Del E. Webb Realty and Management Co.

DEL E. WEBB REALTY AND MGT. CO. 593 Del E. Webb Realty and Management Co. and David Earl Patterson and Douglass Wright. Case 17- CA-6063 is received from organizations whose operations meet the Board's jurisdictional standards. I find that the Respond- ent is engaged in commerce within the meaning of the Act. February 14, 1975 DECISION AND ORDER BY ACTING CHAIRMAN FANNING AND MEMBERS JENKINS AND KENNEDY On September 30, 1974, 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 Respond- ent filed a brief in response thereto. 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, findings, and conclusions of the Administrative Law Judge. 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 and hereby orders that the complaint be, and it hereby is, disqiissed in its entirety. DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Administrative Law Judge: A hearing in this case was held on August 13, 1974, at Kansas City, Kansas, on complaint of the General Counsel against Del E. Webb Realty and Management Co., herein called the Respondent or the Company. The charge was filed on May 13, 1974, by David Patterson and Douglas Wright, herein called the Charging Parties, and the complaint issued on June 17, 1974. The allegations of wrongdoing are that the Respondent discharged these two men in violation of Section 8(ax 1) 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: FINDINos OF FACT I. THE BUSINESS OF THE RESPONDENT The corporate Respondent is engaged in the manage- ment and operation of office buildings, and has its principal office in Phoenix, Arizona, and an office in Kansas City, Missouri. It annually derives revenues in excess of $ 100,000, of which in excess of $25,000 annually 216 NLRB No. 103 II. THE ALLEGED UNFAIR LABOR PRACTICES The events giving rise to this proceeding occurred at the Crown Center in Kansas City, Missouri, where the Respondent, under contract with the owners of the realty, furnish protection services. It is a very large complex of buildings, covering perhaps 23 acres, with multiple com- mercial establishments and high office buildings. Patterson and Wright worked for the Company as security guards, Patterson hired in December 1973 and Wright on January 2, 1974; they were assigned to the I 1 p.m. to 7 a.m. night shift, which consisted of about 13 guards. There had recently been a rash of thefts on the properties, and in consequence the Respondent announced a change of hours as of March 1. Each of the three shifts was ordered to report for work 30 minutes before the previously estab- lished starting hour; thus the night shift was on duty from 10:30 p.m. to 7 a.m. Understandably there was a certain amount of resentment against the extra duty. Both Patterson and Wright were discharged on May 7. It is the theory of complaint that the reason why these men were fired, or at least a contributing factor in the considerations which led to their release, was the fact that together with other guards they engaged in concerted activity - vis-a-vis the employer - to protest against having to work the extra 30 minutes each shift. In defense the Respondent insists that whatever protest may have been voiced by any guard, concerted or not concerted, had nothing to do with the discharges. Affirmatively, it asserts that Patterson and Wright were released because of specific acts of misconduct which each concededly did commit before May 7. It is important to clarify a point of law at the outset. This is not a union activity case; there was no union in the picture and nobody turned to any labor organization for assistance in any dispute with the Company. There is therefore no allegation of violation of Section 8(a)(3) of the Act. The theory of complaint instead is that the Respond- ent "coerced" the two men in their statutory right to engage in "concerted," as distinguished from "union," activities, and thereby violated Section 8(axl). This section makes unlawful any coercion of employees with respect to their rights under Section 7 of the Act, which in pertinent part guarantees the right "to engage in . . . concerted activities for the purposes of collective bargaining.... . The Board has held too often to warrant citation of authority here that where an individual employee turns to his employer alone to improve his condition of employ- ment and is in no sense joined in his actions by any other workman, he has not engaged in concerted activities in the statutory sense and may be discharged with impunity. That the Respondent had cause to release both Patterson and Wright on May 7 is not disputed. In an ordinary case of this kind the problem would be to weigh in the balance those facts which point to perfectly proper discharge for cause and the countervailing facts - protected union or concerted activities by the employees and known by the employer - tending to support an inference of illegal 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD motivation. And the eventual question then is whether the General Counsel, upon whom the affirmative and primary burden of proof always rests, has proved that in fact the man was discharged