Denver Fire Reporter and Protective Co., Inc.

National Labor Relations Board - Board Decisions

Dec 26, 1957

119 N.L.R.B. 1187 (N.L.R.B. 1957)

DENVER FIRE REPORTER AND PROTECTIVE COMPANY, INC. 1187
-Denver Fire Reporter and Protective Company, Inc. and Interna-
tional Brotherhood of Electrical Workers, Local Union No.
1823, AFL-CIO
-Denver Fire Reporter and Protective Company, Inc., and Denver
Burglar Alarm Company , Inc. and Hubert Johnson. Cases Nos.
30-CA-488 and 30-CA-492. December 26,1957
DECISION AND ORDER
On March 12, 1957, Trial Examiner William E. Spencer issued his
-Intermediate Report in the above-entitled proceeding, finding that
.the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
.and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent and
the Charging Union filed exceptions to the Intermediate Report
.together with supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
.Relations Act, as amended, the Board has delegated its powers in
-connection with this case to a three- member panel [Chairman Leedom
.and Members Bean and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
,at the hearing and finds that no prejudicial error was committed. The
.rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings and conclusions of the Trial
Examiner, but rejects his recommendations in part.'
The Trial Examiner found that the Respondent had discharged
three employees, Carl E. Bengston, Myron A. Haug, and Hubert
Johnson, because of their union activities. He recommended no
remedy for Bengston because that employee had already been rein-
stated with back pay, the usual remedy of reinstatement with back
pay for Haug, and the denial of such remedy for Johnson. There are
no exceptions to the findings of discriminatory discharge. However,
the Respondent has excepted to the remedy provision for Haug, and
the Charging Union to the denial of any remedy for Johnson.
1. The Respondent contends that Haug should not be ordered rein-
stated because he previously had refused an unconditional offer of
reinstatement. The Trial Examiner rejected this contention. The
facts are: the Respondent discriminatorily discharged Haug on April
24, 195(3. Immediately thereafter the Charging Union filed an unfair
I The parties have excepted only to the Trial Examiner 's recommended remedy. Because
of the absence of exceptions to any of the findings and conclusions , we adopt them.
119 NLRB No. 137.
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor practice charge against the Respondent. On July 20, the
Respondent's attorney wrote to Haug saying that the Company was
willing to reinstate him and that, "If you wish to avail yourself of the
opportunity of returning to the company, you may do so by contacting
the office of the company at any time within ten (10) days of your
receipt of this letter." Haug promptly telephoned the Respondent's
president, Mrs. Jackson, and arranged to meet with her the following
day. At this meeting it was "more or less" agreed that August 1
would be a suitable date for Haug's return to work. However, accord-
ing to the credited testimony of Haug, Mrs. Jackson also said that she
would first have to see her attorney relative to the matter and that
Haug should see about dropping the unfair labor practice charges he
had filed against the Respondent.' There is no evidence whether
Mrs. Jackson did call her attorney. Haug did not report for work
on August 1.
An employer may toll its liability for having discriminatorily dis-
charged an employee by unconditionally offering to reinstate the
employee to his former position. We agree with the Trial Examiner
that no such offer was made in this case. Mrs. Jackson coupled her
offer to return Haug to his former job with two conditions: that she
would first have to receive approval from her attorney before the
offer could be considered final, and Haug would have to drop his
unfair labor practice charges. Apparently because he considered the
offer conditional, Haug did not return to work on August 1 although
he was anxious to do so because he had earned more working for the
Respondent than he was then earning. Accordingly, we shall require
the Respondent to remedy its discriminatory discharge of Haug by
reinstating him with back pay.
2. The Trial Examiner did not recommend reinstatement for John-
son because he found that Johnson had breached "his written pledge,
as an employee, not to reveal trade secrets disclosed to him as an
employee of the Respondent or to be associated with competitors
of the Respondent within a 300-mile radius of Respondent's place
of business, ..."
2 Haug, whom the Trial Examiner credited , testified that Mrs. Jackson told him that she
would contact her attorney and "that I would have to contact the Labor Board and let
them know what I was going to do and see about dropping these charges that I have
against the Denver Fire Reporter."
Mrs. Jackson did not dispute telling Haug that she would have to clear his reinstate-
ment with her attorney . She admitted saying to Haug, "Now, I can't tell you to come
back August 1st because Mr. Ferguson [ Mrs. Jackson 's attorney] tells me to call him
first , so I will call him tomorrow morning and you get in touch with whoever you need to
get in touch with and then we'll see you August 1st."
The primary issue in dispute was whether Mrs. Jackson also conditioned reinstatement
on Haug's dropping the unfair labor practice charges filed on his behalf. Haug testified
that she did . Mrs. Jackson denied it. The Trial Examiner credited Haug. Our dis-
senting colleague does not attack the Trial Examiner 's credibility resolutions, except in-
directly. His interpretative version of the facts seems to us to be at variance with the
recorded credited testimony.
DENVER FIRE REPORTER AND PROTECTIVE COMPANY, INC. 1189
On October 12, 1953, Johnson signed a "covenant"' which recited
that in consideration of his employment by the Respondent, Johnson
"agree[s] that he will not divulge or make known, directly or indi-
rectly, to any person, firm or corporation, the trade secrets of the
'Certified Burglar Alarm Systems, Inc., nor the manner of installation
and operation of apparatus pertaining to said systems, nor will he
become associated with any person, firm, or corporation in the Alarm
Systems business, or allied lines, for a period of two years after leaving
the employ of the Employer herein, within.a radius of three hundred
(300) miles of the established business of the Employer...."
The following is the series of occurrences which, the Trial Examiner
held, disqualified Johnson for reinstatement. According to the testi-
mony of Johnson, which we credit, in September 1955, about 6 months
before his discriminatory discharge, Johnson received a telephone call
at his home from a personal friend, who was also in the burglar alarm
business, asking him if he was interested in repairing a burglar alarm
which had been installed many years before in a drugstore at Castle
Rock, located about 30 miles from Denver. Johnson visited the store
proprietor and agreed to repair the alarm for about $85. He did the
work on his own time, using materials owned by the store owner.
