Top Security Patrol, Inc.

46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Top Security Patrol, Inc. and Daniel Gray, Kenneth R. Puree, and Joseph Carroll. Cases 8-CA-9630, 8-CA-9641 and 8-CA-9685 September 20, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On June 10, 1976, Administrative Law Judge Rob- ert E. Mullin issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief.' 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, Top Security Patrol, Inc., Cleveland, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the rec- ommended Order. ' Respondent's request for oral argument is hereby denied as the record, the exceptions, and the brief adequately set forth the issues and positions of the parties DECISION STATEMENT OF THE CASE ROBERT E. MULLIN, Administrative Law Judge: This case was heard on April 6 and 7, 1976, in Cleveland, Ohio, pur- suant to charges duly filed and served,' and a consolidated complaint which issued on January 13, 1976. The com- plaint presents questions as to whether the Respondent vio- lated Section 8(a)(1) and (3) of the National Labor Rela- tions Act, as amended. In its answer, duly filed, the Respondent conceded certain facts with respect to its busi- ' The charge in Case 8-CA-9630 was filed on November 24, 1975, in Case 8-CA-9641 on November 28, 1975, and in Case 8-CA-9685 on December 15, 1975 ness operations, but it denied all allegations that it had committed any unfair labor practices. At the hearing both the General Counsel and the Re- spondent were represented by counsel. All parties were af- forded full opportunity to be heard, to examine and cross- examine witnesses, to introduce relevant evidence, and to file briefs. Both counsel presented oral argument at the close of the hearing, but did not submit briefs.' A motion to dismiss, made by the Respondent, is disposed of as ap- pears hereinafter in this Decision. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, an Ohio corporation with its principal place of business located in Cleveland in that State, is en- gaged in providing private security services. Annually, in the course and conduct of its business, the Respondent provides services valued in excess of $50,000 for business enterprises located within the State of Ohio, each of which enterprises meets a Board jurisdictional standard on other than an indirect inflow or indirect outflow basis. Upon the foregoing facts the Respondent concedes, and it is now found, that Top Security Patrol, Inc., is engaged in com- merce within the meaning of the Act. It. THE LABOR ORGANIZATION INVOLVED Private Police and Security Guards Local Union No. 57, AFL-CIO (herein Union or Local 57), is a labor organiza- tion within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts The Respondent operates a small, but expanding, private security patrol service in the Cleveland area.3 In May 1975 4 Daniel Gray, a patrolman on the staff, talked with several of the employees with a view to organizing a union. Shortly thereafter, President Liephart and General Manag- er Ronald Orlowski called Gray to the company office where the two officials interrogated Gray as to why he wanted to organize the employees. According to Gray, 2 On May 10, 1976, the General Counsel submitted a motion to amend transcript wherein he proposed a total of 144 corrections of the stenographic record of the hearing The Respondent having voiced no objections to the aforesaid motion, a review of the transcript having disclosed numerous er- rors therein, and there appearing to be merit to this motion, it is now grant- ed and the record is corrected in accordance therewith 7 President and principal stockholder is Roger Liephart, a young man, 33 years of age at the time of the hearing On the eve of his graduation from high school, some 15 years ago, he suffered a broken neck in a trampoline accident at his high school gymnasium which rendered him a paraplegic The story, related only briefly on the record, of his subsequent recovery to the point where , from a wheelchair, he could be self-sufficient and then, at the age of 26, establish his own security business which, by the time of the hearing had 50 regular and part-time employees , is a remarkable saga of determination, initiative, and business acumen All dates hereinafter are for 1975 unless specifically noted otherwise 226 NLRB No. 15 TOP SECURITY PATROL, INC. 47 whose testimony was credible and undenied, after ques- tioning him as to the reasons for his interest in a union and as to whether he was happy with his job, Orlowski finally promised that "if I would quit talking about the union, everything would be fine and I could work with no prob- lems." With that understanding Gray agreed that he would discontinue all further organizational efforts. For several months thereafter Gray adhered to his promise and en- gaged in no other attempt to unionize the work force. Em- ployee Joseph Carroll testified, credibly and without con- tradiction, that, on one occasion during that period, both Liephart and Orlowski described Gray as "one of the bet- ter security officers." In October, however, Gray again became interested in a union and he, and Carroll set up a meeting with representa- tives of Local 57. Employee Thomas F. Sauer testified that early in November he was in the company office when Liephart and Orlowski were discussing the resurgent union campaign. According to Sauer, he heard Liephart say to Orlowski, "with regard to this union thing, it's going to bust the company wide open" and then, as he entered the office, Liephart asked, "What's with Joe [Carroll] and this Union?" Sauer testified that, in -response to this question, he disclaimed any knowledge of Carroll's union activities and commented that the latter was interested in a private police association. According to Sauer Liephart then said, as to such an organization, "Well, it is still a union." Employee Kenneth Puree testified that about November 2 he had a conversation with Sergeant Ronald Collins about organizing a patrolmen's association or a union and that Collins expressed his opposition to the proposal for a union among the Respondent's employees. Puree then asked that Collins not repeat the conversation that they had on the subject and the latter assured him that he would not. The next,day, however, President Liephart had Puree report to his office and while there he interrogated Puree about his interest in organizational activities. Puree testi- fied that, in response to the questions of the Respondent's president, he acknowledged that Carroll, Gray, Abner, and Cameron were involved in