Guard Services, Inc.

National Labor Relations Board - Board Decisions

Dec 29, 1961

134 N.L.R.B. 1753 (N.L.R.B. 1961)

GUARD SERVICES, INC. 1753
WE WILL offer to Dale R . Miller immediate and full reinstatement to his
former or substantially equivalent position , without prejudice to any seniority
or other rights previously enjoyed , and make him whole for any loss of pay
suffered as a result of the discrimination against him.
WE WILL NOT interrogate employees concerning union affiliation or activities
in a manner constituting interference , restraint, or coercion in violation of
Section 8 (a) (1) of the Act.
WE WILL NOT in any other manner interfere with , restrain, or coerce our
employees in the exercise of their right to self -organization , to form labor
organizations , to join or assist the above -named Union , or any other labor
organization , to bargain collectively through representatives of their own choos-
ing, to engage in concerted activities for the purposes of collective bargaining
or other mutual aid or protection , or to refrain from any or all such activities.
PULLEY FREIGHT LINES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered , defaced , or covered by any other material.
Guard Services , Inc. and United Plant Guard Workers of America,
Charging Party and Local 221, Building Service Employees
International Union , AFL-CIO, Party to the Contract
Guard Services , Inc. and Amalgamated Plant Guards , Local 235,
UPGWA, Charging Party and Independent Guard Employees
Alliance, Party in Interest. Cases Nos. 13-CA-37920 and 13-CA-
4046. December 29, 1961
DECISION AND ORDER
On September 26, 1961, Trial Examiner Charles W. Schneider is-
sued his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had not engaged in the unfair labor practices
alleged in the consolidated complaint and recommending that the com-
plaint be dismissed in its entirety, as set forth in the Intermediate
Report attached hereto. Thereafter, the General Counsel filed excep-
tions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Members Rodgers, Fanning, and Brown].
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 Inter-
mediate Report, the exceptions and the brief, and the entire record in
these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, only to the extent consistent with
the following:
1. As to Case No. 13-CA-4046, the Trial Examiner found that (1)
employee suggestions for the formation of an independent union,
134 NLRB No. 161.
1754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hereafter referred to as Alliance, antedated the Respondent's sugges-
tion, and that the employees' disillusioning experience with a prior
union was a substantial factor in their establishment of the Alliance;
(2) all Respondent's oral and written statements concerning this or-
ganization were privileged expressions under Section 8 (c) and there-
fore not violative of any provisions of the Act; and (3) the action of
Orlo Oberlander, one of Respondent's supervisors, in giving to em-
ployee Willard a list of employees who had indicated their interest in
an independent union, as well as his action in giving Willard a slip
of paper bearing the notation to set up an appointment with Ray
Fraser, an attorney representing independent unions, did not con-
stitute violations of Section 8(a) (1) and (2) of the Act. For the
reasons set forth hereafter, we disagree with these conclusions of the
Trial Examiner.
On June 1, 1960, a consent election was conducted among the Re-
spondent's employees. The tally of ballots showed that 16 ballots
were cast for the Petitioner, United Plant Guard Workers of America,
16 were cast against it, and 1 ballot was challenged. The Petitioner
filed objections to the election and also filed unfair labor practice
charges.' Following an investigation, the Regional Director issued
his report in which he overruled the challenge to the remaining ballot,
found the Respondent had engaged in conduct constituting interfer-
ence with the election, and recommended that in the event the deter-
minative ballot was cast against the Petitioner, the election be set
aside and a new election be directed. No exceptions to the Regional
Director's report were filed and, on November 23, 1960, the Board
adopted the Regional Director's recommendations. No further action
had been taken in the representation proceeding when the events in-
volved in the instant case occurred.
On or about December 29, 1960,2 the Respondent distributed to its
employees, with their paychecks, a circular announcing the death of
one of Respondent's supervisors and the appointment of his successor.
This document also contained the following :
You men demonstrated [your best] interest last June 1, 1960
when you voted . . . not to join the United Plant Guard Workers
Union. I think many of you men now realize they wanted to ob-
tain your membership only to collect dues from you. . . . You
do not need a union in Detroit to intercede for your interests.
They make all kinds of promises which can't possibly be kept and
it is you fellows who have everything to lose.
1 These were the charges in Cases Nos . 13-CA-3720 and 13-CB-944 which were the
subject of the settlement agreement of October 25, 1960 - As Local 221 , Building Service
Employees International Union, AFL-CIO, fully complied with.the terms of the settlement
agreement , the complaint in Case No. 13-CB-944 was not reopened.
2 The posting period for the aforementioned settlement agreement in Case No 13-CA-3720
had expired on December 27, 1960.
GUARD SERVICES, INC. 1755
It would be my suggestion , and we would be most happy, to
have all of you Guards to set up a small committee , consisting let
us say of, 3 persons , or a more formal organization to act as a
sort of a grievance or complaint committee, through which you
could channel your complaints to our office.
Many small Companies each year are finding it increasingly
desirable to set up their own independent union . This has many
advantages . . . . In closing, we . . . hope . . . that our work
may continue so that we may be able to keep all you employed
with us.
Early in January 1961, employee Misner came to E. B. Oberlander,
Respondent's secretary-treasurer, told him that some of the employees
were interested in forming a union, and requested him to prepare a
statement setting forth the present terms and conditions of their em-
ployment. Oberlander prepared such a statement and had copies
made, which were then distributed to the employees by Misner. This
document, in addition to setting forth the requested information, con-
tained the following :
If you were organized into an Independent Union, it may be that
you would want to work out an arrangement so that we could
work jointly with you to obtain, for instance, hospitalization in-
surance for you or your families at a reduced cost. This in itself
should be of considerable attraction to you. Actually, such costs
to you would amount to little, if any more than you formerly paid
for union dues to an outside Union. . . . Frankly, we feel that
you could have everything to gain and nothing to lose by or-
ganizing an Independent Guard Union for Employees of Guard
Services, Inc.