The issue here is not whether the Respondent could lawfully have
discharged Johnson for having done this work, but whether the Board
should withhold the usual remedy for a discriminatorily discharged
employee because of an alleged breach of a contract discovered after
the discharge. We hold that it should not for two reasons : first, we
do not believe that by his conduct Johnson breached his "covenant"
with the Respondent. There is no evidence that he revealed trade
secrets to any person, or that he became associated with any person,
firm or corporation in the burglar alarm business ; second, even if it
did involve a breach of contract, this is not the kind of misconduct
which has sometimes persuaded the Board that the discriminatorily
discharged employee is not fit for further employment with his em-
ployer and therefore should not be reinstated.' Accordingly, we do
not adopt the Trial Examiner's recommendation as to Johnson. We
.shall order him reinstated with back pay. However, in view of the
'Trial Examiner's recommendation, we shall toll the period from the
date of the Intermediate Report to the date of this Decision and
Order in computing the Respondent's back-pay liability to Johnson .4
8 Cf. Salmon and Cowin, Inc. v. N. L. R. B ., 148 F. 2d 942 ( C. A. 5), rehearing denied
January 1 , 1945, cert . denied 326 U. S. 758; Al. L. R. B. v. Monumental Life Insurance
Company, 162 F. 2d 340 , 342-343 ( C. A. 6) ; Multi -Hydromatic Welding and Manufactur-
ing Company, 113 NLRB 755 , 756-757; Verscharen's Food Centers, 110 NLRB 1475, 1478;
Hargis Truck Line, Inc., 108 NLRB 229 , 230 and 238; Montgomery Ward & Co., Inc.,
'90 NLRB 1244, 1248.
This Decision and Order is not to be construed as precluding the Respondent from dis-
•ciplining or discharging Johnson for any possible future misconduct or for any reason
other than concerted union activities. Montgomery Ward & Co ., Inc., supra.
a Popeil Brothers, Inc., 101 NLRB 1083, 1090.
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c),
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent herein, Denver Fire Re-
porter and Protective Company, Inc., and Denver Burglar Alarm.
Company, Inc., Denver, Colorado, its officers, agents, successors, and.
assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of"
Electrical Workers, Local Union No. 1823, AFL-CIO, or any other
labor organization, by discharging or refusing to reinstate any of its
employees, or by discriminating in any other manner against its em-
ployees in regard to hire or tenure of employment or any term or-
condition of employment.
(b) Interrogating its employees concerning their union activities
or desires for union representation in a manner constituting inter-
ference, restraint, or coercion in violation of Section 8 (a) (1) ;
threatening employees with discharge if they engage in union activi-
ties and threatening to cease operations if the employees become
organized.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist International Brotherhood of Electrical Workers, Local
Union No. 1823, AFL-CIO, or any other labor organization, to bar-
gain collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any
or all of such activities to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a
condition of employment as authorized in Section 8 (a) (3) of the
Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to Myron A. Haug and Hubert Johnson immediate and
full reinstatement to their former or substantially equivalent positions,.
without prejudice to their seniority or other rights and privileges pre-
viously enjoyed, and make them whole, in the manner set forth in the.
section of the Intermediate Report entitled "The Remedy," as modified
by this Decision and Order, for any loss of pay suffered by reason of
the discrimination against them.
(b) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
DENVER FIRE REPORTER AND PROTECTIVE COMPANY, INC. 1191
and all other records necessary to analyze the amount of back pay due
and the rights of employment, under the terms of this Order.
(c) Post at its plant in Denver, Colorado, copies of the notice at-
tached hereto as an Appendix.' Copies of said notice, to be furnished
by the Regional Director for the Seventeenth Region (Kansas City,
Missouri), shall, after being duly signed by the Respondent's repre-
sentative, be posted by the Respondent immediately upon receipt
thereof and maintained by it for sixty (60) consecutive days thereafter
in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for the Seventeenth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
MEMBER JENKINS, dissenting in part :
I concur in the majority's decision, except insofar as it holds that
the Respondent did not make an unconditional offer of reinstatement
to Myron A. Haug and orders the Respondent to reinstate him. Ap-
parently not doubting that an unconditional offer was originally made
to Haug by letter, the majority, in effect, finds that Mrs. Jackson,
the Respondent's president, thereafter in a conversation with Haug
attached two conditions to the offer, namely : the approval of the Re-
spondent's attorney, and Haug's withdrawal of the unfair labor prac-
tice charges previously filed with the Board. A careful reading of'
the entire testimony concerning the conversation in question does not
convince me that,the Respondent intended to, or did in fact, impose
such conditions upon Haug's reinstatement.
It is undisputed that on July 20, 1956, the Respondent's attorney
wrote a letter to Haug offering him "unconditional reinstatement"
in his "former position at the salary which . . . [he] received at the
time of the last termination of employment with the Company and
under the same conditions as were previously enjoyed by . . . [him]
in . . ., [his] job." This is precisely the type of reinstatement the
Board normally orders to remedy a discriminatory discharge such as
that suffered by Haug. The letter also advised Haug to communi-
cate with the Respondent if he desired to return to work. In ac-
cordance with this offer, Haug telephoned Mrs. Jackson and arranged
to meet with her the following day. Haug met with Mrs. Jackson
the next day and agreed that he would give his then employer notice
of resignation and that he would report to the Respondent for work
In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on August 1. However, Haug never returned to work or even bothered
to give the Respondent any reason for not doing so. Nor at the
hearing did he furnish any reason for not returning to work.
As I read the entire testimony in its proper context, I am unable
to find any reasonable basis for concluding that Mrs. Jackson con-
ditioned reinstatement upon her attorney's approval. Indeed, it seems
rather unusual that such approval would be required in view of the
fact that the attorney himself sent the letter offering Haug appro-
priate reinstatement and requesting him to make the necessary ar-
rangements with the Respondent for his return to work. In my
opinion, whatever reference Mrs. Jackson made to her attorney, re-
lated simply to her intention-not unusual to be sure-to inform her
attorney about the results of her interview with Haug and not to
impose a condition on Haug's reinstatement.
