J.J Security, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 1290 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. J. Security, Inc. and Milton P. Hanson and Secu-
rity Personnel Collective Association (S.P.C.A.)
and Ronald Bess. Cases 30-CA-4851 and 30-
CA-4922
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELL.O
On May 28, 1980, Administrative Law Judge
Leonard M. Wagman issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief in support of the Administra-
tive Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,I find-
ings, 2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, J. J. Security,
Inc., LaCrosse, Wisconsin, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the said recommended Order, except that the at-
tached notice is substituted for that of the Adminis-
trative Law Judge.
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc.. 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951) We have
carefully examined the record and find no basis for reversing his findings.
2 In affirming the Administrative Law Judge's finding that the August
21, 1978, letters sent by Respondent to the employees were not valid
offers of reinstatement and violated Sec. 8(a)(1) of the Act because of the
condition imposed, namely, for the employees to forego their Sec 7
rights when reinstated, we have considered Respondent's contention that
the Administrative Law Judge's interpretation of the phrase "consistent
with our discussions of August 17" is unfounded. We disagree. While
other interpretations of the phrase may be possible, we find that the Ad-
ministrative Law Judge's interpretation is a reasonable one under the cir-
cumstances In any event, even assuming that this interpretation is ques-
tionable. Respondent drafted the letter containing this phrase, and is,
therefore, held to the various interpretations, including the one which
deems it to be an invalid offer containing an illegal condition According-
ly, for this reason and for those set forth by the Administrative Law
Judge, his finding in this regard is affirmed
252 NLRB No. 180
APPENDIX
Norlci To EMPrl.oYIES
POSTED BY ORDER OF1 THE
NATIONAl. LABOR REl.ATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through represen-
tatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WII.L NOT constructively discharge em-
ployees, refuse to reinstate them, or otherwise
discriminate against our employees with re-
spect to hire or tenure or any term or condi-
tion of employment because they act together
for their common interest or protection.
WE WIl. NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights set forth above.
We have offered reinstatement to employees
Milton P. Hanson, Clarence Childers, Eugene
Stark, and Robert Poellinger to their former
jobs, and WE WILL make them whole with in-
terest for any loss of pay they may have suf-
fered, resulting from their constructive dis-
charge and our refusal to reinstate them there-
after.
WE WILL make employee Ronald Bess
whole for any loss of pay resulting from his
constructive discharge and the Company's
continuing refusal to reinstate him up until
September 27, 1978.
WE WILL make employee Roger Erickson
whole for any loss of pay resulting from his
constructive discharge and the Company's re-
fusal to reinstate him up until December 31,
1978.
J. J. SECURITY, INC.
1290
J J. SECURITY. INC.
DECISION
STA IFIMINT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge:
This proceeding was heard before me at LaCrosse, Wis-
consin, on February 6,7, 14, and 15, 1979, pursuant to the
captioned complaints which were issued, respectively, on
September 22, and November 2, 1978,' consolidated on
November 3, and amended at the hearing. The original
charge in Case 30-CA-4851 was filed by the charging
parties, Milton P. Hanson and the Security Personnel
Collective Association (herein the Union), on August 28.
The Charging Parties filed a first amended charge and a
second amended charge on September 7 and 22, respec-
tively. Thereafter, on October 12, Ronald Bess, an indi-
vidual, filed the charge in Case 30-CA-4922. The com-
plaints, as amended, alleged violations of Section 8(a)(1)
and (3) of the National Labor Relations Act, as amend-
ed, herein called the Act, in that J. J. Security, Inc.
(herein the Company), discriminatorily discharged em-
ployees Milton P. Hanson, Clarence Childers, Eugene
Stark, Ronald Bess, Robert Poellinger, and Roger Erick-
son "because of their union and/or protected concerted
activities," by refusing since on or about September 6 to
reinstate employees Childers, Stark, Bess, Erickson, and
Poellinger, and beginning on September 6, and continu-
ing to on or about September 11, refusing to reinstate
employee Hanson, all because the employees participated
in union or other protected concerted activity. The con-
solidated complaint also alleges that the Company violat-
ed Section 8(a)(3) and (I) of the Act by discharging em-
ployee Ronald Bess on or about September 27, because
he engaged "in union and/or protected concerted activi-
ties." Finally, at the hearing, the General Counsel
amended the complaint in Case 30-CA-4851 by alleging
that the Company violated Section 8(a)(l) of the Act by
offering a benefit to employees if they would abandon
their protected, concerted activity. The Company, by its
timely answers, denied the commission of any alleged
unfair labor practices.
Upon careful consideration of the entire record,2 my
observation of the witnesses as they testified, and the
post-hearing briefs received from the General Counsel
and the Company, respectively, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
From the pleadings, I find that the Company, J. J. Se-
curity, Inc., a Wisconsin corporation, at all times materi-
al herein, provided security, crash, fire, and rescue ser-
vices at the LaCrosse, Wisconsin, Municipal Airport.
During calendar year 1977, which was a representative
period, the Company performed services valued in
excess of $50,000 for firms which were themselves en-
gaged directly in interstate commerce.
The Company concedes, and I find from the foregoing
data, that the Company is, and has been at all times ma-
All dates hereafter refer to 1978., unless otherwise stated.
