Frontier Guard and DeLue, Inc.

National Labor Relations Board - Board Decisions

Oct 20, 1966

161 N.L.R.B. 155 (N.L.R.B. 1966)

FRONTIER GUARD PATROL, INC 155
Week Ending Warehouse Production Maintenance Drivers
& shop
Total
Dec 21 1965 0 0 8 12 20
Dec 28 1965 0 0 8 12 20
Jan 4 1966 15 71 2 12 100
Jan 11 1966 15 71 2 12 100
Jan 18 1966 15 71 2 12 100
Jan 25 1966 15 71 2 12 100
Feb 1 1966 2 19 2 12 35
Feb 8 1966 2 19 2 12 35
Feb 15 1966 2 10 2 12 35
Feb 22 1966 2 19 2 12 35
Mar 1 1966 6 32 2 12 52
Mar 8 1966 6 32 2 12 52
Mar 15 1966 6 32 2 12 52
Mar 22 1966 6 32 2 12 52
Mar 29 1966 8 13 2 12 35
Apr 5 1966 8 13 2 12 35
Apr 12 1966 8 13 2 12 35
Apr 19 1966 8 13 2 12 35
Apr 26 1966 0 0 10 12 22
May 3 1966 0 0 10 12 22
May 10 1966 0 0 10 12 22
May 17 1966 0 0 10 12 22
May 24 1966 20 40 3 12 75
May 31 1966 20 65 3 12 100
June 7 1966 20 65 3 12 100
June 14 1966 40 145 3 12 200
June 21 1966 40 145 3 12 200
June 28 1966 40 145 3 12 200
July 5 1966 20 65 3 12 100
July 12 1966 20 40 3 12 75
This projection is based on all crops maturing at normal time and that normal
tonnage will be available We must keep in mind that we are subject to crop
losses due to freeze drouth or excessive rams which can change the above planned
production or vary the schedule dates
ELSA CANNING Co
(S) J Gavito Jr
JOE GAVITO JR
Frontier Guard Patrol , Inc, d/b/a Frontier Guard and DeLue,
Inc , Colorado Guard Patrol Service, Inc , and /or Patrol Serv-
ices, Inc and Merchant Police Employees Association, Inc
Case f7-CA-1703 October 20,1966
DECISION AND ORDER
On July 14, 1965, Trial Examiner Louis S Penfield issued his
Decision in the above entitled proceeding, finding that Respondents
had engaged in and were engaging in certain unfair labor practices
and recommending that they cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam
mer's Decision Thereafter, the General Counsel and the Respondent
161 NLRB No 12
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
filed exceptions to the Decision and supporting briefs The General
Counsel and the Respondent each filed answering briefs
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three member
panel [Chairman McCulloch and Members Brown and Zagoria]
The Board has reviewed the rulings made by the Trial Examiner
it the hearing and finds that no prejudicial error was committed The
rulings are hereby affirmed The Board has considered the Decision,
the exceptions, the briefs, the answering briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom
mendations of the Trial Examiner
[The Board adopted the Trial Examiner's Recommended Order ]
TRIAL EXAMINERS DECISION
STATEMENT OF THE CASE
This proceeding with all parties represented was heard before Trial Examiner
Louis S Penfield in Denver, Colorado on March 2 3 and 4 1965 upon a corn
plaint of the General Counsel and answer of Frontier Guard Patrol Inc d/b/a
Frontier Guard and DeLue Inc Colorado Guard Patrol Service Inc and /or Patrol
Services Inc herein collectively called Respondents i The issues litigated were
whether Respondents violated Section 8(a)(1) and (3) of the National Labor Rela
tions Act as amended , herein called the Act
Upon the entire record including consideration of briefs filed by the General
Counsel and Respondents and upon my observation of the witnesses I hereby
make the following
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENTS
A The individual Respondents
Frontier Guard Patrol Inc d/b/a Frontier Guard and DeLue Inc herein
called Frontier Guard is a Colorado corporation with its principal place of business
in Denver, Colorado where it is engaged in the business of providing private
police patrol and guard services and selling leasing and servicing burglar alarm
systems In the course and conduct of its business operations during the year 1964
Frontier Guard furnished goods and services valued in excess of $50 000 to a
variety of customers It was stipulated in substance that if qualified witnesses
were called they would establish that each of the customers named in the complaint
to whom Frontier Guard furnished services was engaged in a business which met
the inflow outflow retail or other currently applicable Board jurisdictional stand
ards 2 Upon the basis of the foregoing I find that at all times material to this
proceeding Frontier Guard was engaged in a business which affects commerce
within the meaning of Section 2(7) of the Act, and that the assertion of junsdic-
tion over its business is warranted
Colorado Guard Patrol Service Inc herein called Colorado Guard is a Colo
rado corporation with its principal office and place of business in Denver Colo
rado where at all times material to this proceeding it was engaged in the business
of providing private police patrol and guard services Except as will be set forth
1 The complaint issued on January 28 1965 and is based upon a charge filed with the
National Labor Relations Board herein called the Board on November 3 1964 and an
amended charge filed with the Board on January 27 1965 Copies of the complaint the
charge and the amended charge have been duly served upon Respondents
2 Sbemon8 Mailing Service 122 NLRB 81 Carolina Supplies and Cement Co 122 NLRB
88 Man Products Inc 128 NLRB 546
FRONTIER GUARD PATROL , INC 157
below in connection with the integrated employer allegation no independent evi
dence was adduced concerning the volume of business done by Colorado Guard
with its customers or the nature of the businesses in which such customers
engaged
Patrol Services Inc herein called Patrol Services is and has been at all times
since on or about November 19 1964 a Colorado corporation with its principal
place of business in Denver Colorado where it is engaged in the business of pro
vidmg private police patrol and guard services Except as will be set forth below in
connection with the integrated employer allegation no independent evidence was
adduced concerning the volume of business done by Patrol Services with its custom
ers, or the nature of the businesses in which such customers engaged
B The single integrated enterprise issue
The General Counsel would establish jurisdiction over Colorado Guard and
Patrol Services by claiming that the relationship of each to Frontier Guard estab
lashes Respondents collectively as a single integrated enterprise Respondents dis
pute this contention
Frontier Guard commenced its business operations sometime in the mid 50 s At
all times since its place of business has been located at 2915 West Seventh Ave
nue Denver Colorado Gerald R DeLue is the principal owner of Frontier Guard
and the person principally involved in its operation A substantial part of Frontier
Guards business relates to the operation of a burglar alarm system with which in
the fall of 1964 it served some 700 customers In early 1964 in addition to the
burglar alarm business Frontier Guard operated four patrols with which it serviced
residential and commercial customers by checking their premises at regular inter
vals during the course of a night to inspect for unlocked doors open windows
evidence of unlawful entry or to perform other inspection services as required by
the customers Each patrol functioned with an armed uniformed guard or patrol
man who drove the route in an automobile owned by Frontier Guard Each patrol
served designated customers in a fixed geographical area of Denver and vicinity
While making his rounds a patrolman maintains radio contact with a dispatcher
located at the Frontier Guard office and reports immediately any out -of the way
occurrence which the patrolman cannot remedy himself Such a report might result
in a call to the regular city police or to some other agency for aid in correcting
the situation
Colorado Guard was incorporated in February 1964 when Arthur L Gilmore
became associated with Jesse E Whittaker who at that time owned and operated
one patrol which functioned in a similar fashion to that of the Frontier Guard
patrols In April 1964 Colorado Guard expanded its business by the outright pur
chase of two of the patrols which up to that time had been operated by Frontier
Guard This included purchase of the customers the accounts and certain equip
ment including patrol cars In September 1964 Gilmore bought out Whittaker s
interest in Colorado Guard and in early October further expanded Colorado
Guards business by the purchase of Englewood Merchant Police Inc another
firm which operated a patrol Thus by early October Colorado Guard was operat
ing the patrol originally owned by Whittaker the two patrols purchased from
Frontier Guard and the patrol purchased from Englewood Merchant Police At
this time Frontier Guard still operated the two patrols not sold to Colorado Guard
as well as its burgular alarm business Until Patrol Services Inc came into being
Colorado Guard maintained its own headquarters and carried on some of its own
dispatching In certain instances however Frontier Guard furnished it services for
fixed fees These services related to the two patrols which Colorado Guard had
purchased from Frontier Guard and encompassed rental of desk space the sup-
plying of dispatching services and the rendering of certain billing and administra-
tive services At all times however prior to the formation of Patrol Services the
two companies continued to bill their respective customers separately to keep
separate books and bank accounts to make separate tax reports to use and service
their separate automobiles and to pay the wages of their separate patrolmen
At some point in October 1964 Gilmore and DeLue commenced to discuss
the possibilities of merging their businesses By mid October they were exploring
the possible advantages and disadvantages of combining the patrols operated by
each company In the ensuing 2 weeks Gilmore and Gary Anderson a Frontier
Guard supervisor rode together in patrol cars to gain familiarity with the respec
tive patrols of each company and to explore possibility of more efficient operation
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by consolidation . At some time in October , the two companies effected an actual
exchange of some of the customers served by each .3 At some time in October,
each company reduced the rank of some of its employees, but there is no evidence
that coextensive with this, the wages of any of the patrolmen involved were low-
ered 4 Also in October, Frontier Guard undertook the preparation of the Colorado
Guard payroll for a fee. About the same time, its dispatchers commenced to log
calls for Colorado Guard patrolmen, a practice which they had not undertaken
before. It is possible that both these steps were taken in anticipation of a merger.
