Burns Security Services

BURNS INTERNATIONAL SECURITY SERVICES Burns International Security Services, Inc. and James C. Harris. Case 4-CA-8377 January 23, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On August 9, 1977, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respon- dent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, 2 and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. The pertinent facts are fully set forth by the Administrative Law Judge. Briefly, during the late summer of 1976, 3 the Union 4 began an organizing campaign among those employees of Respondent who were stationed as guards on the campus of Drexel University in Philadelphia. The Union filed a representation petition on August 24, and an election was conducted on October 29, which the Union lost 29 to 7. James Harris, the Charging Party, admitted that he had nothing to do with the union campaign and had never talked about it with other guards, except that someone asked him to sign a union card. Nevertheless, the facts establish that Respondent suspected Harris of being a supporter of the Union.5 Thus, about I week before the election the assistant branch manager, Prince Knight, invited former employee Michele Haar to a bar where, while questioning her as to the identities of possible union supporters among Respondent's employees, he men- tioned six names, including that of Harris, who were "supposedly" on a list of suspected union sympathiz- ers. i The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In par. 4 of his Decision, under the section entitled 'The Evidence: Analysis," the Administrative Law Judge states that Hams was employed as an armed guard (emphasis supplied). We find nothing in the record to support the finding that Harris was in fact an armed guard. 3 Unless otherwise indicated all dates are in 1976. 4 The Union referred to herein is International Union of Security Officers, Local 1. 234 NLRB No. 74 Harris was employed as one of Respondent's guards for about 2 years. During this time he was assigned to various buildings, always working the midnight to 8 a.m. shift. He simultaneously held another full-time day job, working from 8:30 a.m. to 5 p.m. as a service technician for the Royal Typewrit- er Company. Harris was stationed in a classroom building, Nesbitt Hall, prior to the time of the election. Soon after the election he was given special permission by Captain Saddler, Respondent's detail commander at Drexel, to take a leave of absence to attend a 2-week training program required to retain his day job. When he returned from the training program he was transferred to guard duty in the Athletic Field Building, several blocks away from the main campus. At approximately 2 o'clock on the morning of December 3, while making an inspection visit to Harris' post, Captain Saddler caught Harris sleeping and summarily discharged him. Shortly thereafter, when Harris went to the dispatcher's office to turn in his uniform he told Sergeant Sharkey, in substance, that Saddler had fired him for sleeping on the job.6 Harris returned to the dispatcher's office later that morning to retrieve his belongings. Present at that time were two supervising sergeants, John Lonesco and Warren Williams, and Dispatcher Wandra Pow- ell. According to Powell's credited testimony, she heard Lonesco tell Harris "Words to the effect, I told you it was just a matter of time and that your name was on the list." Powell also testified that about a week or two after the election she heard Lonesco say that Assistant Branch Manager Knight had told Saddler "that he would see that the people who voted for the union were . . . conveniently disposed of." 7 We agree with the General Counsel that Lonesco's statement in the presence of Williams and Powell was to the effect that Harris was fired for union activity and thus constituted a violation of Section 8(aX)() of the Act as it conveyed to those present not only that Harris may have been discharged unlawful- ly but that other employees would suffer a similar fate if they engaged in such activity. We shall, therefore, modify the order and notice to encompass this finding. 5 That Respondent opposed the unionization of its employees is shown by the Administrative Law Judge's finding that Respondent created the impression of improper surveillance (referred to by him as "surveyance") of the employees' union activities in violation of Sec. 8(aXI) of the Act. No exceptions were filed to this finding. s Although Harris denied that he was sleeping when Captain Saddler made the unannounced visit, the Administrative Law Judge discredited his denial. I Although this statement was alleged as a violation in the complaint no exception was taken to the Administrative Law Judge's failure to find it to be violative of the Act. 373 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Notwithstanding the foregoing postdischarge re- marks of Supervisor Lonesco, we agree with the Administrative Law Judge's conclusion that "the relevant facts of record in their totality fall short of proving illegal motive in the discharge of Harris . . ." As found by the Administrative