Bell Burglar Alarms, Inc.

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 990 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bell Burglar Alarms, Inc. and Teamsters Local Union
No. 115, a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America. Case 4-CA-9437
September 28, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
On June 25, 1979, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Counsel
filed limited exceptions and a supporting brief and a
brief in response to Respondent's exceptions.
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 briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, as
modified herein, and to adopt her recommended Or-
der.
Robert Gundaker was among those employees who
signed the union authorization cards inspected by Re-
spondent's president, Morton Baizer. In mid-May,
Baizer, after yelling at one employee, said good morn-
ing to Gundaker. Baizer asked, "Don't you care how
I feel," said he was Gundaker's boss and was entitled
to respect, and asked why Gundaker did not quit if he
was not happy there. After talking to another em-
ployee, Baizer again asked Gundaker why he did not
quit if he was not happy there.
The Administrative Law Judge correctly found
that Baizer acted in response to Gundaker's union
activity and conveyed a threat of discharge to Gun-
daker by repeatedly and irritably asking him to quit.
However, the Administrative Law Judge found no
violation because she saw no reason to suppose that
Gundaker was aware that Baizer was motivated by
Gundaker's union activity. We do not agree. The le-
gality of an employer's conduct does not turn on
whether the employee feels threatened. A finding of
interference, restraint, or coercion is not determined
by intent and actual effect, but is determined by
whether the conduct may be said to have a tendency
to interfere with the free exercise of employee rights.
El Rancho Market, 235 NLRB 468 (1978).
In the context in which the remarks were made, a
reasonable inference can be made that Baizer, by say-
ing he was entitled to respect and by referring to
Gundaker's being unhappy, was in fact referring to
Gundaker's card signing and thus was equating union
activity, protected by the Act, with employee disloy-
alty and disaffection. Oscar Enterprises, Inc., OMCO,
Inc., Halvin Products Co., 214 NLRB 823 (1974).
Thus, we find that Baizer's invitations to Gundaker to
quit constitute an implied threat of discharge for en-
gaging in protected activity. As there is no other ex-
planation for the statement, little else can be inferred
from such invitation. 726 Seventeenth Inc., t/a Sans
Souci Restaurant, 235 NLRB 604 (1978). The fact
that Baizer's statement may have been attributed to
his bad mood does not nullify its probable coercive
impact.
For these reasons we shall reverse the Administra-
tive Law Judge's dismissal of paragraph 6(d) of the
complaint and find that Respondent threatened Gun-
daker with discharge in violation of Section 8(a)(l) of
the Act. As the Administrative Law Judge has found
other unlawful threats of discharge and reprisals, the
recommended Order need not be amended.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Bell Burglar Alarms, Inc.,
Philadelphia, Pennsylvania, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order.
DECISION
STArEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge: This
proceeding was heard before me in Philadelphia, Pennsyl-
vania, on January 10 and February 15 and 16, 1979, pursu-
ant to a charge filed on June 2, 1978,' an amended charge
filed on July 11, and a complaint issued on July 31. The
issues presented are: (I) whether Respondent Bell Burglar
Alarms, Inc.. violated Section 8(a)(I) of the National Labor
Relations Act, as amended (the Act), by interrogating em-
ployees about activity on behalf of Teamsters Local Union
No. 115, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen. and Helpers of America (the
Union), soliciting grievances, soliciting employees to engage
in surveillance, offering and promising benefits to induce
employees to cease supporting the Union, threatening em-
ployees with discharge and other reprisals for union ac-
tivity, creating the impression of surveillance over union
activity, creating the impression of futility of selecting the
Union as collective-bargaining agent. and instructing em-
ployees to disregard Board subpenas; (2) whether Respon-
All dales hereafter are 1978 unless otherwise specified.
245 NLRB No. 127
990
BEI.I BURGLAR AI.ARMS, INC.
dent violated Section 8(a)(l) and (3) of the Act by failing
and refusing because of employee Raymond Outt's union
activity to pay the costs of obtaining a lethal weapons cer-
tificate which he was required by law to obtain in order to
keep his job with Respondent as an armed guard; and (3)
whether Respondent's refusal to recognize the Union,
which had obtained signed authorization cards from a ma-
jority of Respondent's employees in an appropriate unit,
violated Section 8(a)(5) and (1) of the Act and calls for a
bargaining order in view of the foregoing alleged violations
of Section 8(a)(l) and (3) of the Act.
On the basis of the entire record, including the demeanor
of the witnesses, and after due consideration of the brief
filed by counsel for the General Counsel, I hereby make the
following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Pennsylvania corporation which is en-
gaged in the installation, maintenance, and servicing of bur-
glar alarm systems from its facility located in Philadelphia,
Pennsylvania. During the year preceding the issuance of the
complaint Respondent sold products and provided services
valued in excess of $50,000 to enterprises located within
Pennsylvania, which enterprises annually produce and ship
products valued in excess of $50,000 directly to points lo-
cated outside Pennsylvania. I find that, as Respondent con-
cedes, Respondent is engaged in commerce within the
meaning of the Act, and that assertion of jurisdiction over
its operations will effectuate the policies of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Refusal To Bargain
On May 1, 1978, the Union began an organizational
campaign among Respondent's employees. Employee Car-
los Serrano signed a union authorization card on May I
and distributed cards to the other employees. On May 12,
1978, Respondent had in its employ 18 employees in an
admittedly appropriate unit which is described in Conclu-
sion of Law 3 infra, and which, as required by Section
9(b)(3) of the Act, excludes guards as defined therein. Be-
tween May I and 9, 12 of these 18 employees signed cards
authorizing the Union to represent them for collective-bar-
gaining purposes. During this same period cards were also
signed by two employees-Raymond R. Outt and Joseph
Thomas Nicholson-who were not in the appropriate unit
because they were guards within the meaning of the Act.
About May 12 union representatives Richard Hart and
Joseph Yeoman presented Morton Baizer, Respondent's
president, with a letter stating that a majority of Respon-
dent's employees in a unit consisting of the appropriate unit
plus two "alarm attendants" (inferentially, Outt and Nich-
olson) whom the Regional Office later determined to be
guards, had designated the Union as their bargaining repre-
sentative. The letter offered to prove the Union's majority
through a card check by a disinterested third party. The
letter asked Respondent to recognize the Union as the em-
ployees' collective-bargaining representative and to meet
with it to negotiate a collective-bargaining agreement. At-
tached to this letter was a document headed "Recognition
Agreement," which contained a clause stating that Respon-
dent thereby recognized the Union as the employees' exclu-
sive bargaining representative. This document was signed
by the Union and contained a blank for Respondent's sig-
nature and the date.
Baizer asked what a recognition agreement was, and the
union representative told him. Baizer said that he did not
believe that the Union represented a majority. The union
representatives asked if he wanted to see the union cards.
Baizer said yes. The union representatives then gave him all
the cards that had been signed, including those signed by
Outt and Nicholson. Baizer looked at all of them very care-
fully. The union representatives asked if the signers consti-
tuted a majority of his people. Baizer said that he did not
know, but they probably were. Baizer said that he wanted
to handle the matter in a peaceful and orderly manner and
said that his lawyer's name was Rothenberg.' As the union
representatives were getting ready to leave Baizer asked
them for a copy of the cards. They refused. He asked if he
could see the cards one more time. The Union representa-
tives gave them to him again, whereupon he put them in
four different piles and picked out one particular card
whose identity the record does not show. The union repre-
sentatives then retrieved the cards and left the facility.
B. Alleged Interference, Restraint, and Coercion Before
December 1978 by President Baizer
I. Conversations between President Baizer and employee
Kunkle
Among the employees whose union cards were inspected
by Baizer was employee Robert Kunkle, who was admit-
tedly in the bargaining unit. Kunkle was scheduled to work
on Saturday, May 13, but that morning he telephoned his
supervisor, Robert Montgomery, and said that he had over-
slept. Montgomery asked whether Kunkle would be in for
his next regularly scheduled shift. Kunkle said that he
would. Later that day Baizer telephoned Kunkle at his
home and asked him to come in and speak with Baizer.