As for the alleged dropping of the charges, I also cannot interpret
it as a condition of reinstatement. For one thing, Haug did not even
file the charges herein. For another thing, a reasonable interpreta-
tion of the relevant testimony indicates simply that, because of the
pendency of the charges, Mrs. Jackson expected Haug to notify the
Regional Office of the Respondent's offer of reinstatement and of his
intention to return to his former job. I see no justification for viewing
an innocent reference to charges as tantamount to making withdrawal
of charges a condition of reinstatement. Indeed, it is significant that
Haug himself admitted at the hearing that Mrs. Jackson did not
insist that he drop the charges as a condition for his reinstatement
and that he did not understand that she was insisting that he drop
the charges as a condition of returning to work.'
In summary, as Haug did not avail himself of the Respondent's
unconditional offer of reinstatement I would not order his reinstate-
ment. However, I would allow him back pay from the date of the
discrimination against him to the date of the Respondent's uncondi-
tional offer of reinstatement, which he had previously failed to
accept.
6 This evidence is contrary to that set forth in footnote 2 of the majority opinion that
Haug testified that Mrs. Jackson "conditioned reinstatement" on Haug dropping the
unfair labor practice 'charge.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in International Brother-
hood of Electrical Workers, Local Union No. 1823, or any other
labor organization, by discharging or refusing to reinstate any
DENVER FIRE REPORTER AND PROTECTIVE COMPANY, INC. 1193
of our employees, or by discriminating in any other manner
against our employees in regard to hire or tenure of employment
or any term or condition of employment.
WE WILL NOT interrogate our employees concerning their union
activities or desires for union representation in a manner con-
stituting interference, restraint, or coercion in violation of Sec-
tion 8 (a) (1) ; threaten our employees with discharge if they
engage in union activities with respect to International Brother-
hood of Electrical Workers, Local Union No. 1823, AFL-CIO,
or any other labor organization; or threaten to cease operations
if our employees become organized.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organiza-
tion, to form, join, or assist International Brotherhood of Elec-
trical Workers, Local Union No. 1823, AFL-CIO, or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment as authorized in Section 8 (a) (3) of the Act.
WE WILL offer to Myron A. Haug and Hubert Johnson im-
mediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges previously enjoyed, and will make them
whole for any loss of pay they may have suffered as a result of
the discrimination against them.
All our employees are free to become or refrain from becoming
members of the above-named Union or any other labor organization.
DENVER FIRE REPORTER AND PROTECTIVE CO., INC.;
DENVER BIIRGLAR ALARM COMPANY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding , with all parties represented, was heard by the Trial Examiner at
Denver , Colorado, October 9-16, 1956,1 on complaint of the General Counsel of
1 The hearing in this proceeding was formally opened by Trial Examiner Wallace E.
Royster on August 13, 1956, but was at that time adjourned , without the taking of any
evidence , upon Respondent ' s motion.
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the National Labor Relations Board , issued pursuant to charges filed respectively by
International Brotherhood of Electrical Workers, Local Union No. 1823, AFL-CIO,
and Hubert Johnson , an employee , and the answer of Denver Fire Reporter and
Protective Company, Inc., and Denver Burglar Alarm Company, Inc., herein called
respectively Denver Fire and Burglar Alarm or, jointly, the Respondent.
1. THE BUSINESS OF THE RESPONDENT
It is admitted that Denver Fire and Burglar Alarm are, respectively, Colorado
corporations, having an identical office and principal place of business in Denver,
Colorado, are owned wholly by Sara E. Jackson, the active general manager of both
corporations, and annually furnish services valued in excess of $300,000 to customers
within the State of Colorado, in excess of $100,000 of which amount is for services
annually rendered to (a) public utilities, each doing a gross annual business in excess
of $3,000,000; and (b) to manufacturing and other business firms each of which, in
turn, annually ships in excess of $50,000 in value of goods to points outside Colo-
rado. While, as contended by Respondent, Denver Fire and Burglar Alarm may
well be distinct legal entities, it is clear from Jackson's testimony that Burglar Alarm
is by and large a "dormant" corporation set up apparently as a safeguard against
competitive enterprises, and that Jackson wholly owns, controls, and directs both
corporations. There is in fact no clear line of demarcation between the operational
potentialities of the one corporation and the actual operations of the other. For all
practical purposes they constitute a single employer and it is so found.
Upon the admitted facts with respect to commerce it is found that the Respondent,
Denver Fire and Burglar Alarm, is engaged in commerce within the meaning of the
Act and that it will effectuate the policies of the Act for the Board to assert its juris-
diction.
If. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of the Act and admits to
membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Discrimination
The alleged discharge by the Respondent of three of its employees because of their
union activities, constitutes the principal subject matter of this proceeding. The
employees involved are Hubert Johnson, whose employment terminated on April 22,
1956; and Carl E. Bengtson and Myron A. Haug, whose employment terminated on
April 24, 1956. That Johnson was discharged is admitted. Respondent denies,
however, that it discharged Haug and Bengtson, its contention being that these two
employees quit. In the case of each employee, involvement in union activities was
very quickly followed by termination of employment. Proximity in time, without
more, does not of course establish a causal relationship, but that such a relationship
exists is clear in the cases of Bengtson and Haug. I think it is equally clear that
the termination of their employment with the Respondent was not a voluntary act
of severance on their part.