Law Judge, Harris was asleep when Captain Saddler unexpected- ly came upon him and discharged him. General Counsel contends, however, that, regardless of this fact, Harris' discharge reflected disparate treatment inasmuch as other employees caught sleeping on the job were given prior warnings before being dis- charged.8 For the following reasons we reject this contention. Respondent's written rules as set forth in its "Handbook for Guards" state that one of the grounds for dismissal is "sleeping on duty." There is no rule that oral or written warnings must first be given prior to a discharge for that offense. Although the record shows that in general when an employee is caught sleeping on duty by a low level supervisor the supervisor usually reports the conduct to his superior who issues a warning condemning the offense, we can find no set pattern as to the number of warnings issued to guards before termination for such an offense, or that warnings are always issued in such cases. Indeed, guards have been discharged after one sleeping infraction or not at all after numerous sleeping incidents. Of even more significance, how- ever, and standing in sharp contrast to the general way such derelictions of duty are handled where lower echelon supervisors are involved, is the uni- form approach of Captain Saddler to guards he has caught sleeping while on watch. Thus, the only other time that Captain Saddler personally caught a guard, Young, sleeping on the job, he fired him, like Harris, on the spot. Consequently, regardless of the variance in disciplinary actions taken by Respondent in matters of this kind, the unmistakable fact is that on the two occasions Captain Saddler personally caught guards sleeping on duty his reaction was the same: he fired them instantly.9 (Also, we note, in this regard, that Saddler summarily discharged a guard in August 1975, when he found him "in a prone 8 The Administrative Law Judge erroneously stated that Patrick Clark previously had personally reported Harris being asleep to Captain Saddler and had also seen a Sergeant Brown write up Harris for the same offense. The record shows that the individual to whom Clark referred was guard Willie Jones, not Harris. s We also note that although Harris denies that he was ever warned about sleeping on duty, the Administrative Law Judge generally discredits his testimony where it is significantly contradicted by Respondent's witnesses. Thus, Respondent's witness Sharkey testified that when he was a patrolman he caught Harris sleeping on duty several times. Although Sharkey never notified Saddler of those infractions, he cautioned Harris that if the captain caught him asleep, he would be fired. Thus, the record reveals that Harris was forewarned of what to expect if Saddler caught him sleeping. Furthermore, the record reveals that Harris had been admonished for lesser derelictions of duty. Saddler credibly testified that while Harris was position" with "liquor on his breath" and "unable to function.") We also disagree with General Counsel's conten- tion that Lonesco's postdischarge statement to Harris reveals Saddler's (and thus Respondent's) unlawful motive for discharging Harris. Although Lonesco's statement to Harris is found violative of Section 8(aX)(1) of the Act, it is insufficient, under the circumstances, to impute a discriminatory motive to Saddler. Thus, the discharge of Harris occurred contemporaneously with his offense. There was no intervening laspe of time between the two actions to suggest that Saddler's reason for discharging Harris may have been other than the one he gave to that employee. In such circumstances, we conclude that Lonesco's postdischarge statement suggesting an unlawful reason for Harris' discharge amounted to nothing more than mere supposition on Lonesco's part and, therefore, we do not attach any significant weight to it in deciding this issue.'0 Furthermore, if Saddler had wanted to get rid of Harris because of the latter's suspected union activi- ty, he had already passed by one opportunity to do so when he granted rather than refused Harris' request for leave to attend a 2-week typewriter repair course which was required for his day job. Soon after the election, Harris told Saddler he had to go away for 2 weeks to keep the daytime job, and Saddler allowed it-even though, as Saddler testified, he very seldom received requests for leaves of absence and considered it a favor in Harris' case because it was extremely difficult to replace him during that period. Had Saddler denied the request, Harris would have been forced to leave if he had wanted to keep his daytime job. As the Administrative Law Judge pointed out, what better way for an employer to assure itself of an employee's departure "than have him choose to leave of his own accord?" In addition, there is other evidence that Respondent did not seek to retaliate against employees because of their union sympathy. Thus, guard Plattman, who was also on the alleged list of suspected union supporters with Harris, was discharged by Saddler for insubordina- tion but then rehired at the request of Knight, one