practices other than those found herein. THE REMEDY The General Counsel has urged in her brief that in fash- ioning an appropriate remedy that Respondent be ordered to bargain with the Union: and further that Respondent be ordered to return to the status quo ante prior to October 26, urging that the position of operator-runner be maintained as it existed at the time of certification. According to Gen- eral Counsel's request and in light of my findings this would require an ordered recision of the October 26 memorandum only in pertinent part regarded to requirement to carry a 766 BURNS ELECTRIC SECURITY SERVICES pistol or night stick when responding to burglary alarm. I would note however that in advancing this position the General Counsel had relied on contentions (which I have found herein to be without merit) that Respondent had also violated Section 8(a)(5) in the requirement set forth for wearing of a uniform with cap, shield or badge, and per- haps more significantly had violated Section 8(a)(3) in re- gard to requiring the New Haven operator-runners to wear uniforms with identification and to carry a night stick or pistol. I must also note there is immediate practical diffi- culty for the parties in ordering a full revision remedy, for Respondent in meeting UL requirements in running of the central station, and for the other parties in enforcement, noting Shanks' testimony did indicate that some operator- runners had carried night sticks in the past many times. Bearing in mind that the remedy should be adopted to the situation calling for redress79 and that the remedy shall in- clude an appropriate order to recognize and bargain with the Union; and it appearing that not presented is a case where opportunity for genuine bargaining is the critical fac- tor, I am convinced that a full recission order is not re- quired or appropriate under all of the attendent circum- stances in order to fully effectuate the purposes of the Act. Under all of the circumstances above shown, that in addi- tion to the usual remedial order providing for cessation of the unilateral activity adjudged to be in violation of Section 8(a)(5) and of like kind, that a remedial order to bargain over the effects of the earlier unilateral decision to require the carrying of a pistol or night stick (including use of same) will fully effectuate the purposes of the Act herein. g0 It shall be so provided. In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargain- ing agent for the period provided by law it is recommended that the initial period of certification be construed as begin- ning on the date Respondent commences to bargain in good faith with the Union as the recognized bargaining repre- sentative in the appropriate unit. See Mar-Jac Poultry Com- pany, Inc., 136 NLRB 785 (1962); Commerce Company d/b/ a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Bur- nett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). Upon the basis of the above findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDERS' The Respondent, Burns Electronics Security Services, Inc., its officers, agents, successors, and assigns shall: I. Cease and desist from: (a) Failing and refusing to meet and bargain collectively 9Cf. Winn-Dixie Stores, Inc., 147 NLRB 788, 791 (1964): 361 F.2d 512 (5th Cir. 1966). 0 Cf. Clinton Foods, Inc., d/b/a Morton's I.GA. Foodlinen, er al, 240 NLRB 1246 (1979). '8 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. with the Connecticut Union of Telephone Workers, Inc., as the sole and exclusive collective bargaining representative of all the employees in the following appropriate unit: All employees of the Employer employed at its New Haven, Bridgeport, and Hamden, Connecticut facili- ties, including dispatch operators, operator-runners, in- stallers, service men, inspectors, stock clerks and typ- ists, but excluding salesmen, managerial employees, and supervisors as defined in the Act. (b) Unilaterally changing the terms and conditions of employment of employees in the aforesaid unit without bar- gaining with their representative. (c) Unlawfully interrogating employees as to the identity of employees who may have filed charges of unfair labor practices against Respondent. (d) In any like or related manner interfering with, re- straining or coercing our employees in the exercise of their rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act. (a) Upon request, bargain with the aforesaid Union, the Connecticut Union of Telephone Workers, Inc., as the sole and exclusive collective-bargaining representative of its em- ployees in the above-described unit with respect to rates of pay, hours of employment and other terms and conditions of employment, including the effects of our decision of Oc- tober 26, 1977, to require all operator-runners to carry a pistol or night stick, and, if an understanding is reached, embody it in a signed agreement. (b) Post at the New Haven, Bridgeport, and Hamden, Connecticut, facilities of Respondent, copies of the notice attached hereto and marked "Appendix."'' Copies of this notice, on forms provided by the Regional Director for Re- gion 1, after being duly signed by the appropriate represent- ative of Respondent shall be posted immediately upon re- ceipt thereof and maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that the no- tices are not altered, defaced, or covered by any other mate- rial. (c) Notify the Regional Director for Region , in writing within 20 days from the date of this Order, what steps Re- spondent has taken to comply herewith. "1 In the event that 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 Judg- ment of the United States Court of Appeals Enforcing an Order of the Na- tional Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to meet and bargain collectively with the Connecticut Union of Telephone Workers, Inc., as the sole and exclusive collective-bargaining representative of our employees in the following ap- propriate unit: 767 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All employees of the Employer employed at its New Haven, Bridgeport, and Hamden, Connecticut facili- ties, including dispatch operators, operator-runners, installers, service men, inspectors, stock clerks and typists, but excluding salesmen, managerial employ- ees, and supervisors as defined in the Act. WE WILL NOT institute changes with respect to the terms and conditions of employment of our employees in the appropriate bargaining unit defined above, with- out prior consultation and bargaining with the afore- said Union as the exclusive collective-bargaining rep- resentative. WE WILL upon request bargain with the above- named Union, as the exclusive representative of all the employees in the above-described bargaining unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, including the effects of our decision of October 26, 1977, to require all opera- tor-runners to carry a pistol or night stick, and, if an understanding is reached, embody it in a signed agree- ment. WE WILL NOT unlawfully interrogate our employees as to the identity of employees who may have filed charges of unfair labor practices against us. WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exercise of their rights guaranteed them by Section 7 of the Act. BURNS ELECTRONIC SECURITY SERVICES, INC. 768