1. Bengtson and Haug
Some 3 years prior to the incidents which gave rise to this proceeding, on the basis
of a consent-election agreement, there had been an election on union representation
among Respondent's employees and such representation had been rejected. The
next union activity, of which there is an account in this record, occurred on or about
Friday, April 20, 1956, when Johnson made contact with a union official and
arranged a conference with him for the following Monday. At the 4 p. m. change
of shifts in the plant on April 21, Johnson broached the matter of the union to a
group of employees. On the next day, Sunday, a day when Johnson was not on
duty at the plant, Sara E. Jackson, Respondent's president and active director of
operations, called him at his home and informed him that he was discharged. On
Tuesday, April 24, before coming on duty for a 4 p. m. to midnight shift, Haug had
been engaged in getting union authorization cards filled out by various employees
he had seen away from Respondent's plant. Shortly after reporting for work on that
day, Haug invited Bengtson and another employee, William Stephen King, into the
washroom and there handed them union cards. The washroom or lavatory opened
directly off the dispatching room, the latter a large room and center of employee
activity inside the plant. They had been in the washroom only a few minutes when
Respondent's president, Jackson, came into the plant and finding no one on duty
DENVER FIRE REPORTER AND PROTECTIVE COMPANY, INC. 1195
but Paul H . Farnan , the dispatcher , inquired about other employees , one of whom,
Bengtson , was assigned to assist Farnan on dispatching at that hour . When told
they were in the lavatory, she either opened the door to that room or, according to
.her testimony , knocked on it. In any event-and the precise order in which these
.incidents occurred is immaterial though much litigated-the door was opened and
she discovered that Bengtson had a card in his hand . She questioned him about the
card and was either handed it by Bengtson or took it from his hand. According to
-Jackson , on seeing that the card was a union card , she said, "You know we don't
.have a union here . If you want to work where there is a union , all you have to do
is lay down your badge and go do so," whereupon Bengtson took off his badge and
.laid it on a table. Haug followed suit and both men then left the plant. King, the
,third employee involved in the incident, remained in the washroom.2
According to Bengtson, after taking the card from his hand Jackson said, "You're
fired," and when he asked, "What for?" she replied, "You signed this card, didn't
you? You signed this card, this union card." Haug testified that after hearing
Jackson tell Bengtson to take off his badge and go home , he removed the badge from
.his cap also and that as he and Bengtson were moving toward the exit door , Jackson
asked what good they thought the Union would do them and when he replied that
unions had done the working class of people good in the past and he was sure they
would continue to, she said, "Well, you are both fired." Jackson denied using the
words "discharged" or "fired" and Farnan, on duty in the dispatching room where
these incidents occurred, testified that he did not hear Jackson use these words but
did hear her say, "You know we don't have a union shop here. If you want to work
for a union, you are perfectly welcome to go with a union." At a meeting of
employees, called by Jackson on the following day, she referred to Bengtson and
Haug as having quit.
On the basis of Jackson's own testimony on what she said to Bengtson on seeing
that the latter had signed a union card, I think Bengtson and Haug reasonably
inferred that she was offering them the alternative of giving up their union activity
,or leaving Respondent's employ, and whether or not she used exact words of
discharge, I am convinced that that is exactly what she intended to convey to them.
It is true, as argued in Respondent's brief, that Jackson was under no legal com-
pulsion to condone union activities during working hours. Had the thrust of her
rremarks had that as their target, the situation would be different. But the alterna-
tives stated by her encompassed not merely working time but the basic matter of
employment. The either/or conditions implied in her statement were not con-
ditions she could lawfully impose. I am persuaded, however, that at least in
Bengtson's case, as testified to by him, she used actual words of discharge, and
-since Haug had also signed a union card and was instrumental in getting others to
sign, he would reasonably conclude that her mandate applied to him as well.
It is found that the Respondent discharged Bengtson and Haug because of their
runion activities, thereby violating Section 8 (a) (1) and (3) of the Act.
2. Johnson
The Johnson discharge has more complexities in the factual situation preceding
:and accompanying it. He was employed by the Respondent in 1941; discharged by
-Jackson in 1944 because of a misunderstanding about his vacation privileges; was
-reemployed in 1946 and again discharged in 1951 when Jackson learned that he
-was entering business for himself; was reemployed about a year later and worked
continuously until about May 1953, when he quit to take another job; after about
,6 months he reentered Respondent's employ, at Respondent's invitation, and worked
thereafter until April 22, 1956, the date of his most recent discharge. According
to Respondent's president, Jackson, she discharged Johnson on this most recent
occasion for multiple reasons, including: (a) An abbreviated and improper entry
of irregular "openings and closings" of customers served by Respondent's fire and/or
2 The General Counsel 's representative at the hearing , for purposes of refreshing King's
recollection as a witness , showed him a prehearing affidavit he had given a Board agent,
and later offered this affidavit not for impeachment but as a basis for findings of fact
independent of King's testimony as a witness . King testified fully on all incidents about
which he was questioned and did not materially change his testimony after having his
recollection refreshed by a reading of the affidavit . I do not believe that his affidavit is
admissible for the purposes for which it was offered , and it is hereby rejected . Entirely
apart from his affidavit-which I have not read-King did not impress me as a witness
and to the extent that h is testimony is in conflict with that of other witnesses for the
General Counsel , it is not credited.
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
burglar alarm systems; (b) personal use, without Respondent's permission, of
Respondent's equipment; (c) the improper possession and use of keys to Jackson's
home and private office; (d) removal on two occasions of storehouse doors to
which keys were not immediately available to him; (e) Jackson's "suspicion" that
he took money-a relatively small sum-from an envelope on the desk in her
private office, and otherwise engaged in dishonest transactions at Respondent's
expense; (f) charging purchases for personal use to Respondent without first
obtaining Respondent's permission; (g) an attitude of dissatisfaction and com-
plaint over his work assignments; (h) and, finally, described by Jackson as "the last
straw," his remark before a group of employees whom she had just complimented
for an outstanding performance of a job assignment, to the effect that the job should
entitle them to a bonus.
As to (a) above, Johnson was never regularly employed as a dispatcher. In
1954 and 1955 he worked as a dispatcher on a 4 p. m. to midnight shift twice a
week and a Sunday shift from 8 a. m. to 4 p. m. According to his testimony, in
about October or November 1955, Jackson questioned the manner in which he kept
records on the irregular openings and closings of customers, a system which he had
followed for some time. In about December, Jackson relieved him of dispatching
except on Sundays and gave him as her reason that his services were needed in the
reduction of a large backlog of installations. In about February 1956, he was
taken off dispatching altogether. Jackson testified that in February she discovered
that Paul H. Farnan, a full-time dispatcher, was entering the irregular openings in.
an improper manner and was informed by him that he had been taught that method
by Johnson, Farnan, who was employed by Respondent in August 1955, testified
that Johnson was one of those who instructed him in his duties as a dispatcher, and
that while Johnson's instructions on registering irregular openings were different
from those given him by Jackson and others, he understood them to apply only to
Sundays. Apparently there were more than the usual number of irregular openings.
on Sundays. According to Jackson, it was following her discovery that Farnan
was making improper entries that she removed Johnson entirely from dispatching.
