Federal Alarm

National Labor Relations Board - Board Decisions

Jun 27, 1977

230 N.L.R.B. 518 (N.L.R.B. 1977)

518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Federal Alarm and Communications Workers of
America, AFGCIO and Federal Alarm Employees
Committee, Party in Interest. Case 31-CA-6145
June 27, 1977
DECISION A N D ORDER
On January 31, 1977, Administrative Law Judge
Russell L. Stevens issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief. Counsel for the General
Counsel filed cross-exceptions and a brief in support
thereof, and an answering brief to the Respondent's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Federal Alarm,
Rialto, California, its oficers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order.
The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Sfanhrd Dry Wall Products,
Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
In the absence of excepting thereto, we adopt pro forma the
Administrative Law Judge's conclusion that Respondent dominated the
Federal Alarm Employees Committee.
DECISION
STATEMENT OF THE CASE
RUSSELL . STEVENS, Administrative Law Judge: This
matter was heard at San Bernardino, California, on
November 16 and 17, 1976.1 The complaint, issued July 29,
A:: &.,A i~ r rc~naf~e r ar withffl I976 unless stated to be otherwise.
General Counsel filed a motion dated December IS to correct the
transcript herein. The motion was not opposed, and hereby is granted.
was based on an original charge filed May 19 and a first
amended charge filed May 26 by Communications Work-
ers of America, AFL-CIO, hereinafter referred to as the
Union. The complaint alleged that Federal Alann, herein-
after referred to as Respondent, violated Section 8(a)(l).
(2), (3), and (5) of the National Labor Relations Act, as
amended, hereinafter referred to as the Act. The amended
complaint, issued November 1, alleges that Respondent
violated Section 8(a)(l), (2), (3), and (5) of the Act.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of
General Counsel and Respondent.
Upon the entire record of the case,2 and from my
observation of the witnesses and their demeanor, I make
the following:
Respondent is now, and at all times material herein has
been, a corporation duly organized under and existing by
virtue of the laws of the State of California, with an office
and principal place of business located in Rialto, Califor-
nia, where it is engaged in the installation and maintenance
of monitor alarm systems. In the course and conduct of its
business operations, Respondent annually sells goods or
services valued in excess of $50,000 to customers and
business enterprises within the State of California, which
customers and business enterprises themselves meet one of
the National Labor Relations Board's jurisdictional stan-
dards.
I find that Respondent is now, and at all times material
herein has been, an employer engaged in commerce and in
a business affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Communications Workers of America, AFL-CIO, is
now, and at all times material herein has been, a labor
organization within the meaning of Section 2(5) of the Act.
Federal Alann Employees Committee, hereinafter re-
ferred to as Committee, is now, and at all times material
herein has been, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background
Respondent, whose vice president and general manager
is Ralph Buchwalter (Buchwalter), installs and maintains
burglar and other alarm systems in residences and
businesses. The systems are monitored at Respondent's
principal business location, in a high security area
230 NLRB No. 78
FEDERAL
nstructed within that location, commonly
the central station. Employees use keys3 to
entrance to the main building, and they gain entrance
a1 station by being "buzzed in" after identifying
to an operator within the central station.
cany "code cards," in addition to keys, used
a method of identification. Employees total
and consist' primarily of system installers,
en. and central station televhone operators.
The first'organizational activity 'involvirig Respondent's
business occurred on Mav 12. when Daniel O'Brien (an
installer and serviceman) ind David Gillem (a servicem&)
viaited Armine Rochford, executive vice president of the
Union, and asked for assistance in organizing Respondent.
Rochford and Dennis Adams, president of the Union,
talked with O'Brien and Gillem about the Union, and the
two employees were given union authorization cards to
sign. They signed the cards and then were given blank
cards for distribution and solicitation of signatures. During
the evening of May 12 and the following day O'Brien and
Gillem solicited signatures, and on May 13 they returned
17 signed cards, including their own, to the union ofice.
On the following Saturday (May 15) O'Brien turned in
another card to Adams, making a total of 18 signed cards.
On May 13 Adams wrote a letter to Buchwalter, who
received the letter May 14, reading as follows:
This letter is to inform you that the Communications
Workers of America, Local 11573, has been and is
anizing your employees
u are aware, the Nationa1,Labor Relations Act
e Labor-Management Relations Act
he entire enforcement power of the
es government behind the right of your
organize. Section 7 of the Act states in
loyees shall have the right to self
form, join, or assist labor organiza-
erefore, please be informed that Mr. Daniel
en and Mr. David Gillem are actively exercising
rights as previous1 stated and are members of an
ant committee for 2 e Communications Workers of
e Communications Workers of America, Local
11573, presently represent the majority of all hourly-
paid employees of Federal Alarm in the City of Rialto,
California. Therefore, it is desirous for the Communica-
tions Workers of America to meet with you at your
earliest convenience for the purpose of bargaining a
contract covering the wages and other working condi-
tions of these employees.
On the afternoon of May 14 Rochford called Buchwalter
d they agreed to meet on May 19.
proximately 15 employees met in a park
with a union representative in attendance.
organizational efforts were discussed, after
as taken to determine union interest. The
eys, as required by their jobs, for opening alarm
Olncy testified the date was May 19, but that is found to have been an
lordvuccnt error.
ALARM 519
tally was eight in favor of the Union and seven opposed.
Approximately six unit employees did not attend the
meeting in the park. The identi
meeting was not established at
Union filed with the Board a peti
AU inspectors, installers, senior installers, serviceman,
senior servicemen, operators and shopmen employed
by Federal Alarm at 300 South Sycamore Street,
Rialto, California, excluding office clerical, plant
clerical, sales, professional, accounting, confidential,
guards, and supervisors as defined in the Act.
During the morning of May 17 O'Brien met with
Buchwalter at a coffeeshop, with Wqam Dunn, Respon-
dent's director of sales, also present. Tkey talked about
O'Brien's union activity and about organizational efforts at
the plant and, after the conversation, O'Brien rode back to
the plant with Buchwalter, in the latter's car.
From about 10 a.m. until about 2 p.m. on May 17, with
some time out for lunch, a meeting of employees was held
by Buchwalter in his office at the plant. Union activities,
organizational efforts, grievances, and other matters were
discussed. At one point in the meeting employees held a
vote, with Buchwalter out of the room, and decided, by a
vote of 18 to 3, to represent themselves through their own
fellow-employee representatives, rather than to have a
union representative. Later in the meeting employees voted
for their employee-representatives, again with Buchwalter
out of the room during the voting. Representatives so
selected were Grant DriskiU for installers, Linda Gibson
for operators, Gillem for servicem
secretary of the group.
On May 18 a letter signed by
delivered to Adarns, requesting
union membership cards." The employees were told the
cards had been sent to NLRB.
On May 184 Stephen Olney, a union national representa-
tive who worked with Rochford on the organizational
effort at Respondent's plant, tel honed Buchwalter and T canceled the meeting scheduled etween the Union and
Respondent for May 19, because "as a result of your
meeting yesterday, I feel as though there is no reason for us
to meet."
cel our involvement
and every one of us has reached this decision of our
own choice and without any coercion or influence of
either the employer, C.W.A., or the elected representa-
5-22-76
a d Bradley /s/ 5-22-76
3: Grmt ThiskiU /s/ q-77-76
Received by NLRB on June 3.
