Mansion House Center Management Corp.

250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mansion House Center Management Corporation and Central Parking System of St. Louis, Inc. and Charles Dickens, Jr. Case 14-CA-6052 January 31, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On August 13, 1971, Trial Examiner Milton Janus issued the attached Decision in this proceeding. There- after, the Respondents filed exceptions and supporting briefs, and the General Counsel filed exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order, except as noted below. We are in accord with paragraphs 2 and 3 of the Trial Examiner's Conclusions of Law, which in sub- stance find that both Mansion House and Central Park- ing jointly violated Section 8(a)(3) of the Act by dis- charging Central Parking's employees, but that Mansion House alone additionally violated Section 8(a)(3) by discharging its own employees.' We there- fore, reject the first paragraph of the Trial Examiner's Remedy to the extent that it recommends that each Respondent offer reinstatement to those employees which it alone discharged, and we shall instead order that both Respondents shall jointly offer reinstatement to Central Parking's discharged employees and that Mansion House alone shall additionally offer reinstate- ment to its discharged employees. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner, as amended herein, and hereby orders that Mansion House Center Management Cor- poration and Central Parking System of St. Louis, Inc., their officers, agents, successors, and assigns, shall take ' Member Kennedy agrees with his colleagues that the seven discharges on January 14, 1971, violated Section 8(a)(1) of the Act He is in further agreement that both Respondents are jointly obliged to remedy the dis- charged employees of Central Parking and that Mansion House alone is obliged to remedy its discharged employees He does not agree that the seven discharges violated Section 8(a)(3) of the Act and he does not believe that the statements made before January 12, 1971, when Respondents are found to have learned of the concerted activities of its guards, violated Section 8 (a)(1) of the Act the action set forth in the Trial Examiner's recom- mended Order, as herein modified: 1. Delete paragraphs 2(a) and (b) of the Trial Ex- aminer's Order and insert, in lieu thereof, the follow- ing: "(a) Offer to Fred Hahn, Norman Adams, and Her- bert Cavitt and, with respect to Mansion House alone, to Robert Farr, William Bassett, and K. D. Hollifield, immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges, and make Hahn, Adams, Cavitt and Paul Mintner whole and, with respect to Mansion House alone, make Farr, Bassett, and K. D. Hollifield whole, for any loss of earnings each of them may have suffered by reason of the discrimination against him, in the manner set forth in the section of the Trial Examiner's Decision entitled `The Remedy,' as modified above. "(b) Notify immediately the above-named individu- als, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Uni- versal Military Training and Service Act." 2. Substitute the attached notice for the Trial Ex- aminer's notice. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act protects employees in their right to form, join, or assist labor organizations, or to refrain from such activity. WE WILL offer to Fred Hahn, Norman Adams, and Herbert Cavitt, and Mansion House Center Management will offer to Robert Farr, William Bassett, and K. D. Hollifield, immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent posi- tions, and we will pay Hahn, Adams, Cavitt, and Paul Mintner, and Mansion House will pay Farr, Bassett, and Hollifield, for the earnings they lost as a result of their discharge on January 14, 1971, plus 6-percent interest. WE WILL NOT discharge or threaten to dis- charge any of our employees in order to discour- age their membership in any labor organization, or because they have participated in concerted activi- ties protected by the National Labor Relations Act. 195 NLRB No. 37 MANSION HOUSE CENTER 251 WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights to form, join, or assist any labor organization. MANSION HOUSE CENTER MANAGEMENT CORPORATION (Employer) Dated By (Representative) (Title) CENTRAL PARKING SYSTEM OF ST. Louis, INC. (Employer) Dated By (Representative) (Title) WE WILL notify immediately the above-named in- dividuals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 210 North 12th Boulevard, Room 448, St. Louis, Missouri 63101, Telephone 314-622-4167. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MILTON JANUS, Trial Examiner: The General Counsel is- sued his complaint in this proceeding on March 16, 1971, after a charge and an amended charge filed on January 19, and March 11, 1971, respectively, by Charles Dickens, Jr. The complaint alleges that the Respondents named in the caption are joint employers, and that they violated Section 8(a)(1) and Section 8(a)(3) by threatening to and by discharg- ing certain of their employees because they had engaged in activities on behalf of the charging party, who is said to be a labor organization , and because they engaged in concerted activities for purposes of collective bargaining or other mutual aid or protection. The answer of each Respondent denies that it is a joint employer with the other or that it has violated the Act in any respect. I conducted a hearing in this matter at St. Louis, Missouri, on April 12 and 13, 1971. Briefs have been received from the General Counsel and from Central Parking System of St. Louis, Inc. (hereinafter, Central Parking). Upon the entire record in this case, and from my observa- tion of the witnesses and their demeanor , I make the follow- ing: FINDING OF FACT I THE BUSINESS OF THE RESPONDENTS Mansion House Center Management Corporation (here- after, Mansion House) is a Missouri corporation engaged in the rental of facilities at Mansion House Center , a residential and office complex located on six square blocks of downtown St. Louis. In 1970, in the course of its business, it made sales or performed services valued in excess of $500 ,000, and pur- chased materials and supplies valued in excess of $50,000 which were shipped to it directly from points located outside the