Later in January, E. B. Oberlander sent word to employee Willard
to come to his office. When Willard appeared at the office, E. B.
Oberlander was not there, but Willard talked to Orlo Oberlander.
After discussing Willard's guard duties, they discussed the subject of
an independent union. Although the testimony of Oberlander and
Willard is vague as to the course of their discussion, one thing is
clear-Willard left the meeting with two slips of paper, given to him
by Orlo and written in Orlo's handwriting, containing (1) the names
of eight employees, and (2) the notation, "Set up app't with Ray
Frazer 1st Nat'l Bank Bldg." Orlo told Willard that the employees
whose names were written on the one slip of paper had all indicated an
interest in an independent union. It also appears that Ray Frazer is
an attorney who represents other independent unions in the Peoria.
Illinois, area. As more fully described in the Intermediate Report,
these events all preceded the formation of the Alliance.
1756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is clear that the Respondent was well awkre of the fact that the
outcome of the election of June 1960 was still in doubt, and that either
the United Plant Guard Workers would be certified as the bargaining
representative of the employees or a second election would be directed.
In these circumstances, and contrary to the Trial Examiner, we find
that the Respondent embarked upon a campaign to promote and en-
courage the organization of an independent union. Thus it "sug-
geted" to its employees, in the announcement of December 29, 1961,
that they form an independent union; held out to them, as an induce-
ment, the offer to obtain hospitalization insurance, a benefit which the
employees were not currently enjoying; and, in January 1961, fur-
nished Willard, an employee who apparently favored an independent
union,3 with a list of other employees who had indicated an interest in
an independent union. Presumably, this list was to be used by Willard
in determining which employees to contact in order to obtain employee
authorizations for the formation of Alliance.
We are unable to find, as did the Trial Examiner, that "employee
suggestions for an independent union antedated the Respondent's."
Although it appears that the employees had been dissatisfied with
their previous bargaining representative, and some of them were
favorably disposed toward an independent union, it is quite clear that
no action was taken by any of the employees until after the Respond-
ent made its "suggestion." Neither are we able to agree with the Trial
Examiner that all of the Respondent's statements are privileged under
Section 8 (c) of the Act. In our opinion, the Employer's conduct, when
viewed in its entirety, exceeded the bounds of free speech permitted
under that section. The Respondent herein did much more than indi-
cate its "preference" for an independent union-it "suggested" the
formation of an independent union, in effect assured the employees
that such an organization would be favorably received by Respondent,
and offered to assist in obtaining a benefit for the employees if one was
formed. Moreover, by supplying a list of employees who had indi-
cated an interest in an independent union and directing Willard to
contact Fraser for the details in setting up such an organization, the
Respondent supported and assisted in the organization of Alliance.
As the formation and selection of a bargaining representative is a
matter reposed within the exclusive prerogative of the employees, and
as it appears that Respondent's action interfered with the employees'
exercise of this prerogative, we find that the Respondent, by its entire
course of conduct, violated Section 8(a) (1) and (2) of the Act by
interfering and assisting in the formation of the Alliance'
3 As found by the Trial Examiner , Willard "initially favored formation of an inde-
pendent [even ] at the time Local 221 [ Building Service Employees International Union,
AFL-CIO] became bargaining agent ," and subsequent to January 1961, Willard became
secretary of Alliance.