During the last 2 weeks of October, Anderson, apparently with the acquiescence of
DeLue and Gilmore, apprised the patrolmen of both companies that merger plans
were underway, that when the merger was effected Gilmore would have a status
equal to that of DeLue in his relation to all patrols, and that changes in wages,
hours, and mode of operation were likely to be forthcoming.5 Despite the rumors
and talk, however, no actual changes in working conditions were forthcoming dur-
ing the month of October. Payment of wages, handling of accounts, and billing for
services continued as they had before until the time that Gilmore and DeLue
effected an actual merger in the manner to be described below.
It is conceded that a merger of the businesses did take place in November. This
was effected by the execution of a preincorporation agreement dated November 12,
1964, signed by Colorado Guard, Frontier Guard, DeLue, and Gilmore.6 This agree-
ment set forth in substance that since both companies were in "the merchant patrol
and guard business" and believed "that their business interests would be best served
by combining certain facets of their guard and patrol operations," they would estab-
lish a new corporation to be known as Patrol Services, Inc., to be owned and oper-
ated by them jointly. The agreement, its effective date retroactive to November 1,
also provided, in substance, that the new corporation would thereafter operate
patrols formerly owned by Frontier Guard and Colorado Guard, that the patrols
and certain other assets of both corporations would be turned over to Patrol Serv-
ices in return for shares of stock in the new corporation, that Patrol Services would
lease space from Frontier Guard, would use Frontier Guard's dispatching services,
and would perform certain services for Frontier Guard relating to the latter's bur-
glar alarm business. It also provided that Gilmore and DeLue were to serve as presi-
dent and vice-president, respectively, of Patrol Services, and that they jointly should
manage its operations. Patrol Services came into being as a corporate entity shortly
after the execution of the agreement . At all times since, Patrol Services has contin-
ued to function in the manner above described.
Respondent contends that even subsequent to the execution of the preincorpora-
tion agreement it has not been established that Frontier Guard, Colorado Guard,
and Patrol Services together comprise a single-integrated enterprise. This agreement,
however, marked a culmination of discussions that had been going on for some
weeks relating to combining the business of Frontier Guard and Colorado Guard.
The agreement itself states that the two companies were undertaking thereby to
3It is not disputed that this exchange was brought about primarily for reasons of
geographical convenience . The extent of the exchange is in some dispute, with Anderson
estimating it to be more comprehensive than do DeLue and Gilmore Anderson claims that
at least 15 or more customers were involved , but lie does not undertake to name them
specifically. DeLue testified that the exchange did not concern more than four or five
customers , which he named . I find it unnecessary to resolve the conflict since it seems
clear that the transfers did not involve any wholesale exchange of customers , but were a
move based on convenience in rendering service to a few, for which each company there-
after billed the other.
* The rank of sergeant or corporal does not necessarily connote supervisory function,
although apparently the rank was regarded as a mark of status that patrolmen did not
wish to lose.
5 Anderson may have advised the employees that merger had actually been completed
prior to the end of October. It does not appear, however, that he had actual knowledge of
the status of the merger talks or of the obstacles which stood in the way of their com-
pletion. While it appears that DeLue and Gilmore made no effort to conceal the fact that
a merger was under consideration , it is not shown that either of them ever represented
to the employees in October that the operations of the two companies had actually merged.
Nevertheless, it appears to have been the general belief of most of the employees of both
companies that by this time merger had either actually been effected or was so certain
that for all practical purposes the two employers could be regarded as one
e Richard F. Gilmore , Sr., father of Arthur L. Gilmore, was also a party to this
agreement.
FRONTIER GUARD PATROL INC 159
serve their business interests by combining their respective operations Patrol Serv
ices the new corporation appears as a jointly owned and controlled device used to
effectuate these ends Colorado Guard emerges with its only former operational
function stripped from it and with a seeming paper existence Frontier Guard also
lost its patrol operations to Patrol Services but joins with Colorado Guard in the
ownership and operation of the new corporation and is sharing with Patrol Serv
ices certain of its facilities and services while using Patrol Services to assist it in
carrying on certain aspects of the burglar alarm business which it retained In
commenting on criteria which would establish responsibility among several corpo
rations as a single enterprise the Supreme Court in NLRB v Deena Artware
Inc 361 U S 398 403 stated apart from that is the question whether in fact the
economic enterprise is one the corporate forms being largely paper arrangements
that do not reflect the business reality The formation of the jointly owned new
corporation is a paper arrangement The business reality is the joining together of
the Colorado Guard and Frontier Guard businesses to operate together in the future
Reserving the issue of their status before this date I find that with the execution of
the preincorporation agreement on November 12 1964 Frontier Guard and Colo
rado Guard evidenced their intent to continue the operation of their respective buss
nesses as one and that thereafter the elements of common ownership and control
functional and physical integration and common labor relations are all present in
sufficient measure to justify the conclusion that from that time on Frontier Guard
Colorado Guard and the newly created Patrol Services constitute together a single
integrated enterprise Assertion of jurisdiction over the business of Frontier Guard
has already been found warranted Since by November 12 Frontier Guard had
combined with Colorado Guard and Patrol Services to form a single integrated
enterprise it follows that the assertion of jurisdiction over the three employers
together from that time on is appropriate and I so find 7
The status of Colorado Guard and Frontier Guard as a single integrated enter
prise or as joint employers before the execution of the preincorporation agreement
insofar as it affects the issues in this proceeding will be discussed below in connec
Lion with a consideration of the alleged unfair labor practices
II THE UNFAIR LABOR PRACTICES
A The unlawful conduct charged and the supervisory status of
Richard E Allen
The unfair labor practices alleged arise from a claimed unlawful response by
Respondents to demands presented by employees This response is asserted to
include threats of reprisal discharges for engaging in concerted activities and dis
criminatory refusals to reinstate Respondents jointly and severally deny the unlaw
ful character of their response and urge that the record establishes only an eco
nomic strike followed by permanent replacement of the strikers thus excusing any
duty to reinstate Respondents further contend that any request for reinstatement
was conditional and that in any event the employees involved had forfeited their
rights to reinstatement because their activity either was unprotected at the outset or
had subsequently lost its protected character because of alleged misconduct render
ing the strikers unfit for reinstatement
DeLue and Gilmore owned Frontier Guard and Colorado Guard respectively
and each exercised general supervision over the operation of his corporation Gary
Anderson is acknowledged to be a supervisor for Frontier Guard 8 Nick Condos is
conceded to be a supervisor for Colorado Guard Richard E Allen is also named
in the complaint as a Frontier Guard employee affected by the alleged unfair labor
practices Frontier Guard claims Allen to be a supervisor within the meaning of the
Act The General Counsel acknowledges that at one time Allen was a supervisor
who responsibly directed the work of others and who possessed and had exer
cised the authority to hire and fire It is claimed however that by the time of
the incidents in which he was involved such authority had been taken away and
7 Contrary to the contention of Respondents when it is determined that these corl ora
Lions have become a single integrated enterprise then it is the business of the three 1 a
unit which determines the jurisdiction and no breakdown of the burglar alarm and patrol
businesses as spread around among the corporations is in order
8 Anderson was originally named in the complaint as an employee affected by the alleged
unfair labor practices At the opening of the hearing I granted a motion to strike his
name from the complaint because he was a supervisor
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that at that time Allen was properly classified as a rank and file employee I do not
agree The testimony of DeLue of the Frontier Guard patrolmen and even of
Allen himself discloses no substantial change in his position or authority at any
time material to this proceeding On the contrary it appears that at all times Allen
possessed and performed supervisory functions that the employees under him and
even Allen himself continued to regard him as a supervisor Accordingly I find
Richard E Allen to be a supervisor within the meaning of the Act I further find
that his name should be stricken from the list of employees affected by the allega
tions of paragraphs VI and IX of the complaint
B The events of October 27 1964
The central incident which provoked the alleged unlawful response of Respond
ents occurred on October 27 1964 Prior to this date there are no unlawful acts
charged nor is it even claimed that Respondents had knowledge of any union or
other concerted activities among their employees 9 In substantial measure because
of apprehensions brought about by the proposed merger employees of both Fron
tier Guard and Colorado Guard during the 2 weeks preceding October 27 com
menced to discuss among themselves the desirability of making demands upon man
agement In connection with this they had several informal and inconclusive
meetings On the morning of October 27 1964 a group of both Frontier Guard and
Colorado Guard patrolmen met in the office of Frontier Guard after completing
their patrols and drew up a list purporting to represent the consensus of their
principal demands Patrolman Thomas Bossen noted these demands on a tablet and
all agreed that Bossen should consult an attorney for advice as to an appropriate
way to present them to management Bossen talked with an attorney later that same