because of, or at least in part because of, his protected activities. In such circumstances the Board's final answer to the heart question is never an absolute certainty. It is an inference, warranted or not warranted, by the total picture. In the case at bar there is an additional, or extended, inference to be made, if warranted, before a conclusion of illegal conduct can be reached. It is not at all clear either Patterson or Wright was engaged in any concerted activities ; the evidence points instead to their having done whatever they did, alone, quite independently of "acti- vities" by any other guards. But it was suggested at the hearing that, regardless of how their conduct in fact came about, management agents believed the two men were in fact acting on behalf of a large number, and fired them for that reason. It is an interesting argument and may or may not be persuasive as a matter of law. Does an employer in fact violate the statute if it thinks it is violating it, when in fact no one was ever engaged in union or concerted activities? The problem can be stated differently. When an individual workman demands that the employer change the hours of work for the entire group, his success or failure affects them all. Does it follow from this that he was acting in concert with them and was therefore protected against discharge for such individual personal conduct? Perhaps. If all that is shown is that in their minds the rest of the employees think as did the sole activist, agree with his thoughts that the employer should change the work schedule, but whatever he does he does alone, is that activity then to be deemed concerted and protected? Again, perhaps. Assume, finally, that while agreeing in principle with the sole actor, the rest of the employees make it clear they wish to disassociate themselves from his activity, want nothing to do with it, refuse to sign his petition to the employer, is he then engaged in statutory concerted activity? The best way to speak of a case of this kind is in terms of the standard Board approach . Has the General Counsel, by a preponderance of the substantial evidence on the record as a whole, proved that an unfair labor practice was committed? N.LRB. v. Glenn Raven, 203 F.2d 946 (C.A. 4, 1953). A. Activities by the Two Discharged Employees As stated above, a number of night-shift guards thought little of the new order to report for work 30 minutes earlier, and talked about writing a letter to the Company, to be signed by all of them, in protest. Wright testified he drafted some paragraphs for such a letter, the various ideas coming from this or that guard. There came a time, in early March, when the guards decided not to do this, or anything else I Like Wright, Patterson also said some of the thoughts lie expressed in the anonymous letter were those voiced by other guards . Asked to explain why, unbeknownst to them, he then placed copies in their lockers instead of just handing the letters to the others , he said: "I wanted to show that there were some men at least concerned about what was going down there at Del Webb." I doubt it could be said concerted activities come into being by such devious action on the part of a single individual seeking to create the false illusion of joint action. about the problem, and not to sign any letter of any kind. Whereupon Wright abandoned the whole idea and did nothing else. This was the totality of the "concerted" activity by Wright, which, according to the General Counsel, constituted the protected or concerted activity for which he was fired 2 months later. Patterson, also aware of the widespread feeling of resentment among the guards , decided to write a letter of his own. He did, and in it disparaged the Company generally, far beyond and above the exact complaint about the alleged impropriety by management in adding unpaid worktime duty upon the guards. But Patterson did not sign the letter ; he wrote "ananymous [sic]" at the bottom instead. He then had copies of the letter made and placed one in each of about 10 of the individual dressing room lockers of the other guards. Why he did this is not clear, but a logical explanation is that this was his way of making the unsigned letter appear as the "concerted" activity of the rest of the men. The fact is they had nothing to do with it.' Because Patterson cannot type, he asked Augustus, another guard, to type it for him before he had copies made. Augustus, called by the General Counsel to help prove the concerted nature of what Patterson did, testified that while he agreed with Patterson's views, he asked Patterson at the time "not to mention my name . . . I didn't want anybody to think I took part ... I didn't want anything to do with it." Some of the copies found their way into the hands of supervisors. Patterson said the letter was spread about early in March, and that a day or two later Clarence Miller, his supervisor, asked did he know anything about it. He denied any knowledge. There was no further talk of this letter between Patterson and any representative of manage- ment for over a month, until, when late in April, he volunteered the information