J L Holtzendorff Detective Agency, Inc.

National Labor Relations Board - Board Decisions

Dec 11, 1972

200 N.L.R.B. 833 (N.L.R.B. 1972)

HOLTZENDORFF DETECTIVE AGENCY 833
J L Holtzendorff Detective Agency, Inc and Earl
L Kelley
J L Holtzendorff Detective Agency, Inc and
International Union of Guards and Watchmen,
Independent, Petitioner' Cases 21-CA-10389 and
21-RC-12276
December 11, 1972
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On July 26, 1972, Administrative Law Judge2
Maurice Alexandre issued the attached Decision in
this proceeding Thereafter, Respondent filed excep-
tions and a supporting brief The Union and Earl L
Kelley acting jointly, and the General Counsel 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
authority in this proceeding to a three-member panel
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,3 and conclusions of the Administrative Law
Judge, to adopt his recommended Order in Case
21-CA-10389, and to direct a second election in
Case 21-RC-12776 4
Although we adopt the findings of the Administra-
tive Law Judge, we deem it appropriate to comment
on Respondent's exceptions to the Administrative
Law Judge's 8(a)(3) findings These exceptions allege,
inter alia, that Respondent had "no choice" but to
discharge Earl Kelley because, on July 19, 1971,
Pacific Telephone Company, herein called Pacific,
Respondent's only customer in the area, had de-
clared Kelley to be persona non grata to it, and
Respondent had no other customer in the area We
find no merit in these exceptions
As set forth in more detail in the Administrative
Law Judge's Decision, Holas, an agent of Pacific,
received a report on July 19 that a telephone
company employee at Pacific Fifth Avenue facility
had found the tires on her car without air when she
went to pick it up after work Holas investigated the
matter and reported the result of his investigation to
Lee, Respondent's head supervisor, by phone
According to Lee's testimonial account of Holas'
report to him5 and Lee's response thereto, Holas
found that the employee's car had been parked at a
location outside the company lot and that Kelley
could not have observed it in the course of
performing his duties Holas complained, however,
that he had seen Kelley fraternizing with pickets who
were stationed at Pacific's premises by a union
representing Pacific's employees Lee then asked
Holas if he wished to have Lee discharge Kelley
Holas replied that he did not, but that he would like
to have an additional guard sent out that evening
and would like to see someone other than Kelley
assigned as a guard to the Fifth Avenue facility in the
future
Assuming, arguendo, that Lee's account of Holas'
remarks was accurate, its weight as proof that
Respondent was left with "no choice" but to
discharge Kelley must be measured against the
undisputable fact that Respondent continued to use
Kelley as a guard at the 37th Avenue facility of the
telephone company for a period of several days
following its receipt of Holas' "complaint" about
Kelley, 6 that, when Respondent finally discharged
Kelley, it accused him of "goofing off" on his job
even though, as it admitted at the hearing, it had no
valid basis for that accusation, 7 and that it further
assigned as reasons for discharging Kelley his
"breach" of certain rules concerning cap-wearing
and studying on the job despite its admitted
condonation of similar conduct by other employees
and its failure theretofore to reprimand Kelley for
those breaches of its rules Viewing all of Respon-
dent's conduct on and after July 19 as a whole, it
hardly suggests either that Respondent entertained a
fear that its retention of Kelley could adversely affect
' Herein called the Union
2 The title of Trial Examiner was changed to Administrative Law
Judge effective August 19 1972
3 In accepting the conclusion that Respondents preelection statements
included implied threats of reprisal and promises of benefit if the Union
were selected Chairman Miller does not rely upon the statements contained
in Respondent s September 3 1971 memorandum nor on those otherwise
made by Respondents supervisors, which expressed a belief that for
reasons beyond Respondents control Respondent would not be able to
retain the Pacific Telephone Company as a customer under union
conditions
4 Although the Administrative Law Judge severed Case 21-RC-12276
for consideration by the Board we deem it appropriate to consider the issue
and contention therein in this consolidated proceeding
5 Neither Holas nor any other employee of the telephone company was
called as a witness
6 In reaching this conclusion, the Administrative Law Judge noted that
Kelley requested that he be retained to work at the 37th Avenue facility at
least on an assignment which would have given him work for 3 days of each
week and that Respondent could have acquiesced in this request inasmuch
as it employed a number of individuals on a part time basis
7 Lee and Night Supervisor Wood both testified that they independently
satisfied themselves that Kelley had been performing his assigned duties
properly on the evening in question Indeed Kelley had been accompanying
