Frontier Guard and DeLue, Inc.

FRONTIER GUARD PATROL, INC 155 Week Ending Warehouse Production Maintenance Drivers & shop Total Dec 21 1965 0 0 8 12 20 Dec 28 1965 0 0 8 12 20 Jan 4 1966 15 71 2 12 100 Jan 11 1966 15 71 2 12 100 Jan 18 1966 15 71 2 12 100 Jan 25 1966 15 71 2 12 100 Feb 1 1966 2 19 2 12 35 Feb 8 1966 2 19 2 12 35 Feb 15 1966 2 10 2 12 35 Feb 22 1966 2 19 2 12 35 Mar 1 1966 6 32 2 12 52 Mar 8 1966 6 32 2 12 52 Mar 15 1966 6 32 2 12 52 Mar 22 1966 6 32 2 12 52 Mar 29 1966 8 13 2 12 35 Apr 5 1966 8 13 2 12 35 Apr 12 1966 8 13 2 12 35 Apr 19 1966 8 13 2 12 35 Apr 26 1966 0 0 10 12 22 May 3 1966 0 0 10 12 22 May 10 1966 0 0 10 12 22 May 17 1966 0 0 10 12 22 May 24 1966 20 40 3 12 75 May 31 1966 20 65 3 12 100 June 7 1966 20 65 3 12 100 June 14 1966 40 145 3 12 200 June 21 1966 40 145 3 12 200 June 28 1966 40 145 3 12 200 July 5 1966 20 65 3 12 100 July 12 1966 20 40 3 12 75 This projection is based on all crops maturing at normal time and that normal tonnage will be available We must keep in mind that we are subject to crop losses due to freeze drouth or excessive rams which can change the above planned production or vary the schedule dates ELSA CANNING Co (S) J Gavito Jr JOE GAVITO JR Frontier Guard Patrol, Inc, d/b/a Frontier Guard and DeLue, Inc , Colorado Guard Patrol Service, Inc , and/or Patrol Serv- ices, Inc and Merchant Police Employees Association, Inc Case f7-CA-1703 October 20,1966 DECISION AND ORDER On July 14, 1965, Trial Examiner Louis S Penfield issued his Decision in the above entitled proceeding, finding that Respondents 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 Trial Exam mer's Decision Thereafter, the General Counsel and the Respondent 161 NLRB No 12 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD filed exceptions to the Decision and supporting briefs The General Counsel and the Respondent each filed answering briefs Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three member panel [Chairman McCulloch and Members Brown and Zagoria] The Board has reviewed the rulings made by the Trial Examiner it the hearing and finds that no prejudicial error was committed The rulings are hereby affirmed The Board has considered the Decision, the exceptions, the briefs, the answering briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom mendations of the Trial Examiner [The Board adopted the Trial Examiner's Recommended Order ] TRIAL EXAMINERS DECISION STATEMENT OF THE CASE This proceeding with all parties represented was heard before Trial Examiner Louis S Penfield in Denver, Colorado on March 2 3 and 4 1965 upon a corn plaint of the General Counsel and answer of Frontier Guard Patrol Inc d/b/a Frontier Guard and DeLue Inc Colorado Guard Patrol Service Inc and /or Patrol Services Inc herein collectively called Respondents i The issues litigated were whether Respondents violated Section 8(a)(1) and (3) of the National Labor Rela tions Act as amended, herein called the Act Upon the entire record including consideration of briefs filed by the General Counsel and Respondents and upon my observation of the witnesses I hereby make the following FINDINGS OF FACT I THE BUSINESS OF RESPONDENTS A The individual Respondents Frontier Guard Patrol Inc d/b/a Frontier Guard and DeLue Inc herein called Frontier Guard is a Colorado corporation with its principal place of business in Denver, Colorado where it is engaged in the business of providing private police patrol and guard services and selling leasing and servicing burglar alarm systems In the course and conduct of its business operations during the year 1964 Frontier Guard furnished goods and services valued in excess of $50 000 to a variety of customers It was stipulated in substance that if qualified witnesses were called they would establish that each of the customers named in the complaint to whom Frontier Guard furnished services was engaged in a business which met the inflow outflow retail or other currently applicable Board jurisdictional stand ards 2 Upon the basis of the foregoing I find that at all times material to this proceeding Frontier Guard was engaged in a business which affects commerce within the meaning of Section 2(7) of the Act, and that the assertion of junsdic- tion over its business is warranted Colorado Guard Patrol Service Inc herein called Colorado Guard is a Colo rado corporation with its principal office and place of business in Denver Colo rado where at all times material to this proceeding it was engaged in the business of providing private police patrol and guard services Except as will be set forth 1 The complaint issued on January 28 1965 and is based upon a charge filed with the National Labor Relations Board herein called the Board on November 3 1964 and an amended charge filed with the Board on January 27 1965 Copies of the complaint the charge and the amended charge have been duly served upon Respondents 2 Sbemon8 Mailing Service 122 NLRB 81 Carolina Supplies and Cement Co 122 NLRB 88 Man Products Inc 128 NLRB 546 FRONTIER GUARD PATROL, INC 157 below in connection with the integrated employer allegation no independent evi dence was adduced concerning the volume of business done by Colorado Guard with its customers or the nature of the businesses in which such customers engaged Patrol Services Inc herein called Patrol Services is and has been at all times since on or about November 19 1964 a Colorado corporation with its principal place of business in Denver Colorado where it is engaged in the business of pro vidmg private police patrol and guard services Except as will be set forth below in connection with the integrated employer allegation no independent evidence was adduced concerning the volume of business done by Patrol Services with its custom ers, or the nature of the businesses in which such customers engaged B The single integrated enterprise issue The General Counsel would establish jurisdiction over Colorado Guard and Patrol Services by claiming that the relationship of each to Frontier Guard estab lashes Respondents collectively as a single integrated enterprise Respondents dis pute this contention Frontier Guard commenced its business operations sometime in the mid 50 s At all times since its place of business has been located at 2915 West Seventh Ave nue Denver Colorado Gerald R DeLue is the principal owner of Frontier Guard and the person principally involved in its operation A substantial part of Frontier Guards business relates to the operation of a burglar alarm system with which in the fall of 1964 it served some 700 customers In early 1964 in addition to the burglar alarm business Frontier Guard operated four patrols with which it serviced residential and commercial customers by checking their premises at regular inter vals during the course of a night to inspect for unlocked doors open windows evidence of unlawful entry or to perform other inspection services as required by the customers Each patrol functioned with an armed uniformed guard or patrol man who drove the route in an automobile owned by Frontier Guard Each patrol served designated customers in a fixed geographical area of Denver and vicinity While making his rounds a patrolman maintains radio contact with a dispatcher located at the Frontier Guard office and reports immediately any out -of the way occurrence which the patrolman cannot remedy himself Such a report might result in a call to the regular city police or to some other agency for aid in correcting the situation Colorado Guard was incorporated in February 1964 when Arthur L Gilmore became associated with Jesse E Whittaker who at that time owned and operated one patrol which functioned in a similar fashion to that of the Frontier Guard patrols In April 1964 Colorado Guard expanded its business by the outright pur chase of two of the patrols which up to that time had been operated by Frontier Guard This included purchase of the customers the accounts and certain equip ment including patrol cars In September 1964 Gilmore bought out Whittaker s interest in Colorado Guard and in early October further expanded Colorado Guards business by the purchase of Englewood Merchant Police Inc another firm which operated a patrol Thus by early October Colorado Guard was operat ing the patrol originally owned by Whittaker the two patrols purchased from Frontier Guard and the patrol purchased from Englewood Merchant Police At this time Frontier Guard still operated the two patrols not sold to Colorado Guard as well as its burgular alarm business Until Patrol Services Inc came into being Colorado Guard maintained its own headquarters and carried on some of its own dispatching In certain instances however Frontier Guard furnished it services for fixed fees These services related to the two patrols which Colorado Guard had purchased from Frontier Guard and encompassed rental of desk space the sup- plying of dispatching services and the rendering of certain billing and administra- tive services At all times however prior to the formation of Patrol Services the two companies continued to bill their respective customers separately to keep separate books and bank accounts to make separate tax reports to use and service their separate automobiles and to pay the wages of their separate patrolmen At some point in October 1964 Gilmore and DeLue commenced to discuss the possibilities of merging their businesses By mid October they were exploring the possible advantages and disadvantages of combining the patrols operated by each company In the ensuing 2 weeks Gilmore and Gary Anderson a Frontier Guard supervisor rode together in patrol cars to gain familiarity with the respec tive patrols of each company and to explore possibility of more efficient operation 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by consolidation . At some time in October, the two companies effected an actual exchange of some of the customers served by each .3 At some time in October, each company reduced the rank of some of its employees, but there is no evidence that coextensive with this, the wages of any of the patrolmen involved were low- ered 4 Also in October, Frontier Guard undertook the preparation of the Colorado Guard payroll for a fee. About the same time, its dispatchers commenced to log calls for Colorado Guard patrolmen, a practice which they had not undertaken before. It is possible that both these steps were taken in anticipation of a merger. During the last 2 weeks of October, Anderson, apparently with the acquiescence of DeLue and Gilmore, apprised the patrolmen of both companies that merger plans were underway, that when the merger was effected Gilmore would have a status equal to that of DeLue in his relation to all patrols, and that changes in wages, hours, and mode of operation were likely to be forthcoming.5 Despite the rumors and talk, however, no actual changes in working conditions were forthcoming dur- ing the month of October. Payment