Mills Patrol Service, Inc.

MILLS PATROL SERVICE, INC. Mills Patrol Service, Inc. and Harry I.. Miller. Case 29-CA-8781 September 29, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND HUNITE.R On May 27, 1982, Administrative Law Judge Julius Cohn issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions 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 only to the extent consistent herewith, and adopt the Administrative Law Judge's recommended Order, as modified. The facts are set forth more fully by the Admin- istrative Law Judge in the attached Decision. Briefly, employee Harry Miller met with Respond- ent's president, Mills, and Vice President Pruitt, on March 2, 1981. Miller attempted to discuss with them the possibility of the employees obtaining sick benefits, medical coverage, and representation by a union. According to the credited evidence, imme- diately after Miller made these inquiries, Respond- ent's president, Mills, discharged him. Respondent alleges it discharged Miller because of the rude and aggressive conduct he displayed in both the March 2 meeting and a meeting which took place 2 weeks earlier concerning the computation of overtime. Miller denies that his behavior was either rude or aggressive. The Administrative Law Judge found that Re- spondent's discharge of Miller, immediately after Miller stated he planned to organize a union, vio- lated Section 8(a)(3) of the Act, because this con- duct would have the effect of discouraging union activity. He dismissed as pretextual Respondent's assertion that Miller was discharged for his rude conduct. Although we agree with the Administra- tive Law Judge's conclusion, we do so only for the reasons that follow. We find that the General Counsel has made a prima facie showing that Miller's discharge was motivated by Respondent's desire to discourage union activity.' Respondent discharged Miller im- i Wright line, a Divirion of Wright Line, Inc., 251 NLRB IOR3 (1980). 264 NLRB No. 65 mediately after Miller stated he planned to bring a union into Respondent's operations. 2 This dis- charge occurred even though Miller was a valuable employee. As Respondent's vice president, Pruitt, testified, Miller could work a varied schedule in- cluding both day and night hours, and Respondent had received no substantial complaints about the quality of Miller's work. We also find that Respondent has not rebutted the prima facie case. Respondent alleges it dis- charged Miller for his rude and aggressive conduct during the March 2 meeting. It alleges that Miller raised his voice when he made his inquiries and that Pruitt had to ask Miller several times to lower his voice.3 However, the circumstances and timing of Miller's discharge belie Respondent's assertions that it let him go because of his alleged rude be- havior. Miller had allegedly also raised his voice at the meeting which occurred 2 weeks prior to the discharge, but he was not discharged then. More- over, at the March 2 meeting, he was not dis- charged until he stated that he planned to bring in a union, at which point Respondent immediately discharged him. Hence, Respondent has failed to rebut the General Counsel's prima facie case. We further find that, based on Respondent's best evidence, Miller's manner of presentation contained no violence or threat of violence, nor was there evidence that the activity was engaged in for im- proper motives or in bad faith. Also, while the Ad- ministrative Law Judge's Decision states that Pruitt characterized Miller's behavior as a "rage," we note that this characterization was made pursuant to a leading question by the Administrative Law Judge, and that, prior to the leading question, Pruitt had only characterized Miller's voice as "raised" and "loud." Furthermore, there was no showing that Miller's actions were of such a char- acter as to render him unfit for further service. 4 Accordingly, we find that Respondent would not have discharged Miller, absent his comments ex- 2 We note that Respondent's employees already were represented by a union. but. contrary to Respondent, we do not find this dispositive. Miller had only worked for Respondent for 3 months prior to the March 2 meeting and he denied any knowledge of the Union's existence. Re- spondent produced no evidence indicating Miller was informed of the Union's existence, and, given the Union's failure to bargain actively and represent the employees, we find that Respondent discharged Miller to prevent him from pursuing any further his interest in unionization. I We note that, despite substantially conflicting testimony regarding important matters in this case, the Administrative Law Judge failed to make specific credibility resolutions. For example, there is an unresolved conflict of testimony as to whether Miller's voice was raised during both the March 2 meeting and the meeting 2 weeks beforehand. However, as we have concluded that, viewing the evidence in a light most favorable to Respondent, the discharge was not warranted, the Administrative Law Judge's failure to resolve credibility conflicts has had no impact on this case. 4 Betrcher .Ianufacturng Corporation, 76 NLRB 526 (1948). 