e Philamon Laboratories , Inc, 131 NLRB 80
GUARD SERVICES, INC. 1757
2. With respect to Case No. 13-CA-3720, which was informally
settled by the parties and approved by the Regional Director on
October 25, 1960, the Trial Examiner concluded that in the absence
of evidence showing that the Respondent had failed to comply with
the terms of the settlement agreement or had committed independent
postsettlement unfair labor practices he was precluded from consider-
ing any unfair labor, practice allegations based on conduct antedating
the settlement agreement .5 In view of our finding supra, that the
Respondent's conduct subsequent to the posting period of the settle-
ment agreement violates Section 8 (a) (1) and (2) of the Act, we shall
consider the presettlement conduct of the Respondent which is the
subject of the complaint in Case No. 13-CA-3720.6
The record shows that just prior to the June 1, 1960, election involv-
ing the United Plant Guard Workers of America, Sergeant Engle-
hardt, a supervisor of the Respondent, engaged in the following con-
duct : (1) Told employee Oscar Geyer, "Don't participate in the union
because you will all be out of a job"; (2) told employee Roy Pardew,
"if the Union wins we won't have our jobs because Mr. Oberlander
won't stand for pushing around"; (3) told employee Silas Doering,
"If the Union wins the election, why you know Oberlander could just
discontinue then you fellows wouldn't have any job"; (4) told em-
ployee James Adams, "If we don't vote right, Mr. Oberlander would
give the job up . . . and we would be out of work"; (5) told employee
Ronald Kennedy, "If this election doesn't go right and you vote the
union in, Mr. Oberlander will close Guard Services . . . you fellows
aren't going to have a job"; and (6) told employee Hiley Knight,
"When you vote, vote right . . . you make a living which is little
better than nothing and Mr. Oberlander will fold up fast before being
pushed around by a union." We find that these statements constitute
threats which interfere with, restrain, and coerce employees in their
6 Larrance Tank Corporation, 94 NLRB 352.
O Contrary to his colleagues , Member Rodgers would not reopen the settlement agree-
ment in Case No. 13-CA-3720 in toto . As to the 8( a) (2) and ( 3) violations alleged in
that case, Member Rodgers notes that-Respondent complied with all the terms of the
settlement agreement which fully remedied the allegations: Respondent withdrew recogni-
tion from Local 221, Building Service Employees International Union, set aside its con-
tract with Local 221 , jointly and severally with Local 221 reimbursed employees for all
dues and fees deducted from their wages , and posted the required notices . Thus, in
Member Rodgers' view, because there has been complete compliance with the terms of the
settlement agreement , and because the postsettlement conduct alleged in Case No 13-CA-
4046 involves illegal assistance rendered to a labor organization other than Local 221,
which the Respondent has never actually recognized , and because , as his colleagues recog-
nize, no useful purpose would be served by issuing any additional remedial order for the
violations which have already been remedied , Member Rodgers believes it would not
effectuate the policies of the Act to go behind the terms of the settlement agreement with
respect to the alleged violations of Section 8(a) (2) and ( 3). However , Member Rodgers
agrees with his colleagues that, because the prior settlement agreement failed to include
any remedial provisions for the alleged threats which were the subject of independent
8(a) (1) charges , the Board properly should reexamine the facts underlying that portion
of the settlement agreement and issue the appropriate remedial order.
1758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
0
exercise of the rights guaranteed by Section 7 of the Act and there-
fore constitute violations of Section 8 (a) (1) of the Act.
On August 12, 1958, the Respondent entered into a collective-
bargaining agreement with Local 221, Building Service Employees
International Union. It is clear that Local 221 had not requested
recognition on the claim that it represented a majority of Respondent's
employees. Rather, Local 221 had been "introduced" to the employees
through a notice mailed by the Respondent on August 1, 1958, stating
that "arrangements" had been completed "for admitting all our
watchmen into Union membership" and further that "arrangements"
had been made "to deduct . . . Union dues and membership fees."
Attached to the notice was an application for membership which the
employees were directed to fill out. On August 8, 1960, the employees
received a second notice from the Respondent stating that a union
agent would be in the area in a few days and that "we think it would
be a good idea to have all guards to report to our office at 2 P.M.
Tuesday [to meet with the union agent]."
The contract between the Respondent and the Union contained,
inter alia, the following provisions :
The Company and the Union both hereby agree that all Em-
ployees shall submit to and cooperate with the following :
1. Completely filling out application forms for employment
as submitted.
3. Make application for membership in [Local 221]
The Company hereby agrees to withhold from each employee's
salary the amount of .... ($2.50) each month as dues ... and
mail the same to ... Local•221. The Company further agrees
that as a new employee comes to work for the Company, the
Company will withhold ... ($5.00) initiation fee and mail the
same to ... Local 221.
All applicants for employment during the term of the contract were
required to sign a form which contained the following provision :
I also agree to become a member in good standing in Local No.
221, AFL-CIO and authorize my Employer to make the necessary
deductions.
The parties stipulated at the hearing that the above contractual
provisions were maintained and given effect by the parties from
August 12, 1958, to July 18, 1960; that the employees were asked or
required to execute the aforestated document requiring membership
in good standing and authorizing the necessary deductions; and that
union dues were in fact deducted from the employees' pay by the
Respondent and mailed to Local 221.
GUARD SERVICES, INC. 1759
In view of the above, it is clear that the checkoff provision of the
contract requires the Employer to deduct dues from the employees'
pay without any authorization from the employees, and the applica-
tion form for new employees requires them, as a condition of em-
ployment, to become members in good standing and to authorize the
deduction of dues, without being afforded the statutory 30-day grace
period. Moreover, in addition to requiring new employees to agree
to become members of the Union in advance of employment, the con-
tract requires old nonmember employees to become members of the
Union without providing them 'with the 30-day grace period which
the statute requires. The maintenance and enforcement of such an
arrangement is clearly violative of Section 8(a) (1), (2), and (3) of
the Act.
Accordingly, we find that by engaging in the above conduct, the
Respondent unlawfully interfered with the formation and adminis-
tration of Local 221, in violation of Section 8(a) (1) and (2) of the
Act, and unlawfully discriminated in regard to the terms and condi-
tions of employment to encourage membership in Local 221, in
violation of Section 8(a) (1) and (3) of the Act.
THE REMEDY
Having found that the Respondent violated Section 8(a) (1), (2),
and (3) of the Act, we shall order it to cease and desist from engaging
in such conduct in the future and to affirmatively take such action
as will dissipate the effects of its unfair labor practices. Thus, on the
basis of the violations found in Case No. 13-CA-4046, we shall order
the Respondent to cease and desist from interfering with, or con-
tributing support_to the formation or administration of Independent
Guard Employees Alliance, or any other labor organization, and
affirmatively we shall order the Respondent not to recognize Inde-
pendent Guard Employees Alliance, or its successor, if any, unless and
until such labor organization shall have been certified by the Board
as the exclusive representative of Respondent's employees. In addi-
tion, we shall order the Respondent to post notices to its employees
informing them of the provisions of this remedial order.
With respect to Case No. 13-CA-3720, we have found that the Re-
spondent violated Section 8(a) (1), (2), and (3) of the Act. With
respect to the violations of Section 8(a) (2) and 3), as it appears that
Respondent has fully complied with the terms of a settlement agree-
ment entered in that case which provided a complete and effective
remedy,.we shall not include any further remedial provision in our
order with respect thereto. As to the remaining Section 8(a) (1) vio-
lation, however, the settlement agreement failed to include any specific
remedial provision and thus that violation remains unremedied. Ac-
cordingly, on the basis of our findings herein, and in order to effec-
1760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tuate the policies of the Act, we shall order the Respondent to cease
and desist from threatening its employees with loss of employment in
the event they select United Plant Guard Workers of America, or
any other labor organization, as their collective-bargaining representa-
tive, and in any other manner unlawfully interfering in the employees'
exercise of the rights guaranteed in Section 7 of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Guard Services,
Inc., Peoria, Illinois, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Threatening its employees with economic loss in the event they
select United Plant Guard Workers of America, or any other labor
organization, as their bargaining representative in violation of Sec-
tion 8 (a) (1) of the Act.
