Professional Security And Guard Services, Inc.

982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Professional Security and Guard Services, Inc. and Union Fraternal de Guardias de Seguridad de Puer- to Rico. Case 24-CA-3663 August 18, 1976 DECISION AND ORDER BY MEMBERS FANNING, PENELLO, AND WALTHER Soto, and by laying off and discharging employee Moises Luciano because of his union activity, and thereafter con- ditioning Luciano's reinstatement upon his disclosure of union adherents among the Company's employees, and by refusing to reinstate Luciano because he declined to make the requested disclosures. The Company filed an answer denying the commission of any unfair labor practices. The parties waived the filing of briefs. Upon the entire record in this case and from my obser- vation of the demeanor of the witnesses, I make the follow- ing: On June 3, 1976, Administrative Law Judge Leo- nard M. Wagman issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Re- spondent filed an answer. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief 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 Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Professional Security and Guard Services, Inc., Mayaguez, Puerto Rico, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE LEONARD M. WAGMAN, Administrative Law Judge. A hearing in the entitled proceeding was held before me on March 23, 1976, at Hato Rey, Puerto Rico, on the com- plaint of the General Counsel against the Respondent, Pro- fessional Security and Guard Services, Inc., referred to hereinafter as the Company. The Acting Regional Director for Region 24 issued the complaint in this proceeding on February 19, 1976, upon a charge, and an amended charge, filed by the Union Fraternal de Guardias de Seguridad de Puerto Rico, referred to herein as the Union. The com- plaint alleged that the Company violated Section 8(a)(1) of the National Labor Relations Act, as amended (29 U.S.C. 151, et seq.), referred to herein as the Act, by interrogating an employee regarding said employee's and other employ- ees' union activity, membership, and sentiment. The com- plaint further alleged that the Company violated Section FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION The Company, a Puerto Rico corporation engaged in providing security guard services, has its principal office and place of business at San Juan, Puerto Rico, and two branch offices at Mayaguez and Ponce, Puerto Rico. In the course and conduct of its business, the Company annually derives gross revenues exceeding $500,000. The Company also annually purchases and causes to be transported and delivered to its places of business goods and materials in excess of $4,000, of which goods and materials in excess of $4,000 are transported and delivered to its place of busi- ness from other enterprises in Puerto Rico, each of which has received those goods and materials directly from States of the United States. I find, and the Company admits, that at all times material herein the Company was an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Company admits, and I find, that the Union Frater- nal de Guardias de Seguridad de Puerto Rico, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act 11 THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. The union campaign I find from employee Moises Luciano's uncontradicted testimony that the Union began a campaign to organize the Company guard employees in September or October 1975.1 The Company concedes, and I find, that on Novem- ber 12 the Union petitioned for certification as bargaining representative of a unit of the Company's guard employees in Case 24-RC-5693. However, the record does not dis- close either the date on which a copy of the petition was mailed to the Company or when the Company received notice of the petition. The Company also concedes, and I find, that on December 8 the Board conducted an election among these employees. The record does not disclose the results of that election. 8(a)(3) and (1) of the Act by discharging employee Luis F. 1 All dates hereafter refer to 1975 225 NLRB No. 147 PROFESSIONAL SECURITY AND GUARD SERVICES 983 2. Moises Luciano 2 The Company hired Moises Luciano towards the end of March as a security guard and employed him in that ca- pacity at the Star Kist pier in Mayaguez until November 2. At the time the Company hired Luciano, a company super- visor, Efrain Quiles, who was secretary and assistant to the Company's Mayaguez area manager, Florencio Lugo, di- rected Luciano to sign five or six documents. The top doc- ument declared Luciano's responsibility for the guard's uniform and badge which the Company issued to him. Quiles held the remaining documents underneath this dec- laration, and rolled them back from the bottom to permit Luciano to sign them without seeing their contents. Thus, Luciano read only the top document regarding his respon- sibility for safekeeping the uniform and badge. Quiles as- sured him that the remaining pieces of papers were copies of the top document. However, unbeknown to Luciano the small pile of documents included a resignation typed in Spanish which incorporated a statement which when trans- lated read: I understand that submitting my resignation has been a decision on my part, without my having been pressed or advised by any official of this company to make this decision.3 Luciano actively assisted the Union. Thus, in September or October, Herbert Ocasio a steward for the Union at another company in Mayaguez , gave Luciano some union authorization cards Luciano