State of Missouri. Central Parking is a Tennessee corporation which is en- gaged in furnishing public parking services in the garage of Mansion House Center and at other sites in Missouri and Tennessee. During 1970, in the course of its business , it made sales or performed services valued in excess of $500,000, and purchased goods and supplies valued in excess of $50,000 which were shipped to its places of business in Missouri and Tennessee directly from points located outside those States. I find that each Respondent is an employer engaged in commerce within the meaning of the Act. II THE UNFAIR LABOR PRACTICES Background Mansion House Center, situated on a 7-acre plot in down- town St. Louis, consists of apartment towers, office buildings, shops, promenades, and an underground garage with space for 1,650 cars. The entire complex is owned by Mansion House, but the garage facilities are leased out to Central Parking. Central Parking is an independent corporation which acts at this location solely as a lessee of Mansion House in the operation of the parking facilities . The financial ar- rangements between the two corporations are not disclosed in the record. The entire complex is patrolled around the clock by a force of 16 security guards, including 3 corporals, each of whom is responsible for one of the three shifts. The corporals are all employed by Mansion House. In January 1971, when the events described below took place, Central Parking employed five of these guards, whose primary responsibility was to patrol the garage, while the others, employed by Mansion House, maintained guard over the buildings and grounds. Paul Lashly is the president and top operating official of Mansion House. In charge of the security operations for the entire complex was an employee of Mansion House , George Taylor. Paul Simmons, an employee of Central Parking, acted as garage manager , in charge of its guards , cashiers, and janitors. Mansion House also employed a number of door- men, not included as part of the guard force, but supervised by the guard corporals. Around Thanksgiving time in 1970, Charles Dickens, cor- poral of the guard on his shift, assumed the responsibility of drawing up a list of demands or grievances on behalf of the guards.' After drawing up his list, which is in evidence as ' According to Dickens, he did this at the suggestion of Ayler, another corporal, who had drawn up a list of demands late in 1968 and 1969 1 admitted Dickens' testimony about the little he knew of Ayler's efforts (Ayler did not testify), over the objections of the Respondents, since I deemed it to be relevant background to Dickens' own attempt to present to the management of Mansion House Center the position of the guards in 1970 In 1968 and 1969, according to Dickens, the guards had informally discussed among themselves the possibility that they might walk out on (Cont ) 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Counsel's Exhibit 2, Dickens showed it to all but one of the guards and all to whom he showed it , signed it. No meeting of the guards was ever held, but Dickens obtained their signature and elicited their comments by talking to them personally as they began or ended their shifts or while they were on patrol . There were no discussions between Dickens and the other guards as to what he was to do if management were to call him in to talk about the proposals , and no au- thority was bestowed on him to negotiate on their behalf or to come to any final agreement . His sole function , I find, was to act as the conduit or agent through whom the list of demands was to be presented to management. On December 21, 1970, Dickens brought the list to Taylor, the head of the security force, told him what it was, and told him they wanted some sort of negotiations on them . Taylor took the list and said he would turn it over to Mr. Lashly.2 Taylor expressed no surprise when Dickens gave him the list, thereby indicating to me that whether this was the first or third list which the guards had presented to him , Taylor recognized it for what it was, and was prepared to turn it over for consideration to his superior , Mr. Lashly. I therefore find it unnecessary to decide what Taylor really had in mind when he said "it's about time," as Dickens handed him the list of demands. Every few days thereafter, Dickens asked Taylor if any action had been taken on the the demands, but Taylor re- ported that Lashly was out of town. Other guards also asked Taylor or Simmons what was being done about the list, but got no satisfaction that any active consideration was under way.' Many of the guards were also employed elsewhere, and their work at Mansion House was in effect a second job, although some of them worked 40 hours per week at it. Others worked fewer hours per week, either because they were there less than 8 hours per day or because they only worked 3 or 4 days per week. Communication between the guards was difficult because there were guards on duty around the clock, who came and left at different hours or worked different days. They also covered a wide area so that a meeting of all the guards while at work was difficult to arrange. This helps to explain the haphazard and uncoor- dinated sequence of events which began on Monday , January 11, 1971, and continued for the next few days, in which a number of guards failed to show up for work without expla- nation, while others at various times came in late or left early, and still others reported in sick and failed to work. In all, of the 16 guards, including the 3 corporals scheduled to work some time during the week, 8 took some action which might be construed as a concerted refusal to work.' New Year's Eve if their demands were not met , but in both years they had been notified of wage increases before that time which satisfied them What, if anything , Ayler had done in negotiating these increases with management in those 2 years is not revealed in the record ' Dickens and Taylor agree that Taylor said "It's about time" when the list was turned over to him that day According to the General Counsel, the words indicate that Taylor had been expecting the guard force to follow the practice of the preceding 2 years in making a presentation of their demands According to Taylor, his words