323 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pressing an interest in unionization, and therefore the discharge violated Section 8(a)(3) of the Act. The Administrative Law Judge also concluded that Respondent discharged Miller in violation of Section 8(a)(1) of the Act. He found Miller's in- quiries to be protected concerted activity because Miller's inquiries were of common interest to all employees and would have a collective benefit. Re- spondent excepts to the Administrative Law Judge's conclusions. We find merit in these excep- tions. In order for activity to be protected by Section 8(a)(1), it must be concerted in nature. Where it is shown that an employee is acting for his own indi- vidual benefit without the support of his cowork- ers, there can be no finding of concerted activity. ' In the present case, there is no evidence that Miller discussed the subject matter of his inquiries with any other employee or that any fellow worker was aware of his efforts.6 The present case is distinguishable from Hansen Chevrolet, 237 NLRB 584 (1978), the case relied on by the Administrative Law Judge. In Hansen Chev- rolet, an individual employee's request for a wage increase was found to be concerted activity be- cause there was a uniform pay system which would have been impracticable to change for one employee without changing it for every employ- ee. 7 In the present case, no evidence of such a comprehensive plan was produced. Therefore, for the reasons set forth above, we conclude that Mill- er's individual action does not fall within the defi- nition of concerted activity and is not protected by Section 8(a)(1) of the Act.8 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, as modi- fied herein, and hereby orders that the Respondent, Mills Patrol Service, Inc., New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, as so modified: a National Wax Company, 251 NLRB 1064 (1980). a We note that certain statements in the record indicate that in the past other employees had asked Respondent about pay increases and a union. However, there is no evidence that Miller knew of these inquiries or that Respondent thought Miller represented other employees in the matters he raised. 7 Chairman Van de Water and Member Hunter were not on the Board when Hansen Chevrolet was decided and they do not pass on the correc- tions of the holding of that decision which in any event for the reasons noted above is distinguishable on its facts from the instant case. a Inasmuch as Miller's discharge did violate Sec. 8(aX3), Member Fan- ning finds it unnecessary to consider whether or not the discharge would have violated Sec. 8(aXI) had it not violated Sec. 8(aX3). 1. Delete paragraph l(a) and reletter the subse- quent paragraphs accordingly. 2. Substitute the attached notice for that of the Administrative Law Judge. 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 an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT discharge or otherwise dis- criminate against employees because of their union activities or to discourage such activity. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL offer Harry L. Miller immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges and WE WILL make him whole for any loss of wages or other benefits he may have suffered as a result of our discrimination against him, with interest. WE WILL expunge from our files any refer- ences to the discharge of Harry L. Miller on March 2, 1981, and WE WILL notify him, in writing, that this has been done and that evi- dence of this unlawful discharge will not be used as a basis for future personnel actions against him. MILLS PATROL SERVICE, INC. DECISION STATEMENT OF THE CASE JULIUS COHN, Administrative Law Judge: This case was heard in Brooklyn, New York, on February 8, 1982. Upon a charge filed by Harry L. Miller on April 1, 1981, and served the same date, the Regional Director for Region 29 issued a complaint alleging that Mills Patrol Service, Inc., herein called Respondent, violated Section 8(a)(1) and (3) of the Act by discharging Miller because of his union and other protected activities. Respondent filed an answer denying the commission of any unfair labor practices. 324 MILLS PATROL SERVICE, INC. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Upon the entire record in the case, and from my ob- servation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Respondent, a New York corporation with a principal office in the city and State of New York, is engaged in the business of performing security guard services and related services. During the year preceding the issuance of the complaint, Respondent performed security guard and related services valued in excess of $50,000, of which services in excess of $50,000 were performed for enterprises within the State of New York, including, Consolidated Edison Co., Inc., herein called Con Edison, each of which annually purchased goods and materials valued in excess of $50,000 from business located outside the State of New York, which goods and materials are shipped into New York State from States outside of the State of New York. The complaint alleges, and Respondent admits, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and I so find. 11. THE A I..EGED UNFAIR LABOR PRACTICES A. Facts Respondent is in the business of providing and per- forming security guard services. Its principal client is Consolidated Edison for whom Respondent provides the guard services at facilities located in the Boroughs of Brooklyn and the Bronx. Curtis Mills is the president of Respondent and John Pruitt is its vice president. In December 1980 Harry Miller was hired by Vice President Pruitt as a security