Rogers Security Police

National Labor Relations Board - Board Decisions

Aug 7, 1984

271 N.L.R.B. 891 (N.L.R.B. 1984)

ROGERS SECURITY POLICE
Rogers Security Police, Inc. and Elton Godwin.
Case 2-CA-18711
7 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 8 March 1983 Administrative Law Judge
Joel P. Biblowitz issued the attached decision. The
General Counsel and the Respondent filed excep-
tions and supporting briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order and to adopt the recommended
order as modified.
The judge found that the Respondent did not
violate Section 8(a)(3) of the Act by discharging
Godwin on 5 April 1982.1 We find no merit in the
General Counsel's exceptions to this finding. The
judge further found that the Respondent violated
Section 8(a)(l) of the Act 5 April by interrogating
two of its employees (one of which was alleged
discriminatee Elton Godwin) regarding how they
voted in a mail-ballot election and by conditioning
their reemployment on the success of a certain
union in the election. In the absence of exceptions
we adopt these conclusions. Finally, the judge con-
cluded that the Respondent violated Section 8(a)(3)
of the Act by failing and refusing to reemploy
Godwin. We find merit in the Respondent's excep-
tions to this conclusion and, for the reasons set
forth below, reverse the finding of the judge and
dismiss the applicable complaint allegation.
The facts are fully set forth in the judge's deci-
sion. The Respondent had a collective-bargaining
agreement with Local 238, Security and Protective
Employees' Union, SEIU, AFL-CIO (Local 238),
effective from I December 1981 through 31 De-
cember 1982. The contract covered only those em-
ployees of the Respondent providing security serv-
ices at the Bronx Development Center (Center).
The Charging Party (Godwin) commenced em-
ployment with the Respondent in August 1981 as a
security guard at the center. About December
1981, the Brotherhood of Security Personnel Offi-
cers and Guards International Union (Brotherhood)
filed a petition with the Board seeking to represent
certain employees of the Respondent. Godwin
All dates refer to 1982 unless otherwise indicated.
signed an authorization card for Local 238 about
September 1981 and one for the Brotherhood about
December 1981. Based on timely objections to a
secret-ballot election conducted in January 1982, a
second election by mail-ballot was conducted from
22 March to 13 April 1982.
On 2 April the Respondent's president, Rogers,
received a letter from an official of the Center re-
questing that Rogers terminate three employees, in-
cluding Godwin, for allegedly engaging in various
acts of misconduct at the Center. Rogers arranged
a meeting on 5 April with Godwin and another im-
plicated employee, O'Connor. 2 During the meeting
Rogers informed the two men that because of the
letter he had received from the Center he had to
terminate them. Rogers further told them that
there would be other jobs and he would put them
back to work as soon as something materialized.
According to Godwin's credited testimony, after
Rogers informed Godwin and O'Connor that they
were fired he asked them who they voted for in
the ongoing mail ballot election. Godwin respond-
ed "the Brotherhood" whereas O'Connor replied
"Local 238." Rogers then inquired as to whether
they had already mailed their ballots and both men
responded in the affirmative. Rogers then stated
that if Local 238 won the election they would get
their jobs back. He further commented that in new
negotiations he was not giving up any more than
he had already and before he did he would "just
forget the place."
O'Connor was reemployed by the Respondent
on 7 April. The judge found that between 5 April
and 8 June the Respondent made no attempt to
contact Godwin to offer him reemployment. On 8
June Rogers wrote a letter to Godwin offering him
a job at United Cerebral Palsy (UCP). In response
to the letter Godwin called the Respondent's office
and spoke with Rogers' daughter, Barbara. Godwin
informed Barbara that when he was first hired by
the Respondent he made it clear he had an aver-
sion to working with guard dogs and that since
guard dogs were utilized at UCP he could not
work there. Godwin refused the job offer and the
Respondent thereafter did not offer him reemploy-
ment.
Upon review of the record we find insufficient
evidence to support the judge's conclusion that the
Respondent unlawfully refused to reemploy or re-
instate Godwin because Godwin supported the
Brotherhood rather than Local 238, the Union
which General Counsel maintains the Respondent
2 The third employee, Swain, worked at the Center on a pan-time
basis. After receiving the letter from the Center, Rogers informed Swain
that he would no longer be assigned to that facility.