telephone company employees to their cars and having observed the
deflated tires on one of the cars had voluntarily reported the matter
promptly both to Supervisor Wood and to the police When Wood came to
the facility to check on what happened he complimented Kelley on his
handling of the matter
200 NLRB No 121
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its business with Pacific, or that it discharged Kelley
for that reason
Considering all relevant circumstances, including
Respondent's unlawful efforts to defeat unionization
and its prior threat, on or about July 8, to get rid of
Kelley for union-related reasons, we conclude, as did
the Administrative Law Judge, that General Counsel
established a prima facie case that Kelly's discharge
was prompted by antiunion considerations, but that
Respondent did not rebut that case by preponderat-
ing evidence of the existence of independent reasons
justifying its action
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recom-
mended Order of the Administrative Law Judge and
hereby orders that Respondent, J L Holtzendorff
Detective Agency, Inc, San Diego, California, its
officers, agents, successors, and assigns, shall take
the action in the said recommended Order
IT IS HEREBY FURTHER ORDERED that the com-
plaint be dismissed insofar as it alleged violations of
the Act not found herein
IT IS ALSO ORDERED that the election conducted
by mail balloting in Case 21-RC-12276, among
employees in the designated unit of J L Holtzen-
dorff Detective Agency, Inc, be, and it hereby is, set
aside, and a new election be held That case is
hereby remanded to the Regional Director for
Region 21 for the purpose of conducting a new
election at such time as he deems that circumstances
permit the free choice of a bargaining representa-
tive
[Direction of second election and Excelsior foot-
note omitted from publication ]
TRIAL EXAMINER'S DECISION
MAURICE ALEXANDRE, Trial Examiner On July 1, 1971,1
International Union of Guards and Watchmen, Independ-
ent (hereafter called the Union) filed a petition for
certification as the collective-bargaining bargaining repre-
sentative of the guards and watchmen employed by
Respondent in San Diego County On August 12, following
a hearing, the Regional Director issued a Decision and
Direction of Election An election was held by mail, the
ballots were counted on October 1, and the tally of ballots
showed that 11 votes were cast for the Union and 16
against On October 8, the Union filed objections to the
election On October 29, an unfair labor practice charge
was filed by one Earl L Kelley On November 22, a
complaint was issued alleging that Respondent had
violated Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended In its answer filed November
29, Respondent denied the commission of the alleged
unfair labor practices On December 12, the Regional
Director issued a Supplemental Decision and Order in
which he concluded that Objections 1, 4, and 5 filed by the
Union could best be determined in a hearing with the
related allegations of the complaint, and accordingly
consolidated the representation and unfair labor practice
proceedings for the purposes of hearing and decision by a
Trial Examiner
The consolidated proceedings were heard before the
Trial Examiner in San Diego, California, on May 9, 1972
The issues presented by the complaint are whether or not
Respondent unlawfully interfered with, restrained, or
coerced its employees, and whether or not it unlawfully
discharged Kelley
Upon the entire record, my observation of the witnesses,
and the briefs filed by the General Counsel, the Union, and
the Respondent, I make the following
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF RESPONDENT
The following allegations of the complaint have been
admitted by the Respondent
2 (a) At all times material herein, Respondent has
been a corporation engaged in the business of provid-
ing security guards for industrial plants, and has
provided guards for two Pacific Telephone Company
facilities located at 3500 Fifth Avenue, San Diego,
California, and 4041-37th Street, San Diego, Califor-
nia
(b) During its past calendar or fiscal year, Respon-
dent, in the normal course and conduct of its business
operations described in paragraph 2(a) above, per-
formed services valued in excess of $50,000 for
customers located in the State of California , each of
whom, in turn, either annually purchases and receives
goods and materials valued in excess of $50,000 directly
from suppliers located outside the State of California,
or annually sells and ships goods , products, and
services valued in excess of $50 ,000 directly to
customers located outside the State of California
I find the facts to be as admitted, and that Respondent is
an employer engaged in operations affecting commerce
within the meaning of Section 2(6) and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
A Interference, Restraint, and Coercion
On June 18, Respondent sent the following letter to the
Union
In reply to your letter of June 15, 1971, we are a non-
union organization and intend to remain so