referred to the fact that he was getting ready to leave early that day and had delayed leaving because Dickens had previ- ously told him he wanted to see him The major demand was for a substantial increase in their hourly wage Actually, of the others, one, Ayler, was in the hospital and two , Jezich and Primm , were not scheduled to work until the latter part of the week By that time eight guards had already been discharged for failing to report for work Issues The major issues are whether those guards who failed to work during some or all of the week beginning Monday, January 11, were engaged in a concerted work stoppage, whether the Respondents knew that they were so engaged, and whether it discharged them for that reason . Other issues raised by the parties are whether supervisors Taylor and Simmons threatened the guards with discharge for refusing to work; whether Dickens as an individual can be considered to be a "labor organization," and finally, whether the two Respondents are jointly liable for any violations of the Act found to have occurred. The Failure to Report for Work On Friday, January 8, Dickens again spoke to Taylor about the guards' demands, and told him that he was not giving them any alternative . Taylor asked him what he meant but got no answer. Dickens worked on the midnight to 8 a.m. shift, Monday through Friday. When he reported for work early Monday morning, January 11, he and Hollifield relieved Farr and Bassett, who had worked Sunday from 4 p.m. to midnight. Hahn, a Central Parking guard , was also on duty. Dickens, Farr, and Bassett discussed the lack of progress on their demands and decided that there should be a walkout begin- ning on the 8 a.m. shift that day. Hahn testified that he was also informed, and presumably Hollifield was too. Hahn's shift ended at 6 a.m., but he stayed around until 8 that morn- ing to learn if the walkout would begin then. At 8 a.m., Mintner and Jordan relieved Hollifield and Dickens. When Dickens asked them to join in the decision to walk out they demurred, saying that they could not afford to strike and asked that a walkout start on another shift than theirs. This presented a problem to Dickens, since Farr and Bassett had agreed not to report at 4 p.m. Dickens then went to Chief Taylor, and set up a meeting for Sunday, January 17, between Taylor and the guards, but without telling Taylor that some of the guards had already decided to strike. He also tried to call Farr and Bassett by telephone but was unable to reach them . Dickens then left the premises, assuming that Farr and Bassett would somehow get the word that the walk- out had been put off. However, they did not get the word and neither reported at 4 p.m. January 11.5 To summarize briefly what happened in the next few days, 8 of the 16 guards failed to report or to complete one or more of their scheduled shifts, and were discharged by letters signed by Taylor or Simmons, on Thursday, January 14. Resuming the chronology of events as of 4 p.m., January 11, when Farr and Bassett failed to report, Taylor tried to learn what he could about so strange an occurrence . Farr had no telephone of his own and could be reached only through his landlady or through a friend of his, Mrs. Mason, who lived 20 blocks away from his rooming house. The question whether Farr was scheduled to work that day is of some importance because it is related to the question whether Tay- lor knew or suspected, even before 4 p.m., that a walkout was imminent . Mrs. Mason testified that Taylor called her before 4 p.m. on January 11 and told her that he wanted Farr to come in to work that day, and that if he did not get in by 4 p.m., he would be fired. If Mrs. Mason is to be credited, Taylor must have known before 4 p.m. that he would be shorthanded for that shift and was attempting to reach Farr ' Farr testified at first that he was not scheduled to work that Monday, but later admitted that he may have been due to work that day I find, based on Taylor's testimony, that Farr was scheduled to work that day as the replacement for Ayler, who was in the hospital MANSION HOUSE CENTER to learn whether he would work. On the other hand, Taylor testified that he called Mrs. Mason after 4 p.m. because Farr had failed to report for his scheduled tour of duty. Taylor said that he asked Mrs. Mason if Farr was coming in to work and that she said he wasn't; that he then asked her why, but that she gave him no answer. Taylor then told her to get hold of Farr right away to come in to work or he would be fired.' The question whether Taylor knew before 4 p.m. that Farr might not show up is related to the more inclusive question of when, if ever, Taylor realized that the guards were engaged in a concerted walkout. Resolution of that question will be postponed to a later section, after a recital of the other events of that week. Taylor called Bassett some time after 4 p.m. to ask if he was coming to work that day. Bassett said he wasn't, and Taylor then said, according to Bassett, that he presumed they were all walking. Bassett said "yes" to which Taylor replied, still according to Bassett, that he would be with them if they were all together, but he was sure the old man (meaning Lashly) wouldn't like it. Taylor denied when asked by counsel for Mansion House that he had told Bassett he would be with the guards if they all struck together. He was not specifically asked, however, if he had also told Bassett that he presumed the guards were all walking. Taylor did say that it was possi- ble he could have told Bassett that if he didn't report for work he would be fired. The cirtical issue, whether Taylor already knew that some of the guards were engaged in a strike, will be discussed later. About the time that Taylor was trying to reach Farr and Bassett, he also called Simmons, the garage manager, to learn if Simmons knew why the guards hadn't reported for work. Simmons said he did not know. By 6 p.m. Simmons was faced with his own problem of guards not showing up. Adams, a Central Parking guard, was due to start his shift at 6 p.m. that Monday. Sometime that afternoon, presumably after 4 p.m., Adams was called by Dillon, who is identified only as an assistant to Simmons, who asked him if he was coming in, because if he didn't, he would be