of stationed in Nesbitt Hall he issued 8 to 10 warnings to Harris because he failed to make his scheduled rounds, and while Harris was stationed in the Athletic Field House he was issued 6 warnings for the same offense. Thus, when Saddler discharged Harris he was aware that Harris was not a first offender. to See, e.g., Granrham Mines, 177 NLRB 759 (1969), where the Board reversed a Trial Examiner and found no merit in the contention that the employer departed from past practice in discharging a union adherent for sleeping on the job despite the fact that the respondent there exhibited union animus through antiunion statements and an 8(a)(I) increase in benefits. The Board stated, "However, this evidence must be carefully considered in the light of the other facts surrounding the discharges in order to determine whether union considerations did in fact play a part in Respondent's decision to discharge." Similarly herein, we find the facts do not support a discharge for "union considerations." 374 BURNS INTERNATIONAL SECURITY SERVICES the alleged drafters of the aforesaid list. As the Administrative Law Judge states, "This is hardly what an employer determined to get rid of an employee would do." In summation, we agree with the Administrative Law Judge that the following factors demonstrate that Harris was not fired for union activity: (1) the discharge did not occur at a time of union activity; (2) Harris was not strongly identified with union activity and did nothing to call attention to himself in that regard; (3) Harris admittedly had been warned several times for not punching timeclocks; (4) Respondent's written rules provide that an employee can be discharged for sleeping on duty; (5) other guards were discharged for sleeping on duty; (6) Saddler could have disal- lowed Harris' request for leave to attend a 2-week course required for his day job which would have caused Harris to resign; (7) one other person on the alleged list of union supporters was fired by Saddler and later rehired at the request of Supervisor Knight; (8) Harris was asleep when Saddler came upon him; and (9) the only other time Saddler personally caught an employee sleeping on duty, he also discharged him on the spot. Thus, we agree with the Administrative Law Judge and find that the General Counsel has not carried the burden of proving that Harris' discharge was "illegal- ly motivated."'" Accordingly, we agree with the Administrative Law Judge's dismissal of the 8(aX3) portion of complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, Burns International Security Services, Inc., Philadelphia, Pennsylvania, its officers, agents, suc- cessors, and assigns, shall take the action set forth in said recommended Order, as so modified: 1. Insert the following as paragraph l(b) and reletter the subsequent paragraphs accordingly: "(b) Threatening employees with discharge because of their union activities." 2. Substitute the attached notice for that of the Administrative Law Judge. II The Board in Harrah's Club, 158 NLRB 758 (1966), adopted a Trial Examiner's decision finding a stage technician's discharge for sleeping on duty not violative of Sec. 8(aX3) of the Act, although the employer had demonstrated animus against the union by discharging other employees in violation of Sec. 8(aX3) and predicted layoffs among the stage technicians. The Board there adopted the Trial Examiner's finding that" . . . this cannot mean that every termination is illegally motivated because it coincides with these predictions and placates Respondent's union animus. Respondent may still discipline the conduct of its employees." See also New England Lithosraph Company, Inc., 231 NLRB 516 (1977). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had an opportuni- ty to present evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act, as amended, and has ordered us to post this notice and we intend to abide by the following. WE WILL NOT tell our employees, directly or indirectly, that we know the identity of prounion employees, and thereby create the impression of improper surveillance of their union activities. WE WILL NOT threaten our employees with discharge because of their union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights to self-organization, to form, join, or assist International Union of Security Officers, Local I, or any other labor organization, or to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. BURNS INTERNATIONAL SECURITY SERVICES, INC. DECISION STATEMENT OF THE CASE THOMAS A. RIccl, Administrative Law Judge: A hearing in this proceeding was held on May 18 and 19 and June 13, 1977, at Philadelphia, Pennsylvania, on complaint of the General Counsel against Burns International Security Services, Inc., here called the Respondent or the Company. The complaint issued on January 31, 1977, upon a charge filed on December 8, 1976, by James Harris, an individual. The sole issue of the case is whether Harris was discharged by the Respondent in violation of Section 8(aX3) of the Act. Briefs were filed by the General Counsel and the Respondent. Upon the entire record and from my observation of the witnesses, I make the following: FINDrNos OF FACT 1. THE BUSINESS OF THE RESPONDENT Burns International Security Services, Inc., a State of Delaware corporation, is engaged in the business of furnishing guard and protection services throughout the United States, including the State of Pennsylvania. Annu- ally it furnishes guard and protection services valued in excess of $50,000 to customers located outside the Com- 375 DECISIONS OF NATIONAL LABOR RELATIONS BOARD monwealth of Pennsylvania. I find that the Respondent is engaged in commerce within the meaning of Section 2(5) of the Act. II. THE LABOR ORGANIZATION INVOLVED I find that International Union of Security Officers, Local 1, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. 