271 NLRB No. 142
891
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
preferred. In reaching his conclusion, the judge
relied on Rogers' unlawful statement regarding
Local 238 winning the election and on Rogers'
comment that in new negotiations he was not
giving up any more than he already had. Since the
Respondent already had a contract with Local 238,
the judge construed Rogers' statement regarding
"new negotiations" to mean "if the Brotherhood
won the election and he had to negotiate with
them." The judge, concluding that "these state-
ments establish that Respondent favored Local 238
over the Brotherhood," found that Godwin was
not reemployed by the Respondent because he in-
formed Rogers that he had voted for the Brother-
hood. We cannot accept the judge's analysis of the
evidence bearing on this issue or the manner 'in
which he construed Rogers' statements. The state-
ment is ambiguous and thus susceptible to various
interpretations, including a neutral interpretation
that neither Local 238 nor the Brotherhood would
get more from negotiations than had Local 238
under its current bargaining agreement. According-
ly we are not convinced that this statement evi-
denced an unlawful preference for one union as op-
posed to another. Further, we find that the sole re-
maining comment made by Rogers and relied on
by the judge (i.e., incumbent Local 238 winning
the election) does not serve the purpose of estab-
lishing that the Respondent unlawfully discriminat-
ed against Godwin. The comment was made after
both Godwin and O'Connor were terminated and
was directed to both individuals. In making the
comment, Rogers did not differentiate between
Godwin and O'Connor as to their opportunities for
reemployment based on their personal union pref-
erences.
The judge argued with respect to the 8 June
offer of reemployment that the Respondent's secre-
tary, Barbara, could have informed Godwin that
dogs were no longer being used at UCP. In doing
so, the judge ignored the fact that there is no evi-
dence in the record that Barbara was aware that
the use of dogs by UCP had been discontinued. 3
Further, Barbara was not alleged nor shown to be
a supervisor of the Respondent and therefore her
responsibility to inform Godwin of such details, if
known, is questionable. Most importantly, Godwin
refused the offer of reemployment.
We conclude that the General Counsel has failed
to establish that the Respondent unlawfully dis-
criminated against Godwin by refusing to reemploy
him. In particular, the General Counsel failed to
s Despite the evident misunderstanding regarding the usage of dogs at
UCP, the record does not support any finding that the position offered
Godwin at UCP was made in bad faith given that dogs in fact were no
longer used there.
show that the Respondent treated Godwin in a dis-
parate manner as compared to O'Connor. No evi-
dence was submitted that Godwin should have
been preferred over O'Connor for the Respond-
ent's first available job opening on 7 April. The
General Counsel also failed to submit any evidence
that Godwin at any time following his lawful ter-
mination sought reemployment with the Respond-
ent. Likewise, there is no evidence as to the results
of the second election or whether any attempt by
Godwin to seek reemployment would have been
futile. Further, the General Counsel's argument
that Godwin's preference for the Brotherhood was
well known is rebutted both by Godwin's minimal
union activity as outlined by the judge and by the
fact that Godwin became the steward for Local
238 3 days before his discharge. Based on the
record as a whole, we find that there is insufficient
evidence either of discriminatory motivation on the
part of Rogers or of a causal connection between
any unlawful statements made by Rogers and the
alleged refusal to reemploy Godwin. Accordingly,
the applicable complaint allegation is dismissed. 4
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Rogers Security Police, Inc., Bronx,
New York, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Delete paragraph l(c) and reletter the subse-
quent paragraph.
2. Delete paragraph 2(a) and reletter the subse-
quent paragraphs.
3. Substitute the attached notice for that of the
administrative law judge.
4 For reasons stated by the judge, Member Zimmerman would find
that the Respondent violated Sec. 8(a)(3) and (1) by refusing to rehire
Godwin.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT interrogate our employees regard-
ing how they voted in an election conducted by
the National Labor Relations Board.
892
ROGERS SECURITY POLICE
WE WILL NOT condition the reemployment or
reinstatement of our employees on Local 238, Se-
curity and Protective Employees' Union, SEIU,
AFL-CIO winning the Board-conducted election,
as compared to Brotherhood of Security Personnel
Officers and Guards International Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
ROGERS SECURITY POLICE, INC.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This
case was heard before me on January 13, 1983. The com-
plaint, which issued on May 21, 1982, and was based on
an unfair labor practice charge filed on April 7, 1982,1
by Elton Godwin, alleges that Rogers Security Police,
Inc. (Respondent), violated Section 8(a)(1) and (3) of the
Act by discharging Godwin on April 5, and by refusing,
thereafter, to reinstate him, and by conditioning the re-
employment of its employees on the outcome of a then
pending Board mail-ballot election, and by interrogating
its employees regarding their union activities on the same
date. Respondent denied these allegations.
