Center Ridge Co.

National Labor Relations Board - Board Decisions

Aug 27, 1985

276 N.L.R.B. 105 (N.L.R.B. 1985)

CENTER RIDGE CO 105
Center Ridge Co and Michael Kemp Case 14-CA-
16285
27 August 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 1 June 1983 Administrative Law Judge
Elbert D Gadsden issued the attached decision
The Respondent filed exceptions and a supporting
brief '
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge s rulings findings, 2 and
conclusions only to the extent consistent with this
Decision and Order
The question presented here is whether the Re
spondent violated Section 8(a)(1) of the Act by dis
charging security officer Michael Kemp after he
complained to the news media about an alleged
conflict between county licensing requirements and
new work procedures announced by the Respond
ent Relying on the standard of per se concerted
activity as defined and applied in Alleluia Cushion
Co, 221 NLRB 999 (1975), and its progeny, the
judge found that the Respondent had violated Sec
tion 8(a)(1) because Kemp's individual complaints
involved a matter of mutual concern to all of the
Respondents security officers and consequently
were protected concerted activity
Subsequent to the judge's decision, the Board
issued its decision in Meyers Industries, 268 NLRB
493 (1984) The Board majority there expressly
overruled the Alleluia precedent and held that
In general , to find an employee's activity to be
concerted, we shall require that it be en
gaged in with or on the authority of other em
ployees, and not solely by and on behalf of the
employee himself Once the activity is found
to be concerted, an 8(a)(1) violation will be
found if in addition, the employer knew of the
concerted nature of the employee's activity,
the concerted activity was protected by the
Act and the adverse employment action at
issue (e g discharge) was motivated by the
employees protected concerted activity 3
In this case, there is testimony that Kemp and
other security officers discussed their concern
about the Respondent's new procedures and the
possibility of protesting to the media before Kemp
acted alone in making such a protest We need not
decide, however, whether this testimony proved
that the conduct for which the Respondent fired
Kemp was concerted within the meaning of
Meyers 4 It is undisputed that the Respondent did
not know of any employee other than Kemp who
took umbrage at the new procedures As far as the
Respondent knew, Kemp s concern about a conflict
between its procedures and the county' s licensing
requirements for security guards was not shared by
any of his fellow employees In light of the Gener
al Counsels failure to prove as required by the
above quoted holding from Meyers, that the Re
spondent knew of the concerted nature of Kemp s
activity, we must reverse the judge s decision and
dismiss the complaint 5
ORDER
The complaint is dismissed
MEMBER HUNTER, dissenting
Contrary to my colleagues, I find that the Re
spondent violated Section 8(a)(1) of the Act by dis
charging employee Kemp In so doing, I agree that
Meyers Industries, 268 NLRB 493 (1984), enf
denied sub nom 755 F 2d 941 (D C Cir 1985),
provides the general framework for analysis of this
case Nevertheless, I conclude that Kemp's protest
to the news media was protected concerted activity
within the meaning of Meyers, and that the Re
spondent could not lawfully apply its work rules to
preclude Kemp from engaging in such conduct
Thus, iri espective of the state of the Respondent's
knowledge regarding the concerted nature of
Kemp's activity, I find its discipline of Kemp un
lawful in the circumstances of this case
As my colleagues acknowledge, [T]here is testi
mony that Kemp and other security officers dis
1 The Respondent filed a motion to reopen the record to supplement
its exceptions based on the alleged failure of the judge to adequately con
seder the Respondent s alternative argument that Kemp was discharged
for cause In light of our decision in this case we find it unnecessary to
pass on this argument and accordingly dismiss the motion
2 The Respondent has excepted to some of the judge s credibility find
mgs The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 ( 1950) enfd 188 F 2d 362 (3d Cv 1951)
We have carefully examined the record and find no basis for reversing
the findings
3 268 NLRB at 497
4 We likewise need not decide whether Kcmp s conduct even if con
certed was so disparaging of the Respondent as to be outside the protec
Lion of the Act See NLRB Y Electrical Workers IBEW Local 1229 346
U S 464 (1953)
5 The dissent treats the knowledge requirement as if it were established
for the first time in Meyers In fact it was well settled long before Meyers
that [I]n order to sustain an 8(l)(a) discharge finding it is necessary to
establish that at the time of the discharge the employer had knowledge of
the concerted nature of the activity for which the employee was dis
charged Diagnostic Center Hospital Corp 228 NLRB 1215 1216 (1977)
New England Fish Co 212 NLRB 306 311 (1974)
276 NLRB No 15
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cussed their concern about the Respondents new
procedures and the possibility of protesting to the
media before Kemp acted alone in making such a
protest' In fact, the testimony on this point is
stronger than the majority concedes, for the record
reveals that an employee otner than Kemp suggest
ed that they take their concerns to a local televi
lion station i Kemp later visited this station and a
local newspaper to discuss the employees con
cerns Accordingly, I find the evidence sufficient
to conclude that Kemp was acting in behalf of
other employees when he voiced concern to the
media regarding the conflict between the Respond
ent s operating procedures and county licensing re
quirements imposing contrary obligations on the
eml toyees As this concern directly involved terms
and conditions of employment it is clear that
Kemp s co-d..ct in approaching the media consti
tuted concerted activity protected by the Act 2
The judge found, and I agree that Kemp was
discharged solely because he violated the Respond
r k rl ie prohibiting employees from talkirg to
news media personnel Assuming, arguendo that
an employer may for lawful reasons promulgate
and r airitain a rule which, by its unqualified fan
guage, prohibits employee contact with the media,
in any context, at any time,3 it may not apply such
a rule to prevent employees from engaging in pro
tected concerted activities The judge and my col
leagues misconceive the nature of this case in sug
Besting ti i, Kemp's actions may be profitably com
pared with the employee conduct in Kay Fnles
Inc, 265 NLRB 1077 (1982), and NLRB v Electrt
cal Workers IBEW Local 1229, 346 U S 464 (1953)
Kemp was not disciplined because he engaged in
some form of conduct malum in se, nor because the
content of his communications to the media consti
tuted disloyalty to the Respondent On the con
trary, Kemp was discharged simply because he ap
proached the media, activity I find on the facts
here to be protected under the Act
The General Counsel did not allege the rule
under which Kemp was discharged to be unlawful
i The testimony on this point came from Kemp himself and was the
subject of a hearsay objection at the hearing The judge sustained the ob
jection at that time but reversed his ruling in his decision and admitted
