Tribuiani's Detective Agency

TRIBUIANI'S DETECTIVE AGENCY Tribulani's Detective Agency, Inc. and Local # I, International Union of Security Officers and Local 5, National Federation of Guards, Party in Interest. Case 4-CA-8209 December 12, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On August 30, 1977, Administrative Law Judge Peter E. Donnelly issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, the Respon- dent filed an answering brief, and the Party in Interest filed a memorandum. 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 and to adopt his recommended Order. 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 Respondent, Tribuiani's Detective Agency, Inc., Philadelphia, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE PETER E. DONNELLY, Administrative Law Judge: The charge herein was filed on September 10, 1976,' by Local # 1, International Union of Security Officers, herein called Local I, the Union, or the Charging Party. A complaint thereon was issued by the General Counsel of the National Labor Relations Board on November 30, alleging that Tribuiani's Detective Agency, Inc., herein called Respon- dent or Employer, violated Section 8(aX2) and (1) of the Act by the actions of its supervisor, Bernard Patton, in soliciting authorization cards and dues-checkoff authoriza- tions on behalf of Local 5, National Federation of Guards, herein referred to as Local 5, and by granting recognition to and signing a collective-bargaining agreement with Local 5 at a time when Local 5 did not represent an uncoerced majority of Respondent's employees. An answer thereto was timely filed by Respondent. Pursuant to notice, the hearing was held before me at Philadelphia, Pennsylva- nia, on January 20, 1977. Briefs have been duly filed by General Counsel, Respondent, Charging Party, and Local 5, which have been duly considered. FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Respondent is a Pennsylvania corporation engaged in providing security guard and private investigation services, maintaining offices in Philadelphia, Pennsylvania. During the past year, Respondent in the course and conduct of its business operations provided services valued in excess of $50,000 to firms engaged in interstate commerce on other than an indirect inflow or outflow basis. The complaint alleges, Respondent admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The complaint alleges, Respondent admits, and I find that the Union and Local 5 are labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts 1. Patton's supervisory status The record herein discloses that Patton is employed by Respondent as captain of its force of some 104 security guards. As such, Patton is the highest ranking uniformed employee and the only captain. There are 2 lieutenants and some 14 to 16 sergeants. Patton has more seniority with Respondent than any other uniformed employee. Patton normally works 3 or 4 days a week, from 25 to 43 hours per week, primarily in Respondent's office. He works on Monday and Tuesday from 5 to II p.m., and sometimes on Saturday and/or Sunday in the absence of Helen Tribuiani, the general manager and top official of Respon- dent. While it appears that the weekly schedule of guard assignments is made up by Tribuiani, Patton has the responsibility for obtaining other guards to cover for absenteeism in the scheduled assignments. Patton contacts nonworking guard employees by telephone, utilizing a listing of all guard employees of Respondent. Patton also has the authority to assign overtime to employees when necessary to cover for absenteeism. When the need arises because of absenteeism, Patton has the authority to reassign guards from one location to another. As to wages, Patton is paid at the hourly rate of $3 per hour. This is 5 cents more per hour than sergeants and 25 cents more per hour than guards. Lieutenants are salaried at $190 per week. "Patrol Supervisors," that is, lieutenants, captains, inspectors, and investigators, which classifications obvious- ly include Patton, were excluded from the contract unit in I All dates herein refer to 1976 unless otherwise indicated. 233 NLRB No. 174 1121 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the collective-bargaining agreement signed by Local 5 and Respondent on July 9. With respect to the matter of employee complaints, section I of Respondent's "General Orders" (par. 6) provides for written complaints to be submitted through the "chain-of-command" with the captain as the first step in the procedure. 2. Solicitation of cards by Patton and the recognition of Local 5 by Respondent At the hearing General Counsel, Respondent, and the Charging Party entered into the following stipulation: The undersigned parties hereby agree to the following stipulations of fact: 1. The National Federation of Guards is an organiza- tion in which employees participate. 2. The National Federation of Guards exists for the purpose, at least in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. 