guard. He was assigned for employment at a Con Edison facility on Hudson Avenue, Brooklyn, where he worked various shifts. Miller testi- fied that on Monday, March 2, 1981, he went to Re- spondent's office about noon in order to pick up a pay- check. He said that he stopped at Pruitt's desk and asked who he could see about sick benefits, medical coverage, and a union. Pruitt told him to see Mills. He immediately went in to see Mills, and asked who did he see about sick benefits, medical coverage, and the Union. Mills told him to see Pruitt, but Miller said that Pruitt had sent him to see Mills. The latter then said that he did not give sick benefits or medical coverage, and that he did not have a union. Mills told him, "If you are out sick, you don't get paid." Miller then said, "If you don't have the union, and you never had a union, who do I see about forming a union?" Mills replied that if Miller did not like what was going on he could turn in his uniform. Miller then said, "I wasn't unhappy with what was going on, but I would go about forming a union on my own." He then went home. Miller later learned that Mills had called his house and wanted to know where he was, and that his cousin told Mills that he had gone to work. Miller stated that, on his way in to his worksite, he met a sergeant who told him to call Mills before he started work. This was just before his scheduled starting time at 4 p.m. Miller then called and Mills asked why he had reported to the jobsite when he was fired. Miller said he had not been fired but Mills said that if Miller did not like what was going on to turn in his uniform. There ensued some arguing on the phone and Mills hung up. Miller stated that he called back, and this time Pruitt answered the phone. He told Pruitt that, if he were fired, he was coming in the next day to pick up his check. Pruitt told him to stop the nonsense and he would have to wait for the following Monday to get his check, which he did. On cross-examination, Miller testified that, 2 weeks before he was fired on March 2, he was in the office with Mills talking to him about overtime. Miller main- tained that the employees were not getting the right amount of money for overtime worked. He denied that he had been screaming at a Mr. White, apparently a clerical employee, about the subject of his pay. Miller stated that, while he was having this conversation about overtime with Mills, Pruitt came in and tried to explain to him about how the overtime was computed. Miller told Pruitt that he was not going to believe him, and that probably Pruitt, on the other hand, would not believe him, so he went home. In addition Miller denied having made "an outburst" at this meeting-2 weeks before he was discharged-nor was his behavior discussed at that meeting. When asked whether he recalled having made a threat that he would bring a union in to Respondent, Miller replied that he made no threat but merely told Mills he would see about getting a union on his own. Miller further stated, in response to a query on the sub- ject, that, when hired, he was told by White this was a nonunion job, and he was unaware that an election had been held and that Respondent was negotiating with a union. Finally Miller stated that he did not recall having been told by Mills and Pruitt to subdue his aggressive- ness or having been told by Pruitt that he was rude. Mills and White did not testify at the hearing, but Vice President Pruitt, who appeared on behalf of Respondent, did testify. Pruitt was anxious that the record reflect what had occurred 2 weeks prior to the March 2 events which resulted in Miller's discharge. On that occasion, according to Pruitt, he came into the office and found Miller "screaming" at White. Pruitt stopped Miller and suggested they go into Mills' office in order to resolve whatever the dispute was about. After explaining what happened to Mills, Pruitt told Miller that his behavior was totally unacceptable, and that nothing would be re- solved by his yelling and screaming at office personnel. Mills also explained to him that the Company would not accept this kind of behavior, and Pruitt told Miller that, if this incident occurred again, he would be replaced. Miller assured them that Respondent would have no problem with him and left. Pruitt testified there was no further problem with Miller until March 2, when he came into the office again. On March 2, according to Pruitt, Miller came to the office and told Pruitt that he would like to see him about a pay increase. They again went to Mills' office and had 325 DECISIONS OF NATIONAL LABOR RELATIONS BOARD some discussion which Pruitt labeled as disrespectful and during which Miller asked for a pay increase, "which many people have asked for," and he also asked about union benefits, sick pay, and "so forth." Pruitt stated that, while asking about these things, Miller's voice was raised and Pruitt did not know whether this was because he was excited or disrespectful. Pruitt cautioned him again, and, when Miller calmed down, Pruitt told him that he was very concerned that Miller would act this way with Respondent's client, Con Edison. In response to a question from the Administrative Law Judge, Pruitt affirmed that, while Miller was asking for benefits and the possibility of getting a union, he did this in a loud tone, which Pruitt characterized as being in a rage. At this point, according to Pruitt, Mills