11. THE ALLEGED UNFAIR LABOR PRACTICE James Harris was employed as a uniformed guard by the Respondent for about 2 years, assigned to various build- ings on the Drexel University campus in Philadelphia. Early in the morning of December 3, 1976, he was summarily discharged by a captain supervisor making an inspection visit to Harris' post. The first question of fact to be decided here is whether Harris, as Captain Saddler testified, was sleeping while on duty, or whether, as the guard said, he was not. There had been an organizational campaign among the guards working for Burns on the Drexel campus some months earlier. An election petition was filed by Interna- tional Union of Security Officers, Local 1, on August 24, 1976, and an election was conducted by the Board on October 29; the Union lost, 26 votes to 7. Harris testified that before the election he had told Captain Saddler that he, the guard, was a union member at another job he held at the same time somewhere else, and the complaint alleges the reason why Harris was fired in December was in furtherance of a plan by the Company to find a way of removing from its employ all guards it believed to be prounion. Denying any knowledge of Harris' attitude towards this Union or any other, and denying any unlawful purpose in its action, the Respondent advances the affirma- tive defense that the man was dismissed because he was found asleep when he should have been awake, and because this offense, in the light of past derelictions of duty, justified the discharge. Here it is a circumstantial evidence question. Does the record as a whole support the essential complaint allegation of illegal intent? Do all the pertinent facts of record warrant the inference- absent any direct proof - of hidden, prohibited motive? The Evidence: Analysis Harris always worked the night shift, from midnight to 8 a.m. He simultaneously held another full-time day job, working from 8:30 to 5 p.m. as a service technician for the Royal Typewriter Company. He knew, before the hearing, that the Respondent was going to defend on the ground of discharge for cause. As the first witness in support of the complaint, Harris' testimony is as much a detailed explana- tion, and justification, of whatever failings there may have been in his work performance before the day of discharge, as it is oral evidence given in support of the charge of improper conduct against his employer. He was really a rebuttal witness giving the lie to the as yet unspoken criticisms of his record. The theory here, I suppose, is that if the damaging facts are first aired in the more favorable language the employee can be expected to use, they will weigh less in the balance against whatever supports the complaint. But Harris was not very convincing. His last assignment, perhaps shorter than a month, was to the Drexel University field house, where there are three station clocks to be punched by the guard on duty when he makes his rounds once each hour during the 8-hour shift. For some months before that, Harris was assigned to what is called Nesbitt Hall; here there are many more clocks - about 15 - to be checked, or hit, each hour. Harris started by saying that many students came to Nesbitt Hall at night to study or work, and that because he had to let them in and out he used to miss some of the clock hits, a failure which always showed up on the tape records every guard carries in his portable keypunch equipment. He continued that in explanation of all this he told Captain Saddler about the many students, and that the supervisor therefore told him that whenever he failed in his duty to punch all keys as required, he should note the failure on his guard report as having been occasioned by the arrival and departure of too many students. But while admitting he received written warnings for not punching the clocks at Nesbitt Hall, Harris did not do what the supervisor told him, with the result, necessarily, that his daily reports showed nothing more than neglect of duty. But Harris interjected still another explanation: "I never felt that it was important to put it down because he would realize that if I didn't make the rounds, it was - what I was doing was letting the young ladies in at that particular time." Had Harris been satisfied with saying no more than that the captain understood the problem and simply said he would overlook tapes with