fired.' Adams said only that he would talk to him later. He then telephoned Cavitt, a Central Parking guard who was not scheduled to work that day, and they decided to drive down together to Mansion House. Cavitt picked Adams up, and they arrived at Mansion House about 5:30 p.m. Adams had not brought his uniform with him, as he should have if he expected to start work at 6 p.m. Cavitt and Adams got into an extended and at times heated conversation, first with Simmons and then also with Taylor, who joined the group. According to Adams, both Simmons and Taylor told him that he couldn't strike since the guards did not have a union, and that if he didn't get his uniform and come back to work that evening he would be fired. Adams testified that he asked about Farr and Bassett, and that Taylor told him they had already been fired. Adams decided that he would work that evening and Cavitt drove him home to get his uniform. Adams returned to the garage about 8 p.m., and worked the rest of his shift.' Mrs Mason did not reach Farr until Tuesday, to give him Taylor's message and admonition Farr never returned to work because he consid- ered that his failure to come in on Monday had already resulted in his discharge I find no merit in Respondents' argument that Farr quit only because he was disturbed by Taylor's manner in talking to Mrs Mason Since Dillon's status as an agent of Central Parking was not established, I make no finding on his threat that Adams would be fired The next day, Tuesday, Adams was not scheduled to work He did not return to work on Wednesday, and was discharged on Thursday, January 14 253 Cavitt's testimony as to the conversation with Taylor and Simmons that Monday afternoon substantially corroborates the main points of Adams' testimony, that they were told that Farr and Bassett had already been fired for not showing up that afternoon, that Simmons had said they couldn't strike because they had no union, and that Simmons threatened Adams with discharge if he didn't get his uniform and report for work. Cavitt also testified that Simmons had said to them that Dickens was not a good representative for them, and that Simmons had asked him if he would be coming to work the next day. Cavitt said he told Simmons that he did not know yet, but that he fully supported Farr and Bassett. Cavitt did not report for work on Tuesday or thereafter, and was dis- charged by letter dated January 14. Taylor and Simmons both testified as to their conversation with Adams and Cavitt on Monday afternoon. They denied knowing why Farr and Bassett had not shown up, and both denied that Simmons had said that the guards could not strike because they did not have a union. Simmons however did tell Adams and Cavitt that they should be talking to Dickens and not to him. Since the question of Adams' and Cavitt's credibility against that of Taylor and Simmons is bound up with the more inclusive issues whether the guards were acting concertedly in refusing to work and whether Taylor and Simmons knew that that was their motivation, I will defer resolution of this particular credibility issue for later. On Tuesday morning (midnight to 8 a.m. shift), two Man- sion House guards, Dickens and someone not identified, did not show up. Of the Central Parking guards, Hahn worked that shift but did not come in on Wednesday or thereafter. Mintner came in on Tuesday but left early and did not report again. Thus, of the five Central Parking guards, Hahn, Cavitt, Mintner, and Adams either did not complete or did not work their assigned shifts on Tuesday or thereafter. One of the Mansion House guards, Prichard called Taylor on January 11 or 12 to ask for a week's leave of absence in order to go to the hospital. According to Prichard, Taylor asked him if he was coming in to work and Prichard replied that he would be at work for the 2 days before he went to the hospital. Taylor then asked him if he knew that the guards were on strike or that they weren't showing up. Prichard was not sure of the exact wording of Taylor's remark. Prichard answered Taylor that he did not know about it. The next day Dickens called Prichard and asked him to go out on strike, but Prichard refused because there had been no meeting of the guards at which a strike vote could be taken. Dickens did not report for work on his Tuesday shift, but he and Taylor spoke with each other that day and the follow- ing day, both face to face and by telephone. On Tuesday, Taylor asked Dickens what was going on, and Dickens told him that they hadn't given the guards any other choice. Al- though it is impossible to determine what the sequence of remarks in this conversation was, Taylor did tell Dickens, according to the latter, that those guards who did not work would be fired. On Wednesday, Dickens saw Taylor at Man- sion House and Taylor asked him if he had found another job. Dickens asked him if he had talked to Lashly yet, but Dickens said there was no purpose to it. However, on Thursday, Tay- lor called Dickens to arrange a meeting with Lashly for 3 p.m. that day, in Lashly's office. Dickens testified that he told Taylor then that the walkout had done some good since it gave him the chance to see Lashly. Taylor was not asked about the details of any conversations with Dickens on Tues- day or Wednesday. According to Dickens, he and Taylor went to Lashly's office about 3 p.m. on Thursday, and were called into a con- ference room to see Lashly almost an hour later. Sharply 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD variant versions of what then occurred were given by Dickens on the one hand, and by Lashly and his secretary, on the other. Taylor, who was called as a witness by Mansion House, was not asked about this meeting. According to Dickens, Lashly asked him what he could do for him. Dickens then handed him a copy of the list of de- mands, told him he was representing the security force and was there to discuss their demands. Lashly, who remained standing during this time, asked him who he was that he should be coming in and telling him what to do, then turned and walked out of the room. Dickens looked at Taylor and asked him if that was all. Still according to Dickens, Taylor made an expression of regret and they immediately left Lash- ly's office together. Taylor told him