(b) Interfering in the formation of, or contributing assistance to,
Independent Guard Employees Alliance, or any other labor organiza-
tion of its employees.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form, join, or assist United Plant Guard Workers of America, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for
the purposes of collective bargaining or other mutual aid or protec-
tion, or to refrain from any and all such activities, except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized in Section 8(a) (3) of the Act, as amended.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act : "
(a) Withhold all recognition from Independent Guard Employees
Alliance as the exclusive representative of its employees for the pur-
pose of dealing with it concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other terms and conditions of
employment, unless and until such labor organization shall have been
certified by the Board as the exclusive bargaining representative of
such employees.
(b) Post at its offices in Peoria, Illinois, copies of the notice at-
tached hereto marked "Appendix."' Copies of said notice, to be
furnished by the Regional Director for the Thirteenth Region, shall,
7 In. the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
GUARD SERVICES, INC. 1761
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to its employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for th'e Thirteenth Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT threaten our employees with economic loss in the
event they select United Plant Guard Workers of America, or
any other labor organization, as their bargaining representative,
in violation of Section 8 (a) (1) of the Act.
WE WILL NOT interfere with the formation of, or contribute
assistance to, Independent Guard -Employees Alliance, or any
other labor organization of our employees.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights to self-
organization, to form, join, or.assist United Plant Guard Workers.
of America, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, to engage in
concerted activities for the purposes of collective bargaining or
other mutual aid or protection, or to refrain from any and all
such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization
as a condition of employment, as authorized in Section 8(a) (3)
of the Act, as amended.
WE WILL NOT recognize Independent Guard Employees Alli-
ance, or any successor thereto, as the exclusive representative of
our employees for the purpose of dealing with us concerning-
grievances, labor disputes, wages, rates of pay, hours of employ-
ment, or other conditions of employment, unless and until such
labor organization shall have been certified by the Board as the
exclusive representative of such employees.
All our employees are free to become, remain, or refrain from be-
coming or remaining members of United Plant Guard Workers of:
630849--62-v of . 134-112
1762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
America, or any other labor organization, except to the extent that this
right may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act, as amended.
GUARD SERVICES, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office (176 W. Adams St., Chicago, Illinois; telephone number Central
6-9660) if they have any question concerning this notice or com-
pliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges and amended charges of unfair labor practices filed on various dates
from June 2, 1960, to February 6, 1961, by the Charging Parties named in the
caption against Guard Services, Inc., Peoria, Illinois, the Respondent herein, the
General Counsel issued a consolidated complaint and notice of hearing on March 24,
1961, alleging violations of Section 8(a)(1), (2), and (3) of the Act by the
Respondent.
A hearing upon due notice at which all parties except Local 221, Building Service
Employees International Union, AFL-CIO, appeared and were represented by
counsel, was held at Peoria, Illinois, on April 25, 26, and 27 and on July 20, 1961.1
Briefs were received from the General Counsel on August 23, 1961, and from
the Respondent on August 24, 1961, and have been considered.
Upon the record thus made, and after consideration of all the evidence, the
contentions of the parties, and observation of the witnesses, including their de-
meanor, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Guard Services, Inc., is an Illinois corporation engaged in the business of pro-
viding guard services to industrial and commercial enterprises, and maintaining its
principal office and place of business in the city of Peoria, Illinois.
1 The July 20 hearing was held as a consequence of a Board order sustaining an appeal
by the General Counsel, following closing of the original hearing, from a ruling by the
Trial Examiner during that hearing excluding evidence relating to Case No. 13-CA-3720.
The Trial Examiner's ruling was that, the Respondent having stated its willingness to
enter into a formal settlement agreement in Case No. 13-CA-3720 providing for Board
order and consent decree with full remedy under all sections of the Act involved in the
consolidated complaint, no useful purpose would be served by litigating the charges in
Case No 13-CA-3720 The Trial Examiner further held that in the absence of adequate
reason for rejection, the Board's Statements of Procedure, Section 101.9, Series 8, dis-
tributively read, require acceptance by the General Counsel of an offer of settlement which
provides full remedy for all violations charged in a case or complaint (see Acoustical Con-
tractors Association of Cleveland, 119 NLRB 1345, 1348-1350) ; and that, no adequate
reasons of law, policy, or advocacy being advanced here for rejection of the adjustment,
litigation of the issues would not effectuate the policies of the Act The Trial Examiner
asserted the existence of an "inherent po«er" in the Board and its Trial Examiner to
decline to litigate issues unnecessarily" An underlying basis for the action was the limi-
tation imposed on the reception of evidence by the case of Laurance Tank Corporation,
94 NLRB 352, more specifically referred to ,nf, a The ruling did not affect Case No.
13-CA-4040, which was not covered by the propo ed settlement
At the July 20 heating the evidence in Case No. 13-CA-3720 offered by the General
Counsel was admitted pursuant to the Board's order.
GUARD SERVICES, INC. 1763
During the calendar year 1960 in the course, conduct, and operation of its business
the Respondent received in excess of $50,000 for providing guard services to enter-
prises, each of which annually produces and ships goods valued in excess of
$50,000 directly out of the State of Illinois.
It is admitted that the Respondent is engaged in commerce within the meaning
of the Act.