of wages, handling of accounts, and billing for services continued as they had before until the time that Gilmore and DeLue effected an actual merger in the manner to be described below. It is conceded that a merger of the businesses did take place in November. This was effected by the execution of a preincorporation agreement dated November 12, 1964, signed by Colorado Guard, Frontier Guard, DeLue, and Gilmore.6 This agree- ment set forth in substance that since both companies were in "the merchant patrol and guard business" and believed "that their business interests would be best served by combining certain facets of their guard and patrol operations," they would estab- lish a new corporation to be known as Patrol Services, Inc., to be owned and oper- ated by them jointly. The agreement, its effective date retroactive to November 1, also provided, in substance, that the new corporation would thereafter operate patrols formerly owned by Frontier Guard and Colorado Guard, that the patrols and certain other assets of both corporations would be turned over to Patrol Serv- ices in return for shares of stock in the new corporation, that Patrol Services would lease space from Frontier Guard, would use Frontier Guard's dispatching services, and would perform certain services for Frontier Guard relating to the latter's bur- glar alarm business. It also provided that Gilmore and DeLue were to serve as presi- dent and vice-president, respectively, of Patrol Services, and that they jointly should manage its operations. Patrol Services came into being as a corporate entity shortly after the execution of the agreement . At all times since, Patrol Services has contin- ued to function in the manner above described. Respondent contends that even subsequent to the execution of the preincorpora- tion agreement it has not been established that Frontier Guard, Colorado Guard, and Patrol Services together comprise a single-integrated enterprise. This agreement, however, marked a culmination of discussions that had been going on for some weeks relating to combining the business of Frontier Guard and Colorado Guard. The agreement itself states that the two companies were undertaking thereby to 3It is not disputed that this exchange was brought about primarily for reasons of geographical convenience . The extent of the exchange is in some dispute, with Anderson estimating it to be more comprehensive than do DeLue and Gilmore Anderson claims that at least 15 or more customers were involved , but lie does not undertake to name them specifically. DeLue testified that the exchange did not concern more than four or five customers , which he named . I find it unnecessary to resolve the conflict since it seems clear that the transfers did not involve any wholesale exchange of customers , but were a move based on convenience in rendering service to a few, for which each company there- after billed the other. * The rank of sergeant or corporal does not necessarily connote supervisory function, although apparently the rank was regarded as a mark of status that patrolmen did not wish to lose. 5 Anderson may have advised the employees that merger had actually been completed prior to the end of October. It does not appear, however, that he had actual knowledge of the status of the merger talks or of the obstacles which stood in the way of their com- pletion. While it appears that DeLue and Gilmore made no effort to conceal the fact that a merger was under consideration , it is not shown that either of them ever represented to the employees in October that the operations of the two companies had actually merged. Nevertheless, it appears to have been the general belief of most of the employees of both companies that by this time merger had either actually been effected or was so certain that for all practical purposes the two employers could be regarded as one e Richard F. Gilmore, Sr., father of Arthur L. Gilmore, was also a party to this agreement. FRONTIER GUARD PATROL INC 159 serve their business interests by combining their respective operations Patrol Serv ices the new corporation appears as a jointly owned and controlled device used to effectuate these ends Colorado Guard emerges with its only former operational function stripped from it and with a seeming paper existence Frontier Guard also lost its patrol operations to Patrol Services but joins with Colorado Guard in the ownership and operation of the new corporation and is sharing with Patrol Serv ices certain of its facilities and services while using Patrol Services to assist it in carrying on certain aspects of the burglar alarm business which it retained In commenting on criteria which would establish responsibility among several corpo rations as a single enterprise the Supreme Court in NLRB v Deena Artware Inc 361 U S 398 403 stated apart from that is the question whether in fact the economic enterprise is one the corporate forms being largely paper arrangements that do not reflect the business reality The formation of the jointly owned new corporation is a paper arrangement The business reality is the joining together of the Colorado Guard and Frontier Guard businesses to operate together in the future Reserving the issue of their status before this date I find that with the execution of the preincorporation agreement on November 12 1964 Frontier Guard and Colo rado Guard evidenced their intent to continue the operation of their respective buss nesses as one and that thereafter the elements of common ownership and control functional and physical integration and common labor relations are all present in sufficient measure to justify the conclusion that from that time on Frontier Guard Colorado Guard and the newly created Patrol Services constitute together a single integrated enterprise Assertion of jurisdiction over the business of Frontier Guard has already been found warranted Since by November 12 Frontier Guard had combined with Colorado Guard and Patrol Services to form a single integrated enterprise it follows that the assertion of jurisdiction over the three employers together from that time on is appropriate and I so find 7 The status of Colorado Guard and Frontier Guard as a single integrated enter prise or as joint employers before the execution of the preincorporation agreement insofar as it affects the issues in this proceeding will be discussed below in connec Lion with a consideration of the alleged unfair labor practices II THE UNFAIR LABOR PRACTICES A The unlawful conduct charged and the supervisory status of Richard E Allen The unfair labor practices alleged arise from a claimed unlawful response by Respondents to demands presented by employees This response is asserted to include threats of reprisal discharges for engaging in concerted activities and dis criminatory refusals to reinstate Respondents jointly and severally deny the unlaw ful character of their response and urge that the record establishes only an eco nomic strike followed by permanent replacement of the strikers thus excusing any duty to reinstate Respondents further contend that any request for reinstatement was conditional and that in any event the employees involved had forfeited their rights to reinstatement because their activity either was unprotected at the outset or had subsequently lost its protected character because of alleged misconduct render ing the strikers unfit for reinstatement DeLue and Gilmore owned Frontier Guard and Colorado Guard respectively and each exercised general supervision over the operation of his corporation Gary Anderson is acknowledged to be a supervisor for Frontier Guard 8 Nick Condos is conceded to be a supervisor for Colorado Guard Richard E Allen is also named in the complaint as a Frontier Guard employee affected by the alleged unfair labor practices Frontier Guard claims Allen to be a supervisor within the meaning of the Act The General Counsel acknowledges that at one time Allen was a supervisor who responsibly directed the work of others and who possessed and had exer cised the authority to hire and fire It is claimed however that by the time of the incidents in which he was involved such authority had been taken away and 7 Contrary to the contention of Respondents when it is determined that these corl ora Lions have become a single integrated enterprise then it is the business of the three 1 a unit which determines the jurisdiction and no breakdown of the burglar alarm and patrol businesses as spread around among the corporations is in order 8 Anderson was originally named in the complaint as an employee affected by the alleged unfair labor practices At the opening of the hearing I granted a motion to strike his name from the complaint because he was a supervisor 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that at that time Allen was properly classified as a rank and file employee I do not agree The testimony of DeLue of the Frontier Guard patrolmen and even of Allen himself discloses no substantial change in his position or authority at any time material to this proceeding On the contrary it appears that at all times Allen possessed and performed supervisory functions that the employees under him and even Allen himself continued to regard him as a supervisor Accordingly I find Richard E Allen to be a supervisor within the meaning of the Act I further find that his name should be stricken from the list of employees affected by the allega tions of paragraphs VI and IX of the complaint B The events of October 27 1964 The central incident which provoked the alleged unlawful response of Respond ents occurred on October 27 1964 Prior to this date there are no unlawful acts charged nor is it even claimed that Respondents had knowledge of any union or other concerted activities among their employees 9 In substantial measure because of apprehensions brought about by the proposed merger employees of both Fron tier Guard and Colorado Guard during the 2 weeks preceding October 27 com menced to discuss among themselves the desirability of making demands upon man agement In connection with this they had several informal and inconclusive meetings On the morning of October 27 1964 a group of both Frontier Guard and Colorado Guard patrolmen met in the office of Frontier Guard after completing their patrols and drew up a list purporting to represent the consensus of their principal demands Patrolman Thomas Bossen noted these demands on a tablet and all agreed that Bossen should consult an attorney for advice as to an appropriate way to present them to management Bossen talked with an attorney later that same day and was advised first to arrange a meeting of the employees with DeLue and then after they had learned of DeLue s reaction to the demands to consider a future course of action Bossen telephoned the various patrolmen working for both companies and urged them to come to the Frontier Guard office that evening at 6 p in