the union campaign along with him. According to Puree, Liephart then told him that the employees should discontinue these activities and that if they did not they "would be out the door," that "we would be fired if we talked union ... [and] if we continue to organize the patrolmen." Puree testified that the next time he saw Collins, the latter disclaimed having been an infor- mant, that Collins reiterated that if Puree continued to be identified with the Union "you will be out the door or fired." Collins denied that he ever told Puree that he would be discharged for engaging in union activities, but he did not deny or contradict any of the other testimony which Puree gave about their discussions. Liephart was asked no questions about this conversation when he was on the stand. Puree's testimony as, to his exchange with the Respondent's president is, therefore, undenied. Since Puree was a credible witness as to this phase of his testimony, it is now found that the conversations with both Collins and Liephart took place in substantially the manner that he related.' 5 The quotations in the foregoing paragraph are from Puree's testimony On or about November 12, employee Carroll was sum- moned to the Respondent's office where both President Liephart and General Manager Orlowski interrogated him as to his union activities. According to Carroll, Liephart opened the meeting by stating that he had heard "through the grapevine" that, Carroll was "instigating a movement ... to get°a union in and he would -not allow it . . . he would go into bankruptcy first." When questioned as to why he wanted a union Carroll told them that it'was be- cause he wanted a raise and because of dissatisfaction with certain working conditions, among them being a complaint about Ronald Collins who had recently been promoted to sergeant. Carroll recited how Collins had boasted before his promotion that while working at one of their assign- ments, an apartment house known as Horizons West, he only worked about 10 minutes an hour in making his rounds and that he spent the rest of the time in the apart- ment of a girl friend who lived there. Orlowski's response to Carroll's recitation of complaints was to tell him "I think you are putting your nose where it doesn't belong" and then to declare that if Carroll did not like the working conditions he should leave. At this point, Liephart told the employee that he had discussed the union problem with other security companies and that they had assured him of their full support so that Carroll would not get a job with any of them. Carroll then asked if the Respondent had already blackballed him. Before he received a direct an- swer to this question, Orlowski told him, "Joe, you are fired." Carroll protested that under the Taft-Hartley Law, he could not be fired for such a reason. Orlowski then said, " ... well, you are suspended." Carroll asserted that this action was likewise a violation of Taft-Hartley. Orlowski did not pursue this issue further, other than to tell the em- ployee, "We will get you for causing dissent and unrest among the troops . . . dissent between Top Security man- agement and personnel." Before concluding the conversa- tion Orlowski told Carroll that he wanted him to work for the Company and against the Union. Carroll, however, gave no assurances that he would do so. At this time it was common practice for the patrolmen to ride to and from assignments in a cruiser car with a co- worker. Before the meeting ended both Liephart and Or- lowski told Carroll that they did not like this practice, which they characterized as the "buddy system," because they felt that it did not promote loyalty to the Company, that they intended to break it up, and that henceforth the patrolmen were not to ride with other members of the force in the cruisers. Thereafter, Carroll never again was permit- ted to ride with another patrolman .6 On the afternoon of November 18, about eight of the Respondent's employees met at the union hall of Local 57. Among those present were Gray and Carroll and their col- 6 The foregoing findings, and all the quotations in this paragraph, are from Carroll's testimony. His account was neither denied nor contradicted by either Liephart or Orlowski Liephart testified at some length, but was asked no questions as to this incident. Orlowski, although present at counsel table throughout most of the hearing, was never called as a witness for the Respondent Carroll was a credible witness In view of this conclusion and the fact that the Respondent offered no contradictory testimony as to this particular meeting it is now found that Carroll's testimony presented a sub- stantially accurate account of the event in question 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD leagues,,.Kenneth Puree, Mack Cameron, James Abner, and Thomas Sauer. The meeting lasted, until about 44:30 p.m. Sauer testified that as the employees left the meeting they found General Manager Orlowski's car parked on the other side of the union hall. . Subsequent to the meeting Gray was to report for duty at 5:30 p.m.,He failed to arrive at his post at the Auburn Bakery on schedule, thereby giving rise-to a sequence of events that resulted in his discharge, according, to the Gen- eral Counsel, in violation of the Act, but according to the Respondent for cause. That issue will be discussed later herein. On the morning of November 19 Gray was in Liephart's office to discuss a mistake on his pay slip. Gray testified that while he was there Liephart told him that he knew that Gray and Carroll were close friends and that he knew that the two of them were spearheading a movement to start a union. According to Gray, Liephart then told him that he knew that there had been a union meeting the day before and that Gray was in attendance. Gray protested that he had not been at any such meeting the day before and that he had been tardy because he had had car trouble in get- ting to his assignment. Liephart concluded their discussion with the statement that because Gray, had been late in re- porting to work the day before there would have to be some disciplinary action._ That afternoon Captain Ray- mond Marlowe 7 told Gray that he had been suspended indefinitely and that Liephart would notify him as to the time when a hearing would be held on his case. Later that day employee Abner had a conversation with Sergeant Paul Sias, another supervisor in the Respondent's organiza- tion, during which he asked Sias about Gray's suspension. When Abner inquired whether that action had resulted from Gray's having been late for work the preceding day, Sias answered in the affirmative and then added that Gray had been suspended not only for that reason but also, "for messing around', with that damn old union." b Abner testified that on November 21 he overheard a conversation between Liephart and Marlowe in which the latter referred, to what he described as Gray's "antics" and said that he was going to fire him. According to Abner, later he asked Marlowe what he had meant by this refer- ence to Gray and Marlowe explained that Gray was again involved in the activity which he "had started . . . once before a few months back," and that "he was gonna walk in, and fire Dan ", Abner testified that 2 or 3 days later, in another conversation with Marlowe, the supervisor re- ferred to both Gray and Puree as "the instigators of this ... trying to form a union." 