H. THE LABOR ORGANIZATIONS INVOLVED
The following are labor organizations within the meaning of Section 2(5) of
the Act : (a) Local 221, Building Service Employees International Union , AFL-CIO;
(b) Independent Guard Employees Alliance; and ( c) United Plant Guard Workers
of America , and its local , Amalgamated Plant Guards , Local 235 , UPGWA.
III. THE UNFAIR LABOR PRACTICES
A. The issue
The complaint alleges violations of Section 8(a)(1), (2), and (3) of the Act.
However, in my view of the case, the dispositive issue is whether the Respondent
sponsored, supported, dominated, or interfered with the formation or administra-
tion of the Independent Guard Employees Alliance. The unfair labor practices
alleged in the complaint in this respect are that the Respondent: (a) urged, directed,
and solicited employees to form and join the Alliance, (b) contributed to it financial
or other support by permitting use of stenographic services, supplies, and other
assistance, and (c) permitted officers and representatives of Alliance to conduct
union business on the Respondent's premises.
If these allegations are not preponderantly substantiated the complaint, for
reasons later indicated, must be dismissed on the authority of the case of Larrance
Tank Corporation, 94 NLRB 352. If the facts establish the proportions alleged,
the remaining allegations of the complaint are open to appraisal-otherwise not.
In summary, the situation which gives rise to the charges is as follows.
B. The Respondent's Relations With Local 221
In August 1958 the Respondent entered into a collective- bargaining contract with
Local 221, Building Service Employees International Union, a labor organization
affiliated with the AFL-CIO. Among other provisions this contract required that
Respondent's employees become members of Local 221 as a condition of employ-
ment, without benefit of the 30-day grace period prescribed by the Act. In con-
nection therewith the Respondent also required its employees, as a condition of
employment, to authorize deduction from their pay of dues, fees, and assessments
to Local 221.
Local 221 remained the contractual and recognized bargaining representative of
the employees until July 28, 1960. During that period of time substantial dissatis-
faction existed and developed among the employees concerning their representation
by Local 221. Among the complaints voiced in the testimony was that employees
received no substantial benefits for their dues payments, no adequate representation,
and that there were no meetings . Sentiment was expressed for different representa-
tion . Some of this opinion favored a national organization , some urged a local
organization which could then determine whether to affiliate with a national group.
Such difference in view among the employees in fact preceded the recognition 'of
Local 221. This dissatisfaction with Local 221 was communicated to and known
by the Respondent. Presumably in response to this ferment the United Plant Guard
Workers Union began to conduct an organizational campaign among the Respond-
ent's employees in 1960.
C. The election
As a result of the organizational effort by the United Plant Guard Workers a
petition for certification was filed, and a consent election was conducted among the
Respondent's employees by the Regional Director on June 1, 1960. (Guard Serv-
ices,, Inc., Case No. 13-RC-6782, not published in NLRB volumes.) - Local 221
did not participate in the election; only the United Plant Guards was on the
ballot. The election was inconclusive, 16 ballots being cast for United Plant
Guard Workers, 16 against it, and 1 ballot-that of one William Misner-being chal-
lenged . This ballot was sufficient to effect the result of the election . The issue as
to Misner was whether he was an eligible employee. The United Plant Guard
Workers filed objections to the election, and on June 2, 1960, filed an unfair labor
practice charge based on alleged interference by a supervisor. (Case No. 13-CA-
3720.) On July 18, 1960, that charge was amended to allege additional unfair labor
practices of 8(a)(1), (2), and (3) in threats of reprisal by the Employer, interroga-
1764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion concerning union activity, assistance to Local 221, and execution and mainte-
nance of the atoresaid contract with its union-security and checkoff provisions. A
charge against Local 221 based on unlawfulness of the contract was filed at the
same time (13-CB-944, not published in NLRB volumes). Ten days after the
filing of the amended charge in Case No. 13-CA-3720, on July 28, 1960, the
Respondent and Local 221 terminated the contract.
Following the filing of objections to the election by the United Plant Guard
Workers the Regional Director investigated the objections, and on November 3,
1960, he issued his report in which he found the objections sufficiently substantial
to warrant setting aside the election. As to Misner, the Regional Director found
him eligible to vote. The Regional Director recommended that Misner's ballot be
opened and counted at such time as the pending unfair labor practice charges were
disposed of. He further recommended that if Misner's ballot were cast for United
Plant Guards, that union be certified, but if cast against United Plant Guards the
election be set aside and a new one directed No exceptions to the Regional Direc-
tor's report were filed by any of the parties within the time prescribed therefor,
and on November 23, 1960, the Board adopted the Regional Director's
recommendation s.2
D. The settlement agreement
On October 21, 1960, a settlement agreement disposing of the unfair labor practice
charges then 'pending in Case No. 13-CA-3720 was signed by Local 221, by the
Respondent, and by the Charging Party; and on October 25, 1960, received the
approval and signature of the Regional Director. This agreement, and the accom-
panying notice to be posted by the Respondent for at least 60 days, contained the
usual remedies in "informal" settlements of charges involving Section 8(a)(1), (2),
and (3). These included withdrawal of recognition of Local 221, setting aside of
the contract (previously terminated), covenants against the commission of further
unfair labor practices of the same character, and reimbursement to employees of
all dues and assessments to Local 221 deducted within the statutory limitation
period. There was no provision for an order by the Board and for entry of a
consent court decree, as is normally the case in a "formal" settlement agreement.
Such formal type of settlement provides the board with all the remedies securable
by litigation.