Kemp s to timony While the Respondent excepts to the judge s reversal
o his -iing it is well established that hearsay testimony is not per se
inadmissible in Board proceedings Advanced Coatings 266 NLRB 321
(1983) In addition the Respondent has mo%ed to reopen the record in
this proceeding to present further evidence bearing on Kemp s perform
ance of his job duties but does not seek to adduce further testimony or
evidence in connection with the judge s reversal of his ruling
2 Roure Bertrand Dupont Inc 271 NLRB 443 (1984)
2 1 note that the legal [ v of this proposition is doubtful See Enterprise
Products Co 265 NLRB 544 (1982) American Cast Iron Pipe Co 234
NLRB 1126 ( 1978) Compare Multi Amp Testing Services Corp 263
NLRB 800 ( 1982) (rule prohibiting disclosure of internal affairs to cus
tomers and competitors not unlawful on its face)
The Board therefore may make no order respecting
it Nevertheless, the Respondents maintenance of
the rule and its application to Kemp s conduct are
not disputed, and the Board may properly find that
the rule as applied here, directly interfered with
Kemp s and other employees rights under the Act
Finally, the majority concludes that the com
plaint must be dismissed because the General
Counsel failed to show under Meyers that the Re
spondent knew of the concerted nature of Kemp s
activity at the time it discharged him I agree, of
course that Meyers establishes generally that em
ployer knowledge of concerted activity is an ele
ment of the General Counsels case but the fan
guage of Meyers is not unconditional At footnote
23 of that decision, and in the accompanying text,
which my colleagues excerpted above, we ac
knowledged that the elements of proof there dis
cussed are general ones , subject to cases presenting
special circumstances 4 I find this to be such a case
Stated simply , it makes no sense to require the
General Counsel to demonstrate that the Respond
ent knowingly interfered with concerted activity,
where the interference results from application of a
rule prohibiting the activity under any circum
stances 5 Whether the Respondent would have ig
nored enforcement of the rule had it known of the
concerted nature of Kemp's activity is uncertain,
and any uncertainty in this regard must be resolved
against the Respondent 6 For these reasons I find
that the Respondent violated Section 8(a)(1) of the
Act by disciplining employee Kemp
4 As for example ALRB v Burnup & Sims 379 U S 21 (1964) hold
mg that the Board may find that an employer violates Sec 8 (aXl) of the
Act by discharging an employee because of the employers honestly held
but erroneous belief that the employee engaged in misconduct during the
course of protected activity
b My colleagues criticism that I am treating Meyers as the seminal case
on the knowledge requirement is disingenuous given their finding that the
General Counsel failed to prove knowledge as required by the above
quoted holding from Meyers
Cf Montgomery Ward 269 NLRB 598 (1984) (rule that [m]eetings
or speeches are not to be permitted found unlawfully broad and inter
pretive ambiguities resolved against employer promulgator of rule)
Bradley Kafka Esq of St Louis Missouri for the Gen
eral Counsel
John G Young, Jr Esq of Clayton Missouri for the
Respondent
DECISION
STATEMENT OF THE CASE
ELBERT D GADSDEN Administrative Law Judge On
a charge of unfair labor practices filed on November 1
1982 and amended on November 4 and December 8
1982 respectively by Michael Kemp (an individual and
the Charging Party herein) against Center Ridge Compa
ny (the Respondent) the Regional Director for Region
CENTER RIDGE CO
14 issued a complaint on behalf of the General Counsel
on December 10, 1982
The complaint in substance alleges that the Respond
ent first suspended and thereafter discharged the Charg
ing Party because he complained to the news media
about new operating procedures for security officers
issued by the Respondent which he contends conflicted
with his security officers license requirements and that
by discharging the Charging Party the Respondent
interfered with restrained and coerced employees in the
exercise of their Section 7 rights in violation of Section
8(a)(1) of the Act
The Respondent filed an answer on December 22
1982 and an amended answer on February 25 1983 re
spectively denying that it has engaged in any unfair
labor practices as set forth in the complaint
A hearing in the above matter was held before me in
St Louis Missouri on March 8 1983 Briefs have been
received from the General Counsel and counsel for the
Respondent respectively which have been carefully
considered
On the entire record in this case and from my observa
tion of the witnesses I make the following
FINDINGS OF FACT
I JURISDICTION
Center Ridge Company the Respondent herein is and
has been at all times material herein a corporation duly
authorized to do business under the laws of the State of
Missouri
At all times material herein the Respondent has main
tained its principal office and a place of business at 25425
Center Ridge Road Cleveland Ohio (the headquarters)
Respondent maintains other places of business through
out the United States including the State of Missouri It
is primarily engaged in the management and operation
of and including providing security services to retail
shopping centers in various States including the James
town Mall in St Louis County Missouri under con
tracts with owners or lessees in shopping centers
During the 12 month period ending November 30
1982 which is a representative period of operations of
the Mall the total gross revenues derived from the oper
ation of Jamestown Mall shopping center for which Re
spondent provides security management and operational
services exceeded $100 000 and in excess of $25 000 of
which was derived from the Stix Baer and Fuller De
partment Store That store is engaged in the operation of
a retail department store and leases a space in the mall
shopping center During the same period Stix Baer and
Fuller in the course and conduct of its business oper
ations purchased and caused to be delivered to its
Jamestown Mall department store located in St Louis
County, Missouri goods materials and supplies valued in
excess of $50 000 of which goods materials and supplies
valued in excess of $50 000 were transported and deliv
ered to its Jamestown Mall department store in St Louts
County, Missouri directly from States located outside
the State of Missouri
107
The complaint alleges the answer admits and I find
that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A Background Facts
Respondent Center Ridge Company provides manage
ment and operation of retail shopping center services in
several States for which it also provides security serv
ices (security officers) In one of such shopping centers
which is the location of the current dispute herein is the
Jamestown Mall in St Louis County Missouri which
consists of approximately 82 retail tenants Among other
management services Respondent provides security offs
cers for the tenants of the Mall A St Louis County or
durance requires all security officers to be licensed by the
county police department and it also makes it unlawful
for any person to work as a security officer without a
license
A licensed security officer is bound to comply with
certain rules prescribed by the county police department
governing the performance of security duties A security