keypunches missing, as a witness he would at least have sounded believable. But to add that Saddler both told him to make correct records, and implied he did not have to make correct records, is just too cavalier a story to pass muster. Harris was removed from Nesbitt Hall to the field house because, as Captain Saddler said at the hearing, there were only three clocks to punch there. Again, Harris said he often, if not always, ignored one of the only three punch stations there. This time, he said, it was because he had to go outside the building, walk 25 feet, go down several stairs to a basement boilerroom, and punch the clock there. Sometimes there are dogs at the bottom of these steps, and they might attack him. "Q. While you were there, were you ever given any warnings about not hitting any keys? A. Just the boilerroom key. I brought it to the attention of the patrolman that my problem was the dogs, they just didn't really acknowledge me." And again to make this story also more convincing, Harris then added: "A couple of guards were shot at in the neighborhood .... " Harris was employed as an armed guard. This was Harris again joining exculpatory defenses to his admission of neglect of duty. We come to what happened the night he was fired. At 2 a.m., Saddler came to the place on an inspection visit. Harris said he did not know the captain was coming and that Saddler "startled" him when he arrived; in his prehearing affidavit Harris wrote that the captain "sneaked in." However Saddler came, it is clear Harris was not in the room designated as his post when not making rounds, but instead in the coach's locker room, and Saddler had to go looking for him. Again Harris gave an introductory 376 BURNS INTERNATIONAL SECURITY SERVICES explanation of why he was in the wrong room. It was very cold that night and there was no heat in the building. He said the locker room was over the boilerroom, and although the boiler was off, it "might possibly cut back in." But if the boiler were turned on there would be heat in the building. What there was in that room were a number of chairs and Harris was using more than one. Was he sleeping when Saddler arrived? His affidavit reads: "I was in the back room laying on two chairs listening to the radio .... " At the hearing Harris explained: "... I wasn't exactly laying... I was slouched... ." Harris also had a timing device, a sort of clock that is set to ring at a given moment. He knows Burns does not want its guards to use such things, but again had a ready explanation: he wears no watch of his own and the Burns clocks sometimes fail! Against the guard's story that he was only bundled up against the cold, reading and listening to the radio, Captain Saddler testified he found Harris "prone" on four chairs, his shoes off and asleep. He became very angry, ordered Harris to gather his belongings and leave, and quickly called for a replacement guard. I believe Harris' statement that he could not even get a straight dismissal statement out of Saddler; indeed the supervisor's reaction to what he saw was such that Harris expressed personal resentment. In any event, within an hour or so Harris appeared at the dispatcher's office, in his street clothes and ready to turn in his uniform. Here there is a conflict in testimony as to words spoken by Harris in the presence of another supervisor, Sergeant Sharkey, who chanced to be in the office. According to Sharkey, when Harris walked in, the dispatcher on duty asked him "What happened," and Harris answered, "The Captain caught me sleeping." Asked had he said this to Sharkey, Harris answered: "I didn't say those exact words . . . I used different words . . . I said the Captain visited my post. He was very upset and he relieved me and he probably fired me for sleeping or something .... " "I don't remember if I said I was fired or what, that I don't know if I am fired or what and evidently that it must have been for sleeping." "I might have used the word 'sleeping' in my statement, but that didn't affirm that I was sleeping." On the direct question whether Harris in fact was asleep when Saddler unexpectedly came upon him, I credit the supervisor. Not only are there objective facts pointing to a high probability he was asleep at that hour - a full-time day job, slouching (if not lying) on more than one chair, the timer set to go off when it was time for him to get up and make the rounds, but Harris' demeanor and always pat, remarkably fitting explanations for one dereliction of duty after another, greatly impaired his credibility. There is much evidence that guards in Harris' group have often been warned about sleeping on duty. Company records prove one man, Young, was discharged for exactly that only 2 weeks before Harris. Another, Mosley, was fired for the same reason in May 1976. Still another, I In his original charge, dated December 8, 1976, Harris quoted himself as telling Saddler that day that he was a "union man." In a May 15, 1977, investigation affidavit given to a Board agent, he changed this to "shop steward." And at the hearing Harris said he told Saddler he was a "union official." 