Kunkle complied.
When Kunkle reached the facility Baizer led him into
Baizer's private office and told him that nobody had to
know about the conversation. Baizer then asked what all
the "bull shit" was about the Union. Kunkle said that he
did not consider it so. Baizer asked what Kunkle wanted.
Kunkle said that he wanted more money, better working
conditions, and more benefits. Baizer said, "The Union
doesn't pay for that; I pay for that.... The Union can't
give you anything.... Morty Baizer can give you more
2At the hearing before me Respondent was represented by a different
attorne)
991
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than the Union can give you." Baizer asked Kunkle, who
was then working on the night shift, if he wanted day work.
Kunkle said that he did. Showing Kunkle a job application
which an unidentified applicant had filled out Baizer said,
"You stick with me, and ... I'll hire this man for your shift
and put you on day work." Baizer asked Kunkle if he
would be interested in sales work. Kunkle said that he had
never sold anything but would "consider" it. Baizer said
that he thought Kunkle would make a good salesman. Bai-
zer asked Kunkle if he needed any money. Kunkle said no.
Baizer said, "Are you sure that you don't need a couple
hundred dollars; I've . .come prepared." Kunkle said no.
Baizer said, "Well at least take one hundred dollars; it will
clear your head up." Kunkle took some money out of his
pocket, showed the money to Baizer, and said "No thank
you, I have money, I'm O.K." Baizer asked whether
Kunkle knew there was to be an election. Kunkle said yes.
Baizer asked whether Kunkle knew how it worked. Kunkle
said yes. Baizer said, "Well it is a secret ballot ... but I will
know who voted in that election by the final results ... I'll
know who my friends are." Baizer asked Kunkle to try to
talk to the other employees and give him information on
union activities and what was going on generally with the
Union and the employees. Kunkle refused. Baizer told him
to go, think it over for a while, and let Baizer know if he
could count on Kunkle.
About May 19, 1 week later, Baizer again called Kunkle
into Baizer's office and asked whether Kunkle had made a
final decision on what the two had talked about. Kunkle
told Baizer, "Yes, I'll go along with it; I'll help you."
Kunkle credibly testified that he gave this reply "just to
pacify the situation and get out from under it."
In early June Baizer caught Kunkle at the entrance to the
building and asked him what he had heard about union
activities and what was going on with the Union. Kunkle
said that he had heard nothing.
Kunkle left Respondent's employ in August 1978, about
5 months before the hearing. The only other employee he
ever told about the foregoing conversations was Outt, who
was a guard and not in the bargaining unit.
My findings under this heading are based on Kunkle's
testimony. Baizer testified that his conversation with
Kunkle about the Union consisted of a statement by Baizer
that he did not think the Union could do anything for him.
Baizer denied offering Kunkle any money not to support
the Union. In testifying about conversations with employ-
ees about the Union, Baizer displayed an exceedingly un-
convincing demeanor. After considering the witnesses' de-
meanor I credit Kunkle, a disinterested witness, over
Baizer.
2. The Conversation between President Baizer and
employee Nicholson
Among the employees who signed the cards inspected by
Baizer about May 12 was Joseph Thomas Nicholson.
About May 18 Baizer invited Nicholson into Baizer's office
and asked Nicholson why he had signed a union card; he
said that he had been "good" to Nicholson. Nicholson re-
plied that he had signed a card because the Union had a
good pension plan.
A few days earlier Nicholson had attended what he testi-
monially described as a "social gathering" at the Union's
headquarters. At this gathering the union representative
had made certain factual allegations about the Union's pen-
sion plan, had mentioned the Union's health and welfare
plan, and had also asserted that the lowest paid employee
in the local made $7.99 an hour.' During this mid-May
conversation with Nicholson, Baizer accurately related to
Nicholson when the union meeting started and the number
of people who were there, accurately related to Nicholson
the factual allegations made at that meeting about the pen-
sion plan, and also mentioned to Nicholson the union
health and welfare plan, which had also been described at
the union meeting. Baizer said that "he just couldn't afford
them kind of wages." Baizer went on to say that if the
Union got in he would be forced either to sell the firm or to
"cancel the certification" (see fn. 4 infra), and that with
such a cancellation, Baizer would not need any guards. Bai-
zer further said that "if the Union was not in, there would
be more benefits brought" to the employees and more
raises.4
Nicholson is a guard and is not in the appropriate unit.
At the time of the hearing he was still in Respondent's em-
ploy.
3. The Conversation between President Baizer and
employee Connelly
Among the employees whose signed cards were inspected
by Baizer about May 12 was Nora Connolly. About May
19 Baizer called her into his office and said, "What's this
about the Union?" Connolly said nothing. Baizer said, "I
was very disappointed when I seen your name because I
thought you were my friend." Connolly said that she was
his friend. He said, "Well, why do you want to join the
Union?" She said that she thought the benefits were good.
He said that he liked her and had always given her raises
when she asked. She said that he had given her raises with-
out being asked. He asked why she wanted to join a union.
She said that she thought there would be better benefits. He
said:
The Union really isn't giving you those benefits; I am
giving you the benefits, any benefits you get from the
Union you are really getting from me . . . because I
have to pay the Union.... If you think I am going to
let the Union in here, it's America, it's a free country,
and I'll run my own business the way I see fit; and if
According to the authorization cards signed by Respondent's employees,
they were receiving between $3.20 and $5.40 an hour.
' My findings in this paragraph are based on Nicholson's testimony. Baizer
testified that he had never had a conversation with Nicholson about the
Union. According to Baizer's further testimony, even if Respondent did lose
its Underwriters Laboratories certification that Respondent would install
and service burglar alarms in accordance with UL standards Respondent
would still need guards because it would still be selling the same service.
However, some of the service personnel already perform work done by
guards, of whom Respondent then employed only two. Moreover, by reduc-
ing insurance premiums the UL certification does make Respondent's ser-
vices more valuable to customers and, therefore, increases Respondent's vol-
ume. For demeanor reasons I credit the testimony of Nicholson, who did not
testify until his subpoena was enforced by the Federal district court and who
was still in Respondent's employ at the time of the hearing.
992
BELL BURGLAR ALARMS. INC.
you think I'm going to let the Union take over. you're
mistaken.... I'm not [going] to let Charlie Serrano or
anybody else run it.... It's my business; I worked lor
it; and I want to run it .... I want you to think it over,
what I told you about the Union, and let me know
what you think.... I really think that you don't really
know what you're getting into, that you should really
think about what the Union has to offer and what we
have to offer.'
At the time of this conversation Connolly was admittedly
in the bargaining unit. She was discharged on May 20,
1978. A charge that her discharge was motivated by union
activity was dismissed by the Regional Office.
4. Conversations between President Baizer and employees
Serrano and Gundaker
Among the employees who signed the union cards that
were inspected by Baizer on May 12 were Robert Shoup,
Robert Gundaker, 6 and Carlos Serrano. One morning in
mid-May Baizer said good morning to Shoup. When Shoup
failed to reply, Baizer yelled at him, "Don't you care how I
feel? Shoup said yes. Baizer then went over to Gundaker
and said good morning. Gundaker said good morning. Bai-
zer said, "Don't you care how I feel?" said that he was
Gundaker's boss and Gundaker should respect him, and
asked him why he did not quit if he was not happy there.
Baizer then said good morning to Serrano. Serrano said
good morning. Baizer said, "Don't you care how I feel?"