officers license can be suspended or revoked by the
police department for failure to comply with such rules
The Charging Party herein was employed by the Re
spondent for several months as a security officer and was
assigned to the Jamestown Mall On October 20 1982
Respondent issued some new rules of procedures govern
ing the assigned duties of all of its security officers at the
Mall The Charging Party expressed disagreement with
some of the rules and repeatedly complained to Re
spondent that some of the new rules conflicted with
rules of his security officers license obligations and if he
comphcd with the company rules he would violate his h
cense requirements thereby subjecting him to a situation
of probably having his license suspended or revoked
When Respondent did not agree with the Charging
Party s complaints and insisted on compliance with the
Company s rules of procedure, the Charging Party coin
plamed to the local news media When representatives of
the news media contacted Respondent about the Charg
ing Party s complaints that Respondent s rules required
its security officers to order and escort intoxicated per
sons or persons driving under the influence of alcohol
off its parking lots and on to the public roads Respond
ent immediately suspended and later discharged the
Charging Party for violating a company policy forbid
ding employees from talking to the press or media about
company business
The Charging Party contends that complaints related
to continued authority to work as a security officer
which was of mutual concern to all security officers at
the Mall was protected activity and that by suspending
and ultimately discharging him because he complained to
the news media about company policy which conflicted
with security officers licensing requirements the Re
spondent has interfered with restrained and coerced em
ployees in the exercise of rights protected by Section 7
of the Act in violation of Section 8(a)(1) of the Act
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent admits that at all times material herein
the following named persons occupied positions set op
polite their respective names and have been and are
now supervisors of Respondent within the meaning of
Section 2(11) of the Act and are agents within the mean
ing of Section 2(13) of the Act David Sabo director of
security Bill Kasikantins assistant director of security
and Robey Taylor mall manager'
B Respondents Rules for Its Security Officers
Conflict with County Rules upon Which License of
Security Officers Are Granted and Charging Party s
Protest of that Conflict
Michael Kemp had completed the 3 weeks required
training had passed the required test had conferred
upon him a security officers badge and license by the St
Louis County Police Department and worked as a li
censed security officer before he was hired by Respond
ent as a security officer in August 1981 During the tram
ing to become a security officer the candidates are
taught the contents in a security officers manual which
is issued to them upon successful completion of training
Section VI page 9 topic B-duties subsection b (G C
Exh 2) provides as follows
Should a serious accident or crime including all
felonies occur on the premises of the licensee it
shall be the responsibility of the licensee to notify
the appropriate police department immediately
Failure to do so is a violation of the provisions of
this manual
Section X-disciplinary and deportment pages 15 and
16 of the security officers manual (G C Exh 2) pro
vides as follows
A General
1 The Private Security Coordinator may rep
remand a licensee or suspend or revoke the li
cense as hereinafter provided In cases of suspen
sion or revocation the licensee shall immediately
surrender his identification card and badge to the
St Louis County Police Department
C Cause for Disciplinary Action
12 For violation of any regulation or rule
found in this manual
On the reverse of a security officer s license (G C
Exh 3) the following language is inscribed
Obey The Rules And Regulations Promulgated
By The Superintendent Of Police
We will obey all lawful orders and rules and reg
ulations pertaining to security officers promulgated
by the superintendent of police of the County of St
Louis or any officer placed by him over me
Pursuant to the above language and his training
course Michael Kemp testified that he understands that
an officer of the police department can take his badge
and he can no longer work until he appears before a
review board of the police department He further stated
that it was his understanding that his failure to report to
the police department any person he observed driving
upon public streets and highways while intoxicated or
under the influence of alcohol or a person in possession
of illegal drugs would constitute a violation of the secu
my officers manual as well as the obligations of his li
cense Sergeant George Randolph of the St Louis
County Police Department corroborated Kemp s under
standing and verified that security officers are inspected
by police officers who may have their licenses suspend
ed or revoked for failure to comply with manual or li
cense requirements He said Kemp was not the only se
cunty officer to raise questions about conflict in police
employer policies
Security Director David L Sabo testified that prior to
October Kemp had told him about his discussion with
the county police department regarding conflict of Mall
policies with security officers licenses He asked Kemp
what did the police department say and Kemp told him
the matter was not resolved one way or the other
Thereupon he told Kemp it would have been better to
handle the problem in this way rather than in that way
When asked by the bench did he also confer with other
security officers Sabo said yes he did but he had more
such conferences with Kemp because Kemp worked the
4 p in to midnight shift where more incidents occur
Sabo said security officers are supplied with a pair of
cuffs a night stick and a flashlight to patrol the James
town Mall
The undisputed evidence of record shows that Re
spondent held a meeting with its Mall security officers
on the monng of October 6 1982 2 during which time
it discussed how the officers should take care of the se
cunty vehicles and it discussed operating procedures for
dealing with persons on the premises under the influence
of alcohol or involved with controlled substances or
otherwise engaged in illegal activity Charging Party
Kemp who does not report for duty until 4 p m did not
attend the meeting held on the morning of October 6 be
cause he forgot about it However when Kemp reported
for work on October 20 Assistant Director of Security
Bill Kasikanttns handed him a copy of the new operating
procedures (G C Exh 4) telling Kemp he was not
going to like it The memorandum (G C Exh 4) which
was signed by David Sabo director of security among
other things provided as follows
Effective October 20 1982
I Parking lot A For anyone caught drinking or
taking drugs or other property will be escorted off our
lot Nothing more is to be done at that time If they
refuse to leave or start giving you a hard time contact
The facts set forth above are undisputed and are not in conflict in the
record
' All dates herein refer to the year 1982 unless specifically indicated
otherwise
CENTER RIDGE CO
the supervisor on watch which should be Bill or
myself We will decide what action is to be taken.