day and was advised first to arrange a meeting of the employees with DeLue and
then after they had learned of DeLue s reaction to the demands to consider a
future course of action Bossen telephoned the various patrolmen working for both
companies and urged them to come to the Frontier Guard office that evening at 6
p in for such a meeting Bossen telephoned Supervisor Anderson who had not been
present at the morning meeting and told him that the men wanted to get together
with DeLue and talk to him over raises and things 10 About 4 15 p in Ander
son advised DeLue that the men wished to meet with him that evening at 6 p in
Anderson admits that at this time he was aware that there was some unhappiness
among the employees relating to various matters arising out of the prospective mer
ger and that he knew that there had been several employee meetings concerning
these matters When asking DeLue to meet with the men that evening however
he did not tell him either what he knew of the previous meetings or that the men
specifically wished to meet with DeLue at this time to talk over raises and
things 11
The patrolmen regularly started their evening rounds at 7 pm, with the last
patrol scheduled to depart at 8 30 p m At approximately 6 p m on October 27
the patrolmen that Bossen had telephoned began to gather in the outer office of
Frontier Guard At that time Bossen handed to Anderson the tablet on which he
Y There is evidence that some employees of Frontier Guard had met with DeLue on
occasions In the past and had pressed for changes In working conditions of one sort or
another On these occasions DeLue had listened to their demands and had promised to con
elder them further but the employees had received no subsequent word from him nor had
any action by him been forthcoming These appear to be remote occurrences which have no
direct bearing upon the current controversy
w Gilmore was out of the city on this day It is not clear that this was known to Ander
son but even if It was he did not so advise Bossen or suggest that It might affect the
results of the proposed confrontation There Is no showing that Bossen learned of Gilmore e
absence from any other source
u Contrary to Respondents contention I do not see in Anderson s failure to apprise
DeLue of all that he knew any deliberate effort at concealment There is no showing that
DeLue pressed him for an explanation as to the reasons for the proposed meeting In fact
DeLue states that he believed the meeting to relate to questions concerning the prospective
merger and so presumably he directed no inquiries to Anderson As we have seen Ander
son had not been present at the morning meeting nor had he seen the actual list of
demands at this time nor did he have more than a general knowledge that the men were
unhappy and wished to meet with management for a discussion Even had he conveyed such
information to DeLue in the afternoon I fail to see it as having the likely consequence of
altering the course of events
FRONTIER GUARD PATROL, INC 161
had written the demands earlier in the day These included a demand for a 2 year
contract a 50 hour week with a minimum of $2 per hour for patrolmen and dis
patchers a demand for paid vacations and a demand for hospitalization and sick
leave Bossen gave the tablet to Anderson who carried it to DeLue in his private
office Upon presenting the tablet to DeLue Anderson told him that the men
wanted to talk to him and they would probably walk out 12 DeLue then asked
Anderson how long he had known about these employee demands and Anderson
responded that he had known about the unrest for some days and that he thought
the men were really unhappy DeLue apparently with a note of sarcasm replied
thanks a lot for telling me and then said Well lets go out and talk to them
DeLue and Anderson then went to the outer office where the men were gathered
According to DeLue his meeting with the men lasted for approximately 4 or 5
minutes and his version of what transpired is as follows DeLue asked Anderson
if he were speaking for the group or for himself and Anderson replied that he
spoke for the group Supervisor Allen came in to the meeting at about this point,
and DeLue asked if he were in on this also and Allen replied in the affirmative
DeLue states that he was very upset that he told the employees that the demands
had come as quite a shock and surprise to him that he didn t appreciate the
way it was done and didn t feel it was necessary He then told the group
that he had nothing to do with Colorado Guard that he owned no part of
Colorado Guard that Gilmore owned no part of Frontier Guard and that Gil
more was out of town and he couldn t speak for him or his company At this
point Bossen spoke up and DeLue admits that he told him `to be quiet or shut
up DeLue then told the employees that as far as the demands go I think they
are ridiculous He stated that they are approximately a 100 percent increase
in everything but that if there was any merit to them [he ] would take it under
consideration and he would also advise Mr Gilmore when he returned so that he
[might] also take them under consideration At this point DeLue reports that
Allen got up and said that DeLue `will make a decision here and now for all
of us or else " DeLue replied or else what? to which DeLue said Allen answered
or else we will walk out DeLue then told the group that he regarded this as
leaving him with very little choice and that if that was the way the group felt
they could go ahead and walk With this he states Allen got up and Anderson
and Bossen immediately followed him out the door with the rest of the employees
present joining and walking out 13 DeLue admits that during the course of the
meeting he had remarked that Frontier Guard had never had a union and that he
didn t feel that we needed one now " He denies however that he told the group
or any one of its members that the employees were discharged or fired for
walking out or for any other purpose, stating that was the last thing I wanted
to see any of them do was walk out or anything else
12 The record does not establish with any degree of exactness the basis for Anderson s
statement that the men would probably walk out As already noted Anderson had not
been present at the meeting in the morning None of the employees who had been there
testified that they contemplated or had agreed to walking out if the demands which they
had formulated were not met On cross examination Anderson stated that prior to going
in to DeLue he knew of an agreement among the employees to walk out if their demands
were not met He qualified this statement later in his examination however by stating
that this only represented his own thinking for he believed that the realities of the situa
tion left DeLue no real choice but to meet the demands if he were to continue to run his
business Anderson s own thinking however does not suffice to establish that the employees
had committed themselves to a walkout if their demands were not met but only shows
such to be Anderson s opinion of what might happen
Is Respondents claim that since the record shows no dispute between the employees and
Colorado Guard at this time Colorado Guard employees by walking out quit their jobs
I disagree Although no actual merger of operations may have taken place at this time
the employees clearly were addressing their demands to both employers in the belief that
for all practical purposes they were one Although DeLue disclaimed authority to speak
for Gilmore he agreed to pass on the demands to him The employees of both Companies
walked out because discussions of their demands were not forthcoming from either Com
pany Employees of Colorado Guard had no more intention to quit than did those of
Frontier Guard I find that employees of both employers joined together in a strike to
promote what they regarded as common demands and accordingly that all must be regarded
as strikers
264-188-67-vol 161-12
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Seven of the employees present at the meeting testified concerning the walkout,
and in certain respects their versions differ from that of DeLue. They all agree
that DeLue appeared considerably upset and agitated, that he questioned Ander-
son and Allen as to their positions, and that he told the group that he was unable
to speak for Gilmore with regard to the demands. All recall hearing DeLue
state that there had never been a union at Frontier Guard, and that he did not
see the need for one. The majority, however, testified that DeLue also told them
that there never would be a union there. They agree that DeLue characterized
the demands as ridiculous, but they acknowledge that - he stated that he would
give them further consideration. Only Allen and Cady testified that they heard
DeLue tell the men that they were fired or discharged. The others have no recol-
lection of such a remark.14 Allen specifically denied that he ever told DeLue
that he must decide the matter then and there "or else" the men would walk out.
Allen states, however, that he told DeLue that he "thought it ought to be left
up to the men right then," and that when Gary Anderson got up to walk out he
followed him. Anderson recalls Allen making some statement to the effect that if
some answers were not immediately forthcoming the men might walk out. All
the employees recalled remarks byDeLue either to the effect that they should keep
on walking, or that they should attempt to line up -some other jobs if they left.
All recalled DeLue making uncomplimentary remarks about the intelligence of
the employees, or their ability to get other jobs. Not everyone was specific as to
the exact reason why he walked out. It is clear, however, that each was interested
in obtaining some concession from management or, at the very least, in bringing
about an immediate discussion of their demands. From, their collective explanations
it would appear to be the consensus that the walkout was prompted by DeLue's
insulting demeanor, his negative and peremptory response to their demands, and
to what they regarded as his unwillingness to discuss such demands more fully
at that particular time 15
Immediately following the walkout, the employees involved, including Anderson
and Allen, proceeded to a motel located across the street from the Frontier Guard
office to discuss what to do next.'They agreed among themselves at this time that
the wage rates demanded.were probably unrealistically high, and appropriately
could be lowered. They were unanimous , however, in deciding that they should
continue to press for some concessions from management, and that in doing so
they should maintain a united front. To further this latter objective, Bossen
drafted a statement which was signed by all the employees present at the meeting,
including Anderson and Allen.16 The text of this statement is as follows:
• We, the men listed below by signature, do hereby agree not to work for the
above named organization until such time as a working agreement between
the men and the organization can be bound by a contract.