Serrano said yes. Baizer said, "Well, you'd better straighten
these boys out." Serrano replied, "They are not boys, they
are men, and they can talk for themselves." Serrano then
left the premises to make his first call. Baizer then asked
Gundaker again why he did not quit if he was not happy
there.
When Serrano got to his first call he telephoned Baizer
and apologized for his fellow employees' conduct. Serrano
told Baizer that the employees did not hate him but just
wanted to change the way things were. Baizer said that
Serrano had started the Union, and he alone could stop it.
He said that he could not. Baizer said, "You started it, and
you can end it." Baizer further said that there were courts
to get one out of a marriage, and Serrano could get out of
the trouble he was in. Serrano said that others were also
involved, and that he could not stop the Union. Baizer said
that Serrano could think about it, that he could either call
Baizer or come to the office, and that nobody would know
that they had a discussion. Serrano said that he would think
about it. Baizer said, "You remember what happened last
time.... If you think that the guys are behind you now,
you're mistaken.... the last time, you thought they were
behind you . . . there was nobody behind you.... The
My findings in this paragraph are based on Connolly's testimony. Baizer
testified that he said he did not think the Union would do anything for her
but denied saying that he would not let the Union in, it is America. it is a
free country. To the extent that their testimonies conflict for demeanor rea-
sons I credit Connolly.
* When hiring Gundaker in 1976 Baizer asked him what he thought about
unions. Gundaker said that he thought they were "O.K." Baizer said noth-
ing. Gundaker asked him whether there was a union at Respondent's facilit.
and he said no.
people backing you up are the people who are against me.
Remember what happened last time." Baizer then re-
marked that in 1973 Serrano had been engaging in organiz-
ing activity. Serrano had been discharged by Respondent in
1973 and rehired in 1976.' Baizer told Serrano to come in at
4 p.m.. and they would discuss the matter of the Union.
Serrano said that he would think about it. He never called
Baizer or went to see him.'
When these events occurred all three of these employees
were admittedly in the bargaining unit. Between June and
October 1978 all three left Respondent's employ.
5. Conversations between President Baizer and employee
Bald
Among the employees who signed cards that were in-
spected by Baizer on May 12 was August Bald. On Ma 26
Baizer approached Bald on the company parking lot and
asked him if he had heard anything about what was going
on. Bald said no. Baizer said that he knew some people
were trying to get the Union in and asked if Bald had
signed a card. Bald said yes. Baizer asked who had given
the card to Bald. Bald said that he had picked it up at the
"Central Station," where the controls are kept and the op-
erators work.' Baizer asked if Bald knew who was the
"head" of the Union: he said that Bald should know which
side his bread was buttered on. that the Union could do
nothing for him, and that Baizer would have to pay any
money Bald got. Baizer asked Bald to tell him if Bald heard
any talk about the Union or knew about anyone that was
trying to get the Union in there. Baizer asked Bald whether
he knew that Serrano had been discharged for bringing a
union in previously.
At the time this conversation occurred Bald was admit-
tedly in the bargaining unit. He was discharged at the end
of May 1978, and a charge that he was fired for union
activity was dismissed by the Regional Office.
My findings regarding Baizer's conversation with Bald
are based on Bald's testimony. Baizer admitted making
some of the remarks attributed to him by Bald but denied
asking Bald if he had signed a card who had given him a
card who the "head" of the Union was, telling him that he
should know which side his bread was buttered on, and
discussing Serrano with him. Bald's prehearing affidavit
7 Serrano credibly testified that he thought his 1973 discharge was due to
his efforts to start a union but had not then known that he could seek relief
from the Board for such a discharge. When rehinng Serrano in 1976 at the
same pay he had received in 1973 Baizer said that Respondent had made a
big mistake in firing him. Serrano replied that he was not going to give out
any names on who was "organizing it," that he wanted to just clean every-
thing and start fresh. that he had done what he had to do, and that Baizer
had done what he had to do.
I My findings about this telephone conversation are based on Serrano's
testimony. Baizer testified that he told Serrano that Baizer thought the
Union could not do anything for him, and that Baizer also told Serrano to
remember what happened the last time when the men were not behind him.
Baizer denied saying that Serrano could stop the Union if he wanted to. To
the extent their testimony conflicts, for demeanor reasons I credit Serrano. In
view of my findings as to this conversation and as to Baizer's conversation
with employee Bald (see section II,B.5 infra) and for demeanor reasons I do
not credit Baizer's testimony that he did not know about Serrano's 1973
union activity
9 This was technically true as to one card signed by Bld. Initiall) he
signed a card at employee Serrano's request. but it was temxporanly mislaid
and another was left or him il the cenlr.l statwin
993
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
does not refer to the Serrano remarks. I accept Bald's expla-
nation that he was instructed to put in his statement things
that were said about the Union and himself, not about
other people. As previously noted, Baizer's demeanor was
singularly unpersuasive. I credit Bald.
6. Conversations between President Baizer and employee
Nagle
Among the employees who signed cards that were in-
spected by Baizer about May 12 was Roberta Nagle. About
late July Baizer telephoned Nagle to find out whether she
was going to report to work that night because he wanted to
make sure the shift was covered. Nagle said that she would
be in. Baizer then asked whether she had thought over care-
fully about the Union. She said yes. He asked whether she
knew what she was getting herself into. She said yes. He
said that he knew who had signed the cards. She said yes.
He said that the Union could do nothing for her. He said
that he liked her very much, would do anything for her, and
would let nobody hurt her. She said that she knew that.
About mid-August Baizer called Nagle into his office. He
asked her how everything was going and whether everyone
was treating her all right. She said everything was all right.
He said that he was glad she was back. He also said that he
knew who had signed union cards. He said that the Union
would do nothing for her. He went on to say that he liked
her very much, that she was a good operator, and that as
the only two Jewish people there they ought to stick to-
gether. When she rose to leave, he said, "Think over very
carefully what you are doing. Don't let nobody persuade
you or anything like that."
At the time that these conversations occurred Nagle was
admittedly in the bargaining unit. She resigned in August
1978.
7. Analysis and conclusions with respect to Baizer's
conversations with employees (except Outt) prior to
December 1978
In agreement with the General Counsel I find that Re-
spondent violated Section 8(a)( ) of the Act when company
President Baizer: (I) on two occasions asked employee
Kunkle about the employees' union activity; (2) upon
Kunkle's expression of interest in the Union solicited griev-
ances from him and offered to remedy some of them, infer-
entially for the purpose of causing him to lose interest in the
Union; (3) inferentially for the same purpose offered him
day-shift work and a salesman's job; (4) for the same pur-
pose offered him $100 or $200; (5) told Kunkle that not-
withstanding the secrecy of a Board election Baizer would
know the identity of his "friends" who voted against the
Union; and (6) asked Kunkle to find out from other em-
ployees and report to Baizer information about the employ-
ees' union activities.'?
Also in agreement with the General Counsel I find that
Respondent violated Section 8(a)(1) when Baizer: (7) asked
10 Although the complaint does not allege that Respondent violated the
Act by making remark number 6, 1 am satisfied that the matter was fully
litigated.
employee Nicholson why he had signed a union card: (8)
gave him the impression of surveillance over a union meet-
ing: (9) told Nicholson, a guard, that if the Union got in
Baizer would either sell the firm or rearrange Respondent's
operations to eliminate the need for guards; (10) told Nich-
olson that if the Union was not in the employees would
receive more benefits and more raises: and ( 11 ) asked em-
ployee Connolly about the Union and why she wanted to
join and said that he was not going to let the Union take
over.
In addition, I find that Respondent violated Section
8(a)(l) when Baizer: (I 12) told employee Serrano that Baizer
knew he had started the Union and threatened Serrano
with discharge or other reprisals if he did not stop the
Union; (13) asked employee Bald about his and others'
union activity; (14) told Bald that Serrano had been dis-
charged for bringing a union in previously; (15) made re-
marks to employee Nagle which created the impression of
company surveillance over the employees' union activity:
and (16) told Nagle that the Union could do nothing for
her.