These changes will be in force until you are told
otherwise by me If you have any questions ask
now as any violation of the above can result in dis
missal
As Kemp finished reading the above memo Security
Director David Sabo came into the office and according
to the testimony of Kemp Sabo asked him if he had any
questions Kemp said he responded in the affirmative and
told Sabo the new operating procedures (G C Exh 4)
were in conflict with various provisions of his security
officers oath manual requirements and license Sabo
told him to comply with the new procedures and if
police officers asked him any questions then he should
tell them to see him (Sabo) When Kemp proceeded to
further protest the new procedures Sabo said he was not
going to argue about the subject any further and he took
his coat and left the office Kemp did not have any fur
ther conversation with Sabo about the procedures Sabo
acknowledged that Kemp did express disagreement with
the first paragraph of the memo (G C Exh 4) and that
he told Kemp [Y]ou know there are policies [sic]
we ve got to go by We re not going against what our
County says He denied he told Kemp he would not en
tertam further discussion on the matter but I do not
credit Sabo s denial in this regard because I was persuad
ed by his demeanor the events which followed as well
as by the fact that Kemp was constantly challenging
company policy he believed conflicted with his license
obligations This must have been annoying to manage
ment
Assistant Security Officer Williams (Bill) Kasikantiris
testified that he was sometimes left in charge in,the ab
sence of Director Sabo and that he filled Kemp in on
October 7 about what was discussed during the security
meeting on October 6 He said Sabo first explained some
of the rules in the memo (G C Exh 4) by telling Kemp
to patrol around the Mall rather than going in between
the aisles of parked cars that they were not to look for
any particular problems in the parked cars unless some
thing came up in which case he was there to take care
of it, but not to go out looking for trouble He further
stated that officers were not to search cars by pulling out
the seats or getting in the back of the cars because that
was not their function Kemp did not say anything to
him in response to his remarks except that he disap
proved by saying this sucks and threw the memo
(G C Exh 4) on the desk Kasikantins acknowledged
that later that day and on several days subsequent there
to Kemp continued to express his disagreement with the
new operating procedures because they went against his
license obligations He said he told Kemp just to do
your job don t look for trouble, just take care of it and if
you encounter any problems just call me and we 11 take
care of it Kemp did ask him could he get the policy
(G C Exh 4) changed and he said Kasikantirts could not
because the policies came down from the Cleveland
office and on the same day or the next day, he suggested
that Kemp leave Sabo a note requesting the change in
policy
109
After Sabo left the office Kemp said he told Assistant
Director Kasikantins that the memo was in conflict with
many provisions of his security officers license Kasikan
tires started to walk out of the office turned around and
told him that Kemp should worry about who writes his
paycheck Later that afternoon (October 20) Kemp met
Kasikantins at the information booth where they
checked in with Dawn Hammill to advise her what radio
units they would be using Kemp continued to protest
the new procedures to Kasikantins as being in conflict
with license obligations As an example he stated if he
came across a driver on the parking lot who was intoxi
cated [Y]ou won t allow me to give him a DWI [Dnv
mg While Under the Influence] performance test any
more You want me to just take his beer and stuff and
put him on the road And I said he might go down the
road a mile or so and hit and kill Dawn here Kasikan
tins responded [T]rue but most people that drive
drunk make it home safely and crawl in bed and sleep it
off And he told Kemp all he had to do was to drive
around the parking lot and listen to the radio and get
paid for it Its an easy job After that conversation
Kemp continued his arguments of protest with Kasikan
tins on an almost daily basis Both Sabo and Kasikantins
told Kemp the new procedures were coming out of the
Cleveland office
On October 22 Kemp contacted Remove Intoxicated
Drivers (RID) which is a volunteer organization staffed
mainly by people who had family members killed by
drunk drivers About the next day (October 23 or 24)
Kemp testified that several other security officers mclud
mg Frank Key approached him and asked him how
could the officers be allowed to do what the new prece
dures prescribed and he told Key to stay loose on it he
was working on something Taylor testified that a repre
sentative from RID came to his office about Kemp s
complaints to them prior to October 26 and she men
tioned the conversation she had with Kemp Taylor fur
ther testified that Kemp really did not complain to him
he said I mean he brought it to my attention On
questions by the bench Taylor admitted Kemp was not
the only security officer whose judgment Respondent
has questioned from time to time He said four of their
security officers are full time and three are part time
Later that evening Kemp testified that he met with se
cunty officers Key and Eric Halteriman at the Ground
Round Restaurant where he and Key talked about how
Respondent s procedures conflicted with the security of
ficers license requirements and they were placed in a po
sition of losing their licenses or being fired by Respond
ent They talked about going to the media and Key sug
gested they go to Channel 2 3
On October 26 Kemp undisputedly testified that he
contacted Channel 2 news team and discussed Respond
J Counsel for Respondent objected to the latter testimony and his ob-
jection was sustained by me on the understanding at the time that it was
offered for the truth and was self serving Since it is now clear that the
testimony was not offered for the truth asserted therein I reverse his
ruling and admit and credit the undisputed testimony of Kemp because
he was persuaded not only by Kemp s demeanor but also by the consist
ency of his testimony as a whole
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent s new operating procedures which conflicted with
the security officers license obligations Thereafter he
went to the Globe Democrat newspaper and asked the
city desk editor to talk with a reporter who was con
cerned mainly with drunk drivers He was referred to a
reporter Bill Smith with whom he related his concerns
Later that afternoon he met a photographer from the
Globe Democrat who came on the Malls parking lot at
3 05 p in that day and took a photograph of Kemp in
uniform prior to Kemp s going on duty at 4 o clock
Sabo stated he saw Kemp having his picture taken on
the Mall s parking lot on October 26
About 30 minutes after Kemp went on duty he was
called on the radio by Dave Sabo who told him to
report to the security office When he arrived at the
office Security Director Dave Sabo and Mall Manager
Robey Taylor were present Kemp testified that the fol
lowing conversation ensued
THE WITNESS Yes sir Dave Sabo started off by
asking me as if he was reading from the paper in
front of him have I talked to any reporters And I
asked him what is going on And he said Just
answer the question Have you talked to any report
ers9 I then turned to Robey Taylor and Mall
Manager and I said You can talk straight to me
Robey What is going on here? He said We just
need to get some questions answered He asked
me-no then Dave Sabo said We-we know you
talked to the reporters We ve seen you getting your
picture taken out in the parking lot Robey Taylor
asked me who the man was who was taking my pic
tures I said I didn t get his name I then asked
Dave Sabo what that paper was I told butt I could
read And he says Well you re not going to read
this And then Dave Sabo started to read the
whole paper to me and it was-the paper was print
ed up as if I had written it myself and it said I Mi
chael Kemp admit that I talked to reporters and
that I gave out departmental correspondence to
outside people and that I had discredited the Mall
and that I apologized for the actions and it had a
place for me to sign it And he then asked me have
I talked to any reporters and I told hun I cant
answer that question And he said Fine give me
the key And I asked him am I being-they were
going to be-what about the rest of my shift and he
says give me just give me the key And I gave hun
the key and he said he was giving me a few days
off I asked does this mean I m fired He said we re
dust giving you a few days off I d just taken all my
vacation I didn t have any days off coming to me I
said are you suspending me? And he says We re
not going to say that We re just giving you some
days off I said will I be paid He wouldn t even
answer me So I turned in my radio also and I de
parted from that area
Taylor acknowledged he was contacted by a reporter