that if he had known that was how it was going to happen, he would never have set up the meeting. In his testimony, Lashly seemed to suggest that he had not seen the guards' list of demands, which Taylor said had been forwarded to him late in November 1970, until January 14 when he met with Dickens and Taylor. Lashly said he didn't recognize Dickens at first because he wasn't in a guard uni- form, and thus asked him if he was representing the guards. Dickens replied only that he was a guard, and handed him a copy of the demands. Lashly said he looked at it, made some comments on the first three items, and then excused himself when his secretary came into the room to tell him that some- one he had been trying to reach was on the telephone. He said he went into another room to take the call and when he returned, found that Dickens had left. Although Lashly did not say so, I find that Taylor had also left. Lashly's secretary, Mrs. Pulcher, corroborated his testimony that she had come into the room where they were meeting to tell him that his expected caller was on the telephone, and that he had excused himself to take the call in his office. She said that five or six minutes later she reentered the conference room only to find that Taylor and Dickens had left. I have no hesitancy in crediting Dickens' version of this meeting, based both on my impression of his truthfulness and on the improbability, under the circumstances, of Lashly's version. There is no reasonable explanation why Dickens should have walked out of a meeting for which he had been waiting so long and which had barely begun, except for his feeling that he had been curtly dismissed. Moreover, I find it unbelievable that Taylor would have been so disrespectful to his superior as to leave with Dickens unless he too understood that Lashly's abrupt departure had ended the meeting.' However, the significance of the meeting on January 14, between Lashly, Taylor, and Dickens lies not so much in assessing who was guilty of rudeness in walking out of the meeting, but in determining what Lashly and Taylor consid- ered to be its purpose, their reasons for agreeing to meet with Dickens, and their understanding of his function and status. These questions will be discussed later. On January 14, the same day that Lashly met with Dick- ens, identical letters of dismissal of eight guards were pre- pared and were signed by Simmons for the Central Parking guards, and by Taylor for the Mansion House guards.'° The letters read as follows: This is to advise you that Mansion House Center termi- nates you due to your failure to report for work on your appointed shift of duty. This also advises you that your ' I note as an interesting parallel to the situation here that in another case involving this Respondent, Mansion House Center Management Corpora- tion, 190 NLRB No. 78, Lashly also failed to honor a commitment to meet with the representatives of another group of Mansion House employees 10 The letters were sent to Dickens , Farr, Bassett and Hollifield, by Man- sion House; and to Hahn, Adams, Cavitt, and Mintner by Central Parking last check will be held until you return all of Mansion House Center equipment. Despite the intervening discharges, the meeting which Dickens and Taylor had once set up for Sunday, January 17, was held that day. Taylor and Simmons met with Dickens, Hahn, Cavitt, Farr, Hollifield, and Adams. The meeting was quickly concluded. One of the guards asked, according to Dickens, why they had been discharged and Taylor said it was because they had walked out. According to Cavitt, Tay- lor and Simmons said they had been discharged for failing to report on their assigned shifts. Someone asked why the other guards who had also signed the list of demands had not been fired, and Taylor replied that it was because they had re- ported for work. On January 25, Mintner applied to Simmons for his old job and was immediately rehired. None of the other discharged guards have been reinstated or rehired. Findings as to the Work Stoppage The Respondents contend that the guards who refused to work were not engaged in union, or in concerted protected, activities; that the work stoppage resulted from the individual decisions of the guards to quit their employment; and that in any event, the Respondents did not know that the guards were refusing to work concertedly before they were dis- charged. From December 21, 1970, to January 11, 1971, both Tay- lor and Simmons were asked by some of the guards what, if anything, had been done about their list of demands. Dickens asked Taylor frequently, and Taylor's response that he had left the list with Lashly, but that Lashly was out of town, shows an awareness on Taylor's part that the demands were a matter of current importance to the guards. And since raises had been given to the guards about the first of the year in each of the past 2 years, it is obvious that Taylor's inability to report what Lashly intended to do about a raise in 1971 was bound to cause discontent among the guards. Thus, when Dickens asked Taylor again on Friday, Janu- ary 8, what was happening with the demands and got the same unsatisfactory response, his remark that Taylor wasn't giving the guards any alternative alerted Taylor sufficiently to ask him what he meant. Dickens did not explain, but if the remark was cryptic when made, it must have acquired a new significance in Taylor's mind the following Monday, when Farr and Bassett failed to report for their scheduled shift. Farr had a reputation for promptness, and his and Bassett's absence led Taylor to seek an explanation . It is immaterial whether Taylor spoke to Mrs. Mason, Farr's telephone con- tact, before or after 4 p.m. Even assuming, as I am inclined to find, that Taylor was right and that he spoke to her after 4 p.m., his threat that Farr would be fired if he didn't come in that day reveals Taylor's apprehension that something out of the ordinary was happening; I find that Taylor also threat- ened Bassett with discharge when he spoke to him the after- noon of January 11. I also credit Bassett's testimony, which was not specifically controverted by Taylor, that Taylor asked him if the guards were walking, and that he answered in the affirmative, Whatever doubts Taylor may still have had after