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Leslie Duff /s/ 5-22-76
5. Mary Bessermin /s/ 5-26-76
6. James Garton /s/ 5-25-76
7. David Gillem /s/ 5-22-76
8. Esther James Is/ 5-25-76
9. Paul Kane /s/ 5-22-76
10. Linda Gibson /s/ 5-25-76
I I. Marvin Lucas /s/ 5-22-76
12.- Ted Lust /s/ 5-23-76
13. Grace Marsteller /s/ 5-22-76
14. Earla D. McCourt /s/5-25-76
15. Jerry Owen /s/ None
16. Joe Roach /s/ None
17. Daniel O'Brien /s/ None
18. Normand Rush /s/ 5-22-76
19. David Stokes /s/ 5-21-76
20. Michael Wehr /s/ 5-21-76
21. Sally Clover /s/ 5-27-76
The four employees selected as unit representatives
established with Buchwalter a schedule for meetings during
work hours each Monday morning, at the plant, starting at
8:30 a.m. Meetings were held, with Buchwalter present at
all of them, as scheduled except when date changes were
necessary. Dates of such meetings were established at the
hearing as May 21, 24, and 27 and June 3.6 Subjects
discussed at the meetings consisted mostly of complaints
and possible improvement of working conditions.
On August 18 Rochford wrote the following letter to
Buchwalter:
I would like to request a meeting with you at your
earliest convenience for the purpose of discussing
contract negotiations for your employees. I realize you
intend to appeal the bargaining recommendation of the
N.L.R.B. However, if we can avoid litigation in the
mutual interest of your employees, it would be to
everyone's benefit.
I will be out of town August 23-25. Any other time I
will make available to you- You may contact me
through our office secretary at 883-9990, between the
hours of 1 :00 and 5:30 p.m.
Rochford testified that, in her opinion, Respondent's
employees did not want union representation as of August
18. She stated:
Q. So you did not poll the employees on August 18,
and you did not know on that date whether or not they
actually intended or desired to have the union represent
their interest in contractual relationships on that date;
is that correct?
A. I want to answer you truthfully.
You have got to understand that.
At that date I understood our majority had been
destroyed and that a majority of the employees there at
Federal Alam felt that if CWA went away, they would
be relieved of an awful burden.
There was a brief, informal meeting after the general group meeting of
May 17 at which representatives were elected.
' As shown by G.C. Exh. 9.
Lucas' card was admitted by stipulation.
So, it's kind of difficult.
I am going to have to say to you that at that
particular time the employees did not want a union, the
majority of the employees did not want a union.
I have to be truthful.
No meeting was held as proposed by Rochford, the
Committee continued to represent the employees, and
Respondent and the Union have not negotiated to date.
Issues
The principal issues are whether Respondent dominated,
interfered with, and assisted the Committee in violation of
Section 8(a)(2) and (5) of the Act; whether Respondent
thereby and through other means destroyed the majority
status theretofore enjoyed by the Union; whether Respon-
dent has failed and refused to bargain with the Union in
violation of Section 8(a)(5) of the Act; and whether
Respondent committed independent violations of Section
8(a)(1) and (3) of the Act as alleged in the complaint.
A. Union Status Prior to May 17
There is no dispute about the fact that 18 union
authorization cards were filled out, signed, and delivered to
the Union on May 13 and 15, or the fact that there were 2 1
employees in the unit as of those two dates.
Respondent's argument on this issue is that the cards are
not valid because of misrepresentations and misunder-
standings on the part of employees at the time they signed
the cards.
Testimony of witnesses shows that the following five
cards were signed properly in every respect, and are valid
for the purpose of determining whether the Union enjoyed
majority status as of the dates the cards were signed:
O'Bnen, Gillem, Kane, Rush, and Lust.
The following four cards were signed and delivered to
the Union,7 but the signers were not called as witnesses and
subjected to cross-examination relative to their signatures:
Duff, Garton, Gibson, and Lucas. Those cards are
excluded from wnsideration.8
Bessermin testified that she read the card given to her by
Gillem, filled it out, dated it, and signed it. She said she
remembered no conversation at the time other than being
told "that it was to learn more of the pros and cons of the
union." In view of her having read and signed the card, the
statement she remembers does not invalidate her signature,
nor does it change the import of the card language, which
clearly shows the purpose of signing. There is no way in
which the entire conversation between Bessermin and
Gillem can be reconstructed, but the card signature prima
facie is valid, and Respondent did not show otherwise.
Bessermin's card thus is found valid.9
McCourt testified that she read, filled out, and dated her
card, then signed it. She said O'Brien told her at the time
she signed "it was to hear the pros and cons of the union
and it was to vote on it." As in the case of Bessermin's card,
Cumberland Shoe Cor;.nr?;n-, 114 NLSP 1?5S :*""";, mf:. FJJ
917 (C.A. 6 1%5), approved in N.LRB. v. Gissel Packing Co., Inc., 3% U.S.
sa (1969).
FEDERAL ALARM 52 1
there is no indication that McCourt did not understand the
card language or was misled as to its purpose, or did not
know what she was doing. Clearly no misrepresentation
was shown. Under such circumstances the Cumberland
Shoe rule applies. McCourt's card is found to be a valid
one.
Clover testified that she read the card handed to her by
Mrs. Gillem and Mrs. O'Brien, filled it out, dated it, and
signed it. She said she understood that, by signing, she was
going to find out more about the Union. Her card reads as
follows: 10
Name Sa l ly El lzabetb Clover
( P l e a s e Print) Plr8t Hlddle Laet . - - -
Mdres8 10620 N. L m n Clrcle Apt. J
S tree t
~ i r a ~ c m n Cdif. 91792
U f y S t a t e Zip Code
T e l . No. 685-6783 Job T i t l e Operator
I sm 81 Employee of Federal Alarm
- -
Deparlmenf sect lrm
and I hereby designate the
Comunlcatione UorLera of America. a.
my c o l l e c t i v e bargaining representative.
Date 5-12-76 signature /s/ Sa l ly Cbver
Form 0-100
2/72 REPRESENTAXION AUTHORIZATION
As in the case of Bessennin and McComt, there is nothing
in the record to show that Clover did not understand the
language of the card, or that the card was misrepresented
to her. The card is found to be a *slid one.]'
Stokes testified that he did not read the card given to
him, but that he had an opportunity to read it, he filled it
out, and he signed it. He said there was some conversation
at the time he signed, but all he remembers is that the
employees were "asked if we would sign the cards so that
we could have the opportunity to discuss with a union
representative regarding what they could do for us." He
said he remembers seeing "CWA" or "Communications
Workers of America" on the card. On cross-examination
Stokes testified that he understood the card was solely for
the purpose of talking with the Union. Stokes' testimony
about his understanding of the card is not credible under
the circumstances of the signing. First, Stokes said James
was present at the time of the signing and the conversation
with Gillem and O'Brien, yet James testified and did not
list Stokes as among those present when she signed, and,
further, James' version of the conversation diffim in many
respects from that of Stokes. Second, Stokes said Wehr also
was present, yet Wehr did not corroborate Stokes'
testimony about the latter's alleged conversation with
Gillem and O'Brien. Third, the act of filling in the card,
and dating and signing it, is not consistent with Stokes'
allegedly not reading the card. Finally, Stokes is a former
member of two unions, and the likelihood that he would
not recognize an authorization card for what it was is
remote. It is found that Stokes knew what he was signing,
that he signed freely and voluntarily, and that his card is
valid.
Marsteller testified that she read the card, "studied it
quite a bit," and told Gillem "I would have to think it
over." A couple of nights later Gillem "kept telling me the
benefits of the company and also the union's" and she then
filled in the card and signed it. MarsteUer stated:
Well, I was just against it right along and I kept
telling him that, as I said, and we discussed the pros
and cons about it and more or less on those arrange-
ments, and I told him I was still against it and was
doing this against my betterjudgement.
Q. Then you signed the card?
A. This was after I had signed the card, and also
before I signed it I told him that too.