In finding unlawful Baizer's interrogation of Kunkle,
Nicholson. and Connolly I note that such inquiries had no
legitimate purpose, were unaccompanied by any assurance
against reprisals, and were made by Respondent's principal
executive in his private office.
However, I do not agree with the General Counsel that in
mid-May Baizer unlawfully threatened Gundaker with dis-
charge for union activity. I accept the contention that Bai-
zer conveyed a threat of discharge to Gundaker by repeat-
edly and irritably inviting him to quit. I also agree that
Baizer's telephone conversation with Serrano a few minutes
later shows that such invitations were in fact motivated by
Gundaker's union activity. However, I see no reason to
suppose that Gundaker was aware of that motive. Accord-
ingly, these threats did not contravene the Act. N.L.R.B. v.
Illinois Tool Works, 153 F.2d 811, 814 (7th Cir. 1946). Para-
graph 6(d) of the complaint, which is grounded solely on
these threats, will be dismissed.
C. Conversation Between Supervisor Montgomery and
Employee Jedrzej
In mid-June 1978 Supervisor Robert Montgomery asked
employee Walter Jedrzej how the Union was and if the
Union was going to get in. Jedrzej said that he did not
know, and that if the Union did get in the employees would
be making more money and better benefits. Montgomery
said that they would be making no more than they were
making then.
Jedrzej was admittedly in the unit. At the time of the
hearing he was still working for Respondent.
I find that Respondent, through Montgomery. violated
Section 8(a)(1) of the Act by unlawfully interrogating
Jedrzej and by giving him the impression that selecting a
union representative would be futile. In finding such inter-
rogation to be unlawful I note that Montgomery had no
legitimate reasons for such inquiries and gave Jedrzej no
assurance against reprisals.
994
BELL BURGLAR ALARMS. INC.
D. Alleged Unfair Labor Practices Directed Against
Emploqee Out
1. Alleged conversations with Baizer
Among the employees whose cards were inspected by
Baizer on May 12 was Raymond Outt. About mid-May
Baizer called Outt into Baizer's office and asked Outt what
he was going to do about the Union. Outt asked what he
meant. Baizer said that Outt ought to know what Baizer
meant because Outt signed a card. Outt said that everybody
had signed. Baizer asked Outt where he had got the card.
Outt said that it had been left for him on the desk in the
central station. Baizer tried to induce Outt to change his
mind about the Union, but Outt said that he was not going
to change his mind. Baizer said, "Look, you bitch ... you
were the last to be hired, and you can be the first to go."
Baizer gave Outt a card with Baizer's home telephone num-
ber and said to let him know anything Outt heard about the
Union or if anyone came into the central station who was
not supposed to be there. Baizer told Outt not to tell anyone
about the conversation, including his wife, the people in the
office, or the Union; he said that Outt would be sorry if he
did tell people about it.
Two days later Outt asked Baizer to give Outt more
hours' work so that he could support his family. Baizer said
that he could give Outt more hours and more money but
was not going to "because of this aggravation we're going
to go through, and, you know, we're going to have a union
election." Baizer then drew Outt's attention to a woman
who was walking down the street. Baizer told Outt that if
he would change his mind about the Union and tell the
Union and the Board investigator to forget about every-
thing Baizer would arrange for Outt to receive sexual favors
from the woman and would take care of the bill for Outt.
Outt declined.
Three or four times each week thereafter until Outt re-
signed from Respondent's employ in August Baizer ap-
proached Outt and asked him if he had heard anything
more on the Union. On each such occasion Outt said no,
and Baizer said to let him know if Outt heard anything.
Also, about four times after the conversation about the
woman Baizer told Outt to "keep after the Labor Board
and the Union and tell them to forget about it; we don't
want the Union in there."
My findings under this heading are based on Outt's testi-
mony. Baizer admitted part of the mid-May conversations
testified to by Outt, but he denied other remarks which Outt
attributed to him. Baizer denied the entire incident regard-
ing an offer of sexual favors. Outt's testimony about this
latter incident differed from his prehearing affidavit in cer-
tain particulars. including whether Baizer spoke to the
woman before or after his conversation with Outt and
whether Baizer approached the woman or she approached
him. Also, Outt's prehearing affidavit does not mention the
incident, denied by Baizer, regarding Outt's request for
more hours and more money. Nonetheless, for demeanor
reasons I credit Outt.
2. Alleged discrimination; alleged conversations with
Montgomery
When hiring Outt as a guard in February 1978, Baizer
told him that Respondent wanted him to carry a gun in the
course of his duties, and that under Pennsylvania law in
order to carry a gun he would be required to obtain a cer-
tificate that he had taken a course in handling lethal weap-
ons." Outt took the course in June 1978 and obtained the
certificate; total cost was $167 $117 for the course itself,
$35 for processing by the Pennsylvania police, and $15 for
an identification card. Outt's gross weekly paycheck at that
time was about $166. When Outt went to Supervisor Mont-
gomery to pick up the paycheck from which Outt expected
to pay for the certificate he asked Montgomery. "Am I
going to get reimbursed?" Montgomery said "No, this is all
out of your pocket," and threw Outt his check, which fell
on the floor. Outt paid the entire cost of the certificate out
of his own pocket and was never reimbursed by Respon-
dent. On another occasion Montgomery asked Outt what
he thought about the Union getting in. Outt replied. "If it
gets in, more power to it." Montgomery said. "It's not going
to get in here because .. if it does I can be a mean son of
a bitch." Also, Montgomery told Outt that the Union could
not give him a thing, that everything had to come from
Baizer.
My findings in the preceding paragraph are based on
uncontradicted portions of Baizer's and Outt's testimonies
and on the wage rate set forth in Outt's union card. How-
ever, Baizer's and Outt's testimonies conflict about whether
Baizer initially told Outt that Respondent would pay for
the course. Baizer testified that when hiring Outt he told
him that Respondent had paid for the certificates of the
employees that were already working for Respondent when
the Lethal Weapons Act went into effect (December 31,
1975); that Respondent would prefer to hire someone who
already had the certificate and, therefore, could carry a gun
immediately; and that Respondent would not pay for ob-
taining his certificate. Still according to Baizer, Outt then
said that he would pay for the certificate out of his own
pocket. Baizer further testified that Respondent paid for the
certificates of employees Nicholson and Scelza because they
were already working for Respondent when the law went
into effect,'" but that of the guards who came to work for
Respondent subsequently one already had a certificate and
the other paid for it himself. Outt testified that nothing was
said to him during his hiring interview about the lethal
weapons certificate. Still according to Outt. Baizer men-
tioned the certificate to Outt when he came to work that
night. Outt asked how much it would be, and Baizer said
not to worry about it, that Baizer "Would take care of
things" (Outt's initial version), or that Baizer "would help
[him] out" (Outt's later version).
As to the Baizer-Outt conversation about payment for
the certificate, I credit Outt. Outt's demeanor was much
more persuasive than Baizer's. Moreover, Outt's February
1978 hiring rate was $3 an hour (increased to $3.20 at an
undisclosed date before May 1, 1978); his gross pay was
initially about $156 and later about S166, and he had a wife
and four small children. I regard it as somewhat improb-
able that with these family responsibilities he would have
' See 22 P.S. 11§§4150. effective December 31. 1975.
': Nicholson testified that he started working for Respondent in 1974. Bai-
zer's testimony aside. Sceiza's hiring dale is not show n by the record.
995
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
continued to work at that wage rate or that Respondent
would have expected him to continue to work if he had
been told that he would need a $167 certificate to keep the
job. As to the only other guard employed by Respondent
who had to pay for the certificate himself, the record fails to
show his wage rate, his family responsibilities (if any), or
whether Respondent remembered to advise him of the cer-
tificate requirement during his hiring interview. As to what
Baizer told Outt, I accept the version given by Outt which
was least favorable to him-namely, that Baizer said he
would help Outt.