9 7 The Respondent conceded in its answer that Captain Marlowe, Sergeant Ronald Collins, and Sergeant Paul Sias, as well as Liephart and Orlowski, were supervisors within the meaning of the Act 8 Sias denied that he had made such a statement to Abner However, Abner was a plausible witness throughout his appearance on the stand and it is my conclusion that as to this exchange he was more credible than Sias All of the findings set forth above are based on the credible, undenied testimony which, in the text, is attributed to Abner, Carroll, Gray, and Sauer. The conversation which Gray had with Liephart on November 19 is covered in greater detail, infra That portion related above is based on so much of Gray's account of that exchange which Liephart did not deny or contradict when he was on the stand 9 Marlowe was on the stand briefly, but was asked no questions as to this conversation Employee Puree testified, credibly and without contra- diction, that on or about November 21 both Liephart and Orlowski interrogated him on ,the subject of the Union in the Respondent's office. According to Puree,,Orlowski re- minded him that his tenure was very unstable because of an earlier incident while Puree was working for the Re- spondent and that, if anyone was. dismissed,, Puree would be the first to go- Puree testified that Liephart then told him that he knew that Puree was "organizing the troops and I would stop it' or I would be dismissed . . . he didn't want any more union activity and no more organizing of the troops." At the hearing Liephart was asked no ques- tions as to this particular meeting, and, as noted earlier, Orlowski did not testify. Since Puree was credible, it is now found that this incident occurred substantially as he de- scribed. it.10 According to employee Abner, on or about November 13, President. Liephart asked him- if he had heard anything about a union being organized and that he responded in the negative: Abner further testified that, on November 26 while in Liephart's office, the latter again questioned him about his union activities and when Liephart asked wheth- er he had signed an authorization card he again denied that he had done so." Employee Mack Cameron testified that, on or about No- vember 23, Liephart telephoned him and asked whether Cameron had signed an authorization card. Cameron testi- fied that before he could respond Liephart said, "I know you signed a union card." According to Cameron he then said to the president, "If you know, why are you asking?" and -Liephart responded, "Because, I am not going to let a union come into my company. If I have to ,I will let my company slide into receivership and sell Amway Prod- ucts." 12 Cameron's testimony was credible and it was nei- ther denied nor contradicted by the Respondent's presi- dent when he was on the stand. On or about November 26,the Respondent announced two new personnel requirements. One was that the employ- ee probationary period was being) extended, effective im- mediately, from 6 to 12 months. Each employee was asked to sign an acknowledgement of the new provision. Prior to that time an employee, who was dismissed or suspended, was accorded a hearing on the adverse action as a matter of right. This assurance was removed by the new rule on probations so that thenceforward the matter of a hearing on suspensions and, dismissals was no longer guaranteed. Each employee was required to sign an acknowledgement which read, in relevant part, as follows: If I am suspended or dismissed, I understand that I may request a "hearing" but, that management is un- der no obligation to give me "hearing." At that time most, if not all, of the principal union advo- cates had substantially less than 1 year of experience with the Respondent and, under the new rule therefore, would 10 The quotations in the above paragraphs,are from Puree's testimony. 1 Abner's testimony, as set forth above, was credible and it was in no way denied or contradicted by Liephart when the latter was on the stand. 12 This was a reference to another business activity in which Liephart and his wife were engaged TOP SECURITY PATROL, INC. 49 have only the status of probationary employees for several additional months.13 On the same day that the Respondent announced that the probationary period was being extend- ed it also notified the employees that any new job appli- cants would have to sign an authorization whereby the Company could require a polygraph examination, or any other testing procedure it chose to use, in examining the honesty, ability, attitude, work, and health habits of each employee.14 B. Findings and Conclusions with Respect to the Alleged Violations of Section 8(a)(1) On the basis of the foregoing facts, it is now found that the Respondent interfered with, coerced, and restrained its employees in violation of Section 8(a)(1) of the Act by the following conduct of President Roger Liephart: (1) His in- terrogation, early in November, of employee Sauer as to the union activities of employee Carroll; (2) his interroga- tion, on or about November 3, of employee Puree as to Puree's union sympathies and those of his coworkers, and his threat, voiced to Puree, that unless organizational activ- ities were discontinued the employees involved "would be out the door" and that "we would be fired if we talked union'"; (3) on or about November 12, his statement to employee Carroll that he had heard "through the grape- vine" that Carroll was "instigating a movement ... to get a union in and he would not allow it ... he would go into bankruptcy first"; (4) on or about November 19, by telling employee Gray that he knew that there had been a union meeting the previous day and that Gray had been in atten- dance, and by telling Gray that he knew that both Gray and