talking to Bassett, whether some of the guards had gone out on strike were, I find, completely dispelled when he and Simmons spoke with Adams and Cavitt later that afternoon." Whether or not Dillon, Simmons' assistant in the garage , is a super- visor, his call to Adams asking if he was coming in indicates that Simmons was sufficiently concerned to check with Adams in advance of his scheduled time for reporting MANSION HOUSE CENTER 255 First, it was clear when Adams arrived at Mansion House that he was not intending to go on duty at 6 p.m., since he had come without his uniform and was accompanied by Ca- vitt who was not even scheduled to work that day. Taylor and Simmons could not therefore believe that Adams had simply decided to quit without explanation. He and Cavitt had come to learn what they could about the status of Farr and Bassett. Taylor told them that Farr and Bassett had already been fired and Cavitt said that he fully supported them.12 Simmons' statement to Cavitt, that Cavitt should be talking to Dickens and not to him, makes sense only if Cavitt was inquiring why Farr and Bassett had been fired. It indicates to me that Sim- mons, and therefore Taylor too, since they were exchanging information, believed that Dickens knew why Farr and Bas- sett had not reported for work. I am satisified that at least by 6 p.m. that day, when Adams and Cavitt left Mansion House, Taylor and Simmons knew that Farr and Bassett were acting concertedly with Dickens, and that other guards, including Adams and Cavitt, were considering joining them. The increasing certainty of Taylor and Simmons that Farr's and Bassett's absence that day was related to Dickens' role in presenting the list of demands to management leads me to credit the testimony of Adams and Cavitt that Simmons had also told them that afternoon that they couldn't strike because they had no union, and that he threatened Adams with discharge if he didn't get his uniform and report for work that evening. Additional substantiation for my finding that Taylor knew long before January 14 that the guards who were not report- ing for work were engaged in a strike because of the delay in acting on their demands comes from Taylor's conversation with Prichard on January 11 or 12. Prichard, a guard, had called Taylor to ask for a week's leave of absence and Taylor asked him if he knew that the guards weren't showing up, or were on strike. Taylor's question indicates that he knew that their not showing up for work was not the result of uncoor- dinated individual decisions but was concerted action in with- holding their services. Further evidence that Taylor knew, before he and Sim- mons sent the letters of discharge to the eight guards on January 14 that they were striking, is his arranging a meeting on January 14 between Dickens, Lashly and himself, after first telling Dickens that there was no purpose in such a meeting. Lashly might well have thought it useful to meet with Dickens because he knew that he was considered the spokesman for the guards, and that he might be helpful in settling the strike. Although Lashly subsequently scuttled the meeting and all chance for settling the strike, the fact remains that Taylor, by arranging the meeting, realized that Dickens' list of demands, which 15 of the 16 guards had signed, was intimately related to the otherwise inexplicable absence of a very substantial number of guards. Simmons testified that despite his sometimes heated con- versation with Adams and Cavitt on January 11, and the growing number of his guards who weren't reporting for work, he was never advised and never realized that a work stoppage was in progress. He admitted that he had heard rumors to that effect, but said he did not know why the guards were not showing up for work before he sent the discharge letters on January 14. 1 cannot credit his story; I find it unbelievable that a reasonably intelligent man should find it incomprehensible why four of his five guards refused " So summary a discharge was in itself extraordinary, since in the past a guard who failed to show up for an assigned shift was only discharged when he returned to work and was unable to satisfy his supervisor that he had had a good reason for failing to come in See Simmons' testimony as to his discharge of Pierce some years before to work and should consider it beyond his understanding. In any event, despite his blanket denial that he knew the guards were on strike, Simmons admitted that both Mintner and Adams had told him that the guards were dissatisfied with the lack of action on their demands. To say that he saw no relationship between their dissatisfaction and their refusal to work downgrades his intelligence unnecessarily. Respondents offer no explanation as to why eight guards should each have decided to quit or absent himself from work. It is as if they had, without forethought or consulata- tion among themselves, decided each on his own and for himself not to report for work after January 11 or 12. It is true that neither Dickens nor any of the other guards had said to Taylor or Simmons in so many words, "We are striking to protest your failure to give us a raise, or to consider our list of demands." Such an unequivocal statement would have served to resolve Taylor's suspicions as to what was happen- ing when Farr and Bassett first failed to report at 4 p.m. on January 11, but one must take into account that some of the guards were ill-informed and not well advised." One must also take into account that Taylor, Simmons, and Lashly were men accustomed to responsibility, who would be con- cerned to learn why half their guard staff suddenly failed to report for work as scheduled. They seek to give the impres- sion that they never knew what was hitting them. I have greater faith in their powers of perception than they give themselves credit for. I find, on the basis of the foregoing discussion, that Taylor and Simmons and through them, Lashly, realized no later than January 12, that the eight guards subsequently dis- charged were engaging in a concerted refusal to work in protest to Respondents' failure to discuss or act on their list of demands. Threats of Discharge I find that the following threats to discharge the guards rds or some of them constitute violations of Section 8(a)(1): 1. Taylor telling Mrs. Mason to pass the word on to Farr that he would be fired if he did not come to work on January 11. 