At the same time the employees agreed that they should immediately undertake
to form a union in the interest of more effectively pressing for the concessions.
In furtherance of this, they went to the office of Attorney John A. Criswell on
the following day. Criswell advised them that he would undertake to set up a
nonprofit corporation as a labor organization to represent them, and that it would
seek representation rights through the National Labor Relations Board . Criswell
also advised them that they should immediately request reinstatement from Fron-
tier Guard and Colorado Guard.
Criswell undertook to initiate the formation of a nonprofit organization, and
also drafted a letter addressed to both Frontier Guard and Colorado Guard, stating
that a labor organization was in the process of formation, and that a majority of
the employees had authorized it to represent them. The letter also stated that Cris-
well was submitting with it a request for reinstatement "signed by those employees who
14 While Cady testified on direct examination that DeLue had said the employees would
be fired, subsequently, on cross-examination , Cady stated that he could not remember
whether DeLue had actually said that or not.
15 As we shall see, the General Counsel contends that in part the employees walked out
because of DeLue's alleged threats of reprisal against them if they persisted in -pursuing
collective action through a union, or by walking out, or in some other manner. Even if it'
be assumed that unlawful threats were made at this time, the record does not, establish
that these in any • way influenced the decision to walk out. On the contrary it appears
clear that, as set forth above, the walkout was undertaken solely in the belief that it might
bring about further concessions or at the very least promote fuller discussion.
16 Joyce Snyman later signed this statement but she was not present at the meeting.
FRONTIER GUARD PATROL, INC 163
are now on strike This letter was received by both Frontier Guard and Colorado
Guard on October 29 1964 together with a document signed by 16 employees,
including Richard Allen but not including Gary Anderson 17 which read as follows
We the undersigned employees of Frontier Guard and DeLue Englewood
Merchants Police and Colorado Guard and Patrol Service do hereby request
immediate reinstatement as employees of the aforesaid companies this twenty
north day of October 1964
When the employees walked out on October 27 after their beef meeting DeLue
immediately undertook to man the two patrols which Frontier Guard operated
He succeeded in getting replacements for that evening and the patrols went out as
scheduled DeLue did not reach Gilmore on that evening DeLue working with
Nick Condos Colorado Guard supervisor was successful in mannmg the four
patrols operated by Colorado Guard patrols and they too went out as scheduled
DeLue states he did this as a matter of courtesy Issues relating to permanent re
placement will be discussed more fully below
C Conclusions regarding the walkout of October 27
The threshold question and the one which in large measure influences the dis
position of all other issues concerns the significance of the walkout The General
Counsel argues that the record shows DeLue first threatening employees with
reprisals for pressing their demands upon him and thereafter discharging them
for walking out when their demands were not immediately met. Alternatively, he
urges that even if discharges not be found the walkout is properly to be regarded,
in part at least as a protest against unlawful threats made by DeLue thus con
stituting it as an unfair labor practice strike Respondents deny that DeLue unlaw
fully threatened employees or discharged them for walking out, and urge that the
record shows no more than a walkout in furtherance of economic objectives
We cannot properly evaluate the significance of the October 27 incident without
considering the setting in which it arose The events of the evening of October 27
are not set against a background of employer opposition to employee organization
nor does it appear that the current effort at collective action had even come to the
attention of DeLue or Gilmore before that night is
DeLue s first knowledge that employees were making demands came to him
only moments before he was to meet with them Without prior warning, and
barely an hour before the patrols were scheduled to go out he was confronted
with wage demands among others that the employees themselves were later to
acknowledge as unrealisticly high Gilmore was away at the time and not avail
able to share the problem with him His supervisor who theretofore had not even
suggested that the employees were becoming restive, had simultaneously with the
presentation of the demands told DeLue that the employees might walk out All
these factors had the understandable effect of bringing DeLue to the meeting in a
state of surprise upset and agitation
On the other hand it does not appear that the employees were much better
prepared They had no real knowledge of the status of the merger , nor did they
even know of Gilmore s absence from the city on that day The meeting had been
somewhat hastily arranged and does not appear to have come about as a result
of a well planned and well understood organizational effort Respondent argues that
the employees came to this meeting with a predetermined and fixed aim to set up
DeLue by placing him in a position where he must either yield to their demands
or face destruction of his business The record however fails to support such a
view The patrolmen were not a highly paid group They had never received paid
vacations hospitalization or other fringe benefits Their belief that the forth
coming merger might worsen even this situation and that the time for taking
collective action had arrived was not unreasonable There is no evidence that
those present at the morning meeting had agreed among themselves that they
would walk out if their demands were not met that evening At the time, they were
17 Larry Moffett and Leonard Jenkyns did not sign this request and there is nothing in
the record to show a request for reinstatement by them made in any other manner
Is I disregard any knowledge that Allen or Anderson may have had prior to the time that
Anderson presented the tablet to DeLue Admittedly neither one had communicated any
thing that he knew about such activity to DeLue Moreover at all times during the con
troversy each appeared to have allied himself with the employees despite his supervisory
status
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not even aware that a meeting would be forthcoming so soon The attorney con-
sulted by their spokesman did not advise the walkout and the employees telephoned
were not asked to agree to such action Indeed there is no evidence that those
not present at the morning meeting had even been apprised of the exact demands
that Bossen had listed on his tablet Under all the circumstances I am convinced
and find they came to the evening meeting anticipating only a preliminary dis-
cussion perhaps hopeful that it might prove fruitful but without any prearranged
plan or intent that they would walk out if their demands were not met then and
there 19
The meeting itself lasted only 4 or 5 minutes and was characterized more by
confusion and intemperance than by calm and reason We see a surprised and
upset DeLue reacting to the demands of his employees in an insulting and demean
ing manner However understandable his emotions and whatever his intent the
nature of his response was one calculated to engender resentment and to promote
rather than allay an ill considered reaction from a group of employees seeking
to discuss matters which concerned them We can only speculate what might
have resulted had DeLue engaged in a calm and consihatory discussion during
the limited time available or if when a walkout appeared imminent he had urged
the employees to reconsider and had attempted to schedule a future meeting
where a more full discussion could take place He did none of these things how
ever and I am satisfied that the result was to set off a spontaneous emotional
reaction among the employees which had the effect of triggering the walkout as
the step which appeared as the most likely means of bringing DeLue to a serious
consideration of their demands I am not called upon to judge the wisdom of their
action but contrary to the claim of Respondent I find it to be a spontaneous
reaction to DeLue s rejection of their demands for changing working conditions
and to constitute protected concerted activity
The General Counsel insists that the confrontation produced more than an
unreasonable and bad tempered reaction from DeLue but that in addition he
reacted in an unlawful retaliatory manner I do not agree While a more conciha
tory approach might well have avoided the walkout DeLue s failure to undertake
it is not enough to render what he did unlawful His statement that there would
never be a union would only appear as unlawful if occurring in a context where
it would be reasonable to infer that DeLue was prepared to take further retaliatory
action to insure such a result. Here it is not made against a background of union
animus and it appears more as an isolated statement of opinion than as a threat
to resort to unlawful means to forestall future collective efforts It is also claimed
that DeLue by telling the employees that if they walked out they had better seek
other jobs or that if they left they should keep on walking, was threatening them
with unlawful retaliatory action should they pursue further their collective action
Statements of such nature were unquestionably made by DeLue to the employees I
do not necessarily see them however as threats of retaliation if the employees
persisted in the exercise of their statutory rights At the most the statements are
ambiguous A retaliatory connotation is possible but it is equally if not more
reasonable to construe the statements either as an attempt to persuade the employ
ees not to walk out at all or as statements that if they did so they might be sub
jetted to replacement Absent a background of union animus I am unwilling to
infer the unlawful connotation Moreover there is no showing that the employees