himself that he had written it. In the interval a number of other things happened. A copy of the letter also reached Gary Crockett, director of security and top supervisor over all guards. Crockett admitted at the hearing he had heard the rumor that Wright intended to write a letter of complaint and therefore assumed he had written this one. He testified he telephoned Wright at home on March 14 to ask had he written it; as Crockett read part of the letter on the telephone Wright denied having had anything to do with it. I rather believe Wright's statement that the supervisor was upset and angry, and that he said he did not agree with the charge of "dictatorship" spelled out in the letter. But I do not credit Wright's further testimony that after his telling Crockett he had not written the letter, and did not know who had written it, Crockett said he would make it his business to find out, and when he did "we're going to have a little talk, and most likely you won't be working here any more." Why would Crockett threaten to discharge Wright immediately after learning he was not responsible for the In his brief the General Counsel argues that the employees carried on their concerted activity in this "cumbersome" manner because they knew the Respondent's "mentality" was such that it would surely have retaliated against them otherwise. There is no evidence of employer intent to intimidate before the anonymous letter , certainly no indication of adverse mentality before anything happened or came to its attention . This kind of inverse reasoning to prove that the individual act was concerted and not individual leaves much to be desired as a matter of logic. DEL E. WEBB REALTY AND MGT. CO. 595 letter? Crockett denied any threats of reprisals, and I believe him. Wright even added that after his protestation of innocence, the supervisor "became friendly" and suggested the two have a talk sometime. Wright, too, had no further conversations with members of management about any letter until the end of April. B. The May 5 Incident; Discharges The precipitating cause for the two discharges came on May 5. At 5 a.m. that day Wright, on duty, went to the dispatcher's office, where a number of supervising televi- sion cameras are located, as well as telecommunication equipment. Wilbert Walker, the dispatcher, was there; he gets about in a wheelchair for he is unable to walk. He asked Wright to watch the equipment while he went to the restroom. Wright related at the hearing how, because he was bored, he decided to send a false and confusing message to the guard room ; he whistled into the intercom, knowing this would send a number of guards scurring about the premises to check on possible danger some- where, and that they would be frustrated in their activity. In a little while Patterson, also on duty, entered the room, asking what had happened. Wright explained and the two thought it a greatjoke, even decided to do it again. Walker returned, learned what they were about to do, and several times told them to stop it, not to do it again. They called him a spoil sport, ignored his directive, and whistled again into the intercom. The same thing happened again with the other guards. As it happened, every sound that goes into the communication system is recorded on tape, and an inquiry came from one of the major tenants in the large complex, a company that has its own security guards but whose electronic system is tied to that of this Respondent. Eventually top management got a full report and on Tuesday, May 7, Wright and Patterson were discharged. It was Clarence Miller, their immediate supervisor, who told them of the discharge, while reading from a directive to that effect he had received from the top supervisor, Crockett. The letter is in evidence and details first the May 5 incident of misconduct, and then notes also that the two men had received below standard performance evaluations on May 1. And in order to lift that reference, innocuous on its face, to the level of proof of illegal motivation, the General Counsel goes back to earlier ambiguous conversa- tions which he calls sufficient to establish that in fact the reason for the below standard evaluations in each case was once again the two letters, one never written and the other never signed. He asks for one inference that the men were marked down in evaluation as retaliation for such concerted activities, and a second inference on top of the first, that the reference to the substandard evaluation in May was oblique admission of the same pervasive animosity. C. The Month of April In keeping with established company practice, a supervi- sor talked to both Patterson and Wright at the end of April in connection with the annual evaluations . In the latter part of the month Patterson also had several conversations with Crockett about his job performance and another with a man name Orson Myers, a gentleman whom he called his "Godfather," or family friend, and who had by his good offices helped him get the job in the first place. For 2 weeks in early April all guards attended a training school full-time during the day, where there were