Q. What did Mr. Gillem tell you, if anything at the
time you got the card?
A. Well, he just indicated and outlined the benefits
of the union coming in and what they could do for us,
and I finally asked him, I said, "Well, has everybody
joined," and he said, "Yes" - I mean, I said, "Has
everybody signed the cards" and he said "Yes!'
So, I thought, well I will just go along with them
against my better judgement.
As argued by General Counsel, although Marsteller was
told that the Union may be able to offer better wages,
hospital, and insurance plans, such representations do not
invalidate a card.12 The representation to Marsteller that a
vote would be taken later is insufficient to invalidate her
card.13 Marsteller's testimony that she finally signed
against her betterjudgement is insufficient to invalidate her
card, since subjective motivation of the signer at the time of
signing is irrelevant.14 With respect to Marsteller's having
been assured at the time of signing that everyone else had
signed, the Board has found this not to be sufficient to
invalidate a card if, in fact, as here, practically everyone
else had signed at the time of the card signing in questionJ5
There is no evidence that Marsteller signed because of the
statement about others having signed. Finally, in view of
her caution in signing, and her taking 2 days to think it
over, it is highly unlikely that Marsteller was ignorant of
the card, or its implications, or the consequences of her
signature.
Driskill testified that he "danced over it briefly," filled in
the card, and simed it. fie said he asked Gillem and
O'Brien "who di&'t sign cards," and the answer was "I
believe they told me who had not signed cards at that
time."'e Driskill's testimony was equivocal, there is no
indication whether the alleged question and answer were
lo All signed cards have the same blank forms. 14 Red Barn Sysrey Inc., 224 NLRB 1586 (1976). citing N.LR.B. v.
I ' Bradley testified that he, Gibson, and Clover asked Gillem why he had GisselPacking Co., Inc., supra.
lied about the cards not being binding, and that Gillem replied he had been 15 B~~~~ B , ~ , ~ ~ k i ~ ~ co,, lnc., d /b /a ~ ~~i~ ~ ~ ~ , , l ~ ~ ~ k ; ~ ~ co., 198
misinformed. Gillem denied having the conversation. Gibson did not testify. NLRB 3.7, 328, 329 (1972); see G a A ~~~k L ~ ~ ~ , J , ,~ . , 168 NLRB 846
Clover did nct corroborate Bradley's testimony. G;l!em is credited
l2 Diamond Motors, Inc., 2 12 NLRB 820,830 ( 1 974). ( t m.7).
l3 Shulmon's Inc. of Norfolk, 208 NLRB 772 (1974). ' 6 This differs somewhat from Driskill's testimony on cross-examination.
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
before or after his signature, and there is no evidence that
he signed the card because of the alleged statement by
Gillem or O'Brien. Under such circumstances, the alleged
statement does not affect the validity of the card. Driskill
also testified that, when he signed, he was told that the card
would not be turned in to the Union until after he received
a raise, and that he thought, when he signed, that the card
was not going to be turned in immediately, whereas it was.
However, there is no evidence that he would not have
signed in the absence of such facts" and, further, there is
no evidence that such a delay was a condition of his
signing.
Owen testified that he was given one card by O'Brien,
but "didn't feel like reading it or anythmg. . . ." O'Brien
gave him a second card on May 15, which he then read,
dated, and signed. Owen stated:
Q. Well, you just indicated that you signed, but
nothing was said as to what the card was for, other than
what it read?
A. Mr. O'Brien didn't say anything.
I drew my own conclusions from what the union
members had told us at the meeting.
On cross-examination Owen stated that he signed the card
"so that the union could talk to Ralph [Buchwalter]," and
he "was under the impression that there would be a vote."
The Cumberland rule controls this issue, and requires a
finding that Owen's card is valid. There is no evidence of
misrepresentation, the election "impression" is speculative
and of no probative value, and the statement that the card
was signed to assist the Union in talking with Buchwalter is
a statement of the possible sequence of events in such a
situation.
In summary, the language of General Steel Productsls is
pertinent and applicable to this case. The Board there
stated:
As the court emphasized in Joy Silk Mills, Znc. v.
N.L.R.B., 185 F.2d 732, 743 (C.A.D.C.), cert. denied
341 U.S. 914, it has long been held that "an employee's
thoughts (or afterthoughts) as to why he signed a union
card, and what he thought that card meant, cannot
negative the overt action of having signed a card
designating a union as bargaining agent." Accord:
N. L. R. B. v. Greenfield Components Corporation, 3 17
F.2d 85, 89 (C.A. 1); N.L.R.B. v. Gorbea, Perez &
Morell, S. en C., 300 F.2d 886 (C.A. 1); N.L.R.B. v.
Whitelight Products Division of White Rolling & Stamp-
ing Corporation, 298 F.2d 12 (C.A. I), cert. denied U.S.
82 1 ; N. L. R. B. v. Stow Manufacturing Co., 2 17 F.2d 900
(C.A. 2), cert. denied 348 U.S. 964; Dan River Milk,
Incorporate4 Alabama Division, 121 NLRB 645, 648,
enforcement denied on other grounds 274 F.2d 381
(C.A. 5). This rule is but another application of the
principle expressed in AIIied Steel & Conveyers, Zm. v.
Ford Motor Company, 277 F.2d 907, 913, that "[iln the
absence of fraud or wilful deceit, one who signs a
contract which he has had an opportunity to read and
understand, is bound by its provisions." Such a rule is
particularly applicable here, since almost a l l the
employees who were asked, testified that they read the
authorization card or that it was read to them before
they signed it or authorized it to be signed in their
behalf. Sound policy supports the application of the
rule to union authorization cards. It has long been
settled that such cards are an acceptable means of
proving a union's majority (United Mine Workers of
America v. Arkansas Oak Flooring Co., 351 US. 62, 71-
72), and they could hardly serve that ofice if they were
subject to repudiation by testimony as to mental
reservations. -
At first dance, the distinction between representa-
tions that an election is the sole purpose of the cards,
and representation that an election is a purpose may
seem a fine one, but the distinction goes to the very
basis for the rule. Thus, by stating that the card may or
will be used to secure an election, the solicitor neither
contradicts the plain statement on the card nor
misstates the Union's actual intention. As the Board
observed in Cumberland Shoe Corporation, 144 NLRB
1268, "the failure of the Union's solicitors to affirma-
tively restate [the authorization contained in the card]
does not indicate that it was abandoned or ignored."
Based on the foregoing, it is found that the 12 cards
discussed above, that is, those of O'Brien, Gillem, Kane,
Rush, Lust, Bessemin, McCourt, Clover, Stokes, Driskill,
Owen, and Marsteller, are valid and constitute a majority
of the unit employees as of May 16.
Gillem testified that he told some employees "to listen to
the pros and wns for going union," but that 'The majority,
I told them was to have a union represent them in
collective bargaining." This testimony is contrary to his
earlier affidavit given to a Board agent, wherein he stated
that he and O'Brien told employees they were not obligated '
to be represented by the Union if they signed the cards.
Gillem was an unimpressive witness, but it is clear that
there was some disregard for the truth on both sides of this
controversy. It has been necessary to base some findings on
facts apparent from the record as a whole, rather than on
testimony of particular witnesses. In analyzing the 12 cards
found valid above, it is clear that all 12 signers read the
cards before signing, and that they did not sign because of
any statement contrary to the language of the cards or
because of any conditions they themselves imposed. There
is nothing in the record to show that they signed
involuntarily. To the contrary, it is clear that the union
situation was common talk among employees prior to the
dates the cards were signed and that employees signed
because they wanted to. Perhaps some signers later
regretted their actions, or were talked into changing their
minds, but that is a separate problem, discussed infra, and
does not affect the validity of the cards as of the date of
signing. Consideration has been given to the meeting in the
park on May 15, and the vote taken there, but the
testimony relative to that meeting is far from complete and
further, all employees did not vote at that time. Most of
Buchwalter's actions to defeat the Union's majority of May
l7 1.T.T. Semi-Conductors, Im., 165 NLRB 716 (1%7).