themselves regarded any of DeLue s statements at this meeting to be mtimidatory
As we have seen, the employees were reacting primarily to DeLue s peremptory
rejection of their demands without even an attempt at some preliminary discussion
"I reach this conclusion after giving full consideration to certain portions of the testi
moray of Snyman Anderson and Miller indicating that each had heard of plans for or
had agreed to a walkout if the demands were not met that evening Testimony of each in
this regard its somewhat inconclusive and I regard it as insufficient to establish the fact
that a prearranged plan existed Considering the meager discussions about the demands
that had taken place that many employees had not even participated in these and that
no one knew in advance what response DeLue would make I find it unreasonable to believe
that any one of these three witnesses or any one of the other employees had in effect
committed himself or believed that the others had committed themselves to a walkout
if these demands were not met forthwith at the evening meeting
FRONTIER GUARD PATROL, INC 165
At no time either at the meeting among themselves nor later when they con
suited an attorney , did any of them express concern about DeLue s so-called
threats, but their entire emphasis was on finding effective means to obtain con
cessions I find therefore that under the circumstances here presented DeLue
made no threats at the October 27 meeting which were calculated to interfere
with or actually did interfere with the statutory rights of the employees present
Allen was the only employee who insisted that when the patrolmen were walk
ing out DeLue had said you are all fired anyway As we have seen DeLue
denies not only making such a statement but also points out that when the
employees were walking out it was the last thing [he] wanted to see them do"
Inconsistencies in the testimony of a group of employees about details of an
emotionally charged event occurring nearly 6 months before the hearing are to be
expected It is unlikely however that an announcement of such nature as a mass
discharge if made would have been recalled by only one of the group involved
I find it more plausible to consider Aliens memory in this regard to be faulty
and to conclude that DeLue actually made no such remark However assuming
that he did make it it comes in a context where it appears more as a tactical
statement aimed at persuading the employees not to leave than as an expression of
intent to terminate them altogether because of their collective action Accordingly,
I find that DeLue did not fire or discharge the employees for walking out on the
evening of October 27
Having found that it has not been established that DeLue unlawfully threatened
or discharged the employees for walking out that the employees were engaged
in a lawful collective effort to obtain concessions from management, and that
they walked out to protest DeLue s refusal to discuss more fully their demands
it follows that the walkout was occasioned for economic reasons and not to protest
unfair labor practices and I so find 20
D The replacements and the request for reinstatement
In the operation of their patrols, Frontier Guard and Colorado Guard used
both full time and part time patrolmen At the time of the walkout Frontier Guard
was operating two patrols and Colorado Guard was operating four patrols in At
the time of the walkout Roger Moffet and Michael Vourexes were the fall time
patrolmen and Eugene N Smith Norman R Buskirk, Thomas H Bossen, William
R Miller and Larry Moffet the part time patrolmen working for Frontier Guard
At the same time Robert L Lisle Charles E Nesmith, and Emery L Reynolds
were the full time patrolmen with Aaron L Burkhart Michael B Wagner Bud
W Cady Virgil H Colman and Leonard Jenkyns the part time patrolmen work
ing for Colorado Guard 22 Frontier Guard also had a dispatcher named Joyce
Snyman who also joined in the walkout
80 Since I find no unlawful conduct by DeLue in connection with the October 27 meeting
no statutory liability attaches to Frontier Guard Even if it be assumed that Frontier
Guard and Colorado Guard were at the time a single-integrated enterprise or were acting
jointly no liability would thereby attach to Colorado Guard either The relationship of
the two corporations at the time however will be discussed below in connection with the
request for reinstatement and nothing set forth above is to be construed as a finding or
to be based on the assumption that statutory liability as such has been found and at
taches to Colorado Guard as well as Frontier Guard at this time or of course to Patrol
Services which on October 27 had not even come into existence
m The record does not clearly establish the exact number of patrolmen needed to carry
on the full operation of all six patrols Clearly at a minimum Frontier Guard would need
two patrolmen and Colorado Guard four to insure that all patrols would go out They had
a 7 day operation however and regular relief men were needed at all times Apparently
the so called part time patrolmen served this relief function Many of these had other full
time jobs but performed relief work either for Frontier Guard or Colorado Guard on a
regular basis The record however does not show how much work per week this might
regularly involve for any given individual
m The record does not show the name of one full time patrolman who appears to have
run the fourth patrol for Colorado Guard There is testimony however that Colorado
Guard only found it necessary to hire three employees to keep its operation going and that
one of them had not gone out on strike
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 27 and 28 Frontier Guard hired four patrolmen and two dispatch
ers 23 On October 27 and 28 Colrado Guard hired four patrolmen 24
Following receipt of Criswell s letter on October 28, 1964 requesting recognition
and enclosing the request for reinstatement Frontier Guard and Colorado Guard
jointly consulted an attorney Thereafter they sent a telegram to Criswell signed
by both Companies which read as follows
We have no information concerning validity of organization purporting to
represent our employee would discuss said validity with you Monday or Tues
day at your convenience in order to decide whether or not to bargain with
said orgainization contact our Attorney Tim Campbell if this is satisfactory
As a result of this telegram a meeting was held on October 30 1964 in Cris
well s office It was attended by counsel representing Frontier Guard and Colorado
Guard by DeLue and Gilmore and by three spokesmen for the employees Bos
sen Nesmith and Reynolds At this time Criswell explained the steps which he
had taken to form a union and urged a unit comprised of patrolmen and dispatch
ers to be appropriate He also advised counsel for the employers that he regarded
the walkout as a strike and stated that if Frontier Guard and Colorado Guard
would reinstate the strikers he would recommend that any possible backpay claim
which they might have be waived and that such reinstatement would be without
prejudice to any position which the employers might wish to take with regard to
recognition or with regard to the unit Counsel for DeLue and Gilmore agreed to
take all matters under advisement including the request for reinstatement On the
following day counsel informed Criswell that his offer was unacceptable
I have set forth in footnotes 23 and 24 the names of those persons hired by
both Frontier Guard and Colorado Guard after the economic strike but before
the request for reinstatement After receipt of the request various others however
were hired by both Frontier Guard and Colorado Guard and worked for these
Companies or their successor Patrol Services for varying lengths of time ss
Respondents concede that neither Frontier Guard Colorado Guard nor Patrol
Services have ever offered employment to any of the strikers at any time after
receiving the request for reinstatement Both DeLue and Gilmore explain this by
stating that both understood the request for reinstatement to be conditional, mas
much as the strikers on the night of the walkout had executed an agreement
among themselves that none would return unless all returned DeLue and Gilmore
assert that since the Companies had already made replacements they were not in a
0 Frontier Guard hired Gardner Sanford Win Ingmire Arthur Randolph and Harold
T Francis as patrolmen Randolph worked continuously thereafter in such capacity until
February 22 1965 when his employment terminated At the time of the hearing the
others were still working for Patrol Services the successor to Frontier Guard in the
patrol operation Ingmire was hired and continued to work as a supervisor replacing
Anderson John Wilkin and Katherine Greenwlll were hired as dispatchers and were still
employed by Frontier Guard in that capacity at the time of the hearing
x At this time Colorado Guard hired Harry Butler Clay Tarplay Ray Nelson and
Louis Godby as patrolmen Nelson quit on November 7 1964 but at the time of the hearing
the others were still employed as patrolmen by Patrol Services successor to Colorado
Guard in its patrol business
w It was stipulated that between November 1 1964 and the end of the year the follow
ing persons were hired as patrolmen or dispatchers on the dates and for the periods
appearing after their names Darrell Brink patrolman November 2 to date of bearing
Kenneth Linz dispatcher November 19 to November 19 Lee Voss dispatcher November 5
to 25 Archie Alexander patrolman November 3 to November 3 Robert Bailey patrolman
November 9 to the date of the hearing Lawrence Kent patrolman November 6 to Decent
her 6 Gary Keys patrolman November 9 to January 25 1965 Harold Mattingly patrol
man November 5 to 6 James McNamara patrolman November 28 to February 1965
Robert Sharp patrolman November 9 to December 12 Dwight Sutter patrolman Novem
her 18 to 24 Carl Van Horn patrolman November 1 to date of hearing Robert Weathering
patrolman November 3 to dite of hearing It wee further stipulated that each of the names
listed appeared on the payroll of Patrol 9e*ices except fnr'the two dispatchers that were
on the payroll of Frontier Guard As we have seen Patrol Services did not come into being
until after November 12 although the transfer of patrolmen from Frontier Guard and