The affirmative requirements of the settlement agreement, including the reim-
bursement of dues and fees, the disestablishment of Local 221, and the posting of
notices about the plant for the required period of time where in due course fully
performed.3
E. The Organization of the Alliance
On December 29, 1960, following the expiration of the 60-day posting or com-
pliance period, the Respondent distributed among its employees, along with their
paychecks, a circular announcing the appointment of a new sergeant, Paul Carey,
replacing, Sgt. Ray Englehardt, who had died. In this circular the Respondent
also stated its preference for dealing with, and suggested the establishment of, a
grievance committee of employees, or an independent union, rather than the United
Plant Guard Workers Union, or one like it, which "makes all kinds of promises
which can't possibly be kept." Enclosed was a, pamphlet describing the advantages
of an independent union. The literature contained no promise of benefit or threat
of reprisal.
On January 9, 1961, the Regional compliance officer notified the Respondent by
letter that the December 29 distribution constituted a violation of the settlement
agreement contrary to Section 8(a) (2) of the Act, and that the compliance officer
would therefore recommend rescission of the informal settlement and isuance of
complaint, unless the Respondent agreed to a formal settlement. For reasons not
quite clear no such settlement was concluded, despite the fact that during the course
of subsequent discussions with Regional personnel the Respondent indicated its
willingness to do so. When the Respondent, during the hearing herein, reiterated its
offer to enter into such a formal agreement, with Board order and court decree, the
2 Since the Misner ballot could not be affected by the outcome of the unfair labor practice
case, it is not clear why the opening of that ballot (conceivably dispositive of the election),
was defer red pending disposition of the charges. As will be seen, the unfair labor practice
case had been settled on October 25, 1960, and at the time of issuance of the Regional
Director's report on objections was awaiting compliance by the Respondent and Local 221.
3 The charge against Local 221 was also informally settled Local 221 fully complied
with the terms of settlement Reimbursement costs were divided between Local 221 and
the Respondent
GUARD SERVICES, INC. 1765
General Counsel declined to accept it. It was this action which led to the Trial-
Examiner's ruling referred to in footnote 1, supra.
In early 1961 events were moving toward formation of the Alliance.
About the forepart of January 1961, William Misner,"one of the Respondent's
guards, visited the Respondent's secretary-treasurer, E. B. Oberlander, in regard to
working conditions, and inquired about the formation of a union. Oberlander made
no recommendations, telling Misner that he should consult his own attorney.
However, Oberlander further said that if the employees wanted a union he would be
favorable to it . Upon the request of Misner, Oberlander prepared a statement of
existing working conditions for distribution among the employees. This statement,
subsequently circulated, added the Respondent's view, for stated reasons free of
evident promise of benefit or threat of reprisal, that the employees would be better
and less expensively represented by an independent union.
During the month of January 1961, at the request of Misner and employee Marion
Willard, the Respondent's manager, Orlo Oberlander, provided Misner and Willard,
on separate occasions, with a list of employees who had indicated interest in forming
an independent union , and also supplied Misner and Willard with a list of eligible
employees. Willard, who ultimately was elected secretary of the Alliance, was one
of the employees who had initially favored formation of an independent at the time
Local 221 became bargaining agent.
The Alliance was then formed with Misner the apparent leader in the activity.
When Misner approached employee James Adams to interest him in the Alliance,
Adams asked Misner whether E. B. Oberlander would "like to have this union."
Misner replied that it was "not up to Mr. Oberlander to like it or not." A local at-
torney who represented other independent unions in the area, Raymond J. Fraser,
was retained by Misner and Willard. Several organizational meetings were held at
a local hotel during mid and late January, a constitution and bylaws adopted, officers
elected, and bargaining demands formulated. Misner was elected as president. At
the first of these meetings Fraser told the employees that he was interested in repre-
senting the Alliance only if it was independent and free of company domination,
adding that a union having any connection with the company could not be successful.
The record does not reveal that the Alliance has requested recognition or been
recognized by the Respondent as a bargaining representative. There is no evidence
that the Respondent provided any financial aid or support in the formation of the
Alliance.
On February 6, 1961, Local 235 of the United Plant Guard Workers filed a charge
alleging that since January 5, 1961, the Respondent had formed and dominated the
Alliance. This is Case No. 13-CA-4046. On March 24, 1961, the Regional Direc-
tor issued the instant consolidated complaint based on the charges in both Case No.
13-CA-4046 and the previously settled Case No. 13-CA-3720. No formal notice
was given to the Respondent rescinding the settlement agreement in Case No.
13-CA-3720.
During the organizational phase of the Alliance, in addition to the action de-
scribed heretofore, several other incidents occurred which the General Counsel
asserts evidence unfair labor practices. These are as follows:
(1) In early January 1961 the Respondent's manager, Orlo Oberlander, at the
Respondent's initiative, spoke to employee Marion Willard in the Respondent's
office with regard to the organization of a union. In their conversation, Ober-
lander indicated to Willard the Respondent's preference for an independent type of
organization. This is the occasion, previously alluded to, on which Oberlander gave
Willard a list of names of employees who had indicated interest in such a union.
Under circumstances not altogether clear, on this occasion Manager Oberlander
also gave Willard a slip of paper bearing the message "set up app't with Ray Fraser,
1st Nat'l Bank Bldg." I cannot determine with fair certainty from the testimony of
Willard and Oberlander how Fraser's name was brought into the conversation or how
the note came to be written. I am not convinced that either Orlo Oberlander or
Willard were completely candid in their testimony concerning this incident. How-
ever, on the basis of the evidence I am unable to find as a fact that Oberlander first
suggested Fraser's name or directed or requested Willard to get in touch with Fraser.
(2) In February 1961 employee James Adams asked Secretary-Treasurer E. B.
Oberlander what he though of the Alliance and the other unions. Oberlander replied
that he thought it a good thing to have a small union, indicated his distaste for
Local 221, and said that he thought that the United Plant Guard Workers Union was
too expensive for the employees. Oberlander stated these sentiments on a number
of occasions.