Under the circumstances, it would be pointless to meet
with you for any reason
Our employees understand that we are non-union and,
if they want to join , they will have to seek employment
elsewhere
The General Counsel contends that Respondent thereafter
engaged in conduct which violated Section 8(a)(1) of the
Act The evidence relating to such conduct is as follows
1 All dates referred to hereafter relate to 1971 unless otherwise stated
HOLTZENDORFF DETECTIVE AGENCY 835
1 Respondent's poll of its employees
It is undisputed that on or about July 8, Supervisor
Wood, acting on instructions from Lee, his superior,
approached employees on the night shift and requested
them to sign one of two forms One of the forms stated that
those signing it had executed a card expressing interest in
union membership The other stated that those signing had
not executed such a card The General Counsel contends
that the poll of its employees by Respondent was unlawful
because it was conducted while the Union's petition for
certification was pending Respondent's brief does not
discuss the poll I find that such poll was unlawful
Struksnes Construction Co, 165 NLRB 1062, 1063, fn 18
2 Conduct by Harry W Lee
(a) Employee Vega testified that he had three conversa-
tions with Supervisor Lee one immediately after he signed
one of the above-mentioned forms, a second one about
mid-July, and a third one about a week later According to
Vega, during the first conversation Lee told him that
anyone joining the Union would be out of a job because
Mrs Powell, Respondent's executive vice-president, would
not tolerate anyone "signing for the Union " During the
second conversation, according to Vega, Lee told him that
Pacific Telephone Company "would not go" for umomza-
tion by Respondent, that the telephone company could not
pay Respondent extra money for unionized guards, and
that it could obtain guard service from another company at
a lower rate Lee testified that he had been told by an
employee that a union representative had stated that if the
employees joined the Union, they could obtain $2 35 an
hour immediately, and that Lee told Vega that if the Union
could force Respondent to pay that wage rate, "we would
all lose our jobs" because Pacific Telephone Company
does not pay enough to permit Respondent to pay such
wage rate
Inasmuch as Vega, on further interrogation, admittedly
could recall little of the conversations, testified regarding
such conversations in response to several leading questions,
and changed his testimony somewhat on cross-examina-
tion, I find that he was not a reliable witness, and credit
Lee's version of what he said Respondent contends that
Lee's statement was lawful because an employer is entitled
to advise its employees what it "reasonably believes the
effects of unionization will be " I find that the statement
was an unlawful threat In N L R B v Gissel Packing Co,
Inc, 395 U S 575, the Supreme Court stated that to be
entitled to the protection of the First Amendment or
Section 8(c) of the Act, an employer's predictions of the
effects of unionization "must be carefully phrased on the
basis of objective fact to convey an employer's belief as to
demonstrably probable consequences beyond his control "
Lee's statement does not satisfy that test, inasmuch as
there are no objective facts in the record to show that the
implication in Lee's statement, i e , the loss of Respon-
dent's contract with Pacific Telephone Company, was a
demonstrably probable consequence of unionization by
Respondent's employees Almaden Volkswagen, 193 NLRB
No 110 If anything, if appears that such loss was
improbable in view of Respondent's statement, in its
response to the Union's objections to the election, that it
was able to negotiate new rates for its services to the
telephone company in August 2
(b) Employee Chamberlain testified that during a
telephone conversation on July 30 Lee told him if
Respondent's employees unionized, Pacific Telephone
Company would hire another guard company because it
could not afford to pay more than provided in its contract
with Respondent, and that all of Respondent's employees
would thus be without jobs Although Lee denied talking
to Chamberlain about the effect of unionization upon
Respondent's operations, he admitted that in his conversa-
tions with Respondent's "employees, "he repeated substan-
tially what he had told Vega I credit Chamberlain
However, for the reasons stated above, either version of
Lee's remarks constituted an unlawful threat
(c) Employee Walker testified that Lee told him on
several occasions that if the employees unionized, Respon-
dent would have to terminate employees because it "didn't
have enough to pay the employees what would be
required," i e, Respondent did not receive enough for its
services to Pacific Telephone to pay union wages Walker
testified that such occasions occurred in May, June, and
July As noted above, Lee admitted making certain
statements to employees With respect to Walker in
particular, he testified that he stated as follows during
June
Q Did you at any time tell him that he might be
terminated for his union activities?