Carroll were spearheading a movement to organize a union, thereby giving the impression that the Respondent was engaged in unlawful surveillance of its employees' or- ganizational efforts; (5) on or about November 21, by in- terrogating employee Puree about his union activities and then telling the employee that there was to be no more "organizing [of] the troops" that Puree was to stop it or he "would be dismissed . . . he didn't want any more union activity and no more organizing of the troops"; (6) on No- vember 13 and 26, by interrogating employee Abner about union activities among the employees and whether Abner had signed an authorization card; (7) on or about Novem- ber 23, by telephoning employee Cameron to ask whether Cameron had signed an authorization card and then telling the employee "I know you signed a union card," thereby giving the impression of surveillance of employee union activities; and (8) during the same conversation by telling that employee "I am not going to let a union come into my company. If I have to, I will let my company slide into receivership and sell Amway products....." 15 13 All of the six employees who testified in this case were hired subsequent to January 1975. Thus, Abner, Carroll, and Sauer were hired in February, Gray in March, Cameron in May, and Puree in July 14 Employee Carroll testified, credibly and without contradiction, that be- fore the foregoing changes were announced on November 26 an employee had a right to a hearing in the event of his suspension or dismissal , provided he made the request in writing, and that prior to that time the Respondent had no requirements for he detector or polygraph testing for the purpose of ascertaining the honesty or veracity of its employees The Respondent further violated Section 8(a)(1) by the conduct of Sergeant Paul Sias, on or about November 19, when he told employee Abner that Gray had been sus- pended for being late for work "and for messing around with that damn old union;" by the conduct of Captain Raymond Marlowe in a conversation with employee Ab- ner on November 21, in referring to what he described as Gray's "antics," whereby Gray was again involved in what "he had started . . . once before a few months back," an obvious reference to Gray's abortive union effort the pre- ceding May, and then adding that the Respondent was going to fire that employee; and by the action of Sergeant Ronald Collins, during a conversation with Puree early in November, during which he threatened that if Puree and his coworkers did not discontinue their union activities they "would be out the door" and "would be fired if [they] talked union ... [and continued] to organize the patrol- men." The Respondent also violated Section 8(a)(1) of the Act by the following conduct of General Manager Raymond Orlowski: (1) On or about November 12, by interrogating employee Carroll as to his union activities, telling the em- ployee that if he did not like the working conditions he should leave, then telling the employee that he was sus- pended and fired and when Carroll pointed out that this action would violate the Taft-Hartley Act, then declaring to the employee "We will get you for causing dissent and unrest among the troops ...,dissent between Top Security management and personnel"; and (2) on or about Novem- ber 21, by interrogating employee Puree, along with Presi- dent Liephart, about that employee's union activities and at the same time warning Puree that in the event anyone was laid off Puree would be the first to go. At the meeting which Orlowski and Liephart had with employee Carroll on November 21, the Respondent's offi- cials told the employee that they felt that the practice whereby patrolmen frequently rode with coworkers in cruiser cars, characterized by them as the "buddy" system, did not promote "loyalty" to the Company and-that there- after it would be forbidden. As a result, Carroll never again was allowed to ride with another patrolman. Under the circumstances present here, it is apparent, and it is now found, that this action as to Carroll was taken for the pur- pose of limiting his contacts with fellow workers and to lessen the prospects for employee discussion of union or concerted activities. Consequently, this work rule must be, and it now is, held discriminatory and a violation of Sec- tion 8(a)(1). M.S.P. Industries, Inc., d/b/a The Larimer Press, 222 NLRB 220 (1976). On November 26 the Respondent extended the proba- tionary period for all employees from 6 months to 12 months and also eliminated the right of any employee to secure a hearing from the management on a suspension or 15 The Respondent was in severe financial straits at the time of the organi- zational campaign and from data produced at the hearing it appears that for the year ending October 31, 1975, the Company had a net loss of over $16,000. Nevertheless, Liephart's declaration that in order to keep a union out he would let his company "slide into receivership" was not "a reason- able prediction based on available facts" (N L.R.B. v Gissel Packing Co., Inc, 395 U.S. 575, 618-619 (1969) ), but was a threat "of economic reprisal to be taken solely on his own volition" N L.R B. v. River Togs, Inc, 382 F.2d 198, 202 (C.A. 2, 1967) 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge. That same day, it announced a new requirement making it mandatory that job applicants agree that the Company could use polygraphs or any testing procedure it chose to ascertain,, inter alia, the employees' attitude. In view of the background whereby, for a period of almost a month, the Respondent had engaged in a continuing series of incidents in which it had interfered, restrained, and coerced the employees as to their statutory right to engage in concerted or protected activity, it is now found that, under the circumstances present here; the Respondent had a discriminatory objective in introducing the use of lie de- tectors in the hiring process. Consequently, this action is also found to have violated Section 8 (a)(1) of the Act. C. The Alleged Violations of Section 8(a)(3); Findings and Conclusions with Respect Thereto 1. Gray Daniel Gray was hired as a patrolman in, March. In May he became interested in securing a union for the Respon= dent's employees but, as found above, President Liephart and General Manager Orlowski dissuaded him from con- tinuing his organizational efforts, with Orlowski promising him that if he "quit talking about the union , everything would be fine and [Gray ] could work with no problems." For about 5 months subsequent to that time, Gray re- frained from