Colorado Guard was made retroactive to November 1 by the terms of the preincorporation
agreement The record does not show which of the named persons hired prior to Novem
her 12 were hired by Frontier Cuard and which were hired by Colorado Guard
FRONTIER GUARD PATROL, INC 167
position to take all the strikers back It is their position that the request being con
ditional need not be honored and they were permitted to look elsewhere in
filling available jobs
This contention of Respondents cannot be upheld The request was unconditional
on its face and the record contains no statements of or actions taken by and of
the strikers or by their counsel indicating that it was intended to have any qualified
meaning Both DeLue and Gilmore relied on the motel agreement signed unmedi
ately after the walkout as controlling the position of the strikers Knowledge of
this only came to them indirectly through Supervisor Condos who had asked a
striker to return on the very night of the walkout and had been told of the agree
ment The next day however the employees consulted Attorney Criswell and
acted on his advice in signing the request for reinstatement This was obviously a
repudiation of the previous agreement It was well known to both Colorado Guard
and Frontier Guard that the request followed the motel understanding in point
of time Any doubts which they might have harbored as to its meaning or as to
the possible conditional character of the request could readily have been resolved
at the meeting on October 30 when request was again renewed orally by Cris
well No questions were asked at this time or any other time however by either
DeLue or Gilmore and it is apparent that the position which they urged at the
hearing is an afterthought I find therefore that no tenable basis exists to support
DeLue s and Gilmore s alleged belief that the request was conditional Accord
mgly I find further that on October 29 1964 the strikers employed by both
Companies unconditionally requested reinstatement to the jobs that they had left
E Discriminatory character of refusal to reinstate and responsibility
of Frontier Guard Colorado Guard and Patrol Services therefor
Having found the strike to be an economic one and the request for reinstatement
unconditional there remains for consideration the discriminatory nature if any of
the failure to reinstate and the extent if any to which responsibility therefor
attaches to Frontier Guard Colorado Guard or Patrol Services
Since the strike was an economic one Respondents lawfully could hire replace
ments while the strike was still in effect and to a limited extent they did so How
ever when Respondents received the unconditional request the strike ended
Respondents were not then required to displace those already hired but insofar as
jobs were still available they could no longer refuse to fill them with strikers with
out showing that failure to do so stemmed from reasons unrelated to their partici
pation in the strike All the persons requesting reinstatement had participated in the
strike and had joined in the formation of a labor organization which was request
mg recognition of Respondents It is not claimed that the strikers were not compe
tent to perform available jobs Absent an explanation that will withstand scrutiny
it is a reasonable inference that Respondents used their wholly unfounded reliance
on the conditional nature of the request as a pretext to justify not only displacing
the strikers but also to forestall a possible obligation to bargain which might arise
should they return That action so motivated is discriminatory is so obvious that it
merits no further discussion Accordingly I find that Respondents within the mean
ing of Section 8(a)(1) and (3) of the Act discriminatorily refused to offer to
strikers available jobs after they had requested reinstatement
Jurisdiction has been established over Frontier Guard Therefore to the extent
that it discriminatorily declined to reinstate strikers to available jobs it must accept
remedial responsibility under the statute As noted however jurisdiction was not
independently proven over Colorado Guard and Patrol Services While I have found
Frontier Guard, Colorado Guard and Patrol Services to comprise a single
integrated enterprise after the execution of the preincorporation agreement on
November 12 1964 I have reserved for further consideration the issues of whether
or not Frontier Guard and Colorado Guard may be found to constitute a single
integrated enterprise or be found to have acted in concert as joint employers prior
to that time
Contrary td the General Counsels contention I am not convinced that this record
establishes Frontier Guard and Colorado Guard to be a single integrated enterprise
prior to the execution of the preincorporation agreement The two corporations
were not commonly owned nor did they share common corporate officers A busi
ness relationship first arose between them when Colorado Guard purchased the two
patrols in April and Frontier Guard agreed to furnish it certain services for a price
As we have seen however the two Companies continued to operate the patrols
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which they owned under separate supervision, to make separate billings, and to pay
the wages separately In October the business relationship grew somewhat more
closely knit when the parties commenced to discuss merger possibilities, and to
explore the feasibility of certain operational combinations. However, contrary to the
assertion of the General Counsel, I see little taking place at this time which sug-
gests any immediate change in the degree of functional and physical integration.
Some additional services were performed by Colorado Guard for Frontier Guard,
there was a minimal exchange in customers between the two Companies, and some
employees were reduced in rank. Otherwise the two patrols appear to have contin-
ued to function in much the same manner that they had before. Management had
indicated to the employees that the two Companies were joining forces, and as we
have seen this resulted in speculation among the employees as to the effect of a
merger on their status. This is scarcely enough, however, to support a finding that
any real combination had actually taken place, or that the merger prospect had
passed an exploratory stage.
The General Counsel asserts as the most frequently cited criteria for finding a
single-employer relationship, common ownership or control, functional and physi-
cal integration , and common labor relations. In each of the cases he cites we find
all of these criteria present.26 While the General Counsel acknowledges the absence
of common ownership prior to the preincorporation agreement, he urges the extent
of common control as sufficient. Substantial common control, however, is far from
established. Explorations of merger feasibility gave rise to rumors which, together
with the presence of Gilmore on occasions, may have led to unwarranted conclu-
sions as to control. However, neither Gilmore nor DeLue had made any announce-
ments in this regard, and the real direction of employees continued to remain in
the owners and supervisors of each corporation throughout the month of October.
As set forth above, physical and functional integration was only slightly greater
than it had been before the merger talks commenced. Such changes as occurred may
have been precipitated by the merger explorations and initiated in anticipation of
consummation of the merger, but I do not see them as sufficient to justify a con-
clusion that at any time before the agreement a common control of labor relations
was in effect. Accordingly, I find that at all times prior to November 12, 1964, when
the preincorporation agreement was executed, Fionlier Guard and Colorado Guard
may not be regarded as a single-integrated enterprise, and therefore the assertion of
jurisdiction over the business of Colorado Guard on such theory is not warranted.27
It does not necessarily follow, however, that even though Frontier Guard and
Colorado Guard be regarded as separate entities, no basis can exist for attaching
responsibility to Colorado Guard for any acts occurring before November 12. The
rationale of the single employer cases rests upon finding sufficient elements of
common ownership, control, and functional integration to indicate that the enter-
prise is in reality a single one. Totally separate enterprises, however, having some
business relationship may act in concert for a specific end. To the extent that such
joint conduct proves unlawful, joint liability may attach even though such would
not be true had they acted separately. Prior to October 27, we see Frontier Guard
and Colorado Guard acting as separate Companies in the same general type of bus-
iness and engaged in exploring the possibility of merging their operations. The
strike, however, which affected both, resulted in bringing them to take joint action
in furtherance of the common interest which they had in the projected merger.
Thus, immediately following the strike, DeLue undertook to help Colorado Guard
man its patrols. Two days later both Companies were presented with a demand for
2° Supreme Dyeing & Finishing Corp., 147 NLRB 1094; Itavena Sportswear, 142 NLRB
1299; Quality Coal Corporation, 139 NLRB 492; and Minnesota Manufacturing Company,
Inc., 132 NLRB 1398.
"In Dearborn Oil and Gas Corporation, 125 NLRB 645, the Board held : "Generally
speaking, in those unfair labor practice cases in which the Board and the Courts have
held that a legal entity may be held for the acts of another, because both constituted a
single employer, it appeared that both were not only subject to common control, but also
that a controlling ownership interest in both companies was held by the same individual
or group of individuals . We believe that it is proper to require that both elements
common ownership and common control-coexist before we assess joint responsibility."
As set forth above, I am not satisfied that the elements of common control, functional
integration , or common labor relations are sufficient before November 12, to justify a
finding of a single-integrated employer. However, if the doctrine of Dearborn is to be
followed, the absence of common ownership alone would suffice to preclude a finding of
this nature.