visiting lecturers in the field of security. In connection with his talk, one of the teachers passed out a series of 11 double photos of suspected shoplifters, with detailed information about their last known addresses, automobiles used, reported activities, and criminal records. While the lecturer spoke, Patterson marked the pictures with offensive, street gutter language made to appear as emerging from the mouths of the suspected persons. He left the exhibits on his table in the room at the end of the period, as he was not supposed to do, because they might fall into the wrong hands. Another speaker, James Risinger, many years a police officer and alcoholism programs director for the State of Kansas, lectured on alcohol and related problems. He testified that Patterson several times disrupted the class by speaking loudly to other guards and diverting their attention from the subject at hand. There is also a rule against drinking on the premises applicable to all' guards. On one occasion Patterson lined up a number of beer cans atop the men's lockers, one can still with cold beer. Once, during a recess in the training course, Patterson invited Crockett to a private talk outside to discuss with him "problems on the third shift." Among other things he said: "The best thing I can say about Clarence Miller [his supervisor ] is that he's a no-good son- of-a-bitch," because he checked on the men too closely. This is from Crockett's testimony. Patterson said he did not quite put it that way. In almost incoherent, rambling language while testifying, he said : "I didn't call Clarence S.O.B. That was quoted by - I quoted that by one of the fellows on my shift. I was trying to make things better down there is what I was trying to do." At another point Patterson testified he told Crockett some one else had called Miller "a no-good son-of-a-bitch." Apparently Crockett alerted Myers to whatever prob- lems he felt existed with respect to Patterson. Myers is assistant to the president of Crown Center Redevelopment Corporation, the Company which owns the realty and which contracted with the Respondent to do the security work. Part of his duties are to check on the adequacy of the security performance. It will be recalled he had recom- mended Patterson for employment. Sage, a higher supervi- sor, told Patterson to go talk with Myers, and on April 19 he did so. Among the papers in a folder in front of Myers were the shoplifter mug photos Patterson had marked up. In fatherly fashion the older man said he was disappointed and told Patterson that calling his superior an "s.o.b." was not proper behavior for a man seeking to hold a position of responsibility. Patterson responded that he did think just that of Miller, and that other guards felt the same. Myers then showed Patterson the shoplifter photos, indicating he did not expect such behavior of the younger man. Patterson's comment to this was that he had done a foolish thing for entertainment. Continuing his testimony as to this conversation, Myers said Patterson volunteered the in- formation he had written a certain anonymous letter and 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was going to confess to Crockett about it, and then asked did Myers have a copy of it. At this point, still according to Myers, he drew a copy of the letter from the folder in front of him, and then Patterson commented on it in detail reference, saying certain items were true and others false. In his direct testimony Patterson attempted to create the impression Myers first started talking about his letter, telling him he was being "corrupted" by Wright by reason of the letter-writing business. This was one of the parts of his testimony that detracted from Patterson's credibility in this case.2 Later, on cross-examination, the admitted it was he who had brought up the subject of the letter, and that Myers did not talk about it. Patterson then did go to Crockett, and had several private talks with him before the May 5 incident in the dispatcher's office. His testimony as to these conversations is very confused, both as to how many times he talked to the supervisor and as to exactly what words were used. It is clear he started by telling Crockett he had written the anonymous letter; he also said Crockett conceded he knew that. This must be true, because Crockett did not deny it, and because Myers explained he had received his copy weeks before the interview with the young man and had received the impression from Crockett that Crockett did know who had written it. Perhaps because he is a more experienced and more articulate man, and perhaps because he was more candid, Crockett was very clear in his testimony. One thing emerges without doubt; Patterson said Crockett made very clear the guard was through, he definitely was going to be fired, but Crockett directly denied having said that. In any event, Crockett laid out all the complaints he had received - the business of the beer cans, the advice from Risinger about disrupting the class, a report by another instructor of Patterson disputing the correctness of the lecturer's views, and the matter of the offensive writings