any further attempts at organizing his co- workers. During the summer of 1975, in conversations with employee Carroll, both Liephart and Orlowski character- ized Gray as "one of [their] better security officers." In mid-October, Gray and Carroll contacted a represen- tative of Local 57. Thereafter, he and Carroll solicited the employees to sign authorization cards and arranged for a meeting of all the Respondent's employees at the union hall on November 18. The union meeting lasted until about 4:30 p.m. Gray was scheduled to report for work at the Auburn Bakery at 5:30 p .m. that day. He failed to arrive on schedule and did not reach the bakery until 6 : 30 that evening. Captain Raymond Marlowe came ;up to the, scene as Gray arrived and, in explanation of his tardy appear- ance, Gray told his superior that he had run out of gas when driving to work. Liephart testified that by the following day, when he talked with Gray, he had learned that the employee had not run out of 'gas as he had reported, but that "he and a number of other fellows was at a meeting." It has already been found that during this same conversation Liephart told the employee that he knew that Gray and Carroll were spearheading a, drive to organize the employees, and that rather than have a union 'he would let the Company go bankrupt. At the hearing in the present case Liephart ac- knowledged that at the time "We knew he [Gray] was a union activist." That afternoon Captain Marlowe told Gray that he had been suspended indefinitely. That same afternoon, Ser- geant Paul Sias told employee Abner that Gray had been suspended for being late for work "and for messing around with that damn old union." On November 21, in a coiiver- sation with employee Abner, Captain Marlowe referred to Gray as having become involved again in the activity which Gray had started once before, an obvious reference to Gray's organizational efforts the preceding May, and that "he was gonna walk in and fire -Dan." A short while later, in another conversation with Abner, Marlowe re- ferred to Gray -and Kenneth Puree as the "instigators of this .. . union." On November 23, the Respondent held a hearing on. Gray's suspension at which Liephart, Orlowski,- Marlowe, Sias, and Collins were in attendance . Gray was asked the reason for his tardy appearance at the Auburn Bakery on November 18 and he repeated the story he had originally told; namely, that his car had run out of gas and delayed his arrival. At the end of the hearing he was informed that the Respondent was terminating him, effective at once. At the hearing in the instant-case, President Liephart testified that the Auburn Bakery job was a new account that had just been secured and that November 18 was the first day that a Top Security Patrol was to be stationed there. According `to Liephart, it was, therefore, exceedingly embarrassing when Gray failed to appear on schedule and that, as a result he was very fearful that a customer would be lost because of Gray's tardiness. Liephart's testimony as to November '18 being the critical first day of servicing the Auburn Bakery, however, was not corroborated by any other testimony or evidence which.the-Respondent offered. Moreover, on rebuttal the General Counsel established that, contrary to Liephart's testimony, the Respondent's time records indicated that the Respondent started its pro- tective service at the Auburn Bakery on November 17, rather than November 18. It was also stipulated by counsel that, on four separate occasions after November 18, three different patrolmen assigned to the Auburn Bakery job were tardy for periods from 15 to 90 minutes but that none of them was ever disciplined.16 Several employees 17 testified to various occasions when either they, or their colleagues, had been late for work and had never been disciplined. It is evident that before Gray's termination the Respondent' had no rule which provided that tardiness was to be penalized with the sanction of im- mediate 'dismissal. At the hearing, Liephart testified that before the decision was made in Gray's case he and Mar- lowe had discussed other complaints about Gray including the alleged misuse of a radio telephone for personal calls and the wasting of official duty time at a restaurant where, purportedly, Gray had a girl friend who was ' a waitress. It did not appear, however, that these charges were ever brought to Gray's attention . It is my conclusion that the latter complaints were afterthoughts on the Respondent's part and had no connection with Gray's discharge. On the basis of the foregoing findings , particularly, the Respondent's extreme antipathy to the Union, its knowl- edge that Gray was, as Captain Marlowe described it, one of the "`instigators," and Liephart's charge that Gray and Carroll were spearheading a drive to organize the employ- ees, the fact that Gray had a good work record and during the summer had been described by both Liephart and Or- 16 These were Edmond D. Staggs, Sr, on December 19, Jay Wyatt on January 5 , 1976; J. Farnsworth on January 7, 1976; and Jay Wyatt on January 16, 1976 17 James Abner , Thomas Sauer , and Kenneth Puree TOP SECURITY PATROL, INC. 51 lowski as one of their better security officers, and the dis- crepancies in Liephart's testimony about the Auburn Bak- ery job as having started on November 18 when Gray was scheduled to report for work, whereas the fact was that the service had begun on the preceding day, it is now found that the reason given by the Respondent for Gray's termi- nation was a pretext and that the real motive was Gray's indentification with the union campaign. Consequently, it is now found that Gray's dismissal was discriminatory and a violation of Section 8(a)(3) and (1) of the Act. 2. Puree Kenneth Puree was hired as a patrolman and investiga- tor in July. He was terminated on November 25, according to the General Counsel for discriminatory reasons, but ac- cording to the Respondent for cause. Puree did not have an unblemished employment record. In August he had been involved in an incident which caused the Respondent to discharge him,18 but, after Puree secured counsel and ap- pealed to Liephart, the latter reemployed him in September and placed him on what Liephart characterized as "strict probation." Puree, along with Gray and Carroll, was active in the organizational campaign among the Respondent's patrol- men and investigators. He credibly testified that by mid- November he had secured authorization cards from four of his coworkers. Early in November, as has been found earli- er herein, he was warned by President Liephart