(3) During January 1961 clerical employees in the Respondent's office did certain
work for William Misner in connection with the Alliance, as follows:
1766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ruth Lee, stenographer, using company time and property, but without the apparent
knowledge of any company supervisor or official, duplicated some 25 copies of the
constitution and bylaws of the Alliance at the request of Alliance President Misner.
During the same month Ruth Mcllvenna, at that time a secretary in the Respond-
ent's office, but no longer employed by it, duplicated for Misner approximately 30
copies of a document entitled "Union Agreement," which contained a statement of
conditions of employment of guards covering many of the usual items found in a
collective-bargaining contract, and was presumably a draft of a proposed agreement.
This work was done by Miss Lee and Miss McIlvenna as a personal favor to Misner.
It was the practice of the girls to do typing for employees at the latter's request when
free.
Concluding Findings
The Board will not consider as evidence of unfair labor practices conduct of a
respondent antedating a settlement agreement, unless the respondent fails to comply
with the agreement or engages in independent unfair labor practices after the settle-
ment: Larrance Tank Corporation, 94 NLRB 352; Corn Products Refining Company,
49 NLRB 1377. In the Larrance Tank case the Board said:
It is the Board's established practice not to consider as evidence of unfair
labor practices conduct of a Respondent antedating a settlement agreement,
unless the Respondent has failed to comply with the settlement agreement or
has engaged in independent unfair labor practices since the settlement. More-
over, in determining whether such independent unfair labor practices have
occurred after the settlement, the Board will not appraise a Respondent's post-
settlement conduct in the light of its conduct prior to the settlement.
See also Rice-Stix of Arkansas, Inc., 79 NLRB 1333, 1334-1338.
In the instant case it is conceded that the Respondent complied with the affirma-
tive requirements of the settlement agreement. Unless, therefore, the evidence
establishes the commission of independent unfair labor practices after October 21,
1960, the date of the Respondent's execution of the settlement agreement, we are
precluded from consideration of any conduct of the Respondent prior to that date,
and dismissal of the complaint is required.
The violative conduct charged to the Respondent after October 21, 1960, consists
of support and domination of the Alliance and interference in its formation and
administration, based on the charge in Case No. 13-CA-4046. I have concluded
that the preponderance of the evidence does not support this charge.
Employee suggestions for an independent union antedated the Respondent's.
The evidence reflects substantial employee dissatisfaction with the representation of
Local 221 both before and after the election in June 1960. Presumably those
grievances accounted in some measure for the appearance of the United Plant Guard
Workers on the scene. But there was sentiment too for the establishment of a local
independent union. Prior to the affiliation with Local 221 employees such as Marion
Willard regarded direct connection with a large International union as a mistake,
preferring the formation of an independent organization which could then either
affiliate with a national organization or remain unattached, as the employees chose.
The complaints against Local 221 and expressions of interest in an independent local
union evoked a sympathetic response from the Respondent. The evidence indicates
that, whatever its reasons , the Respondent was also dissatisfied with Local 221 and
also preferred an independent local union-sentiments which it candidly conveyed
to the employees. However, these indications of the Respondent's choice-when
appraised against events since October 21, 1961, to which we are confined-contained
no restraint or coercion.
An employer's statements or intimations of preference as to whether employees
should choose a labor organization, or which one, where unaccompanied by threat
of reprisal or promise of benefit, constitute expression of view, argument, or opinion
protected by Section 8(c) of the statute. N.L.R.B. v. Corning Glass Works, 204 F.
2d 422 (C.A. 1); Stewart-Warner Corporation, 102 NLRB 1153, 1157; Sterling
Faucet Company, 108 NLRB 776, 785; Diamond T Motor Car Company v. N.L.R.B.,
119 F. 2d 978, 982 (C.A. 7); Coppus Engineering Corporation v. N.L.R.B., 240 F.
2d 564, 570-571 (C.A. 1); Mary Kimbrell, et al., v. N.L.R.B , 290 F. 2d 799 (C.A. 4).
In the Diamond T case the court of appeals said:
A mere showing of preference [by an employer for a particular labor organi-
zation] does not constitute unlawful interference. . . . It is only when such
asserted preference amounts to improper influence and approaches a coercive
character that it is to be condemned.
GUARD SERVICES, INC. 1767
And in the Mary Kimbrell case the court said:
. the Act does not enjoin an employer from pressing his view on labor
policies or problems but leaves him free to take any side he may choose pro-
vided he does not coerce or restrain or interfere with the selection of a bargain-
ing representative by the employees.
The Respondent's conduct here consists largely of expression of view and argu-
ment protected by the Act. In this category fall the circular and pamphlet dis-
tributed on December 29, 1960, the statement distributed after the visit of Misner
to Oberlander in January, and declarations by the Oberlanders, described hereto-
fore, indicating the Respondent's preference for an independent union, describing
its advantages, or suggesting its formation. None of these contained any threat of
reprisal or force or promise of benefit. It is found that all the evidenced statements
of the Respondent's representatives since October 21, 1960, oral or written, con-
cerning employee organization are privileged expression of view, argument, or
opinion, and therefore do not constitute and are not evidence of unfair labor prac-
tices. The Board has held that employer "requests" that employees form a com-
pany union are not protected expressions for the reason that "a request is not a mere
statement of employer preference for dealing with a committee or a union of com-
pany employees." (Ballas Egg Products, Inc., 121 NLRB 873.) However, the
Employer's statements in the instant case are found to be expressions of preference
or suggestion and not requests.
This leaves to be considered three items of evidence not in the nature of speech.