A Only that if we lost the contract with Pacific
Telephone Company, I said then that we would be out
of ajob
I never threatened and said they would be out of a
job
I said we would be out of a job because Holtzendorff
would pull out down there It is too small They cannot
or couldn't hold on
The two versions are not essentially different In any event,
whichever version was actually spoken, it constituted an
unlawful threat for the reasons stated above
(d) Employee Swan stated that, subsequent to July 8, Lee
told him that as long as he was supervisor, there would
never be a union because he was "sick" of it, and because
prior thereto Respondent could shift employees as it saw
fit, whereas now the employees threatened to take
Respondent "in front of the Labor Board " Lee testified
that he could not recall any conversations with Swan
relating to union activities I credit Swan and find that
Lee's remark contributed an unlawful implied threat
3 Conduct by James Wood
Employee Vega testified that at the time Supervisor
Wood polled him, Wood stated that Respondent would not
tolerate union activities, would "clean house," and hire
new employees, and that Pacific Telephone was against
2 Contrary to Respondents brief Lee did not testify that Monk chief
special agent for Pacific Telephone, had told hun of the possible loss by
Respondent of its contract with the telephone company Lee testified that
Monk told him that Pacific Telephone might be without a contract with the
union representing its own employees because it appeared that that union
ought call a strike
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unionization by Respondent 's employees , could not afford
to pay Respondent additional money, and could get
another guard company at a lower rate Employee Swan
testified that soon after he was polled by Wood, the latter
told him that Respondent would never allow its employees
to unionize , that its guard operation in San Diego was only
a small part of its total business , and that if Respondent
were required to pay all the benefits the Union would
demand , Respondent would discontinue the guard opera-
tion and all the employees would lose their jobs Swan
further testified that in a later conversation , Wood stated
that Pacific Telephone was worried about strikes and
would not hire a unionized guard service , and that if
Respondent's employees were unionized , they would be
"thrown out " Wood testified that he told certain employ-
ees that if the Union 's demands were such that Respondent
could not meet them, all the employees might lose their
jobs According to Wood, he made such remarks to those
employees who admitted an interest in the Union by
signing the prounion poll form The evidence shows that
Vega and Swan signed that form
Employee Chamberlain testified that, several weeks after
his July 30 conversation with Lee, Wood told him that if
Respondent's employees unionized , Pacific Telephone
would probably use another guard service because Respon-
dent could not pay the salary which would be required by
the Union Wood testified that Chamberlain told him that
he was a union man, and that Wood replied that the
employees had the right to join or refrain from joining the
Union
I credit the testimony of Swan and Chamberlain, both of
whom were more impressive witnesses than Wood, and
find that Wood's remarks to each of them were unlawful
However, I do not credit Vega's testimony which, I find,
was unreliable
4 Conduct by Mrs Lee
Employee Kelley testified that, when he refused Wood's
request that he sign one of the two polling forms, Wood
telephoned Lee's residence and asked Lee's wife to
persuade Kelley to sign According to Kelley, Mrs Lee
told him that if he did not support Respondent he
obviously supported the Union, and that he had better sign
or else "we" will find someone else that will Mrs Lee
testified that she usually answers the telephone, never
discusses Respondent's business matters with callers, and
merely gives Lee messages She admitted that Wood told
her about Kelley's refusal to sign the forms, gave self-
contradictory testimony as to whether she turned the
telephone over to Lee,3 and admitted that she talked to
Kelley herself and told him she saw no harm in his signing
one of the forms In view of her self-contradictory and
evasive testimony, I do not credit Mrs Lee and I accept
Kelley's version of her remarks I find that the tenor of
such remarks was that, if Kelley was in favor of the Union,
he would be replaced Such a threat was unlawful if
Respondent is responsible therefor
Employee Walker testified that sometime in June, Mrs
Lee telephoned him and, after questioning him about
persons distributing union literature at the building where
he worked, stated that if Respondent's employees union-
ized, they would be terminated Mrs Lee denied telephon-
ing Walker Her testimony was that Walker telephoned her
on a date she could not recall, that he asked whether
Respondent would write a letter to "the company"
requesting it to send him his mutual fund benefits, and that
she replied that she thought it would be better if he wrote
the letter himself I do not credit Mrs Lee, accept Walker's
testimony, and find that her remarks to him constituted
unlawful interrogation and an unlawful threat if Respon-
dent is responsible for such remarks
The General Counsel contends that Mrs Lee was an
agent of Respondent The latter's brief does not discuss the
issue It is undisputed that Mrs Lee is not an employee of
Respondent Howevei, Respondent's San Diego office is
situated in Lee's home, and the record shows that on a
number of occasions Mrs Lee talked to Respondent's
employees concerning matters relating to their employ-
ment in such a way as to give them reason to believe that
she spoke for her husband and, therefore, for management
The record also shows that Mrs Lee had "hired" an