solicited and obtained the signatures of fellow company guard employees on the union cards which he then returned to the Union. Thereaf- ter, Luciano came to the Board's office when the Union presented them in support of the November 12 petition. Finally, on December 8, Luciano acted as the Union's ob- server at the Board-held election among the Company's guard employees. On November 2, Area Manager Lugo laid Luciano off with the explanation that there was a lack of work. There- after, on November 15, Luciano received a letter dated November 13 from the Company, addressed to him, which when translated from its Spanish read as follows. We have accepted your resignation as a security guard with this corporation and we wish you the best success in your future employment. The letter was signed "Florencio Lugo, Manager Maya- guez, P.R Area." Upon receiving the Company's letter, Luciano sought out and consulted with Union Steward Ocasio. Immedi- ately, that same afternoon Luciano and Ocasio went to 2 My findings of fact regarding the alleged discrimination against Luciano are based upon his credi ted testimony which, except as noted in footnote below, was contradicted 7 Area Manager Lugo testified to the effect that Luciano executed the resignation letter in Lugo's presence on or about November 13 However, Lugo came to the witness stand with notes written on his hand , and thereaf- ter impressed me as being an evasive and reluctant witness I have therefore rejected his testimony whenever it conflicted with the testimony of Luciano who impressed me as being a more candid witness Manager Lugo's office, where Luciano questioned the con- tents of the letter, which he held as he spoke. Ocasio re- mained at the door to Lugo's office. Luciano asked why Lugo had sent the letter asserting that he, Luciano, had resigned when in fact he had not done so. Lugo replied that work was available for Luciano, but that he, Lugo, "had a problem" which Luciano must help him solve. Luciano agreed to help as much as he could. At this, Lugo asked Luciano to "turn over the list of guards who had signed the union cards," and again remarked that he would provide work for Luciano. When Luciano refused to furnish the requested list, Lugo said the conversation was over and that Luciano was "to guide [himself] by the letter [Luciano] had in his hand." Since November 15, the Company has not reinstated Luciano. 3. Luis F. Soto 4 The Company hired Luis F. Soto as a security guard on January 18. The Company terminated him on November 3. At the time the Company hired Soto, Manager Lugo's as- sistant, Quiles, directed Soto to sign a sheath of six papers, which included a resignation statement exactly similar to that signed by Luciano. In obtaining Soto's signature, Quiles employed the same procedure as described in my findings of fact regarding Luciano. Thus, Soto was un- aware that he had signed the resignation statement until confronted with the document at the instant hearing. Under Lugo's supervision , Soto worked as a guard at various locations until May. Thereafter, until his discharge, the Company stationed Soto at one location . During the first week of October, Soto received six union cards for solicitation of employee signatures Soto gave each of the cards to a company guard. At the same time, Soto distrib- uted a union leaflet to fellow guards at his place of employ- ment. On Sunday, November 2, Assistant Quiles came to Soto's home and requested him to work at the Star Kist gate from 1 p.m. until 9 p in. that same day. Although Sunday was normally a day off for Soto, he went to the Star Kist gate where he worked until 9:15 p.m that eve- ning. At that point, he phoned Manager Lugo to report that the relief guard had not appeared, and that he, Soto "was not feeling very well." Lugo instructed Soto to remain at his post a short while longer in the hope that the relief guard would arrive shortly. The relief guard did not appear. At about 10.05 p.m., Soto telephoned Lugo and reported the situation. Lugo told Soto to station Mr. Segundo Perez, a roving guard, on his post and take a lunchbreak. Soto followed Lugo's in- structions . Upon returning from lunch at about 10 . 50 p.m., Soto found that another guard had replaced Segundo Per- ez. The relief guard told Soto to report to Lugo's office on the following day. On the morning of November 3, Soto reported to Lugo's office, where he met Lugo and Quiles. Quiles told Soto he was discharged because he had abandoned his post. There- after, on March 15, for the first time, while at the Board's Regional Office in Hato Rey, Puerto Rico, Soto saw his 4 My findings of fact regarding the alleged discrimination against Soto are based upon his uncontradicted testimony 984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signature on a resignation statement, dated November 5, which bore the same language as that which I have de- scribed in connection with the alleged discrimination against Moises Luciano. B. Analysis and Conclusions 1. Moises Luciano The General Counsel contends that the record shows the Company laid off Moises Luciano on November 2 because of his union activity, and thereafter discharged him on No- vember 13 for the same reason The Company denies these allegations and argues that Luciano resigned. Initially, I find that the written resignation upon which the Company bases its contention was obtained under conditions which rendered it nugatory. I also find that Luciano did not otherwise evidence an intent to resign from the Company's employ. Having already found that the Company laid