Outt was a guard and was not in the appropriate unit. He
resigned from Respondent's employ about August 1978. He
never told any of the other employees about his conversa-
tions with Montgomery.
3. Analysis and conclusions regarding the unfair labor
practices against Outt
I agree with the General Counsel that Respondent vio-
lated Section 8(a)(1) of the Act when company President
Baizer: (1) asked Outt where he had obtained his union
card; (2) threatened to fire Outt for his union activity; (3)
told Outt to let Baizer know anything Outt heard about the
Union; (4) refused because of the pending union election to
give Outt more hours and more money: and (5) offered
Outt benefits if he would change his mind about the Union
and tell the Union and the Board to forget about every-
thing. Also, I find that Respondent violated Section 8(a)(1l
when Supervisor Montgomery told Outt that Montgomery
would be "mean" to the employees if the Union got in, and
that the Union could not give Outt a thing.
In addition, I agree with the General Counsel that Re-
spondent violated Section 8(a)(I) and (3) when Respondent
failed to comply with Baizer's promise to help Outt defray
the cost of obtaining a lethal weapons certificate. In Febru-
ary 1978, the same day that Outt was hired, Baizer told him
that Baizer would help him out in defraying the cost of
obtaining the certificate. However, on May 12 Baizer in-
spected Outt's union card. Thereafter, Baizer threatened to
fire Outt for union activity, denied him more hours and
more money because of the "aggravation" of a union elec-
tion, offered him benefits if he would change his mind
about the Union, and tried to induce him to report to Bai-
zer about the union activity. Outt declined the benefits and
failed to make the requested reports. A few weeks later,
when Outt asked Supervisor Montgomery about obtaining
reimbursement, he accompanied his refusal by throwing
Outt's check at him so hard that it fell on the floor. Mont-
gomery on another occasion evinced his own resentment at
Outt's expression of union sympathies by telling him that
Montgomery could be "mean" if the Union came in. Also.
by telling Outt that the Union could not give him a thing
and everything had to come from Baizer Montgomery put
into words what Respondent conveyed by its acts in failing
to comply with its promise about help in paying for the
certificate. I conclude that Respondent broke this promise
in order to punish Outt for his intervening union activity
and thereby violated Section 8(a)(1) of the Act. Because
Outt needed the certificate as a condition of continued em-
ployment I find that Respondent's conduct also violated
Section 8(a)(3).
E. Alleged UnJair Labor Practices in Connection with
Subpenas
I. Testimony regarding the subpena matter.
In late December 1978 supenas were issued at the Gen-
eral Counsel's instance to company President Baizer and to
five employees who were still in Respondent's employ-
namely, Bachman, Metzger, Nicholson, Roscioli, and
Jedrzej. These were the only employees still on Respon-
dent's payroll who had signed the union cards that were
inspected by Baizer in May 1978. The return date on these
subpenas was January 10, 1979, the first day of the hearing.
None of these five employees came to the hearing on that
date. The General Counsel contends that Baizer instructed
these five employees to disregard such subpenas. Baizer tes-
tified on January 10, as an adverse witness for the General
Counsel, that he may have openly stated in the central sta-
tion, "If anybody wants to go they can go, there is nothing
they have to discuss with me." He denied telling anyone
that he did not have to go if he did not want to go. All of
these five employees but Roscioli testified on February 15,
1979, after their subpenas had been enforced in Federal
district court.
Bachman testified on February 15, 1979, that after re-
ceiving his subpena and before the return date he told Bai-
zer that Bachman had received a subpena, and that Baizer's
only response was to shake his head. Bachman further testi-
fied that he did not give or show his subpena to Baizer or
give him the envelope that the subpena came in. According
to Bachman, he failed to appear on January 10 because he
had the flu.'3 Baizer testified on January 10, as an adverse
witness called by the General Counsel, that Bachman had
showed him the subpena. and that Baizer "told him he can
do anything he wants to with it; what's he showing it to me
for?" As previously noted, Baizer denied telling anyone that
he did not have to go if he did not want to. After hearing
Bachman testify, Baizer testified, in response to questions
by Respondent's counsel, that Bachman had not shown
Baizer the subpena but "just discussed it with me." Baizer
was not asked the contents of this discussion. At the very
best from Respondent's point of view, the foregoing evi-
dence shows that Bachman or Baizer was mistaken about
matters relating to Bachman's subpena. As to this subpena
matter, for demeanor reasons I doubt the veracity of both.
However, even when supplemented by the demeanor fac-
tor, '4 the foregoing evidence, at least standing alone, does
not preponderantly establish a violation of the Act.
Metzger testified on February 15, 1979, that upon receiv-
ing his subpena he approached Baizer, showed it to Baizer
but did not give it to him, and "asked [Baizer's] advice as
far as what it stood for." According to Metzger, Baizer told
him that he had to appear in court. Metzger credibly testi-
fied that at 2 a.m. the first morning of the hearing, January
10, he rushed his father to the hospital with a heart attack,
1 He reported to work for Respondent on JanuarD 9. He was not asked
when he became ill.
'4 See N. L R. B. v. Walton Manufacturing 'Cornpan, and Loganville Pants
Co.. 369 S. 404. 408 (19621: Bon Hennings Logging Co. . N.LR.B., 308
F.2d 548, 554 (9th Cir. 1962): Shattuck Denn Mining Corporation (Iron King
BranchJ v. L.R.B.. 362 F.2d 466, 470 (9th Cir 1966).
996
BEL BURGLAR ALARMS. INC.
and that the younger Metzger was in the hospital the whole
day. Metzger testified that this family emergency was the
reason he had failed to honor the subpena on January 10.
On January 10, as an adverse witness called by the General
Counsel, Baizer testified that Metzger told Baizer that
Metzger had received a subpena, but that Metzger had nev-
er showed him a subpena, and that he never discussed the
subpena with Metzger. On February 16, after hearing
Metzger testify, Baizer testified that Metzger gave him the
subpena, that Baizer looked at it, and then gave it back to
him. Here again, at the very best from Respondent's point
of view, Metzger or Baizer was mistaken in his testimony
about their contacts in connection with the subpena. Here
again, I doubt the veracity of both as to such contacts.
However, here again, the foregoing evidence, even when
supplemented by the demeanor factor, does not preponder-
antly establish a violation of the Act, at least standing
alone. Neither Metzger nor Baizer testified about the enve-
lope in which Metzger received his subpena.
Nicholson was the first witness called after the resump-
tion of the hearing, following the 5-week hiatus made neces-
sary by these five employees' failure to comply with the
December 1978 subpenas. Initially, when called as a wit-
ness by the General Counsel and examined by her, by
union counsel, and by me, he nervously testified as follows:
After Nicholson received his December 1978 subpena Bai-
zer asked him whether he had received one and said that a
few other "fellows" had already received subpenas. Because
Baizer was "the owner of the Company and it was dealing
with matters of the Company," Nicholson showed him the
subpena; at this point, Nicholson was not asked and did not
testify about whether he had given Baizer the subpena or its
envelope. Also, Nicholson told Baizer that Nicholson
would "go if it's possible to what's his name if I can make
it." Baizer said that if Nicholson "wanted to go, fine." Also,
Baizer said that he thought the Union and the Board were
trying to "zonk" him, and that he was very unhappy about
the Union.' After receiving a set of documents advising
him that the Federal district court had ordered him to tes-
tify Nicholson physically gave Baizer the subpena attached
to these documents because "The man's the owner of the
Company." Baizer said, "O.K., fine." After Baizer and the
supervisors had finished reading the subpena it was re-
turned to Nicholson by hand.