2. Taylor threatening to discharge Bassett when he called him on January 11. 3. Simmons and Taylor telling Adams on January 11 that if he didn't work that day, he would be fired. 4. Taylor telling Dickens on January 12 that those guards who didn't work would be fired. 5. Taylor telling employees at the January 17 meeting that the reason some guards had been fired was because they had failed to report for work. This constituted a threat since Taylor and the guards present at the meeting knew that the guards who had failed to report for work had done so concert- edly in furtherance of their mutual aid or protection. Dickens and the "labor organization" Question As the only corporal on his shift, Dickens supervised at least two other guards as well as three doormen. The General Counsel concedes that Dickens is a supervisor, albeit a minor one, nor does the complaint allege his discharge as violative of the Act. The complaint does however allege, and the General Coun- sel so contends in his brief, that Dickens as representative and spokesman for the guards was a "labor organization" as defined in Section 2(5) of the Act, and that the discharge of the seven other guards was a violation of Section 8(a)(3), as " Dickens, for example, indicated in his testimony that he thought that a strike required that the strikers engage in picketing 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it discouraged membership in a labor organization. The dis- charges are also alleged to be in violation of Section 8(a)(1), as being in reprisal for the concerted activities of the guards in seeking collective bargaining or other mutual aid or protec- tion. I find it unnecessary to discuss at any length the legal issue of whether an individual, as a matter of statutory interpreta- tion, can be a labor organization, since I do not believe that the facts here establish that Dickens satisfied the definition of Section 2(5)." I agree with the General Counsel that the Board has so held, at least with respect to the union-security proviso of Section 8(a)(3) and to Section 8(b)(4)(C), and I would be bound by those holdings if the facts here were sufficient." Dickens drafted the list of demands on the basis of what he considered to be the consensus of the guards, and there- after obtained their written signatures as proof of their ap- proval. In view of Dickens' dissatisfaction with the way Ayler had conducted himself in the previous two years, I believe that Dickens did not consider himself to have any authority to negotiate (if Taylor and Lashly would even consider deal- ing with him exclusively) or to act as the exclusive representa- tive of the guards in their dealings with management. Since he had taken the initiative in drafting the list of demands, the guards were apparently willing to let Dickens serve as their contact with management and as a limited agent for exchang- ing views and information, but not for representing them either with respect to negotiations on wage matters or griev- ances. The testimony of Prichard clearly shows that at least he believed that only the guards as a group would deal with management over their demands. Although I am satisfied that Dickens as an individual was not acting as a "labor organization," it appears to me that the guards as a group constituted themselves into a labor organi- zation, despite its lack of formality and organization. Those guards who signed the list of demands which Dickens had drfated thereby formed themselves into a group for the pur- pose of presenting wage and other demands to Taylor, as the representative of management. If the occasion had arisen, as for example, if no stoppage had intervened, and Taylor had met with the guards as a group on January 17, they could have discussed, dealt with, and voted on their proposals and those of management. The mere presentation to management of employee views, even without specific recommendations, has been held to constitute "dealing with employers" within the meaning of Section 2(5).16 The fact that Dickens was a low-level supervisor and a member of the "labor organiza- tion" of guards does not impair its status nor excuse the Respondents from dealing with it on the ground that they would thereby be in violation of Section 8(a)(1) or 8(a)(2)." " Section 2(5) reads as follows. The term "labor organization" means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages , rates of pay, hours of employment, or conditions of work " The Grand Union Company, 123 NLRB 1665, reversed 284 F 2d 254 (C A D C), Bonnaz Hand Embroiderers, etc. (Gemsco, Inc.), 111 NLRB 82, reversed 230 F 2d 47 (C A D C ) 1 s Irving Air Chute Company, 149 NLRB 627, fn 1, N.L.R.B v Kenna- metal, Inc, 182 F 2d 817 (C A 3), First National Bank of Omaha, 171 NLRB No 152, affirmed 413 F 2d 921 (C A 8) 17 Allied Maintenance Corporation, 189 NLRB No 29 and Beach Elec- tric Co, Inc, 174 NLRB No 39 The Question of Joint Responsibility Security for the entire Mansion House complex, including buildings, grounds, and garage, was entrusted to Chief Tay- lor, an employee of Respondent Mansion House. Under Tay- lor, the corporals, also employees of Mansion House, were responsible for security throughout the complex on their as- signed shifts. Normally, a guard patrolled only his assigned area, but the corporals could call on any guard in an emer- gency, regardless of whom he was employed by. The Re- spondents sought to impress on the guards the need to con- sider themselves as part of a single, unified force. General orders, applicable to all the guards, were issued by Taylor. Mansion House required the guards to be cleared by the St. Louis Police Department, and to complete a training pro- gram established by the Department. Although each Re- spondent paid its own guards, their pay rates were identical, and they all wore substantially identical uniforms. The guards sought to present their wage demands through Taylor, on the assumption that he was their effective super- visor, even though the Central Parking guards knew that they were paid by Central Parking. Taylor also acted on the same assumption and forwarded the guards' list of demands