I do not mean to minimize the importance of proper entries being made in the
matter of irregular openings and closings, i. e., times when the customer enters.
his premises, where burglar or fire alarms have been installed, other than his
customary occupancy of those premises, and I am convinced that Johnson was not
following the approved procedures in the manner in which he made such entries on
Sundays. I am a little dubious about his testimony that as early as October or
November 1955, Jackson was aware of the manner in which he was making these
entries. The fact is that from a date in early February he was relieved of dis-
patching altogether, and I am inclined to believe that it was at that time that
Jackson made her discovery. Bearing in mind that Farnan was a full-time dis-
patcher whereas at that time Johnson was dispatching only on Sundays, and that
Johnson was an old employee whereas Farnan was a relatively new one and had
received his instructions relative to Sunday entries from Johnson, it is not entirely
unreasonable that Jackson would hold Johnson primarily responsible for the improper
entries and remove him, rather than Farnan, from the dispatching job. She did
not, however, reprimand Johnson or even explain to him that she was removing
him from dispatching because of the improper entries. Obviously, she still con-
sidered him a valuable employee and it is hard to believe that if she then regarded
the matter of the improper entries of great substance in her total evaluation of him
as an employee, she would not have spoken to him about it. It is also worth,
noting that Jules H. Ehlinger, a full-time dispatcher, with Respondent for some
7 years, when told by Farnan of Johnson's advice relative to irregular openings on:
Sundays, raised no objections and merely said that he "didn't know" about Sundays..
Ehlinger, who testified that his position as full-time dispatcher was such that he
would have no hesitancy in reporting to Jackson on anything he considered irregular
or improper, did not see anything "irregular" or "improper" enough in Johnson's
method of entries to justify his reporting to Jackson on the matter.
Items (b), (d), and (f) as listed above may be disposed of rather summarily..
On occasion, Johnson admittedly "borrowed" certain of Respondent's tools, such as.
a sledge hammer and electric drill, for use at his home, but these properties were,
duly returned and at best Respondent suffered no more than a slight inconvenience,
due to his borrowing. Further, there is testimony that other employees also on
occasion made private use of some of Respondent's equipment. At most, I think
Johnson may have been a little freer in this practice than others, and I am convinced'
that it never assumed substantial proportions in Jackson's mind until after his final
discharge. His practice of purchasing items for his personal use and having them,
charged to Respondent, falls within the same category. He, and other employees;
DENVER FIRE REPORTER AND PROTECTIVE COMPANY, INC. 1197
as well , engaged in this practice primarily because on some items and from some
vendors they received a discount by making the purchase in Respondent 's name.
The purchase price of these personal items was deducted from Johnson's salary on
receipt by Respondent of the vendor's bill. -this practice had continued over a
period of years and while it may be properly described as "irregular" it was not a
matter of sufficient importance to Respondent that he was reprimanded because of
it or in any manner informed that it met with Respondent's displeasure. Johnson's
removal of storehouse doors to which no keys were immediately available to him,
finds its explanation in his need to obtain storeroom supplies necessary to the work
he was engaged on. It is not claimed that this action resulted in any damage to
Respondents property or that he took anything from the storerooms on these occa-
sions except what was needed in his work, and while these incidents were reported
to Jackson she admittedly never spoke to Johnson about the matter.
The unauthorized possession of keys and Jackson's "suspicions" that he was appro-
priating company property to his personal use, presumably by selling it to her com-
petitors, and the incident when money was taken from an envelope on the desk of
Jackson's private office, in their totality appear to have some substance in an evalua-
tion of the reasons leading to his discharge. Johnson denied that he had keys to
Jackson's home-which immediately adjoined Respondent's plant-and to her pri-
vate office, but I incline to the opinion that he at least had keys that would open the
locks to those premises. Ehlinger's testimony that on an evening when he was on
duty Johnson, saying that he was tired, took keys from his pocket and opened the
door to Jackson's private office, entered, and rested there, and Jackson's testimony
that on an occasion when she started to enter her own home and found that she did
not have her keys with her, Johnson, who was accompanying her, took keys from
his pocket and opened the door for her, I am unable to dismiss as fabrications out
of the whole cloth. Jackson testified that after these incidents occurred she had
the locks to these premises changed, and I accept this testimony. The matter of
the unauthorized keys would add to Jackson's apprehension if at the same time she
had "suspicions" that he was appropriating to his own use company property, or may
have given rise to her suspicions over the money that was taken from an envelope
on her desk. There is also substance to Jackson's testimony that in the period fol-
lowing his removal from all dispatching duties, Johnson was restive and disgruntled
and complained about the irregularity of his job assignments.
Nevertheless, in the matter of the unauthorized keys and Jackson's suspicions con-
cerning Johnson's honesty as well as in all other matters that Respondent now
arraigns against Johnson as the multiple causes for his discharge, including his unau-
thorized absence for a protracted period during a lunch hour in the period shortly
preceding his discharge, Jackson, admittedly, never at any time prior to his discharge,
voiced to him her dissatisfaction with his conduct, and although she testified that
for some 2 years she had harbored suspicions that he was converting company prop-
erty to his private use and that she had hoped to "catch" him in the act, she con-
tinued him in her employment and gave him responsible work assignments. Her
explanation for such an anomalous situation, was in effect, that Johnson had been
with the Respondent off and on since he was a boy, that there was a close family
relationship, and that, outside of dispatching, he was an able and valuable employee.
I do not dismiss this explanation as of no account. Johnson, I suppose, took advan-
tage of his somewhat special status as an employee. On the occasion when admit-
tedly he was absent from his duties for a protracted lunch period, and Jackson
questioned him, he gave her no explanation except that he liked the food at some
eating place distant from the plant, although in actuality he had used the time for
obtaining a tool necessary to the installation of a burglar alarm. The incident, trivial
in itself, is illustrative of an attitude and therefore is not entirely trivial.