that he and his colleagues should stop their organizing activities and that if they did not, they would be fired "if [they] talked union" and if they "continue[d] to organize the patrolmen ...." The next day, Sergeant Collins, his immediate supe- rior, cautioned him that if Puree persisted in his organiza- tional activities he would be "out the door or fired." Puree was at the union meeting on November 18. On or about November 21, he was called into Liephart's office, where the Respondent's president and General Manager Orlowski had another discussion with him about his union efforts. As has been found, supra, at that time Liephart charged him with "organizing the troops" and told him that he should stop this activity or be dismissed. Liephart "didn't want any more union activity and no more organiz- ing of the troops." Orlowski was even blunter in reminding Puree that he was on a very rigid probation since being reemployed and that, in case of any retrenchment, Puree would be the first one to be dismissed. During this period, Puree was on patrol duty at an apart- ment house known as Horizons West. About 4 a.m. on the night of November -22-23, Puree observed Sergeants Sias and Collins in the building. When detected by Puree, they told him that they merely happened to be in the area and had come inside to get warm. On November 25, Liephart called Puree to his office is On or about August 2, Puree had intervened in a domestic argument which, by coincidence, he noticed while returning to the company head- quarters with employee Gray During the course of his officious interven- tion at the scene of what Appeared to be a husband and wife quarrel, and while endeavoring to apprehend the husband, Puree discharged his pistol in the air. Gray wrote a very critical report on Puree's conduct- and immedi- ately thereafter Puree was discharged where the employee was confronted by Liephart, Orlowski, and Collins. Liephart questioned Puree about the accuracy of his logsheets for the night of November 22-23, on the ground that Sergeant Collins reported that much of the time that Puree was purportedly on patrol duty he was actually in the security office at Horizons West, and mak- ing personal telephone calls from that location. In Collins' report to Liephart, given at this meeting, the sergeant stat- ed that Puree's telephone calls were monitored by the maintenance man at Horizons West who reported that Pu- ree was "talking about union activities." Liephart told Pu- ree that although the Company had not bothered about three or four other prior incidents, including one report from the Cleveland police that he had been found asleep at his post on one of his previous assignments, at this point Puree would have to be terminated. Puree credibly testified that until the meeting with Liephart, Orlowski, and Collins on November 25 he had not been criticized or warned by the Company's officials at any time subsequent to his reemployment in September. The Respondent's reason for Puree's dismissal was un- convincing. Puree was, undoubtedly, a marginal employee. Nevertheless, until he became involved with the Union the Respondent had manifested a willingness to keep him on the force. Although Liephart asserted at the time of his dismissal that there were numerous earlier complaints about his work, it was not until Puree became actively as- sociated with the union campaign that the Respondent considered them a matter of consequence. The question to be resolved here is not whether there was cause for Puree's dismissal, but what was -the motivating reason. Viewed in the light of the numerous comments made to him by Presi- dent Liephart, General Manager Orlwoski, and Sergeant Collins, all of them concerned with his affiliation with the union campaign and worded in the bluntest of threats, it is now found that whereas the Respondent may have had cause for dissatisfaction with some of his work, as the Court of Appeals for the Third Circuit observed in a some- what similar case, "it apparently became intolerable only after he had joined the union." N.L.R.B. v. Electric City Dyeing Co., 178 F.2d 980, 983 (C.A. 3, 1950). Accordingly, it is now found that the motivating cause for his termina- tion was his identification with the organizational efforts of the employees and not the reason assigned by the Respon- dent. By his discharge, therefore, the Respondent violated Section 8(a)(3) and (1) of the Act. - 3. Carroll Joseph Carroll was hired in February as a patrolman and investigator. At the end of 3 months, a raise of 10 cents an hour was customarily given a new employee. At the end of that period, however, Carroll received a raise of 25 cents an hour because of the Respondent's satisfaction with his work. About 2 months later, Carroll asked for another raise, but Liephart told him that it would be impossible to pay him any more because of the Company's financial straits. Sometime later, Ronald Collins, a coworker, was promoted to sergeant on the force. Liephart testified that he found that Carroll was very disappointed about not being selected for the supervisory opening to which Collins 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was appointed . At the hearing, President Liephart ac- knowledged that he had a high regard for Carroll's ability as a private policeman. Carroll and Gray were the two most active union spon- sors among the Respondent's employees. Both had gone to the union headquarters in October to solicit the help of Local 57. Thereafter they engaged in a sustained effort to secure authorization cards from their coworkers and to in- duce them to attend the union meetings. Carroll's organi- zational activities came to the Respondent's attention early and resulted in his being summoned to a meeting with President Liephart and General Manager Orlowski. As found above, Liephart told him at this time that he had heard that Carroll was "instigating a movement . . . to get a union in and he would not allow it...." During this conversation, Liephart pointed out to the employee that he had already discussed his case with other security compa- nies and that because of what he had told them Carroll would not be able to secure work elsewhere . During their meeting, Orlowski at first told Carroll that he was suspend- ed, or fired, for his union activities, and when the employee pointed out to him that such action was forbidden by the Taft-Hartley Act, Orlowski then predicted that "We will get you for causing dissent and unrest among the troops." Before the conclusion of the conference , Respondent's of- ficials placed in effect a rule, already