of the Globe Democrat newspaper on October 26 around
12 noon but was out of the office and the message was
later relayed to him He further acknowledged that he
saw Michael Kemp having his photograph taken in the
parking lot that afternoon He subsequently called Kemp
to the office and Sabo asked Kemp had he been talking
with any reporters and Kemp said no or how did you
find that out or something to that effect They asked
Kemp to sign a statement acknowledging that he had
spoken with news reporters concerning mall policies but
Kemp would not sign it Thereafter he and Sabo held
discussions with the regional manager and they decided
to dismiss Kemp for violating company policy by talking
to the news media
Sabo testified that during the meeting on October 26
with Kemp he told Kemp he had seen him having his
picture taken and asked him what was that all about
Kemp said he did not have to answer that and asked,
What are you asking for9 Sabo said he then decided to
give Kemp some time off until he could meet with Taylor
and decide what to do since he was aware that the press
had contacted and conferred with Respondent (Manager
Taylor) Kemp s supervisor Bill Kasikantins acknowl
edged that he had no occasion or reason to report Kemp
for failing to comply with the new procedures and he
did not observe him engage in any wrongdoing after Oc
tober 20
Mall Manager Taylor further testified that as a result
of articles published in the newspaper about Respond
ent s policies the Mall received numerous phone calls
asking management why it had such a policy that they
could not understand how the Mall could operate that
way that they were not going to shop there anymore
Priests and clergymen of all different denominations
were calling the Mall Such calls continued to come
from shoppers all week many threatening not to return
to shop at the Mall It was this very kind of result that
Respondent had in mind when it promulgated its policy
that employees not talk to the news media 4
Respondents personnel policies (R Exh 1) provide a
list of do s and don is the violations of which it states
would be cause for dismissal and/or other disciplinary
action Under the don is of the policy is listed
17 Talk to news media personnel (TV radio
or newspaper)
Kemp admits he was aware of the above policy pro-
hibitmg employees from talking to the media but said he
was not violating the policy because he did not talk to
the press on company time He further testified that he
knew the policy was a continuing condition of employ
ment However he stated that when the policy was dis
cussed months before by Sabo and/or Kasikantiris the
employees were told about talking to the press on duty
Specifically he said county police had received a lot of
calls from the news media regarding crime in the Mall
Consequently the Respondent advised security officers
that if they were on duty and the press approached them
* Manager Taylors testimony about the Mall having received numer
ous telephone calls about adverse articles in the press is partially substan
hated because Kemp testified that articles critical of Respondents new
operation policy was published the day after he was suspended (October
27)
CENTER RIDGE CO
about crime don t say yes or no just refer them to
management immediately 5
C The Discharge of Michael Kemp
On November 2 Kemp received a message that Secu
rity Director Dave Sabo had called him at home He re
turned the call and Sabo told him to report to work at 4
p in for his normal tour of duty He asked Sabo should
he report in uniform and Sabo said yes and he told
Sabo [L]ook I want to let you know right now that
I in not going to obey any more policies you have that
violate my license Sabo said just be here and hung
up the telephone When Kemp reported to work Sabo
and Mall Manager Robey Taylor were present Taylor
said [W]e re dismissing you for violating company
policy We have your paScheck made out and we will be
happy to give it to you when you turn in your uni
forms Kemp said he then turned to Dave Sabo and
asked him [W]hy did you ask me to come on here in
uniform just to fire me but Sabo did not answer him
So he turned to walk out and told Taylor and Sabo 111
see you clowns in court Manager Taylor essentially
corroborated Kemp s account of his discharge meeting
Kemp assumed he was fired because he spoke with the
news media about his complaints
Mall Manager Taylor said the fact that Respondent
was concerned about the past performance of Kemp con
tributed to its decision to dismiss him However he said
the real reason Kemp was dismissed was for talking with the
news media in violation of company policy He said Kemp
never told him he could not follow any of the rules in
the memo (G C Exh 4) Taylor admitted that had Kemp
not contacted the news media he would not have been sus
pended or discharged at that time He also admitted that
this was the first time any disciplinary action had been
imposed against Kemp
Security Director Sabo testified that the disciplinary
action taken against Kemp was taken pursuant to Re
spondent s personnel policies under disciplinary action
section A conduct or actions which initiate a gross ne
glect of duty or good judgment After discussing the
matter with Taylor Sabo said they decided to discharge
Kemp for the same violation of company policy for
which he was suspended including his past performance
and judgments On cross examination Sabo admitted that
he never gave Kemp a wntten waning reprimand or
suspended him for bad judgment or any other reason
Analysis and Conclusions
The Respondent contends there is no violation of Sec
tion 8(a)(1) of the Act herein because
1 The General Counsel has failed to establish that
Kemp was engaged in concerted activity for the mutual
aid or protection of employees
5 I credit Officer Kemp s testimony to the effect that he understood
Respondents po icy to have prohibited employees from talking to the
media on company time I credit Kemp primarily because his explanation
for his understanding (prior instruction by Assistant Director Kasikantins
emphasized not talking to the media about criminal acts at the Mall) per
suaded me that he reasonably could have been led to such an understand
ing by the emphasis and tone of the security meeting I was further per
suaded by his demeanor that his explanation was truthful
I11
2 That if Kemp was in fact engaged in concerted ac
tivity for the mutual aid and protection of employees
the General Counsel has failed to establish that Respond
ent had knowledge of the concerted nature of Kemp s
activity
In support of its position Respondent cites Buehler
Corp Y NLRB 371 F 2d 273 (7th Cir 1967) whercin
the court stated that there must be substantial e-, idence
in the record that the employee was engaged in concert
ed actiN ity for the purpose of mutual aid or protection
at the employer had knowledge of th 'ncerted
nature of the activity at the time it dischai, the c
ployee See also Pelson Casteel Inc v NLRB 627 F 2d
23 (7th Cir 1980) Air Surrey Inc v NLRB 601 F 2d
256 (6th Cir 1979) However it is particularly noted
from further argument by counsel for Respondent that
Re., indent construes the courts languap l• -)' 'edge
of the concerted nature of the activity as meaning that
the evidence must show that the complaining employee
camed on conversations with other employees about his
or their complaints in order for such complaints to man
agement to be of a concerted nature
In any event the Board has repeatedly held that an in
dividual acting alone apparently seeking immediately to
protect his own interest is engaged in protected concert
ed activities if his complaint refers to a matter of
common interest to other employees Gray Line Tours
258 NLRB 1361 1370 (1981) Bucyrus Erie Co 247
NLRB 519 524 (1980) It has been clearly established by
the undisputed evidence in the instant case that not only
officer Kemp but all of Respondents Mall security offi
cers are bound to comply with Respondents new rules
of procedure that some of the new rules of procedure
are w thout question literally in conflict with come of the
conc.iuons and rules of the security officers i• mual and
license requirements that all of the security officers are
hcensed b) the St Louis County Police Department
upon the same obligation to comply with the provisions
of the security officers manual and license requirements
and that all of the security officers licenses are subject
to suspension or revocation for failure to comply with
such manual and license requirements Officer Kemp s
complaints about Respondents new rules in cc, ihct with
security officer manual and license requirements are un
q s onably complaints about a matter which can affect
employment and is of common concern to all of Kemp s
fellow security officers
Kemp s complaints are of mutual concern to all of the
security officers because all security officers would be
subject to dismissal for failing to comply with the new
rules of procedure and at the same time would be
breaching their agreement to comply with the rules and
conditions of their license for which noncompliance.