Coming now to the incident which Jackson described as the "last straw," it is
found that this occurred on Thursday, April 19. A large number of employees,
including Johnson, had been engaged on an important installation and by working
overtime had completed the project ahead of schedule. Jackson met with this
group of employees and complimented them for having done a splendid job. Accord-
ing to her, at the end of her complimentary remarks, Johnson said, "By God, that
certainly ought to be worth a bonus." He was described by several witnesses as
smiling when he made the remark. William S. Milo, a managerial employee, testi-
fied that it was not unusual for Johnson to make such a remark and that he had a
sly way of saying such things while smiling. He testified that Jackson was "upset"
at Johnson's remark on this occasion. Jackson testified that on hearing Johnson's
remark it was as if someone had thrown cold water in her face. and she felt that
with the employees sitting there all she had been trying to do was undone.
On the following day, a Friday, Johnson did not work. He visited the office
of a labor organization to ascertain what union would have jurisdiction over
1198 DECISIONS OF ' NATIONAL LABOR RELATIONS BOARD
Respondent's employees . He then made an appointment to see a union official:
at a union hall on the following Monday. On Saturday he worked and, according.
to his credited testimony, saw Jackson when he came on the job that morning and.
she asked him to come to work earlier than his usual hour on the following Monday
in order to show customers a new parking arrangement for their cars. At the-
4 p. m. change of shifts that day, with most of the installation and service employees.
present in the dispatching room, there was a discussion of wages during which
some employees expressed their dissatisfaction, one remarking that he thought he
would quit the Respondent's employ and seek a job at the local Glenn L. Martin.
plant. According to Johnson, at that point he said, "Don't give up the ship yet.
Stick around for a while, we'll get the union in here and we'll get this place
organized and get it straightened out so we'll get some decent working conditions.
Further discussion of benefits to be derived from union representation ensued.
Jackson was not present in the plant during this discussion. Ehlinger, a full-time,
dispatcher for some 7 years, was present. He testified he heard one employee
mention the relatively high salaries paid at the Glenn L. Martin plant, but did
not recall hearing anything said about a union. According to him, being on duty-
at the time he was busy and did not pay much attention to what was being said..
Johnson's testimony on the discussion was corroborated by other employees present,.
and is credited.
On the following day, a Sunday when Johnson was not on duty, Jackson telephoned
Johnson at the latter's home. According to her she told him that he had been
disgruntled for some time and would be happier working some other place and
therefore she would send him his check, to which he replied, "Okay." Nothing else
was said in the conversation, according to her. Johnson testified that she said
something had come up, that she had been thinking about it all night, and would'
have to dispense with his services. He asked, "What's the trouble? Hasn't my
work been good?" to which she replied, "Your work has been excellent. We just
don't require your services." When he further asked, "What have I done," she-
replied, "You know what you've done," and hung up. I believe Johnson's version
of this conversation is substantially correct, and so find.
John Robinson, a brother to Jackson, who has worked for Respondent some 25
years and was its secretary-treasurer, testified that at noon on the Sunday-: of
Johnson's discharge, he had a conversation with his sister at the plant during which
she said she understood there was some dissension among the employees and that
somebody had gone to the union. She asked if he knew anything about it, and
he replied in the negative. They discussed the employees' interest in obtaining a
5-day week working schedule, and according to Robinson, he advised his sister to
try to find out who went to the union and why and to try to work out some
satisfactory agreement with her employees. Jackson replied that she believed it
was 1 of 3 employees who went to the union and named Johnson, employee
D'Isidore, and Robinson as the 3 she suspected. Later in the conversation, according
to Robinson, she said she would forget the whole issue. Jackson denied that this
conversation occurred.
Conclusions on the Johnson Discharge
Other than Robinson's testimony, there is no direct evidence that Jackson had
knowledge of union activity among her employees prior to the time she discharged
Johnson, and she denied having such knowledge. Complete acceptance of Robinson's
testimony, without more, is made difficult by his extreme resentment of the treatment
accorded him by his sister in his capacity as the latter's employee. Nevertheless, I
am convinced that reports had reached Jackson of the discussion which occurred
in the dispatcher's office on Saturday afternoon. Ehlinger, who was present
throughout that discussion, denied that he heard any of the discussion which related
to a union, though admitting that he heard some of the discussion about wages
paid at another plant. While it is' not claimed that Ehlinger was an officer of
management in the sense that his knowledge can, without more, be attributed to the
Respondent, his own testimony convinces me that he found his identity with
management rather than with the service and installation employees. The dispatcher
undoubtedly has a sort of quasi-supervisory role when neither Jackson nor other
officers of management are in the plant, and this is clearly indicated by the fact
that, as he testified, Ehlinger felt that it was his duty to report to management any
irregularity occurring while he was on duty whether or not it had anything to do
with dispatching functions. Thus, he felt called upon to report when Johnson
DENVER FIRE REPORTER AND PROTECTIVE COMPANY, INC. 1199
removed storeroom doors from their hinges in order to get needed supplies, and
again when Johnson using his own keys opened the door to Jackson's private office.
Neither of these matters had anything to do with Ehlinger's duties qua dispatcher,
but, as he testified, in his capacity as dispatcher he considered that he held a
position of responsibility and trust to see that things were done right on his shift.
At a later date, during the summer of 1956, when most or all of the installation
and service employees walked off their jobs, the dispatchers stayed on duty. We
have here, then, an almost complete identification with management, and I am
unable to believe Ehlinger's testimony that he heard no mention of the union in
the conversation that occurred in his presence on the Saturday preceding Johnson's
discharge. I think this was just the kind of conversation that he would make a
special effort to listen in on, and his testimony that he heard only that portion
of it relating to higher wages paid at another plant, does not ring true. In terms
of his own view of his responsibilities as a dispatcher, this was just such a matter
as he would feel obligated to report to Jackson, and despite his denial and
Jackson's, I have no doubt that he did so. Jackson's conversation with her brother
on the next day, as testified to by him, does not in the light of these circumstances
appear to be the fabrication of an outraged relative, and I credit it.3
The timing and manner of Jackson's discharge of Johnson further serve to
convince me that she had received reports of union activities among the employees
and that her suspicions had centered on Johnson as the instigator of those activities.