Is General Steel Producrs, Inc., and Crown Flex of NorIh Carol iq Inc.,
157 NLRB 636,644-645 (1966).
FEDERAL ALARM 523
13 took place May 17; however, in view of the close vote on
May I5 it is obvious, and it is inferred, that at least part of
the reason for some employees' change of mind can be
attributed to Respondent's words and actions after its
receipt on May 14 of the Union's demand letter. This
inference is of sufficient persuasion to overcome the lack of
real evidence that Buchwalter talked to employees about
the Union between his receipt of the Union's demand letter
and the meeting in the park on May 15.
General Counsel does no: argue that the remaining 6 of
the 18 cards should be counted, hence those cards are not
discussed.
B. Alleged 8(a)(l) Violation of May 17
Paragraph 19 of the complaint alleges in substance that,
on or about May 17, Buchwalter (a) interrogated an
employee (O'Brien) concerning his union activities, and (b)
threatened that employee with reprisals if the employee
continued to support the Union.
O'Brien testified that he talked with Buchwalter, while
Dunn was present, in a coffeeshop about 9 a.m. on May 17.
O'Brien stated:
Mr. Buckwalter asked me if it would not be better
to go to him instead of a third party and 1 said, well,
under ideal conditions that would be true, but we don't
-we aren't in ideal conditions.
He asked me if it would be better if a truck, if a truck
broke down, for me to come to him - I mean for me to
come to him and ask him about it instead of a union
steward and he stated that he would not be willing to
talk to a third party orba union representative as he
would if I would come mvself and ask him.
THE WITNESS: He asced me what exactly was my
complaint and I told him that management didn't seem
or wasn't aware of the problems that the employees
were having, that the pay was poor, not adequate, the
benefits were not adequate and he suggested to me that
would it not be better for me to come to him instead of
going through a third party.
A. He felt that - he said that he felt that the union
would tend to mess things up and that the employees
would be better off without the union and things would
continue to run smoothly.
O'Brien further testified that, while he was riding back to
the plant with Buchwalter in the latter's car after the
foregoing conversation, Buchwalter said:
Q. What was said back and forth?
A. That if I would support and talk for him things
would go better for me.
Dunn testified that he was present during the conversa-
tion at the coffeeshop, but that he did not participate. He
stated:
A. They both sat down and immediately Mr.
Buckwalter asked Mr. O'Brien what he wanted and Mr.
O'Brien stated that he wanted benefits, that he wanted
high salaries for the employees and that he wanted
other obtainable assets which he thought he might
personally be responsible for.
Q. Did Mr. Buckwalter respond to that?
A. He asked Danny O'Brien why he was doing all
of this and Danny related that he enjoyed the personal
satisfaction of stirring up things. That if he had choice
he would like to organize unions full time.
Q. Did Mr. Buckwalter respond to that?
A. He responded that, "I'm sorry you feel that way.
My door has always been open and I have always had
the best interest of my employees at heart."
Q. During the course of this conversation did Mr.
Buckwalter in any way question Mr. O'Brien about his
Union activities?
A. No, sir.
Q. Did Mr. O'Brien in any way relate any of his
Union activities [sic] except the desires which you just
related to us?
A. No, sir.
Dunn stated on cross-examination:
Mr. Buchwalter I believe at that point said, "Why
are you doing this?'And he said, "I get personal
satisfaction out of this." He said, "I enjoy stirring up
thngs and if I had my choice I would like to have a full
time job organizing unions."
Mr. Buchwalter said that he was disappointed, that
he had always had an open door policy and had the
best interest of his employees at heart.
One other point that I didn't mention before is that
Mr. O'Brien said, "Well, it's too late now."
Buchwalter did not testify concerning the conversation in
the coffeeshop, but he denied telling O'Brien in the car
while driving back to the plant, that if O'Brien supported
him things would go better for him.
Discussion
The record does not show who arranged the conversation
at the coffeeshop or the initial reason given therefor.
However, it is clear from the credited testimony of O'Brien
and Dunn that Buchwalter: (1) knew that O'Brien was
active in the organizational effort, (2) asked O'Brien what
he was trying to obtain for the employees, (3) asked
O'Brien why he was engaged in such acf vity.
Under such circumstances there can only be one
reasonable conclusion: that is, Buchwalter interrogated
O'Brien about his union activities, as alleged.
The statements attributed to Buchwalter in the automo-
bile clearly carry the implied threat that things would not
go smoothly if O'Brien continued his union activities and
did not support Buchwalter. Buchwalter denied the alleged
statements. O'Brien is credited.
It is found that the allegations of paragraph 19 of the
complaint are supported by the record.19
- -
l9 Whether or not O'Brien felt threatened by Buchwalter's statements is
immaterial.
524 DECISIONS OF NATIONAL LABOR RELATlONS BOARD
C. Alleged Suggestion and Encouragement to Form
an Employee Committee
Paragraph 1 I of the complaint alleges in substance that,
on or about May 17, Buchwalter suggested to Respon-
dent's employees that they could represent themselves
through a committee, and that Buchwalter encouraged
those employees to form such a committee.
Buchwalter did not testify relative to this issue. Respon-
dent's testimony on this subject was limited to that of
Bradley (who testified very briefly), Wehr, and Boldt.
O'Brien testified at length, as did other General Counsel
witnesses, concerning the meeting held in Buchwalter's
ofice starting about 10 a.m. on May 17.20 The date, time,
and place (Buchwalter's office) of the meeting are not in
dispute. O'Brien stated that, at the meeting, Buchwalter
repeatedly said it would be better for the Company and the
employees to deal directly with him rather than through the
Union, and that "the Union was in the way now,"
precluding such direct dealing. O'Brien said some of the
employees actively supported Respondent during discus-
sions at the meeting, and that Buchwalter indicated he
would negotiate with the Union, but "it would be a slow
laborious~rocess." Buchwalter stated that, whichever way
the employees chose to go, he would abide by their wishes,
but he preferred to deal directly with the employees.
O'Brien testified that Buchwalter suggested the employees
take a vote among themselves. There is no dispute about
the fact that, after lunch, a vote was taken with Buchwalter
and all other management personnel out of the room, and
the tally was 18 to 3 against representation by the Uni0n.~1
Gillem testified concerning the meeting of May 17, and
said Buchwalter stated that he preferred to negotiate
directly with the employees rather than negotiate through a
third party. Gillem testified that there was no discussion
among employees prior to the vote of May 17, concerning
an employees' committee, but that there was such a
discussion after the vote was taken. Gillem testified:
A. Well, the vote was 18 to three against the Union
at that time.
Mr. Buckwalter came back into the room and we
told him that we had decided to negotiate with him
directly and he said that that was fine, he would like to
see it that way and that we should form at least one
person to talk for the employees or have a committee of
one person from each g o u p to talk for the employees
in an employees' represented group.
So, at that time, he was asked to leave the room
again.
He left the room and there was a vote of employee
representatives. Grant Driskill was voted for installa-
tion representative. Linda Gibson for the operators and
myself for the servicemen and Belinda Boldt for the
secretary for the committee.
At that time the meeting ended.
- --
'O There is some dispute about how the meeting was called. It is found
that it was a manduto~y meeting called by Buchwailer, attended by m t
employees and management personnel.
