Ogle Protection Service, Inc.

OGLE PROTECTION SERVICE, INC. AND JAMES L. OGLE 545 places, including all places where notices to registrants for employment are customarily posted . Reasonable steps shall be taken by Local 25 to insure that such notices are not altered , defaced, or covered by any other material. (b) Sign and mail copies of said notice to the Regional Director for Region 4 for transmission to and for posting by American Dredging Company, if willing, at places where notices to prospective employees are customarily posted. (c) Notify American Dredging Company, in writing, that it withdraws all objection to the employment of A. Victor Cherbonnier as a representative for the purposes of bargaining about grievances , and mail a copy of such notification to A. Victor Cherbonnier. (d) Notify the Regional Director for Region 4, in writing, within 20 days from the receipt of this Decision , what steps it has taken to comply herewith Y16 119 If this Recommended Order be adopted by the Board , this provision shall be modified to read as follows: "Notify the Regional Director for Region 4 , in writing, within 10 days of the date of this Order, what steps it has taken to comply herewith." APPENDIX NOTICE TO PROSPECTIVE EMPLOYEES OF AMERICAN DREDGING COMPANY Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that: WE WILL NOT condition referrals for employment to American Dredging Company upon union membership. WE WILL NOT in any like manner restrain or coerce prospective employees of American Dredging Company in the exercise of their rights to organize; to form, join, or assist a labor organization ; to bargain collectively through a bargaining agent chosen by themselves ; to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection; or to refrain from any such activities (except to the extent that the right to refrain is limited by the lawful enforcement of a lawful union- security requirement). LOCAL 25, MARINE DMSION INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, Union. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 1700 Bankers Security Building,,Philadelphia, Pennsylvania , Telephone No. Pennypacker 5-2612, if they have any question concerning this notice or compliance with its provisions. Ogle Protection Service, Inc. and James L. Ogle and Interna. tional Union, United Plant Guard Workers of America, and its Local 114. Cases Nos. 7-CA-4108 and 7-CA-4244. Novem- ber 6, 1964 DECISION AND ORDER On April 17, 1964, Trial Examiner James R. Hemingway issued his Decision in the above-entitled proceeding, finding that the Respond- ents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Deci- 149 NLRB No. 50. 770-076-65-vol. 149-36 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sion.1 He also found that the Respondents had not engaged in certain other unfair labor practices alleged in the complaint and recom- mended that such allegations be dismissed.2 Thereafter, Respondents and the Charging Party filed exceptions to the Decision and support- ing briefs. Thereafter, Respondents filed an answering brief to the exceptions and brief of the Charging Party and the General Counsel filed cross-exceptions and an answering brief to the exceptions and brief of Respondents. The Respondents also filed requests for oral argument.3 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the foregoing exceptions and briefs, and the entire record in this case,4 and hereby adopts the findings, conclu- sions, and recommendations of the Trial Examiner 5 except as modi- fied herein. 1 The Recommended Order of the Trial Examiner applies to both Respondents Ogle Pro- tection Service, Inc., and James L. Ogle, an individual We assume that the Trial Ex- aminer's findings as to "The Remedy" and his Conclusions of Law were intended to apply to both Respondents. Accordingly, we correct his inadvertent error in failing to include both Respondents throughout the foregoing sections of his Decision . We agree with the Trial Examiner's finding that James L. Ogle was the alter ego of the Respondent Corpora- tion in view of his control of the corporation and, together with his wife , ownership thereof. See Industrial Fabricating, Inc., et al., 119 NLRB 162. Moreover, the Respondent's al- though raising the question of proper joinder of Ogle as an individual in their answers, do not specifically except to this finding. In view of the foregoing , we find that Ogle was a proper party herein and we shall make him individually responsible , together with the corporation , for compliance with all of the provisions of our Order herein. Cf. Bon Hennings Logging Co ., a Corporation, 132 NLRB 97, 98. 2In the absence of exceptions thereto, we adopt pro forma the Trial Examiner's findings concerning those allegations of the consolidated complaint which the Trial Examiner recom- mended be dismissed. 3 These requests are hereby denied as, in our opinion , the record including the exceptions, cross-exceptions , briefs, and answering briefs adequately presents the issues and positions of the parties. • The consolidation of Cases Nos . 7-CA-4108 and 7-OA-4244, as set forth in the Trial Examiner's Decision , took place following the close of the hearing in Case No . 7-CA-4108. Although the original charge in Case No. 7-CA-4108 named only the corporation as the Respondent herein, an amended charge and complaint in the consolidated case also in- cluded Ogle as an individual Respondent. As noted, supra, the Respondents do not spe- cifically except to the joining of Ogle as an individual Respondent in this consolidated case. 6 These findings and conclusions are largely based upon credibility determinations of the Trial Examnier, to which the Respondents have excepted , alleging that the Trial Ex- aminer was biased and prejudiced . We find the charge without merit . In particular, we do not construe the observation of the Trial Examiner that certain evidence was tailored to be a reflection on the conduct of counsel for the Respondents prior to or during the hearings in this case. Our review of the record in this case leads us to the conclusion that the Trial Examiner 's credibility findings are not contrary to the clear preponderance of all the relevant evidence. Accordingly, we find no basis for disturbing the Trial Ex- aminer's credibility findings in this case. Standard Dry Wall Products, Inc., 91 NLRB 644, enfd. 188 F. 2d 362 (C.A. 3). OGLE PROTECTION SERVICE, INC. AND JAMES L. OGLE 547 THE REMEDY We agree with the Trial Examiner's recommended remedy except in the following respects. The Trial Examiner found that the Re- spondents unlawfully refused to sign a collective-bargaining contract after agreement had been reached. While requiring that Respondents sign this agreement retroactive to. November 14, 1962, and honor said contract until December 31, 1963, and bargain for a new con- tract, upon request, the Trial Examiner refused the request of the General Counsel that the Respondents be ordered to perform the contract retroactively and pay their employees any backpay due under such contract. We find merit in the exceptions-of the Charging Party and General Counsel to the Trial Examiner's failure to remedy fully the violations of Section 8(a) (5) which were committed herein. The Trial Examiner's remedial order was based in part upon a conclusion that the agreement reached had expired on December'31, 1963, and that backpay and all lost benefits could only be sought in another forum. The General Counsel challenges this disposition and argues that an order should be framed to operate 'prospectively and, in addition, prevent the Respondents from reaping the benefits of their unfair labor practices by retaining wages and other benefits which would have been paid to employees but for the unfair labor practices. We find merit in these exceptions. Consistent with Board precedent where, as in this case, a contract with an automatic renewal clause is involved, we shall order the Respondents, upon request, to sign the agreement which shall be retroactively effective to the date the agree- ment was reached, i.e., November 14, 1962,6 and prospectively effec- tive from that date to at least the next renewal date as provided therein following signature. Due to the lapse of time, the Union may, however, desire to bargain for a new agreement immediately rather than be bound to the terms of an agreement reached in 1962. If so, we shall also provide that, upon request of the Union, the Respondents bargain with the Union.' We are of the further view that, in order to effectuate the policies of the Act and in order to fully remedy the violations committed herein, we should order the Respondents, if requested by the Union, to sign the agreement reached in 1962 and to make the employees whole for any losses they may have suffered by reason of Respond- ents' unlawful refusal to sign the contract.8 A failure to provide for 0While agreement on a new contract was reached on November 14, 1962, it must be noted for remedy purposes that this contract was to become effective as to new wage rates and insurance on January 1, 1963 7 North County Motors, Ltd., 146 NLRB 671. Also see Aaron Newman, et al., d/b/a Colony Furniture Company, 144 NLRB 1582. 8 Backpa''. shall be computed in accordance with the formula set forth in F. TV. Wool- worth Company . 90 NLRB 289 , and shall bear interest as prescribed in Isis Plumbing Heating Co , 138 NLRB 716. 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the foregoing, retroactive to the date the agreement was reached, would enable the Respondents to benefit from their own unfair labor - practices.9 We shall, accordingly, amend the Recommended Order of the Trial Examiner to fully remedy the violations herein. ORDER Pursuant to Section •10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts, as its Order, the Order - recommended by the Trial Examiner, with amendments set forth herein. The Board orders that the Respondents, Ogle Protection Service, Inc., its officers, agents, successors, and assigns, and James L. Ogle, an individual, shall take the action set forth in the Trial Examiner's Recommended Order, as amended hereinafter. , 1. Delete subparagraphs (a) and (b) of paragraph 2 of the affirm- ative action provisions of the Trial Examiner's Recommended Order and substitute in lieu thereof the following : ."(a) Upon request by International Union, United Plant Guard Workers of America, and its Local 114, execute the agreement; reached on November 14, 1962, the agreement to be effective from that date to at least the next renewal date as provided therein following signature, but if no request to execute is made, bargain upon request with the Union as the exclusive bargaining representative of, all employees in the following unit : I "All plant protection employees of Respondents working in plants and buildings located in the Michigan area, excluding all supervisors as defined in the Act. "(b) Upon request by the Union that the foregoing agreement be executed, give retroactive effect to the. terms of said agreement, including but not limited to the provisions relating to wages and other benefits, and make whole employees for any losses suffered by reason of Respondents' . refusal- to execute. the agreement, in the manner set forth in the section of our Decision and Order entitled `The Remedy:". . - . I << 2. Delete. the first indented paragraph of the Appendix to the Trial Examiner's Decision and substitute for the fourth. indented paragraph thereunder the following : WE WILL, upon request, execute the November 14, 1962, agree- ment reached by us and International Union, United Plant Guard Workers of America, and its Local 114, the agreement to 9 See Herman Sausage Co , Inc, 122 NLRB 168, 172, enfd. 275 F. 2d 229 (C A. 5). Gene Hyde d/b/a Hyde's Super Market, 145 NLRB 1252 , upon which the Trial Examiner relied in refusing to similarly provide, is a factually distinguishable case . See Cooke d- Jones, Inc., 146 NLRB 1664. OGLE, PROTECTION SERVICE, INC: AND JAMES L. OGLE 549 be effective from that date ;to at least the next renewal date pro- vided therein following signature, and give retroactive effect to all the terms of said agreement, including but not limited to the proyisions relating to wages and other benefits and make whole employees for any losses 'suffered by reason of Respondent's refusal to execute the agreement,' but if no request to execute is made, we will, upon request, bargain collectively with the Union as the exclusive bargaining representative of all the employees in the following unit : IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges violations of the Act not found in this Decision and Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE On February 13, 1963, International Union, United Plant Guard Workers of America, and its Local 114, herein jointly called the Union, filed a charge against Ogle Protection Service, Inc., herein called Respondent, alleging that the Respond- ent had engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, 29 U.S.C., Sec. 151, et seq., herein called the Act: Upon this charge, the General Counsel of the National Labor Relations Board, respectively herein called the General Counsel and the Board, on behalf of the Board, by the Regional Director for Region '7, on April 4, 1963, issued a complaint alleging violations of Section 8(a)(1) and (5) of the Act. Under date of April 12, 1963, the Respondent, by letter, made certain statements concerning paragraphs 8, 10, 11, 12, 13, and 14 of the complaint. Certain of the statements made in this letter constitute denials of the allegations of the complaint, certain of them constitute admissions, and others constitute argument. On April 30, 1963, the General Counsel made a motion for summary judgment on portions of the pleadings. On May 7, 1963, Trial Examiner Thomas F. Wilson issued an order granting said motion and ruling that paragraphs 1 through 7 of the complaint were taken as admitted. Pursuant to notice, a hearing was held in Detroit, Michigan, on May 21, 1963, before Trial Examiner James R. Hemingway. Although offered an oppor- tunity to procure