2 Errors in the transcript have been noted and corrected.
terial herein, an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE l.ABOR ORGANIZATION INVOL.VED
I find from the pleadings that at all times material
herein, the Union, Security Personnel Collective Associ-
ation (S.P.C.A.), has been, and is now, a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE UNFAIR l.ABOR PRACTICES
A. The Constructive Discharges
I. The facts
On August 15, 1978, company employees Ronald Bess,
Robert Poellinqer, Clarence Childers, Roger Erickson,
Ronald Hanson, and Eugene W. Stark, who were em-
ployed at the Company's crash, fire, rescue, and security
station at LaCrosse Municipal Airport, discussed among
themselves their displeasure with what they considered
were insufficient wages and excessive working hours.
The six employees decided to ask the Company to in-
crease their wages by $5 an hour and to reduce their
working hours to 56 per week. The employees decided
to seek a meeting with the Company's owners, Executive
Vice Presidents C. Joseph Stodola and Norman M. Wa-
termolen.
Erickson, Childers, Stark, and Ronald Bess confronted
their immediate supervisor, Chief Gerald L. Beeney,3
and told him that they wanted wages of $5 an hour and
a 56-hour workweek and asked Beeney to set up a meet-
ing between the six employees and the Company's
owners, Stodola and Watermolen. 4
According to Beeney, on direct examination, the em-
ployees stated that if they did not receive the desired im-
provements in wages and hours they would quit. On
cross-examination he listed two employees who used
"quit" but could not recall what the other four said.
Childers, who participated in this conversation, could
not testify with certainty what the employees threatened.
At another point he provided support for employee Bess'
testimony that the employees said that they would "walk
off," if the Company refused to reduce their workweek
and grant the $5 hourly wage. At one point he agreed
that the word "quit" was used. However, the six em-
ployees did not have a spokesman. They all talked to
Beeney at will.
Employee Stark first testified that he could not "recol-
lect" any of the employees telling Beeney that if they did
I My findings regardinq the identity of the employees who confronted
Beeney on August 15 are based upon the testimony of Ronald Bess. I
have rejected Clarence Childers and Eugene W. Stark's testimony that
employee Hanson was present at this confrontation. Hanson who ap-
peared to he a more careful witness, testified that he was "at home" on
August 15
' Stark testified that Beeney expressed sympathy toward the employ-
ees' cause and expressed a desire to help them Beeney denied discussing
any of the substance of the employees' complaints. None of the other em-
ployees present at this conversation corroborated Stark's testimony in this
regard These factors plus Stacey's manifest hostility toward Respon-
dent's counsel on cross-examination persuaded me to reject Stark's uncor-
roborated testimony regarding Beeney's remarks during the conversation
of Auqust 15 with the six employees
1291
DECISIONS ()F NATIONA. ABOR RELATIONS BOARI)
not attain their request that they would quit. He conced-
ed that the employees might have threatened to leave.
However, on further direct examination Stark denied
that ay employees threatened to leave. Later, on cross-
examination Stark testified that on August 15 the em-
ployees told Beeney that if they did not obtain the im-
provements in wages and hours as requested that they
would "leave" on August 18 at 8 a.m. There is no testi-
mony that any of the employees in their confrontation
with Beeney on August 15, used the word "strike." I
find that the employees used "quit," "walk off," and
"leave" in their discussion with Chief Beeney on August
15. I also find from the uncontradicted testimony of Sto-
dola and Beeney that when the latter telephoned Stodola
to convey the employees sentiments, he advised Stodola
that unless the Company acceded to the employees' de-
mands they intended to quit as of the morninq of August
18. Stodola agreed that he and Watermolen would meet
on the morning of August 17 with the six LaCrosse Air-
port security and CFR employees.
Before leaving from his Green Bay, Wisconsin, office
to meet with his six employees at the LaCrosse Munici-
pal Airport, Executive Vice President C. Joseph Stodola
prepared six documents bearing the title "RESIGNA-
TION." The resignation provided for Robert Poellinger
was received in evidence as an example of the resigna-
tion form provided each of the other 5 employees Poel-
linger's resignation form read as follows:
1, Robert Poellinqer, hereby resign from my em-
ployment on the LaCrosse Crash/Fire/Rescue Unit
of J. J. Security, Inc., effective 8:00 a.m., Friday,
August 18, 1978, unless my regular hourly wage is
increased from $3.01 per hour to $5 per hour.
Dated August 17, 1978
ROBERT POEI.INGER
Prepared in duplicate. Original to Company. Copy
to Employee.
On the morning of August 17, Stodola and Watermo-
len arrived at their LaCrosse Municipal Airport facility
where they found the six employees waiting. There is no
dispute as to what occurred durinq their encounter with
the LaCrosse employees. Stodola and Watermolen insist-
ed upon meeting with each of the employees separately
in an office before embarking upon a group discussion.
Each of the six employees met separately with Stodola
and Watermolen in Chief Beeney's office. Employee Cla-
rence Childers, the first employee to enter the office, ex-
pressed reluctance to sign the resignation. However, Sto-
dola pushed the form in front of him and ordered him to
sign it. Childers complied and left the office. When em-
ployee Stark entered the office Stodola told him to sign
the document "before we talk." Stark signed and depart-
ed. When Ronald Bess entered the office Stodola and
Watermolen told him to sit down and sign the resigna-
tion. Bess asked if he could say something about the
paper in front of him. The two company officers told
him, "No, we will meet as a group later, sign it." When
Poellinger entered the office, Stodola solicited his signa-
ture on the resignation form, telling him, "To make it
legal." Poellinqer signed the document without reading
it, left the office, and told another employee to go in.
When Erickson, upon entering the office, received the
resignation form, read it, and signed it at once.