their license may be suspended or revoked Under these
circumstances no logical argument can be made tha,
Kemp s complaints and protests of Respondents new
rules of procedures do not constitute protected concert
ed activity pursuant to authority of Gray Line Tours
supra and Bucyrus Erie Co supra
The Respondent further contends that ti-' employer
must know that the employee activities have. coalesced
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
into group action for mutual aid or protection The
mere facts that two employees react similarly and that
one in empathy with his close friend also decided to do
the same thing does not lead to the conclusion that they
are acting concertedly for purposes of the Act Tn
State Truck Service v NLRB 616 F 2d 65 (3d Cir 1980)
With respect to Respondents argument that the em
ployer must have had knowledge of the employees con
certed activity the a iidence of record herein is uncon
troverted that Respondent knew on the very day (Octo-
ber 20) it distributed its new rules of procedure that
Kemp expressed his complaint about the procedures to
Director of Security Sabo and Assistant Director of Se
cunty Kasikantins Thereafter the record is replete with
undisputed evidence that Kemp complained to Assistant
Director Kasikantiris on a daily basis up to and including
the date October 26 when he took his complaints to the
news media On the same day (October 26) Kemp coin
plained to the news media Respondent learned about his
complaint when the news media contacted the Respond
ent and Respondent thereafter observed Kemp having
his picture taken in uniform on the Mall s lot by a re
porter from the Globe Democrat newspaper I therefore
conclude on such evidence that the Respondent in fact
knew or had reasons to know that Kemp s continual pro
test of its new rules constituted concerted activity be
cause the rules were at least literally in conflict with the
license requirements of not only Kemp but of all of its
Mall security officers As such Kemp s complaints were
of common interest and concern to all security officers at
the Mall
While neither of the above cited authorities by the Re
spondent is within the jurisdiction of the Eighth Circuit
Court of Appeals where the facts in the instant case
arose it may be appropriate to point out the Board s po
sition in a situation where a circuit court s decision con
flicts with the Boards holding as stated in Iowa Beef
Packers 144 NLRB 615 616 ( 1963) modified 331 F 2d
176 (8th Cir 1969) as follows
It has been the Board s consistent policy for itself to
determine whether to acquiesce in the contrary
views of a circuit court of appeals or whether with
due deference to the court s opinion to adhere to
its previous holding until the Supreme Court of the
United States has ruled otherwise But it is not for
[an administrative law judge] to speculate as to
what course the Board should follow where a cir
curt court has expressed disagreement with its
views On the contrary it remains the [admini stra
tive law judge s] duty to apply established Board
precedent wt n the Board or the Supreme Court
has not reversed Only by such recognition of the
legal authority of Board precedent will a uniform
and orderly administration of a national act such as
the National Labor Relations Act be achieved
See also Ford Motor Co 230 NLRB 716 717 fn 12
(1977) enfd 571 F 2d 99 (7th Cir 1978) affd 441 U S
488 (1979)
Accordingly in the absence of a contrary conclusion
by the United States Supreme Court I conclude and find
that officer Michael Kemp s complaints of protest against
Respondents new operating procedures for security offi
cers was protected concerted activity within the scope of
the legal authorities heretofore cited
Notwithstanding for a factual situation in which a
complaining employee discusses his complaints with
fellow employees before complaining to management and
the media, the General Counsel cites Mount Desert Island
Hospital 259 NLRB 589 (1981 ) In that case the male
employee nurse engaged in discussions with other staff
nurses regarding low pay poor benefits job security
and seniority system He also repeatedly complained to
management about wage levels staff shortages deficient
levels of patient care by the hospital and working condi
tions of the registered and licensed practical nurses and
their aides When management did not address these
complaints the employee wrote a letter containing his
complaints and sent it to the local Bar Harbor Tunes
newspaper Three days later the letter was published in
the newspaper Although the employee subsequently left
the employ of the hospital voluntarily he nevertheless
shortly thereafter applied for employment at the hospital
and was denied employment because of all of the ad
verse publicity the letter caused the hospital
In finding that the employees letter alone with his
other acts of protest constituted protected concerted ac
tivity the administrative law judge held with Board ap
proval that although the employees letter had attacked
the hospital safety levels and its administration the basis
for the attack was closely tied to working conditions of
the nurses at the hospital and that it was clear from the
tenor of the letter that it was not intended to harass, dis
parage or harm the hospital but simply to force the ad
ministration to take heed of its employees complaints
about wages and working conditions at the hospital
In the instant case officer Kemp s protest of Respond
ent s new rules of procedure to the media , like the em
ployee s letter of protest to the media in Mount Desert
Island supra, is the very protest activity for which Re
spondent herein acknowledged was the primary cause
for his suspension and ultimate discharge See also Sher
wood Ford 264 NLRB 863 (1982)
Similarly in Community Hospital of Roanoke Valley
220 NLRB 2117 (1975) enfd 538 F 2d 607 (4th Cir
1976) an association of nurses during an organizing
effort in a hospital made statements on television to the
effect that there was no registered nurse-coverage on
certain shifts at the hospital as a result of a salary dis
pute The administrative law judge found and the Board
and the court approved that the public outburst was
caused by the employers coercive conduct and that the
statements made by the nurses concerning patient care
created no cause for alarm by the employer and there
fore the statements were protected
In the instant case it is clear that security officer
Kemp s complaints to the media were confined to the
conflict of Respondents new rules of procedure with the
licensed requirements of its security officers about
which Kemp had repeatedly complained to Respondent
without avail There is no evidence that either the sub
stance or the manner in which he complained to the
CENTER RIDGE CO
media was intended to harass disparage or harm Re
spondent or the Mall but rather was designed to per
suade Respondent to address the complaints and modify
its policy As far as discernible from the record Kemp s
complaints to the media are free from any evidence of
deliberate and reckless untruth
Additionally unopposed uncontroverted and credited
testimony of Kemp established that on October 23 3
days after Respondent distributed its new rules of proce
dure fellow employees including employee Key ap
proached Kemp and asked him how could security offi
cers comply with Respondents new rules of procedures
Kemp told them to stay loose that he was working on
something I therefore conclude and find on such evi
dence that fellow employees of Kemp, as well as Kemp