told Miller he appeared to be dissatisfied with almost every area of Re- spondent's business. Mills said he did not want Miller to report at 4 o'clock that day and he could bring back his uniform. Miller insisted he was going to work anyway, jumped up from the desk, went to the door, and said, "I'm going to see to it that a union comes in here." He then walked out. Miller called in at 4 o'clock that day and said he was on duty, which is what the guards nor- mally did, and was told that he was to go to work. Pruitt further testified that, after the first problem they had with Miller 2 weeks before the discharge, he and Mills discussed whether they should allow him to contin- ue. They decided that, since Respondent had heard noth- ing about problems with Con Edison, it would continue his employment, also considering that Miller was willing to work a varied schedule, unlike most of the other guards. Finally Pruitt testified that a Board election had been conducted about the beginning of January 1980, as a result of which a union was certified. Thereafter, Re- spondent had several meetings and negotiations with the union, that no contract resulted, and Respondent has not heard from the union. B. Discussion and Analysis There is very little conflict in the testimony between Miller on the one hand and Pruitt on behalf of Respond- ent. The main distinction lies in Miller's assertion that he was unaware that he had been discharged until he called the office shortly before 4 p.m. in response to a message he received from the guard at his jobsite. On the other hand Pruitt insists, and for the purposes of this discus- sion, it can be so found, that Miller was discharged by Mills during the meeting on March 2 in the morning of that day. In addition Miller denied having made an out- burst at the meeting 2 weeks before he was discharged, and further denied that he had been told to subdue his aggressiveness, as contended by Pruitt. In any case the salient facts, essentially uncontroverted, are that Miller, in a meeting with Mills and Pruitt 2 weeks before he was discharged, discussed and argued with them the question as to whether employees were being paid properly, and in the right amount, for their overtime; and that in the course of that meeting Pruitt sat with Miller, using a cal- culator, and attempted to convince him that the proce- dures were indeed proper. Nor is there any question that, on March 2 just immediately prior to his discharge, Miller attempted to discuss with Pruitt and Mills the pos- sibility of the employees obtaining sick benefits, medical coverage, and representation by a union. On behalf of Respondent, Pruitt alleges that Miller was discharged be- cause of his conduct, rudeness, and aggressiveness in the presentation of these matters. Section 7 provides that employees shall have the right to engage in concerted activities for the purpose of col- lective bargaining or other mutual aid or protection. The issue is, therefore, whether Mills was discharged by Re- spondent because he engaged in concerted activities which are protected by the Act or whether, as alleged by Respondent, for reason of his "outbursts" and over- aggressiveness in his relations with his superiors. With regard to the incident related by Pruitt 2 weeks prior to the discharge, it is uncontradicted that Miller was inquir- ing about the mode in which Respondent was computing and paying for overtime. The Board has held that, where an employee inquired about the wage system on his own, this action constituted concerted activity because the wage system was of common interest to all employees and would not have been changed for only one. Hansen Chevrolet, 237 NLRB 584 (1978). Clearly the same pro- tection must be accorded an employee who makes in- quiries, as Miller did herein of his employer, not only as with respect to the overtime payment system, but also with respect to the institution of sick benefits and medi- cal coverage, items of obvious interest to all employees. Moreover by inquiring, as he did on March 2, whether Respondent would entertain the thought of having a union represent its employees, and finally stating that he would bring in a union of his own, Morris was further engaging in concerted activity protected under Section 7 of the Act. Having established the protected concerted nature of the activities in which Miller engaged on March 2 and 2 weeks prior thereto, there remains the question as to whether he was discharged for such conduct. I find in all the circumstances that Respondent did discharge Miller because of his statements on March 2 and before and that the reasons asserted by Pruitt for the discharge were pre- textual. In these matters, timing is always an important factor for consideration. Respondent's reaction to Miller could not have been more precipitous since, according to Pruitt, he was discharged immediately upon his voicing his demands or suggestions on March 2. Moreover I find no merit to Pruitt's assertion that Miller was terminated because of his "outbreaks," aggressiveness, and rudeness. No action had been taken by Respondent when Miller acted in a similar vein 2 weeks before March 2. Indeed Pruitt testified that Miller was a very desirable employee because of the flexibility he exhibited concerning the schedule of shifts he was willing to work, unlike most of Respondent's other employees. In addition Pruitt laid great emphasis on Respondent's