employee In such circumstances, I find that Respondent is
responsible for Mrs Lee's interrogation and threats
discussed above
5 Respondent's memorandum of September 3,
1971
Sometime in September , Respondent distributed to its
San Diego employees a memorandum which contained the
following paragraph
The introduction of the union into the Company
may cause us to lose contracts such as we have, and
then there will be no jobs for anyone In the event of
the Company having to negotiate with the union, the
Company does not even have to provide the benefits
that presently exist , such as the wage scale , the Profit
Sharing and Retirement Plans
Respondent contends that the quoted paragraph contains
pernussible statements I disagree The first sentence
quoted does not meet the test established in Gissel, supra,
since there is no objective evidence which would show that
a demonstrably probable consequence of unionization of
Respondent's employees would be the loss of its contract
with the telephone company and the concomitant necessity
for terminating the employees ' fobs The second sentence
in Respondent 's memorandum, when read in connection
with an earlier paragraph pointing out that Respondent "is
in control of the business , and wages," is similarly not
protected because it implies that Respondent might reduce
existing wages and other employee benefits if the Union
were selected as the majority bargaining representative I
accordingly find that the quoted paragraph contained
unlawful threats
6 The memorandum relating to a wage increase
Sometime between August 15 and 28, Respondent
distributed to its employees a memorandum which con-
tained the following statement
3 Lee testified that he did not talk to Kelley that night
HOLTZENDORFF DETECTIVE AGENCY
As you may know, we planned to give a five cent an
hour raise to all our employees who had not had a raise
for ninety days or more Because of the freeze , it has to
wait
In another memorandum distributed to its employees on or
about August 28, Respondent stated
Before the freeze came about, we had decided to
raise all of the eligable [sic] employee's [sic] as of
August 21st, 1971 But now this is not possible We
sincerely hope that all of our employee' s [sic ] will bear
with us until the freeze is over, at which time the pay
raises will become effective immediately
Powell, Respondent's executive vice president, testified
that Respondent had planned to give a 5-cent raise as soon
as it could obtain an increase in its contract rates,
presumably from Pacific Telephone, that there were
employee inquiries about a wage raise in March, perhaps in
February and probably in May, that she talked to a
number of Respondent's Los Angeles employees about a
wage increase , but did not recall having talking about it
with San Diego employees, and that she thought she had
told Lee, on a date she could not recall, that Respondent
"hoped" there would be a wage increase Lee testified that
he first heard about Respondent's intention to give a raise
in mid-August
Respondent contends on its brief that because Powell
had told "certain" employees that they could expect a wage
increase when new rates were negotiated with the tele-
phone company in mid-1971, and because the wage freeze
precluded granting the wage increase, some notification to
the employees was required Respondent further asserts
that its notification was not an announcement of granting
of benefits but an announcement to the contrary, that it
was not intended to interfere with the election, and that it
merely constituted a truthful statement of the situation
caused by the wage freeze
It is clear that the memoranda promised the San Diego
employees that as soon as the freeze was removed,
Respondent would give them the wage increase which it
had planned but was unable to effectuate because of the
freeze There is no evidence in the record to support
Powell's self-serving testimony that Respondent had in fact
decided upon, or indeed had considered, a wage increase
for the San Diego employees prior to the issuance of the
memoranda But even if there were such evidence, the
record fails to show that Respondent had at an earlier time
stated to its San Diego employees anything about a wage
increase Thus, there appears to be no legitimate business
reason why it was necessary to mention a wage increase to
those employees in August, i e, during the period of the
election by mail Absent a satisfactory explanation as to
why the announcement could not have been made after the
election, I find that its purpose was to influence the San
Diego employees to vote against the Union Cf N L R B v
Newman-Green, Inc, 401 F 2d 1 (C A 7), NLRB v
Tennessee Packers, Inc, 379 F 2d 172, 181 (CA 6)
Accordingly, I find that the memoranda were unlawful
In sum, I find that by the conduct found above to be
unlawful, Respondent interfered with, restrained, and
coerced its employees in violation of Section 8(a)(1) of the
Act
837
B The Discharge of Earl L Kelley
Kelley, a college student, was hired as a guard by
Respondent on February 23, and was assigned to night-
work at two Pacific Telephone Company buildings in San
Diego One building was located at 3500 Fifth Avenue,
where he worked on Sunday and Monday, the other was at
4041-37th Street, where he worked on Tuesday, Wednes-
day, and Thursday His duties consisted of watching the
buildings and adjacent parking lots, and of escorting
female employees of the telephone company while they
walked from the buildings where they were employed to
their automobiles in the parking lots
In the latter part of May, Kelley signed a union
authorization card As already noted, he refused to sign the
polling forms tendered by Wood and was threatened by
Mrs Lee on or about July 8 Lee testified that he was told
by his wife that Kelley had asked what good it would do to
sign the forms, that Wood returned the forms to Lee, that