These are (1) the Oberlanders' action in giving Willard a list of employees who had
indicated their interest in an independent union, and in giving Misner a list of
eligible employees; (2) Orlo Oberlander' s action in giving Willard the slip of paper
bearing the notation to set up an appointment with Attorney Fraser; and (3) the
preparation of documents by Miss Lee and Miss Mcllvenna at Misner's request.
In my judgment, none of these incidents, either individually or collectively, con-
stitute substantial evidence of 8(a)(2).
In the absence of discrimination or of more substantial elements of purposeful
support than are disclosed here, the supplying to a union representative of a list
of eligible employees, or a list of those favoring a particular form of labor organiza-
tion, is not unlawful under the particular circumstances presented. Whether it
would be so under other circumstances need not be decided.
As to the note concerning Attorney Fraser, this-principally because of the absence
of affirmative repudiatory testimony by the Alliance-is the most ambiguous of the
incidents. However, it has been seen that the record does not afford reliable
basis for a finding that Oberlander suggested Fraser's name or directed or requested
Willard to communicate with him. I have indicated my doubts as to the candor
of the testimony with respect to this incident. Suspicion, however, is not the equiva-
lent of proof. And whatever reservation may be entertained regarding Oberlander's
motives, or his suppositions as to Fraser's pliancy, they should not, without more,
be permitted to reflect on Fraser. The record reveals no connection, professional
or otherwise, between the Respondent and Fraser, or basis for conclusion as to.
understanding or communication between them concerning organization of the
Alliance. We have seen Fraser's statement to the employees at the organizational
meeting to the effect that he did not want to represent a company-dominated union,
and his warning that an organization which depended on the company could not
succeed. The record reflects that in addition he suggested to the employees that
the Respondent was paying them too little. In the circumstances there is no satisfying
warrant for inferring that Fraser was a janissary of the Respondent, or that Ober-
lander's note respecting him constituted substantial evidence of 8(a)(2) conduct.
The clerical work done by Miss Lee and Miss McIlvenna is of a franker and less
obscure character. However, before any adverse inference of assistance can be
drawn from the use of company facilities in behalf of a labor organization, it must
appear that permission for the action can be imputed to responsible company officials,
either from direct evidence or on reasonable conclusion from the circumstances.
The present circumstances do not warrant such imputation.
Miss Lee's typing and duplication of the constitution and bylaws of the Alliance
was done, so far as is disclosed, without the apparent knowledge of any company
supervisor or official. She in fact testified that the first knowledge that Oberlander
had of the work was when a Board investigator came to the Respondent's office
in late February 1961 and took statements concerning it. Miss McIlvenna duplicated
the other documents, which appear to be drafts of a proposed agreement. As a
generic proposition it may be doubted whether an employer's preparation of this
latter material for a labor organization constitutes assistance , though this we need
not determine. For, apart from the fact that the office manager was in the office
at the time, there is no firm indication in the evidence that any official or supervisor
1768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Respondent was aware of the nature of the work being done. It was customary
and permitted for the girls to do work for the employees when free. Miss Lee's
testimony is that she would have done work for the United Plant Guard Workers,
too, if requested by employees. Under the circumstances these incidents do not
appear to reflect illicit assistance to the Alliance, and it is concluded that they do not.
Cf. Ranco, Inc., 109 NLRB 998.
Upon the basis of these findings and conclusions, it is now found that the pre-
ponderance of the evidence does not establish that the Respondent dominated or
interfered with the formation or administration of the Alliance or contributed finan-
cial or other support to it. It will therefore be recommended that the complaint
in Case No. 13-CA-4046 so alleging be dismissed. There thus being no substantial
evidence that the Respondent failed to comply with the settlement agreement of
October 21, 1960, in Case No. 13-CA-3720, or engaged in independent unfair
labor practices since that date, it follows that dismissal of the complaint in that
case is also required, pursuant to the Board's Larrance Tank decision.
The evidence suggests that the employees' disillusioning experience with Local
221 was a substantial factor in their decision to establish an independent local
organization rather than to affiliate with another large national union. If that
decision of the employees is error, the statute protects their right to make it. It is
not the function of the Board to shield employees from the consequences of their
free choice, however unhappy in result, but only to insure that they have the
opportunity to exercise that choice.
Upon the basis of these considerations, it is recommended that the consolidated
complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of the Act.
2. Independent Guard Employees Alliance is a labor organization within the
meaning of the Act.
3.Upon the cognizable record the Respondent has not committed unfair labor
practices within the meaning of Section 8(a)(1), (2), and (3) of the Act.
[Recommendations omitted from publication.]
Petersen Construction Corp.; Southern California Chapter of
the Associated General Contractors of America ; Building
Contractors Association of California, Inc.; Engineering and
Grading Contractors Association, Inc.; and Home Builders
Association and William Van Buskirk
Hod Carriers and Common Laborers Union Bakersfield Local
220, Santa Barbara Local 195, Los Angeles Local 300, Bishop
Local 302, Los Angeles Local 345, Pasadena Local 439, Long
Beach Local 507, Ventura Local 585, Santa Barbara Local 591,
Santa Ana Local 652, Pico Local 696, Hollywood Local 724,
San Bernardino Local 783, Wilmington Local 802, Pomona
Local 806, Los Angeles Local 923, El Centro Local 1119, Los
Angeles Local 1159, Riverside Local 1184, Santa Maria Local
1222, San Luis Obispo Local 1464, and Southern California
District Council of Laborers, affiliated with International Hod
Carriers', Building and Common Laborers' Union of America,
AFL-CIO and William Van Buskirk
Hod Carriers and Common Laborers Union El Monte Local 1082
and William Van Buskirk
134 NLRB No. 152.