for such a meeting Bossen telephoned Supervisor Anderson who had not been present at the morning meeting and told him that the men wanted to get together with DeLue and talk to him over raises and things 10 About 4 15 p in Ander son advised DeLue that the men wished to meet with him that evening at 6 p in Anderson admits that at this time he was aware that there was some unhappiness among the employees relating to various matters arising out of the prospective mer ger and that he knew that there had been several employee meetings concerning these matters When asking DeLue to meet with the men that evening however he did not tell him either what he knew of the previous meetings or that the men specifically wished to meet with DeLue at this time to talk over raises and things 11 The patrolmen regularly started their evening rounds at 7 pm, with the last patrol scheduled to depart at 8 30 p m At approximately 6 p m on October 27 the patrolmen that Bossen had telephoned began to gather in the outer office of Frontier Guard At that time Bossen handed to Anderson the tablet on which he Y There is evidence that some employees of Frontier Guard had met with DeLue on occasions In the past and had pressed for changes In working conditions of one sort or another On these occasions DeLue had listened to their demands and had promised to con elder them further but the employees had received no subsequent word from him nor had any action by him been forthcoming These appear to be remote occurrences which have no direct bearing upon the current controversy w Gilmore was out of the city on this day It is not clear that this was known to Ander son but even if It was he did not so advise Bossen or suggest that It might affect the results of the proposed confrontation There Is no showing that Bossen learned of Gilmore e absence from any other source u Contrary to Respondents contention I do not see in Anderson s failure to apprise DeLue of all that he knew any deliberate effort at concealment There is no showing that DeLue pressed him for an explanation as to the reasons for the proposed meeting In fact DeLue states that he believed the meeting to relate to questions concerning the prospective merger and so presumably he directed no inquiries to Anderson As we have seen Ander son had not been present at the morning meeting nor had he seen the actual list of demands at this time nor did he have more than a general knowledge that the men were unhappy and wished to meet with management for a discussion Even had he conveyed such information to DeLue in the afternoon I fail to see it as having the likely consequence of altering the course of events FRONTIER GUARD PATROL, INC 161 had written the demands earlier in the day These included a demand for a 2 year contract a 50 hour week with a minimum of $2 per hour for patrolmen and dis patchers a demand for paid vacations and a demand for hospitalization and sick leave Bossen gave the tablet to Anderson who carried it to DeLue in his private office Upon presenting the tablet to DeLue Anderson told him that the men wanted to talk to him and they would probably walk out 12 DeLue then asked Anderson how long he had known about these employee demands and Anderson responded that he had known about the unrest for some days and that he thought the men were really unhappy DeLue apparently with a note of sarcasm replied thanks a lot for telling me and then said Well lets go out and talk to them DeLue and Anderson then went to the outer office where the men were gathered According to DeLue his meeting with the men lasted for approximately 4 or 5 minutes and his version of what transpired is as follows DeLue asked Anderson if he were speaking for the group or for himself and Anderson replied that he spoke for the group Supervisor Allen came in to the meeting at about this point, and DeLue asked if he were in on this also and Allen replied in the affirmative DeLue states that he was very upset that he told the employees that the demands had come as quite a shock and surprise to him that he didn t appreciate the way it was done and didn t feel it was necessary He then told the group that he had nothing to do with Colorado Guard that he owned no part of Colorado Guard that Gilmore owned no part of Frontier Guard and that Gil more was out of town and he couldn t speak for him or his company At this point Bossen spoke up and DeLue admits that he told him `to be quiet or shut up DeLue then told the employees that as far as the demands go I think they are ridiculous He stated that they are approximately a 100 percent increase in everything but that if there was any merit to them [he ] would take it under consideration and he would also advise Mr Gilmore when he returned so that he [might] also take them under consideration At this point DeLue reports that Allen got up and said that DeLue `will make a decision here and now for all of us or else " DeLue replied or else what? to which DeLue said Allen answered or else we will walk out DeLue then told the group that he regarded this as leaving him with very little choice and that if that was the way the group felt they could go ahead and walk With this he states Allen got up and Anderson and Bossen immediately followed him out the door with the rest of the employees present joining and walking out 13 DeLue admits that during the course of the meeting he had remarked that Frontier Guard had never had a union and that he didn t feel that we needed one now " He denies however that he told the group or any one of its members that the employees were discharged or fired for walking out or for any other purpose, stating that was the last thing I wanted to see any of them do was walk out or anything else 12 The record does not establish with any degree of exactness the basis for Anderson s statement that the men would probably walk out As already noted Anderson had not been present at the meeting in the morning None of the employees who had been there testified that they contemplated or had agreed to walking out if the demands which they had formulated were not met On cross examination Anderson stated that prior to going in to DeLue he knew of an agreement among the employees to walk out if their demands were not met He qualified this statement later in his examination however by stating that this only represented his own thinking for he believed that the realities of the situa tion left DeLue no real choice but to meet the demands if he were to continue to run his business Anderson s own thinking however does not suffice to establish that the employees had committed themselves to a walkout if their demands were not met but only shows such to be Anderson s opinion of what might happen Is Respondents claim that since the record shows no dispute between the employees and Colorado Guard at this time Colorado Guard employees by walking out quit their jobs I disagree Although no actual merger of operations may have taken place at this time the employees clearly were addressing their demands to both employers in the belief that for all practical purposes they were one Although DeLue disclaimed authority to speak for Gilmore he agreed to pass on the demands to him The employees of both Companies walked out because discussions of their demands were not forthcoming from either Com pany Employees of Colorado Guard had no more intention to quit than did those of Frontier Guard I find that employees of both employers joined together in a strike to promote what they regarded as common demands and accordingly that all must be regarded as strikers 264-188-67-vol 161-12 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Seven of the employees present at the meeting testified concerning the walkout, and in certain respects their versions differ from that of DeLue. They all agree that DeLue appeared considerably upset and agitated, that he questioned Ander- son and Allen as to their positions, and that he told the group that he was unable to speak for Gilmore with regard to the demands. All recall hearing DeLue state that there had never been a union at Frontier Guard, and that he did not see the need for one. The majority, however, testified that DeLue also told them that there never would be a union there. They agree that DeLue characterized the demands as ridiculous, but they acknowledge that - he stated that he would give them further consideration. Only Allen and Cady testified that they heard DeLue tell the men that they were fired or discharged. The others have no recol- lection of such a remark.14 Allen specifically denied that he ever told DeLue that he must decide the matter then and there "or else" the men would walk out. Allen states, however, that he told DeLue that he "thought it ought to be left up to the men right then," and that when Gary Anderson got up to walk out he followed him. Anderson recalls Allen making some statement to the effect that if some answers were not immediately forthcoming the men might walk out. All the employees recalled remarks byDeLue either to the effect that they should keep on walking, or that they should attempt to line up -some other jobs if they left. All recalled DeLue making uncomplimentary remarks about the intelligence of the employees, or their ability to get other jobs. Not everyone was specific as to the exact reason why he walked out. It is clear, however, that each was interested in obtaining some concession from management or, at the very least, in bringing about an immediate discussion of their demands. From, their collective explanations it would appear to be the consensus that the walkout was prompted by DeLue's insulting demeanor, his negative and peremptory response to their demands, and to what they regarded as his unwillingness to discuss such demands more fully at that particular time 15 Immediately following the walkout, the employees involved, including Anderson and Allen, proceeded to a motel located across the street from the Frontier Guard office to discuss what to do next.'They agreed among themselves at this time that the wage rates demanded.were probably unrealistically high, and appropriately could be lowered. They were unanimous, however, in deciding that they should continue to press for some concessions from management, and that in doing so they should maintain a united front. To further this latter objective, Bossen drafted a statement which was signed by all the employees present at the meeting, including Anderson and Allen.16 The text of this statement is as follows: • We, the men listed below by signature, do hereby agree not to work for the above named organization until such time as a working agreement between the men and the organization can be bound by a contract. At the same time the employees agreed that they should immediately undertake to form a union in the interest of more effectively pressing for the concessions. In furtherance of this, they went to the office of Attorney John A. Criswell on the following day. Criswell advised them that he would undertake to set up a nonprofit corporation as a labor organization to represent them, and that it would seek representation rights through the National Labor Relations Board. Criswell also advised them that they should immediately request reinstatement from Fron- tier Guard and Colorado Guard. Criswell undertook to initiate the formation of a nonprofit organization, and also drafted a letter addressed to both Frontier Guard and Colorado Guard, stating that a labor organization was in the process of formation, and that a majority of the employees had authorized it to represent them. The letter also stated that Cris- well was submitting with it a request for reinstatement "signed by those employees who 14 While Cady testified on direct examination that DeLue had said the employees would be fired, subsequently, on cross-examination , Cady stated that he could not remember whether DeLue had actually said that or not. 15 As we shall see, the General Counsel contends that in part the employees walked out because of DeLue's alleged threats of reprisal against them if they persisted in -pursuing collective action through a union, or by walking out, or in some other manner. Even if it' be assumed that unlawful threats were made at this time, the record does not, establish that these in any • way influenced the decision to walk out. On the contrary it appears clear that, as set forth above, the walkout was undertaken solely in the belief that it might bring about further concessions or at the very least promote fuller discussion. 