Lee printed Kelley's name on the proumon form because
he felt that Kelley favored the Union, and that Lee
probably informed his Los Angeles office of the number of
employees who favored the Union and the number who
opposed it
Kelley was discharged on July 23 The evidence
surrounding the discharge is as follows During July,
employees of Pacific Telephone in San Diego engaged in a
strike and picketed the building at Fifth Avenue Kelley
testified that on Monday night, July 19, upon escorting two
employees to their automobiles parked near that building,
he observed that the air had been let out of some of their
tires, that he informed the police and Wood of the
incident, that Wood came to the building, thanked him for
the information, and stated that a telephone special agent
would talk to Kelley about the matter, that Holas, a special
agent of Pacific Telephone, arrived and spoke to Kelley
angrily, but that when Kelley explained his duties, Holas
apologized
Lee testified that on the night of July 19 he received a
telephone call from Holas, who reported that he had been
told by the night supervisor that she had seen a woman
letting air out of tires of cars belonging to employees who
had crossed the picket line, and that the night supervisor
did not know where Kelley was, that Holas further told
Lee that when he arrived at the Fifth Avenue building, he
found Kelley laughing and joking with the pickets, that
Holas stated that he did not want Kelley back at the Fifth
Avenue building any more, but that Holas did not request
that Kelley be discharged Lee further testified that he then
telephoned Wood and told him to investigate the matter,
that on Tuesday, July 20, Lee himself made an investiga-
tion and received information that Kelley had been
studying on the job and that some of the employees were
compelled to obtain Kelley's attention in order to request
escort service to their automobiles Lee gave conflicting
testimony as to when he decided to discharge Kelley He
first testified that he made his decision on Monday night,
following his conversation with Holas On further interro-
gation, he gave somewhat confusing testimony which
appears to indicate that he made the decision after his
investigation on Tuesday
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wood testified that he was told by Lee during their
conversation on Monday night that Kelley would have to
be terminated He also testified that , within a half hour
after talking to Lee that night , he went to see Kelley, who
stated that Holas had been there and had "gotten on him
about talking to the pickets ," and that the air had been let
out of some tires , that Wood was unable to find cars with
deflated tires , that he told Kelley the matter would be
investigated , and that he reported to Lee that there was
nothing going on at the time
Lee testified that "about" Tuesday, July 20, he told
Wood to discharge Kelley at the end of his shift on Friday,
July 23, because of his activities on the preceding Monday,
and that he did not tell Wood to say to Kelley that he had
been studying on the job too much He admitted , however,
that in a prehearing affidavit he had stated that he
instructed Wood to tell Kelley that he was being fired
"because of being caught with the pickets and because he
was studying too much " Wood testified that Lee instruct-
ed him on Tuesday or Wednesday to discharge Kelley, and
that, at the time he informed Kelley of his discharge, Wood
told him that he was there to pick up his badge because he
was talking to pickets while he should have been watching
the parking lot
Kelley testified that at about 1 45 a in on Friday, July
23, Wood told him that he was discharged because it had
been reported to Wood that Kelley had been talking to
pickets, and that Wood said something to the effect that
Holas was the one who asked Wood to have Kelley "taken
off the fob " Kelley further testified that, when he rejected
the reason stated for the discharge, Wood added that
Kelley had not been wearing his uniform cap while on
duty, and when Kelley replied that Wood had never before
told him to wear the cap, Wood told him that he had been
studying on the job Kelley also testified that he asked
Wood why he could not work at the 37th Street building,
but that Wood told him to turn in his badge
Wood then told Kelley that he could talk to Lee about
the discharge Kelley telephoned Lee, stated that the
reasons given for the discharge did not seem logical and
asked why he was being fired Kelley testified that Lee
replied that he should turn in his badge Lee testified that
when Kelley asked why he was discharged Lee replied that
it was because he was "goofing off" with the pickets and
not paying attention to his job on the preceding Monday
The General Counsel contends that Respondent dis-
charged Kelley because it suspected him of supporting the
Union Respondent contends that it discharged Kelley for
failure to perform his duties, i e , talking with pickets
instead of watching the parking lot, and reading during
working hours I find that in discharging Kelley, Respon-
dent was motivated in part by its suspicions regarding
Kelley's role in promoting the Union
I have little doubt that Kelley's studying during
worktime and his failure to wear his cap while on duty
played no part in Respondent's motivation Lee admitted
at one point that he decided to discharge Kelley on
Monday night, i e, before he learned about Kelley's
studying It is true that Respondent's written rules forbade
reading on the job But irrespective of whether or not Lee
had expressly given Kelley permission to study during
worktime, as Kelley testified, the record establishes that
Respondent had knowingly permitted breach of the rules
by employees, including Kelley, and had not theretofore
discharged employees who disobeyed them As for the
failure to wear his cap, Kelley credibly testified that he had