3. From on or about March 10, 1976, to on or about mid-April, 1976, Bernard Patton solicited 15-20 em- ployees to sign authorization cards for the National Federation of Guards. During this period, the Employ- er neither directed Patton to engage in such activities nor had any knowledge that Patton was engaging in such activities. The Employer did not gain such knowledge until after the unfair labor practice charge in this matter was filed on September 10, 1976. 4. On or about April 20, 1976, the National Federa- tion of Guards presented the Employer with authoriza- tion cards signed by a majority of the Employer's uniformed employees. 5. On or about April 20, 1976, the Employer em- ployed approximately 104 uniformed employees. The stipulation was received into evidence over the objection of Local 5 to paragraphs 3 and 4 thereof. Patton, although subpenaed by the General Counsel, did not appear and did not testify as a witness in this case. In fact, apart from the stipulation, the General Counsel offered no testimony concerning that portion of the complaint dealing with the solicitation of authorization cards by Patton. As to paragraph 4 of the stipulation, Tribuiani testified that in April 1976 a representative of Local 5, Mr. Tamburaini, came to her office and showed her authoriza- tion cards signed by a maximum of some 75 employees on behalf of Local 5. Thereafter, on July 9, based on the above majority showing of interest among its employees, Respondent 2 This checkoffauthorization reads: In compliance with the provisions of the Labor-Management Relations Act of 1947, 1, the undersigned do hereby as provided in the entered into a collective-bargaining agreement with Local 5. 3. Solicitation by Patton of employees to sign dues-checkoff authorizations The contract between Respondent and Local 5 includes a union-security clause and a dues-checkoff provision as follows: ARTICLE IV. CHECK-OFF During the term of the Agreement the Employer will deduct from the pay nearest the 15th of each month Union initiation fees (if any) and membership dues for its employees in the bargaining unit who furnish the Employer with a voluntarily signed check-off authori- zation card. All money so deducted will be forwarded promptly to the Union. If the Employer shall or refuse to remit fees and dues to the Union by the 21st day of each month, then and in such event the Employer shall pay to the Union a late payment fee, one per cent of each employees [sic] annual wages for each pay period of delinquency and the Employer shall, at the Union's demand, forthwith make available to the Union all payroll records and other books and records as the Union may require. All fees and dues collected by the Employer shall be segregated from other funds and shall be considered employee funds for which the Employer acts as fiduciary. Late payment fees shall be deemed a contractual obligation from Employer to the Union payable on demand and shall bear interest of six per cent per annum if not so paid. The provisions of this Article, may at the election of the Union, be enforced in law or equity in lieu of arbitration. Maria Jones, a former guard employee of Respondent, testified that, on a Saturday shortly before she was discharged in August 1976, she called Respondent's office to get her work schedule for the following week. She spoke to Patton who told her that he could not give her the schedule until she came to the office and spoke to the "union" man. She went to the office, and when she arrived Patton was there along with George Combs, another guard employee, and a union man whose name Jones could not recall. Patton gave her three papers and she was asked by Patton and the union man to read and sign them. Patton also told her "[Y]ou need this union because you have discrepancies about the hours and your schedule and you don't like to obey orders." Jones briefly read the docu- ments given to her by Patton and signed them. Jones identified one of the documents as the "Dues and Initiation Check-Off Sheet" which appears in evidence as General Counsel's Exhibit 6.2 She gave the signed documents back to Patton who then gave her the work schedule. said Act, direct and authorize my Employer to deduct from wages to be earned by me, union initiation fee plus monthly dues as may be directed by the above Union, in accordance with the Constitution and by-laws of the above Union, which are required to maintain me as a 1122 TRIBUIANI'S DETECTIVE AGENCY George Combs, the other former guard employee present, testified that on a Friday in July 19763 he went to Respondent's office to pick up his check. Patton took him into an inner office not normally open to employees. A union representative was in the office whose name Combs could not recall. The union representative spoke to him about the benefits available through the Union and gave him three papers. Combs asked the union representative certain questions and Patton directed him to sign the dues- checkoff authorization. According