16 Joyce Snyman later signed this statement but she was not present at the meeting. FRONTIER GUARD PATROL, INC 163 are now on strike This letter was received by both Frontier Guard and Colorado Guard on October 29 1964 together with a document signed by 16 employees, including Richard Allen but not including Gary Anderson 17 which read as follows We the undersigned employees of Frontier Guard and DeLue Englewood Merchants Police and Colorado Guard and Patrol Service do hereby request immediate reinstatement as employees of the aforesaid companies this twenty north day of October 1964 When the employees walked out on October 27 after their beef meeting DeLue immediately undertook to man the two patrols which Frontier Guard operated He succeeded in getting replacements for that evening and the patrols went out as scheduled DeLue did not reach Gilmore on that evening DeLue working with Nick Condos Colorado Guard supervisor was successful in mannmg the four patrols operated by Colorado Guard patrols and they too went out as scheduled DeLue states he did this as a matter of courtesy Issues relating to permanent re placement will be discussed more fully below C Conclusions regarding the walkout of October 27 The threshold question and the one which in large measure influences the dis position of all other issues concerns the significance of the walkout The General Counsel argues that the record shows DeLue first threatening employees with reprisals for pressing their demands upon him and thereafter discharging them for walking out when their demands were not immediately met. Alternatively, he urges that even if discharges not be found the walkout is properly to be regarded, in part at least as a protest against unlawful threats made by DeLue thus con stituting it as an unfair labor practice strike Respondents deny that DeLue unlaw fully threatened employees or discharged them for walking out, and urge that the record shows no more than a walkout in furtherance of economic objectives We cannot properly evaluate the significance of the October 27 incident without considering the setting in which it arose The events of the evening of October 27 are not set against a background of employer opposition to employee organization nor does it appear that the current effort at collective action had even come to the attention of DeLue or Gilmore before that night is DeLue s first knowledge that employees were making demands came to him only moments before he was to meet with them Without prior warning, and barely an hour before the patrols were scheduled to go out he was confronted with wage demands among others that the employees themselves were later to acknowledge as unrealisticly high Gilmore was away at the time and not avail able to share the problem with him His supervisor who theretofore had not even suggested that the employees were becoming restive, had simultaneously with the presentation of the demands told DeLue that the employees might walk out All these factors had the understandable effect of bringing DeLue to the meeting in a state of surprise upset and agitation On the other hand it does not appear that the employees were much better prepared They had no real knowledge of the status of the merger, nor did they even know of Gilmore s absence from the city on that day The meeting had been somewhat hastily arranged and does not appear to have come about as a result of a well planned and well understood organizational effort Respondent argues that the employees came to this meeting with a predetermined and fixed aim to set up DeLue by placing him in a position where he must either yield to their demands or face destruction of his business The record however fails to support such a view The patrolmen were not a highly paid group They had never received paid vacations hospitalization or other fringe benefits Their belief that the forth coming merger might worsen even this situation and that the time for taking collective action had arrived was not unreasonable There is no evidence that those present at the morning meeting had agreed among themselves that they would walk out if their demands were not met that evening At the time, they were 17 Larry Moffett and Leonard Jenkyns did not sign this request and there is nothing in the record to show a request for reinstatement by them made in any other manner Is I disregard any knowledge that Allen or Anderson may have had prior to the time that Anderson presented the tablet to DeLue Admittedly neither one had communicated any thing that he knew about such activity to DeLue Moreover at all times during the con troversy each appeared to have allied himself with the employees despite his supervisory status 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not even aware that a meeting would be forthcoming so soon The attorney con- sulted by their spokesman did not advise the walkout and the employees telephoned were not asked to agree to such action Indeed there is no evidence that those not present at the morning meeting had even been apprised of the exact demands that Bossen had listed on his tablet Under all the circumstances I am convinced and find they came to the evening meeting anticipating only a preliminary dis- cussion perhaps hopeful that it might prove fruitful but without any prearranged plan or intent that they would walk out if their demands were not met then and there 19 The meeting itself lasted only 4 or 5 minutes and was characterized more by confusion and intemperance than by calm and reason We see a surprised and upset DeLue reacting to the demands of his employees in an insulting and demean ing manner However understandable his emotions and whatever his intent the nature of his response was one calculated to engender resentment and to promote rather than allay an ill considered reaction from a group of employees seeking to discuss matters which concerned them We can only speculate what might have resulted had DeLue engaged in a calm and consihatory discussion during the limited time available or if when a walkout appeared imminent he had urged the employees to reconsider and had attempted to schedule a future meeting where a more full discussion could take place He did none of these things how ever and I am satisfied that the result was to set off a spontaneous emotional reaction among the employees which had the effect of triggering the walkout as the step which appeared as the most likely means of bringing DeLue to a serious consideration of their demands I am not called upon to judge the wisdom of their action but contrary to the claim of Respondent I find it to be a spontaneous reaction to DeLue s rejection of their demands for changing working conditions and to constitute protected concerted activity The General Counsel insists that the confrontation produced more than an unreasonable and bad tempered reaction from DeLue but that in addition he reacted in an unlawful retaliatory manner I do not agree While a more conciha tory approach might well have avoided the walkout DeLue s failure to undertake it is not enough to render what he did unlawful His statement that there would never be a union would only appear as unlawful if occurring in a context where it would be reasonable to infer that DeLue was prepared to take further retaliatory action to insure such a result. Here it is not made against a background of union animus and it appears more as an isolated statement of opinion than as a threat to resort to unlawful means to forestall future collective efforts It is also claimed that DeLue by telling the employees that if they walked out they had better seek other jobs or that if they left they should keep on walking, was threatening them with unlawful retaliatory action should they pursue further their collective action Statements of such nature were unquestionably made by DeLue to the employees I do not necessarily see them however as threats of retaliation if the employees persisted in the exercise of their statutory rights At the most the statements are ambiguous A retaliatory connotation is possible but it is equally if not more reasonable to construe the statements either as an attempt to persuade the employ ees not to walk out at all or as statements that if they did so they might be sub jetted to replacement Absent a background of union animus I am unwilling to infer the unlawful connotation Moreover there is no showing that the employees themselves regarded any of DeLue s statements at this meeting to be mtimidatory As we have seen, the employees were reacting primarily to DeLue s peremptory rejection of their demands without even an attempt at some preliminary discussion "I reach this conclusion after giving full consideration to certain portions of the testi moray of Snyman Anderson and Miller indicating that each had heard of plans for or had agreed to a walkout if the demands were not met that evening Testimony of each in this regard its somewhat inconclusive and I regard it as insufficient to establish the fact that a prearranged plan existed Considering the meager discussions about the demands that had taken place that many employees had not even participated in these and that no one knew in advance what response DeLue would make I find it unreasonable to believe that any one of these