2 Haar last worked on October 10. A notice of termination, from the Thomas, lost his job for being "asleep" on duty in August 1975. There is evidence others were discharged for the same reason. There is an employee handbook for guards, and, of course, it specifies as a "ground for dismissal," "sleeping on duty." Harris, who worked 2 years, said he never saw the handbook. "Q. Do you know you are not to sleep on duty, Mr. Harris? A. Nobody never told me." Asked had he heard of guards being fired for being asleep, he answered: "vaguely"; and then, because he did not know about Young, he said the reason why Young was discharged was because "he was wearing pajamas or something like that." Harris certainly appeared to be an intelligent person. Where his testimony is significantly contradicted by the Company's witnesses, I cannot believe him. His story of a Burns guard wearing pajamas on duty, and his statement, albeit obliquely, that as a security guard he was permitted to sleep on the job, exceed the bounds of reason. He was asleep on duty. Was he discharged for violating the rules, or because of any union animus in management? As already stated, the union campaign among the Respondent's employees was a thing of the past when Harris was discharged. Other than his statement that someone asked him to sign a union card, he admitted he had nothing to do with the union campaign, or ever talked about it with other guards. He testified that one night, before the union election, Saddler called him a "celebrity" because he was receiving both the union literature and company literature aimed at dissuading employees from voting for the Union. He told Saddler he was involved with a union on his daytime job, that in his opinion a union might be "bad" for this company, and that the Respondent would do well to "give us some insurance." I Harris closed with saying that Saddler promised that after the election "he would see if they could get some insurance for us." Captain Saddler denied this entire conversation. I credit him. Michele Haar was a dispatcher who worked in the office, from February 1976 to September 30. She gave notice in mid-September and was asked to stay on call for possible occasional relief assignment. She was called only once, and then, on October 13, was permanently separated. 2 She testified that "a few days before the union election," "somewhere around" October 22 (as the complaint alleges) Prince Knight, assistant branch manager, telephoned her at her new place of employment, and, after putting William Ewing, the branch manager, on the extension phone, asked did she know "about anybody voting for the Union." When she said no, he asked her to check around and if she did so hear, "to try and talk them out of it." It seems that during her employment Haar had become friendly with some of the guards. Haar continued to testify that later that day Knight drove her home, and on the way suggested they stop at the Hilton Inn "for a drink and talking about it." During their conversation there, still according to Haar, Knight again asked did she know of anyone voting for the Company's records, is formally dated October 13. Records of the Respon- dent's entire nationwide operations are eventually processed in its central office in Briarcliff Manor, in New York State. Her separation was again recorded there on November I I. The contention in the General Counsel's brief, that the latter entry invalidates the earlier one, is unwarranted on this total record. 377 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union, and talked about "people that was supposedly on the list," specifying six names, including that of Harris. Both Knight and Ewing denied having questioned Haar about the identity of prounion guards or having mentioned any list to her. But Ewing did say he telephoned the girl on October 22, and asked why she thought the Union would win in the election. Ewing added that he then explained, substantively, why his antiunion letters were more convinc- ing, and that if she now agreed with him, she should "spread the good word." And Knight admitted that sitting with Haar at the Hilton there took place "a conversation which was a continuation of our telephone call earlier," in which he explained the reasons why he did not think it necessary to have a union among these guards. Knight added he told the girl he would be glad to talk to any guard who was uncertain as to the Respondent's "position." With these admissions by the two company officers, I credit Haar, and find that the two managers did interrogate her about the union attitude of other employees, and told her that the Company believed certain individually named guards did favor the Union. The credibility finding here, that the company officials told Haar they had an idea as to which named individuals favored the Union, rests in part upon the credible testimony of Wandra Powell - see below. It is also strengthened in part by a letter, received in evidence, that Captain Saddler wrote to Branch Manager Ewing the month before. On September 9 he reported the status of the union campaign, adding: "I have indicated a