to Lashly, the top operating official of Mansion House Center, without dealing with Simmons, so far as the record shows. Further, the letters of discharge sent to Dickens and the other seven guards on January 14 considered them all as employees of Mansion House Center, the descriptive term for the entire complex. I find, based on the foregoing, that Respondent Mansion House exercised control and direction over all the guards, that it is a joint employer with Respondent Central Parking with regard to the Central Parking guards, and that both Respondents are jointly responsible for the discharges, and threats of discharge, of the guards between January I 1 and 17, 1971.18 III THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section II, above, occurring in connection with their operations as set forth in section I, above, have a close, intimate and substan- tial 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 thereof. IV THE REMEDY Having found that Respondents violated Section 8(a)(1) and (3) by discharging certain guards, I recommend that each Respondent offer those guards whom it discharged immedi- ate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights or privileges, and make them whole for any loss of earnings they may have suffered as a result of the discnmi- nation against them, by payment to them of a sum of money equal to what each of them would normally have earned as wages from the date of discharge to the date on which they were reinstated or were offered reinstatement, less net earn- ings during such period, with backpay and interest thereon to be computed in the manner prescribed by F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. " Jewell Smokeless Coal Corporation, 175 NLRB No 12, and The Grey- hound Corporation, 153 NLRB 144, enfd 368 F 2d 778 (C A 5) MANSION HOUSE CENTER 257 Some weeks after the discharges, Respondent Central Parking reduced the number of its guards from five to three. Simmons, the Central Parking manager, testified at the hear- ing that the decision was made by Lashly, and that he did not know his reasons for it. He was not asked whether the garage was still being patrolled 24 hours per day, 7 days per week, and if it were, how it could be done with only three guards. I have found that Respondent Mansion House is jointly re- sponsible with Central Parking for the discharge of the Tat- ter's guards, and I now also find that Mansion House is responsible for the reduction in the number of Central Par- king's guard positions. I therefore recommend that Mansion House be required to reinstate all Central Parking guards for whom no positions are now available with Central Parking, and to make them whole for any loss of pay suffered for that reason. I also recommend that the Respondents be ordered to cease and desist from threatening to discharge employees who con- certedly refuse to work in pursuance of their right to bargain collectively, or to seek other mutual aid or protection. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondents are employers engaged in commerce within the meaning of the Act. 2. By discharging Fred Hahn, Norman Adams, Herbert Cavitt, and Paul Mintner, Respondents Mansion House and Central Parking have jointly enga ged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 3. By discharging Robert Farr, William Bassett, and K. D. Hollifield, Respondent Mansion House engaged in unfair la- bor practices within the meaning of Section 8(a)(1) and (3) of the Act. 4. By interfering with, restraining, and coercing its em- ployees in the exercise of rights guaranteed them by Section 7 of the Act, the Respondents have engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:" ORDER Respondents Mansion House Center Management Corpo- ration and Central Parking System of St. Louis, Inc., their officers, agents, successors, and assigns, shall- 11 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes 1. Cease and" desist from: (a) Threatening to discharge or discharging any of their employees to discourage membership in any labor organiza- tion or because of their participation in concerted activities protected by the Act. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in other concerted activities for the pur- pose of mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any or all such activities. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act: (a) Offer to Fred Hahn, Norman Adams, Herbert Cavitt, Robert Farr, William Bassett, and K. D. Hollifield reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privi- leges, and make them and Paul Mintner whole for any loss of earnings each of them may have suffered by reason of the discrimination against him, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify the above-named employees, if presently serving in the Armed Forces o: the United States, of their right to full reinstatement upon application in accordance with the Selec- tive Service Act and the Universal Military Training and Service Act, as amended, after their discharges from the Armed Forces. (c) Preserve and upon request make available to the Board or its agents, for examination and copying, all payroll, social security, and personnel records and reports, and all other documents necessary and relevant to analyze and compute the amounts of backpay due. (d) Post on their premises at St. Louis, Missouri, copies of the attached notice marked "Appendix."20 Copies of said notice, on forms provided by the Regional Director for Re- gion 14, shall, after being duly signed by representatives of the Respondents, be posted by them immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondents to ensure that said no- tices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 14, in writing, within 20 days from the date of receipt of this Decision, what steps Respondents have taken to comply herewith." 10 In the event that the Board's Order is enforced by a judgment of the United States Court of Appeals, the words in the notice reading. "Posted by Order of the National Labor Relations Board," shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " ' 1 In the event that this recommended Order is adopted by the Board, after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps Respondents have taken to comply here- with "