found to be discrimi- natory and a violation of Section 8(a)(1), whereby Carroll was forbidden to accompany any other employee in a cruiser car during working , hours. Carroll was never discharged , but on December 8 he was suspended. The facts in connection with this incident are set forth below. It is evident from the record that for some period of time there was considerable antipathy between Carroll and Ser- geant Collins. Puree and Sauer testified to several occa- sions when Collins told them and other employees that Carroll was a "troublemaker" and that he [Collins] was going "to take care of him...." At the hearing Liephart acknowledged that he, too, heard that Collins had made threats about what the latter planned to do with Carroll. Early on the morning of December 7, when Carroll was off duty, he and his friend Gray were in a restaurant fre- quented by the Respondent's employees when Collins and another individual entered the restaurant . Collins was in uniform and armed. Very shortly, sharp words passed be- tween the two and Collins asked that Carroll step outside. Blows were exchanged . James Harris, a friend of Collins, who was present, testified that Carroll was the aggressor. When on the witness stand , however, Collins acknowl- edged that in a prehearing affidavit he had conceded that, before the combatants were separated , he himself had a headlock on Carroll. On December 8, Orlowski telephoned Carroll and told him that he was being suspended indefinitely for fighting with Collins. Carroll protested' that he was only trying to defend himself and asked whether Collins was also being suspended. Orlowski told him that no action was being taken against Collins and that if Carroll had anything to say he could submit a report in writing. On February 11,.1976, Carroll, accompanied by Gray as his witness, reported to Orlowski's office for a hearing on his protest about being suspended . After Gray had related his account of what had occurred on the day in question, Orlowski told Carroll, "Joe, I will reinstate you if you will drop your lawsuit against us with the National Labor Rela- tions Board." Carroll declined to offer him that assurance. On February 15, President Liephart telephoned Carroll, stated Orlowski should not,have conditioned his reinstate- ment on dropping the unfair labor practice charges, and told him that "`as of now, you are reinstated." Carroll did not answer immediately for at the time he had other em- ployment. On February 20, he delivered to the Respondent a letter of resignation that was effective as of March 5, 1976. Liephart testified that he was on vacation - at the time Orlowski suspended Carroll and that the general manager had taken the action on his own , although upon his return from vacation he ratified the suspension which Orlowski had imposed. Captain Marlowe was called by the General Counsel as an adverse witness and testified that he was the one that should have taken action against Carroll and any- one else involved in the fight, but that it was Orlowski who had done so . According to Marlowe, before suspending Carroll, Orlowski conceded to him that he did not know what happened in the altercation between the two, that he (Marlowe) recommended that statements be secured from both men and that nothing be done thereafter until Liep- hart returned from his vacation. Marlowe testified that he emphasized to Orlowski that, if both men were at fault, both should be suspended. Orlowski, of course, did not wait to hear Carroll's side of the story. From Marlowe's testimony it appears that Or- lowski suspended Carroll at a time when he himself readily acknowledged to a colleague that he did not know what occurred. As indicated earlier in this Decision, Orlowski never appeared as a witness during the hearing toyexplain his position as to this or any other issue in the case. When on the stand as witnesses both Collins and Carroll appeared to be hot-tempered individuals who would wel- come an opportunity to settle differences with their fists. Marlowe, the immediate superior, proposed that both of them be heard before any action was taken and that if both were at fault then both should be suspended. Orlowski, however, made no effort to follow this ,judicious course. He immediately suspended Carroll and took no action at all against Collins . Only a short while before, after engaging in an interrogation of Carroll as to his union sympathies, Or- lowski had been dissuaded from discharging the employee for his union activities only by Carroll's bold declaration that this was forbidden by the Act . Thereafter, Orlowski predicted "We will get you for causing dissent and unrest among the troops." It is apparent that Orlowski utilized the opportunity presented by the dispute between Carroll and Collins to fulfill this prediction and singled,out Carroll for suspension while taking no action against Collins . It is now found that, in so doing, Orlowski was motivated by his animus against the Union and its adherents, rather than by any desire to ascertain the merits of the dispute between Carroll and Collins. Consequently, the suspension of Car- roll must be, and is, found discriminatory and a violation of Section 8(a)(3) and (1) of the Act on the part of the Respondent. TOP SECURITY PATROL, INC. 53 It was also a violation of Section 8(a)(1) of the Act, for General Manager Orlowski on February 11, 1976, to con- dition Carroll's reemployment on the employee's with- drawal of his unfair labor practice charge against the Re- spondent. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce and the Union is a labor organization, all within the meaning of the Act. 2. By discriminating in regard to the hire and tenure of Daniel Gray, Kenneth Puree, and Joseph Carroll, thereby discouraging membership in the Union, the Respondent has engaged in and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. By interfering with, restraining, and coercing its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. 