rarely worn it while on duty, a fact which Respondent's
supervisor must have known Moreover, the only mention
of such failure as a reason for the discharge was by Wood
I find that Kelley's studying and failure to wear his cap
while on duty were mere afterthoughts advanced as
pretexts
This leaves the assertion by Respondent that it was
motivated by Holas' complaint about Kelley I am inclined
to credit Lee's testimony that Holas made the complaint,
inasmuch as Kelley admitted that he spent some time
talking to pickets on the night of July 19 I am of the view,
however, that the complaint was not Respondent's sole
reason for discharging Kelley
There is an indication in the record that Respondent's
main customer in San Diego was Pacific Telephone
Company Respondent states in its brief that without that
customer it "would be out of business" in San Diego It
then implies that it had no choice but to discharge Kelley,
since "Holas did not want Kelley as a guard on Telephone
Company property " However, Lee admitted that Holas
did not seek Kelley's discharge, and testified that Holas
merely requested that Kelley not be used again at the Fifth
Avenue building Assuming that Holas in fact made such
request, the record shows that Respondent did not give
Kelley an opportunity to furnish his version of the
circumstances by asking him for an explanation At the
same time, Lee admitted that he had no proof to support
his expressed view that Kelley was not engaged in escorting
employees at the time of the tire deflation incident He also
admitted that if Kelley was in fact escorting employees at
that time he could not have seen the incident In addition,
Respondent has not explained satisfactorily why it gave no
thought to switching Kelley with another guard so as to
permit Kelley to work at the 37th Street building Nor has
it satisfactorily explained why it could not have retained
Kelley for part-time work at that building Lee testified
that he could offer a new employee only 16-1/2 hours of
work a week, but "had to have a full 44 hours to have
another guard take over "4 Yet he admitted that Respon-
dent employed part-time guards at the time Kelley was
discharged
These considerations , when viewed together with the
pretextual afterthoughts already discussed as well as
Respondent's letter of June 18 to the Union, require the
conclusion that Holas' complaint was not the only reason
for discharging Kelley The record shows that Pacific
Telephone was experiencing labor problems at the time in
question , and that fact undoubtedly heightened Respon-
dent's desire to avoid unionization of its own employees
So far as the record shows, Kelley was the only employee
polled by Respondent who declined to reveal his views
concerning the Union In all the circumstances , including
4 Lee testified that Kelley worked 3 days a week for a total of 27 3/4
hours at the 37th Street building and 2 days a week for a total of 16 1/2
hours at the Fifth Avenue building
HOLTZENDORFF DETECTIVE AGENCY 839
Mrs Lee's threat to Kelley, it is reasonable to infer that
Respondent suspected that Kelley was the leading propo-
nent of the Union among the guards Given that suspicion,
it was entirely understandable that Respondent would wish
to get rid of a leading union adherent who had already
incurred the displeasure of Respondent 's chief customer
In all the circumstances, I find that Respondent was
motivated in part by such suspicion and, therefore, that the
discharge of Kelley violated Section 8 (a)(3) and ( 1) of the
Act
2 By unlawfully discharging Kelley, as found herein,
Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act
3 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
4 Respondent did not violate the Act by any conduct
not found herein to constitute an unfair labor practice
VI THE REMEDY
IV THE OBJECTIONS TO THE ELECTION
A Objection 1 asserted that, on or about September 27,
one "Perry Lee" and Wood each made a threat to
employee Chamberlain that Respondent would fire any
man who voted for the Union, that, on or about September
29, "Perry" repeated his threat to Chamberlain, that Lee
made the same threat to employees Walker and Swan on or
about June 15 and September 27, respectively, and that on
July 1, employees Kelley and Smith were fired for signing
union pledge cards
The record does not establish that threats were made by
anyone named "Perry" Lee, that the precise threats set
forth in Objection I were made by Harry Lee or by Wood,
or that any threats were made by the latter two individuals
in September In addition, the record contains no evidence
relating to the discharge of anyone named Smith
However, the record does establish that, on various dates
after the Union's petition was filed on July 1, Harry Lee
and Wood did make coercive threats to employees As
further found above, the record establishes that Respon-
dent unlawfully discharged Kelley on July 23
B Objection 4 recited that, in a memorandum sent to
employees on or about August 30, Respondent announced
that it intended to increase wages by 5 cents an hour, in
order to influence the employees in their choice of a
bargaining representative As found above, that contention
has merit
C Objection 5 recited that Respondent, in a communi-
cation dated September 3, threatened its employees with a
loss of benefits if the Union won the election As found
above, the said communication contained coercive threats
D I find that the above coercive threats, the announce-
ments relating to a wage increase, and the discharge of
Kelley constituted significant interference with the employ-
ees' free choice in the election conducted in Case
21-RC-12276 Although the objections did not assert
precisely each and every one of these acts of interference,
all of such acts may form the basis for setting aside the
election Sprague Ponce Co, 181 NLRB 281, 282, Dawson