himself had expressed to each other their mutual con
cern about problems with Respondents new rules and
that it may be reasonably inferred therefrom that Kemp
in complaining to management and the media was acting
on their behalf as well as his own Mount Desert Island
Hospital and Community Hospital of Roanoke Valley
supra
Moreover the credited evidence further shows that
on the evening of October 23 Kemp met with fellow se
curity officers Frank Key and Eric Halterman at the
Ground Round Restaurant where they discussed the con
flict problem with Respondents new rules They dis
cussed complaining to the media It is therefore addition
ally clear that employees other than Kemp had manifest
ed shared concern with Kemp about the conflict present
ed by Respondents new procedures While they did not
join Kemp in protesting the procedures there is an ab
sence of any evidence in the record that Kemp s protest
was disavowed by any of his fellow employee security
officers Under these circumstances the evidence is more
than sufficient to conclude and I find that Kemp s coin
plaints to management as well as his conversations with
the news media regarding Respondents new rules of
procedures constituted concerted activity protected by
Section 7 of the Act
However even if the evidence were insufficient to es
tablish that Kemp had talked to other employees about
the subject of his protest but had acted alone without
any expression to or from them about the new proce
dures Kemp s action would nonetheless constitute con
certed activity protected by the Act Such activity
would be concerted because the subject of the complaint
was of moment to the group and related to a matter of
common concern Gray Line Tours 258 NLRB 1361
1370-71 (1981) Fall River Savings Bank 247 NLRB 631
(1980) Air Surrey Inc supra
More specifically as the evidence has amply estab
lished a security officer s license may be suspended or
revoked for failing to comply with rules in the security
officers manual and a security officer is not permitted to
work as a security officer without a license in St Louis
County Missouri In view of the uncontroverted evi
dence herein that the shopping mall is located out in St
Louis County that persons frequenting the Mall are vir
tually all drivers or passengers in automobiles that the
only purposeful exits off the parking lots lead on to
county roads and that if the security officers were to
113
comply with the letter of Respondents policy by escort
mg persons under the influence of alcohol or drugs off
the parking lots on to the roads they would not only be
aiding or abetting the violation of law but also provi
sions of the security officers manual which required
them to report such incidents to the police department
and thereby possibly or probably subjecting them to
having their license suspended or revoked When officer
Kemp attempted to discuss the new policy in depth with
Security Director Sabo the latter who was familiar with
Kemp s propensity to challenge policies with which he
did not agree terminated the conversation almost mine
diately and walked out of the office I credit Kemp s tes
timony that Sabo walked out because Kasikantins testa
fled he reported everything about Kemp s judgment in
complying with company policy However the evidence
does not estabhsh that Kemp ever refused to comply
with company policy
The evidence further shows that within an hour after
Respondent observed Kemp having his picture taken by
the news reporter on October 26 which was subsequent
to the time that it had been contacted by the news media
regarding complaints about its new procedures it inter
rogated Kemp about his talking with the news media and
summarily suspended him from work after he refused to
acknowledge or deny talking to the media about Re
spondent s new rules Exactly 7 days later (November 2)
Respondent called Kemp at home and directed him to
report to work in uniform When Kemp reported Re
spondent advised him his employment was terminated
for violating company policy by talking to the news
media about company matters Respondent did not state
to Kemp any other reason for discharging him at that
time
Although it is well established by the evidence that
Kemp knew about Respondents policy forbidding em
ployees to talk with the media on company matters and
he nevertheless contacted and complained about Re
spondent s policies conflicting with security officers li
cense requirements I find that Kemp did in fact violate
company policy by complaining to the media However
since Kemp s complaint about the Company s new rules
constituted concerted activity protected by the Act the
question is raised as to whether Kemp by complaining
to the media exceeded the bounds of protected activity
and was therefore discharged by Respondent for cause
In this regard since Kemp s complaints to the media
were not shown to have been given in reckless disregard
of the truth but were in fact truthful and not intended to
harass or disparage Respondent or the Mall occupants I
further conclude and find that Kemp s complaints to the
media were not excessive or egregious as to strip them of
the protection afforded such activity under Section 7 of
the Act Kay Fries Inc 265 NLRB 1077 (1982)
On these facts alone there is no controversy as to why
Respondent suspended and thereafter discharged Kemp
because Respondent clearly stated that it discharged him for
violating company policy prohibiting employees from talk
ing to the news media and that he would not have been
suspended or discharged if he had not talked to the
media Since the evidence shows the only conversation
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kemp had with the media was about Respondents new
rules of procedure about which the media had contacted
Respondent I find that Respondent suspended and ulti
mately discharged Kemp for complaining to the media
about Respondents new rules of procedure
Respondent Contends Kemp Was Discharged for
Additional Reasons
The Respondent does not deny that on November 2
it told Kemp only that he was suspended and discharged
for violating company policy forbidding employees to
talk to the news media However at the trial herein Re
spondent contended it discharged Kemp for his perform
ance as a security officer in exercising poor judgment
and that Kemp s violation of the policy by talking to the
media was simply the straw that broke the camel s back
In this regard the testimony of Security Director Sabo
and Assistant Security Director Kasikantins described
Michael Kemp as an officer who was always raising
questions or complaining that Respondents policies for
security officers were in conflict with the rules govern
ing the continued license authority of a security officer
More specifically Assistant Director Kasikantins un
mediate supervisor of Kemp testified that Kemp s judg
ments in handling several incidents were not appropriate
and resulted in more problems on some occasions that
on several occasions Kemp requested permission to carry
a firearm for his own security and Respondent advised
him that its security officers were not to be armed with a
firearm that on some occasions Kemp acted in an au
thontative manner like he wanted to be a police officer
that he was anxiously looking for trouble in the Mall
while it was Respondents objective to have high visibih
ty of its security officers as a means of deterring unlaw
ful conduct by persons frequenting the Mall that on one
occasion while handcuffing a youngster who appeared
intoxicated Kemp had roughed hum up that he advised