Such a summary dismissal, without prior notice or warning, of an employee who,
despite his numerous "discrepancies," was still viewed as a highly efficient workman,
can hardly have been triggered by his suggestion 3 days before that a job of admitted
excellence called for a bonus. Assuming that this remark was as disconcerting as
Jackson now testifies it was, it is hard to believe that it took her 3 days to arrive
at a decision that it constituted a "last straw" requiring his dismissal, particularly
so when as late as the morning preceding his discharge, she had instructed Johnson
on his duties for the following Monday. The actual "last straw" I believe and
find, was when she learned that union organization was afoot among the employees
and either suspected or was informed that Johnson was the instigator of it.
Except that she had some such knowledge, her apprehensiveness when she found
three employees in the washroom on the following Tuesday and her demand that
Bengtson show her the card he held in his hand, would be difficult to understand.4
Certainly, her quick-triggered action with respect to Bengston and Haug assumes
a more understandable pattern if beforehand she had received reports of organiza-
tional activities among her employees.
It is found that the Respondent discharged Johnson because of knowledge or
belief that he was engaging in union activities, and thereby discouraged affiliation
,with a labor organization, in violation of Section 8 (a) (1) and (3) of the Act.
B. Interference, restraint, coercion
On the day following. her discharge of Haug and Bengtson, Jackson called
her employees into her office and questioned them concerning their dissatisfaction
and why they would want a union; said that she was opposed to having a union
and that if a union came in she would sell out; that if any of the employees wanted
a union they could go and get work at some place which was organized; that
she had been raised in an orphanage and had had people telling her what to do
all her life and did not intend to let that happen again. She spoke of having
caught Haug and Bengtson engaging in union activities and said she was sur-
prised at the latter. She also reviewed her reasons for having discharged John-
son,' and discussed her financial situation with reference to the granting of a 5-day
3 Robinson testified that some of this conversation occurred in the dispatching room
where Farnan and Eugene Rockwell, an employee who quit Respondent's employ in May or
June 1956, were present. Neither Farnan nor Rockwell testified in the matter.
+ True, Bengtson was supposed to be assisting Farnan on dispatching but the 3 employees
had been in the lavatory no more than some 5 minutes when Jackson entered the plant,
and Farnan admitted that while it would have been an asset to have had Bengtson's help
the work at that hour was not such that he was unable to handle it alone, and he had
made no protest when Bengtson joined the other 2 employees in the lavatory.
6 One witness testified that she said union activity was only one reason for her having
discharged Johnson, but since this was not repeated in the testimony of any other of the
employees who attended this meeting and testified, I do not rely on it.
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
workweek.' It is more likely, I think, that she referred to them as having quit,
though in actuality she had discharged them.
By Jackson's interrogation of her employees as to why they wanted union repre-
sentation; by threatening to close her business if the union came in; and by the
threat implied in her suggestion that if the employees wanted to work in a union
shop, they should leave her employment, the Respondent interfered with, restrained,
and coerced her employees in violation of Section 8 (a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in con-
nection with the operations of Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
V. THE REMEDY
It having been found that the Respondent discharged its employees Bengtson,
Haug, and Johnson because of their union activities, it normally would be recom-
mended that the Respondent offer to each of them reinstatement with back pay
to the amount of wages lost because of the discrimination. In the case of Bengtson,
however, no such recommendation is required. Two days following his discharge
he was offered and accepted reinstatement and he received full pay for the 2 days
that he was separated from his job because of the unlawful discharge.
The evidence with respect to Haug is that on July 20 he received a letter
from Respondent's attorney, Ferguson, containing what appears to be an uncon-
ditional offer of reinstatement. Following receipt of this letter Haug telephoned
Jackson and arranged to meet with her for the purpose of discussing the details
of his reinstatement. At this conference it was at least tentatively agreed that
Haug was to return to Respondent's employ on August 1. According to Haug,
Jackson said she would have to see her attorney relative to the matter and that
he, Haug, should see about dropping the charges of unfair labor practices he had
filed against the Respondent. Further according to Haug, while there was no
specific mention of unions by Jackson, "she did say that if a company with as
few employees as the Denver Fire Reporter couldn't iron out differences among
themselves without having representation, why, it was time to fold up, or some-
thing of that nature. And she stated that we couldn't have any more . . . friction
Among the employees."
Jackson's version of the conversation was that Haug said he would like to
return to Respondent's employ because it would take him about 6 years in his
place of subsequent employment to earn what he had been making with the
Respondent, and that August 1 was the date agreed upon for his return. She
testified that she said at the end of the interview, "Now, I can't tell you to come
back August 1st because Mr. Ferguson tells me to call him first, so I will call
him tomorrow morning and you get in touch with whoever you need to get in
touch with and then we'll see you August 1st." Her version of the conversation
thus far is substantially in accord with Haug's. She denied however that any
mention was made of unions or the withdrawal of unfair labor practice charges,
but testified she told Haug if he came back he would have to be "congenial"
and could not be "griping about things all the time." She testified she made
these statements because while in Respondent's employ Haug was "griping about
9 There were some half-dozen employees attending this meeting who testified. Findings
are based on the credited testimony of witnesses John D'Isidore, Leonard Peterson, and
Cecil Lawrence Widener which is in substantial respects mutually corroborative. Respond-
ent's witness, Claude D. Graham, testified that Jackson said if any of the employees
thought they could do better, or wanted to go where there was a union, they were welcome
to go and there would be no hard feeling. Jackson's version of what she said, was that
she did not discharge Bengtson and Haug and was amazed when they "walked out" ; that
Respondent's was not a union shop but if the employees wanted to work where there was
a union they were perfectly free to go and she would help them get such a job. Dispatcher
Ehlinger testified to the same effect. Robinson , Jackson's brother, testified Jackson said it
was too bad she had to let two employees go because they wanted a union In the plant,
and that if the employees thought they could do better where there was a union that .was
their privilege.