There is some dispute about who first suggested that a vote be taken,
Gillem said Buchwalter told the employees during the
meeting that it was their right to deal with him directly, or
through the Union, according to their own desires, and that
he was not trying to "sway the employeesw one way or the
other.
John Driskill, an installer who has been employed by
Respondent approximately 9 years, testified that Buchwal-
ter told the employees on May 17 that he would negotiate
with the employees or with the Union, that "It made no
difference to him," and "That was the main point of the
meeting." Driskill said he "believes" he was the one who
suggested that a vote be taken, that he "believes"
Buchwalter thought a vote would be a good idea, and that
he asked Buchwalter to leave the room during the voting.
Driskdl testified that the employees decided among
themselves to form a committee, after which Buchwalter
was called back into the room; that Buchwalter said it did
not matter who he negotiated with, but that he was "glad
that the employees felt that they could still talk to him."
Esther James, a telephone operator, testified that she
attended the meeting of May 17. She said:
A. He thanked us for coming and stated that there
had been some problems come to his attention that he
hadn't previously known about and there was some
discuss&
And, he said that he didn't understand why we
hadn't come to him, because he had always had an
open-door policy.
And, about an hour or so after he spoke to us, he
opened it for questions and suggestions, and that type
of thing.
Mr. Buchwalter stated that he was sorry that the
problems had come up to where we felt we had to have
&bitration.
And, he stated that he would not give the union any
concessions that he would not give us as a group
personally.
James said a representation vote was taken after lunch with
Buchwalter out of the room, and, before Buchwalter was
called back into the room, the employees decided on their
representatives who would act as a committee in negotiat-
ing with Buchwalter.
James then stated:
A. He didn't feel - he didn't seem to feel that any
problem was so bad that we had to have a third party.
He said that we had always been a close-knit group,
that he had always tried to speak to those who had
come to him, and that his door was always open.
And, that we didn't need a third party to arbitrate
for us.
. . . Mr. Buckwalter said that he could not discuss
specifics, say, for this group he is going to pay them so
much and so on, but that if we decided to deal with him
instead of the Union, then he would discuss it.
and Gillern's testimony is not reliable in that it dilfers substantially from his
earlier allidavif but that dispute is irrelevant in view of Buchwalter's iater
actions, discussed in fa Clearly, Buchwalter availed himself of the results of
the vote.
FEDER
Q. Did Mr. Buckwalter indicate that he doesn't see
any reason why the employees cannot settle their
problems they had with management without any
outside interference?
A. Yes. sir.
Michael Bradley, a serviceman for Respondent, testified
that he attended the meeting of May 17, that ~uch4alter
said he would negotiate with either the employees or the
Union, and that Buchwalter did not suggest an employee
representative group.
Michael Wehr, a serviceman for Respondent, testified
that he attended the meeting of May 17, that Buchwalter
said he was disappointed with the employees going to a
third party for assistance, that he always had been
available for discussions, and that he would negotiate with
either the employees or the Union Wehr also stated that
Buchwalter "threw the meeting open for debate on some of
the problems that we felt was relevant and some of the
problems that caused us to go the extreme of signing these
cards. . . ."
Boldt testified that, at the meeting of May 17, Buchwal-
ter said he was disappointed because the employees had
not come to him first with their problems, and that he
always had, and then had, "an open door policy-"
Discussion
It may be, as argued by Respondent, that Buchwalter did
not, in so many words, suggest that the employees organize
a committee to negotiate with him. However, his actions
and words made that suggestion and encouraged the idea,,
as clearly as though he had written a mqnorandum to that
effect.
Buchwalter attempted to show that, from the outset of
the meeting of May 17, he was neuttal. However, that
attempt failed because (I) had be been neutral, there would
have been no need for the meeting, and it would not have
been called, (2) his alleged neutrality was between union
representation and employee representation, with a clear
line of demarcation between the two, (3) he complained to
the employees that their flirting with the Union was a sharp
(extreme, in the words of employee Wehr) break with past
practice, (4) he said his door was always "open" to
employees for discussion and settlement of complaints and
problems, and (5) he said it would be much better for the
Compan and the employees to deal directly with each
other raJer than though a third party.
In order to nudge the employees toward his own
preference, Buchwalter held out in clear and unmistakable
terms the prospect of better wages and working conditions,
as discussed below. His statement that he could promise
nothing at that time because of union considerations
effectively was negated, and implicitly wntradicted, by his
further statement that he could, however, discuss wm-
plaints and suggestions.
Having thus established his desire to deal directly, and
having thus tempted the employees with prospects of better
wages and working conditions, including a close and
friendly relationship with the "boss," the idea of an
employee committee was inevitable. If Buchwalter did not
overtly suggest the committee, he caused its creation
through implied suggestion and encouraged its creation.
The fact that Buchwalter was out of the room when the
employees decided on a committee is immaterial. When he
did return to the room he expressed relief that the
employees had so decided, and he immediately accepted
the Respondent-Committee relationship by holding the
first of several meetings, without even mentioning the
creation of the relationship or the roles the parties were to
play therein.
Based on the foregoing, it is found that the record
supports this allegation.
D. Alleged Petitions To Revoke Car&
Paragraph 15 of the complaint alleges, in substance, that
during the month of May Buchwalter instigated prepara-
tion &d circulation of peiitions to revoke G o n authoriza-
tion cards and to discontinue union activity.
As found above, Buchwalter met with the employees
because of their having signed union authorization cards
resulting in a union request to bargain. At that meeting
Buchwalter implicitly promised benefits and action on
complaints and enwuraged the employees to abandon the
Union in favor of self-representation. Buchwalter ex-
plained at the meeting of May 17 that he wuld not take
afTumative action to grant benefits and settle complaints at
that time, because the Union then was a party in interest.
Whether or not Buchwalter told the employees they should
take action to remove the Union's interest,22 it was
apparent that some such action was necessary if the
employees were to be their own representative.
O'Brien testified that, after the employees voted on May
17, he was asked to get the cards back from the Union. He
called the Union on the telephone and was told the cards
had been sent to NLRB and were not available from the
union.
Gillem testified that, on May 18, Buchwalter asked him
to get a roster of the employe& and wme to Buchwaltefs
house. which Gillem did. Gillem stated:
sometimes things needed to be done to get the Union
out of our hair.
He suggested that we type up a Petition and get it
signed by the employees and send it or hand carry it to
the CWA for the return of our representation cards.
Q. Did he suggest it?
A. He actually typed it.
Q. Did you comply with his request?
A. Yes, I did.
Gillem said he did as Buchwalta requested; 23 be obtained
the signatures and presented the letter to Adam, who said
the cards had been sent to the NLRB. Gillem testified:
22 Gillem testified on cross-examination rhat an employee, whose name
he does not remember, suggested "that we write a petition to see if we can
get our cards back from the union."
'Ihe letter is G.C. MI. 8.
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
So, I told that information to Mr. Buckwalter and he
suggested that we write another one and send it to the
NLRB with a copy to the Union.
Q. When did he suggest this?
A. I believe it was on the 19th or 20th of May.
Q. Who else was present, if anyone?
A. This was at one of the employee representative
meetings. Driskill was present. Linda Gibson was
present. Belinda Boldt was present and myself, I
believe.
Q. What did you do as a result of the suggestion, if
anything?
A. I typed up the Petition and posted it in the
Central Station for everybody's signature.
Gillem said the wording of the second letter*' was
"suggested by Mr. Buchwalter." The letter was received by
the NLRB June 6.
Driskill testified that an employee raised the question
during the meeting of May 17, while Buchwalter was
present, about getting the cards back from the Union, and
there was a discussion about how to get the cards back.