Kemp how he would handle the incident by suggesting
that he would allow the kid to drive his car off the Mall
property and call the county police so that they would
pick him up that Kemp nevertheless made the arrest and
got the kid for possession that on another occasion
Kemp attempted to order a loud and obnoxious 17 year
old young lady off the Mall property pursuant to a no
trespassing order issued by Kasikantins that the young
lady was on her way to her car about to leave on her
own volition and Kemp nevertheless attempted to collar
her and she fought him pulling out his hair and tearing
the badge off of his shirt that thereafter Kemp attempted
to prosecute the young lady but the case was thrown out
of court that on another occasion Kemp brought a
loaded pistol on to the premises and he advised Kemp to
unload it and lock it in his locker that thereafter Kemp
brought the firearm in a briefcase and he advised Kemp
to make sure he had locked up that weapon that on a
prior occasion he had suggested to Director Sabo to dis
charge or transfer Kemp on the night shift to get him
away from the public and that he had reported all of
these incidents to Director Sabo
None of the above testimony was denied by Kemp,
but both Directors Sabo and Kasikantiris admitted that
they never gave Kemp a written warning or reprimand
or ever suspended him for bad judgment or any other
reason In fact the evidence fails to demonstrate that Re
spondent ever gave Kemp a serious written or oral
warning or ultimatum
While I credit the above testimonial accounts of Di
rector Sabo and Assistant Director Kasikantiris I never
theless do not credit the context in which it was cast in
this proceeding for the reasons discussed below
A careful reading of all of the credited testimony of
record regarding the performance and personality of Mi
chael Kemp as well as Respondents reactions to his per
formance and personality persuades me that Michael
Kemp a 24-year old young man was a very conscien
tious security officer who took his job quite seriously
He apparently liked exercising authority was zealous in
carrying out his duties and was a stickler for precision
when it came to rules regulations and instructions by
which his performance was to be governed This is prob
ably due in part to his 4-year tour of duty in the United
States Marine Corps where he served as a tank coin
mander Respondent on the other hand tried to operate
a loosely structured organization whose rules and regula
tions do not appear to have been drafted by highly pro
fessional persons who were sufficiently knowledgeable of
all of the possible ramifications so as to have skillfully
avoided the conflict encountered herein That being the
case it is clear that Kemp who was always seeking clar
ification of policies and more authority at the same time
was a bit of an irritant to supervisory personnel upon
whom he made his demands This is perhaps more so in
the case of Kemp s complaints about Respondent s new
rules of procedure issued on October 20
Kemp s performance and personality could not have
been more significant to Respondent than as described
above since Respondent had never given Kemp a sen
ous warning reprimand or ultimatum orally or in writ
mg Nor had it ever suspended him from its employ
prior to Kemp s talking to the news media on October
26 In other words it is clear from this record that Re
spondent was quite tolerant about Kemp s personality
judgment and complaints prior to October 26 when he
talked with the media about the new rules of procedure
Under these circumstances it may reasonably be inferred
from such evidence that whatever general dissatisfaction
Respondent had with the performance and personality of
Kemp its satisfaction with him as a diligent security offi
cer must have considerably outweighed whatever dissat
iffaction there might have been Moreover with these
facts in mind it may be further inferred from the cumu
lative dissatisfaction expressed by Respondent for the
first time during this proceeding that such dissatisfaction
was considerably exaggerated in an effort to justify its
suspension and discharge of Kemp for engaging in pro-
tected concerted activity (talking to the media about Re
spondent s policies) I am therefore persuaded that such
latently expressed evidence of dissatisfaction with
Kemp s performance and personality was a pretext,
either purposefully presented in cumulative fashion by
one supervisor and/or exaggerated to camouflage Re
spondent s real reason for suspending and discharging
Kemp (talking to the news media about Respondent s
CENTER RIDGE CO
new rules of procedure) By suspending and discharging
Kemp for such reason Respondent interfered with re
strained, and coerced its employees in the exercise of the
rights protected by Section 7 in violation of Section
8(a)(1) of the Act This position is further supported
when it is observed that Respondent (Director Sabo) ac
knowledged he had conferred with other security offi
cers about their performance in carrying out its policies
even though he said he had conferred more with Kemp
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section
III above, occurring in close connection with its oper
ations as described in section I above have a close anti
mate and substantial relationship to trade traffic and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce
V THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of
the Act we shall order that it cease and desist therefrom
and take certain affirmative action to effectuate the poll
cies of the Act
It having been found that Respondent interfered with
restrained, and coerced its employees in the exercise of
Section 7 rights in violation of Section 8(a)(1) of the
Act by suspending and thereafter discharging an em
ployee from its employ because he complained to the
news media about Respondents new procedures which
conflicted with his license requirements the recommend
ed Order will provide that Respondent cease and desist
115
from engaging in such unlawful conduct and that it
make dischargee Kemp whole for any loss of earnings he
may have suffered within the meaning and in accord
with the Board s decision in F W Woolworth Co 90
NLRB 289 (1950) and Florida Steel Corp 231 NLRB
117 (1977) 6 except as specifically modified by the word
mg of such recommended Order
Because of the character of the unfair labor practices
herein found the recommended Order will provide that
the Respondent cease and desist from or in any like or
related manner interfering with restraining and coercing
employees in the exercise of the rights guaranteed by
Section 7 of the Act NLRB v Entwistle Mfg Co 120
F 2d 532 536 (4th Cir 1941)
On the basis of the above findings of fact and on the
entire record in this case I make the following
CONCLUSIONS OF LAW
1 Center Ridge Company the Respondent herein is
and has been at all times material herein an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act
2 By discriminatorily suspending and subsequently dis
charging an employee because he complained to the
news media about Respondents new procedures which
conflicted with his license requirements Respondent has
interfered with restrained and coerced its employees in
the exercise of Section 7 rights in violation of Section
8(a)(1) of the Act
3 The conduct described in paragraph 2 above is an
unfair labor practice affecting commerce within the
meaning of Section 2(6) and (7) of the Act
[Recommended Order omitted from publication
11 See generally Isis Plumbing Co 138 NLRB 716 (1962)