Metal Products, Inc, 183 NLRB No 25 Accordingly, I
recommend that the said election be set aside
V CONCLUSIONS OF LAW
1 By interfering with, restraining, and coercing em-
ployees, as found herein, Respondent engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act
In order to effectuate the policies of the Act, I find that it
is necessary, and recommend, that Respondent be ordered
to cease and desist from the unfair labor practices found,
and from in any other manner interfering with, restraining,
or coercing its employees
Affirmatively, I recommend that Respondent offer to
Kelley immediate and full reinstatement to the position
which he held at the time of his discharge or, if that
position no longer exists, to a substantially equivalent
position, without prejudice to his seniority and other rights
and privileges I further recommend that Respondent make
Kelley whole for any loss of earnings suffered because of
the discharge, by paying to him a sum of money equal to
that which he would have been paid by Respondent from
the date of his discharge to the date on which Respondent
offers reinstatement as aforesaid less his net earnings, if
any, during the said period The loss of earnings under the
order recommended shall be computed in the manner set
forth in F W Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co, 138 NLRB 716
Inasmuch as it does not appear that Respondent
maintains a place of business in San Diego to which its
employees are required to report from time to time, the
usual posting requirements are inappropriate 5 According-
ly, I recommend that Respondent mail copies of the notice
annexed hereto and marked "Appendix" to each of its
employees
Upon the foregoing findings of fact , conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended 6
ORDER
Respondent, J L Holtzendorff Detective Agency, Inc,
its officers , agents, successors , and assigns, shall
1 Cease and desist from
(a) Unlawfully interrogating, polling, threatening, or
promising benefits to its employees
(b) Unlawfully discharging employees, or otherwise
unlawfully discriminating in regard to their hire, tenure of
5 The record shows that Respondent s San Diego office is in the home of
I ee
s In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board the findings
conclusions and recommended Order herein shall as provided in Sec
102 48 of the Rules and Regulations be adopted by the Board and become
its findings conclusions and Order and all objections thereto shall be
deemed waived for all purposes
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment , or any term or condition of employment APPENDIX
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of any right
guaranteed in Section 7 of the Act
2 Take the following affirmative action
(a) Offer to Earl L Kelley immediate and full reinstate-
ment to his former position or, if that position no longer
exists, to a substantially equivalent position, and make him
whole for any loss of earnings he may have suffered by
reason of Respondent's discrimination against him, in the
manner set forth in the section herein entitled "The
Remedy "
(b) Notify the above-named employee, if presently
serving in the Armed Forces of the United States, of his
right to full reinstatement upon application in accordance
with the Sective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces
(c) Preserve and make available to the Board or its
agents on request, for examination and copying, all payroll
records and reports, and all other records necessary to
analyze the amount of backpay due and the right of
reinstatement under the terms of this recommended Order
(d) Mail a copy of the attached notice marked "Appen-
dix" to each of its employees 7
(e) Notify the Regional Director for Region 21, in
writing, within 20 days from the receipt of this Decision
what steps have been taken to comply herewith 8
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act not
found herein
It is also ordered that Case 21-RC-12276 be, and it
hereby is, severed from this proceeding and transferred to
the National Labor Relations Board
I In the event that the Board s Order is enforced by a Judgment of a
United States Court of Appeals the words in the notice reading Posted by
Order of the National Labor Relations Board shall be changed to read
Posted pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board
S In the event that this recommended Order is adopted by the Board
after exceptions have been filed this provision shall be modified to read
Notify the Regional Director for Region 21 in writing within 20 days
from the date of this Order what steps have been taken to comply
herewith
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all employees
these rights
To engage in self-organization
To form, join or help unions
To bargain collectively through a representative
of their own choosing
To act together for collective bargaining or other
aid or protection, and
To refrain from any or all of these things
WE WILL NOT do anything that interferes with these
rights
WE WILL NOT unlawfully discharge employees, or
otherwise discriminate against them, because of their
union activities
WE WILL NOT unlawfully interrogate, poll, threaten,
or promise benefits to our employees
WE WILL OFFER to restore Earl L Kelley to his job
and pay him for all the wages he lost because of his
discharge
Dated By
J L HOLTZENDORFF
DETECTIVE AGENCY, INC
(Employer)
(Representative) (Title)
WE WILL notify immediately the above-named individual,
if presently serving in the Armed Forces of the United
States, of the right to full reinstatement, upon application
after discharge from the Armed Forces, in accordance with
the Selective Service Act and the Universal Military
Training and Service Act
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, Eastern Columbia Building,
849 South Broadway, Los Angeles, California 90014,
Telephone 213-688-5229