Driskill said a handwritten rough draft of the letter to the
Union was prepared. He said he did not remember who
prepared it, but it was not Buchwalter. He said he did not
know whether Buchwalter typed the letter. Driskill also
testified that he did not remember who drew up the second
letter, addressed to NLRB, but that it was not Buchwalter;
it was "one of the employee representatives."
James testified that she gave an employee roster to
Gillem at his request, sometime after the meeting of May
17.
Bradley said he was not certain, but he believes
Buchwalter was not present in the room on May 17 when
employees were talking about getting their cards back from
the Union.
Boldt testified that she does not know who prepared the
letter to the Union, but that, relative to the letter to NLRB:
A. In a meeting of Linda Gibson, Grant Driskill,
Dave Gillem and myself we together decided on the
wording of it. Linda Gibson wrote it down and I then
typed it.
Q. Was Mr. Buckwalter present during this meet-
ing?
A. Not to the best of my recollection.
Q. Who principally came forth with the language
that was used in this exhibit?
A. I would have to say it was Grant Driskill and
Dave Gillem, principally.
Boldt said that, after she typed the letter, she took it to a
park meeting the following Saturday, May 22, for signa-
tures. Thereafter she posted the letter at the central station
for signatures.
Discussion
Buchwalter did not testify on this subject.
2' G.C. Exh. 9.
25 including undermining the Union's majority status, and other unfair
labor practices.
Testimony of the employees is not consistent, and it is
clear that all the facts were not spread on the record by
witnesses for either side.
However, there is no doubt but that Buchwalter's efforts
were heavily influential in the actions surrounding the two
group letters. Buchwalter called the meeting of May 17
only because of the Union's organizational campaign, and
he succeeded in reversing the Union's earlier success.
Buchwalter's reversal efforts could succeed only if the
Union's interest was eliminated. It is found that Buchwal-
ter at least was present when the fust group letter was
suggested or talked about, and that he was an active
participant in discussions about the letter before it was
mailed. Driskill credibly testified that Buchwalter "thought
it would be a good idea, but he did not know what the
procedure was." The second letter was necessary only
because the first letter was sent to the wrong custodian of
the cards; the second was an outgrowth of the first.
Buchwalter was not ignorant of the second letter, and it is
certain that he fully supported it as an extension of his
efforts relative to the fust one. Finally, there is no
controversy about the fact that the letter to NLRB was
posted for signatures approximately 1 week, near the
timeclock in the central station. There could have been no
such posting without Buchwalter's knowledge and consent.
Buchwalter's direct participation in actions relative to
the two letters, under the circumstances involved herein,25
constitutes a violation of Section 8(a)(1), (2),2'3 and (927 of
the Act.
E. Alleged Promise of Benefits
Paragraph 19(c) of the complaint alleges that, on or
about May 17, Respondent promised its employees
economic benefits if they ceased to support the Union.
Driskill testified that, at the group meeting on May 17,
"some of the things that the employees had brought up
before were brought up . . . such as pay differential and
sick leave . . . ." He also said, "But, we were informed
that we couldn't discuss anything at that time due to the
union problems." Driskill further testified that Buchwalter
brought with him to the meeting three or four wage scales
of competitors and compared them with Respondent's
wage scale. Buchwalter said "something to the effect that,
with respect to the differential, it was not so great that it
could not be overcome."
James testified that employees at the meeting of May 17
made many complaints to Buchwalter about poor pay,
benefits, and working conditions. Buchwalter refused to
discuss specific complaints and said "with the union as a
third party he could not negotiate." Buchwalter also said
"he would not give the union any concessions that he
would not give us as a group personally." Wages were
mentioned several times and comparisons were made, but
Buchwalter said "he could not discuss specifics."
Bradley testified:
A. He indicated after stating that he couldn't make
any promises about any of this that he was willing to
1. T~ppan Kniffing Ind~ufries, lm., 201 NLRB 3 (1973); Lenope
Manufacturing Co., 1% NLRB 931 (1972).
27 Trading Post, Inc., 219 NLRB 298 (1975).
FEDERAL ALARM 527
discuss them, that we can talk about them, you know,
but he couldn't make any promises at this time because
of this being bound up by the Union.
Discussion
hat alled
partially to discuss wages and working conditions, the fact
that he solicited complaints and grievances, and the fact
that he told the employees he would rather deal with them
directly rather than through a third party are not in
dispute. The only question is whether he promised to
remedy the complaints and grievances, expressly or
implicitly.28
In view of (a) the reason for the meeting, (b) Buchwal-
ter's questioning the employees as to why they took the
"extreme" measure of going to the Union and (c)
Buchwalter's expressed desire to keep negotiations in the
"family," certain testimony appears quite logical and is
credited. Such testimony includes that of Driskill, who said
Buchwalter told the employees that existing wage differen-
tials were not so great that they could not be overcome;
that of several employees who said Buchwalter stated that
the Union's presence prevented free discussions; James'
testimony that Buchwalter stated several times that "he
could not give us specific details on the problems, but that
the problems could be worked out; and James' testimony
that Buchwalter 'said "if we decided to deal with him
instead of the Union, then he would discuss it [wages]."
The statements by Buchwalter unmistakably cany the
message, "deal with me rather than through the Union, and
I11 solve your problems." That is atromi
violation of Section 8(a)(1) of the Act as a
F. Alleged Removal of Keys and Posting of Notice
Paragraph 17 of the complaint alleges that (a) on or
about May 21, Respondent took from O'Brien his keys and
code card and (b) on or about May 27 Respondent posted
a notice near the timeclock, stating that O'Brien was not
permitted on Respondent's property except during
O'Brien's work hours, because of O'Brien's union activity.
General Counsel's Exhibit 2, a letter from Adam to
Buchwalter, establishes Buchwalter's knowledge on May
14 that O'Brien was a leading union advocate and plant
union committee member.
Buchwalter's opposition to O'Brien's union activity and
his dislike of that activity are shown above, particularly in
section B.
The facts that O'Brien's kevs and code card were taken
from him on or about May 51, no other employee's keys
and code card were so taken, and the notice was posted as
alleged31 are shown by testimony and are not in dispute.
The fact that the keys and code card facilitated O'Brien's
work, both as a serviceman and as an installer, is
established by the credited testimony of O'Brien and
Driskill.
as Uarco lnror;--:*~.' 216 NLIUZ : :'Vf;.
zs The various "benefits" are discussed below. Although some arc of
little economic value, an of them contribute to a better work climate, or
improve work eflkiency, or make work more wnvemient or safe. Some of
the benefits are of direct economic value, such as a wage increase.
O'Brien and Driskill
given for removal of O'B
Buchwalter did not trust
In
Resp
testlfy on this subject, and Respondent introduced no
testimony or evidence in support of that argument. O'Brien
credibly testified that his honesty never had been ques-
tioned by Respondent prior to this incident
In view of the foregoing it is quite clear, and it is found,
that Buchwalter removed O'Brien's keys and code card,
and posted the notice described above, disparately and
solely in retaliation for O'Brien's @on activity.
The record supports this allegation.
G. Alleged Committee Participation by Buchwalter
on Company's Premiser
t alleges in' substance that,
since on or about May 17, Respondent has recognized and
bargained with the Committee as representative of unit
and does no morethan previously was accomplishe'd on an
individual basis. /.
Respondent admits in its answer to the amended
complaint that the Committee is a labor organization
within the meaning of Section 2(5) of the Act, and that the
unit described above is an appropriate one.
There is no dispute about the fact that the Committee
came into existence May 17, as a result of the meeting held
by Buchwalter earlier that day, attended by almost all unit
employees.