to Combs, Patton also said, "Combs, you ought to be lucky to sign this card because if it was left up to me you wouldn't of had no job." Combs also testified to the following exchange: Q. Okay. Did you sign the cards? A. I ended up signing it after he told me that I was lucky that I would have the job-you know. Q. And who told you that? A. Captain Patton. Captain Patton told me. So I signed the card. Combs then signed the documents including the checkoff authorization. B. Analysis and Discussion I. Patton's supervisory status The facts relevant to the supervisory issue are set forth above in some detail. It is my opinion that this evidence and the entire record herein establishes that Patton is a supervisor within the meaning of Section 2(11) of the Act. 2. Solicitation of authorization cards by Patton and recognition of Local 5 by Respondent Having concluded that Patton is a supervisor, I find that his solicitation of authorization cards as set out in the stipulation was unlawful, despite the contention made by Respondent that it was not responsible for the actions of Patton since it was unaware that these solicitations were made until well after they took place. Further, the naked stipulation is devoid of any evidence concerning the circumstances of the individual solicitations which is necessary to any finding of illegality. However, even finding, as I do, that Respondent was unaware of Patton's solicitations, this does not absolve Respondent from liability for Patton's acts. It is true that the only evidence concerning the solicitation by Patton is the stipulation itself, however, the evidence also discloses that Patton was the only captain of the complement of security guards and as such was the highest ranking uniformed employee member in good standing in said Union. My Employer is further authorized and directed to turn over the said monies as they become due to the Union. This authorization and assignment shall be irrevocable for the term of the applicable contract between the Union and the Company, or for one year, whichever is the lesser, and shall automatically renew itself for successive yearly or applicable contract periods thereafter, whichever is the lesser, unless I give written notice to the Company and the Union at least 60 days and not more than 75 days before periodic renewal date of this authorization and assignment of my desire to revoke the same. supervisor and the only one holding that rank. Having thus employed Patton in such a supervisory position, Respon- dent is not free to disassociate itself from Patton's illegal activity. Yonkers Hamilton Sanitarium Inc., 214 NLRB 668, 677 (1974). There remains for disposition the allegation that Respon- dent unlawfully extended recognition to and subsequently entered into an illegal collective-bargaining agreement with Local 5. Stipulation in this regard establishes only that Patton solicited 15 to 20 authorization cards and that Local 5 presented Respondent with authorization cards signed by a majority of its employees. 4 The record herein is devoid of evidence concerning the disposition of those cards solicited by Patton. Patton did not testify nor did any Local 5 official or employee; nevertheless, the General Counsel urges me to conclude that the authorization cards solicited by Patton were in fact submitted to Respondent on April 20. This I cannot do since it requires making an assump- tion which in my opinion is unwarranted. It cannot be assumed from the fact that Patton solicited authorization cards that any of the cards so solicited were submitted to Respondent. Nor does the mathematics of the situation compel such a result. Tribuiani testified that a maximum of about 75 cards were submitted in a unit of about 104. It is obvious that, even given the maximum figure of 20 cards solicited by Patton, it would not have been necessary for any of the 75 cards submitted to have been solicited by Patton. The unit could have been as small as 95 and this would still have been true. To assume that some or any of the cards submitted to Respondent were solicited by Patton is rank speculation in which I decline to indulge. The General Counsel argues that Local 5 has the burden of showing that the cards obtained by Patton were not among those submitted to Respondent. In this regard I note that Tribuiani's Detective Agency, and not Local 5, is the respondent in this case. I am unaware of any rule of law imposing a burden of proof on one not a party to the litigation. Second, it is axiomatic that the burden of establishing the allegations of the complaint attaches to the General Counsel. In the instant case the General Counsel has alleged unlawful recognition by Respondent because of tainted cards. Nothing in the circumstances of this case convinces me that any reason exists for departing from the principle of law which requires the General Counsel to establish what he alleges. In short the General Counsel has not established that any of the authorization cards submitted to Respondent were tainted. I cannot conclude therefore that either the recognition of Local 5 or the execution of the subsequent collective-bargaining agreement were unlawful and I shall recommend that those allegations be dismissed. 