question mark for the individuals I feel may or may not vote for a union." Michele Haar was no longer an employee of the Respondent on October 22. Interrogation, in the conven- tional sense of that term, could not have restrained and coerced her in the matter of unionism with respect to this company. But entirely apart from any privilege to express opinions with employees or former employees, the state- ment by management to Haar that the Company knew or believed certain people to favor the Union, coupled with directions to her to convey their antiunion message to employees including these, was tantamount to an intent to convey to the present employees the impression that the Company was surveying their union activities, that it was keeping watch and knew who the unioneers were. This deliberate technique of creating the impression of improper surveyance upon the employees constituted a clear viola- tion of Section 8(aX)(1) of the Act, and I so find. Finesilver Manufacturing Company, 220 NLRB 648 (1975). When, after having been discharged at 2 a.m., Harris came to the office later on the morning of December 3 to retrieve his belongings, including the timing device, there were present two supervisory sergeants, John Lonesco and Williams, plus a dispatcher named Wandra Powell. Harris testified that Lonesco said to him then ". .. you know James, it's only a matter of time for you to be fired, .... your name was on the list and now you got it." Powell, as a witness for the General Counsel, was asked what she heard Lonesco say: "Words to the effect, I told you it was just a matter of time and that your name was on the list." Powell also testified that about a week after the election she heard Lonesco say "that Prince Knight had told Captain Saddler that he would see that the people who voted for the union were, I would say, conveniently disposed of." Powell added that Lonesco then mentioned seven names to her in connection with that list, and that included was the name of Harris. Lonesco, for the Respondent, denied having spoken to Powell about any list of prounion employees, or of any intent by management to get rid of such persons. He said he never heard of such a list. As to his conversation with Harris on the morning of December 3, his testimony is he did not say the man was discharged because his name was on a list. "I said, 'well, James, it looks like you finally did it now. You finally put your foot into it.' " Respondent was forcefully opposed to the organizational activities, and carried on its own campaign to defeat it. With the branch manager telling Haar, before the election, that management had its eye on certain particular guards, the probability is enhanced that Lonesco would think of such a list when Harris was fired. But more important, while I think Harris was not a very credible witness generally, Powell was the truly disinterested witness. Hers was the most impressive demeanor of all, and I do credit her. It does not follow of necessity from all this, however, that Captain Saddler discharged the guard for an illegal reason. Harris was not a unioneer in this place; he did nothing to call attention to himself in that sense; and he was asleep when Saddler came upon him. He had been warned a number of times, as he himself admitted, for not punching the clocks when he was supposed to. The written rules do say a man can be discharged for sleeping, and other guards in fact were discharged for that offense. Harris had been caught asleep on duty before, and been warned about it. In the face of his denial, this fact is proved by a former guard, Patrick Clarke, also called as a witness for the General Counsel. Clarke, discharged after the union election, had himself filed a charge with the Board but later withdrew it. He said he had personally reported Harris being asleep to Captain Saddler, and had also seen a sergeant, Brown, write Harris up for the same offense. As to the assistant business manager's visit with former employee Haar at the Hilton Bar, in which he mentioned Harris' name as a man believed to favor the Union, if the incident be viewed only in Haar's words, it bespeaks a certain significance. She said "he suggested stopping at the Hilton Inn . . . and talking about it." If a high manage- ment official goes out of his way just to put a scare in employees, it looks bad. But this was not the only reason why Knight wanted to talk to Haar that day. She is the daughter of another employee of the Respondent, and Knight had been instrumental in her hire as a favor to the father. He chanced to meet her in the dispatcher's office, where she had come to collect some money due her, and offered her a ride to her apartment in order to talk to her about "personal problems that she was having with her family." Knight said he only talked of the Union with her 5 to 10 minutes, but spent 45 minutes to an hour sitting there talking to her about these "problems." Haar did not deny this. The General Counsel repeatedly objected to any testimony from the witness about any part of that total conversation except the pinpointed phrases that had come out of the mouth of