Credited testimony shows that, in the past, there have
been meetings between Respondent's management and
individual as well as group employees. However, those
meetings were irregular, informal, and never with any
person or persons acting for all unit employees. That
situation is in sharp contrast to events after May 17.
4 C q ~ b e : I S a g Company, M N L I U 22.2 (19ioj; Ine., 221
NLRB 899 ( 1 975).
31 Admission in pleadings, G.C. Exh. l(k) and (m).
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Starting on that date, Buchwalter personally met with the
unit's elected representatives on a regular schedule,32
discussed working conditions of a broad nature, took
action on some complaints, deferred some and took some
under advisement.33 The record shows no instance of
individual bargaining or discussion after May 17.
The general employee meeting of May 17 was called by
Buchwalter solely because of employee complaints and
employee union activity; there is nothing to show, and it
appears most unlikely, that a meeting of that nature would
have been held at any time, but for such complaints and
activity. Buchwalter persuaded the employees to abandon
the Union; he encouraged (and possibly instigated) letters
showing such abandonment; and subsequently he refused
to bargain with the Union as the representative of unit
employees.
Buchwalter recognized that the employees had been
stirred to action as a group, and his answer was to
recognize them and deal with them as a unit, but only upon
his own terms, without interference by the Union.
The record supports this allegation.
I . Alleged Granting of Benefirs
Paragraph 16 of the complaint alleges in substance that,
during late May, Respondent (a) informed the Committee
that it would give these employees benefits and improve
ments, and @) granted benefits and improved working
conditions.
Benefits and working conditions are at the center of the
controversy, as evidenced by majority employee interest in
unionization on May 12 and 13 in order to improve those
conditions; by Buchwalter's asking for complaints and
grievances at the meeting of May 17; and by the
employees' rejection of unionization after Buchwalter's
promises to deal with the problems if they would negotiate
directly with him.
The fact that employees in the past had complained
about poor working conditions and low wages is not in
controversy. Included are complaints and suggestions
about wages, office carpets and paint, identification cards
for installers, safety hats, a telephone in the women's
restroom, alarm systems for employees' houses, and the
emergency call system.
Respondent defends by asserting that the complaints and
suggestions were without foundation, or were under
consideration prior to any union activity, or were being
acted on independently of any union activity. That defense
is not convincing for several reasons. First, Buchwalter did
not testify on this subject, nor did Respondent offer any
proof of past or pending action on the items complained of.
Second, those items, among others, precipitated this
controversy. Third, those items were discussed in detail by
Buchwalter and committee representatives at the several
committee meetings after May 17.
Respondent contends that no promise was made to settle
the complaints or to provide benefits, but Buchwalter did
not testify to support that contention, and the testimony of
32 Not rigidly adhered to, however.
JJ These matters are discussed in detail in fa
34 Respondent's contention that tbe grievances and complaints were
Gillem, Driskill, and James credibly shows that the
complaints and suggestions were discussed at length in
committee meetings and that Buchwalter either stated what
was being done about them, or that something could and
would be done.
Finally, Buchwalter's pretrial affidavit, partially read
into the record by stipulation, constitutes an admission that
the complaints and suggestions were discussed at commit-
tee meetings; that action was taken by Respondent
pursuant to those complaints and suggestions; and that
some benefits were given that previously were not given,
including new hardhats, new carpets, new paint, new
identification badges, emergency call system, and restroom
telephone. The affidavit states that carpeting and painting
previously had been considered, but no proof of that was
offered, and the fact remains that something definite was
done only after committee meetings.%
In view of the foregoing it is clear, and it is found that
these allegations of the complaint were proved.
J. Alleged Interrogation of June I
Paragaph 19(d) of the complaint alleges that, on or
about June 1, Respondent interrogated employees about
their union activities and the union activities of fellow
employees.
DriskiU testified that he talked with Buchwalter on June
1 at a coffeeshop, at the latter's request He said, "Mr.
Buchwalter asked me what my feelings were toward Mr.
O'Brien." Driskill told Buchwalter that he thought O'Brien
"was taking a lot of abuse" because of his union activity.
Driskiu asked why Buchwalter was so upset with O'Brien
and Buchwalter said it was because of the pressures "of the
union situation" on his mother, who is Respondent's
president.
Discussion
Buchwalter did not testif) on this subject. Driskill is
credited.
Buchwalter's questioning of Driskill must be placed in
context in order to assess this allegation. Driskill's
testimony following Buchwalter's first question shows that
Buchwalter was questioning DriskiU about O'Brien's union
activity. That questioning occurred after Buchwalter
invited Driskill to talk with him, thus it was not a chance
remark. The setting, Buchwalter's management position,
and the nature of the questioning clearly establish an
8(a)(1) violation as alleged.
K. Alleged 8(a)(5) Violations
As discussed above, the Union had a majority on May
13, and thereafter requested that Respondent bargain with
it. After that request was made, Respondent dissipated the
Union's majority through various violations of the Act.
minor or already taken &re of cfkctively is negated by the fact that those
grievances and complainrs precipitated this controversy, an4 further, all of
them were outstanding as of May 17.
FEDERAL ALARM 529
Such actions clearly constitute the 8(a)(5) violation alleged
in the complaint.35 Further, Respondent violated Section
8(a)(5) of the Act by its refusal to bargain with the Union
upon request.
Respondent argues that the Union negated the duty to
bargain when it canceled the meeting scheduled for May
19. That argument has no merit, in view of Respondent's
dissipation of the Union's majority on and before May 17,
thereby making futile any bargaining thereafter.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Respondent's activities set forth in section 111, above,
occumng in connection with the operations of Respondent
described in section I, above, have a close, intimate, 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 in violation of Section 8(a)(l), (2), (3), and
(5) of the Act, I shall recommend that it be ordered to cease
and desist therefrom, and to take certain affirmative action
designed to effectuate the policies of the Act.
General Counsel seeks a bargaining order, and Respon-
dent argues that such an order is not appropriate. Among
other contentions, Respondent argues that the union
authorization cards were s i w d for the purpose of holding
an election or otherwise were defective, and that Roch-
ford's testimony shows the cards were distributed solely for
the purpose of holding an election. Thus, Respondent
contends, the Union never had a majority to dissipate.
Extending this argument, Respondent contends that the
employees rejected the Union of their own free will. Those
arguments are not persuasive. The record shows beyond
any reasonable doubt that Buchwalter held a meeting for
the purpose of dissuading, and did dissuade, the employees
from their union desires; that he then encouraged two
attempts by employees to withdraw their signed cards; that
he thereafter assisted in the organization of the Committee,
provided it with company encouragement and support, met
and negotiated with it, and dominated it; and that he
committed several other violations of the Act in his efforts
to keep the Union out of the plant. His violations were
pervasive and successful. A bargaining order is appropriate
under such circumstances,36 and will be recommended.
Upon the basis of the foregoing fmdings of fact, and
upon the entire record, I hereby make the following:
I . Federal Alarm is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Federal Alarm Employees Committee and Comrnu-
nications Workers of America, AFGCIO, are labor
organizations within the meaning of Section 2(5) of the
Act.
3. By coercively interrogating and threatening its
employees, by promising its employees economic and other
benefits if they ceased to support the Union, by encourag-
ing its employees to deal with it through a committee rather
than through the Union, and by soliciting grievances and
promising to correct the same, Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(l)
of the Act.
4. By encouraging the formation of, and by dominat-
ing, assisting, interfering with, and contributing to the
support of Federal Alarm Employees Committee and by
encouraging and supporting preparation and circulation of
group letters among its employees seeking return of their
signed union authorization cards, Respondent has engaged
in unfair labor practices in violation of Section 8(a)(2) and
(1) of the Act.
5. By granting benefits and more favorable working
conditions to its employees in order to discourage union
activity, by removing an employee's keys and code card,
and by notifying all its employees that one employee was
not permitted on its premises except during his work hours,
Respondent has engaged in unfair labor practices in
violation of Section 8(a)(3) and (1) of the Act.
6. The following constitutes the appropriate bargaining
unit at Respondent's place of business:
AU inspectors, installers, senior installers, servicemen,
senior servicemen, operators and shopmen employed
by Federal Alann at 300 South Sycamore Street,
Rialto, California, excluding office clerical, plant
clerical, sales, professional, accounting, confidential,
guards, and supervisors as defined in the Act.
7. By recognizing and bargaining with the Federal
Alarm Employees' Committee; by encouraging and s u p
porting preparation and circulation of group letters among
its employees, seeking return of their signed union
authorization cards; by dissipating through unfair labor
practices the majority support of its employees previously
held by the Union; and by refusing to bargain, upon
request, with the Union as exclusive bargaining representa-
tive of the employees in the above-described unit, Respon-
dent has engaged in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the above findings of fact, conclusions of law, and
the entire record, and pursuant to Section 1qc) of the Act,
I hereby issue the following recommended:
35 N.L.R.B. V. Gissel Packing Co., Inc., 395 US. 575 (1969). Trading Part,
supra.
36 Gissel,supm.
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent, Federal Alarm, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating and threatening its employ-
ees; promising its employees economic and other benefits if
they cease to support the Union; encouraging its employ-
ees to deal with it through a committee of employees rather
than through a union; and soliciting grievances and
promising to correct the same in violation of Section 8(a)(l)
of the Act.
@) Dominating, assisting, contributing to the support of,
and interfering with, Federal Alarm Employees Committee
in violation of Section 8(a)(2) and (1) of the Act. Provided,
however, that nothing in this Order shall require or
authorize Respondent to vary or abandon any wage, hour,
seniority or other benefit it has established for its
employees as a result of negotiations with Federal Alarm
Employees Committee. Provided, further, that nothing
herein shall be construed as prohibiting its employees from
forming, joining, or assisting any labor organization.
(c) Discriminating against its employees in violation of
Section 8(a)(3) and (1) of the Act by granting benefits and
more favorable working conditions to its employees in
order to discourage union activity; by removing employees'
keys and code cards; and by notifying its employees that
fellow employees are not permitted on its premises except
during their work hours.
(d) Recognizing and bargaining with the Federal Alarm
Employees Committee as the representative of its employ-
ees concerning wages, rates of pay, hours of employment,
or any other terms and conditions of employment;
encouraging and supporting preparation and ci6ulation of
group letters among its employees, seeking return of
employees' signed union authorization cards; dissipating
through unfair labor practices the majority support of its
employees held by the Union; and failing and refusing to
bargain with Communications Workers of America, A F G
CIO, as the exclusive bargaining representative of the
employees in the following appropriate unit, in violation of
Section 8(a)(5) and (1) of the Act:
All inspectors, installers, senior installers, servicemen,
senior servicemen, operators and shopmen employed
by Federal Alarm at 300 South Sycamore Street,
Rialto, California, excluding ofice clerical, plant
clerical, sales, professional, accounting, confidential,
guards, and supervisors as defined in the Act.
(e) In any other manner interfering with, restraining, or
coercing its employees in exercise of the rights guaranteed
to them in Section 7 of the Act.
2. Take the following affirmative action, which will
effectuate the policies of the Act:
(a) Withdraw and withhold recognition from, and
completely disestablish, Federal Alarm Employees Com-
mlttee, or any successor thereto, as the representative of its
employees in the above-described unit, for the purpose of
collective bargaining, including settlement of grievances.
(b) Remove from its records, all copies of and references
to any group letters signed by employees requesting return
of their signed union authorization cards.
(c) Upon request, meet and bargain with Communica-
tions Workers of America, AFLXIO, as the exclusive
bargaining representative of employees in the aforesaid
appropriate unit, and after agreement is reached, reduce
said agreement to writing for signature of the parties.
(d) Post at its Rialto, California, place of business copies
of the attached notice marked "Appendix."38 Copies of
said notice, on forms provided by the Regional Director for
Region 31, after being duly signed by a representative of
Respondent, shall be posted by Respondent immediately
upon receipt thereof, and shall be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees customarily are
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or wvered
by any other material.
(e) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
3' In the event no exceptions are filed as provided by Scc. 102.46 of the
Rules and Regulations of the National Labor Relatiom Board, the fmdiings,
conclusions, and recommended Order herein shall as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and bccome
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
a In the event that the Board's Order is enforced by a Judgment of a
United States Court of AppeaL, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read 'Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor ReIations Board."
APPENDIX
N o n a To EMPLOYEES
~ 0 s r e ~ BY ORDER OF 'IHE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to give
evidence, the National Labor Relations Board has found
that we violated the National Labor Relations Act and has
ordered us to post this notice. We intend to carry out the
Order of the Board and to abide by the following:
The Act gives all employees these rights:
To organize themselves
To form, join, or help unions
To bargain collectively through representa-
tives of their own choosing
To act together for wllective bargaining or
other mutual aid or protection
To refuse to do any or all of these things.
WE \NILL NOT interfere with, restrain, or Coerce our
employees in the exercise of rights guaranteed to them
by Section 7 of the National Labor Relations Act by
intervgating or t h r e a t e ~ - g them; by proniirisg ccc-
nomic and other benefits if they cease to support a
union; by encouraging them to deal with us through a
committee of employees rather than through a union;
FEDERAL ALARM
or by soliciting grievances and promising to correct the
same.
WE WILL NOT assist or contribute to the support of,
dominate, or interfere with Federal Alarm Employees
Committee.
WE WILL NOT vary or abandon any wage, hour,
seniority, or other benefits established for our employ-
ees as a result of negotiations with Federal Alarm
Employees Committee.
WE WILL NOT recognize Federal Alam Employees
Committee, or any successor thereto, as the representa-
tive of our employees concerning wages, rates of pay,
hours of employment, or any other terms and condi-
tions of employment.
WE WILL NOT discriminate against our employees in
violation of Section S(aX3) and (1) of the National
Labor Relations Act by granting benefits and more
favorable working conditions to our employees in order
to discourage union activity; by removing employees'
keys and code cards; and by notifying our employees
that fellow employees are not permitted on its premises
except during their work hours.
WE WILL NOT encourage and support preparation
and circulation of group letters among our employees,
seeking return of employees' signed union authoriza-
tion cards; dissipate through unfair labor practices the
majority support of our employees held by a union; or
fail and refuse to bargain with Communications
Workers of America, AFL-CIO, as the exclusive
bargaining representative of our employees in the
iollowing appropriate unit:
All inspectors, installers, senior installers,
servicemen, senior servicemen, operators and
shopmen employed by Federal Alarm at 300
South Sycamore Street, Rialto, California, ex-
cluding office clerical, plant clerical, sales, profes-
sional, accounting, confidential, guards, and
supervisors as defined in the Act.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
rights guaranteed to them in Section 7 of the Act.
WE WILL withdraw and withhold recognition from,
and completely disestablish, Federal Alarm Employees
Committee or any successor thereto, as the representa-
tive of its employees in the above-described unit, for the
purpose of collective bargaining, including settlement
of grievances.
WE WILL remove from our records all copies of and
references to any group letters signed by employees
requesting return of their signed union authorization
cards.
WE WILL, upon request, meet and bargain with
Communications Workers of America AFL-CIO. as
the exclusive bargaining representative bf employe& in
the aforesaid appropriate unit, and after agreement is
reached, reduce said agreement to writing for signature
of the parties.
FEDERAL ALARM