Lu- ciano off on November 2, I now find that the Company's November 13 letter to him amounted to a discharge. The remaining questions go to the Company's motive for laying off and then discharging Luciano. I find no evidence to show that the Company suspected or became aware of Luciano's union activity prior to No- vember 15. There has been no showing that the timing of either the November 2 layoff or the November 13 dis- charge is connected with Luciano's union solicitations. Nor can I find a coincidence in time between the November 13 letter and the Company's receipt of information regarding the Union's petition. Luciano's credited testimony shows only that he conducted his solicitation on behalf of the Union at some time in September and October. Further, there has been no showing that either Lugo or Quiles ques- tioned Luciano about the Union's election campaign among the Company's employees prior to November 15. Finally, there has been no suggestion that any company supervisor observed or could have observed Luciano's union activity, or that Luciano conducted his solicitation in such circumstances that the Company was likely to learn of it prior to November 15. Thus, the General Counsel has failed to supply an element essential to showing that an unlawful motive precipitated Luciano's November 2 layoff and his November 13 discharge. Accordingly, I shall rec- ommend dismissal of those portions of the complaint which alleged that the layoff and discharge were violative of Section 8(a)(3) and (1) of the Act. In contrast, the General Counsel's further allegations that the Company violated Section 8(a)(1) and (3) of the Act by its conduct toward Luciano on November 15 are amply supported by the record evidence. Thus, as I have found, Area Manager Lugo asked Luciano to disclose the names of those of his fellow employees who had signed union cards and offered to reward Luciano with reinstate- ment. When Luciano refused, Lugo withdrew the proffered employment. By pressing Luciano for the names of union supporters, Lugo provided convincing evidence of the Company's certainty or strong suspicion that Luciano was a union supporter. Further, I find that Lugo's attempt to extract information from Luciano regarding the identity of other union supporters coerced Luciano in the exercise of his statutory right to support the Union and thereby violat- ed Section 8(a)(1) of the Act. The incident also reveals the Company's union animus. For, when Luciano refused to supply the requested information, Lugo revoked his job offer. In sum, the General Counsel presented convincing evidence to support the allegation that the Company re- fused to reinstate Luciano because he refused to disclose which of his fellow employees were union adherents. The Company has wholly failed to provide lawful excuse for its failure to reinstate Luciano. Indeed, the Company offered no evidence which would cast doubt upon the in- ference of unlawful motive flowing from the General Counsel's case. Therefore, I find that by denying Luciano reinstatement in the circumstances recited above, the Com- pany violated Section 8(a)(3) and (1) of the Act. 2. Luis Soto The General Counsel urges that Soto's discharge on No- vember 3 was in reprisal for his union activity. The Com- pany seeks to escape a finding of unlawful discharge by pointing to Soto's signature on a resignation statement dat- ed November 5. As in the case of Luciano, I find that circumstances surrounding the placement of Soto's signa- ture on the resignation form deprive it of any value as evidence that Soto intended to resign from the Company's employ. In any event, I have found that the Company dis- charged Soto on November 3, 2 days before the effective date of Soto's purported resignation. The remaining ques- tion is why did the Company discharge Soto. My suspicion is aroused by the apparent pretext-i.e., abandoning his post on November 2, which the Company used to justify the discharge of Soto, a union activist, and the Company's apparent willingness to engage in unlawful conduct to combat the Union when it refused reinstate- ment to Luciano 12 days later However, the record will not sustain the inference that the Company was motivated by knowledge or suspicion of Soto's union activity or prounion sentiment. There has been no showing that the Company questioned Soto as to his role in, or sentiment toward, the Union's campaign. There is no evidence that any member of company man- agement observed Soto soliciting signatures on union cards, or handing out union propaganda. Nor do the cir- cumstances, as set out in the facts, warrant a finding that the Company was likely to know or suspect that Soto sup- ported the Union. Finally, I note that Soto's union activity occurred I month prior to his discharge. Such a time gap suggests that there was no connection between Soto's union activity and the Company's decision to discharge him. In sum, I find that counsel for the General Counsel has failed to sustain her burden of showing by a prepon- derance of the evidence that Soto was discharged for union reasons. Accordingly, I shall recommend dismissal of the allegations that Soto's discharge was violative of Section 8(a)(3) and (1) of the Act. Upon the foregoing findings of fact and the entire re- cord, I make the following. PROFESSIONAL SECURITY AND GUARD SERVICES 985 CONCLUSIONS OF LAW 1. Professional Security and Guard Services, Inc., is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Union Fraternal de Guardias de Seguridad de Puerto Rico is a labor organization within the meaning of