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 Having found that the Respondent has engaged in cer- tain unfair labor practices, it will be recommended that the Respondent be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discriminatorily ter- minated Daniel Gray and Kenneth Puree and discrimina- torily suspended Joseph Carroll, it will be recommended that the Respondent be ordered to offer Gray and Puree immediate and full reinstatement without prejudice to their seniority or other rights and privileges, and make them and Carroll whole for any loss of earnings they may have suf- fered from the time of their discharge or suspension to the date of the Respondent's offer of reinstatement to Gray and Puree and to the date of Carroll's declination of rein- statement.19 The backpay for the foregoing employees shall be computed in accordance with the formula approved in F. W. Woolworth Company, 90 NLRB 289 (1950), with in- terest thereon computed in the manner and amount pre- scribed in Isis Plumbing & Heating Co., 138 NLRB 716, 717-721 (1962). It will also be recommended that the said Respondent be required to preserve and, upon request, make available to the Board or its agents, payroll and other records to facilitate the computation of backpay due. 19 On February 15, 1976, President Liephart told Carroll that he could return to work immediately. At the time Carroll was employed elsewhere. On February 20, Carroll wrote the Respondent that he would resign effec- tive on March 5. The Board has held that where a discrinunatee is employed elsewhere at the time of a reinstatement offer, the offer should accord the employee the right to give his new employer reasonable notice, up to 2 weeks, before returning to work for his former employer. Block-Southland Sportswear, Inc, Southland Manufacturing Company, Inc., 170 NLRB 936, 981-982 (1968) enfd. 420 F.2d 1296 (C.A.D C, 1969); Thermoid Company, 90 NLRB 614, 616 (1950) But see N L R.B. v. Betts Baking Co., 428 F 2d 156, 158-159 (CA. 10, 1970). Since "a discriminatory discharge of an employee .. . goes to the very heart of the Act" (N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941) it will be recom- mended that the Respondent be ordered to cease and de- sist from infringing in any manner upon the rights guaran- teed in Section 7. Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, there is issued the following: ORDER 20 Respondent, Top Security Patrol, Inc., Cleveland, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging, suspending, or otherwise discriminating against any employee because of activity on behalf of, or membership in, Private Police and Security Guards Local Union No. 57, AFL-CIO, or any other labor organization. (b) Interrogating any employee concerning that indivi- dual's union activity, or that of other employees, in a manner constituting a violation of Section 8(a)(1) of the Act. (c) Threatening its employees with loss of jobs or closing its business if a majority become members of, or assist, a labor organization. (d) Instituting discriminatory changes in its working rules because of employee interest in unionization. (e) Giving its employees the impression that it is engag- mg in surveillance of their union activities. (f) Conditioning the reinstatement of any employee, or the enjoyment of any right conferred by the National La- bor Relations Act, on that employee's withdrawal of unfair labor practice charges. (g) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist any labor organiza- tion, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid, or to refrain from any or all such activities. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Offer to Daniel Gray and Kenneth Puree immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, with- out prejudice to their seniority or other rights and privi- leges and make them and Joseph Carroll whole in the man- ner set forth in the section of the Decision 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- 20 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. 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sary, or appropriate, to analyze the amount of backpay due under the terms of the recommended Order. (c) Rescind the discriminatory work rules , issued on No- vember 26, 1975, extending the probationary period for employees and providing for the use of he detector tests. 21 (d) Post at its office in Cleveland, Ohio, copies of the attached notice marked "Appendix." 22 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 8, after being duly signed by the Respondent's author- ized representative , shall be posted by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that said notices are not altered , defaced, or covered by any other material. (e) Notify the Regional Director for Region 8, in writing within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 21 Of course, the vice of the foregoing rules was the circumstance of their promulgation which made it clear that they were being issued in retaliation for the employees' involvement with the Union Absent such circumstances, the Respondent is free to issue any work rules of a nondiscriminatory char- acter that it chooses to require 22 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading, "Posted by Order of the National Labor Relations Board" shall 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 discourage membership in Private Po- lice and Security Guards Local Union No. 57, AFL- CIO, or any other union by discharging, suspending, or otherwise discriminating against our employees be- cause of their union or concerted activities. WE WILL NOT interrogate any employee concerning that individual's union activity, or that of any other employees, in a manner constituting a violation of Section 8(a)(1) of the Act. WE WILL NOT threaten our employees with loss of jobs or the closing of our business if a majority be- come members of, or assist, labor organizations. WE WILL NOT institute discriminatory changes in the working rules for our employees and WE WILL rescind the rules issued on November 26, 1975, involving the probationary period for employees and the use of lie detector tests. WE WILL NOT give our employees the impression that we are engaging in surveillance of their union activi- ties. WE WILL NOT threaten our employees with any form of reprisal or loss of privileges because of their mem- bership in, sympathy for, support of, or activity on behalf of, any labor organization. WE WILL NOT condition the reinstatement of any em- ployee, or the enjoyment of any right conferred by the National Labor Relations Act, on that employee's withdrawal of unfair labor practice charges. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form, join, or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutu- al aid or protection, or to refrain from any or all such activities. WE WILL offer Daniel Gray and Kenneth Puree im- mediate and full reinstatement to their formerjobs or, if those jobs no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges, and WE WILL make them and Joseph Carroll whole for any loss of pay suffered as a result of the discrimination against them. Top SECURITY PATROL, INC.