three witnesses or any one of the other employees had in effect committed himself or believed that the others had committed themselves to a walkout if these demands were not met forthwith at the evening meeting FRONTIER GUARD PATROL, INC 165 At no time either at the meeting among themselves nor later when they con suited an attorney, did any of them express concern about DeLue s so-called threats, but their entire emphasis was on finding effective means to obtain con cessions I find therefore that under the circumstances here presented DeLue made no threats at the October 27 meeting which were calculated to interfere with or actually did interfere with the statutory rights of the employees present Allen was the only employee who insisted that when the patrolmen were walk ing out DeLue had said you are all fired anyway As we have seen DeLue denies not only making such a statement but also points out that when the employees were walking out it was the last thing [he] wanted to see them do" Inconsistencies in the testimony of a group of employees about details of an emotionally charged event occurring nearly 6 months before the hearing are to be expected It is unlikely however that an announcement of such nature as a mass discharge if made would have been recalled by only one of the group involved I find it more plausible to consider Aliens memory in this regard to be faulty and to conclude that DeLue actually made no such remark However assuming that he did make it it comes in a context where it appears more as a tactical statement aimed at persuading the employees not to leave than as an expression of intent to terminate them altogether because of their collective action Accordingly, I find that DeLue did not fire or discharge the employees for walking out on the evening of October 27 Having found that it has not been established that DeLue unlawfully threatened or discharged the employees for walking out that the employees were engaged in a lawful collective effort to obtain concessions from management, and that they walked out to protest DeLue s refusal to discuss more fully their demands it follows that the walkout was occasioned for economic reasons and not to protest unfair labor practices and I so find 20 D The replacements and the request for reinstatement In the operation of their patrols, Frontier Guard and Colorado Guard used both full time and part time patrolmen At the time of the walkout Frontier Guard was operating two patrols and Colorado Guard was operating four patrols in At the time of the walkout Roger Moffet and Michael Vourexes were the fall time patrolmen and Eugene N Smith Norman R Buskirk, Thomas H Bossen, William R Miller and Larry Moffet the part time patrolmen working for Frontier Guard At the same time Robert L Lisle Charles E Nesmith, and Emery L Reynolds were the full time patrolmen with Aaron L Burkhart Michael B Wagner Bud W Cady Virgil H Colman and Leonard Jenkyns the part time patrolmen work ing for Colorado Guard 22 Frontier Guard also had a dispatcher named Joyce Snyman who also joined in the walkout 80 Since I find no unlawful conduct by DeLue in connection with the October 27 meeting no statutory liability attaches to Frontier Guard Even if it be assumed that Frontier Guard and Colorado Guard were at the time a single-integrated enterprise or were acting jointly no liability would thereby attach to Colorado Guard either The relationship of the two corporations at the time however will be discussed below in connection with the request for reinstatement and nothing set forth above is to be construed as a finding or to be based on the assumption that statutory liability as such has been found and at taches to Colorado Guard as well as Frontier Guard at this time or of course to Patrol Services which on October 27 had not even come into existence m The record does not clearly establish the exact number of patrolmen needed to carry on the full operation of all six patrols Clearly at a minimum Frontier Guard would need two patrolmen and Colorado Guard four to insure that all patrols would go out They had a 7 day operation however and regular relief men were needed at all times Apparently the so called part time patrolmen served this relief function Many of these had other full time jobs but performed relief work either for Frontier Guard or Colorado Guard on a regular basis The record however does not show how much work per week this might regularly involve for any given individual m The record does not show the name of one full time patrolman who appears to have run the fourth patrol for Colorado Guard There is testimony however that Colorado Guard only found it necessary to hire three employees to keep its operation going and that one of them had not gone out on strike 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On October 27 and 28 Frontier Guard hired four patrolmen and two dispatch ers 23 On October 27 and 28 Colrado Guard hired four patrolmen 24 Following receipt of Criswell s letter on October 28, 1964 requesting recognition and enclosing the request for reinstatement Frontier Guard and Colorado Guard jointly consulted an attorney Thereafter they sent a telegram to Criswell signed by both Companies which read as follows We have no information concerning validity of organization purporting to represent our employee would discuss said validity with you Monday or Tues day at your convenience in order to decide whether or not to bargain with said orgainization contact our Attorney Tim Campbell if this is satisfactory As a result of this telegram a meeting was held on October 30 1964 in Cris well s office It was attended by counsel representing Frontier Guard and Colorado Guard by DeLue and Gilmore and by three spokesmen for the employees Bos sen Nesmith and Reynolds At this time Criswell explained the steps which he had taken to form a union and urged a unit comprised of patrolmen and dispatch ers to be appropriate He also advised counsel for the employers that he regarded the walkout as a strike and stated that if Frontier Guard and Colorado Guard would reinstate the strikers he would recommend that any possible backpay claim which they might have be waived and that such reinstatement would be without prejudice to any position which the employers might wish to take with regard to recognition or with regard to the unit Counsel for DeLue and Gilmore agreed to take all matters under advisement including the request for reinstatement On the following day counsel informed Criswell that his offer was unacceptable I have set forth in footnotes 23 and 24 the names of those persons hired by both Frontier Guard and Colorado Guard after the economic strike but before the request for reinstatement After receipt of the request various others however were hired by both Frontier Guard and Colorado Guard and worked for these Companies or their successor Patrol Services for varying lengths of time ss Respondents concede that neither Frontier Guard Colorado Guard nor Patrol Services have ever offered employment to any of the strikers at any time after receiving the request for reinstatement Both DeLue and Gilmore explain this by stating that both understood the request for reinstatement to be conditional, mas much as the strikers on the night of the walkout had executed an agreement among themselves that none would return unless all returned DeLue and Gilmore assert that since the Companies had already made replacements they were not in a 0 Frontier Guard hired Gardner Sanford Win Ingmire Arthur Randolph and Harold T Francis as patrolmen Randolph worked continuously thereafter in such capacity until February 22 1965 when his employment terminated At the time of the hearing the others were still working for Patrol Services the successor to Frontier Guard in the patrol operation Ingmire was hired and continued to work as a supervisor replacing Anderson John Wilkin and Katherine Greenwlll were hired as dispatchers and were still employed by Frontier Guard in that capacity at the time of the hearing x At this time Colorado Guard hired Harry Butler Clay Tarplay Ray Nelson and Louis Godby as patrolmen Nelson quit on November 7 1964 but at the time of the hearing the others were still employed as patrolmen by Patrol Services successor to Colorado Guard in its patrol business w It was stipulated that between November 1 1964 and the end of the year the follow ing persons were hired as patrolmen or dispatchers on the dates and for the periods appearing after their names Darrell Brink patrolman November 2 to date of bearing Kenneth Linz dispatcher November 19 to November 19 Lee Voss dispatcher November 5 to 25 Archie Alexander patrolman November 3 to November 3 Robert Bailey patrolman November 9 to the date of the hearing Lawrence Kent patrolman November 6 to Decent her 6 Gary Keys patrolman November 9 to January 25 1965 Harold Mattingly patrol man November 5 to 6 James McNamara patrolman November 28 to February 1965 Robert Sharp patrolman November 9 to December 12 Dwight Sutter patrolman Novem her 18 to 24 Carl Van Horn patrolman November 1 to date of hearing Robert Weathering patrolman November 3 to dite of hearing It wee further stipulated that each of the names listed appeared on the payroll of Patrol 9e*ices except fnr'the two dispatchers that were on the payroll of Frontier Guard As we have seen Patrol Services did not come into being until after November 12 although the transfer of patrolmen from Frontier Guard and Colorado Guard was made retroactive to November 1 by the terms of the preincorporation agreement The record does not show which of the named persons hired prior to Novem her 12 were hired by Frontier Cuard and which were hired by Colorado Guard FRONTIER GUARD PATROL, INC 167 position to take all the strikers back It is their position that the request being con ditional need not be honored and they were permitted to look elsewhere in filling available jobs This contention of Respondents cannot be upheld The request was unconditional on its face and the record contains no statements of or actions taken by and of the strikers or by their counsel indicating that it was intended to have any qualified meaning Both DeLue and Gilmore relied on the motel agreement signed unmedi ately after the walkout as controlling the position of the strikers Knowledge of this only came to them indirectly through Supervisor Condos who had asked a striker to return on the very night of the walkout and had been told of the agree ment The next day however the employees consulted Attorney Criswell and acted on his advice in signing the request for reinstatement This was obviously a repudiation of the previous agreement It was well known to both Colorado Guard and Frontier Guard that the request followed the motel understanding in point of time Any doubts which they might have harbored as to its meaning or as to the possible conditional character of the request could readily have been resolved at the meeting on October 30 when request was again renewed orally by Cris well No questions were asked at this time or any other time however by either DeLue or Gilmore and it is apparent that the position which they urged at the hearing is an afterthought I find therefore that no tenable basis exists to support DeLue s and Gilmore s alleged belief that the request was conditional Accord mgly I find further that on October 29 1964 the strikers employed by both Companies unconditionally requested reinstatement to the jobs that they had left E Discriminatory character of refusal to reinstate and responsibility of Frontier Guard Colorado Guard and Patrol Services therefor Having found the strike to be an economic one and the request for reinstatement unconditional there remains for consideration the discriminatory nature if any of the failure to reinstate and the extent if any to which responsibility therefor attaches to Frontier Guard Colorado Guard or Patrol Services Since the strike was an economic one Respondents lawfully could hire replace ments while the strike was still in effect and to a limited extent they did so How ever when Respondents received the unconditional request the strike ended Respondents were not then required to displace those already hired but insofar as jobs were still available they could no longer refuse to fill them with strikers with out showing that failure to do so stemmed from reasons unrelated to their partici pation in the strike All the persons requesting reinstatement had participated in the strike and had joined in the formation of a labor organization which was request mg recognition of Respondents It is not claimed that the strikers were not compe tent to perform available jobs Absent an explanation that will withstand scrutiny it is a reasonable inference that Respondents used their wholly unfounded reliance on the conditional nature of the request as a pretext to justify not only displacing the strikers but also to forestall a possible obligation to bargain which might arise should they return That action so motivated is discriminatory is so obvious that it merits no further discussion Accordingly I find that Respondents within the mean ing of Section 8(a)(1) and (3) of the Act discriminatorily refused to offer to strikers available jobs after they had requested reinstatement Jurisdiction has been established over Frontier Guard Therefore to the extent that it discriminatorily declined to reinstate strikers to available jobs it must accept remedial responsibility under the statute As noted however jurisdiction was not independently proven over Colorado Guard and Patrol Services While I have found Frontier Guard, Colorado Guard and Patrol Services to comprise a single integrated enterprise after the execution of the preincorporation agreement on November 12 1964 I have reserved for further consideration the issues of whether or not Frontier Guard and Colorado Guard may be found to constitute a single integrated enterprise or be found to have acted in concert as joint employers prior to that time Contrary td the General Counsels contention I am not convinced that this record establishes Frontier Guard and Colorado Guard to be a single integrated enterprise prior to the execution of the preincorporation agreement The two corporations were not commonly owned nor did they share common corporate officers A busi ness relationship first arose between them when Colorado Guard purchased the two patrols in April and Frontier Guard agreed to furnish it certain services for a price As we have seen however the two Companies continued to operate the patrols 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which they owned under separate supervision, to make separate billings, and to pay the wages separately In October the business relationship grew somewhat more closely knit when the parties commenced to discuss merger possibilities, and to explore the feasibility of certain operational combinations. However, contrary to the assertion of the General Counsel, I see little taking place at this time which sug- gests any immediate change in the degree of functional and physical integration. Some additional services were performed by Colorado Guard for Frontier Guard, there was a minimal exchange in customers between the two Companies, and some employees were reduced in rank. Otherwise the two patrols appear to have contin- ued to function in much the same manner that they had before. Management had indicated to the employees that the two Companies were joining forces, and as we have seen this resulted in speculation among the employees as to the effect of a merger on their status. This is scarcely enough, however, to support a finding that any real combination had actually taken place, or that the merger prospect had passed an exploratory stage. The General Counsel asserts as the most frequently cited criteria for finding a single-employer relationship, common ownership or control, functional and physi- cal integration, and common labor relations. In each of the cases he cites we find all of these criteria present.26 While the General Counsel acknowledges the absence of common ownership prior to the preincorporation agreement, he urges the extent of common control as sufficient. Substantial common control, however, is far from established. Explorations of merger feasibility gave rise to rumors which, together with the presence of Gilmore on occasions, may have led to unwarranted conclu- sions as to control. However, neither Gilmore nor DeLue had made any announce- ments in this regard, and the real direction of employees continued to remain in the owners and supervisors of each corporation throughout the month of October. As set forth above, physical and functional integration was only slightly greater than it had been before the merger talks commenced. Such changes as occurred may have been precipitated by the merger explorations and initiated in anticipation of consummation of the merger, but I do not see them as sufficient to justify a con- clusion that at any time before the agreement a common control of labor relations was in effect. Accordingly, I find that at all times prior to November 12, 1964, when the preincorporation agreement was executed, Fionlier Guard and Colorado Guard may not be regarded as a single-integrated enterprise, and therefore the assertion of jurisdiction over the business of Colorado Guard on such theory is not warranted.27 It does not necessarily follow, however, that even though Frontier Guard and Colorado Guard be regarded as separate entities, no basis can exist for attaching responsibility to Colorado Guard for any acts occurring before November 12. The rationale of the single employer cases rests upon finding sufficient elements of common ownership, control, and functional integration to indicate that the enter- prise is in reality a single one. Totally separate enterprises, however, having some business relationship may act in concert for a specific end. To the extent that such joint conduct proves unlawful, joint liability may attach even though such would not be true had they acted separately. Prior to October 27, we see Frontier Guard and Colorado Guard acting as separate Companies in the same general type of bus- iness and engaged in exploring the possibility of merging their operations. The strike, however, which affected both, resulted in bringing them to take joint action in furtherance of the common interest which they had in the projected merger. Thus, immediately following the strike, DeLue undertook to help Colorado Guard man its patrols. Two days later both Companies were presented with a demand for 2° Supreme Dyeing & Finishing Corp., 147 NLRB 1094; Itavena Sportswear, 142 NLRB 1299; Quality Coal Corporation, 139 NLRB 492; and Minnesota Manufacturing Company, Inc., 132 NLRB 1398. "In Dearborn Oil and Gas Corporation, 125 NLRB 645, the Board held : "Generally speaking, in those unfair labor practice cases in which the Board and the Courts have held that a legal entity may be held for the acts of another, because both constituted a single employer, it appeared that both were not only subject to common control, but also that a controlling ownership interest in both companies was held by the same individual or group of individuals . We believe that it is proper to require that both elements common ownership and common control-coexist before we assess joint responsibility." As set forth above, I am not satisfied that the elements of common control, functional integration, or common labor relations are sufficient before November 12, to justify a finding of a single-integrated employer. However, if the doctrine of Dearborn is to be followed, the absence of common ownership alone would suffice to preclude a finding of this nature. FRONTIER GUARD PATROL, INC 169 recognition and a request for reinstatement of the strikers The demand and request were addressed to them jointly and they responded jointly after obtaining common counsel to represent them in sending as a reply a single telegram signed by both Companies With their common counsel they jointly met with representatives of the employees At this meeting no suggestion was made that either Company sought to pursue a separate course of action Together they replied to the request for reinstate ment both relying on the same untenable reason and together they refused to rein state the strikers This decision was made known by their common attorney to coun sel for the employees The foregoing establishes a pattern of common action directed toward a common end Such joint action in and of itself sufficies to establish joint responsibility for the unlawful refusal In addition however it is reasonable to infer that it was undertaken in anticipation that a merger would in all likelihood come about and that if consummated the joint action would forestall the possibility of the merged entity being confronted with reemployed strikers and the concomitant need for it to bargain with a union on their behalf Responsibility thus attaches to both Frontier Guard and Colorado Guard because they were acting together in commit ting unfair labor practices 28 Since jurisdiction is established over Frontier Guard Colorado Guard cannot escape its responsibility after undertaking to act jointly with Frontier Guard even though the business had not yet formally come together as a single enterprise and even though jurisdiction had not been established separately as to it Accordingly I find that Frontier Guard and Colorado Guard by refusing to reinstate strikers to available jobs acted in concert and in furtherance of a coin ciding interest Since I have heretofore found such refusal to reinstate to be discrimi natory in nature both must be regarded as responsible for such unlawful conduct and required to remedy it Patrol Services was not yet in existence as an entity at the time of the refusal to reinstate Patrol Services however is clearly the successor or alter ego to both Frontier Guard and Colorado Guard as a result of the preincorporation agreement Since I have found above that the three Companies constitute a single integrated enterprise it follows that Patrol Services as successor to Frontier Guard and Colo rado Guard must assume whatever share of responisibility resided in each after Patrol Services came into being F The alleged forfeitures of reinstatement Respondents contend that if discriminatory conduct be attributed to any of them the employees involved have forfeited their rights to reinstatement either by the character of the strike or by having engaged in poststrike misconduct.29 I have already found the strike itself to constitute protected concerted activity Therefore Respondents contentions that all employees who engaged in the walk out thereby forfeited their statutory rights to reinstatement must be rejected On November 12 1964 Bossen Nesmith and Reynolds purporting to act as trustees for Merchant Police Employees Association the newly formed union addressed a letter to various customers of Frontier Guard and Colorado Guard advis mg each of the strike and stating that they wished to explain the circumstances of the dispute They go on to point out that the merger had resulted in changes in working conditions which the employees sought to take up with Respondents but that Respondents had refused to listen to their legitimate complaints and that the employees had thereafter walked out in protest They refer to their uncondi tional offer to return to work after the walkout and to its rejection and then state `we do not know how these companies are presently rendering the service you need They conclude by advising that they had filed charges with the Board that the wage rates paid were unreasonably low and by urging that the customers addressed cease using the services of Respondents Respondents assert that these trustees were in effect speaking for all the strikers and that the letter had the intended effect of conveying to customers of Respondents the thought that Respondents could not give service absent the presence of the striking employ ees It is asserted that this letter constitutes a deliberate effort to discredit the quality of Respondents service and that those responsible for sending it are thereby disqualified for reinstatement Respondents urge the doctrine set forth in Dayton Coal and Iron Corp 101 NLRB 672 Long Lake Lumber Company 34 NLRB 700 2D Anderson and Allen have been found to be supervisors within the meaning of the Act Since they are not {employees of course they are not entitled to reinstatement or to any other statutory rights 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Patterson Sargent Company 115 NLRB 1627 as controlling The Board in Pat terson Sargent found that striking employees distributing a handbill to the general public in substance warning prospective purchasers that paint manufactured by non- strikers was shoddy merchandise thereby engaged in conduct forfeiting their otherwise protected statutory right to reinstatement The Board reasoned that impugning the quality of an employers product was not a lawful means of fur thering the concerted efforts in which the employees were engaged Accepting the principle annunciated in Patterson Sargent I find it inapposite to the facts of the instant case There is no doubt that a labor dispute existed between Respondents and the Union Clearly the Union had a right to enlist support from customers of Respondents by publicizing the facts of the dispute In commenting that it did not see how Respondents were able to render adequate service after the strike however it was not directing a statement to the public generally but was at the most ven turing a querulous opinion to the very customers who had been receiving the serv ices both before and after the strike and were thus in the best position of all to evaluate their quality Moreover the statement on its face appears more as an expression of incredulity than as a deliberate disparagement Although Respond ents urge that the general tone of the letter supports an inference that at all times since the strike the property had been unprotected I am convinced that consider ing the letter as a whole its expressed purpose and the entire context of events such an inference is wholly unwarranted Accordingly I find that neither the sign ers nor any of the union members who might be found to have authorized the let ter have thereby forfeited any right to reinstatement to which they otherwise might be entitled The fact that certain strikers engaged in a competitive patrol business known as American Patrol is also urged as grounds for denying such strikers reinstate ment After the strike three of the strikers Moffett Vourexes and Smith formed and worked in varying measures for a competing firm in the patrol business known as American Patrol In some instances they solicited former customers of Frontier Guard and Colorado Guard Respondents regard this as an act of disloyalty which should result in forfeiture of their reinstatement rights The Board has recently had occasion to consider a similar claim In Marshall Maintenance Corp 149 NLRB 735 it upheld the Trial Examiner in making the following finding I find and conclude that on the facts of the instant case Respondent should not be permitted to rely upon its own unlawful conduct to defeat reinstatement merely because the discharged employees sought-albeit not successfully- to earn a livelihood after they were discnminatonly discharged Not only were they free to utilize the talents they possessed in the field of their greatest expen ence but the law required them to do so in order to minimize to the fullest extent possible Respondents backpay liability Had Brown and Welch immedi ately upon their discriminatory discharge obtained employment with one of Respondents competitors and in pursuance of such employment solicited work for and otherwise sought to promote the business of the new employer Respondent would not be here to contend that such conduct constituted dis- loyalty to it The fact that Brown and Welch did this for Cooperative the firm in which they had a financial interest does not require a different result since there is no evidence that they had reached a definite decision not to return to work for Respondent even if reinstatement were offered The facts of the instant case closely parallel those in Marshall Maintenance I see no reason why Respondents here should be permitted to claim a forfeiture of employee rights for employees who had engaged in a type of work for which they were qualified after Respondents had placed them in a position whe re they were required to work elsewhere following the unlawful refusal to reinstate Accordingly I find Moffett Vourexes and Smith not to be disqualified for reinstatement by rea son of their participation in the affairs of American Patrol Finally it is claimed that Thomas Bossen forfeited his right to reinstatement because of alleged threats of violence made by him to Gardner Sanford a patrol man hired by Frontier Guard as a replacement after the strike Bossen and San ford had worked with each other before the strike and knew each other well enough so that Sanford recognized Bossen s voice when Bossen telephoned him shortly after the strike had started The purpose of Bossen s call at this time was to induce Sanford to quit his job and to join the strikers Sanford states that he told Bossen that he needed the job and would not leave Sanford says that with this the conversation became considerably heated and that during the course of it FRONTIER GUARD PATROL, INC. 171 Bossen told him that if he stayed "the lug nuts on the tire could be loosened," and that he could have his "head beat in" and could be "shot at." Sanford told Bossen "Don't threaten me, Tom" to which Bossen replied "he wasn't threatening [him]. And he said all these thing could happen." Bossen denies making any of the alleged threatening statements which Sanford attributes to him. There is no evidence that during the strike any injuries were inflicted on anyone, or that any damage was done to property which could be attributed to Bossen or any of the other employ- ees. I have little doubt that Bossen became angered by Sanford's refusal to join the strikers, and made intemperate remarks during the course of his telephone conversation with Sanford. Bossen and Sanford knew each other, however, and I am not convinced that Bossen intended his remarks to be taken as specific threats, or that Sanford regarded them as such. It is significant that there is no evidence of a followup by Bossen with Sanford or any other replacement, either by way of other telephone calls or by action taken. Under the circumstances, even assuming that the conversation generally followed the lines which Sanford claims, I regard Bossen's remarks more as angry generalities than as specific threats. Accordingly, I find the incident to be of insufficient significance to warrant a forfeiture of any statutory rights to reinstatement that might otherwise accrue to Bossen. N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section II, above, occurring in connec- tion with the operations of Respondents described above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondents have engaged in unfair labor practices violative of Section 8(a)(1) and (3) of the Act, I shall recommend below that they cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. Having found that Frontier Guard and Colorado Guard have jointly discrimi- nated against the strikers who walked out on October 27, 1964, by refusing to rein- state them to available jobs following their unconditional request for reinstatement on October 29, 1964, I shall recommend that such strikers be reinstated to such jobs as were available after their request for reinstatement, with such jobs to be distributed among the strikers insofar as available according to Respondents' exist- ing seniority system or some other nondiscriminatory practice.30 I shall also order that any strikers reinstated to jobs which became available after the request for reinstatement be made whole by payment to each of a sum of money equal to the amount of wages he would have earned from the date of the discriminatory fail- ure to reinstate to an available job, to the date of the offer of reinstatement together with interest thereon at the rate of 6 percent per annum, and that the loss of pay and interest be computed in accordance with the formula and method prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716, to which the parties hereto are expressly referred. The unfair labor practices committed by Respondents strike at the heart of the rights guaranteed employees by Section 7 of the Act .al The inference is warranted that Respondents maintain an attitude of opposition to the purposes of the Act with 30 The following persons are found to be strikers affected by the discriminatory refusal to reinstate : Joyce Snyman, Robert L. Lisle, Roger Moffett, Aaron L Burkhart, Michael Wagner, Michael Vourexes, Charles E. Nesmith, Emery L. Reynolds, Bud W. Cady, Nor- man R . Buskirk, Thomas H. Bossen, William R. Miller, Eugene M. Smith, and Virgil Colman. Larry Moffett and Leonard Jenkyns were listed in paragraph VI of the complaint as strikers. Moffett and Jenkyns, however, did not join with the others in requesting rein- statement so they will not be covered by the terms of this order. The record does not dis- close the number of jobs available when the request for reinstatement was made, nor does it disclose whether or not such jobs were full-time or part-time jobs. Reinstatement, how. ever„is to be-made to those.jobs,still available after, the-reque4t for reinstatement regard- less of their full-time or part-time 'character. It likewise does not appear- in the record whether or not the employees hired subsequent to the request for reinstatement for avail able jobs were hired by Frontier Guard or Colorado Guard. Since Patrol Services is the successor to both the corporations in the operation of the patrols , it is assumed that any reinstatement now undertaken would be by Patrol Services 31 N.L.R.B. v. Entw48tie Mfg. Co., 120 F.2d 532 (C.A. 4). 