3 Combs testified that Maria Jones came into the office during this conversation. While there is some confusion in the testimony of both Jones and Combs concerning the date of these conversations, an evaluation of the entire record convinces me that both were in attendance and that they took place sometime after the contract had been signed on July 9. The exact date is not material to my findings. 4 The stipulation, as written, does not clearlyv establish that Patton actually obtained any signed authorization cards from employees, only that he solicited them to sign. However, since the briefs of the parties appear to concede it, I shall interpret the stipulation as meaning that Patton actually obtained signed authorization cards from 15 to 20 employees. 1123 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Patton's solicitation of dues-checkoff authorizations The testimony is unrebutted that Patton, at the offices of Respondent, brought employees into contact with a Local 5 representative and that he urged them to sign a document authorizing Respondent to deduct initiation fees and dues from their wages. The authorization signed by Jones is in evidence. It is well established that employees may not be required to execute such checkoff authorizations; such authorizations must be voluntary on the part of the employees. Jo-Jo Management Corp. d/b/a Gloria's Manor Home for Adults, 225 NLRB 1133 (1976); Vic's Shop'N Save, 215 NLRB 28 (1974). Patton's participation in the solicitation and inducement of Jones and Combs to sign the dues-checkoff authorizations constitutes interference with the free choice of employees in this regard and hence violates Section 8(a)(2) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's opera- tion described in section I, above, have a close and intimate 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. THE REMEDY As noted above, I have found that Respondent violated Section 8(a)(2) of the Act by inducing and soliciting employees to sign a card authorizing Respondent to check off dues from their wages. General Counsel urges that the employees should be reimbursed for all dues withheld from their wages. However, reimbursement is not appropriate since the obligation to pay dues is a continuing valid contractual employee obligation under union-security provisions of the contract despite the illegality of the method employed by Respondent. International Union of Electrical, Radio and Machine Workers, Local 601, AFL- CIO (Westinghouse Electric Corporation), 180 NLRB 1062 (1970). CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union and Local 5 are labor organizations within the meaning of Section 2(5) of the Act. 3. Bernard C. Patton is a supervisor within the meaning of Section 2(11) of the Act. 4. Respondent through its supervisor, Patton, solicited employees to sign authorization cards for Local 5, National Federation of Guards, in violation of Section 8(a)(2) of the Act. 5. Respondent through its supervisor, Patton, induced and solicited employees to sign dues-checkoff authoriza- tion cards on behalf of Local 5, National Federation of Guards, in violation of Section 8(a)(2) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommended: ORDER 5 The Respondent, Tribuiani's Detective Agency, Inc., Philadelphia, Pennsylvania, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Soliciting employees to sign authorization cards on behalf of Local 5, National Federation of Guards. (b) Inducing and soliciting employees to sign dues- checkoff authorization cards on behalf of Local 5, National Federation of Guards. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which I find is necessary to effectuate the policies of the Act: (a) Post at its facilities at Philadelphia, Pennsylvania, copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 4, after being duly signed by Respondent's authorized representative, shall be posted by it immediately 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 to ensure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 4, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint herein be dismissed insofar as it alleges violations of the Act other than as specifically found herein. 5 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 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. I In the event that the Board's 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT solicit employees to sign authorization cards on behalf of Local 5, National Federation of Guards. 1124 TRIBUIANI'S DETECTIVE AGENCY WE WILL NOT induce and/or solicit employees to sign dues-checkoff authorization cards on behalf of Local 5, National Federation of Guards. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act. TRBUIANI's DETECTIVE AGENCY, INC. 1125