FRONTIER GUARD PATROL, INC 169
recognition and a request for reinstatement of the strikers The demand and request
were addressed to them jointly and they responded jointly after obtaining common
counsel to represent them in sending as a reply a single telegram signed by both
Companies With their common counsel they jointly met with representatives of the
employees At this meeting no suggestion was made that either Company sought to
pursue a separate course of action Together they replied to the request for reinstate
ment both relying on the same untenable reason and together they refused to rein
state the strikers This decision was made known by their common attorney to coun
sel for the employees The foregoing establishes a pattern of common action directed
toward a common end Such joint action in and of itself sufficies to establish joint
responsibility for the unlawful refusal In addition however it is reasonable to infer
that it was undertaken in anticipation that a merger would in all likelihood come
about and that if consummated the joint action would forestall the possibility of the
merged entity being confronted with reemployed strikers and the concomitant need
for it to bargain with a union on their behalf Responsibility thus attaches to both
Frontier Guard and Colorado Guard because they were acting together in commit
ting unfair labor practices 28 Since jurisdiction is established over Frontier Guard
Colorado Guard cannot escape its responsibility after undertaking to act jointly with
Frontier Guard even though the business had not yet formally come together as a
single enterprise and even though jurisdiction had not been established separately
as to it Accordingly I find that Frontier Guard and Colorado Guard by refusing
to reinstate strikers to available jobs acted in concert and in furtherance of a coin
ciding interest Since I have heretofore found such refusal to reinstate to be discrimi
natory in nature both must be regarded as responsible for such unlawful conduct
and required to remedy it
Patrol Services was not yet in existence as an entity at the time of the refusal to
reinstate Patrol Services however is clearly the successor or alter ego to both
Frontier Guard and Colorado Guard as a result of the preincorporation agreement
Since I have found above that the three Companies constitute a single integrated
enterprise it follows that Patrol Services as successor to Frontier Guard and Colo
rado Guard must assume whatever share of responisibility resided in each after
Patrol Services came into being
F The alleged forfeitures of reinstatement
Respondents contend that if discriminatory conduct be attributed to any of them
the employees involved have forfeited their rights to reinstatement either by the
character of the strike or by having engaged in poststrike misconduct.29
I have already found the strike itself to constitute protected concerted activity
Therefore Respondents contentions that all employees who engaged in the walk
out thereby forfeited their statutory rights to reinstatement must be rejected
On November 12 1964 Bossen Nesmith and Reynolds purporting to act as
trustees for Merchant Police Employees Association the newly formed union
addressed a letter to various customers of Frontier Guard and Colorado Guard advis
mg each of the strike and stating that they wished to explain the circumstances of
the dispute They go on to point out that the merger had resulted in changes in
working conditions which the employees sought to take up with Respondents but
that Respondents had refused to listen to their legitimate complaints and that
the employees had thereafter walked out in protest They refer to their uncondi
tional offer to return to work after the walkout and to its rejection and then state
`we do not know how these companies are presently rendering the service you
need They conclude by advising that they had filed charges with the Board that
the wage rates paid were unreasonably low and by urging that the customers
addressed cease using the services of Respondents Respondents assert that these
trustees were in effect speaking for all the strikers and that the letter had the
intended effect of conveying to customers of Respondents the thought that
Respondents could not give service absent the presence of the striking employ
ees It is asserted that this letter constitutes a deliberate effort to discredit
the quality of Respondents service and that those responsible for sending it are
thereby disqualified for reinstatement Respondents urge the doctrine set forth in
Dayton Coal and Iron Corp 101 NLRB 672 Long Lake Lumber Company 34
NLRB 700
2D Anderson and Allen have been found to be supervisors within the meaning of the Act
Since they are not {employees of course they are not entitled to reinstatement or to any
other statutory rights
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Patterson Sargent Company 115 NLRB 1627 as controlling The Board in Pat
terson Sargent found that striking employees distributing a handbill to the general
public in substance warning prospective purchasers that paint manufactured by non-
strikers was shoddy merchandise thereby engaged in conduct forfeiting their
otherwise protected statutory right to reinstatement The Board reasoned that
impugning the quality of an employers product was not a lawful means of fur
thering the concerted efforts in which the employees were engaged Accepting the
principle annunciated in Patterson Sargent I find it inapposite to the facts of the
instant case There is no doubt that a labor dispute existed between Respondents
and the Union Clearly the Union had a right to enlist support from customers of
Respondents by publicizing the facts of the dispute In commenting that it did not
see how Respondents were able to render adequate service after the strike however
it was not directing a statement to the public generally but was at the most ven
turing a querulous opinion to the very customers who had been receiving the serv
ices both before and after the strike and were thus in the best position of all to
evaluate their quality Moreover the statement on its face appears more as an
expression of incredulity than as a deliberate disparagement Although Respond
ents urge that the general tone of the letter supports an inference that at all times
since the strike the property had been unprotected I am convinced that consider
ing the letter as a whole its expressed purpose and the entire context of events
such an inference is wholly unwarranted Accordingly I find that neither the sign
ers nor any of the union members who might be found to have authorized the let
ter have thereby forfeited any right to reinstatement to which they otherwise might
be entitled
The fact that certain strikers engaged in a competitive patrol business known
as American Patrol is also urged as grounds for denying such strikers reinstate
ment After the strike three of the strikers Moffett Vourexes and Smith formed
and worked in varying measures for a competing firm in the patrol business known
as American Patrol In some instances they solicited former customers of Frontier
Guard and Colorado Guard Respondents regard this as an act of disloyalty which
should result in forfeiture of their reinstatement rights The Board has recently had
occasion to consider a similar claim In Marshall Maintenance Corp 149 NLRB
735 it upheld the Trial Examiner in making the following finding
I find and conclude that on the facts of the instant case Respondent should
not be permitted to rely upon its own unlawful conduct to defeat reinstatement
merely because the discharged employees sought-albeit not successfully-
to earn a livelihood after they were discnminatonly discharged Not only were
they free to utilize the talents they possessed in the field of their greatest expen
ence but the law required them to do so in order to minimize to the fullest
extent possible Respondents backpay liability Had Brown and Welch immedi
ately upon their discriminatory discharge obtained employment with one of
Respondents competitors and in pursuance of such employment solicited
work for and otherwise sought to promote the business of the new employer
Respondent would not be here to contend that such conduct constituted dis-
loyalty to it The fact that Brown and Welch did this for Cooperative the firm
in which they had a financial interest does not require a different result
since there is no evidence that they had reached a definite decision not to
return to work for Respondent even if reinstatement were offered
The facts of the instant case closely parallel those in Marshall Maintenance I see
no reason why Respondents here should be permitted to claim a forfeiture of
employee rights for employees who had engaged in a type of work for which they
were qualified after Respondents had placed them in a position whe re they were
required to work elsewhere following the unlawful refusal to reinstate Accordingly
I find Moffett Vourexes and Smith not to be disqualified for reinstatement by rea
son of their participation in the affairs of American Patrol
Finally it is claimed that Thomas Bossen forfeited his right to reinstatement
because of alleged threats of violence made by him to Gardner Sanford a patrol
man hired by Frontier Guard as a replacement after the strike Bossen and San
ford had worked with each other before the strike and knew each other well
enough so that Sanford recognized Bossen s voice when Bossen telephoned him
shortly after the strike had started The purpose of Bossen s call at this time was
to induce Sanford to quit his job and to join the strikers Sanford states that he
told Bossen that he needed the job and would not leave Sanford says that with
this the conversation became considerably heated and that during the course of it
FRONTIER GUARD PATROL, INC. 171
Bossen told him that if he stayed "the lug nuts on the tire could be loosened," and
that he could have his "head beat in" and could be "shot at." Sanford told Bossen
"Don't threaten me, Tom" to which Bossen replied "he wasn't threatening [him].
And he said all these thing could happen." Bossen denies making any of the alleged
threatening statements which Sanford attributes to him. There is no evidence that
during the strike any injuries were inflicted on anyone, or that any damage was
done to property which could be attributed to Bossen or any of the other employ-
ees. I have little doubt that Bossen became angered by Sanford's refusal to join
the strikers, and made intemperate remarks during the course of his telephone
conversation with Sanford. Bossen and Sanford knew each other, however, and I
am not convinced that Bossen intended his remarks to be taken as specific threats,
or that Sanford regarded them as such. It is significant that there is no evidence
of a followup by Bossen with Sanford or any other replacement, either by way of
other telephone calls or by action taken. Under the circumstances, even assuming
that the conversation generally followed the lines which Sanford claims, I regard
Bossen's remarks more as angry generalities than as specific threats. Accordingly,
I find the incident to be of insufficient significance to warrant a forfeiture of any
statutory rights to reinstatement that might otherwise accrue to Bossen.
N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section II, above, occurring in connec-
tion with the operations of Respondents described 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 of commerce.
V. THE REMEDY
Having found that Respondents have engaged in unfair labor practices violative
of Section 8(a)(1) and (3) of the Act, I shall recommend below that they cease
and desist therefrom, and take certain affirmative action designed to effectuate the
policies of the Act.
Having found that Frontier Guard and Colorado Guard have jointly discrimi-
nated against the strikers who walked out on October 27, 1964, by refusing to rein-
state them to available jobs following their unconditional request for reinstatement
on October 29, 1964, I shall recommend that such strikers be reinstated to such
jobs as were available after their request for reinstatement, with such jobs to be
distributed among the strikers insofar as available according to Respondents' exist-
ing seniority system or some other nondiscriminatory practice.30 I shall also order
that any strikers reinstated to jobs which became available after the request for
reinstatement be made whole by payment to each of a sum of money equal to the
amount of wages he would have earned from the date of the discriminatory fail-
ure to reinstate to an available job, to the date of the offer of reinstatement together
with interest thereon at the rate of 6 percent per annum, and that the loss of pay
and interest be computed in accordance with the formula and method prescribed
by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716, to which the parties hereto are expressly referred.
