Protective Investigative Service, Inc.

National Labor Relations Board - Board Decisions

Jun 17, 1976

224 N.L.R.B. 1131 (N.L.R.B. 1976)

PROTECTIVE INVESTIGATIVE SERVICE 1131
Protective Investigative Service , Inc and Local 814,
International Brotherhood of Teamsters , Chauf-
feurs , Warehousemen and Helpers of America
Case 2-CA-13795
June 17, 1976
DECISION AND ORDER
By MEMBERS JENKINS, PENELLO, AND WALTHER
labor practices A hearing in this proceeding was held in
New York, New York, on February 5 and 6, 1976 Follow-
ing the close of the hearing, General Counsel and Respon-
dent filed briefs with the Administrative Law Judge
Upon the entire record in the case, and from my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
On April 16, 1976, Administrative Law Judge Her-
bert Silberman issued the attached Decision in this
proceeding Thereafter, the General Counsel filed ex-
ceptions and a supporting brief
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 brief
and has decided to affirm the rulings, findings,' 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, Protective Investigative
Service, Inc, Bronx, New York, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order
' The General Counsel 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 credibili
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect Standard Dry Wall Products Inc 91
NLRB 544 (1950) enfd 188 F 2d 362 (C A 3 1951) We have carefully
examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN, Administrative Law Judge Upon a
charge filed on June 30, 1975, by the above-named Union,
a complaint dated October 31, 1975, was issued alleging
that the Respondent, Protective Investigative Service, Inc,
herein called the Company, has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(1) and (3) of the National Labor Relations Act, as
amended Respondent duly filed an answer to the com-
plaint denying that it has engaged in the alleged unfair
Respondent, a New York corporation, is engaged in the
business of providing guard, protective, and related serv-
ices to governments, businesses, and other organizations
During calendar year 1974, which period is representative
of its operations, Respondent derived gross revenues in ex-
cess of $500,000, of which revenues in excess of $50,000
were received for services performed for the State of New
York Respondent admits, and I find, that it is an employer
within the meaning of Section 2(2) engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
Local 814, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, here-
in called the Union, is a labor organization within the
meaning of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A The Issues
The complaint, as amended at the hearing, alleges that
employees were unlawfully interrogated concerning their
membership in, activities on behalf of, and sympathies for
the Union by Supervisor Troy Johnson on or about June
12 and 13, 1975,' and by Company President Richard Li-
cata on June 15, and that, because they joined and assisted
the Union, the Company on or about June 18 discharged
the following employees Aubrey Solomon, Benjamin Ellis,
Alfred Padilla, Daniel Walker, James Whetstone, Alberto
Benitez, and Walter Caseres The complaint as originally
issued had alleged that 11 employees had been discrimina
torily discharged However, at the hearing, motions were
granted to add as a dischargee the name Aubrey Solomon
and to strike from the complaint as dischargees the names
Alfred Morris, Elisamanuel Martinez, Jaime Sullivan,
Alfred Turner, and Alberto Mazorga On November 14,
Respondent offered unconditional reinstatement to Daniel
Walker and on October 29 offered unconditional reinstate-
ment to the other six alleged discriminatees
B Background
Pursuant to a contract with the State of New York, Re-
spondent furnishes guard services for a facility under con-
' Unless otherwise indicated all dates refer to calendar year i975
224 NLRB No 163
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
struction in Bronx, New York, known as the Lincoln Me-
morial Hospital, herein referred to as the Hospital, where it
employs approximately 62 guards, 36 on the day shift and
13 on each of the other 2 shifts The guards are paid mini-
mum wages for which reason, according to Company Pres-
ident Licata, "[I]f you do the job half decent, not even
decent, half decent, there is always room for you We have
trouble keeping employees, but unfortunately that is the
way the industry is "
The Company is managed by its president, Richard Li-
cata Immediately subordinate to him is Paul Scarborough,
who occupies the position of general supervisor and is an
admitted supervisor within the meaning of the Act Includ-
ed among the guards employed at the Hospital are 8 to 10
sergeants, 3 lieutenants, and 3 captains, none of whom are
supervisors within the meaning of the Act In addition, the
Company employs at the Hospital two individuals desig-
nated as inspectors and coordinators An issue in this pro
ceeding is whether one of the inspectors, Troy Johnson, is a
supervisor within the meaning of the Act
It is Respondent's position that there is no supervisor
regularly at the Hospital and the only supervisor over the
employees is Scarborough, who testified that his duties re-
quire him to "check all jobs, place manpower, make sure
thatjobs are covered, try to settle any disturbances, in gen-
eral, on all of the jobs that we happen to be working on " 2
Only Scarborough and Licata have authority to hire em-
ployees, and only Licata has authority to discharge em-
ployees During the day shift there is no one at the Hospi
tal senior to or who has greater authority on behalf of the
Company than Johnson However, Scarborough testified
that he is able to supervise the employees at the Hospital
because there is a direct telephone connection between the
Hospital and the Company's offices "plus every day I
spend time down at the Job " Licata acknowledged that
Johnson has authority to direct the work activities of the
employees on his shift subject to the limitation that when
ever any problems arise he is supposed to communicate by
telephone with either Licata or Scarborough and is then
supposed to follow the instructions he receives According
to Licata, "if a little item, which doesn't require us to tell
him what to do [arises], [Johnson], of course, handles it,"
and, as neither Licata nor Scarborough begins work before
10 a in, any problem that arises between 7 and 10 a in that
"has to be answered within that period of time, if it can't
be deferred, if it involves time off, or if it's a minor thing,
then of course [Johnson] handles it " Johnson admittedly
has authority to reassign the guards at the Hospital from
one location to another
Johnson is the only company representative on the job-
site who has the authority to direct the work activities of
the 36 guards employed on the day shift During the early
morning hours, Johnson has no direct communication with
either Scarborough or Licata so that he is in complete
charge of the guards during that time If Johnson is not a
supervisor, it would mean that the 36 employees on the day
shift, whose performance may be no better than "half de-
cent," work without any responsible supervision I find in
2 Respondent provides guard services at various other locations in adds
two to the Hospital
agreement with General Counsel, that Johnson has the au-
thority in the interest of the Company responsibly to direct
the guards on his shift, and therefore, is a supervisor within
the meaning of the Act 3
C The Union Activities
Beginning on or about June 10, the Union began an
effort to organize the Company's employees at the Hospi-
tal and the guards were solicited to sign authorization
cards on behalf of the Union Johnson quickly learned of
these activities and promptly informed Scarborough of
what was taking place Presumably Scarborough trans-
mitted the same information to Licata who testified that on
or about June 11 he learned of the organizing campaign
being conducted at the Hospital
Johnson testified that he had heard that Aubrey Solo
mon had been representing to other employees that John-
son had said that they must sign the union instruments
Johnson spoke to Solomon who informed Johnson that he
belonged to a union and wanted a union The two then
engaged in a discussion about the advantages of belonging
to a union Later, according to Johnson, "I asked the whole
entire crew if they knew anything about the union,
and they told me, yes Some of them said that they had
signed " These events took place on or about June 13
Respondent argues in its brief "Employee interrogation
is not in itself unfair unless it meets the severe standards of
BOURNE v NLRB CA 2,1964, 332 F 2d 47,49 L C
19888, which suggests such unnatural formality as to meet-
ings in the employers main office " However, the Bourne 4
criteria, as has been observed by Judge Wisdom, are "not
intended to be definitive and intimidation may occur
even if all of these [five] factors cut in favor of the employ-
er " s The established rules regarding the permissibility of
managerial questioning such as that which took place here
concentrate on whether the questioning could reasonably
be expected to induce fear of reprisal in the mind of the
employee 6 Thus, the Board has observed, "[S]ystematic
interrogation of employees about union activities during
the sensitive initial stages of an organizing campaign and
for no justifiable purpose is a type of activity which
serves to impress upon employees their employer's hostility
to union organization, and thus tends to restrain them in
the exercise of the rights guaranteed by Section 7 of the
Act " 7 In this case the Company "had no legitimate reason
to ferret out" any information from the employees at the
time 8 and, as the interrogations were not accompanied by
any indication of legitimate purpose for the questioning or
by any assurances that there would be no reprisals for
union activity,9 it left "the [employees] to conjure up van-
3 See Screwmatic Inc 218 NLRB 1372 (1975) Sehon Stevenson & Co
Inc 150 NLRB 675 (1964)
a Bonnie Bourne d/b/a Bourne Co v N L R B 332 F 2d 47 (C A 2 1964)
5 N L R B v Camco Incorporated 340 F 2d 803 804 (C A 5 1965) cert
denied 382 U S 926 (1965)
6 N L R B v WKRG-TV Inc 470 F 2d 1302 (C A 5 1973)
7 R W Inc d/b/a K Mart Foods 170 NLRB 716 717 (1968) citing Koch
Engineering Company Inc 155 NLRB 1272 1273 (1965)
Martin Sprocket & Gear Co v N L R B 329 F 2d 417 420 (C A 5
1964)
9 See N L R B v Cameo incorporated supra at 807 and Martin Sprocket
& Gear Co Inc v NLRB supra
PROTECTIVE INVESTIGATIVE SERVICE 1133
ous images of employer retaliation " 11 In the circum-
stances, I find that the systematic questioning of all the
guards by Troy Johnson, the principal management repre-
sentative on the jobsite, as to what they knew about the
Union and through such interrogations eliciting informa-
tion as to who had signed union cards constituted an un-
lawful infringement upon the employees' statutory rights in
violation of Section 8(a)(1)
On the night of Friday, June 13, Johnson held a meeting
of the guards at the jobsite The purpose of the meeting,
according to Johnson, was to exhort them to do their work
in a better fashion The subject of the Union arose and in
response to questions directed to him Johnson remarked
that the Union would not be good for the men and would
not provide them with any benefits Also, at the meeting,
Johnson observed some of the guards with copies of a
handwritten memorandum which had been prepared by
Paul Scarborough The instrument reads as follows
To All Guards of Protective Investigative Service
We understand that a Union is trying to sign you up
Let me tell you a few things about this Union
1-The Union is passing around a booklet of an
agreement signed with Beth Israle [sic] Hospital, the
Guards of this Hospital work directly for the Hospital
and not a private Security We here have a different set
up if the State doesn't want us any more the Union
can't tell the State to keep us Also the Union cannot
guarantee you permanent work
2-Union Dues of $9 00 per month must be paid to
the Union or you don't work
3-There is a $75 00 fee to join the Union
4-Everyone reverts back to $2 10 per hr
5-Ask Questions, don't let any one tell you the [sic]
everything will be different The Union only wants
your money When this job is finished, the Union has
no further use for you
General Counsel does not contend that anything unlawful
occurred at the described meeting but asserts that the
transactions thereat are relevant to further establish
Respondent's knowledge of the Union activities which
were taking place among its guards and its attitude in re-
gard thereto 11
D The Alleged Discharges
Aubrey Solomon, who was hired by the Company on
December 10, 1974, testified that on Friday, June 13, the
same day that Johnson questioned him about his union
activities, he was directed to report to the Company's main
10 Dubin Haskell Lining Corp v N L R B 375 F 2d 568 571 (C A 4
1967) cert denied 393 U S 824 (1968)
11 General Counsel argues that Solomon testified uncontradicted that
when he arrived at Licata s office on June 16 Licata threw a Local 814
agreement on the table saying That is Local $14 s agreement do you know
this9 and Solomon said that he didn know anything about it Even if I
were to credit Solomon s testimony which I don t the foregoing would not
constitute an instance of unlawful interrogation
office on Monday, June 16, instead of going directly to
work As instructed he went to the office where he met with
Company President Richard Licata Licata threw a Local
814 contract on the desk and asked, "Do you know this9'
Solomon replied that he knew nothing about that contract,
that the only union contract with which he was familiar
was with the National Maritime Union of America Licata
then said, I heard you and the big lieutenant been drink-
ing up on the job Solomon denied the accusation Licata
told Solomon that Solomon would be transferred to anoth-
er location Solomon responded that he suffers from hyper-
tension and did not wish to accept the transfer then but
would telephone Licata when he was ready to go to work
Licata's version of his conversation with Solomon is as
follows ` Basically his complaint was that he felt that he
was being abused on the job by Mr Johnson and he also
felt that he couldn't work with Mr Johnson I offered
him a job at any other location that we had available, and
he told me that he couldn't work at the time, he was not
feeling good, that he would let me know when he would be
back to work "
In support of his position that Solomon was discharged
from his job, General Counsel argues, "Respondent would
therefore have you believe that after working for the Re-
spondent and Johnson for over six months, Solomon went
to Respondent's office on the first working day after Respon
dent admittedly learned of his signing a card for the union and
Respondent's admitted interrogation of him about the union to
inform Licata that he wouldn't work with Johnson any-
more This timing is an incredible coincidence In
addition, it is incredible to believe that Solomon and the
other employees discussed below, signed cards for the
union on one week and quit their jobs the next week"
Contrary to General Counsel, I do not find this circum-
stance at all incredible If one were to indulge in specula-
tion one might speculate that the guards were very much
dissatisfied working under the supervision of Troy John-
son, for that reason they sought the assistance of a union,
and having brought a union into the picture and believing
that by collective action they could compel their employer
to transfer or discharge Troy Johnson, they presented Lica
to with an ultimatum that he either remove Johnson from
the Hospital or they would quit and picket the project,
which they did I do not make any finding that that is what
happened, but I merely suggest that this sequence is as
probable as the hypothesis suggested by General Counsel
Benjamin Ellis, who was hired by the Company in Feb-
ruary 1975, signed a union card on June 12 Ellis testified
that on June 16 he received a message that Paul Scarbor-
ough wanted him to report to the office the next morning
According to Ellis, on Tuesday, June 17, he, Alberto Ma
zorga, "and another person by the name of Walter 12 went
to the Company's office together When they arrived some
time after 10 a in , both Scarborough and Licata were pres-
ent According to Ellis, Licata said that the Union
wouldn't help them, that they would lose more by trying to
get into the Union, and that he knew what he was talking
about because he had been a union man all his life The
12 Ellis probably was referring to Walter Caseres who is named in the
complaint as one of the employees who was unlawfully discharged
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conversation then turned to Troy Johnson and the employ-
ees asked Licata to transfer Johnson to another location
Licata responded that he was not going to do that because
Troy Johnson was the best man that he had Ellis further
testified
A [Licata said ,] "I suppose that you want to go
back down to the hospital and work again?"
And I said, "Yes, we would like to go, you know
And he says , No, you can ' t go down because Troy
Johnson doesn't want you down there He claims that
you are down there making too much trouble '
Q Did you ask Mr Licata at that time what he
meant by the fact that you were causing too much
trouble9
A No
Q Did you have any idea what trouble he was re-
ferring tog
A Basically, no
However , on cross-examination , when questioned whether
he knew to what Johnson was referring when Johnson re-
ported that he had been making too much trouble, Ellis
testified that Johnson might have been referring to the
meeting of employees which Johnson had called on the
night of June 13 at which time Ellis had asked Johnson
whether Ellis might see the contract between the Company
and the State of New York in order to ascertain whether
the employees were being paid as much as the contract
called for
Ellis returned to the Company s office the next day in
order to get his final paycheck He met a group of employ-
ees and was present during the discussion that they had
with Licata When asked what occurred Ellis testified,
"Well, they talked about Troy Johnson , but I was not real-
ly paying too much attention I was already at the office
the day before I already heard it I heard it previously, the
day before "
Troy Johnson testified that several times he found Ellis
drunk and in the bathroom when Ellis was supposed to be
at work According to Johnson , Aubrey Solomon and
James Whetstone also had drinking problems and "they're
in some kind of clique They stick together They never
seem to stay where they are placed They are not always
there when I make my rounds in the daytime ' Johnson
reprimanded them about their drinking and when he
deemed that their drinking problems had become unbear-
able he reported to Paul Scarborough that "these guys were
in no shape to do the fob " Johnson made this report "a
couple of days before they went up to the office "
According to General Counsel , on June 18 Respondent
discharged five more guards , namely, Daniel Walker,
Alfred Padilla , James Whetstone , Alberto Benitez, and
Walter Caseres 13 Daniel Walker , who was hired by the
Company in early 1974 and who signed a union authoriza-
tion card on June 13 , 1975, testified that when he reported
for work on Wednesday, June 18, he was told not to sign in
but to go to the Company 's office He left and waited out-
side the Hospital Shortly thereafter Padilla , Whetstone,
and several other men came out , "six of us in all " Walker
13 Alberto Benitez and Walter Caseres were not called as witnesses
suggested that they meet at the office at 10 30 so that they
could get their paychecks at the same time, as Wednesday
was the day on which they were paid The group went to
the office as planned where they met with Company Presi
dent Licata Also in the office at the time were Paul Scar-
borough and two female employees According to Walker,
Licata informed the guards, "I'm going to lay you fellows
off for a while, for a few days " Walker asked why and
Licata said, `[I]t's getting a little tight now " Walker re-
monstrated, `Why would you lay us off and you're still
hiring people" Licata repeated that he was going to lay off
the guards and Walker asked whether they were being
fired, to which Licata responded, "I'm firing you " Walker
then asked for a layoff slip which was refused Licata told
them that when they applied for unemployment compensa
tion they should say that they had been fired and the un-
employment compensation officials would get in touch
with the Company Walker further testified that Licata
gave the other five guards their paychecks but ripped up
Walker's check and threw it on the floor with the remark,
"That's the way that you get paid " However, Walker re-
ceived another check later the same day
On cross-examination, Walker testified that he described
to Licata how badly Johnson behaved towards the other
guards and told Lica*a that if Licata did not get rid of
Johnson the Company was going to have some rough
times down there" and that if Johnson didn't change his
ways Licata would have to get rid of Johnson or Licata
would lose the Hospital job Licata refused to discharge
Johnson
Walker further testified on cross-examination that he re-
mained in the office after the other guards left Licata in
structed the bookkeeper to make out a check for Walker
which Licata gave to him Licata then said to Walker,
`You didn't make no trouble for me " Walker replied,
"No, I didn't This is something that has got to happen '
The meeting concluded with Licata inviting Walker to
[c]ome up and have dinner with me tomorrow,' which
Walker said he would do However, Walker did not have
dinner with Licata the next day
Walker also testified on cross examination that after his
termination by the Company he went to the unemploy-
ment compensation office where he was told that he need-
ed a layoff slip He did not thereafter return Walker de
med that Licata offered him a job at another location
Alfred Padilla testified that he was hired by the Compa-
ny in April 1975 and signed a union authorization card on
June 11 On June 18 when he reported for work he was told
not to sign in but to go to the Company's office He left the
Hospital and went outside where he met Walker They
waited for a while and were soon joined by James Whet-
stone, Alberto Benitez, and Walter Caseres Later that
morning the same group went to the Company's office
When they entered, Richard Licata told Paul Scarborough
to get their checks ready Licata then went into another
room When he returned, he told them he wanted their
badges, their uniforms, and their identifications At that
point an argument developed between Licata and Daniel
Walker Padilla testified that he does not remember much
of what was said He remembered Walker saying that Troy
Johnson had manhandled him Padilla also recalled that
PROTECTIVE INVESTIGATIVE SERVICE
Licata ripped up Walker's check Padilla testified that
Walker asked for a layoff slip and Licata replied that if the
personnel at the unemployment compensation office re-
quired any such information they would have to contact
the Company
Padilla further testified that about a week after June 18
he reported to the unemployment compensation office In
his prescnce the clerk telephoned the Company The clerk
then advised Padilla that she had been informed that Padil-
la had walked out on his job and that the Company was
willing to take him back but not to work at the same loca-
tion where previously he had been working Padilla testi-
fied that he did not return to work for the Company be
cause he then was picketing the Company
James Whetstone testified that he was hired by the Com-
pany about Easter time in 1975 and that he signed a union
authorization card on June 12 He further testified that
when he reported for work at 7 a in on June 18 he was told
not to sign in but to go to the Company's office When he
left the Hospital he met Walker, Padilla, Benitez, and Ellis
outside the gate The group agreed to meet at the
Company's office at 10 30 a in They met as planned and
went into the office together where they saw Richard Lica-
ta, Paul Scarborough, and one of Richard Licata s broth-
ers-in-law According to Whetstone, Walker was the first to
speak An argument developed between Walker and Licata
about employees not receiving payroll stubs showing the
amounts of money withheld from their pay They also dis-
cussed Troy Johnson 14 Then Licata said to the guards,
"You all could get your checks now Turn in your uni
forms, your badges and your ID cards " Whetstone asked
Licata's brother-in-law what that meant and he said,
"You're fired " According to Whetstone, Licata informed
them that they were being discharged because Troy John-
son didn't want them at the Hospital any longer
Benjamin Ellis testified that the conversation on June 18
was largely between Licata and Walker They discussed the
fact that the employees did not get pay stubs and they also
talked about Johnson After the discussion concluded and
Licata had distributed the paychecks, Licata said, "Now, if
you want to, you could turn in your badges or uniforms
and ID cards anytime that you get ready ' Ellis further
testified that he understood that when Licata told the
guards that they could turn in their badges and uniforms it
was in order that they could obtain the return of their $30
deposit for the equipment
The testimony of Respondents witnesses as to what oc-
curred on June 18 varies significantly from the testimony
of General Counsel's witnesses Troy Johnson testified that
on Tuesday, June 17, he was informed that a delegation of
employees were planning to go to the Company s offices
The next day, June 18, when Johnson reached the Hospital
about 7 30 am he observed Solomon, Walker, Ellis, and
Benitez waiting outside He asked why they were not inside
and they responded that they were not going to work
Johnson telephoned Scarborough and told him to expect
14 According to Whetstone Walker complained to Licata that Johnson
was rough with the people and Licata responded that Johnson was the man
they had for the Job at the Hospital
1135
some guards who were coming to the office and didn't
want to work
Anthony Rutigliano testified that as he was on his way
into work on the morning of June 18 he saw Walker, Beni-
tez, Ellis, Caseres, and Solomon grouped together He
heard Walker call to Elisamanuel Martinez, who was walk-
ing behind Rutigliano, telling him that they were getting a
group together to see Licata because they didn't want to
work under Johnson's direction Johnson, who was in the
vicinity, told Rutigliano that he would take care of the
situation
Richard Licata testified that he learned about the
Union's organizational drive on or about June 11 and
shortly thereafter he received a report from Johnson that
there was much running around on the job and that a ma-
jority of the men were not paying attention to what they
were supposed to be doing According to Licata, "[t]hey
were more concerned with the union, I would imagine, or
other things, and they were not paying attention to their
fob"
Licata further testified that when he arrived at his office
about 10 15 on June 18 a group of guards were waiting for
him Darnel Walker said that he wanted to talk about a
problem Walker explained, "We want you to move Troy
[Johnson] off the job, we can't get along with him, he's too
tough with the men, he abuses us, he doesn't treat us right "
There was further discussion of the subject Walker then
advised Licata that the guards were not going to return to
work if Johnson remained in charge Licata informed the
group that he would not remove Johnson However, he
told the guards that if they did not wish to work with John
son he had other jobs to which he could transfer them The
response of the guards was that they did not want to trans-
fer to other jobs but wanted Johnson removed from the
Hospital All the guards were insistent that they would not
work with Johnson The discussion became louder and
Walker spoke abusively about Johnson Licata told Walker
to take his check and leave and come back another time
when he could talk like a gentleman Walker responded
that he didn't want his check Licata asked the other
guards whether they wanted their checks and when they
indicated they did Licata distributed the paychecks to
them Licata offered Walker his paycheck, but instead of
accepting it Walker angrily said that he did not want the
check, that Licata needed it more than he did, and he be
gan cursing Johnson and calling him names At this Licata
angrily ripped Walker's check and threw it on the floor
After Licata tore up Walker's check, Walker became calm
Licata then told the group that he would discuss anything
they wished to talk about except the removal of Johnson
from the Hospital The men thereupon asked for their uni-
form deposits back Licata offered to give them work at
other locations and offered to show them a list of all his
jobs and to let them pick places where they wished to work
The response was that they wished to remain at the Hospi-
tal but without Johnson in charge or they did not want to
work at all Licata was again requested to return the depos-
its, to which he replied that when the guards brought back
their uniforms he would return their deposits With that, all
the guards except Walker left Walker apologized for curs
ing in front of the office personnel Licata accepted the
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
apology and asked Walker if he wanted his paycheck Re-
ceiving an affirmative response from Walker, Licata in-
structed one of the office employees to prepare another
check which was delivered to Walker Before Walker left,
Licata told him that he could return anytime he wished for
further talk Licata specifically testified that he did not dis-
charge any of the guards that came to the office on June
1 8 15
Paul Scarborough corroborated Licata's testimony con-
cerning the June 18 occurrence in all material respects
Contrary to General Counsel, Licata's versions of his
conversations with Solomon on June 16 and the other
guards on June 18 sounds more probable than do the ver-
sions given by General Counsel's witnesses In particular,
if, as General Counsel contends, Licata had requested the
employees to report to the office in order to discharge them
it does not appear likely that the animated discussions con-
cerning Troy Johnson would have taken place All t' e wit-
nesses who testified about the events, including those
called by General Counsel, are in agreement that the dis-
cussion on June 16 and the discussion on June 18 were
largely devoted to the guards' complaints about Johnson
Also, Licata's testimony regarding the destruction of
Walker's paycheck and the later delivery of another check
to Walker is more reasonable than the explanation given
by Walker Further, the testimony of Walker and Padilla
concerning their efforts to obtain unemployment compen-
sation does not ring true I am of the opinion that Walker
and Solomon, who were General Counsel's two principal
witnesses, were unreliable Their testimony lacks coherence
which reflects poor memories or comprehension or both,
and appears to have been contrived to furnish a basis for
their charges in this matter On the other hand, both Licata
and Scarborough impressed me as being reliable witnesses
Their testimony was straightforward, they were not eva-
sive, and they appeared to have good recollections of what
occurred I credit Licata and I find that Respondent did
not discharge Solomon, Walker, Padilla, Whetstone, Beni-
tez, or Caseres and that they voluntarily left the
Company's employ
The testimony of Benjamin Ellis was not contradicted
Thus, I find that he was discharged on June 17 General
Counsel argues that, absent a specific and credible expla-
nation for Ellis' discharge, his conduct at the June 13 meet-
ing of employees, where he asked to see the contract be-
tween the Company and the State of New York in order to
ascertain whether the guards were being underpaid, added
to the fact that Johnson must have learned that Ellis had
signed a union authorization card by reason of Johnson's
interrogation of all the guards, supports the inference that
Ellis was discharged for his union activities Although the
testimony is undisputed that Ellis had been reprimanded
several times for drinking on the job, Respondents wit-
15 Licata testified that it is not the practice of the Company to give em
ployees who are discharged a layoff slip He further testified that towards
the end of June he received a telephone call from a woman who identified
herself as an employee of the unemployment compensation office who in
formed Licata that Padilla was with her and that according to the form
which the Company had filed the Company had work for him Licata real
firmed that the Company had work for Padilla and that Padilla had left the
job voluntarily
nesses testified that Solomon and Whetstone were guilty of
the same offense and were not discharged Thus, there is
no reason to infer that Ellis was discharged for drinking on
the job Accordingly, in agreement with General Counsel, I
find that Benjamin Ellis was unlawfully discharged on
June 17
I find that General Counsel has not proved the allega-
tion of the complaint that on or about June 15 Richard
Licata unlawfully interrogated employees about their
union membership or activities
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and sub
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of
commerce
V THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it cease and desist
therefrom and that it take certain affirmative action de-
signed to effectuate the policies of the Act
Having found that Respondent unlawfully discharged its
employee Benjamin Ellis on June 17, 1975, 1 shall recom-
mend that Respondent make him whole for any loss of
earnings he may have suffered by reason of the discrimina-