counsel, the Respondent -declined, and the hearing proceeded with the Respondent being represented by its president and general manager, James L. Ogle. Full opportunity was afforded the parties to examine and cross- examine witnesses and to introduce documentary evidence. Following the close of the hearing` on May 21, Local 114 filed a new charge against Respondent in Case 7-CA-4244 on June 3, 1963. An amended charge joining James L. Ogle, individually, as a respondent was filed by that organization on July 10, 1963. On July 19, 1963, the General Counsel filed a motion with the Trial Examiner to reopen the hearing , to grant the Regional Director permis- sion to consolidate Cases Nos. 7-CA-4108 and 7-CA-4244; and to amend the original complaint and to remand the entire matter to the Regional Director so that he might order a consolidation of cases and issue an amended complaint and notice of hearing . A' notice to show cause why said motion should not be granted was served on the parties on July 23, 1963 . Thereafter, the Respond- ent filed an opposition to the motion . On August 2, 1963, the Trial Examiner granted said motion and issued an order reopening the hearing on a date thereafter to be set by the said Regional Director . An amended complaint on the consolidated cases was issued on August 9 and, pursuant to notice , a hearing was thereafter held at Detroit , Michigan , on November 6, 7, and 8, 1963. In the consolidated complaint , Ogle, as an individual, was named as a respondent along with the corporation bearing his name. , Herein the corporate respondent will be called Respondent . and the individual respondent will be called Ogle except where both are referred to, in which case they will be called Respond- ents. Respondents filed an amended answer in effect denying the commission of the alleged unfair labor practices and alleging that Ogle was not a proper '550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD party. Respondents were represented by counsel ' at the reopened hearing. At the opening of, this hearing, the parties, 'stipulated, to, limit the - evidence with respect to the 8(a) (5) violation to what had been adduced at the original hearing except for what Ogle, himself, should testify to at the reopened hearing This stipulation did not apply, however, to additional allegations of refusal to bargain in the form of refusal to deal with grievances. The amended complaint also alleged discrimination against Harold Leeth, Thomas Lewis, and Butler Hamil- ton. The amended complaint further alleged surveillance of union, meetings, threats of discharge unless employees refrained from ' engaging in' union or other concerted activities, and assistance in circulating a petition for' decertification of the Union. Respondents filed a joint answer on October 9, 1963, in which they deny, in substance, the allegations of the unfair labor practices alleged in the complaint. Respondent Ogle, individually, also, denied that he was a proper party to the proceeding. At the close of the reopened hearing, time was granted in which to file briefs with the Trial Examiner, and such briefs were received from the General Counsel and the Respondents. From my observation of the witnesses, and upon the entire record in the case, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS Respondent is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of Michigan. At all times material herein, Respondent has maintained its principal office and-place of business at 3027 David Stott Building in the city of Detroit, State of Michigan, and has been, at all times material- herein, engaged in the business of providing and performing plant protection services for industrial and commer- cial establishments and hospitals, and also investigative services. Ogle established Respondent and is president and general manager thereof. Ogle owns all of the stock of Respondent with his wife. His wife is a director of the corporation, but is not active in the business. Ogle at all times material hereto, has been in charge of labor relations of the Respondent. In view of Ogle's ownership and- control of the Respondent, I find that Respondent is his alter ego and that he is a proper party hereto.' During the fiscal year ending July 31, 1963, which period is representative of Respondent's operations during all times material herein, Respondent, in the course and conduct of its business operations, has performed services valued in excess of $60,000, which have been performed in and for various enterprises located in States other than the State of Michigan. During the year ending December 31, 1962, which period is representative of its operations during all times material herein, Respondent, in the course and conduct of its business operations, performed services for the following enterprises, which services totaled in excess of $50,000: Production Steel Co., a manufacturer of steel products, which annually purchases and causes to be delivered to its place of business in Michigan, goods and materials valued in excess of $50,000, which goods and materials are transported to said place of business in Michigan directly from .States of the United States other than the State of Michigan, and which annually sells, distributes, and transports products in excess of $50,000 from its plant in Detroit, Michigan, directly to points located outside the State of Michigan. Manufacturers National Bank of Detroit, a commercial banking establishment, which annually transmits currency and checks for collection, valued in excess of $50,000, directly to points outside the State of Michigan, and annually receives currency and checks for collection, valued in excess of $50,000, directly from points outside the State of Michigan. Upon the foregoing findings of fact, which are based on the pleadings, I find that Respondents are engaged in commerce within the meaning of the Act, that the Board has jurisdiction, and that it will effectuate the; policies of the Act to assert jurisdiction in this case. H. THE LABOR ORGANIZATION INVOLVED International Union, United Plant Guard Workers of America; and its Local 114, herein called jointly the Union, are, and have been at all `times material .1 See National Garment Company and Wells-Wear Company, 69 NLRB 1208,'eufd 166 F. 2d 233 (C.A. 8), cert: denied 334 U.S. 845. ' ' ' OGLE PROTECTION SERVICE, INC: AND JAMES L. OGLE 551 herein, a labor organization within the meaning of Section 2(5) of the Act. It admits to.,membership ,, employees • of the Respondent, among others. It has repre- sented such employees in collective bargaining since 1957. In its amended answer to the amended complaint, Respondent states that it has insufficient, knowledge upon-which to form a belief as to whether or not,the Union is a labor organization within the meaning of the Act.. ' However, the allegation in the, original complaint was not denied -and was taken as admitted by,, Respondent by order of Trial Examiner Wilson. , In any event, there is substantial, evidence in the record show- ing that the Charging Party is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES „ • ' A. Background The Union. had been recognized by the Respondent as the bargaining represen- tative of its plant guards in 1957 and continuously thereafter except as related in the next section hereof. In May 1960 Respondent and the Union entered into a collective-bargaining contract for 1 year. In November 1960 the Union filed a charge against the Respondent which resulted, in February 1961, in a settlement stipulation authorizing the Board to enter an order that Respondent cease and desist from refusing to bargain concerning grievances and other contractual matters, from adjusting grievances without giving the Union an opportunity to be present at the adjustment thereof, and from in any other manner interfering with, restraining,. or coercing its employees in the exercise of the rights guaranteed in Section- 7 of the Act. The settlement stipulation also pro- vided for an affirmative Board order to bargain collectively concerning grievances and other contractual matters, to designate a negotiator who would be available at all reasonable times to act on behalf of Respondent in dealing with the Union on matters of collective bargaining, to furnish the Union, on request, with certain information needed for collective bargaining, and to post a notice. Pursuant to this stipulation, the Board, on April 10, 1961, entered such an order. On May 18, 1961, the Respondent and the Union amended the 1960 agreement with respect to wages and extended that agreement to July 15, 1962. On July 10, 1962, Respondent and the Union executed an agreement to extend the existing con- tract indefinitely subject to 10 day's written notice of termination by either party. The General Counsel adduced evidence tending to prove that, in the early part of 1962, the Respondent had induced one or two employees, members of the Union, to influence the selection of union committeemen. Since this conduct, if it occurred, took place more than 6 months before the filing of the original charge (February 16, 1963), it could not be found to constitute an unfair labor practice. But whether the General Counsel's witnesses or the Respondent's wit- nesses told the truth about this, the evidence does establish to my satisfaction that the Respondent was well informed concerning the election of committeemen in March 1962, as well as concerning union meetings and the number and identity of numbers present at such meetings throughout the year 1962. B. The refusal to bargain _ 1. The appropriate unit • The complaint alleges, and I find, that all plant protection employees of Respond- ent corporation working in plants" and buildings located in the Michigan area,2 excluding all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. The Union's-majority;in the appropriate unit The amended answer admits that, on December 23, 1957, a majority of the employees in the appropriate unit designated and selected the Union as their collective-bargaining :,representative, for the purpose • of , collective bargain- 2 Respondent's amended answer alleges that the'appropriate unit should consist, of all such employees within the State of Michigan. My finding is based on. the stipulation en- tered into by the parties in February 1961; there being no evidence; requiring any modifica- tion thereof. - - `552 , DECISIONS OF-NATIONAL LABOR RELATIONS ) -BOARD. ' ing. The amended answer in effect denies, however, that the Union continues to date thereof to be the collective-bargaining representative of the said employees.3 As proof of majority, the General Counsel offered in evidence lists of employees in the unit for whom dues had been checked off by the Respondent for November and December 1962. Dues were thus paid by 115 employees in November and by 111 employees in December. These were substantially all the employees in the unit. Respondent offered no evidence of reason to doubt the Union's majority. I find, on this evidence, that in November and December 1962 the Union was, and at all times thereafter material hereto has been, the designated representative of all the employees in the aforesaid appropriate unit for the purpose of collective bargain- ing within the meaning of Section 9(a) of the Act .4 _ 3. Negotiations and refusal to sign contract More than 60 days before the-expiration of the 1961 contract, the Union sent Respondent a notice of termination as of the expiration date, July 15, 1962, and a request to negotiate a new contract. On July 9, 1962, Benton Bilbrey, president of the Local Union, Willie England, vice president thereof, and the Union's bargaining committee met with Ogle and Assistant Manager Don Morri- son for the Respondent at the latter's offices. The Union offered proposals of new sections based on the old contract, including a proposed wage increase from $1.40 to $1.55 an hour, with a beginning rate of $1.50 for the first 30 days of employment. Ogle asked for 30 days to study the proposals and the Union consented. Meanwhile, the parties, on July 10, signed an agreement extending the old contract subject to 10 days' written notice by either party. The next meeting was held on August 14, 1962, with the same parties pres- ent. The Union notified Ogle that it had reached agreement on wages at other companies with a beginning rate of $1.43 for the first 30 days of employ- ment and a rate thereafter of $1.48 and revised its demand accordingly. Ogle agreed to all the contract provisions except those classed as "economic," which included holidays, holiday pay, insurance, and wage -scale. A third meeting was held at the Union's conference room on September 19, 1962, but no agreement was reached on economic issues. Two subsequent dates were set in October but in each instance they were canceled at Ogle's instance. About October 9, 1962, Bilbrey telephoned Ogle and accused him of stalling. Ogle countered that the Union was trying to put him out of business. Bilbrey said that he was going to call a strike vote and he did so on October 16. The vote authorized a strike. Bilbrey notified the State Mediation and Federal Concili- ation agencies the following day of the impending strike. On October 18, Bilbrey telephoned Ogle to resume negotiations. Ogle told Bilbrey that he was sick and that David Colman, an attorney who had previously negotiated a contract with the Union for the Respondent and who had entered into the aforementioned settlement agreement for Respondent, would thenceforth represent the Respondent. Bilbrey asked if Colman had full authority to consummate an agreement and Ogle said he did, that Colman would step in and carry on negotiations and complete the agreement. Bilbrey telephoned Colman and set up a meeting for November 2, 1962, which was attended by Bilbrey and three committeemen (Rivers, Lewis, and Wolski) for the Union and by Colman for the Respondent. Bilbrey told Colman that the parties had already agreed on noneconomic issues, but Colman said he wished to make certain changes in language. The Union accepted Colman's changes. The Union asked that the new wage rates go into effect as of Novem- ber 1. Colman said that the Respondent needed more time. The Union asked for a 3-year contract, but Colman wished to limit it to 1 year, to expire Decem- ber 31, 1963, and he sought to postpone the effective date of economic benefits until January 1, 1963. Colman requested deletion of a clause calling for payment of licenses and permits by the Respondent. The Union consented on condition that the rest of the agreement be reached. Colman said that he wished to talk the matter over with Ogle. Bilbrey expressed surprise, saying that Ogle 3It is noteworthy that in Ogle's letter of April 12 , 1963, which served as answer to the original complaint, there appears a note: "The union knows that I will continue to bar- gain with them providing they will bargain with me as an individual agency and that they will not establish a minimum wage for a group of agencies . .. . 11 On that date the Union's majority was not denied by Respondent. 4 Even if, in January 1963 or thereafter, the Union lost its majority, such loss may be attributed to Respondent's repudiation of the collective-bargaining agreement. OGLE PROTECTION SERVICE, INC. AND JAMES L. OGLE 553 had told him that Colman had authority to negotiate and consummate the agree- ment. Colman said that he had authority but felt that he should consult with Ogle. - The meeting ended. - . Later, Bilbrey' telephoned Colman and arranged a meeting at Respondent's' office for November 14, 1962. This was attended by Bilbrey, England, and the same committeemen for the Union and by Colman and Ogle for the Respond- ent. The Union accepted the Respondent's proposed termination date, Decem- ber 31, 1963. The agreement was to be dated November 14 but was to be effective as to new wage rates and insurance on January 1, 1963. Ogle said that Respond- ent paid for the licenses and permits anyway, so that might as well be put back in the agreement. Ogle was very reluctant to agree to the new wage rates, despite the fact that his competitors had agreed to them, because he claimed that, unlike most of his competitors, his business was largely with hospitals, and that hospitals were not likely to accept an increase. It is a major issue as to whether or not, at this meeting, the Respondent, in fact, finally agreed to the wage rates. The Respondent takes the position that all the terms except wages were agreed to at that meeting. Ogle quoted Bilbrey as saying 11. . . let's get this contract signed and we will meet the first week in January and try to get into this wage structure." Bilbrey and England quoted Ogle as saying that he would sign the agreement but it might break him or put him out of business. Committeeman Lewis quoted Ogle as saying substantially the same as England testified. Committeeman Wolski testified that there was no agreement on wages and that Ogle suggested that perhaps they could meet after the first of the year and settle the economic issues. Committee Chair- man Rivers quoted Bilbrey as saying "Sign the contract now and we'll talk about a wage differential after the first of the year." At another point, he quoted Bilbrey as saying, "Sign it now and we'll talk about the pay rate after the first of the year." Rivers added: "I was kind of shocked at that. I didn't see how he was going to sign for one rate and later reduce it to another pay scale." 5 From a full consideration of the evidence, including that hereinafter related, I conclude and find that Ogle, reluctant though he was, did in fact agree to sign the contract, expecting relief from the burden of higher wages through increase in his charges to clients, but hoping that if the clients (particularly hospitals) would not con- tinue to contract for guard service at higher rates, the Union, at a meeting to be held in January, would reconsider and revise the wage scale downward. It -is fairly evident that, at the November 14 meeting, Ogle requested a meeting early in January for reappraisal of the wage rates if necessary and that the Union agreed to this. Having agreed, however, that the contract would be signed, it was agreed that Colman would draft the completed contract. Once before December 5, and again on the latter date, Bilbrey telephoned Colman to see if the contract was ready. Each time Colman told Bilbrey that he had been busy and had not got to it. Bilbrey finally told Colman that he, himself, could draft the contract, and Colman consented to his doing so. On December 11, 1962, Bilbrey had the draft ready except for the insurance clause. That day he telephoned Colman and had Colman dictate that clause to Bilbrey's secretary. Bilbrey told Colman that he would send the draft of the contract over to Colman the following day. On December 12, 1962, Bilbrey sent six copies of the agreement to Col- man's office by England, and Colman agreed to have them signed and returned by December 14. But by December 14 no agreement was returned. Bilbrey telephoned Colman and, asked about it. Colman said that he had been very busy but would take the agreements home with him over the weekend for proofreading and would deliver them signed the following Monday, Decem- ber 17. Not having received them on December 17, Bilbrey on December 18 again telephoned Colman. Colman said that he had proofread the agreement, found it satisfactory, and would send the copies to Ogle's office for signature and have Ogle deliver the signed copies by messenger by closing time that day, December 18. Meanwhile, Bilbrey had sent out notices for a ratification meeting for 9:30 a.m. on December 19 and sought to have the signed agreement present at the meeting., About 9:30 p.m. on December 18, Bilbrey telephoned Colman at his home and told him that ho had not received the, signed agreement back that day as promised. Colman expressed surprise and asked Bilbrey to telephone again, in an hour. Bilbrey did so, and Colman-said that Ogle had promised to sign s Both Rivers and Wolski turned - against the Union in early 1963 and they were wit-, nesses for the Respondent ., As indicated above, Rivers' testimony varied somewhat in quoting Bilbrey at different points in his testimony . , • • - - , , 554 DECISIONS OF,NATIONAL LABOR RELATIONS BOARD the drafts of the agreement and have them at the union hall at 9 a.m. on December 19 before the appointed time for the ratification meeting.6 When the signed drafts were not delivered the next morning, Bilbrey neverthe- less called the meeting to order, read the entire agreement to those present, and took a vote. Those present voted to ratify. Another meeting for employees on the day shift had been set for that night. Following the morning meeting, Bilbrey telephoned Ogle at his office and said that he had not received the signed copies of the agreement. Ogle said that his son had, by misunderstand- ing, taken them to the Respondent's office instead of to the union hall. Bilbrey asked, "Who in the h- are you -ing?" Ogle replied, according to Bilbrey, "I'll tell you right now, I'm not going to go through with this agreement." Bil- brey said that as far as the Union was concerned they had an agreement, that he had sent six copies to Colman for signature, that Colman had promised they would be signed, and that he was going to send England right over and pick up the signed copies. England went to Respondent's office and told Assistant Manager Morrison that he had come for the signed contracts. Morri- son handed England an envelope. England opened the envelope and found only two unsigned copies therein. He remarked about this to Morrison. Morri- son said he knew nothing about it and that England would have to speak with Ogle. England did so. According to England, Ogle said that, by mistake, his son had brought the contracts back to his office instead of to the union hall and that he was glad that his son had made the mistake because now he was not going to sign them. England testified that he asked about the other four copies of the contract and that Ogle had replied that he was not going to give them to him. On January 3, 1963, Ogle telephoned Bilbrey for a meeting. Bilbrey appar- ently agreed to one at his office on January 7. He asked Ogle to bring with him the signed agreement. The meeting at the Union's office on January 7 was attended by Bilbrey, the union committee, and an International representative of the Union named Dillon. In a caucus held by the Union before that meeting, Rivers testified, Dillon expressed the belief that the Union would have to give Ogle some consideration in the wage area. At the meeting, however, Bilbrey stated that it was the Union's position that they had a contract. Ogle explained that he was having difficulty getting higher rates from clients and spoke of dividing his agency into two sections. The reason for this was not mentioned, but apparently it had something to do with different rates of pay in each section. At the end of the meeting, Ogle testified, "They promised to think it over and let me know." There is no evidence, however, that the Union did abandon its position that there was a contract already and it never agreed to a modification. The last meeting between the parties was arranged, apparently, by a State mediator. It was held on January 30, 1963. Colman and Ogle were present for the Respondent. The Union was represented by Bilbrey, Dillon, and the committee Each party stated its position for the mediator. Bilbrey, for the Union, said that they had bargained to a contract and that the Respondent' had agreed to sign it but had backed down. Colman said that it was the Respondent's position that there was no agreement because it was not signed. The meeting produced no change. 4. Conclusions regarding refusal to bargain on contract There is no contention that there was a failure or refusal to bargain for a collective-bargaining agreement'except insofar as Respondent failed and refused to sign the consummated agreement Although I find that Ogle, on behalf of the Respondent, was reluctant to make a final agreement on wages at the November 14, 1962, meeting and only agreed to do so with the understanding that the new wage rates would be reviewed in January 1963 in case he was unsuccessful in passing the raises along to clients, I find that he did so agree and should have signed the written memorial of the agreement. In failing and refusing to do so, I find, Respondent violated Section 8(a)(5) and (1) of the Act 7 Respondent has continuously thereafter refused to sign the contract. 6 These findings are based on Bilbrey's'credited testimony. Colman, although available, was not called by the Respondent as a witness. 7 H. J. Heinz Company v. N.L.R B , 311 U.& 514; N.L.R.B. v. American Creosoting Com- pany, Inc, 139 F. 2d 193 (CA 6), cert. denied 321 US. 797; WATE, Inc, 132 NLRB 1338; Lozano Enterprises, 143 NLRB 1347, enfd. 327 F. 2d 814 (C.A 9) ; Aaron Newman, et al, •d/b/a Colony-Furniture Company, 144 NLRB 15182; Avalair Corporation', 143 NLRB' 650; Revere Metal Art Company, Inc., 146 NLRB 253.' " ; ' OGLE PROTECTION SERVICE, INC. AND JAMES L. OGLE 555 5. Refusal to recognize or bargain with Union in 1963 During the latter part of the year 1962, the Respondent was kept informed by Harry Nowicki, an employee of Respondent and a member of the Union, of what went on at union meetings and how many attended.8 Whether or not Respondents had requested surveillance of union meetings by Nowicki, they did receive the information and they drew conclusions therefrom. Among reports made by Nowicki were some indicating that a relatively small number of members attended union meetings. Early in January 1963, Nowicki testified, he overheard Ogle tell the bookkeeper that Respondent would pay up the back dues checked off by Respondent and be through with the Union as of that month. On January 22, 1963, Respondent- paid to the Union the dues required under the old contract for November and December 1962. A few days earlier, on January 18, 1963, Respondent had sent the Union 10 days' notice of termination of the interim extension agreement of July 10, 1962. No further dues were paid by Respondent to the Union, and presumbaly no further dues were checked off for members. Between January 18 and 25, 1963, Respondent filed an RM petition with the Board, seeking an election. This petition was dismissed. The date of neither the petition nor dismissal appeared in the record. During the early part of February 1963, employees Rivers and Wolski, both of whom had been on the Union's bargaining committee, took steps to decertify the Union. Rivers made up and circulated a petition to members of the Union during their working hours. A report was received by Orr that "a man" was circulating a petition. Orr told him to tell- Ogle:, It is difficult to believe that Orr'did not know that Rivers was "the man." Rivers contacted 42 employees and, according to him, got 37 signatures. How Rivers managed to do this and perform his own duties was not gone into. Rivers and Wolski procured the necessary forms from the Board's Regional Office and filed the petition for decertification on February 7. The petition was dismissed on March 29, 1963. Respondent received notice both of the filing and of the dismissal. Rivers testified that he was never penalized for circulating the petition on his employer's time. Although there is ample reason to suspect that Rivers was acting at Respondent's instance in circulating the petition, suspicion does not take the place of evidence. The only direct evidence of Respondent's complicity comes from the testimony of Nowicki that on or about January 9, 1963,_ Orr telephoned him at his home and told him that Rivers was coming over to his house the following Sunday with a petition to eject the Union and that he (Nowicki) should sign it and let the other boys know about it and have them sign it too Nowicki testified that he talked to five or six others and told them to sign the petition. He also testified that Rivers never showed up. Orr denied having made such a telephone call to Nowicki or any other employee. Because Nowicki was patently off in his date, because Rivers did not in fact show up at Nowicki's house, because I do not trust Nowicki's testimony implicitly, because the General Counsel did not produce Rivers' petition, which; I judge, was filed with the Board's form of RD petition, and took no other steps to corroborate Nowicki's testimony, I do not credit Nowicki's-testimony over Orr's denial. At a meeting on January 29, the Union voted to eject Wolski from member- ship. Chosen as committeeman in Wolski's place was Butler Hamilton. On Feb- ruary 4, 1963, Committeeman Hamilton went to Respondent's ' office to take 8 Nowicki testified to furnishing such information to Respondent since about October 1961. He testified that he did so at the request of Manager Glenn Orr and Ogle. At the time of the hearing, Nowicki was nursing a grudge against Respondent and gave this as the reason for testifying Respondent denied having requested Nowicki to spy for it Nowicki gave testimony tending to prove that Orr, in March 1962, gave him a list of names of candidates for committeemen, told him which ones Respondent wanted elected, and gave him a list of names and telephone numbers of employees to call and to influence accordingly. Most of the matters testified to by Nowicki antedated the coverage of the charge in this case, so I have not used it to find any unfair labor practices. Because of Nowicki's grudge, I have scrutinized his testimony carefully. Despite the denials of Orr and Ogle, I believe there is more 'than'a'thread of truth in much of Nowieki's testimony; although-he appeared to be mistaken at times as to dates and names 'However, because of Nowicki's"grudge, I hesitate to accept his testimony concerning Respondent's request for surveillance at face value for purposes of making unfair labor' practice findings. Novicki, appeared to have been willing enough to advance information without request. I have, therefore, relied on his testimony in a few instances only for background purposes or for corroborating other evidence - •i 556 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD- up a grievance on behalf of Harold Leeth, whose termination is hereinafter related. Ogle told him, as quoted by Hamilton, "As far as I am concerned, we have no union." Between that date and May 20, 1963; the Union sent five written grievances to -Respondent by certified mail. Respondent refused to receive any of them and all were returned unopened. Ogle testified that his 10-day notice to the Union in January 1963 was intended to be a total severance of all 'relations with the Union. In view of this, I find that Respondents' disregard of and refusal to treat with the Union on griev- ances pursuant to the contract is further evidence of a refusal to bargain.9 Respondent argues that it reached an impasse on contract negotiations at` the January 7, 1963, meeting. However, in'view of my finding that agreement' had been reached on November 14, 1962; I reject the argument that there. was any impasse. C. Discrimination 1. Background Because the three employees who are alleged to have been the subject of discrimination are linked by one incident, this incident will be related before consideration of their separate cases. It was the Respondent's practice, at times, to transfer guards from one assigned job to another. Sometimes this was done because of a complaint about the guard from the party to whose business location the guard was assigned, or an expression of preference for a different guard, or sometimes it was done for other reasons known only to Respondents. Late in November 1962, Guard Butler Hamilton was notified that he was to be transferred from his latest location (Woman's Hospital) to Annapolis Hospital. About the same time, Guard Harold, Leeth was notified that he was being transferred from Annapolis Hospital to. Seaway Hospital. There was no evidence that either had been so reassigned because of a complaint. Each was displeased with the change.10 When Leeth learned that Hamilton was the guard who had replaced him at Annapolis Hospital, he spoke with Hamilton and discovered that Hamilton did not like his transfer to Annapolis. They decided to take up the matter of their transfer as a grievance and, on their own time, went to the Union to procure the necessary grievance forms. Bilbrey assisted them in filling, them out and then proposed to mail them to Respondent. -Hamilton, however, decided to present it to their committee- man, Thomas Lewis, for handling.1' To that end, on December 3, 1962, Hamil- ton and Leeth proceeded to Woman's Hospital, where Lewis was on duty, and. Hamilton told Lewis that, as committeeman, Lewis should sign the grievance and talk to Orr about it. Lewis telephoned Manager Orr, who told Lewis that he had nothing to do with union matters, that he would transfer his call to Ogle, and he did so. Lewis told Ogle that Hamilton and Leeth had presented grievances for his (Lewis') signature. Ogle asked if Hamilton and Leeth were still there. Lewis said that they were.• Ogle told Lewis, according to the latter, to tell them that "as of now" they were discharged.12 Hamilton and Leeth returned to the union hall and again spoke with Bilbrey. From some source, Bilbrey had already received word of the discharges and he told Leeth and Hamilton to telephone Ogle. Leeth telephoned Ogle and asked why he. had been discharged. Ogle told him that it was for interfering. with the guard on duty at Woman's Hospital.13 Leeth told Ogle why be-had objected to the transfer from Annapolis Hospital to Seaway. According to Leeth, Ogle told him then that he could go back to Annapolis and that Hamilton could go to Seaway. Then Ogle asked to speak with Hamilton. Hamilton 0 ,See Mission Manufacturing Company, 128 NLRB 275; Duratite Co., Inc., 132 NLRB 425. 10 Leeth presumably served 2 days at Seaway before complaining about it, and Hamilton had presumably entered upon his duties at Annapolis Hospital, for Leeth telephoned there to learn the name of the guard who had replaced him there. . 11 Hamilton's grievance was dated November 30, 1962, and claimed pay for 1 day lost as a result of improper transfer. 12 Ogle testified that he told Lewis to tell Hamilton and Leath that they "should be" dis- charged but to tell one or both to telephone him when they got away from there. Orr's testimony corroborates Lewis' testimony. Orr testified that Ogle told him that he had told Lewis to tell the men that they were discharged. 18Leeth testified that Ogle also told him that "if I didn't quit hanging around with Butler Hamilton I would be in the same boat he is in." It was never explained what "boat" Hamilton was then in. OGLE PROTECTION SERVICE,-INC. AND JAMES L. OGLE 557 took the telephone and told Ogle that he had heard he was discharged. He quoted Ogle as replying, "Well, not exactly. You should have been for going over to the Woman's Hospital and interfering with the employees." Ogle told Hamilton that he should report to Annapolis Hospital, that it was 'a real easy job, that even his little boy could do it. Ogle then spoke with Leeth again and told him to come to the office the next day. The following 'day, Leeth went to Respondent's office and spoke with Ogle, who told him that he had a good record and that he was going to find .him a good location. According to Leeth, Ogle also told him to stop hanging around Butler Hamilton. Leeth was then given an assignment at Mt. Carmel Mercy Hospital Neither Hamilton nor Leeth lost any pay as a result of having been "dis- charged." The discharges, alleged to be a violation of Section 8(a)(1) of the Act, were asserted in the complaint to have been made because Hamilton and Leeth had filed grievances against Respondent and engaged in other union or concerted activity. As the evidence stands, Ogle's action regarding Hamilton and Leeth on December 3, 1962, could have been precipitated by Ogle's belief that employees should not distract -the -attention of- other employees from their duties by discussing matters' not -concerning the duties assigned.14 Of course, if such a rule actually existed, it had apparently not adequately been brought to the attention of employees, and this fact could have induced Ogle to reverse himself before the discharges actually became effective. In view of such reversal, the absence of any loss to the employees involved, and the benefit of the doubt that Ogle was acting without discriminatory intent in the matter, I make no finding of an unfair labor practice on the foregoing incident. 2. The suspensions and termination of Harold Leeth Leeth was hired by Respondent in early July 1962. At the hearing Respondent offered evidence that Leeth had failed to show a period of employment at a People's Community Hospital, from which Leeth, who had been training as an X-ray technician, was discharged for operating the machine alone. Leeth testified that he revealed this fact to Assistant Manager Morrison (deceased at the time of the hearing) and that Morrison had told him it would not be necessary to show it. Although disputing that this happened, Respondents admitted that this had nothing to do with Leeth's termination. For the first few months of his employ by Respondent, Leeth was transferred frequently. His assignment to Annapolis was apparently the first that continued for as long as 2 months. No complaints of his work at Annapolis were offered in evidence. As previously stated, following the incident, above related, of his grievance concerning the transfer to Seaway, Respondent assigned him instead to Mt. Carmel Mercy Hospital. The first complaint concerning Leeth at Mt. Carmel came in mid-December 1962. It concerned dissatisfaction of the Mother Superior with Leeth's delay in leaving the emergency room at her summons to locate a visiting priest and her objection to Leeth's addressing her as "Ma'am" instead of "Sister" when he later explained to her what he had been doing. At Orr's instruction, Leeth's sergeant had Leeth make a report of the incident. From the manner in which he testified, I infer that Orr felt that Leeth was not seriously at fault. Leeth's post at Mt. Carmel was the emergency room. The outside guards were supposed to stop after each tour around the hospital to see if the guard stationed in emergency wanted relief. Clarence Masuch, Leeth's sergeant, testified that two, part-time guards complained to him that Leeth took too long a time during his relief period. One of them, Patrolman McCleod, according to Ma- such's testimony, told Masuch that Leeth remained away for an hour and a half and that I.eeth did not take care of the parking outside the emergency room. Masuch testified that he believed that McCleod was exaggerating and did not report the matter to Orr at the time. McCleod did not testify. Some time after McCleod's complaint, the other part-time guard, Walter Judd, com- plained to Masuch that Leeth had remained away on his relief too long. Judd testified that maybe once or twice Leeth had stayed away for as long as 20 minutes when he, should have taken not more than 10 minutes. Masuch asked Leeth about it and Leeth denied that he was gone as long as the other guards had said. Nevertheless, this time, , Masuch reported these statements to Orr, along with a statement made by a guard, who was a direct employee is See Madwestern In8traaroient8, Inc, 131 NLRB 1026. 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the hospital, to the effect that he had looked for Leeth for an hour and finally found him in a telephone booth. No, evidence was given to show when this occurred or where Leeth might have been. Leeth apparently was not asked about it by Masuch, and there is no evidence that Masuch otherwise investigated to determine if Leeth was properly away from his post, as, for example, running errands for the Mother Superior. Respondent introduced in evidence a memorandum made by Orr, purportedly on Friday, February 1, 1963, when, according to Orr, Masuch telephoned him. This memorandum, after showing that date and the hour as 4:30 p.m., at the top of the sheet of paper, reads as follows: Call from Cal Masuch Re: Leeth Du. 3-5516--Sat. 2/2/63 1. Thurs. 1/31-Took 1 hour and 20 15 minutes break. 2. Makes many phone calls while on duty. 3. Cars parked, all, over driveway. Does not,help people out of cars or give assistance. 4. Becthof told our Guard McCleod yesterday that he was tired of calling you [Orr] on these complaints and the next complaint he would go to the Sister. Masuch, a witness for Respondent, in his testimony, said nothing about " numer- ous" phone calls Leeth was supposed to have made according to the memoran- dum. He said nothing about the matter shown as item 4 above. Nor was he asked about either. He did testify that he believed he told Leeth that he had a complaint that Leeth had failed to -clear the driveway but he did not testify to the source and he did not testify that Leeth had failed to help people out of cars or give assistance.ls Those things were testified to only by Orr and only as having been purportedly reported to him by Masuch. It will be observed that the memorandum was written as though the charges were found to be true rather than that it was reported as hearsay. The failure of Respondent at the hearing to question Masuch about such additional matters not mentioned in Masuch's testimony detracts from the weight of the memorandum as evidence and even suggests (especially item 4) that perhaps the notes made by Orr might have concerned other guards at Mt. Carmel and not just Leeth. Yet, according to Orr, the memorandum concerned only Leeth. Items 1 and 2, which were more apparently intended to apply to Leeth, were obvious exaggerations based on hearsay. Leeth testified that he customarily made a telephone call during his lunch hour and occasionally on his coffee break, but he denied that he had made "numerous telephone calls." In the case of another guard who was not disciplined after a report concerning his faults was made by his sergeant, Orr testified that the Respondent did not rely on the strength of complaints from the sergeants entirely-"We go on the client's complaint." There is no evidence that an independent investigation was made of the alleged complaints about Leeth, and there was no testimony (except for the incident reported on December 17, 1962, by Leeth) that the client, itself, had complained about Leeth. Nevertheless, according to Orr, he telephoned Leeth on Saturday, Feb- ruary 2, and told Leeth that he was being suspended, for 2 weeks on the recommendation of Sergeant Masuch. Masuch was not asked if he had' made such recommendation. It will be observed that Leeth's suspension came just after the end of the month in which Respondent had severed its relations with the Union and filed a decertification petition. As Hamilton had just replaced Wolski as committeeman, Leeth at once called Hamilton and, on February 4, they proceeded to the Respondent's office and spoke with Orr, who told them that he had nothing to do with union affairs and that they should speak with Ogle. Ogle came in, and Hamilton told Ogle that he was-there as a committeeman to represent Leeth: Ogle told them, accord- ing to Hamilton, "As far as I am concerned, we have no union." According to Leeth, Ogle said that, if Leeth wanted to discuss the case with him, he could do so by himself. Hamilton and Leeth left and went to the union hall and prepared a written grievance. Hamilton then telephoned Ogle and asked 11 The memorandum was written over a word written in red ink and there appears to be an erasure of a figure, between the 2 and the naught in 20 . 10 Leeth testified that Orr, on February 2, when Leeth was suspended, mentioned this but that the sergeant had never mentioned it to him In the absence of evidence independent of the above memorandum, that Leeth was guilty of all the faults listed, I do not find that he was. - I OGLE PROTECTION SERVICE, INC. AND JAMES L. OGLE 559 for an appointment to discuss the grievance. Ogle told him, "Mr. Hamilton, if you don't quit bothering me you will be out of a job." On February 5, the Union mailed Leeth's grievance to the Respondent by certified mail, but the Respondent would not receive it, and it was returned unopened. The original charge was filed on February 13, 1963. Between February 16 and March 1, 1963. Leeth telephoned Orr and told him that his 2 weeks suspension was up and asked about returning to work. Orr told him he would have to speak with Ogle. This, in itself, is significant, because Orr had full authority over the guards except where a union matter was involved. Leeth spoke with Ogle on the telephone, and Ogle told Leeth to come in the following day. Leeth did so. Ogle told Leeth that he had a very good place for him and that if he wanted to work and take care of the job, he would be there for a long time. According to Leeth, Ogle, in his conversation, told him that he thought an adult man should be able to talk out his own problems without a union. Ogle admitted making some remark to the effect that Leeth had come in with Hamilton the last time as if he needed someone to hold his hand. Leeth told Ogle that he had paid his union dues and wanted representation. Orr came into the room at the end of Leeth's interview with Ogle and heard Ogle say, "Don't go out and do like Mr. Hamilton does. Do your job. You have a good, steady job, and do your job and you will ' stay there." Again there was no explanation of this comment about Hamilton. Ogle testified that, before he made the assignment of Leeth on this occasion, he had two or three conversations with Orr regarding Leeth, trying to find a place for him. He continued: "He was a young fellow and he had some appearance. He looked neat in a uniform, and we were trying to find a place for him to work. That same time, as I recall, I made the remark to Mr. Orr that's [that it's] funny, as low as unemployment is in Michigan that a young fellow couldn't find a job, and I asked him why-I asked Mr. Orr if he had applied for unemployment.. . From this testimony, it appears that Ogle had been hoping that Leeth would get another job and not return. In any event, Leeth returned to work on March 1, 1963, after having been out of work for about a month. He was assigned to the Metropolitan Hospital. After he had been there for a couple of weeks, he telephoned Orr and mentioned a problem with parking in front of the hospital and said that nothing could be done about it because there were no signs prohibiting parking. Orr trans- ferred Leeth's call to Ogle. When Leeth told Ogle the problem, Ogle, according to Leeth, said that he had been trying for the past 6 months to get signs put up there. I infer that some supervisor in the hospital was opposed to the signs, for Leeth quoted Ogle as suggesting that Leeth try to go over the supervisor without causing any trouble. Leeth succeeded in getting "No park- ing" signs put up and so notified Ogle. Ogle complimented him Late in April the afternoon guard told Leeth that he, himself, ate lunch in the doctors' lounge and that no one had, complained about it. He suggested that it would be a good place for Leeth to eat. Leeth did so, and there was a complaint. Both guards then stopped eating there. On Wednesday, May 1, 1963, David Singer, the administrative assistant for the hospital, telephoned Orr and said that he would like a replacement for Leeth because he was not working out satisfactorily and they would like another guard with a personality more like that of the after- noon guard. No mention was made at this time of Leeth's entering the doctors' lounge. Orr asked Singer if he could wait until the end of the week. Singer said that he could. Singer admitted that the hospital had, on one or more occasions earlier, similarly requested a change of guards. Early the following Monday morning, May 6, 1963, Orr telephoned Leeth and told him not to report for work, that he was being transferred. Leeth asked if he had done anything wrong. On replied that he knew -of nothing then and that Leeth should call back the next day. Leeth did so and Orr told him he would have to think of some place to put him. It was not until later, in a subsequent telephone conversation, that Orr told Leeth that he had been seen "in the wrong places" in the hospital (apparently referring to the doctors' lounge), but Orr was then unable to give details. The Respondent's answer alleges that it was forced to remove and suspend Leeth from his duties at certain jobsites for the reason that while performing said duties he wandered into prohibited areas in disregard of Respondent's instructions and the instructions of Respondent's clients and that Respondent thereafter discharged Leeth "because of his continued refusal to obey" those instructions and for no, other reason. The only evidence that Leeth had entered a prohibited area was when he ate lunch in the doctor's lounge at Metropolitan Hospital several days before his termination 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there, a practice indulged in by the afternoon guard for a much longer period than Leeth had. Both were asked not to eat there and thereafter did not do so. There is no evidence at all of a refusal to follow such instructions. For a period of more than a week after May 6, Leeth telephoned Orr. In one conversation, according to Leeth, Orr told him that he had found several places in which to put Leeth but that each time Ogle had vetoed it. Finally, Orr told Leeth that he was discharged, that Ogle had said Leeth had been warned previously and that if any more suspen- sions were to occur, Leeth would automatically be terminated. It will be observed that Leeth was not told he had been suspended after his removal from Metropoli- tan, and Leeth denied that he had ever been so informed and I credit his denial. Orr's conduct, as revealed by the credible evidence, gave no indication that he felt that Leeth even deserved a suspension much less a discharge. The day following the last-mentioned telephone call, Leeth went to Respondent's office to turn in his badge and pick up his check.17 At that time, according to Leeth's credited testimony, Orr told Leeth that he would give him a good recommendation, that as far as he was concerned Leeth did his job all right. The lack of any occurrence after Leeth's removal from Metropolitan Hospital and after Orr had indicated he was looking for a position for him makes it appear that Ogle had intervened for some reason not openly revealed. Ogle spent only a relatively brief time daily at the office, and the day-to-day manage- ment of the guards was in the hands of Orr. Orr admitted that he had authority to discharge and had done so a number of times. At one point, he testified that Ogle could make the decision to discharge "but I can go ahead and do it myself." Then he explained that on some occasions he did discharge without consulting Ogle, "but if there is something pertaining to the union and he wants to handle it, I run that over to him . but if it is something I feel I should do, if the union is not involved, I do it, but if the union is involved I turn it over to him because that has been his request." Orr's testimony regarding the handling of Leeth's termination was somewhat floundering.18 If it were to be believed, the reason given for Leeth's discharge was because he had been taken off the job at Metropolitan and because Ogle had allegedly told Leeth that the next time he was taken off a job he would be discharged. I do not credit this explanation. Had Leeth been given a disci- plinary suspension at Metropolitan, the Respondent's explanation would have looked more plausible, but he was not suspended, and despite Orr's attempt to make it appear that he told Leeth, from the outset following his being taken off the Metropolitan job, that Leeth had been discharged, I do not credit such testimony. Leeth's testimony that he did not take his badge in for surrender and pick up his final check until after 3 or 4 weeks following his being told by Orr not to report at Metropolitan was undenied. Also undenied is the fact "The amended complaint alleged that Leeth was discharged on May 14, 1963. The testimony of Leeth would have placed it much later. I notice that the charge in Case No 7-CA-4244, which was filed on June 3, 1963, alleges Leeth's discharge as occurring on May 14. Obviously the conversation took place before June 3. is For example : Q Why did you tell Mr. Leeth the first time he called that you would see what you could do? Why didn't you tell him he was fired? Why did you have him call for two or three weeks' [There was a pause between each of these questions but Orr did not answer until the final one, and then he did not give a direct answer.] A. He was told the next time he was taken off that he would be through. [There was no credible evidence of this.] I told him to call Mr Ogle if he had any further discussion about it. [There would have been no reason for this unless some relation to the union was involved.] Q. He called you eight or nine times before that' A. Yes, but when he was laid off the last time, I told him at that time to go back to Mr. Ogle. [Leeth was never told that he had been laid off. Perhaps Orr was referring to Leeth's suspension in February. If so, his answer would appear to be evasive. ] Q. When he kept calling why didn't you tell him he was fired? A. I did. I told him from the first time but he kept calling me, calling me, to see if I could do something for him. [This answer is not credited ] Q. Did you ever tell him why he was fired' A. Yes, Mr. Ogle told him that, the next time this occurs, you are fired. [This is not true.] OGLE PROTECTION SERVICE, INC. AND JAMES L. * OGLE 561 that in the interim Leeth made numerous telephone calls. - Although Leeth's estimate that 3 or 4 weeks elapsed between his first and last calls, no claim was made that Orr had told him in any of the intervening conversations to turn in his badge, but as soon as Leeth was in fact informed of his termination, he voluntarily went to the office and surrendered it. The evidence as a whole supports Leeth's testimony. I would consider it very unlikely that, if Leeth had been informed in the first or even second telephone conversation that he was discharged, Leeth would argue for more than a week and retain his badge without Orr's once telling him to surrender it. The very fact- that Orr referred Leeth's situation to Ogle in May 1963, indicates, on the basis of Orr's testimony, that it was done because of a union connection, apparently Leeth's attempt to present his grievances in both December 1962 and February 1963 through union chan- nels. That this procedure irritated Ogle is evident from his threat to discharge Hamilton if Hamilton did not "quit bothering" him about Leeth's grievance. As stated, Leeth was not taken back immediately when his 2 weeks' suspension from Mt. Carmel had expired, and Ogle gave indication of hoping that, by delay, he could avoid reemploying him, but the fact that On referred Leeth to Ogle before Leeth could return to the job at the end of his suspension again indicates that it was because of the union connection. However, even if discriminatorily motivated, Ogle was' not in a position to discharge Leeth at that time because Respondent had admittedly_ only suspended Leeth and, without new cause, could not then have increased his penalty by discharging Leeth, without creating an appearance of discrimination, so the Respondents would be constrained to defer action until another opportunity presented itself. Between the time of Leeth's return to work in March and his removal from the Metropolitan Hospital assignment in early May 1963, the original complaint in this case had issued, and Ogle, on April 12, wrote what purported to be an answer thereto. The "Motion for Summary Judgment, on Portion of the Pleadings" was served on May 1, 1963, a few days before Leeth was removed from Metropolitan Hospital. The failure to discharge Leeth at once upon his termination at Metropolitan Hospital, in effect, was an implied admission that adequate grounds did not exist. The more time that elapsed thereafter before discharge only added weight to the implied admission. Lewis, whose case is related below, was discharged the day before the hearing, and this was brought out -at that hearing, although it was not then litigated. The evidence indicates a considerable aversion by Ogle for the Union and all union procedures and a desire to be rid of the Union. The peculiar circumstances of Leeth's discharge can be accounted for reasonably only on the basis of this aversion and an attendant hope of Ogle that a turnover of personnel which would eliminate strong union adherents would be a means of abating what, to him, was a nuisance, for Leeth was quite evidently not discharged for any fault that might reasonably be the basis for discharge. He was evidently regarded as competent by Orr, and yet Orr had his hands tied because Ogle had instructed him to refer to him cases involving the Union, and Ogle, himself, made the decision, after delaying for ' more than a week, to discharge Leeth for a reason which is not at all convincing. On the basis of all the evidence and not merely that concerning Leeth, I conclude and find that Leeth was discharged by Respondents because of Leeth's union membership and activity in violation of Section 8 (a) (3) of the Act. 3. Discharge of Thomas Lewis Lewis was hired by the Respondent in the spring of 1960 as a guard. In the 3 years of his' employment that followed, he had served about five hospi- tals. So far as the record shows, Lewis had only one flaw-he would, at times, appear at work with the odor of,liquor on his breath.19 There is no evidence that Lewis ever drank while on duty, although he admitted that he once took a morning drink before- going to work. From the -evidence, I judge that Lewis, who was a pleasing and dignified appearing man, was otherwise well liked 19 It is difficult to get an accurate picture from the testimony of the frequency this would occur, although one guard testified that it occurred three or four mornings during the week This guard, however, was at the same hospital with Lewis only for a short period - of time Two biased witnesses testified to an occasion, each, when Lewis"breath was very strong. Both incidents occurred before the time when Lewis was stationed in woman's Hospital in the lobby, the job he was on at the time of his discharge. They did not report to Manager Orr that Lewis was unfit to work. 770-076-65-vol. 149-37 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the hospitals where he was employed and did his job efficiently and to their general satisfaction. Because Lewis was accustomed not to eat breakfast in the morning but to take only a cup of coffee, it is quite likely that the odor on his breath was from the liquor consumed the night before. Apparently Lewis was unaware of this, at least before his suspension, hereinafter related. In about June 1960, Providence Hospital requested that Lewis be replaced. Genevieve Groszko, administrative assistant for that hospital, testified that she remembered that she had requested a replacement. Although, she was unable to remember why, Manager Orr testified that the reason was the odor of liquor on Lewis' breath. Lewis was moved to another location. During the spring or early summer of 1962,20 while Lewis was working at the Metropolitan Hospital (where he had been stationed, as nearly as I can ascertain, for 6 months or more) the administrator of the hospital telephoned Manager Orr and commented on the fact that, Lewis had the, odor ; of liquor on his breath. The administrator did not testify. It. is not clear whether or not the administrator, actually requested Lewis' removal. There is reason to `believe that ' he did not. On that occasion, Lewis was, called into the, office and Ogle gave him a 2-week suspension. Following ,that suspension, Lewis was . assigned to.the Park Shelton Hotel for a few months. But Orr,testified that the Respondent liked Lewis' hospital work; so later, during the year, 1962, he, assigned Lewis to a desk job in the lobby of Woman's Hospital. Although during the period of Lewis'. employ at Woman's Hospital, there,is evidence that Lewis arrived at work: ,with the odor of-liquor on his breath at times, the hospital personnel, if they noticed it,21 made no complaint to the Respondent about this. Late in April 1963, the subject of Lewis' breath came to the hospital's attention in the form of an anonymous letter rather than by any direct complaint. This anonymous letter was-mailed to the administrator of Woman's Hospital on April 23, 1963. The identity of the writer was never established.22 The letter, with errors as shown, reads as follows: , Dear Madamn This is to tell you how unfair it is to have a drunk guard over Patients from City Hospital. Carry a . gun. I am, a "white woman and he let me stay in chair until another white woman ask him what was wrong with him and wheel me to the elevator. Drunk, Breathe smelled terrible, Everyone laughing at him even other guard said he was drunk. And then had Nerve to put Wrist Band on my arm. Guard called him Tom. Do you know your guard that Well? I'm also writing all the newspapers. Do you think it fair to us. Because we cannot pay? Wer'e human to. We want respect. ' ' From a white city Patient. It is hardly reasonable to assume that Lewis could have been actually drunk and that hospital personnel would not have noticed it. His job brought him into contact with such personnel with every patient admitted. No hospital employee was called to substantiate the anonymous charge and no guard was produced to testify although one was mentioned in the letter. No other guard should have been there on duty in any event. I judge that the hospital must have deduced that the letter was written by a crank or by someone who bore Lewis a grudge, for it did nothing about the letter immediately. Early in May, Miss Malloy, the administrator of the Woman's Hospital, telephoned Orr and told him that the hospital had had a staff meeting at which they had discussed the conduct of "the guards." Orr went to the hospital to speak with Malloy. Malloy reported to Orr that there was an objection to the guards 20 Orr placed this incident a year earlier. The Respondent had no record of assignments of personnel and the memory of witnesses as to dates was not very reliable. a One or twice it was noticed by hospital personnel, but they did nothing about it. I in- fer that the odor was not so offensive as to provoke a complaint. 22 Lewis, in the course of his employment at the hospital, had had three occasions to write critical reports concerning the improper way in which an elevator operator performed her job, after he had, in each instance, spoken to the elevator operator about it. Lewis suspected that this operator was the writer of the anonymous letter, but no effort was made by either the Respondent or the hospital to determine if this was true. I surmise that there are others who might have had an ulterior motive for writing such a letter. OGLE PROTECTION SERVICE, INC. AND JAMES L. OGLE 563 smoking in the corridor and that they did not patrol properly.23 Finally, Malloy brought out the anonymous letter and showed it to Orr. There is no evidence that Malloy gave the letter any credence or otherwise criticized Lewis or even commented on it. Orr asked permission to take the letter to the office with him. Orr took up the other complaints with Sergeant Samuel Caputo, telling Caputo to take up the matter of the complaints with the guards. Lewis testified that early in May Orr showed him a copy of the anonymous letter and told him that the sergeant (Caputo). had said the letter was a spite letter. Caputo, himself, was a witness, but he appeared to be not an impartial witness. He testified that on May 4; 2 days after hearing of the anonymous letter, he went to the hospital early in the morning at the instruction of Orr to check on the guards and transmit orders. (Caputo had difficulty remembering dates.) He testified that at 7:55 am. "I went up-to Tom and told him that I had been requested out here-to make a certain check, and his duty was not to let a certain group of people in. If they did come in he was to see that they- wouldn't enter the hospital property. ,So Tom came in and he was carrying a bag and a thermos bottle and he didn't seem to understand what I had told him, and when he spoke+ to me I got a whiff of his breath. His eyes were' pretty red, and he ' wasn't exactly standing straight.' He sort of weaved." This testimony is incrediblet'because Caputo could have caused Lewis' removal right then -if Lewis was--in fact weaving and so much under the influence of alcohol, and I am - certain that -Respondent 'would have expected Caputo to do so, but he did not even'reprove Lewis so far as appears. Following this alleged incident, Caputo 'testified, he telephoned Orr and told him that he "had detected-had smelled liquor on Tom Lewis' breath." He said nothing about any red eyes or weaving. Orr 'testified to, no such report from Caputo. Such an incident, if it occurred, following Caputo's learning of the anonymous letter and being instructed by Orr to check- into the matter, certainly would be expected to have been reported in full detail to Orr. Yet, according to Caputo, he merely reported to Orr - that he smelled liquor on Lewis' breath, and in this he was not corroborated by Orr. I do not credit Caputo's testimony that Lewis was under the influence of liquor on the morning of May 4, 1963. For no less than 2 weeks after learning of the anonymous letter, Respondent took no further action regarding Lewis. From- this, I deduce that Malloy did not request Lewis' removal and that there was no dissatisfaction with his services. The original hearing in this case took place on May 21, 1963. Lewis' custo- mary day off was Sunday; however, he had, the week before, asked,for Friday and Saturday, as well as Sunday, May 17 to 19, off, and his request had been granted. According to Orr, Lewis had said he was going out of town. The Respondent called as a witness Elmer Boer, the chief engineer at Woman's Hospital. Boer testified that on Friday, May 17, at a meeting of the department heads, he received the anonymous letter, that he spoke with Sergeant Caputo about it the same day, and that he told Caputo that "we could not have on duty anyone who drank on the job, was drunk or who even had liquor on his breath." In view of Orr's testimony that Boer acted unaware of the anony- mous letter when Orr first spoke with Boer, which testimony is in the nature of an admission, and which I believe to be fact, I am skeptical of Boer's testimony as to when he learned of the anonymous letter and spoke, if at all with Caputo. Caputo testified that he reported to Orr a request by Boer to remove Lewis. Orr did not testify to this. According to Orr, when he spoke with Boer he did so direct. He made no mention of such a report from Caputo. Boer testified that the sergeant referred the matter to Orr and that Orr took Lewis off the job and said he would not be back again. It was obviously a presumption on Boer's part that the sergeant had reported it and that Orr had acted thereon. It is unlikely that he would have known of this himself. Boer explained that he, himself, had not been on the job between March 22 and May 13, thus accounting for the fact that he had not seen the letter earlier. Normally, I would be disposed to credit a disinterested witness, but because of certain discrepan- cies in the testimony, I am not convinced of the accuracy of Boer's testimony. These discrepancies will be examined. 24 In the first place, the letter had been 23 Since Lewis was stationed at a desk in the lobby, he apparently did not have patrolling duties, so this criticism must have referred to other guards 24 Boer impressed me as showing a disposition to help Respondent's case. This was par- ticularly noticeable in his unwillingness to concede the improbabilities In the anonymous letter. •564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discussed at a staff meeting before it was shown to Orr in early May. No reason appears for the letter to have been the subject of another meeting on May 17. Caputo testified to a conversation with Boer on May 17. He quoted Boer as saying, "Sam, we got a letter about Tom Lewis, and it was taken up with the Board today, and for the benefit or the concern of your company or for the hospital it would be a good deal to take him out." This was somewhat different from Boer's testimony. Caputo then testified that he called Orr and told him about the meeting he had had with Boer and told him "that the best thing was to remove Tom from Woman's Hospital." Orr never mentioned such a recommendation and the evidence of Orr's conversation with Lewis on May 19, induces me to believe that Caputo was fabricating. Orr's testimony not only varied from Caputo's and Boer's but reveals what I would judge to be a possible shifting of dates and conversations . I therefore report it as given on his direct testimony: Q. Did you conduct any investigation concerning that facts that are set up in the letter? A. I had talked to some of their men out there. I talked to Mr. Boer that was later. He was away at the time. I talked to him perhaps about-oh, it could have been around the 16th or 17th of May, I would say. [Because of the known date of Lewis' discharge, the speculative manner used by Orr to set this date appeared calculated to alter the date of his conversation with Boer, especially in view of Boer's testimony.] Q. When you talked to Mr. Boer was that at his request? A.' I'm not sure if it was or not. We make a practice to try and see our clients as often as possible. I may have went out there on my own because I do know this. [I am inclined to believe that when he later did go there, he went on his own and not at Boer's request.] Mr. Boer I am sure at the time wasn't aware of this letter . It was new to him . [Boer's testimony was that he talked to Orr about the matter a week or two after May 17.] As I recall, he called someone there on the intercom-or someone to inquire about a letter, and I think it was obtained for him.' I don't know if it was that particular day or not. TRIAL EXAMINER: After you had told him? The WrrNEss: Yes, because I was out at a later date, and I-and he had it in his file at that time, but when we talked about it .he didn't have it. He had to take it from somewhere else. Q. What, if anything did Mr. Boer tell you at the time of this conversation? A. Well, here we talked about the fact that once before-I say maybe several weeks earlier or months-about reports of Tom drinking. [Boer testified that once early in 1963' -he had smelled liquor on Lewis' breath, but did nothing about it.] I was very careful-I told Mr. Boer-I think we both agreed that we had to be careful of anything like that. We had to be sure of ourselves. We • would have to have more proof than we had. [Any such conversation I view as fabrication or as part of a later conversation after Lewis' discharge.] Q. That was in a previous conversation? [Since Boer was not back on the job before May 13, 1963, and did not testify to any conversation before May 17, this leading question was designed to produce a misleading answer. According to Boer, he did not discuss the matter with Orr until a week or two after May 17.] A. Yes. But then on about the 16th or 17th, when I talked to Mr. Boer, at that time he told me that he had smelled liquor on his breath and he had observed him at times [Boer testified on cross-examination that, except for the fact that he had once, earlier in 1963, smelled liquor on Lewis' breath, which could have been from the night before, he thought Lewis was doing a satisfactory job.] and he said we would have to-would have to do something about him . He would have to come out. [Boer did not testify to any conversation with Orr until after the discharge of Lewis.]' I' assured him it would be taken, care of immediately. [If this took place, why did Orr not so inform Lewis? He did not do so.] From Orr's demeanor on the stand as well as from his testimony in regard to this matter, I am induced to believe that the conversation between Orr and Boer, if it occurred, took place at the instance of Orr and not of Boer and I also find that Orr spoke only after Lewis was discharged. Boer himself did OGLE PROTECTION SERVICE, INC. AND JAMES L. OGLE 565 not testify to any new incidents that had occurred concerning Lewis since the date of the receipt of the anonymous letter. Boer, himself, not only did not testify to any conversation that he had with Orr about Lewis on May 17, but he did not even claim to have known about it before that date, and testified only that he dis- cussed the matter with Orr within a week or two after May 17. On Sunday, May 19, presumably late in the evening, Orr telephoned Lewis at his home and told him not to report for work on Monday. According to Lewis, whose testimony was undenied in this respect, and is credited, Orr told him to come in and pick up his check in full, that Ogle had told Orr this, and that Orr did not know, why. Following receipt of this telephone call, Lewis telephoned Ogle about 10 o'clock that night and inquired about his apparent discharge. Ogle said, according to Lewis, "You have been known to have had the odor of liquor on your breath. I do not know the full particulars. See Mr. Orr in the morning." Neither Orr nor Ogle denied having had these conversations with Lewis. On Monday, September 20, Lewis went to the office and waited until Orr came in. When Orr came in, he asked Lewis if they had not yet given him his check. Lewis said that they had not, and Orr went and got it. Lewis testified that he asked about vacation money, and quoted Orr as replying, "I don't know anything about it. Go in and see Jim. I am getting tired of him passing the buck onto me." This testimony was not directly denied by Orr. Lewis went to see Ogle and asked for his vacation money. Ogle told him he had none coming. Lewis quoted Ogle as saying that "the report had come in from the client to have me removed on account of the odor of liquor." Lewis testified that he had denied this and that Ogle had then said, "I have taken a sample from your thermos bottle." Lewis quoted himself as saying that that was "utterly ridiculous," and that Ogle had replied, "I could have, you know." Lewis conceded that a sample of the contents of his thermos bottle could easily have been procured because it always sat beside his desk in the lobby. Ogle's version was that when Lewis came into his office, he asked what had happened, "and I said, `What do you mean what happened,' and he said, `Well if it is about the drinking I am not guilty'-I hadn't mentioned drinking yet-and I said, `Where do you carry that stuff, in your thermos jug,' and he kind of reddened up, slightly embarrassed, and I said, `What would you do if we got a sample from your thermos jug.' ." Ogle, after testifying that Lewis denied carrying liquor in his thermos bottle, continued, . and I said, `Well, Tom, we have had too many complaints from too many clients.' I said, `I, warned you before,' and I had had him in my office the time before and I said, `We just cannot tolerate it any longer.' I said, `We have fifteen men working at Women's Hospital, to let one man disgrace them all by being on the job with alcohol on his breath is more than we can tolerate."' It will be observed that Ogle sought to make it appear that a complaint had' come from Woman's Hospital that Lewis had had the odor of liquor on his breath. This was not, of course, true, and the evidence would not have warranted a belief by Ogle that the hospital had made such a complaint. Even if Boer's testimony were to be believed, he acted only on the anonymous letter and not on any later occurrence of alcoholic breath. Concededly, Boer had not noticed any smell of liquor on Lewis' breath, himself, since early in 1963 and he did not testify to having had such reports from any known person. I find it difficult to believe that Boer would have acted immediately on seeing the anonymous letter, the apparent work of a crank or of someone giving effect to spite, especially since the hospital administrator had not seen fit to make any request for a replacement 2 weeks earlier when she showed the letter to On and when no later event had come to the knowledge of Boer which would have justified a complaint about Lewis. Because I have found vital parts of the testimony of Respondent's witnesses to be inconsistent and, in fact, incredible, and because there is more than a suggestion of tailoring of the testimony in respect to the events leading to Lewis' discharge, I reject the Respondent's explanation of the reason for Lewis' discharge. Even if I could believe that Boer had acted on such a flimsy excuse as the anonymous letter and had for that reason requested a replacement for Lewis, I should find it difficult to believe that a reasonable employer would have used that as an excuse for discharging Lewis. Since the anonymous letter was without substantiation, I believe that Lewis, an employee of 3 years, concern- ing whom for many months there had been no criticism, and whose work was liked, would merely have been transferred. With greater cause for discharge on prior occasions, that is what Respondent had done. On explained the reason for reassigning Lewis on earlier occasions by testifying, "If we feel a man 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is capable of doing another job, we put him on. We don't throw a man to the wolves . . If he takes a drink, if he comes in with whiskey on his breath, if he does the job to our satisfaction, we give him a chance. We liked the man [Lewis] and we tried to help him ...." Orr explained Lewis' discharge in May 1963 as based on the "third offense." He overlooked the fact that this "offense" was getting an unbelievable anonymous letter written about him; it was not actually offending the hospital and provoking a complaint about the odor of liquor on his breath. In the absence of a credible explanation of Lewis' termination, I believe an examination of the facts to determine the true -reason is in order. Two days before the first hearing in this case, Orr notified Lewis that he had been told by Ogle to tell Lewis not to report for work the next day but to come in and get his check and that Orr did not know why this was to be done. When Lewis telephoned Ogle that night, Ogle did not say that-the hospital had requested Lewis' replacement: he did not say that anything had happened to precipitate Lewis' discharge; he vaguely suggested that Lewis "had been known" to have had the smell of liquor on his breath. The ' very way in which this was put suggests a casting about for an excuse rather than the existence of an actual justifiable one. It was not until the following day that Ogle suggested to Lewis that Respondent had had a complaint from the hospital about him. Ogle and Orr asserted that they dad not know that Lewis, at the time of his discharge, was under a Board subpena (as he was), but Ogle would not have to be clair- voyant to infer that Lewis would be called to testify. The first hearing concerned the question of a refusal to bargain. The only likely witnesses were those who had attended bargaining sessions. Among those present at such meetings were the three committee members. Two of those members, Rivers and Wolski, had become friendly ,to the Respondent's cause, having attempted; to the knowledge of Respondent, to have the Union decertified. By the process of elimination, Lewis, as the third member, could have been expected to testify against the Respondent. Lewis had declined to sign. Rivers' decertification petition, 'and his testimony could be damaging to the Respondent. Lewis' absence on leave on May 1-7 and 19 gave Respondent a chance to try out a replacement for Lewis and then to • eliminate Lewis as a thorn in the side. The evidence esatablished that 'Ogle (and, hence, the Respondent) had a disposition !to - look with disfavor on the Union and' on union activity. There is evidence -from which it may be inferred that Ogle was not 'antagonistic' to the Union so long as he could keep it -under control: -But- he had not been- able to do so • in the bargaining negotiations late in 1962, and'-the committeemen were largely responsible for this. Two had 'reversed themselves, but Lewis ; was still•'on the side of, the Union in seeking to compel Respondent to 1 sign the contract reached on'Noveniber 14, and the failure' to - sign this contract was the basis • for the proceedings before the Board' in May 1963"The flimsiness of the excuser for terminating Lewis, the failure"df Respondents' evidence to support their defense,` -the timing of Lewis" discharge, the evidence of Respondents" disposition to act ,in a retaliatory fashion and all the pertinent- evidence,,'lead me'to' infer that Lewis was' a- victim of discrimination and was 'discharged because' of his union activities and because. of 'his 'anticipated -testimony, at a 'Board hearing. On the entire 'record, I' find, therefore,' that, Respondent -di'scriminated' in regard . to Lewis' hire ,-and ' tenure of employment in violation of Section 8(a)(3) and (1)' of the Act. The complaint alleges a violation of, Section 8(a)(4) of the Act.25 -However,' Lewis did not file the change, and, at the time of 'his discharge, had not given testimony under the Act.- Since the discrimination does not come within the precise lan- guage of Section 8(a)(4), therefore; I make no -finding of a violation thereof. 4. Hamilton's vacation pay Butler Hamilton, whose union activities have been related in section III, A, herein above, terminated- his employment on or about April 28 to take other employment: About a week before that, according to Manager Orr, Hamilton came to him and told him that he had a chance to take a new job that paid 25 Section 8(a)(4) reads: ' It shall be an unfair labor practice for an employer- - # - # # # # # # (4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under. this Act. - OGLE PROTECTION SERVICE, INC. AND JAMES -L. OGLE 567 more, that he would like to get on it as soon as possible, that he did not like to let Orr down, and that he would stay a week or two if Orr wished . Neither Orr nor Hamilton testified to Orr's reply. Whether or not Orr waived a 2-week notice is, therefore, not known. The union contract contained a provision for vacation pay after 2 years' employment if 2 weeks' notice was given before quitting. Hamilton had worked more than 2 years. When Hamilton returned for his paycheck about a week after quitting, he asked Orr about his vacation pay. Orr replied that he did not know about vacation pay-that he (Orr) would have to take it up with Ogle . On a later date, between June 3 and 12, when Hamilton came in to see about the vacation pay, Orr told him that he had talked it over with Ogle and they had decided he had none coming . There is no evidence as to when this decision was reached. Orr testified that the reason for the decision was that Hamilton had not given 2 weeks' notice. Ogle quoted himself as telling Orr that "according to our company policy anyone leaving on short notice should at least give us a written notice, even concerning the vacation pay, and I said I don 't believe we can do anything about it." Hamilton testified that when Orr was telling him that he would not receive vacation pay, Orr pulled a paper out of his desk, identified as a copy of the charge filed in Case No. 7-CA-4244 herein, and said that Ogle had said he would not pay Hamilton 's vacation pay "at all now " because Hamilton's name appeared therein, referring to that portion of the third paragraph concerning Respondent's refusal to discuss grievances which read, . and the grievance concerning the assignment of work to employee Butler Hamilton Orr, according to Hamilton, referred to the "grievance here about the Woman's Hospital" and asked if that had not been settled . Hamilton testified that he replied that he had received a day's pay but that the grievance was not settled because he did not "get my transfer back like I should have." Orr told Hamilton that he should go to the Board and tell them that the grievance had been settled . During this conversation, Hamilton asked Orr if he did not think he was entitled to the vacation pay and quoted Orr as saying , "Well, off the record, I think that you deserve