Employee Hanson when confronted with the resigna-
tion asked, "Can we negotiate this?" Stodola and Water-
molen commanded him, "Sign it." As he left Hanson
protested that it was unfair to require the employees to
sign such a document without counsel. Neither Stodola
nor Watermolen answered.
After the six employees had signed resignations, they
met as a group with Stodola, Watermolen, and Beeney.
The employees spoke individually, airing complaints
about duties, conditions of employment, hours, and
wages. However, I find from Vice President Stodola's
testimony that "Their primary complaint was income."
The employees demanded that their wages be increased
to $5 per hour and that their work week be limited to 56
hours.
Stodola showed the employees a cost accounting of
the LaCrosse operation. He explained that the Company
was losing approximately $1,000 monthly at the La-
Crosse Airport and asked them to be patient until De-
cember 31, 1978, at which time the Company expected a
new contract which might permit a wage increase to ap-
proximately $3.64 per hour. Stodola also stated that the
Company would grant the LaCrosse employees such ad-
ditional fringe benefits as the contract would then
permit. Stodola and Watermolen announced that they
were departing for lunch. They counseled the men to
discuss the wage increase among themselves and pre-
pared to present their position to Stodola and Watermo-
len after lunch.
After Stodola, Watermolen, and Beeney departed, the
six employees caucused. They agreed to accept a $5
hourly wage.
Stodola, Watermolen, and Beeney returned to the
Company's LaCrosse Airport facility after lunch. The six
employees confronted Stodola, Watermolen and Beeney
with their willingness to accept a $4 hourly wage rate.
They also warned that if the Company did not honor
that wage demand, the employees would service the first
North Central Airlines fliqht at 8 a.m. on August 18 and
would then leave the airport. Stodola and Watermolen
rejected the employees' wage demand and left the air-
port facility.
On the morning of August 18, employees Poellinger,
Bess, and Erickson reported for work, serviced the 8
a.m. North Central Airlines flight, and instructed re-
placement employees on the operation of company
equipment. Upon completion of these tasks, Poellinger,
Bess, and Erickson left the airport. Employee Eugene
Stark also worked at the airport on the morning of
August 18 and walked out with Poellinger, Bess, and
Erickson. Beginning that same day and until September
6, employees Bess, Childers, Erickson, Hanson, Poel-
linger, and Stark picketed at the entrance to the La-
Crosse Municipal Airport.
I find from Chief Gerald C. Beeney's testimony that in
the course of the meeting of August 17, Stodola told the
six employees "several times" that he would revoke their
1292
J. J SLECUlRITY INC
resignations if they would reconsider their wage
demand."5
On August 21, the Company sent the following letter
to each of the six employees:
It is our understanding that on August 18, 1978, at
approximately 8:30 a.m., you individually terminat-
ed your employment with J. J. Security.
We are willing at this time to permit your return to
your position consistent with our discussions on
August 17. Please advise us no later than 4:30 p.m..
Thursday, August 24, as to whether you wish your
previously tendered resignation to continue to be ef-
fective.
Executive Vice President C. Joseph Stodola signed each
of the six letters.
By his letter of August 24, attorney James G. Birn-
baum, on behalf of the six employees, repudiated the em-
ployees' letters of resignation, asserted their right to bar-
gain collectively with the Company concerning wages,
hours, and conditions of employment, and to strike until
the Company bargained in good faith. In the same letter,
attorney Birnbaum claimed that the Union had the sup-
port of all six employees. He also conveyed the Union's
demand for recognition and bargaining, as the exclusive
bargaining representative of those employees. On August
28, the Company rejected the Union's request for recog-
nition and bargaining.
On September 6, the Company received the six em-
ployees' unconditional offer to return to work that same
morning. On September I I, the Company, by its attor-
ney, responded as follows:
In your capacity as individual representative of
the below named individuals and in response to
your phone-delivered telegram of September 6,
1978, which was received in my office on that date
at 8:25 A.M., written confirmation received later
that morning, please be advised that the positions
previously held by Clarence Childers, Roger Erick-
son and Robert Poellinger, as Shift Captains, were
permanently filled on or before September 5, 1978.
The positions previously held by Milton Hanson,
Eugene Stark and Ronald Bess, as fire fighters,
were permanently filled on or before September 5,
1978.
We have been subsequently advised that one of
the firefighter replacements has quit. There is as
such an opening for one firefighter. Milton Hanson,
s On cross-examination by counsel for the General Counsel. Chief
Beeney testified that Stodola said he did not want the employees to quit
Absent from his testimony was any reference to the employees wage
demand. Not content to let the mailer rest, counsel for the General
Counsel asked Chief Beeney, "Are you saying that he said he'd take back
the resignations if they would back down about leaving ' Is that the gist
of what you recall him saying?" Beeney answered. "Basically, yes, sir"
My impression was that Chief Beeney's testimony on direct examinatlion
was the more reliable ersion of Stodola's remarks My evaluation of Sto.
dola's testimony rests upon my observation that Beeney appeared more
relaxed when examined by he Company's counsel and appeared to be
giing his best recollection of Stodola's remarks On cross-examinalion
Beene); appeared to he somewhat tense and hasty, particularly he he
agreed to the "Gist" suggested by counsel for the General Counsel
as senior employee in that position, may immediate-
ly return to work. Mr. Hanson should contact Chief
Beeney immediately to arrange for his return to
work. Chief Beeney may be contacted at 608-785-
2480.
It is the Employer's position that the position of
Shift Captain is supervisory and that Messrs.