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respect to the protection of employees in general It will accordingly be recom mended that Respondents cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act 32 CONCLUSIONS OF LAW Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding I hereby make the following conclusions of law 1 Frontier Guard Colorado Guard and Patrol Services are each and have been at all material times employers within the meaning of Section 2(2) of the Act 2 At all times material to this proceeding Frontier Guard has been engaged in a business which affects commerce within the meaning of Section 2(6) and (7) of the Act 3 Prior to November 12 1964 Frontier Guard and Colorado Guard did not constitute a single employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act 4 Frontier Guard Colorado Guard and Patrol Services following the execu tion of the premcorporation agreement have at all material times since Novem ber 12 1964 by virtue of their common ownership and control constituted a single employer within the meaning of Section 2(2) (6) and (7) of the Act 5 Commencing on or about October 29 1964 Frontier Guard and Colorado Guard by acting jointly in response to the demand for recognition and the request for reinstatement became jointly and severally responsible for the refusal to rem state the strikers 6 Merchant Police Employees Association Inc is and has been at all material times a labor organization within the meaning of Section 2(5) of the Act 7 By refusing to reinstate those strikers requesting reinstatement on October 29 1964 to jobs still available at that time Respondents have engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act 8 By interfering with restraining and coercing employees in the exercise of rights guaranteed them by Section 7 of the Act as found above Respondents have engaged in unfair labor practices wtihin the meaning of Section 8(a)(1) of the Act 9 The aforesaid unfair labor practices are unfair labor practices affecting corn merce within the meaning of Section 2(6) and (7) of the Act 10 Frontier Guard and Colorado Guard did not discriminate against employ ees by threatening to or actually discharging their employees on October 27 1964 11 Employees of Frontier Guard and Colorado Guard by ceasing work and walking out on October 27 1964 did not engage in an unfair labor practice strike RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this proceeding I recommend that Respondents Frontier Guard Patrol Inc d/b/a Frontier Guard and DeLue Inc Colorado Guard Patrol Service Inc and/or Patrol Services Inc and each of them and their agents suc cessors and assigns shall I Cease and desist from (a) Discouraging membership of any of their employees in the Union or in any other labor organization of their employees by refusing to reinstate them follow ing an unconditional request for reinstatement to jobs available or in any other manner discriminating against any individual in regard to his hire tenure of employ ment or other term or condition of employment except as authorized in Section 8(a)(3) of the Act (b) In any other manner interfering with restraining or coercing employees in the exercise of their right to self organization to form labor organizations to join or assist the above named or any other labor organization to bargain collectively through representatives of their own choosing or to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protec tion or to refrain from any or all such activities except to the extent that such rights may be affected by an agreement requiring membership in a labor organiza tion as a condition of employment as authorized in Section 8(a)(3) of the Act 2 Take the following affirmative action which is deemed necessary to effectu ate the policies of the Act u May Department Stores v N L R B 326 U S 376 Bethlehem Steel Company Y NLRB 120F2d641 (CADC) FRONTIER GUARD PATROL, INC 173 (a) Offer to all strikers immediate and full reinstatement to the jobs available following their request for reinstatement or other rights and privileges distnbut ing such jobs as are available among the strikers according to the employers exist ing seniority system or to some other nondiscriminatory practice (b) Make whole those strikers reinstated for any loss of pay each may have suf fered by reason of the discrimination against him in the manner provided above in the section entitled `The Remedy (c) Notify any of the strikers who may become entitled to reinstatement to available jobs if presently serving in the Armed Forces of the United States of their right to reinstatement upon application in accordance with the Selective Service Act and the Military Training and Service Act, as amended after discharge from the Armed Forces (d) Preserve and upon request make available to the Board or its agents for examination and copying all payroll records social security payment records time cards personnel records and reports and all other records necessary to an analy sis of the amount of backpay due (e) Post at its usual place of business , including all places where notices to employees are customarily posted copies of the attached notice marked Appendix A 38 Copies of said notice to be furnished by the Regional Director for Region 27 of the National Labor Relations Board after being signed by Respondents shall be posted by them immediately upon receipt thereof at Respondents place of bus mess and be maintained by them for 60 consecutive days thereafter in such con spicuous places Reasonable steps shall be taken by Respondents to insure that said notices are not altered defaced or covered by any other material (f) Notify the Regional Director for Region 27 in writing, within 20 days from the date of receipt by Respondents of this Decision what steps they have taken to comply therewith 34 IT IS FURTHER RECOMMENDED that unless on or before 20 days from the date of its receipt of this Trial )Examiners Decision Respondents notify the Regional Director that they will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring Respondents to take the action aforesaid. as 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 a Order is 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 341n the event that this Recommended Order to adopted by the Board this provision shall be modified to read Notify said Regional Director in writing within 10 days from the date of this Order what steps Respondent has taken to comply herewith APPENDIX A 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 out employees that WE WILL NOT discourage membership in, or activities on behalf of, Mer chant Police Employees Association Inc or any other labor organization of our employees by refusing to reinstate strikers unconditionally requesting reinstatement to available jobs or by in any other manner discriminating against any individual in regard to his hire tenure of employment or any term or condition of employment except as authorized in Section 8(a)(3) of the Act WE WILL offer all strikers who unconditionally requested reinstatement on October 29 1964 immediate and full remstatements to jobs available at that time without prejudice to their seniority or other rights and privileges and make each whole for any loss of earnings he may have suffered as a result of the discrimination against him WE WILL NOT in any other manner interfere with the rights granted our employees by the National Labor Relations Act to organize or bargain collectively 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All our employees are free to become or remain or refrain from becoming or remaining members of the above-named or any other labor organization. FRONTIER GUARD PATROL, INC., D/B/A FRONTIER GUARD AND DELVE, INC.; COLORADO GUARD-PATROL SERVICE, INC.; AND/OR PATROL SERVICES, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) NOTE.-We will notify any of the above-named employees if serving in the Armed Services of the United States of their right to reinstatement upon applica- tion in accordance with the Selective Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of post- ing, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board's Regional Office, 607 Railway Exchange Building, 17th and Champa Streets, Denver, Colorado 80202, Telephone 297-3551. Wahoo Packing Company, Anthony B. Cudahy, John Q . Runyan and Amalgamated Meat Cutters and Butcher Workmen of North America, AFL -CIO, District Union No . 271. Case 17- CA-2771. October 20, 1966 DECISION AND ORDER On June 13, 1966, Trial Examiner Alba B. Martin issued his Decision in the above-entitled proceeding, finding that Respondents had engaged in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondents filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chair- man McCulloch and Members Brown and Zagoria]. 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 the brief, and the entire record in this case," and hereby adopts the findings, conclusions,2 and X The Respondents' request for oral argument is hereby denied as , in our opinion, the record, exceptions, and brief adequately present the issues and the positions of the parties. 7 The Board makes the following additional conclusion of law, based on the Trial Examiner's findings : By assisting and. attempting , to -, get the. Union decertified with the purpose or foreseeable effect of obstructing the bargaining process, Respondents' have refused to bargain in good faith with the Union in violation of Section 8(a) (5) of the Act. 161 NLRB No. 14.