DENVER FIRE REPORTER AND PROTECTIVE COMPANY, INC. 1201
first one thing and then the other" and was so "sour" that after he had left
Respondent's employ "the fellows said they were just a little glad."
I do not believe that Haug invented the matter of Jackson's suggestion that
he withdraw unfair labor practice charges and while he, too, testified that
she made no specific mention of unions, I credit his testimony with respect to
her comment on "representation." I think his testimony is particularly worthy,
of credit because of his admission that he did not regard Jackson's statements
with respect to these matters as an "ultimatum" or as conditions imposed on his
reinstatement. Nevertheless, though he was then engaged in less profitable employ-
ment and wished to return to Respondent's employ, following his interview with
Jackson he did not pursue the matter. Questioned whether Jackson's statements
with respect to withdrawal of the charge and her belief that her employees did
not need representation, affected or influenced his decision not to return to work
for her, he answered in the affirmative.
Whether Jackson's offer of reinstatement was unconditional is not properly
determined by what Haug may have thought of it at the time or at the time he
testified, or by Haug's understanding of the term "unconditional." Obviously,
Jackson did not say in so many words that Haug would be reinstated only if he
consented to the withdrawal of his unfair labor practice charges and to refrain
from union activities while in Respondent's employ. Neither was her reinstatement
offer definite and conclusive for it was qualified, as she testified, by her statement
that she would first have to call her attorney, and according to Haug's credited
testimony she added that he also should see about the withdrawal of his charges
against Respondent. An employee entitled to reinstatement as a matter of law,
is entitled to a clear unequivocal offer of reinstatement without any conditions
attached. Once his reinstatement has been effectuated he is of course subject to
all nondiscriminatory conditions of employment. If the offer is accompanied by
"suggestions" such as were contained in Jackson's statements during her interview
with Haug, the employer at the least has the duty to make it clear that the employee
is under no pressure to accede to them in order to gain. reinstatement and to.thereafter
enjoy the normal privileges and benefits of employment. Obviously, this was not
made clear to Haug for he greatly desired to return to Respondent's employ and
because of Jackson's so-called suggestions, he did not feel free to do so. I think
this was not an unduly sensitive reaction but a perfectly reasonable one, when
considered in the light of all attending circumstances. I find therefore that Respondent
did not offer Haug unconditional reinstatement,_ as that term is properly applied in
effectuation of the policies of the Act, and accordingly recommend that the
Respondent offer to Myron A. Haug immediate and full reinstatement to his former,
or substantially equivalent position, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of pay he may have suffered by
reason of said discrimination by payment to him of a sum of money equal to that
which he would have earned as wages from the date of the discrimination against
him to the date of the offer of reinstatement, less his net earnings during such
period, in accordance with the formula set forth in F. W. Woolworth Company, 90
NLRB 289.
With respect to Johnson I do not recommend reinstatement and back pay because
I do not believe such action would effectuate the policies of the Act. It will be
recalled that for some 2 years prior to his discharge, according to Jackson's testimony,
she had entertained suspicions that he was diverting her property to his personal
use and she hoped to "catch" him in the act. I do not find that subsequent to his
discharge she "caught" him or that he actually converted her property to his personal
use, but I do find that he engaged in a transaction of such dubious character that
she may reasonably have concluded that her suspicions were justified. But what
is germane to the issue of reinstatement is that this transaction represented a breach
of his written pledge, as an employee, not to reveal trade secrets disclosed to him
as an employee of the Respondent or to be associated with competitors of the
Respondent within a 300-mile radius of Respondent's place of business. and consti-
tuted an act of disloyalty. This matter arose when, while still in Respondent's
employ, Johnson through contacts established through a friend, and a competitor of
Respondent's. installed and/or repaired an alarm system for an establishm'nt within
the area served by the Respondent, on his own time and to his own profit. Obviously,
in doing so, he was not only utilizing knowledge gained as an employee of the
Respondent but was actually engaging in a competitive transaction. This certainly
violated the spirit of the pledge he had given, and in any event, whether or not, as
claimed by Jackson, he used materials belonging to the Respondent in performing
476321--58-vol. 119-77
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the job, it was such an act of disloyalty that in my opinion it would subvert.rather
than effectuate the policies of the Act to require his reinstatement.7
The unfair labor practices committed by the Respondent are such as to indicate
a general and intense hostility toward organizational activities among her employees,.
and to make effective the interdependent guarantees of Section 7 of the Act, thereby
minimizing industrial strife which burdens and obstructs commerce , and thus effectu-
ate the policies of the Act, it will be recommended that the Respondent cease and
desist from infringing in any manner upon rights guaranteed employees in Section 7
of the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record, I
make the following:
CONCLUSIONS OF LAW
1. International Brotherhood of Electrical Workers, Local Union No. 1823,
AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act.
2. By discharging its employees Hubert Johnson, Carl E . Bengtson , and Myron
A. Haug because of their union activities , thus discriminating in regard to their hire
and tenure of employment and thereby discouraging membership in the above-named
labor organization , the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) and ( 1) of the Act.
3. By interrogating its employees concerning their union affiliation and desire
for union representation ; by threatening to cease operations if its employees became
organized ; by threatening its employees with discharge if they engaged in union
affiliation or activities ; and thereby interfering with , restraining , and coercing its
employees in the exercise of the rights guaranteed in Section 7 of the Act, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 ( a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
7 When questioned whether he had discussed with Jackson the matter of engaging in
the burglar alarm business on his own time while he was in her employ, Johnson testified,
"No, I didn't have any reason to. I mean she doesn't hold a monopoly on it."
Magnet Cove Barium Corporation and International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers,
Local No. 393, and International Union of Operating Engineers,
Local No. 450. Case No. 16-CA-986. January 2, 1958
DECISION AND ORDER
On August 9, 1957, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found
that Respondent had not engaged in certain other unfair labor prac-
tices and recommended that the complaint be dismissed insofar as it
alleges violation of Section 8 (a) (3) of the Act. Thereafter, Re-
spondent filed exceptions to the Intermediate Report and a supporting
brief. The General Counsel filed no exceptions.
119 NLRB No. 139.