After giving this testimony Nicholson remained in the
hearing room during testimony, and colloquy by counsel,
which suggested that Respondent would be advantaged by
testimony that Nicholson had not given Baizer the first sub-
pena or the envelope in which it came (see infra). Nicholson
then volunteered to Respondent's counsel that he would so
testify. Respondent's counsel thereupon called Nicholson as
Respondent's last witness except Baizer. Nicholson then
testified that on December 27, at an undisclosed hour after
6 p.m., while he and Baizer were continuously in each oth-
er's presence, Baizer received the subpena and its envelope
from Nicholson, read the subpena, and returned both the
I As previously found, in May 1978 Baizer had told Nicholson that the
firm would be sold or the need for guards like Nicholson would be elimi-
nated if the Union came in, and that employees would get more raises and
benefits if the Union did not come in.
subpena and the envelope to him without copying the sub-
pena.
When testifying as an adverse witness for the General
Counsel on January 10. 1979. after Nicholson had received
his subpena but before it was judicially entforced. Baizer
denied having any conversation w.ith Nicholson about a
subpena. For demeanor reasons I do not credit his testi-
mony in this respect. Baizer was not asked about ans con-
versations after January 10 with Nicholson.
For unexplained reasons Roscioli never testified. On
January 10. when called by the General Counsel as an ad-
verse witness, Baizer testified that Roscioli showed him her
subpena, he said that she could do whatever she wanted
with her subpena. and she took the subpena back after she
showed it to him. As previously noted, he also testified that
he did not tell anyone that he did not have to go if he did
not want to go. On February 16 Baizer testified on Respon-
dent's behalf that after giving him the subpena Roscioli
"probably ran out and left me with" the subpena in his
hand, "probably to answer a telephone or do something" in
the central station. and that he put her subpena in his desk
drawer. Baizer testified that he could not recall whether he
kept her subpena overnight.
Jedrzej testified on February 15, 1979, that a few days
after his December 1978 receipt of his subpena he ap-
proached Baizer. told him that Jedrzej had a subpena, and
asked him what to do. Still according to Jedrzej. Baizer
said, "It's up to Iyou]." and that the subpena "doesn't mean
nothing." For demeanor rasons I credit Jedrzej's testimony
up to this point and discredit Baizer's denials summarized
below. As to this conversation Jedrzej testified, "I didn't
take nothing of it, serious."
Jedrzej testified that a few days before the conversation
described in the foregoing paragraph he approached Baizer,
told him that Jedrzej had a subpena, and asked him what to
do. Still according to Jedezej's credible testimony, Baizer
told him to "do what you have to do" and showed him the
contents of Baizer's desk drawer. Initially, Jedrzej testified
that he saw in the drawer one envelope which looked like
the envelope in which he had received his own subpena and
underneath which was a "pile of stuff." He testified,
"couldn't tell you" regarding the color of that envelope.
Immediately after that he testified that he saw three or four
envelopes but saw the name on only the top one and did
not know whose name that was; "it could have been any-
body of the four that didn't show." To refresh his recollec-
tion the General Counsel read to him his prehearing state-
ment, which averred that he had seen in the desk drawer
subpenas bearing the names of Bachman, Roscioli. and
Nicholson. After testifying that this statement did refresh
his recollection, he testified that when Baizer opened the
drawer Jedrzej saw "three or four, whatever it says on here"
subpenas but, "I didn't see names, but I gathered . . . that
they were the ones that didn't appear." On cross-examina-
tion Jedrzej implicitly accepted company counsel's asser-
tion that Jedrzej saw "envelopes" in the drawer. All counsel
stipulated that if asked he would testify that he is unable to
read. Employee Ronald Kinter, however, credibly testified
that Jedrzej read and filled out his own union card. This
card contains. in addition to Jedrzej's handwritten signa-
997
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ture, a number of hand printed entries, all in the appropri-
ate blanks.'
On January 10, 1979, when called by the General Coun-
sel as an adverse witness, Baizer denied having any conver-
sation with Jedrzej about a subpena and denied telling any-
one that he did not have to go to the hearing if he did not
want to. On February 16, after hearing Jedrzej testify, Bai-
zer testified that Jedrzej told Baizer in his office that Jedrzej
had received a subpena and showed it to Baizer, who said
that he should be there. Baizer testified that he could not
remember whether he took it from Jedrzej. Baizer testified
that he may have opened a drawer during his conversation
with Jedrzej and admitted that Roscioli's subpena was in
the drawer, but he denied opening the drawer for the pur-
pose of showing Jedrzej anything. Baizer then testified that
he had no other subpenas in the drawer. At this point, in
response to a question by me, he denied having received
from the Board any subpenas directed to himself-an asser-
tion which he withdrew after it was questioned by Respon-
dent's counsel.
2. Analysis and conclusions regarding the subpena matter
The direct and credible testimony shows that when em-
ployee Jedrzej asked company President Baizer what to do
about the subpena Baizer said that it was up to Jedrzej, and
the subpena "doesn't mean nothing." I find that these re-
marks by Baizer violated Section 8(aXI) of the Act. Bobs
Motors, Incorporated, 241 NLRB 1236 (1979); Block-South-
land Sportswear, Inc., et al., 170 NLRB 936, 973-974 (1968),
enfd. 420 F.2d 1296 (D.C. Cir. 1969); Lester Brothers Incor-
porated, 142 NLRB 992, 1011-12, 1016 (1963), enfd. 337
F.2d 706 (4th Cir. 1964); Richard T. Furtney and Naomi P.
Furtney, a Co-Partnership d/bla Mr. F's Beef and Bourbon.
212 NLRB 462, 466 (1974); Crockett-Bradley Inc., 212
NLRB 435, 445 (1974), enfd. 523 F.2d 449 (5th Cir. 1975).
I further find that Respondent violated Section 8(a)(1) by
impliedly conveying the same message to Jedrzej a few days
earlier during the desk drawer incident. As to what oc-
curred, I find that when Jedrzej asked Baizer what to do
about the subpena Baizer told him to "do what you have to
do" and opened a desk drawer to display to him at least
two subpenas (Roscioli's and Baizer's), perhaps in their en-
velopes, perhaps more subpenas," and perhaps one or more
Board envelopes which had contained subpenas. 5 I infer
16 The blank calling for "Date" has the entry "5-2-78." The blanks calling
for "Name-please pnnt" and "Signature" contain his printed and hand-
written names, respectively. The blanks calling for address, city, state, zip
code, home telephone number, "Employed by: company name," and "Shift"
are all filled in with no visible errors; the words "Philadelphia" and "Bur-
glar" are correctly spelled. Also, the blank calling for "Rate of Pay" is filled
in with the specification "Per H.R." However, the entry in the length of
service" blank is "8 yaer" (sic), and the entry in the "Job classification"
blank is "Alarms Unstallation" (sic).
a In view of the conflicts between Baizer's testimony and the testimonies
of employees Bachman and Metzger, the internal inconsistencies in Baizer's
testimony about his conversations with these employees, and for demeanor
reasons I am inclined to think that Baizer had possession of their subpenas,
at least for a while. See the cases cited supra at fn. 14. Also for demeanor
reasons I do not accept Nicholson's uncorroborated testimony about his
subpena and its envelope.
" Baizer obviously had the envelope in which his own subpena came. The
evidence fails to account for the envelopes of Roscioli's subpena (which
subpena Baizer admittedly put in the drawer) and of Metzger's subpena.
that Baizer intended to convey the message that his posses-
sion of these subpenas or apparent subpenas evinced the
decision of others to ignore their subpenas, and that the
others' decision indicated that Jedrzej could follow the
same course. Jedrzej may have been unable to read the
names on these documents in the drawer and may have
based on inference his recitation of such names in his pre-
hearing affidavit. However, I am satisfied that the general
physical appearance of these documents caused Jedrzej to
make a correct inference, at the very least, about what kind
of documents they were. As a witness Jedrzej was little
short of terrified. I attribute to his extreme nervousness the
variations in his testimony and between his testimony and
his affidavit.