Childers, Erickson and Poellinger are supervisors
within the meaning of Section 2(11) of the National
Labor Relations Act. As such, the Act requires no
offer of reinstatement to those individuals. It is our
position that Mr. Bess has engaged in misconduct
which may bar reinstatement. Upon completion of
our investigation of such misconduct, our formal
position on Mr. Bess' status will be communicated
to you and Mr. Bess. Mr. Stark is being placed on a
preferential hiring list and will be contacted should
an opening occur.
Copies of a letter confirming the contents of this
telegram are being sent this day to each of the
above named individuals. Milton Hanson returned
to work on September 13.
Thereafter, the Company offered reinstatement to
Poellinger on November 10, Childers on November 14,
and Erickson on December 1. The Company made no
offer of reinstatement to either Bess or Stark. Poellinger
returned to work on or about November 13. Childers de-
clined the offer on an unspecified date. Erickson accept-
ed the offer of reinstatement on December 4. The Com-
pary's contract with the City of LaCrosse, Wisconsin,
expired on December 31, and was not renewed.
2. Analysis and conclusion
The General Counsel contends that the Company vio-
lated Section 8(a)(1) of the Act by constructively dis-
charging employees Milton P. Hanson, Clarence
Childers, Eugene Stark, Ronald Bess, Robert Poellinger,
and Roger Erickson. The General Counsel also contends
that the Company violated Section 8(a)(1) of the Act by
failing to reinstate striking employees Poellinger.
Childers, Hanson, Erickson, Bess, and Stark after their
unconditional offer of September 6 to return to work.
The Company argues that the six employees voluntarily
terminated their employment. The Company also argues
that from August 24 until September 6, the employees
engaged in an economic strike and that by the latter date
all six had been replaced. For the reasons stated below, I
find that the Company constructively discharged the six
employees in violation of Section 8(a)(1) of the Act on
August 17 and that its refusal to reinstate them on Sep-
tember 6, was a continuation of that violation.
The principles involved here require no lengthy dis-
course. Beyond question Milton P. Hanson, Roger Erick-
son, Ronald Bess, and Eugene Stark were engaged in
concerted activities within the meaning of Section 7 of
the Act,' on August 15, when they discussed among
" Emphnyees hall hase the right to self-organizaiion, to form. join. or
assist labor rganilzati s tIo bargain collectivel through representatis es
of their ,~nsi choo)sig, ad Io engage in other coincerted activities for the
Continued
1293
DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD
themselves their quest for improved wages, hours, and
conditions of employment, and, again, 2 days later when
they presented their demand for such improvements to
Stodola and Watermolen. Frank S. Malek and Azzetta G.
Malek. Partners, Precision Tool & Dye Mfg. Co., 205
NLRB 205, 208 (1973); Royal Crown Bottling Company,
Inc., 188 NLRB 352 (1971). It is well settled that an em-
ployer who discharges an employee for engaging in such
activity violates Section 8(a)(1) of the Act. Precision Tool
& Dye Mfg. Co., supra. Similarly, an employer violates
Section 8(a)(l) of the Act by constructively discharging
an employee because he or she chooses to assert his or
her Section 7 rights. Royal Crown Bottling Company, Inc.,
supra, 188 NLRB at 353.
Here, I find that the Company confronted the six em-
ployees with the choice of either signing a resignation or
surrendering their Section 7 right to join together to seek
improvements in their wages, hours, and conditions of
employment. Although the Company permitted each em-
ployee to decide whether to continue in the Company's
employ, the employees could not do so unless they relin-
quished their Section 7 right to engage in concerted ac-
tivities. "Under the Act a choice of this character may
not validly be imposed upon employees and is in contra-
vention of the Act. An employee who, when forced by
his employer to make such choice, chooses to exercise
his right under the Act [to engage in protected activity]
and leaves his employment rather than conform to such
a management policy, is constructively discharged." Ra-
Rich Manufacturing Corporation, 120 NLRB 503, 506-507
(1958). Accord: Royal Crown Bottling Company, supra,
188 NLRB 353.
In his testimony, Executive Vice President Stodola
sought to show that the solicitation of the six employees'
resignations was not intended to impair their exercise of
rights guaranteed by Section 7 of the Act. Thus, he testi-
fied that he insisted upon the resignations to protect the
Company from unemployment benefit claims. However,
even assuming that I credited Stodola's testimony, it is
well settled that:
the test of interference, restraint, and coercion
under Section 8 (a)(l) of the Act does not turn on
the employer's motive.... N.L.R.B. v. Illinois Tool
Works, 153 F.2d 811, 814 (C.A. 7, 1946). Rather, the
test is whether the employer's conduct and words
reasonably tend to interfere with the exercise of em-
ployee riqhts. Id: see also Munro Enterprises, Inc.,
210 NLRB 403 (1974). [American Lumber Sales
Inc., 229 NLRB 414, 416 (1977)].
Here, the focus is on the impact of Stodola's insistence
that the six employees execute resignations as the price
for enjoying a right guaranteed by Section 7 of the Act.
By pushing the resignations in front of each employee
and ordering him to sign it if he wished to discuss im-
proved wages, hours, and working conditions, Stodola
purposes of collective bargaining or other mutual aid or protection, and
shall also have the right to refrain from any or 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 au-
thoriied in Section 8(a)(3).
required the employee to run the risk of economic hard-
ships if the discussion fell short of the stated goal; i.e.,
wages of $5 per hour. I find that by the imposition of
this condition, on the exercise of a Section 7 right, the
Company ran afoul of the test recited above.