Section 2(5) of the Act. 3. By unlawfully interfering with, restraining, and coerc- ing employees as found herein, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By refusing to reinstate employee Moises Luciano, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY The recommended Order will contain the conventional provisions in cases involving findings of interference, re- straint, coercion, and unlawful discharges, in violation of Section 8(a)(1) and (3) of the Act. This will require the Company to cease and desist from the unfair labor practic- es found, to offer reinstatement with backpay to Moises Luciano, and to post a notice to that effect. In accordance with the usual requirements, reinstatement shall be to the employee's former position or substantially equivalent po- sition, without prejudice to his seniority and other rights and privileges. The discriminatee, Moises Luciano, shall be made whole for any loss of earnings he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned from the date of the initial discrimina- tion to the date he is offered reinstatement by the Compa- ny, less net earnings, if any, during such period, to be com- puted in the manner prescribed in F W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heat- ing Co, 138 NLRB 716 (1962). The unfair labor practices committed by Respondent strike at the very heart of employees' rights safeguarded by the Act. I shall therefore place Respondent under a broad order to cease and desist from in any other manner infring- ing upon the rights of employees guaranteed in Section 7 of the Act. N.L.R.B. v. Entwistle Manufacturing Company, 120 F.2d 523, 536 (C.A. 4, 1941). Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS The Respondent, Professional Security and Guard Serv- ices, Inc., Mayaguez, Puerto Rico, its officers, agents, suc- cessors, and assigns, shall: 1 Cease and desist from: (a) Discouraging membership in, support for, or activi- ties on behalf of Union Fraternal de Guardias de Seguri- dad de Puerto Rico, or any other labor organization, by discriminating in any manner against any of its employees in regard to their hire and tenure of employment, or any term or condition of employment, because of their union membership, sympathies, or activities (b) Questioning employees about their and other em- ployees' membership in, activities on behalf of, and sympa- thies in and for Union Fraternal de Guardias de Seguridad de Puerto Rico, or any other labor organization. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self- organization, to form, join, or assist labor organizations, including Union Fraternal de Guardias de Seguridad de Puerto Rico, to bargain collectively through representa- tives of their own choosing, to engage in concerted activi- ties for the purposes of collective bargaining or other mutu- al aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action, which I find will effectuate the policies of the Act: (a) Offer Moises Luciano immediate and full reinstate- ment to his formerjob or, if his position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for such loss of pay as he may have suffered as a result of the Respondent's discrimination against him, in the manner set forth in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports and all other records neces- sary or useful to an analysis of the amounts of backpay due under the terms of this Order. (c) Post at its guard posts and office in Mayaguez, Puer- to Rico, English and Spanish copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms pro- vided by the Regional Director for Region 24, after being duly signed by an authorized representative of the Compa- ny, shall be posted immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. The Company shall take reasonable steps to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 24, in writ- ing within 20 days from the date of this Order, what steps have been taken to comply herewith. 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 6In 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" 986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IT IS ALSO ORDERED that the complaint be dismissed inso- far as it alleges violations of the Act not specifically found. 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 sides had the chance to give evidence, the National Labor Relations Board found that we violated the National Labor Relations Act, and ordered us to post this notice and to keep our word what we say in this notice. The law gives you the right: To form, join, or help unions To choose a union to represent you in bargaining with us To act together for your common interest or pro- tection To refuse to participate in any or all of these things. The Board has ordered us to promise you that: WE WILL NOT interrogate you regarding your and other employees' membership in, activities on behalf of, and sympathy for Union Fraternal de Guardias de Seguridad de Puerto Rico , or any other labor organi- zation. WE WILL NOT interfere with your rights. The Board found that we violated the law because we re- fused to reinstate Moises Luciano because he supported the Union Fraternal de Guardias de Seguridad de Puerto Rico. Accordingly, WE WILL offer Moises Luciano rein- statement to his former job or to a job substantially equivalent, without prejudice to his seniority or other rights and privileges , and WE WILL make him whole, with interest at the rate of 6 percent per annum, for any loss of pay he may have suffered because we dis- charged him. PROFESSIONAL SECURITY AND GUARD SERVICES, INC.