the witness Haar on direct examina- 378 BURNS INTERNATIONAL SECURITY SERVICES tion. I sustained the objection for reasons of delicacy towards the lady in the hearing room. But it is not fair to evaluate things said in any overall conversation in an out of context posture. Knight did not go out of his way in his antiunion efforts quite as brazenly as the General Counsel would draw the picture. However that may be, in the weighing of the pertinent facts of record, in the balancing of the pros and cons, as in all circumstantial evidence cases, there is one other fact, as to which there is no dispute, that in my opinion weighs significantly against the proposed inference of illegal animus. In mid-October, during the very period when the Respondent was getting together and talking about its "hit list," as Harris referred to it, the guard asked for a 2 weeks leave of absence from his job because he had to attend a training program out of town to which his daytime employer, Royal Typewriter, had assigned him. At that point it was one job or the other for him, because he admitted he would have lost the day job if he had not gone for the training. With knowledge that this was the reason for Harris' requested leave, management favored him with permission. How better to get rid of a man you do not want - whether your reason be a nice one or not - than have him choose to leave of his own accord? There was no duty upon the Respondent so to oblige the man. Its personal animosity towards Harris could not have been very strong. If it really wanted to see him go, that was the moment. And finally, there is the matter of percentage probabili- ties, always a relevant factor in circumstantial evidence cases. The names of eight employees appear in the total record, in one way or another, as having been spoken by management representatives to be suspected unioneers. A witness listed six; the affidavit of another also lists six, but only four names are on both lists. Seven employees voted in favor of the Union in the election, a curious oddity. The entire theory of the complaint is that the Respondent was determined to get rid of all these. Harris was fired. Three others - Plattman, Williams and Simmons - are still on the job. One of these, Plattman, was discharged for insubordination by Saddler. Because of the kindly inter- vention of Knight - the man who called off the names of the suspects - Plattman was returned to work. This is hardly what an employer determined to get rid of an employee would do. Clarke was fired, but his unfair labor practice charge did not stick; it must be assumed, there- fore, there was nothing improper in his dismissal. Young was discharged for sleeping on the job! He filed no charge against anyone. As to the last man, Rivera, the record only shows that he was 'ransferred, without further explanation. In my considered judgment, the relevant facts of record in their totality fall short of proving illegal motive in the discharge of Harris by a preponderance of the substantial evidence. I shall therefore recommend dismissal of the complaint with respect to him. S In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rtles 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. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set out in section III, above, occurring in connection with the operations of Respondent described in section I, have a close, intimate, and substantial relationship 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. CONCLUSIONS OF LAW I. By telling employees, and by passing the word to its employees, that it had knowledge of which employees were engaging in union activities, and thereby creating the impression of surveyance over their protected activities, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX)(1) of the Act. 2. 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: ORDER 3 The Respondent, Burns International Security Services, Inc., Philadelphia, Pennsylvania, its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Telling its employees, directly or indirectly, that it has knowledge of the identity of prounion employees, and thereby creating the impression of surveyance upon their union activities. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights to self-organization, to form, join, or assist Interna- tional Union of Security Officers, Local 1, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its place of business in Philadelphia, Pennsyl- vania, copies of the notice attached marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 4, after being duly signed by its representatives, shall be posted by the Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by it to insure that I In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 379 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said notices are not altered, defaced, or covered by any IT IS HEREBY ALSO ORDERED that the complaint be, and it other material. hereby is, dismissed with respect to the discharge of James (b) Notify the Regional Director for Region 4, in writing, Harris. within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith.