Merchants Police, Inc.

National Labor Relations Board - Board Decisions

Jun 7, 1962

137 N.L.R.B. 525 (N.L.R.B. 1962)

MERCHANTS POLICE, INC. 525
289, and Crossett Lumber Company , 8 NLRB 440 . On the same basis it will be
recommended that Larson and Sonne also be made whole by the Respondent for
any loss of pay suffered by them during their layoff periods as herein set forth. It
will be further recommended that in addition to the employees named above, all
other unfair labor practice strikers who made unconditional application on August 29
be reinstated to substantially equivalent positions and any loss of earnings to them
to be paid in accordance herewith.
Having found that the Respondent has unlawfully refused to recognize or to
bargain with the Union as the representative of its employees in an appropriate unit,
it will be recommended that the Respondent be required upon request to extend
recognition to and to bargain with the Union. It will also be recommended that the
Respondent preserve and, upon request , make available to the Board , payroll and
other records to facilitate the computation of the backpay due.
It will be further recommended , in view of the nature of the unfair labor practices
the Respondent has engaged in, that it cease and desist from infringing in any manner
upon the rights guaranteed employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Unions are labor organizations within the meaning of the Act and admit
to membership employees of Respondent.
3. By discriminating in regard to the hire or tenure of employment of Reuben
Sonne, Carl Larson, Floyd Hanten, Marlin Stiefel, and Donald Tischler, thereby dis-
couraging membership in the above Unions, Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act.
4. By engaging in the conduct set forth in section D, supra, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
5. All ready-mix drivers, yardmen, block machine men, mixer operators, semi-
drivers, tubers and strippers, front-end loader men, tank truck drivers, and me-
chanics, but excluding bookkeepers, guards, and supervisors, constitute, and have
at all times material to this proceeding constituted, a unit appropriate for the pur-
poses of collective bargaining within the meaning of the Act.
6. International Union of Operating Engineers, Local 49, AFL-CIO; and General
Drivers Union Local 749, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, on and since April 19, 1961,
and at all times since, has been exclusive representative of all the employees in
the aforesaid appropriate bargaining unit for the purposes of collective bargaining
within the meannig of Section 9(a) of the Act.
7. By refusing to bargain collectively in good faith with the Unions as the exclusive
representative of the employees in the aforesaid appropriate unit , the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of Sec-
tion 8(a) (5) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Merchants Police , Inc. and Gerald F. Pashek
Merchants Police , Inc. and Local 555, United Plant Guard Work-
ers of America . Cases Nos. 13-CA-4547 and 13-CA-4547-2.
June 7, 1962
DECISION AND ORDER
On April 6, 1962, Trial Examiner Horace A. Ruckel issued his
Intermediate Report in the above-entitled proceeding, finding that the
137 NLRB No. 64.
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. He also found that the Respondent had not engaged
in other unfair labor practices and recommended dismissal of the
complaint as to them. Thereafter, the Respondent and the General
Counsel filed exceptions to the Intermediate Report and supporting
briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
The Board has reviewed the rulings of the Trial Examiner made'
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report and the entire record in the case, including the
exceptions and briefs, and hereby adopts the findings, conclusions,,
and recommendations of the Trial Examiner.
ORDER
The Board adopts the Recommended Order of the Trial Examiner.-
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed in Case No. 13-CA-4547 on November 13, 1961 , by Gerald.
Pashek, an individual , and a charge and amended charge filed on November 27 and
December 21 , 1961, respectively , in Case No. 13-CA-4547-2, by Local 555, United
Plant Guard Workers of America, herein called the Union , the Acting Regional
Director for the Thirteenth Region, Chicago , Illinois, on December 29, 1961, issued
a consolidated complaint , and on January 26 , 1962, an amendment thereto, against
Merchants Police, Inc.,' herein called Respondent . The complaint , as amended,
alleges in substance that Respondent has (1 ) unlawfully interrogated employees con-
cerning their union membership and activities , threatened them with loss of em-
ployment or other benefits if they supported the Union , and created an impression
that Respondent kept union activities of its employees under surveillance; (2) on
or about August 24, discharged Gerald F. Pashek, and on or about August 26 and
October 5, 1961, respectively, discriminatorily transferred Erwin C. Just and Merlin
Wiskerchen, and thereafter discriminatorily discharged Wiskerchen , thereby violat-
ing Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (61
Slat. 136, 73 Slat. 519 ), herein called the Act. Respondent's answer denies the
commission of any unfair labor practice.
Pursuant to due notice Horace A. Ruckel, the duly designated Trial Examiner,
conducted a hearing at Milwaukee , Wisconsin , on February 7 and 8, 1962 , at which
all parties were represented by counsel.
The parties have filed briefs which I have duly considered . Upon the entire rec-
ord, and from my observation of the witnesses , I make the following:
FINDINGS OF FACT
I RESPONDENT 'S BUSINESS
Respondent , a Wisconsin corporation , has its principal office and place of business
at Milwaukee , Wisconsin , where it is engaged in the business of providing plant and
'This appears In the complaint as Merchant Police Agency . The Tiia1 Examiner
granted a motion to conform the pleadings to the proof in formal matters . The correct
name of the Respondent is as it appears here
MERCHANTS POLICE, INC. 527'
store security services. During the year 1960 Respondent, in the conduct-of its
business, provided at the locations of its customers services valued in excess of
$660,000, of which services valued at more than $490,000 were furnished to, among,
others, Cutler-Hammer, Inc., Pabst Brewing Company, Midwest Tanning Company,
and Allen-Bradley, Inc., each of which enterprises annually produces and ships goods
valued in excess of $50,000 directly out of the State wherein these enterprises are:
located.
Respondent, in its Milwaukee operations, employs about 350 guards.
The complaint alleges, Respondent's answer admits, and I find that Respondent is
engaged in commerce and that its operations affect commerce within the meaning of,'
Section 2(6) and (7) of the Act.
U. THE LABOR ORGANIZATION INVOLVED
Local 555, United Plant Guard Workers of America, is a labor organization within
the meaning of the Act, and admits employees of Respondent to membership.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The transfer of Erwin Just; the discharge of Gerald Pashek
Erwin Just was hired by Respondent as a guard in December 1953, ,and later was,
promoted to working sergeant. In May 1961, Respondent entered into a contract.
with Cutler-Hammer to police its four plants in Milwaukee and Just was assigned:
to the night shift at the Twelfth Street plant from 11:30 p.m. to 7:30 a.m. He:
worked at this location until his transfer on August 26, 1961, hereinafter discussed..
When the Union began organizing Respondent's guards about the middle of August,.
Just joined, it.
Gerald Pashek was hired on June 10, 1961, and about 3 weeks later was assigned,,
to the Cutler-Hammer plant where he worked along with Just. Just and Pashek,.
like other guards similarly assigned, went from their homes directly to their posts,,
and returned directly to their homes at the end of their shift. Pashek joined the:
Union about the middle of August and was given application cards by George Fer-._
guson, chairman of the Union's organizing committee, which he distributed to Re-
spondent's guards as they went on and came off duty at the Cutler-Hammer plant.-
He was the only one to do so.
In the performance of their duties Just and Pashek took turns making ,the rounds,
of the six floors of the Twelfth Street ,plant during which they -checked the pressure:
on the sprinkler system, made sure that no motors were running when they should,
not be, that lights and fans were turned off, and spotted any other irregularities.,
While one toured the other sat in the guard office near the main gate on the ground
floor where be answered the telephone and saw to it that no person not authorized .
to do so entered the plant. Cutler-Hammer employees wore badges. All others,
were required to show identification of some sort, and when they did so their names,
were checked against a register of specifically authorized persons furnished nightly
by Cutler-Hammer. In the event of any questions arising, guards were directed to-
call Respondent's office. This rule is not peculiar to the Cutler-Hammer plant, but
is applicable to all plants contracting for Respondents' services and is embodied in;
an instruction manual furnished Respondent's guards.
It is also a rule that guards must be in uniform, which is described as consisting.
of dark blue pants, light blue shirt, and black tie and shoes.
1. The events of August 23
Edward Swanson, Respondent's vice president in charge of operations, visited the-
Cutler-Hammer Twelfth Street plant about midnight on August 23. He testified
that he knew that the Union was organizing Respondent's employees, that he had
heard from a Cutler-Hammer source that Just was "involved" in its activities, and
that his purpose in visiting the plant on August 23 was to ask Just about it since, in
his view, Just was a supervisory employee.and had no business in the Union.
When Swanson arrived at the plant Pashek was on duty in the guard office on the
ground floor and Just was on tour: Swanson had never met Pashek personally, and
Pashek did not know Swanson by sight. Swanson did not identify himself nor did
Pashek inquire as to his identity. Swanson told Pashek that he would like to see
Just and asked where he was, and Pashek told him that he could probably intercept
him on his rounds if he went up to the first floor and waited for him. At the hear-.
ing Pashek gave as his reason for permitting Swanson'to enter the plant without
identication, authorization, or questioning, that he "figured it was a friend of Mr,
Just."
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to his own testimony Swanson waited for Just on the first floor for 5 or
10 minutes without encountering him and then returned to the guard office where he
told Pashek that he had missed Just, and asked him where Just should be at that
moment. Pashek told him that Just should by then be on the ground floor at the
west end of the plant. Swanson left, found Just at the indicated place, and engaged
him in conversation.
Much that is relevant in this conversation is not in dispute. Swanson told Just
that he had heard that some of the employees were joining the Union and asked if
•this was true and if Just himself had joined. Just said that he had, and that he
thought most of the guards assigned to the Cutler-Hammer plants, about 30 in num-
ber, had done so. Swanson asked why Just had not reported this to him, since Just
was a supervisor, and Just replied that the employees were signing up on their own
time and he felt that if they wanted a union to represent them they were entitled to
it. Here the accounts of the two men begin to diverge. Just testified that Swanson
asked him if he knew who had been distributing cards at the plant and that he told
Swanson that it was Pashek. Swanson denied making this inquiry and that Pashek's
name, or that of any other employee, was mentioned. A resolution of this conflict-
ing testimony is necessary.
On direct examination when Just had apparently finished his account of his con-
versation with Swanson, which up to that point was consistent with Swanson's ac-
count, the following questions were put and answers given:
Q. (By Mr. MILLER.) Was there further conversation between you?
A. No, I think that's just about all that took place.
Q. Perhaps the name of an employee came up.
A. Oh, yes, then he asked me whether or not or if I knew who had been
distributing union cards at the plant and I told him it was Mr. Pashek.
On cross-examination Just related the conversation as he had on direct, up to the
point where the divergence between his testimony and that of Swanson arose, and
then stated:
Q. Now, is that the extent of your conversation with Mr. Swanson?
A. I believe that is it, sir, that's all I can recall. I can't think there is any-
thing more he said-
Not only did Just not state on cross-examination that Pashek's name was men-
tioned, through given the opportunity, but he failed to do so on redirect. I credit
Swanson's version of this conversation not only because of h:s demeanor as a wit-
ness, but also because of the prompted nature of Just's testimony on direct, and its
inconsistency with his testimony on cross-examination.
Pashek testified on direct examination that when Swanson returned from the
first floor to the guard office he was engaged in a telephone conversation with an
unknown person who called to inquire about signing a union card, and that when
Swanson entered Pashek hung up the receiver, but not before Swanson heard, or
could have beard, this part of the conversation. Pashek's testimony on direct was
as follows:
Q. You have stated that there was a telephone call. Could you tell us please
briefly what you stated in the presence of this visitor?
* * * * * *
A. I told this fellow that we'll get in touch with him that he shouldn't con-
tact me-
Q. In this end of the conversation were union cards mentioned?
A. Yes.
Q. What did you say in this regard?
A. That I have union cards and that on my day off I'll get around there to
see him.
Q. I see. Following that conversation , perhaps you could tell us in narrative
form what occurred?
A. After the phone call I hung up and it was about a few minutes later this
gentleman came, I believed from upstairs, he rushed into the office and asked
me if I was-how many members were signed up and when and where was the
meeting-and if I was a signed up member.
MERCHANTS POLICE, INC. 529
On cross-examination Pashek testified as follows:
Q. Well, then, you completed your phone call before Swanson came down,
is that it?
A. That's right 2 [Emphasis supplied.]
According to Pashek, Swanson did not at this time ask the whereabouts of Just.
After this conversation Swanson went back into the plant. As has been stated above,
Swanson testified that, not finding Just on the first floor where he had originally been
directed by Pashek, he returned 5 or 10 minutes later to the guard office and was
redirected to a place on the ground floor where he might find Just. Swanson and
Pashek are therefore in agreement that Swanson returned to the guard office after
Pashek had first directed him to the first floor, and that Swanson then went
back into the plant. What is in controversy is what Swanson said to Pashek when
he returned to the guard office.
Swanson denied that he questioned him about the Union. I credit his denial.
Pashek was not impressive as a witness. He contradicted himself as to Swanson's
being present in the guard office at the moment when Pashek mentioned the subject
of union cards at the end of his telephone conversation, and elsewhere he revealed
himself to be eager, unresponsive, and evasive.
There are other reasons, however, for crediting Swanson as against Pashek. If
Swanson, as he testified, came back to the guard office to ask Pashek again where he
could find Just, he could not have asked Pashek about his union activity as the re-
sult of having been informed of it by Just, for at that time he had not yet located
Just.- There is no evidence that Swanson came back to the guard office a second
time after having seen Just, to talk to Pashek before leaving the plant. That Swan-
son, in. spite of Pashek's denial, did tell Pashek that he had not found Just and
asked to be redirected to him, is substantiated by the fact that both Swanson and
Just agree that they met on the ground floor at the west end of the plant. This is
not where Pashek admittedly had first directed Swanson, but it is where Swanson says
he was directed the second time. In view of the fact that the Twelfth Street plant
consists. of six floors and takes an hour to patrol, I am unable to believe that
Swanson and'Just met at this point by accident.
Nor does it seem to me probable that Pashek, to whom Swanson was only a
friend of Just's, should have submitted to questioning by him concerning Pashek's
union activities without making some inquiry as to his identity.
I reconstruct the events as follows: Swanson, having heard from Cutler-Hammer
sources that some of the guards, including Just, were engaging in union activity,
called at the Cutler-Hammer plant to ask Just about it. He found Pashek in the
guard office, asked where he could find Just, and Pashek directed him to the first
floor. After waiting on the first floor for 5 or 10 minutes without seeing Just,
Swanson returned to the office just as Pashek was hanging up the telephone receiver.
Swanson did not hear the Union mentioned, and did not inquire about Pashek's
union activity. He asked Pashek where Just was then, and Pashek directed him to
the west end of the ground floor. He found Just there and reproached him for
his interest in the Union. Pashek's name was not mentioned. Swanson then left
the plant.
As is hereinafter related, Pashek was :discharged on August 24. Merlin Wisker-
chen, a guard whose transfer is discussed below, testified that he walked a beat that
night with- Roving Sergeant Reynolds, who trained Pashek's successor, and dis-
cussed Pashek's discharge. Roving sergeants are acknowledged to be supervisory
employees. According to Wiskerchen, Reynolds asked him what he knew about the
Union and when Wiskerchen replied that he did not know much about it, Reynolds
went on to say, "We checked out Pashek. We fired him,- We wouldn't let him in
the plant tonight."
Reynolds on direct' examination stated that he did not recall any conversation with
Wiskerchen in which-the Union was mentioned and had none in which Pashek was
mentioned. On cross-examination he said that he believed he did have some con-
versation with Wiskerchen concerning Pashek's discharge. He stated that at the time
2 Swanson , who heard Pashek testify, stated while testifying that he came in before
Pashek had hung up, though he did not hear what Pashek said, and asked Pashek who
was calling and Pashek refused to say. Pashek denied that Swanson asked him who was
calling. In this context, Swanson 's statement that he came in before Pashek had hung
up was a declaration against interest , and lends credence to his testimony that he did not
hear the Union mentioned.
649856-63-vol. 137-35
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he did not know that Pashek had been discharged, since he might have only been
transferred.
I find that Reynolds did discuss Pashek's discharge with Wiskerchen and I credit
the latter's version of it. Reynold's statement that Respondent discharged Pashek
because of his union activity was calculated to have the effect of intimidating em-
ployees in the exercise of their rights under the Act, and constituted a violation of
Section 8(a) (1) thereof.
2. Conclusions as to the transfer of Just
On August 28 Respondent demoted Just from his position as sergeant and trans-
ferred him to guard duty at the Mayfair shopping center in Milwaukee where he had
worked before assignment to the Twelfth Street plant, with an accompanying reduc-
tion in pay and demotion from sergeant to guard. Swanson testified that this was
done because of Just's involvement in union activity and his belief that all ser-
geants were supervisory employees and had no business belonging to a union. The
issue thus presented is clear. If Just's duties as a sergeant were supervisory, then his
transfer and demotion were not violative of the Act. If on the other hand they are
not supervisory, then his transfer and demotion must be found discriminatory.
Respondent has two classes of sergeants, "working" sergeants and "roving" ser-
geants. Working sergeants, of whom Just was one, are assigned to a particular plant
or store generally along with rank-and-file guards. Roving sergeants make the
rounds of the various locations where guards are on duty and in general see to it that
things are running smoothly. The only apparent difference between a working ser-
geant and a guard, such as Pashek, is that at the end of the shift the working sergeant
takes charge of the Detex clocks and the keys and locks them up in a drawer, and
gathers together the reports of the guards as to irregularities observed during the
night and he places these in a receptacle where they are later picked up by the sub-
scriber to Respondent's service A working sergeant does not supervise or direct
the work of anyone, has no authority to discipline, neither hires nor discharges, and
makes no effective recommendations in these respects Just was paid $1.25 an hour,
Pashek $1.10.3 As to the roving sergeants, the General Counsel and Respondent are
in agreement that they are supervisors within the meaning of the Act.
I find that Just at the time of his transfer and demotion was not a supervisor with-
in the meaning of the Act, and that his transfer and demotion, acknowledgedly be-
cause of his union activity, were violative of Section 8(a) (3) and (1) of the Act.
On January 2, 1962, subsequent to the filing of the charge herein, Swanson talked
on the telephone with Just and a conversation ensued which Respondent contends,
and the General Counsel denies, constituted an unconditional offer of reinstatement
of Just Swanson testified that he .asked Just if he was happy at Mayfair and if he
would like to go back to Cutler-Hammer at the same job he held before his transfer,
and that Just replied that he was happy and would work anywhere Respondent wished
Just testified that Swanson did say he could have his job back, that he told Swanson it
was "all right" if Respondent wanted him to remain at Mayfair, and that he "turned
down" the offer to go back to Cutler-Hammer.
On the following day, January 3, Just wrote Swanson in relevant part as follows:
Much as I dislike the idea of asking anyone to be inconvenienced, it would he
greatly appreciated if you will inform me by return mail as to my status should
I decide to return to my previous employment at the Cutler-Hammer plant as per
our phone conversation on Tues. 2-,re• former rank and pay restored and
hours or shift to be worked.
Respondent, admittedly, did not reply to this letter. Just testified that he wrote it
because it was not entirely clear to him if she was to go back to Cutler-Hammer on' the
same job, since another employee had taken his place, and he did not know whether
he was to go back as a sergeant with a sergeant's pay or as a rank-and-file guard
In my opinion Swanson's offer of a job, though at Cutler-Hammer, was not under
the circumstances of this case an unconditional offer of reinstatement as a sergeant
on the Cutler-Hammer detail. Respondent admittedly transferred Just from Cutler-
Hammer, and demoted him from sergeant to guard, pursuant to Respondent's policy
against working sergeants engaging in union activity, and so told Just. Just might
well wonder, on second thought, if Swanson's offer was of a job as a guard or as a
sergeant, and if the latter, whether he would have to withdraw from the Union if he
accepted it. Accordingly, he wrote Swanson and specifically asked him what his
%Subscquentiy, this was raised to $115 to conform to an amendment to the minimum
wage law
MERCHANTS POLICE, INC. 531
rank and pay would be if he accepted the Cutler-Hammer assignment. Swanson did
not answer this letter. His failure to do so indicates that Just's misgivings were well
founded. If Swanson did mean that Just was to be reinstated to his previous rank
and pay, I see no reason for his failure to answer Just's inquiry. I find that Respond-
ent's offer did not constitute an unconditional offer of reinstatement of Just to his
former or substantially equivalent employment.
3. Conclusions as to the discharge of Pashek
On the morning of August 24 Swanson instructed Warner, Respondent's dispatcher,
to discharge Pashek. According to Swanson, he gave as reasons Pashek's being out
of uniform and his failure to stop an unauthorized person from entering the Cutler-
Hammer plant. Warner discharged Pashek, according to the latter's testimony, but
told him only that it was for not wearing uniform pants. Warner was not called
as a witness and I accept Pashek's testimony in this respect as true.
In my opinion Pashek' s admission of Swanson to the Cutler-Hammer plant, as a
reason for his discharge, was an afterthought. Not only was this reason not given
Pashek at the time of his discharge, but as late as November 27, after the original
charge herein was filed, Swanson, in a letter to the Regional Director, stated as the
reason for Pashek's discharge only that he failed to comply with Respondent's rule
pertaining to uniform.
There remains to be considered Pashek's violation of the rule requiring Respond-
ent's guards to be in uniform-dark blue pants, light blue shirt, and black tie and
shoes. Although not stated in the manual of instructions, the wearing of a uniform
cap and badge is also required. When Swanson entered the Cutler-Hammer office
on the night of August 23, Pashek was seated at the desk in the guard's office without
his tie, cap, or badge. His tie was in his locker in the same room, and his cap was
on the desk beside him It is not clear where his badge was. He was wearing a
white shirt, which it is agreed was acceptable as a substitute for the light blue shirt,
prescribed by the manual. His shoes were black and his pants were regulation. It
was hot in the plant and the whole record shows that when it is hot Respondent does
not insist on literal compliance with the manual. The important items of clothing
are the white or light blue shirt and the dark blue pants, and these Respondent insists
upon. The badge and cap are to be worn when actually patrolling.
When Warner gave as a reason for discharging Pashek his not wearing uniform
pants, he did not specify any occasion when he did not wear them, much less the
night of August 23. It is not contended anywhere in the record that Pashek's pants
were other than regulation on that occasion.
It is conceded, however, that for a 2-week period ending in early August, Pashek
wore other than dark blue pants. His sole pair was being cleaned and he gave as
a reason for not picking them up that lie did not have the money. Just and one other
guard offered to lend him the money but he declined their offers On July 27, after
being spoken to several times about his lack of this item of uniform, he was "written
up" by Reynolds, a roving sergeant. Swanson testified that this writing up, which
amounted to a reprimand, came to his attention at the time and that, in accordance
with practice, he told Captain Woodward to check on Pashek and "tell him to
please get in the proper uniform."
Pashek got his uniform pants back and resumed wearing them around payday
August 5, more than 2 weeks before his discharge. On several occasions after
July 27, Reynolds, according to his own testimony, saw Pashek when he was not
in complete uniform, although he did not specify in what respect and did not speak
to him about it
Although Pashek was more careless in his dress than most of Respondent's guards
and was easygoing in the performance of his guard duties which he summarized
while testifying, "as seeing to it that no one took anything away" from the Cutler-
Hammer plant, I am unable to believe that his dereliction in either respect con-
stituted the operating reason for his discharge As to his uniform, he was wearing
regulation pants on August 23, and had been for some 2 weeks.
Pashek's admission to the plant of Swanson, an unauthorized stranger from
Pashek's standpoint, was clearly in violation of an important rule and safeguard
But Warner did not assign it as a reason when he discharged Pashek and the real
reason, in my opinion , lies elsewhere.
I have found contrary to the testimony of Just that Just did not mention Pashek's
union activity to Swanson on the night of August 23, and that Swanson did not
interrogate Pashek in this respect. But I am unable to believe that Swanson did
not derive this information from another source. Pashek was the principal pro-
ponent of the Union among Respondent' s employees . On two occasions he dis-
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tributed union application cards at the entrance to the Cutler-Hammer plant when
Respondent's guards reported to and left work. He was the only one to do so.
Swanson, by his own admission, was informed of this union activity, and Just's sup-
posed part in it, by a Cutler-Hammer source, and went to the plant to question
Just about it. Swanson reproached Just for his membership in the Union and shortly
thereafter demoted and transferred him. Admittedly, his union membership was
the motivating factor.
While there is no evidence that Swanson's informant at Cutler-Hammer spe-
cifically mentioned Pashek, in addition to Just as being active in the Union, it is
obvious that the information was specific enough to direct Swanson to the Twelfth
Street plant, the one among the four Cutler-Hammer plants which was the focus
of the Union's organizational efforts, and at a time when Pashek, the principal
organizer of Respondent's employees, was on duty. It is not necessary for the
General Counsel to prove direct knowledge and antiunion motive for a discharge.
It is well-established Board and court precedent that knowledge and motive may be
inferred from the record as a whole?
The conclusion, which I draw, that Respondent believed Pashek to be active in
the Union, and for this reason discharged him, rests not only upon the events
above recited, but upon the inadequacy of the reasons assigned by Respondent.
Pashek was not told that his admission of Swanson to the Twelfth Street plant was
a reason. It was not assigned as such until the hearing. The reason which was
assigned, that Pashek was not wearing uniform pants, was without foundation so far
as the night of August 23 was concerned. It is not contended that he was not wear-
ing uniform pants that night.
I have found that Pashek was below average in his attention to his uniform, and
on July 27, prior to the beginning of the Union's organizing campaign, had been
written up for failure to wear uniform pants for a period of 2 weeks. He had
resumed wearing them, however, more than 2 weeks prior to his discharge. This
writing up admittedly came to Swanson's attention at the time. If it merited dis-
charge, I am unable to understand why it was not effectuated at that time, rather
than on August 24, shortly after the beginning of the Union's organizing activity, and
after Respondent had acquired knowledge of this activity and Pashek's part in it.
Instead, Swanson merely instructed Woodward to tell Pashek to "please get in the
proper uniform," which Pashek did shortly afterward.
I conclude and find that Respondent discharged Pashek on August 24, 1961,
because of his activity in organizing Respondent's employees into the Union, and
not for reasons connected with the performance of his duties as a guard. In so
doing, Respondent violated Section 8(a)(3) and (1) of the Act
4. Respondent's offer of reinstatement
On December 13, Respondent wrote Pashek stating that it was willing to rehire
him provided that he wear a uniform while on duty, and asking him to report no
later than December 21 for his assignment. Pashek replied on December 19 stating
that he was willing to accept employment provided that it did not affect his case,
pending before the Board. He testified that he did not report on December 21,
though advised to by the Board's agent, because of family trouble. On December 20
Respondent again wrote him asking him to report on December 27 for instructions
and assignment. Pashek did report on December 27 and was offered a iob at his
previous pay at Misericordia hospital. He refused it, and testified that the reason
he did so was because he had sold his car and had no transportation. The Twelfth
Street plant was 6 miles from Pashek's home, and the hospital still farther. Warner
promised to call Pashek the next day, and did so. Pashek was out of town. Though
informed of Warner's call, Pashek made no attempt to get in touch with him. There
is nothing in the record to indicate that Warner, if he had established contact with
Pashek, would have made any offer of reinstatement other than that to Misericordia
hospital.
B. Wiskerchen's transfer
Merlin Wiskerchen came to work for Respondent as a relief guard on May 18, 1961,
and was assigned to the Cutler-Hammer plant. His last day of employment was
October 4, 1961. As relief guard, Wiskerchen worked at a different plant of Cutler-
Hammer each night, replacing regular guards on their nights off and in emergencies.
He joined the Union around the middle of August sometime after its first meeting,
which he did not attend. He testified that he received a number of union application
6 See Lapeer Metal Products Cc , 134 NLRB 1518; Wiese Plow Welding Co., Inc., 123
NLRB 616, and cases cited therein.
MERCHANTS POLICE, INC. 533
cards to pass out, but there is no satisfactory evidence as to the extent of his activity.
I do not find support in the record for the General Counsel's contention in his brief
that he was Pashek's "lieutenant."
On October 3, a union meeting was held which was attended by most of Respond-
ent's Cutler-Hammer guards, including Wiskerchen. This meeting shortly came to
the attention of Swanson who, on the morning of October 5, convened a meeting of
these guards in his office. It is not in dispute, and I find, that Swanson advised them
that he knew who had attended the union meeting 2 days before, and who had
signed up. Swanson also told them that Respondent was working on a narrow profit
margin at Cutler-Hammer and that if the Union came in Respondent might lose
this contract and some employees would be out of jobs.
Swanson's statement that he knew who had attended the union meeting and who
had signed up, was reasonably calculated to notify employees that Respondent was
keeping their activities under scrutiny and served to instill in them the fear of
reprisals should they continue these organizing efforts. It was violative of the Act.5
About 10 o'clock on the following night Captain Woodward, one of Respondent's
dispatchers, called Wiskerchen and told him that he was being taken off the Cutler-
Hammer Twelfth Street detail, and assigned that night to relieve a guard at Midwest
Tannery in South Milwaukee, about 18 miles from Wiskerchen's home. The Twelfth
Street plant is 4 miles from his home. Wiskerchen objected that South Milwaukee
was too far to travel because his car was being repaired, but offered to go if Respond-
ent would drive him there. Woodward suggested that he go by bus. Wiskerchen
refused and did not report for work. Woodward called him the next day and again
instructed him to go to South Milwaukee, and again he refused. Several days later
Wiskerchen talked on the telephone with Swanson and Swanson told him that the
South Milwaukee assignment was still open. When Wiskerchen asked him the reason
for the assignment to South Milwaukee, stating that he liked it at Twelfth Street,
Swanson told him that he was being considered for promotion to a sergeant's job
and that it was necessary for supervisors to be acquainted with the various tours of
duty in South Milwaukee. At the hearing, Swanson gave this as the reason for
Wiskerchen's transfer, stating that he was unusually quick in familiarizing himself
with different tours, and that the assignment to South Milwaukee would not have
been permanent. After this conversation, Wiskerchen still did not report for work,
although by that time he had his car.
About October 20, Swanson wrote Wiskerchen asking him to return his guard
equipment to Respondent's office as soon as possible. Not receiving a reply from
Wiskerchen on November 20, Swanson again wrote him demanding that he return
Respondent's property, threatening that if it was not received within 10 days the
matter would be referred to Respondent's attorney.
On November 24, after the filing of the original charge herein, and 3 days before
the first amended charge wherein Wiskerchen's name was first included, Swanson for
the third time wrote him repeating his request for the return of equipment, and in
addition telling him that Respondent had a job for him and asking him to report by
December 2. Otherwise, Respondent would assume he had quit. Wiskerchen did
not report on December 2 but instead, on December 1, wrote Respondent stating
that he had attempted to reach Swanson on the telephone without success.
Conclusions
At the hearing I, on motion, dismissed the allegation of the complaint that Wisker-
chen was discriminatorily discharged. There remains the question of whether he was
discriminatorily transferred on October 5, 1961. 1 find that he was not Respondent
knew that the guards at the Twelfth Street plant were mostly members of the Union
and, as I have found, gathered them together 2 days before Wiskerchen's transfer
and told them that he knew who had signed up for the Union. I have found that in
so stating Respondent violated the Act. But I am unable to find on this record that
he selected Wiskerchen from among this group as an object of discrimination. There
was nothing so outstanding in his support of the Union as to differentiate him from
the other union adherents at the Twelfth Street plant. Wiskerchen was a relief
guard and the nature of his duties made him subject to assignment on short notice to
any plant where a regular guard was for any reason permanently or temporarily
unavailable. At the time of his transfer his automobile was temporarily laid up.
But there is no indication that Respondent knew this, and after it was again available
to him he still refused the assignment to South Milwaukee. It is not contended that
Respondent actually discharged him. The General Counsel's contention, though
& See Miller Electric Manufacturing Co, Inc., 120 NLRB 298 , 312; Carolina Mirror
Corporation, 123 NLRB 1712, 1736.
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not explicitly made, seems to be that he was constructively discharged . I have previ-
ously found to the contrary . There was nothing in the South Milwaukee job so
arduous as to cause Respondent to believe that his assignment to it would force him to
quit or confronted him, as the General Counsel 's brief puts it, with a Hobson 's choice.
Nor do I find that this was Respondent 's purpose . Accordingly I will recommend that
the complaint be dismissed as to Wiskerchen.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection
with the operations of Respondent described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
It having been found that Respondent engaged in unfair labor practices in violation
of Section 8(a) (1) and (3) of the Act, it will be recommended that the Respondent
cease and desist therefrom and take certain affirmative action designed to effectuate
the policies of the Act.
As it has been found that Respondent discriminated with regard to the hire and
tenure of employment of Gerald Pashek and Erwin Just in violation of Section
8(a) (3) and (1) of the Act, I will recommend that Respondent offer them immediate
and full reinstatement to their former positions at the Cutler-Hammer Twelfth Street
plant, or substantially equivalent positions, without prejudice to their seniority or
other rights and privileges. (See The Chase National Bank of the City of New York,
San Juan, Puerto Rico Branch, 65 NLRB 827.) It will be further recommended
that Respondent make the aforesaid employees whole for any loss of pay suffered
by reason of the discrimination against them. Loss of pay shall be based upon
earnings which Pashek normally would have earned as a guard from the date of his
discharge to the date of Respondent's offer of reinstatement or reinstatement, as the
case may be, and what Just would normally have earned as a guard sergeant from
the date of his transfer and demotion to the date of Respondent's offer of reinstate-
ment or reinstatement, less their net earnings, computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth Company, 90 NLRB 289;
N L.R.B. v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344. It will
also be recommended that Respondent preserve and, upon request, make available
to the Board, payroll and other records to facilitate the computation of the backpay
due.
As the unfair labor practices committed by Respondent involved discrimination
and are therefore of a character striking at the root of employee rights safeguarded
by the Act, it will be recommended that Respondent cease and desist from infringing
in any manner upon rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Local 555, United Plant Guard Workers of America, is a labor organization
within the meaning of the Act.
2. By interrogating employees concerning their union membership and activity,
by creating the impression that Respondent kept under scrutiny meetings of the
Union, and by implication threatening to discharge employees if they joined the
Union, Respondent has engaged in unfair labor practices within the meaning of
Section 8 (a)( 1 ) of the Act.
3. By discharging Gerald Pashek on August 24 and by transferring and demoting
Erwin Just on August 26, 1961, thereby discriminating in regard to their hire and
tenure of employment and discouraging membership in the Union, Respondent
has engaged in unfair labor practices within the meaning of Section 8(a)(3) and
(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
5. Contrary to the allegations of the complaint, the Respondent did not commit
unfair labor practices by transferring or discharging Merlin Wiskerchen.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, it is recommended that the Respondent, Merchants
Police, Inc., its officers, agents, successors, and assigns, shall:
MERCHANTS POLICE, INC. 535
1. Cease and desist from:
(a) Discouraging membership in Local 555, United Plant Guard Workers of
America, or in any other labor organization, by discriminating against its employees
in regard to their hire or tenure of employment, or the terms or conditions of
their employment, or by interrogating employees as to their union activities or
creating the impression that Merchants Police, Inc., kept union meetings under
scrutiny.
(b) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their rights to self-organization, to form labor organizations, to
join or assist the above-named Union, or any other labor organization, to bargain
collectively through representatives of their own choosing, or to engage in other
concerted activities for the purpose of mutual aid or protection as guaranteed in
Section 7 of the Act, or to refrain from any or all such activities.
2. Take the following affirmative action designed to effectuate the policies of
the Act:
(a) Offer to Gerald Pashek and Erwin Just immediate and full reinstatement
to their jobs at the Cutler-Hammer Twelfth Street plant, or substantially equivalent
positions, without prejudice to any rights and privileges previously enjoyed by
them, and make them whole for any loss of pay they may have suffered by reason
of Respondent's discrimination against them, in the manner set forth in the section
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 records necessary to analyze
the amounts of backpay due and the right of reinstatement as set forth in the
section entitled "The Remedy."
(c) Post at its office in Milwaukee, Wisconsin, copies of the notice attached
hereto marked "Appendix." 6 Copies of said notice, to be furnished by the Regional
Director for the Thirteenth Region, shall, after being duly signed by Respondent
or its representatives, be posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable
steps shall be taken to insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for the Thirteenth Region, in writing, within
20 days from the receipt of this Intermediate Report, what steps the Respondent
has taken to comply herewith.?
It is also recommended that the Board dismiss allegations in the complaint
that Respondent committed unfair labor practices by transferring, demoting, or
discharging Merlin Wiskerchen.
6 In the event that these Recommendations be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice In the fuither event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order "
7In the event that these Recommendations be adopted by the Board, this provision
'hall be modified to read "Notify the Regional Director for the Thirteenth Region, in
writing, within 10 days from the date of this Order, what steps the Respondent has taken
to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in Local 555, United Plant Guard
Workers of America, or in any other labor organization of our employees, by
discriminating against our employees in regard to their hire or tenure of em-
ployment, or any term or condition of employment.
WE WILL NOT interrogate our employees regarding their union membership,
activities, or sympathies.
WE WILL NOT threaten our employees with discharge if they engage in union
activities or concerted activities for the purpose of collective bargaining or
other mutual aid or protection.
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of their rights to self -organization , to form labor
organizations , to join or assist the above -named Union , or any other labor
organization , to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection , and to refrain from any or all
such activities.
WE WILL offer Gerald Pashek and Erwin Just immediate and full reinstate-
ment to their former or substantially equivalent jobs, without prejudice to any
rights and privileges previously enjoyed by them , and we will make them whole
for any loss of wages suffered as a result of their discharge , transfer, or
demotion.
All our employees are free to become, remain , or refrain from becoming mem-
bers of the above-named Union or any other labor organization.
MERCHANTS POLICE, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date thereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 176
West Adams Street, Chicago , Illinois, Telephone Number, Central 6-9660, if they
have any question concerning this notice or compliance with its provisions.
Seaboard Diecasting Corporation and John Fitzgerald. Case
No. 2-CA-8101. June 7, 1962
DECISION AND ORDER
On February 28, 1962, Trial Examiner Thomas F. Maher issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. He also found that the Respondent had not engaged
in other unfair labor practices. Thereafter, the Respondent and the
General Counsel filed exceptions to the Intermediate Report and sup-
porting briefs.
The'Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the Trial Examiner's findings, conclu-
sions, and recommendations insofar as consistent with the following
modifications :
1. We agree with the Trial Examiner's finding that the Respondent
refused to reinstate Fitzgerald to the position of molder because it
anticipated that Fitzgerald would regain his union status as shop
1 Pursuant to the provisions of Section 3(b) of the Act , the Board has delegated its
powers in connection with this case to a three -member panel [Chairman McCulloch and
Members Rodgers and Leedom].
137 NLRB No. 60.