tion against him by payment to him of a sum of money
equal to that which he normally would have earned from
the date of his discharge until October 29, 1975, when an
unconditional offer of reinstatement was transmitted to
Benjamin Ellis, less his net earnings during such period
The backpay provided for herein shall be computed on the
basis of calendar quarters, in accordance with the method
prescribed in F W Woolworth Company, 90 NLRB 289
(1950) Interest at the rate of 6 percent per annum shall be
added to such net backpay and shall be computed in the
manner set forth in Isis Plumbing & Heating Co, 138
NLRB 716 (1962) Respondent's unlawful activities, partic-
ularly the discriminatory discharge of Benjamin Ellis, indi-
cate a purpose to defeat self organization of its employees
These unfair labor practices are potentially related to other
unfair labor practices proscribed by the Act Therefore, to
effectuate the policies of the Act, an order requiring Re
spondent to cease and desist from in any manner infring-
ing upon the rights of employees guaranteed in the Act is
deemed necessary
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following
CONCLUSIONS OF LAW
1 By discriminatorily discharging Benjamin Ellis on
June 17, 1975, thereby discouraging membership in the
Union, Respondent has engaged in and is engaging in un-
PROTECTIVE INVESTIGATIVE SERVICE 1137
fair labor practices within the meaning of Section 8(a)(3) of
the Act
2 By reason of said discharge and by the unlawful inter-
rogation of its employees concerning the Union, Respon-
dent has interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7
of the Act and thereby has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act
3 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended
ORDER 16
Respondent, Protective Investigative Service, Inc,
Bronx, New York, its officers, agents, successors, and as-
signs, shall
I Cease and desist from
(a) Discharging or otherwise discriminating against em-
ployees in regard to their hire, tenure of employment, or
other terms and conditions of their employment in order to
discourage membership in Local 814, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organization
(b) Unlawfully questioning employees about their mem-
bership in the above-named Union, or any other labor or-
ganization, or about other union activities
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act
2 Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act
(a) Make Benjamin Ellis whole for any loss of earnings
he may have suffered by reason of Respondent's unlawful
discrimination against him in the manner set forth in the
section of this Decision entitled "The Remedy "
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order
(c) Post at its place of business in Bronx, New York and
at the Lincoln Memorial Hospital jobsite copies of the at-
tached notice marked "Appendix " i7 Copies of said notice,
on forms provided by the Regional Director for Region 2,
after being duly signed by Respondent's representative,
shall be posted by it 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 by Respondent to insure that said notices are not
altered, defaced, or covered by any other material
(d) Notify the Regional Director for Region 2, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith
IT IS FURTHER ORDERED that the allegations in the com-
plaint of violations of Section 8(a)(1) and (3) be dismissed
except insofar as specific findings of violations of these
sections have been made above
16 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board the findings
conclusions and recommended Order herein shall as provided in Sec
102 48 of the Rules and Regulations be adopted by the Board and become
its findings conclusions and Order and all objections thereto shall be
deemed waived for all purposes
17 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals the words in the notice reading Posted by Order
of the National Labor Relations Board shall read Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discriminate
against any employees in regard to their hire, tenure of
employment, or any other term or condition of their
employment in order to discourage membership in Lo-
cal 814, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
or any other labor organization
WE WILL NOT unlawfully question employees about
membership in the above-named Union or any other
labor organization or about other union activities on
their part
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through repre-
sentatives of their own choosing, or to engage in other
concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain
from any or all such activities
WE WILL make Benjamin Ellis whole for any loss of
earnings he may have suffered by reason of our un-
lawful discrimination against him
PROTECTIVE INVESTIGATIVE SERVICE, INC