concern for the conduct of its employees with respect to the personnel and offi- cers of its principal client, Consolidated Edison, on whose worksite Miller was employed. Pruitt also stated in this regard that he had received no complaints nor was he aware of any from Consolidated Edison concern- ing Miller's work performance or conduct. Further he 326 MILLS PATROL SERVICE, INC. affirmatively testified that he was not aware of any mis- conduct on the part of Miller from the time of the first meeting 2 weeks prior to March 2, described above, and March 2. Accordingly, I find that Respondent dis- charged Miller for having engaged in protected concert- ed activities and thereby violated Section 8(a)(l) of the Act. The complaint alleges that Respondent's discharge of Miller also constituted a violation of Section 8(a)(3) of the Act. In National Airmotive, a Division of Republic Corporation, 207 NLRB 517 (1973), the Board, finding a violation of Section 8(a)(1) of the Act in a situation where an employee was discharged for circulating a peti- tion about wages, refused to find a violation of Section 8(a)(3), although the Administrative Law Judge had found that the employees "impliedly threatened to bring a union into the plant." The Board there held that there was no activity on behalf of the union. In the instant case there is no implication or inference but rather a direct statement to Respondent by Miller that he would bring in a union on his own. Since Section 8(a)(3) finds unlawful discrimination which tends to encourage or dis- courage union activity, I find in the instant situation that Respondent further violated Section 8(a)(3) of the Act by discharging Miller when he openly stated that he was about to bring a union into Respondent's operation. Clearly this conduct would have the effect of discourag- ing union activity.' 111it. THE IFFEC 1 OF THE UNFAIR I.ABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes, burdening, and obstructing commerce and the free flow of commerce. IV. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent has violated the Act by unlawfully discharging Harry L. Miller, and thereafter, failing and refusing to reinstate him, I shall recommend that Respondent be required to offer immediate and full reinstatement to Miller to his former position or, if such position is no longer available, to a substantially equiva- lent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings or other monetary loss he may have suffered as a result of the discrimination against him, less interim earnings, if any, plus interest. Any backpay due is to be determined in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest to be com- The remedy is the same in any case. puted in the manner described in Florida Steel Corpora- tion, 231 NLRB 651 (1977).2 I shall also recommend that Respondent expunge from its records any reference to the unlawful discharge of Miller, and inform him that this will not be used as a basis for further personnel actions concerning him. 3 CONCL USIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By discharging Harry L. Miller, because of his con- certed activities for the purposes of mutual aid and pro- tection, Respondent violated Section 8(a)(l) of the Act. 3. By discharging Miller in order to discourage union activities, Respondent violated Section 8(a)(3) 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. Upon the foregoing findings of fact, conclusions of law, and upon the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER 4 The Respondent, Mills Patrol Service, Inc., New York, New York, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Discharging employees because of their participa- tion in concerted activities for the purposes of mutual aid and protection. (b) Discharging or otherwise discriminating against employees because of their union activities and in order to discourage their union activities. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative actions to effectuate the policies of the Act: (a) Offer Harry L. Miller full reinstatement to his former job or, if that job no longer exists, to a substan- tially equivalent position, without prejudice to his senior- ity or other rights and privileges, and make him whole for any loss of earnings in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records to analyze the amount of backpay due. (c) Expunge from its files any reference to the dis- charge of Harry L. Miller on March 2, 1981, and notify him in writing that this has been done and that evidence 2 See, generally, Isis Plumbing <& Heating Co., 138 NLRB 716 (1962). 3 Sterling Sugars. Inc., 261 NLRB 472 (1982). 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 find- ings, 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. 327 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of this unlawful discharge will not be used as a basis for future personnel actions against him. (d) Post at its New York City office copies of the at- tached notice marked "Appendix. " 5 Copies of said notice on forms provided by the Regional Director for Region 29, after being duly signed by its authorized representa- 5 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." tive shall be posted by it at its New York, New York, facility immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in con- spicuous places, including places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 328