That some or all of the six employees on August 15
and 17 voiced an intention to quit after servicing the
North Central Airlines flight on August 18 if they did
not obtain a $5 an hour increase does not help the Com-
pany's cause. For, the Act did not license the Company
to impose finality on the employees' announced intent as
a condition precedent to collective bargaining. Indeed,
there was some indication of erosion in the employees'
resolve on the afternoon of October 17, when they re-
duced their demand to $4 per hour. Perhaps further con-
sideration of their plight might have persuaded the em-
ployees to remain on the job beyond the deadline. How-
ever, the Company's resignation forms suggested that
there was no turning back once the employees opted for
collective bargaining.
Contrary to the Generel Counsel's position, I find that
the letters of August 21 did not contain valid offers of
reinstatement. The unlawful formula by which the Com-
pany rid itself of the six employees on August 17 was re-
flected in its letters of Auqust 21 to each of the six con-
structively discharged employees. In the second para-
graph of that letter, the Company declared its willing-
ness to permit the employees to return to their former
jobs "consistent with our discussions on August 17."
Those discussions consisted of the employees' demand
for improved wages, shorter hours, and other improve-
ments in their conditions of employment and the Compa-
ny's insistence that it could not satisfy the employees'
wage demands. Thus, it would seem that the employees
could return to work provided they accepted their
former wages, hours, and conditions of employment un-
conditionally. This condition implied that any attempt by
the employees to resurrect their concerted demand for
increased wages, reduced hours, and improvements in
their conditions of employment would be inconsistent
with their reinstatement and continued employment. I
therefore find this letter to be a further violation of Sec-
tion 8(a)(l) of the Act. It follows from my findings re-
garding the constructive discharges of August 17 and the
Company's letter of August 21, that the six employees
did not attain the status of strikers at any time material to
this case.7 Thus, the Company's refusal to reinstate them
on the morning of September 6, constituted a continu-
ation of the unlawful termination of August 17.
In sum, I find that the Company violated Section
8(a)(l) of the Act by constructively discharging the six
employees on August 17 and by thereafter refusing to re-
instate them to their former employment. In making
these findings, I find it necessary to reach the question of
whether the continued refusal of the Company to rein-
state these employees was motivated by union animus.
Accordingly, I shall recommend dismissal of so much of
the amended complaint as alleges that refusal violated
Section 8(a)(3) of the Act.
I In light of my finding that the six employees did not become strikers,
I find it unnecessary to explore the issues regarding their replacements.
1294
J J. SICURITY, INC.
The General Counsel alleged in essence that Stodola's
offer on August 17 to revoke the "resignations" if the six
employees abandoned their wage demands interfered
with the employees' right to engage in an economic
strike and thus violated Section 8(a)(l) of the Act. How-
ever, at the time of Stodola's offer, the six employees
were not potential strikers, but, rather, constructive dis-
chargees. In this circumstance, I find that offer did not
amount to a promise to benefit employees if they aban-
doned an imminent strike. Instead, it was a conditional
offer of reinstatement insufficient to remedy the earlier
constructive discharges. I shall therefore recommend dis-
missal of this allegation.
B. The Alleged Discriminatory Discharge of Ronald
Bess
1. The facts
On the afternoon of August 17, employees Ronald
Bess and Eugene Stark were foremost advocates of the
employees' position in the discussion with Stodola, Wa-
termolen, and Chief Beeney. Bess' signature appeared on
one of the union's authorization cards, a copy of which
was sent to the Company by the Union on August 24.
Bess also picketed the airport between August 18 and
September 6.
On August 20, employee Bess visited Mark L. Welter
a Federal aviation administration air traffic control spe-
cialist, at the LaCrosse Municipal Airport. Bess sought
out Welter to find out what was happening with respect
to the six employees' jobs at the airport. After complet-
ing his visit, Bess left Welter's office and went to his
automobile. Discovering that he had left his cigarette
lighter in Welter's office, Bess turned back.
Bess' course took him through North Central Airlines'
office in the airport's main building, along the perimeter
of the building, and into the flight service area, where a
North Central Airline DC9 was parked. The DC-9 was
taking on passengers. Bess walked between the nose of
the DC-9 and the terminal building.
As Bess came to the northwest corner of the terminal
building, a LaCrosse city policeman stopped him and
asked for identification. Bess showed him his wallet to
which was attached a LaCrosse county deputy sheriffs
badge. Bess was authorized to wear that badge until Jan-
uary 1, 1978. The police officer asked Bess if he had au-
thorization from the airport manager to be in the securi-
ty area near the North Central Airlines aircraft. Bess an-
swered no. The policeman permitted Bess to continue on
his way without further incident.
Bess received a summons three weeks later. At the
time of the hearing in the instant case, further proceed-
ings regarding Bess' conduct were pending. During this
incident, Bess passed within 20 feet of the parked DC-9.
On the morning of August 21, an employee of the La-
Crosse Municipal Airport advised the airport manager,
Curtis Tripp, of Bess' contact with the city policeman on
the previous day. The airport employee told Tripp that
Bess had gone out onto the ramp, in the area of the
North Central Airlines DC-9, and that a North Central
Airlines employee had requested the LaCrosse City po-
liceman, who was then on duty at the boarding gate, to
remove Hess from the security area. The employee also
informed Tripp that Bess had been arrested. However, in
his testimony, Tripp conceded that he did not know
whether Bess had actually been arrested. Tripp also
gained the impression from his informant that Bess "was
out around the aircraft that was in the boarding pro-
cess.
On August 21 or 22, Tripp told Chief Gerald Beeney
that because of the incident of August 18, Tripp did not
want Bess to be reinstated as a crash-fire-rescue-security
officer at the LaCrosse Municipal Airport.
Tripp's opposition to Bess' employment at the La-
Crosse Airport arose from the latter's misconduct on
August 20 and on two earlier occasions. In 1977, Bess,
while off duty in the LaCrosse Airport's terminal build-
ing, climbed into a North Central Airlines' wheelchair
and wheeled himself around the terminal building. With
the public looking on, Bess tipped the chair over,
sprawled on the floor, "shook back and forth" and thus
created "a scene." Tripp heard of this incident and
warned the Company that one more incident of miscon-
duct by Bess would require his removal from service at
LaCrosse Municipal Airport.
Prior to the wheelchair incident. Tripp had heard of a
confrontation between Bess and a general aviation pilot
at the LaCrosse Municipal Airport's general aviation
ramp. After the pilot had parked his aircraft on the
ramp, in front of a gate leading to a fire lane, Bess ap-
proached him and advised him to move the plane. Bess
was not in uniform and Tripp did not know whether
Bess was on duty at the time. In Tripp's view, if Bess
were on duty, he should have been in uniform and if he
were not on duty, he had no authority to challenge the
pilot.
Tripp testified that he was concerned about the
August 20 incident because of the possible liability which
might befall the City of LaCrosse if the DC9 suffered a
mishap after Bess had been seen near the aircraft. Tripp
described the possibility of the City's liability as being
"endless." In this regard, Tripp referred to the cost of
the DC9 which he estimated at 8 million dollars and to
"the tens of dozens of people that could be on it."
A few weeks after Bess' unauthorized presence on the
ramp, Tripp told Thomas R. Crone, Esq., an attorney of
counsel to the Company, that Tripp, did not want Bess
back working at LaCrosse Municipal Airport because of
his conduct of Auqust 20. In his recommendation to
Beeney, Tripp was emphatic about his desire to have
Bess barred from employment at the LaCrosse Municipal
Airport and alluded to Bess' previous misconduct.
On or about August 22, "several" terminal employees
told Chief Beeney that Bess had breached airport securi-
ty. They told Beeney that Bess "had been out running
around underneath the North Central aircraft while it
was parked at the gate and that a city police officer had
placed him under arrest for breaching security."
Beeney contacted Company Executive Vice President
Stodola, told him of the reported incident, and relayed
Tripp's request that Bess not be employed at the La-
Crosse Municipal Airport. Stodola asked Beeney to in-
vestigate the incident. Beeney spoke to several employ-
125
I)DECISI()NS ()F NAIO()NAI IAI()R REI.AI()ONS ()OARI)
ees at the airport and attempted to contact the LaCrosse
City police department. However, he obtained no infor-
mation from the latter source.
By its letter of September II1, the Company, by its at-
torney, notified attorney James G. Birnbaum as represen-
tative of the Union and the six discharged employees, as
follows, regarding Bess:
It is our position that Mr. Bess has engaged in mis-
conduct which may bar reinstatement. Upon com-
pletion of our investigation of such misconduct, our
formal position on Mr. Bess' status will be commu-
nicated to you and Mr. Bess.
Upon receiving a copy of this message, Bess appeared
at the Company's LaCrosse station house and pressed
Chief Beeney for an explanation. Beeney explained that
the message concerned Bess' breaching of an airport se-
curity area. Bess admitted that he had been in the securi-
ty area. Beeney reported the information he had received
from airport personnel and from Bess regarding the inci-
dent of August 20 to Stodola. Vice President Stodola un-
derstood from Beeney's report that Bess had prostrated
himself in front of the DC-9 while it was taking on pas-
sengers.
Prior to deciding Bess' fate, Executive Vice President
Stodola had one or two conversations with Airport Man-
ager Tripp regarding Bess' misconduct. I find from Sto-
dola's credited testimony that he understood from
Tripp's remark that Tripp did not want Bess employed at
the LaCrosse Municipal Airport in any capacity and that
he regarded Bess' misconduct, as a very serious breach
of security. Stodola also learned of the 1977 wheelchair
incident prior to the Company's decision regarding Bess'
possible reinstatement.
On September 27, Executive Vice President Stodola
notified Bess as follows:
Your conduct in entering a security area while not
on duty and in violation of FAA regulations evi-
denced conduct incompatible with your continued
employment as a CFR/security officer and exposed
this company and the airport authority to possible
substantial penalty. For that reason, your employ-
ment is being formally terminated as of this date.
During his employment at the LaCrosse Municipal
Airport, FAA Air Traffic Control Specialist Mark L.
Welter has observed passengers, airline employees, pilots
of small aircraft, people meeting people alighting from
small aircraft, a bagpiper, and other miscellaneous per-
sons in the security area traversed by Bess on August 20.
However, Welter's duties do not include airport security
and he did not know whether the people he observed in
that restricted security area had received prior clearance
from responsible airport authority. On one occasion,
Welter observed an unidentified person walking throuqh
the FAA flight service station. Welter alerted a company
security employee, who upon immediate investigation
determined that the person was employed at a parking
lot near the airport and was not authorized to be in the
security area. Welter observed the guard talking to the
employee at the parking toll booth. Welter does not
know what other corrective action was taken against the
parking lot toll booth attendant.
Employee Eugene Stark admitted in his testimony that
the airport had promulgated a rule restricting access to
the ramp area, where aircraft park. However, during his
active employment by the Company as a CFR/security
officer, he did not challenge persons on the apron despite
that rule and his suspicion that the individuals observed
there were not authorized to be there. No other testimo-
ny or evidence regarding actual enforcement of the La-
Crosse Municipal Airport's security rule was adduced.
The Company performed its CFR-security services at
the LaCrosse Municipal Airport under a contract in
effect, as amended, at all times material to the matters
covered in this proceeding. Section I(G) of that contract
provided: "The CONTRACTOR [J. J. Security, Inc.]
shall operate under the general direction of the Airport
Manager."
2. Analysis and conclusions
The General Counsel urges that the Company used
Ronald Bess' presence in the ramp area on August 20 as
an excuse for discharging him on September 27 and that
the real reason was his participation in union or protect-
ed concerted activity. The Company claims that the
General Counsel has failed to establish by a preponder-
ance of the evidence that the decision to discharge Bess
was discriminatorily motivated. I agree with the Compa-
ny's position.
Before dealing with the main issue, I must clarify Bess'
employment status on September 27. I have found above
that the Company constructively discharged Bess on
August 17, effective the morning of August 18, and that
thereafter the Company continued to violate Section
8(a)(l) by refusing to reinstate Bess when he offered to
return to work on September 6. I now find that until
September 27 Bess, along with the other five construc-
tively discharged employees, was entitled to an uncondi-
tional offer of reinstatement. Therefore, notwithstanding
the Company's view, as shown in its letter of September
27, that Bess retained some semblance of an employee re-
lationship with the Company, I have construed that
letter as a declaration that the Company would not rein-
state Bess because of the airport ramp incident on
August 20.
Turning to the issue presented, I find the General
Counsel has failed to establish by a preponderance of the
evidence that the Company terminated Bess' entitlement
to reinstatement because he engaged in concerted or
union activity protected by the Act.
The General Counsel's case is fatally weak in two re-
spects. First the evidence fails to establish the unlawful
motive. Despite its other violations of the Act, the Com-
pany did not single Bess out for expressed or implied
warning or threats of reprisal because of his participation
in protected concerted activity on and after August 15,
or because of his support for the Union. The absence of
such warnings or threats indicate that the Company was
not thinking in terms of singling Bess out for reprisal.
1296
J J SC'tURI I Y. INC
Nor does the evidence show that the Company was
quick to seize upon Bess' confrontation with the police
officer on August 20, as cause for denying him reinstate-
ment. Instead following Tripp's report to eene> Sto-
dola instructed Beeney to conduct an investigation. Fur-
ther. Stodola had conversations with Airport Manager
Tripp as did the Company's counsel. The decision ii
issue the letter of September 27 to Bess followed. In
sum, the record as a whole does not persuade me that
the Company was thinking in terms of retribution against
Bess because of his participation in Section 7 activity.
The record shows beyond question that Airport Man-
ager Tripp was unwilling to countenance any further
misconduct by Bess after the August 20 incident. Indeed,
in 1977, following the wheelchair incident, Tripp had
warned the Company that he would request Bess' re-
moval from service at the LaCrosse Municipal Airport if
Bess engaged in any further misconduct. In 1978, when
Tripp learned of Bess' improper entry into the ramp
area, he deemed it sufficient misconduct to carry out his
earlier threat. He immediately told Beeney that Bess
could not work at the LaCrosse Municipal Airport. Thus
does the record point to Tripp's emphatic demand for
Bess' removal as the motivating factor behind the Com-
pany's letter of September 27.
The second major flaw in the General Counsel's case
is his failure to show disparate treatment. There is no
showing that the Company's response to Tripp's request
was an unusual departure from its practice or policy.
There was no showing that in the face of such a request
the Company has continued to employ an offending em-
ployee at the same airport. Nor was there any showing
that the Company has transferred an offending employee
to another airport.
The General Counsel's attempt to show that other per-
sons have entered upon the airport's ramp area without
challenge falls short of the mark. In attempting to sup-
port his position the General Counsel introduced the tes-
timony of Eugene Stark and Mark Welter. All that
Stark's testimony showed was that while in the Compa-
ny's employ, he failed to enforce the airport's rule. There
was no showinq that other company employees neglect-
ed to enforce the airport's security rule requiring unau-
thorized persons to be excluded from security areas, in-
cluding the ramp used by North Central Airlines.
Mark Welter observed miscellaneous persons in the se-
curity area, but did not know whether or not they had
received proper authorization. Thus his testimony does
not support the proposition that people freely went upon
the airport's ramp area free of control.
Finally, the attempt to show that other employees who
engaged in misconduct received a hearing before a com-
pany captains' board did not assist the General Counsel's
cause. A station chief such as Beeney had authority to
convene a captains' board consisting of two shift captains
and two CFR security employees to determine the facts
where the Company charged an employee with miscon-
duct. The station chief might also request the board's
recommendations as to the appropriate punishment for
individual instances of misconduct The record shows
that a captains' board convened and considered one inci-
dent involving employee Richard Placek at the LaCrosse
airport. It did not appear, however. that the airport mail-
agement had demanded Placek's removal or punishment.
However I find front employee Poellinger's testimony
that the Company may not have convened a captains'
board for all incidents involving employee misconduct.
Further, there is no evidence that the Company, as a
matter of policy or practice, convened such a board
where, as here, an airport operator demanded removal of
an offending employee. Indeed, in Bess' case, the Com-
pany was confronted with a strong demand by its client.
the airport operator. to remove from the airport an em-
ployee whom the airport operator deemed undesirable.
In this latter circumstance the Company had no choice
but to comply.
In sum, I find insufficient evidence to sustain the Gen-
eral Counsel's burden of proof regarding the Company's
alleged discrimination against Bess on or about Septem-
ber 27. Accordingly, I shall recommend dismissal of the
allegations that the Company violated Section 8(a)(3)
and (1) of the Act, on or about September 27, by discri-
minatorily discharging Ronald Bess because of his union
or other protected concerted activity.
CONCI.USIONS OF LAW
1. The Company, J. J. Security, Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Security Personnel Collective Association
(S.P.C.A.) is a labor organization within the meaning of
Section 2(5) of the Act.
3. By constructively discharging employees Milton P.
Hanson, Clarence Childers, Eugene Stark, Ronald Bess,
Robert Poellinger, and Roger Erickson on August 17,
1978, the Company has interfered with, restrained. and
coerced its employees in the exercise of rights guaran-
teed in Section 7 of the Act, thereby engaging in unfair
labor practices violative of Section 8(a)(1) of the Act.
4. By its letters of August 24, 1978, impliedly offering
reinstatement upon condition that the employees refrain
from the exercise of the rights guaranteed in Section 7 of
the Act, the Company engaged in unfair labor practices
violative of Section 8(a)(1) of the Act.
5. By refusing to reinstate the six named employees
upon their request on September 6, 1978, the Company
continued to interfere with, restrain, and coerce its em-
ployees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act, thereby continuing to engage in unfair
labor practices violative of Section 8(a)( ) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
7. The Company did not violate Section 8(a)(3) and (1)
of the Act by discriminatorily discharging employee
Ronald Bess on or about September 27, 1978.
8. The Company has not otherwise violated the Act.
Ttii REMiiED'
Having found that the Company has engaged in unfair
labor practices, I shall recommend a cease and desist
order to effectuate the policies of the Act. The record
shows that the Company terminated its operations at the
127
DECISIONS ()F NATIONAL LABOR RELATIONS BOARD
LaCrosse Municipal Airport on or about December 31,
1978. I also find that the Company provided reinstate-
ment to Milton P. Hanson. Clarence Childers, Eugene
Stark, and Robert Poellinger. I have also found that
Ronald Bess was not entitled to reinstatement after Sep-
tember 27, 1978. Roger Erickson who was not reinstated
is entitled backpay only for the period from August 18 to
the date on which the Company terminated its LaCrosse
operations. I shall also recommend that the Company be
required to make employees Hanson, Childers, Stark,
Bess, Poellinger, and Erickson whole for any loss of
earnings each may have suffered by reason of the Com-
pany's unlawful conduct, by payment to each of a sum of
money equal to that which he normally would have
earned from the date of the initial constructive discharge
to, in the cases of Milton P. Hanson, Clarence Childers,
Euqene Stark, and Robert Poellinger, the date each was
offered reinstatement by the Company, less net earnings
if any, during such period, to be computed in the manner
proscribed in F. Woolworth Company, 90 NLRB 289
(1950), with interest as prescribed in Florida Steel Corpo-
ration, 231 NLRB 651 (1977).8 I shall also recommend
that the Company be required to make employee Bess
whole for any loss of pay he may have suffered by
reason of his unlawful constructive discharge from the
date of his constructive discharge until September 27,
1978, such backpay to be computed and accorded inter-
est in the manner described above. I shall further recom-
mend that the Company be required to make Roger
Erickson whole for any loss of pay he may have suffered
by reason of his unlawful constructive discharge from
the date of his discharge until the date on which the
Company terminated its LaCrosse operations, such
amount to be computed and accorded interest as de-
scribed above. As the Company has ceased its operations
at the LaCrosse Municipal Airport, I shall also recom-
mend that the Company be required to mail notices to
the six employees named above and to all other employ-
ees on the Company's LaCrosse payroll as of December
31, 1978, its last day of operations at the LaCrosse Mu-
nicipal Airport.
Upon the foregoing findings of fact and conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, as amended, I hereby issue the following rec-
ommended:
ORDER9
The Respondent, J. J. Security, Inc., LaCrosse, Wis-
consin, its officers, agents, successors, and assigns, shall:
See, generally, Isis Plumbing d Hearing Co., 138 NLRB 716 (1962).
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 find-
1. Cease and desist from:
(a) Constructively discharging, refusing to reinstate,
or otherwise discriminating against employees with re-
spect to hire or tenure or any term or condition of em-
ployment so as to interfere with, restrain, and coerce its
employees in the exercise of the rights guaranteed by
Section 7 of the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Make employees Milton P. Hanson, Clarence
Childers, Eugene Stark, Ronald Bess, Robert Poellinger,
and Roger Erickson whole for any loss of pay they may
have suffered by reason of their constructive discharges
and the Company's subsequent failure and refusal to rein-
state them, in the manner set forth in the portion of this
Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports and all other re-
cords necessary or useful for analysis of the amount of
backpay due under the terms of this Order.
(c) Mail a copy of the attached notice marked "Ap-
pendix"' 0 to the last known address of each of the six
employees named above, and to all of the then employ-
ees on the Company's payroll as of December 31, 1978.
Copies of said notice, on forms provided by the Regional
Director for Region 30, shall be signed by an authorized
representative of the Company as soon as they are re-
ceived and shall be mailed immediately to the employees
designated above.
(d) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order, what
steps the Company has taken to comply herewith.
ITr IS FURTHER ORDERED that unfair labor practices al-
leged in the consolidated complaint, as amended, but not
specifically found herein are hereby dismissed.
ings, 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.
'" In the event that this Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted
by Order of the National Labor Relations Board" shall read "Posted Pur-
suant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1298