on the shoplifter pictures. Crockett said he deemed this a serious business, that Patterson was a round peg in a square hole, and that it would be best if he sought work elsewhere. Crockett also said he did not want to hurt the man, that if he left voluntarily he would give him a good letter of recommendation, but that in the end he, Crockett, "would probably have to do something." I credit his statement at the hearing that he did not say he was going to fire the man.3 The fact remains no one came near him again, and nothing was done about him until May 7, by which time he had given the Company good cause to discharge him entirely apart from any concerted, or not concerted activities. D. Analysis and Conclusion I find the total evidence insufficient to support the allegation Patterson and Wright were illegally discharged 2 From Patterson's testimony: He mentioned the fact there was another fellow worker with me named Doug Wright, and he says, "Gary Crockett told me that Doug Wright was a bad influence on me," and I said, "Well, just what do you mean by that?" He says, "Well, is Doug Wright corrupting you," and I said, "I'm not sure what you mean. Doug Wright's a good man," and then the letter was before him. He said - well, he didn't state - he and shall therefore recommend dismissal of the complaint. On April 30 Supervisor Miller discussed with them their annual evaluations; they had each been marked "fair team worker" under an item called "team work," and "needs improvement" under "assignment acceptance," but rated satisfactory in all other respects. Both men questioned the two pinpointed ratings, and while both testified about these talks, Miller was not called to testify by the Respondent. According to Wright, Miller told him the "assignment acceptance" criticism "had to do with a certain letter writing incident." Wright then protested he had not done so, and the supervisor came back with "Well, you did write a letter, didn't you?" Wright said he had "started to" and Miller then said "that's what I'm talking about." With this Miller left it with the phrase "we don't see eye to eye on things." When Patterson asked why he had been marked low, Miller explained it meant "ability of the worker to accept the policies of the management" and "Due to this letter, you surely can't be getting along with everybody." Patterson had previously already told Miller he had written the anonymous letter. At the final discharge conversation, where it was again Supervisor Miller who did the talking to the men, there was also a reference to letter writing. Wright's testimony is that after Miller had finished explaining the two reasons for dismissal - the telecommu- nication incident and the poor evaluations - he, Wright, asked was there any other reason, and Miller said: "Well, with your poor attitude and your involvement in certain letter writing incident, coupled with the poor ratings, should be reason enough." And it is true Miller, like Crockett, had heard a rumor that at one time at least Wright was supposed to be drafting a letter of complaint for multiple signatures. The foregoing conversations represent the best evidence in support of the complaint. And it does amount to some indication that management thought less of the two men because it knew in the case of Patterson, and suspected in the case of Wright, that they had in some manner leaned towards trying to change conditions of employment. This evidence must be weighed against all other which tends to weaken the complaint inference of unlawful intent in the discharges. To start with, a fording that the men were acting together with other guards would be very difficult to make. See Maietta Trucking Company, 194 NLRB 794 (1971). It is true that at the start others egged Wright on to draft a letter intended to present group demands upon the Company. But it is no less true the group disassociated itself from the activity before any kind of action came to management's attention. The decision by all of them not to sign anything, indeed to stop whatever they had for a while intended, strongly supports this conclusion. The anony- mous letter repeatedly speaks in the first person, and time and again thereafter Patterson told one supervisor after another he had not been acting on behalf of anyone else, didn't state, but it was implied that he was referring, I felt , to the letter in front of him. 3 Towards the end of his story, Patterson said that after the talks "I wasn't sure. I was up in the air," on whether his job was or was not still secure. His investigation affidavit contains the following statements: "At this point I did not know whether I was working until May 10, or not. My employment was up in the air as far as I was concerned." DEL E. WEBB REALTY AND MGT. CO. 597 that he had acted alone. The fact he stuffed copies of his letter into the personal belongings of the other guards hardly serves to make them coconspirators. At one point he admitted he was "representing the feelings of all the officers." But see Mushroom Transportation v. N.L.R.B., 330 F.2d 683 (C.A. 3, 1964). Did the managers nevertheless believe, even if erroneous- ly, that