The unfair labor practices committed by Respondents strike at the heart of the
rights guaranteed employees by Section 7 of the Act .al The inference is warranted
that Respondents maintain an attitude of opposition to the purposes of the Act with
30 The following persons are found to be strikers affected by the discriminatory refusal
to reinstate : Joyce Snyman, Robert L. Lisle, Roger Moffett, Aaron L Burkhart, Michael
Wagner, Michael Vourexes, Charles E. Nesmith, Emery L. Reynolds, Bud W. Cady, Nor-
man R . Buskirk, Thomas H. Bossen, William R. Miller, Eugene M. Smith, and Virgil
Colman. Larry Moffett and Leonard Jenkyns were listed in paragraph VI of the complaint
as strikers . Moffett and Jenkyns, however, did not join with the others in requesting rein-
statement so they will not be covered by the terms of this order. The record does not dis-
close the number of jobs available when the request for reinstatement was made, nor does
it disclose whether or not such jobs were full-time or part-time jobs. Reinstatement, how.
ever„is to be-made to those .jobs,still available after, the-reque4t for reinstatement regard-
less of their full-time or part-time 'character. It likewise does not appear- in the record
whether or not the employees hired subsequent to the request for reinstatement for avail
able jobs were hired by Frontier Guard or Colorado Guard. Since Patrol Services is the
successor to both the corporations in the operation of the patrols , it is assumed that any
reinstatement now undertaken would be by Patrol Services
31 N.L.R.B. v. Entw48tie Mfg. Co., 120 F.2d 532 (C.A. 4).
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respect to the protection of employees in general It will accordingly be recom
mended that Respondents cease and desist from infringing in any manner upon the
rights guaranteed in Section 7 of the Act 32
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and upon the entire record in
this proceeding I hereby make the following conclusions of law
1 Frontier Guard Colorado Guard and Patrol Services are each and have been
at all material times employers within the meaning of Section 2(2) of the Act
2 At all times material to this proceeding Frontier Guard has been engaged
in a business which affects commerce within the meaning of Section 2(6) and (7)
of the Act
3 Prior to November 12 1964 Frontier Guard and Colorado Guard did not
constitute a single employer engaged in commerce within the meaning of Section
2(2) (6) and (7) of the Act
4 Frontier Guard Colorado Guard and Patrol Services following the execu
tion of the premcorporation agreement have at all material times since Novem
ber 12 1964 by virtue of their common ownership and control constituted a single
employer within the meaning of Section 2(2) (6) and (7) of the Act
5 Commencing on or about October 29 1964 Frontier Guard and Colorado
Guard by acting jointly in response to the demand for recognition and the request
for reinstatement became jointly and severally responsible for the refusal to rem
state the strikers
6 Merchant Police Employees Association Inc is and has been at all material
times a labor organization within the meaning of Section 2(5) of the Act
7 By refusing to reinstate those strikers requesting reinstatement on October 29
1964 to jobs still available at that time Respondents have engaged in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act
8 By interfering with restraining and coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act as found above Respondents have
engaged in unfair labor practices wtihin the meaning of Section 8(a)(1) of the Act
9 The aforesaid unfair labor practices are unfair labor practices affecting corn
merce within the meaning of Section 2(6) and (7) of the Act
10 Frontier Guard and Colorado Guard did not discriminate against employ
ees by threatening to or actually discharging their employees on October 27 1964
11 Employees of Frontier Guard and Colorado Guard by ceasing work and
walking out on October 27 1964 did not engage in an unfair labor practice strike
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and
upon the entire record in this proceeding I recommend that Respondents Frontier
Guard Patrol Inc d/b/a Frontier Guard and DeLue Inc Colorado Guard Patrol
Service Inc and/or Patrol Services Inc and each of them and their agents suc
cessors and assigns shall
I Cease and desist from
(a) Discouraging membership of any of their employees in the Union or in any
other labor organization of their employees by refusing to reinstate them follow
ing an unconditional request for reinstatement to jobs available or in any other
manner discriminating against any individual in regard to his hire tenure of employ
ment or other term or condition of employment except as authorized in Section
8(a)(3) of the Act
(b) In any other manner interfering with restraining or coercing employees in
the exercise of their right to self organization to form labor organizations to join
or assist the above named or any other labor organization to bargain collectively
through representatives of their own choosing or to engage in other concerted
activities for the purposes of collective bargaining or other mutual aid or protec
tion or to refrain from any or all such activities except to the extent that such
rights may be affected by an agreement requiring membership in a labor organiza
tion as a condition of employment as authorized in Section 8(a)(3) of the Act
2 Take the following affirmative action which is deemed necessary to effectu
ate the policies of the Act
u May Department Stores v N L R B 326 U S 376 Bethlehem Steel Company Y
NLRB 120F2d641 (CADC)
FRONTIER GUARD PATROL, INC 173
(a) Offer to all strikers immediate and full reinstatement to the jobs available
following their request for reinstatement or other rights and privileges distnbut
ing such jobs as are available among the strikers according to the employers exist
ing seniority system or to some other nondiscriminatory practice
(b) Make whole those strikers reinstated for any loss of pay each may have suf
fered by reason of the discrimination against him in the manner provided above
in the section entitled `The Remedy
(c) Notify any of the strikers who may become entitled to reinstatement to
available jobs if presently serving in the Armed Forces of the United States of their
right to reinstatement upon application in accordance with the Selective Service
Act and the Military Training and Service Act, as amended after discharge from
the Armed Forces
(d) Preserve and upon request make available to the Board or its agents for
examination and copying all payroll records social security payment records time
cards personnel records and reports and all other records necessary to an analy
sis of the amount of backpay due
(e) Post at its usual place of business , including all places where notices to
employees are customarily posted copies of the attached notice marked Appendix
A 38 Copies of said notice to be furnished by the Regional Director for Region
27 of the National Labor Relations Board after being signed by Respondents shall
be posted by them immediately upon receipt thereof at Respondents place of bus
mess and be maintained by them for 60 consecutive days thereafter in such con
spicuous places Reasonable steps shall be taken by Respondents to insure that said
notices are not altered defaced or covered by any other material
(f) Notify the Regional Director for Region 27 in writing, within 20 days from
the date of receipt by Respondents of this Decision what steps they have taken
to comply therewith 34
IT IS FURTHER RECOMMENDED that unless on or before 20 days from the date
of its receipt of this Trial )Examiners Decision Respondents notify the Regional
Director that they will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring Respondents to take the action
aforesaid.
as In the event that this Recommended Order is adopted by the Board the words a
Decision and Order ' shall be substituted for the words the Recommended Order of a
Trial Examiner in the notice . In the further event that the Board a Order is enforced
by a decree of a United States Court of Appeals the words a Decree of the United States
Court of Appeals Enforcing an Order shall be substituted for the words a Decision
and Order
341n the event that this Recommended Order to adopted by the Board this provision
shall be modified to read Notify said Regional Director in writing within 10 days from
the date of this Order what steps Respondent has taken to comply herewith
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor
Relations Act as amended we hereby notify out employees that
WE WILL NOT discourage membership in, or activities on behalf of, Mer
chant Police Employees Association Inc or any other labor organization of
our employees by refusing to reinstate strikers unconditionally requesting
reinstatement to available jobs or by in any other manner discriminating
against any individual in regard to his hire tenure of employment or any
term or condition of employment except as authorized in Section 8(a)(3) of
the Act
WE WILL offer all strikers who unconditionally requested reinstatement on
October 29 1964 immediate and full remstatements to jobs available at that
time without prejudice to their seniority or other rights and privileges and
make each whole for any loss of earnings he may have suffered as a result of
the discrimination against him
WE WILL NOT in any other manner interfere with the rights granted our
employees by the National Labor Relations Act to organize or bargain
collectively
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain or refrain from becoming or
remaining members of the above -named or any other labor organization.
FRONTIER GUARD PATROL, INC., D/B/A FRONTIER GUARD AND
DELVE, INC.; COLORADO GUARD-PATROL SERVICE, INC.;
AND/OR PATROL SERVICES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
NOTE.-We will notify any of the above-named employees if serving in the
Armed Services of the United States of their right to reinstatement upon applica-
tion in accordance with the Selective Service Act, as amended, after discharge from
the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered , defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office, 607
Railway Exchange Building, 17th and Champa Streets, Denver, Colorado 80202,
Telephone 297-3551.
Wahoo Packing Company, Anthony B. Cudahy, John Q . Runyan
and Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL -CIO, District Union No . 271. Case 17-
CA-2771. October 20, 1966
DECISION AND ORDER
On June 13, 1966, Trial Examiner Alba B. Martin issued his
Decision in the above-entitled proceeding, finding that Respondents
had engaged in certain unfair labor practices and recommending that
they cease and desist therefrom and take certain affirmative action, as
set forth in the attached Trial Examiner's Decision. Thereafter, the
Respondents filed exceptions to the Trial Examiner's Decision and a
supporting brief.
Pursuant to Section 3(b) of the National Labor Relations Act, as
amended, the National Labor Relations Board has delegated its
powers in connection with this case to a three-member panel [Chair-
man McCulloch and Members Brown and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing, and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and the brief, and the entire
record in this case," and hereby adopts the findings, conclusions,2 and
X The Respondents ' request for oral argument is hereby denied as , in our opinion, the
record, exceptions , and brief adequately present the issues and the positions of the parties.
7 The Board makes the following additional conclusion of law, based on the Trial
Examiner 's findings : By assisting and. attempting , to -, get the. Union decertified with the
purpose or foreseeable effect of obstructing the bargaining process, Respondents' have refused
to bargain in good faith with the Union in violation of Section 8(a) (5) of the Act.
161 NLRB No. 14.