vacation pay." `Orr admitted saying that Hamilton "probably" deserved it, but he denied giving any other reason for his not getting it except the failure to give 2 weeks' notice. He was not asked about a conversation concerning the grievance mentioned in the charge. There is no evidence to show then date when Orr had conferred, with Ogle and when Ogle had decided not to pay Hamilton for his vacation. If the decision was made before the charge was received, it would ' be difficult to find; on the evidence, that it was made for discriminatory reasons. Hamilton's past union activities were remote with relation to the-decision not to give Hamilton any vacation pay. From the manner in which - Hamilton - quoted Orr as saying that Ogle would not pay him for his vacation "at all now," I find reason to believe that Ogle's decision had been made ,before receipt, of .the charge and that the receipt of the charge with Hamilton's grievance included therein merely fixed the decision more. firmly. Neither Ogle nor Orr was specifically questioned, about whether or not , Ogle had ever made a statement indicating that, because Hamil- ton's grievance had appeared in the charge, Hamilton would be denied his vaca- tion pay. Orr denied, however, that he had given Hamilton any reason except, Hamilton's failure to give 2 weeks' notice. Even if Hamilton's testimony were to be • credited that Orr purportedly quoted Ogle as saying, after receipt, of the charge, that "now" he would not pay Hamilton his vacation pay, Hamilton's testimony as to what Orr told him Ogle said - would be hearsay as to whether or not Ogle actually made the statement . Although Hamilton appeared to me to be an honest witness, whereas Orr, at times, appeared to be under some constraint and was often evasive, and although I am disposed to find that Orr actually made a statement to Hamilton substantially as Hamilton testified, I am not disposed to find, on hearsay evidence , that Ogle actually made his decision on the basis stated by Orr, especially since the evidence did not clearly fix the date of Ogle's decision . For this reason, as well, I refrain from finding that Respondent discriminated against Hamilton in violation of Section 8(a)(3) of the Act as alleged in the complaint . This finding in no way affects whatever contract rights Hamilton might have under the repudiated contract. The com- plaint alleged the denial of vacation pay to Hamilton to be a violation of Section 8 (a)(1) as well as (3) of the Act , but it did not allege that Orr's purported quoting of Ogle regarding his unwillingness to give Hamilton vaca- tion pay based on the contents of the charge was an independent violation of Section 8 (a) (1) of the Act, so I make no finding thereon. 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above , occurring in connec- tion with their operations described in section I, 'above, have a close , intimate, and substantial relation to trade, traffic, and commerce among the several States, and, to the extent that they have been found to be unfair labor practices, tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since I have found that Respondents have engaged in certain unfair labor practices, I shall recommend that they be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Since I have found that the Respondent refused to sign a collective-bargaining contract after agreement had been reached, the Act requires that this be rectified. Since the agreement which was reached was for a period expiring December 31, 1963, the Union may choose to apply this retroactively or it may prefer to utilize the failure of Respondent to honor that contract as a basis for bargaining for a new contract . Although considerable time has elapsed since the Union last was recognized, it was, during most of that time, deprived of the fruits of bargaining. Nothing more seriously injures the prestige of a union in the eyes of its members or is more effectively designed to undermine a union than depriving it of the earned reward of bargaining . In order to restore the situation to as nearly the same as that previously existing before the commission of the unfair labor practices, I believe, that an order is required that Respondents not only honor the contract which was to have gone into effect on January 1, 1963, but also, that on request, Respondent bargain with the -Union for a new contract. I shall therefore recommend an order that Respondent , upon request of the Union, sign the agreement which was reached on November 14, 1962, furnish a signed copy thereof to the Union , and honor said contract, and also that, upon request by the Union, Respondent ' bargain with it concerning the terms of a new collective -bargaining agreement , and, if an agreement is reached, embody it in a signed written contract .26 The General Counsel has requested as part of the remedy that the Respondent be ordered to perform said contract retroactively and pay its employees , backpay. It is well settled , however, that the Board will not enforce a contract ; it will require only that Respondent sign and honor it 27 Any remedy for breach of contract must be found in another forum. Since I have found that Thomas Lewis and Harold Leeth were discriminatorily discharged by Respondents , I shall recommend that the Respondents offer them reinstatement to their former or substantially equivalent position, without loss of seniority or other rights and privileges, and that Respondents make them whole for any loss they may have suffered - by reason of the discrimination against them by paying to them a sum of money equal to that which each would have earned in Respondent's employ, absent the discrimination against him and absent the unfair labor practice for refusing to sign the contract, less the net wages each may have earned elsewhere between the dates of their respective discharges and the date of the offer of Respondents to reinstate them, with interest at the rate of 6 percent per annum on such sum due until paid.28 Since I have found that the Respondents were not proved to have discriminated against Butler Hamilton, I shall recommend that the complaint be dismissed with respect to the allegation of unfair labor practice concerning Hamilton's vacation pay. CONCLUSIONS OF LAW 1. Respondents are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 28 See Colony Furniture Co., 144 NLRB 1582. 7 Gene Hyde d/b/a Hyde's Super Market, 145 NLRB 1252. YB Isis Plumbing & Heating Co., 138 NLRB 716. Such backpay is to be computed on a quarterly basis in accordance with the formula customarily followed by the Board. See N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc, 344 U S. 344; and F. W. Woolworth Company, 90 NLRB 289. . OGLE PROTECTION SERVICE, INC. AND JAMES L. OGLE 569 3. On November 14, 1962, end at all times material thereafter, the Union was, and is now, the' exclusive representative of all plant protection- employees of Respondent working in plants and buildings located in the Michigan area, excluding all supervisors as defined in the Act, within the meaning of Section 9(a) and (b) of the Act. 4. By repudiating an agreement reached on November 14, 1962, and refusing to sign or honor it, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 5. By refusing to recognize or negotiate with the Union concerning grievances on and after January 18, 1963, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 6. By discriminating in regard to the hire and tenure of employment of Harold Leeth and Thomas Lewis, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 7. By the aforesaid unfair labor practices, the Respondents have interfered with, restrained, and coerced their employees within the meaning of, Section 8 (a) (1)'of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 9. The Respondents have not discriminated against Butler Hamilton. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the Respondent, its officers, agents, successors, and assigns, and Ogle, shall: 1. Cease and desist from: (a) Repudiating or refusing to sign or honor an agreement entered into by Respondent with the Union on November 14,,1962, and refusing to recognize or deal with the Union with respect to grievances of employees. (b) Discouraging membership in International Union, United Plant Guard Workers of America, and its Local 114, by discriminating in regard to the hire or tenure of employment of its employees. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargain- ing or mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Upon request by the Union, sign the collective-bargaining agreement which was reached on November 14, 1962, and honor it as a contract in existence from January 1 to December 31, 1963. (b) Recognize the Union as the majority representative of the employees in the aforesaid appropriate unit and, upon request, bargain with the Union collective- ly, and, if an agreement is reached, embody such agreement in the signed contract. (c) Offer to Harold Leeth and Thomas Lewis immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to any rights or privileges previously enjoyed by them.29 (d) Make whole Harold Leeth and Thomas Lewis for any loss of pay each may have suffered as a result of the discrimination against him by paying him a sum of money computed in the manner set forth in the section entitled "The Remedy." (e) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary and useful to determine the amount of backpay due under the terms of this Recom- mended Order. 29 In the event that either of said employees is in the armed services of the United States when such offer is made, said employee's right to reinstatement will be preserved as stated in attached Appendix. 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (f) Post at the place of business of Respondent in Detroit, Michigan, copies of the attached notice marked "Appendix." S0 Copies of said notice, to be furnished by the Regional Director for Region 7 of the Board, shall, after having been duly signed by Respondents, be posted immediately upon receipt thereof and be maintained by them for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify said Regional Director, in writing, within 20 days from the date of the service of this Trial Examiner's Decision and Recommended Order, what steps the Respondents have taken to comply herewith.31 It is further recommended that the complaint be dismissed insofar as it alleges that the Respondents discriminated in regard to the hire and tenure of employment of Butler Hamilton. 80 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." M In the event that this Recommended Order be adopted by the Board , this provision shall be modified to read : "Notify the Regional Director , in writing, within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National .Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT repudiate or refuse to sign or honor, an agreement reached between the undersigned and International Union, United Plant Guard Work- ers of America, Local 114, on November 14, 1962. WE WILL NOT discourage membership in International Union, United Plant Guard Workers of America, or its Local 114, by discriminating in regard to the hire and tenure of employment of our employees. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Union, United Plant Guard Workers of America, or its Local 114, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employ- ment as authorized in Section 8 (a) (3) of the Act. WE WILL, upon request, sign and honor the contract entered into on No- vember 14, 1962, and we will, upon request, bargain collectively with the Union, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All plant protection employees working in plants and buildings located in the Michigan area, excluding all supervisors as defined in the Act. WE WILL offer immediate reinstatement to Harold Leeth and Thomas Lewis without prejudice to their seniority or other rights and privileges and make them whole for any loss suffered by them as a result of the discrimination against them. All our employees are free to become, remain, or to refrain from becoming or remaining members of the above-named Union, or any other labor organiza- tion. We will not discriminate in regard to hire and tenure of employment, NEUMANN BROS. PAVING CORP . 571 or any term or condition of employment, against any employee because of mem- bership or nonmembership in any such labor organization. OGLE PROTECTION SERVICE, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) Dated------------------- By------------------------------------------- (JAMES L. OGLE) NoTE.-We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their rights to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan, Telephone No. 963-9330, if they have any question concerning this notice or compliance with its provisions. Neumann Bros. Paving Corp . and George L. Smith. Case No. 3-CA-f29291. November 6, 1964 DECISION AND ORDER On August 14, 1964, Trial Examiner Herbert Silberman issued his Decision in the above-entitled proceeding, finding that the Respond- ent had not engaged in the unfair labor practices alleged in the complaint and recommending dismissal of the complaint in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examin- er's Decision and a supporting brief, and the Respondent filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel. [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision the exceptions and briefs, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recommendation of the Trial Examiner. Accordingly, we shall dis- miss the complaint. i The Trial Examiner found that Smith , on December 26, 1963, demanded payment from Respondent for snowplow work which Respondent had previously paid him (Trial Ex- aminer's Decision, footnote 9). The record shows, however, that on the foregoing date Smith demanded payment for other work , referred to as "shovel" work, for which he had also been paid, rather than snowplow work. This correction does not alter our agreement with the conclusion of the Trial Examiner concerning Smith's termination of employment. 149 NLRB No. 54.