the two men were spokesmen for the rest? At one of the day training classes mentioned above, Crockett spoke to the group, referred contemptuously to the anonymous letter as he read from it, and revealed his irritation. There is no reason to infer from this that he believed they were all together behind it. Not knowing which guard had written it, what could he do but talk to them all? And it certainly can also be said Crockett was irritated towards Patterson, after learning he had written the one letter, and even towards Wright at the rumor of his being involved. The General Counsel would add to this indirect evidence of illegal motivation of the next month, the further fact that on April 1 the Respondent changed the system and resolved the excessive thefts problem in another way, with all guards reverting to only 8 hours of work each shift. Does the fact he did a favor for them all of necessity mean he also knew they were engaged in concerted activity as defined in the Act? If only these facts were considered, really out of context, as it were, perhaps an unfair labor practice finding could be reached. Compare, Henning and Cheadle, Inc., 212 NLRB 776 (1974). But there are other questions to be considered. If Crockett was really determined to discharge Patterson in April, whatever his reason, why did he not do so? And even with respect to his various talks with the man in April - those now said to show how important the anonymous letter was to the chief - it must be remembered it was Patterson who invited every meeting; Crockett never called him in for anything. Even accepting the fact the head supervisor knew who had written it, he made no move at all about the letter; Patterson just felt he wanted to inform the boss. Nor did the "godfather," Myers, speak of the letter to Patterson until the employee himself bought up the subject .4 But all of this is strong indication that whatever management may have thought of the letter, it was a minor consideration in its appraisal of the man. The next step is the evaluation procedures. That there was solid reason for marking Patterson down cannot be disputed. He had misbehaved in more than one way before the ratings were made . And even Wright admitted he argued with the lecturer at the training school, hardly commendable conduct. The variable norms listed for evaluation purposes are of necessity stated in general terms and cannot be considered definitive evidence of specific criticism. If then, in the end, Crockett, in his summary of basis for discharge in May, made reference to the below standard reports, it may as well be his thinking was general than pinpointed, as the complaint would have it. But most important of all is the May 5 incident. The guards at this location all become commissioned officers of the Kansas City Police Department; they all carry guns. How serious an offense is it to jest with false alarms when young men as a result are scattered into the empty caverns of so large a structure as the Crown Center at night? Both Crockett and Myers called such behavior evidence of immaturity; they were right. About 2 months had passed since the letter, or letters, activity; everything that had given rise to them had been solved and concluded. Crockett said it had nothing to do with his discharge decision. I am convinced neither man would have been dismissed but for the May 5 incident. Throughout the testimony of Patterson and Wright, as well as in the General Counsel's brief, there runs a continuous current of presumptions, retroactive opinions of evil intent in management representatives. Repeatedly the thought is expressed that if the employees did not actually engage in concerted activity it was because they knew the Company would retaliate with reprisals, or it was "because of the atmosphere." The two men's denials of responsibility to members of management must be taken with a grain of salt, it is said, because they were behaving "prudently." From the brief: ". . . the intent and precision of the security operation unleashed against the letter writers was anticipated by the guards and is the only record factor which dissuaded them from straight forward- ly taking their complaint to management." These state- ments not only prove nothing, but also put a bad light on the testimony generally. Unfair labor practices must be proved by affirmative evidence, not by artfully articulated presumptions. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this proceed- ing, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER It is hereby ordered that the complaint be, and it hereby is, dismissed. 4 In his brief the General Counsel blandly suggests that Patterson's direct testimony that it was he who first spoke of the letter to Myers, and that it was he who dreamed up the idea he should inform Crockett about it, be totally ignored. He suggested, instead, a contrary finding : that Myers first confronted Patterson with the letter, and that it was Myers who instructed Patterson to go to Crockett and confess The fact the General Counsel also writes he is "reluctant to suggest" such a fanciful "scenario," makes it no less imaginary.