F. The ReJisual To Bargain
Uncontradicted record evidence establishes that the
Union sought and was denied recognition at a time when a
majority of Respondent's employees in an appropriate unit
that had signed cards designating the Union as their collec-
tive-bargaining representative. The credited and partly un-
contradicted evidence further shows that after refusing to
recognize the Union, Respondent engaged in unfair labor
practices which had the tendency to undermine the Union's
majority strength and impede the election process. Whether
in such a case the refusal to bargain constitutes a Section
8(a)(5) violation and calls for a "second-category" bargain-
ing order turns on whether the possibility of erasing the
effects of past unfair labor practices and insuring a fair elec-
tion by the use of traditional remedies is slight and em-
ployee sentiment would, on balance, be better protected by
a bargaining order. Among the factors material in making
such an assessment are the extensiveness of the employer's
unfair labor practices in terms of their past effect on elec-
tion conditions and the likelihood of their recurrence in the
future. N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575,
614 615 (1969): Daybreak Lodge Nursing and Convalescent
Home, Inc., 230 NLRB 800, 804 (1977), enfd. 585 F.2d 79
(3d Cir. decided Oct. 17. 1978, amended Dec. 5, 1978);"9
Frito-Lay, Inc. v. N.L.R.B., 585 F.2d 62, 68-79 (3d Cir.
1978).
On the basis of these standards I agree with the General
Counsel that a bargaining order should issue here. Com-
pany President Baizer learned about May 12, 1978, of the
identity of the 12-unit employees in a unit of 18 and the 2
19 In enforcing the Board's Order in Daybreak, the court said (585 F.2d at
81):
This court has recently held that we will not refuse to enforce a bar-
gaining order merely because the Board adopted the ALJ's findings and
conclusions with respect to such order instead of filing independent find-
ings. Kenworth Trucks of Philadelphia, Inc. v. N.L.R B.. 580 F.2d 55 (3d
Cir. 1978) Idecided Mar. 30. 1978, opinion on rehearing Aug. 11, 19781.
The AU's findings and conclusions which the Board adopted were suf-
ficient to meet the standard of analysis and elucidation set by '.I..R.fB.
v. Armcor Industries Inc., 535 F.2d 239 (3d Cir. 1976).
In oral argument Respondent cited N.L.R.B. v. Armcor Industries, Inc., 98
LRRM 2441, 83 LC 10.618 (3d Cir. 1978). This opinion was vacated by
unpublished order on July 10, 1978, and set for rehearing en banc. Upon
rehearing en bane, the Board's supplemental Order (227 NLRB 1543 (1977)),
issued after the court's 1976 Armcor decision (535 F.2d 239), was denied
enforcement without opinion by an equally divided court (588 F.2d 821 (3d
Cir. 1978)).
998
BEL.I. BURGLAR ALARMS, INC.
nonunit employees who had signed union cards by that
date. During the next 3 months and continuing after the
filing of the charges and complaint herein Respondent di-
rected unfair labor practices at 6 of the 12 signatory unit
employees and at both of the signatory nonunit employees.
These unfair labor practices included threats to discharge
or effect other reprisals against employees for union ac-
tivity; a threat to sell the plant if the Union got in: offers of
various benefits for rejecting the Union: telling an em-
ployee that because of the forthcoming union election, he
would not receive more hours and more money; statements
to employees that union representation would be futile: at-
tempts to induce employees to find out from other employ-
ees and report to management information about the em-
ployees' union activities; giving employees the impression
of surveillance; coercively interrogating employees about
the Union; and, because of an employee's subsequent union
activity, breaching its earlier promise to help pay for his
lethal weapons certificate. In addition, about 2 weeks be-
fore the hearing before me Respondent told an employee
who had been subpenaed to testify about some of the fore-
going unfair labor practices that the subpena meant noth-
ing and he did not have to comply with it. These unfair
labor practices were specifically directed toward more than
a third of the employees in Respondent's rather small non-
supervisory work force?, and in the absence of evidence to
the contrary it may be inferred that they were likely com-
municated to other employees. Daybreak Lodge, 230 NLRB
at 805. Most of these unfair labor practices were committed
by Respondent's president and owner. The others were
committed by an individual who, at the time of the hearing,
was still one of Respondent's two supervisors. To the extent
that the foregoing evidence relates to the likely impact of
Respondent's unlawful conduct on unit employees, the
weight of such evidence is to some extent lessened by em-
ployee Gundaker's testimony that Outt, a nonunit em-
ployee, was the only employee Gundaker told about the
unfair labor practices directed at him, by the fact that two
employees at whom the unfair labor practices were directed
(Outt and Nicholson) were excluded from the bargaining
unit because they were guards, and by Outt's testimony that
he never reported to any other employee Supervisor Mont-
gomery's unlawful statements to him. However, both Outt
and Nicholson had constant contact with unit employees in
the course of their work, and there is no reason to suppose
that their guard status caused them to refrain from passing
along to unit employees Baizer's unlawful remarks and con-
duct directed at the guards.
In concluding that the chances of insuring a fair election
through traditional remedies are slight, I give weight to
company president Baizer's conduct in connection with em-
ployee Jedrzej's subpena. Such traditional remedies include
requiring the employer to post a notice which, inter alia,
advises employees of their rights and invites employees to
get in touch with the appropriate Regional Office of the
Board if they have questions about whether the employer
As of February 16, 1979, in addition to Baizer and 2 admitted supervi-
so, Respondent had 20 persons on its payroll, including 2 guards, 2 sales
employees, and I secretary. The May 1978 bargaining unit consisted of 18
employees.
has complied with the assurance in the notice that he will
respect these rights. Baizer's unfair labor practices in con-
nection with the subpenas render highly questionable the
efficacy of these provisions in the notice. Baizer's unlawful
statements to an employee still actively in Respondent's
employ that he need not compli with a subpena which re-
quired him to testify about allegations of unfair labor prac-
tices by Respondent would tend to discourage employees
now in Respondent's employ to accept the suggestion in the
notice that they report subsequent infractions to the Re-
gional Office--employee activity which is comparable to
testifying at a hearing but is in no sense legally required.
TIheir reluctance to make such reports might well be height-
ened by reports from employee Nicholson. who was also
actively working for Respondent at the time of the hearing.
about Baizer's threats of retaliation for union activity. In
short, Baizer's conduct in connection with the subpena just
before the hearing tends to limit the chances that the Board
will learn about any subsequent violations committed by
Respondent.
In view of the foregoing considerations and the fact that
the Respondent's February 1979 work force included two
employees against whom Respondent specifically directed
unfair labor practices, I conclude that Respondent's May
1978 refusal to bargain violated Section 8(a)(5) and (I) of
the Act and warrants a Gissel "second-category" bargaining
order notwithstanding the changes in the identity of the
employees in the bargaining unit between the Mayv 1978
refusal to bargain and the January-February 1979 hearing.
As of this later date, the unit consisted of 15 employees. 8 of
whom (including 4 card signers) had been in the unit in
May 1978. Cf. Tower Enterprises. Inc., d/b/a Tower Rec-
ords, 182 NLRB 382, 387 (1970), enfd. 79 LRRM 2736, 67
LC 1r2,453 (9th Cir. 1972). Because Respondent's 8(a)(l)
violations began on May 13, 1978, the refusal to bargain
will be found unlawful on and after that date.
CON(I tSIONS o1. LA w
I. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All service employees, installation employees, and op-
erators employed by Respondent at its Philadelphia, Penn-
sylvania, facility, but excluding office clerical employees.
guards, and supervisors as defined in the Act, constitute a
unit appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all times since May 9, 1978, the Union has been
and is now the exclusive representative of the employees in
said unit for the purpose of collective bargaining within the
meaning of Section 9(a) of the Act.
5. Respondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Sections 8(a)(1)
and 2(6) and (7) of the Act by interrogating employees
about union activity: soliciting an employee's grievances
and offering to remedy some of them for the purpose of
causing him to lose interest in the Union: offering employ-
ees benefits for the purpose of causing them to lose interest
in the Union: trying to induce employees to report to Re-
999
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent about the union activities of their fellow employ-
ees; giving employees the impression of surveillance over
union activities; threatening employees with reprisals for
union activity; promising employees benefits if the Union
did not come in; telling employees that union representa-
tion would be futile; telling an employee that benefits were
being withheld from him because of the union movement;
and telling an employee that he did not have to honor a
subpena requiring him to testify at a Board unfair labor
practice hearing.
6. Respondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Sections 8(a)(l)
and (3) and 2(6) and (7) of the Act by failing and refusing
because of employee Raymond Outt's union activity to help
him pay for the expenses of obtaining a lethal weapons
certificate.
7. By refusing to recognize and bargain collectively with
the Union as the exclusive representative of the unit de-
scribed in paragraph 3, supra, while engaging in the con-
duct set forth in paragraphs 4 and 5, supra, Respondent has
since May 13, 1978, engaged in unfair labor practices af-
fecting commerce within the meaning of Sections 8(a)(5)
and (1) and 2(6) and (7) of the Act.
8. Respondent has not violated Section 8(a)(l) of the Act
by threatening employee Gundaker that he would be dis-
charged for union activity.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be required
to cease and desist therefrom. Because such unfair labor
practices included threats to engage in unfair labor prac-
tices in the future, were committed largely by Respondent's
owner and principal executive officer, occurred from the
day after Respondent learned of the Union's majority to a
few days before the hearing, were directed toward a sub-
stantial proportion of the employees who to Respondent's
knowledge had signed union cards, and involved several
different types of violations a broad order is called for. Ac-
cordingly, I shall recommend that Respondent be required
to cease and desist from infringing on employees' rights in
any other manner.
Affirmatively, Respondent will be required to bargain
with the Union and to post appropriate notices. Also, Re-
spondent will be required to reimburse employee Outt for
all the money he spent to obtain his lethal weapons certifi-
cate. It is true that Baizer did not promise to reimburse him
for the entire amount but merely promised to help him out.
However, because Respondent's unlawful breach of this
promise has made it impossible to determine how much
Respondent would have paid if its promise had been kept,
doubts about the amount should be resolved against Re-
spondent. Such reimbursement will be with interest as pre-
scribed by Florida Steel Corporation, 231 NLRB 651
(1977). 21
21 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
Whether the interest rate should be increased to 9 percent is now under
consideration by the Board. Accordingly, I regard as premature any adop-
tion by me of such a rate, and reject the General Cousel's request therefor at
the hearing. Hansen Cakes, Inc., 242 NLRB 472, fn. 1 (1979).
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:
ORDER
2 2
The Respondent, Bell Burglar Alarms. Inc.. Philadelphia.
Pennsylvania. its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Interrogating employees about union activity in a
manner constituting interference, restraint, or coercion.
(b) Soliciting and promising to remedy employees' griev-
ances for the purpose of causing them to lose interest in
unionization.
(c) Offering employees benefits for the purpose of caus-
ing them to lose interest in unionization.
(d) Trying to induce employees to report to Respondent
about the union activities of their fellow employees.
(e) Giving employees the impression of surveillance over
union activities.
(f) Threatening employees with reprisals for union ac-
tivities.
(g) Promising employees benefits if a union does not
come in.
(h) Telling employees that union representation would
be futile.
(i) Telling employees that benefits are being withheld
from them because of the union movement.
0) Telling employees that they do not have to honor sub-
penas requiring them to testify at unfair labor practice
hearings before the National Labor Relations Board.
(k) Failing and refusing because of employees' union ac-
tivity to help them pay for the expense of obtaining a lethal
weapons certificate.
(1) Refusing to recognize and bargain collectively with
Teamsters Local Union No. 115, a/w International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America as the exclusive representative of the
following appropriate unit:
All service employees, installation employees, and op-
erators employed by Respondent at its Philadelphia,
Pennsylvania. facility, but excluding office clerical em-
ployees, guards, and supervisors as defined in the Act.
(m) Discouraging membership in the Union or any other
labor organization by discrimination in regard to hire or
tenure of employment or any term or condition of employ-
ment.
(n) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them by Section 7 of the National Labor Relations Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Reimburse employee Raymond Outt for the expenses
he incurred in obtaining a lethal weapons certificate in the
22 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.
1000
BEI.LL BURGLAR ALARMS, INC.
manner set forth in that section of this Decision entitled
"The Remedy."
(b) Upon request, recognize and bargain collectively
with the Union as the exclusive representative of the em-
ployees in the appropriate unit and embody in a signed
agreement any agreement reached.
(c) Post at its Philadelphia, Pennsylvania, facility copies
of the attached notice marked "Appendix."2 3 Copies of said
notice, on forms provided by the Regional Director for Re-
gion 4. after being duly signed by Respondent's authorized
representative, shall be posted by it immediately upon re-
ceipt thereof, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 4. in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
IT IS FURTHER ORDERED that Paragraph 6(d) of the com-
plaint be, and it hereby is, dismissed.
12 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 Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF TI1E
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government.
After a hearing at which all sides had the chance to present
their evidence, it has been decided that we violated the law
in certain ways. We have been ordered to post this notice.
We intend to carry out the Order of the Board and abide by
the following:
The National Labor Relations Act gives employees the
following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representatives of
their own choosing
To engage in activities together for the purpose of
collective bargaining or other mutual aid or protec-
tion
To refrain from any such activities.
WE WILL NOT ask you about union activity in a
manner constituting interference. restraint, and coer-
cion.
WE WILL NOT solicit and promise to remedy your
grievances for the purpose of causing you to lose inter-
est in unionization.
WE WIL.l. NOT offer you benefits for the purpose of
causing you to lose interest in unionization.
WE WIt.L NOT try to induce you to report to us about
the union activities of your fellow employees.
Wi Wil. NOT give you the impression of surveil-
lance over union activities.
WE WIl.l NOT threaten you with reprisals for union
activities.
WE; WILL NOT promise you benefits if a union does
not come in.
WF Wl l. NOT tell you that union representation
would be futile.
WE WILL NOT tell you that benefits are being with-
held from you because of the union movement.
WE WI. L Nor tell you that you do not have to honor
subpenas requiring you to testify at unfair labor prac-
tice hearings before the National Labor Relations
Board.
We WILL NOT fail and refuse, because of your union
activity, to help you pay for the expenses of obtaining
a lethal weapons certificate.
WE WILL Nor discourage membership in the Team-
sters or any other union by discrimination in regard to
hire or tenure of employment or any term or condition
of employ ment.
WE WIll NOT refuse to recognize and bargain collec-
tively with Teamsters Local Union No. 115, a/w Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, as the only
representative of all employees in the following unit:
All service employees, installation employees and
operators, but excluding office clerical employees.
guards and supervisors as defined in the Act.
WE WILl. NOT in any manner interfere with, restrain,
or coerce employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
WE wv'.., upon request, bargain with the Teamsters
as these employees' sole representative, and embody in
a signed agreement any understanding reached.
WE wil.L reimburse Raymond Outt. with interest,
for the expenses he incurred in obtaining a lethal
weapons certificate.
Our employees are free to exercise any or all of these
nghts, including the right tojoin or assist the Teamsters, or
any other union. Our employees are also free to refrain
from any or all such activities, except to the extent that they
are under a lawful contract which lawfully requires them to
become union members in order to keep their jobs.
BEI.L BURGI.AR ALARMS, INC.
1001