On the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent, a New York state corporation with its
principal office located in Bronx, New York, is engaged
in providing security services to various employers in the
city of New York. One of these customers to whom Re-
spondent provides such security services is the Bronx
Developmental Center, the Center, a psychiatric and re-
habiliation facility owned and operated by the State of
New York, which itself is engaged in interstate com-
merce and meets a Board standard for the assertion of ju-
risdiction, exclusive of indirect inflow or outflow. Annu-
ally, Respondent provides guard services valued in
excess of $50,000 to the Center. Respondent admits, and
I find, that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Respondent admits, and I find, that Local 238, Securi-
ty and Protective Employees' Union, Service Employees
International Union, AFL-CIO (Local 238), and Broth-
erhood of Security Personnel Officers and Guards Inter-
national Union (the Brotherhood), are each labor organi-
zations within the meaning of Section 2(5) of the Act.
I All dates referred to herein relate to 1982 unless otherwise stated.
1II. FACTS AND ANALYSIS
Pursuant to a petition filed by the Brotherhood and a
Decision and Direction of Election issued by the Acting
Regional Director for Region 2 of the Board, a secret-
ballot election was conducted on January 22 among Re-
spondent's employees employed at the Center. Based on
timely objections to this election filed by Local 238, the
Regional Director of Region 2 issued a Supplemental
Decision and Direction of Second Election, pursuant to
which a rerun mail ballot election was scheduled to be
conducted from March 22 to April 13. The discharge
and other unlawful actions alleged occurred on April 5;
the only witnesses testifying at the hearing herein were
Godwin and Morton Rogers, president of Respondent.
The General Counsel alleges that Respondent dis-
charged and refused to reinstate Godwin because he sup-
ported the Brotherhood, rather than Local 238 which, he
alleges, Respondent preferred over the Brotherhood. Re-
spondent defends that it had no preference between the
two unions and terminated Godwin from his employ-
ment at the Center because the Center dictated that it do
so.
Godwin commenced his employment with Respondent
in August 1981; he worked as a guard, with a post on
the floor at the Center on the 4 p.m. to midnight shift;
his job also entailed answering phones and patrolling the
grounds; his immediate supervisor on the premises was
James O'Connor Jr.
On March 30, James Shea, deputy director of adminis-
tration for the Center, wrote the following letter to Re-
spondent:
Dear Mr. Rogers:
Pursuant to our discussion on March 17, 1982, I
am requesting that you terminate from this work lo-
cation the following persons: James O'Connor, Jr.;
Elton Godwin; and Kenneth Swain. The reasons for
the terminations were discussed at length during
our meeting, but I will summarize the reasons.
On January 23, 1982, eight large corridor win-
dows were observed shattered on the fourth floor
of the J Building. The investigation of this damage
lead to the conclusion that the above-named officers
were on duty and were observed throwing a "bean-
bag-like" object at 9:00 p.m. on Friday, January 22,
1982. It is my conclusion that this action or actions
taken by the above caused the damage to the win-
dows. The estimated cost of the damage exceeds
$3,500.
On February 26, 1982, James O'Connor, Jr., and
Elton Godwin were observed carrying a typewriter
through the J-4 corridor. Their explanation for their
possession of the typewriter was less than accepta-
ble, and the entry in the log did not adequately ex-
plain the possession. They were instructed to pro-
vide a detailed description of the incident, but did
not provide this description. Also, that same
evening, Mr. Swain's speech was slurred, and he ap-
peared intoxicated.
In addition, subsequent to our meeting, a type-
writer was found at the loading dock area. Again,
893
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr. O'Connor was on duty when this discovery
took place. Also, there have been intruders on the
J-5 level, and those doors are monitored at the secu-
rity desk. There has never been a report in the log
that those doors were opened. Since those doors
were put on the lock monitoring system, five (5)
transcribers and two (2) typewriters have been
stolen. It is apparent that the security personnel
have not been doing their jobs.
It is quite apparent that the lack of good and ap-
propriate supervision has led to a number of prob-
lems. It is imperative that you provide better super-
visors at this facility. Your immediate attention to
better supervision and the termination of the above-
named persons is necessary.
Rogers testified he received this letter on Friday,
April 2 (even though the Center is located only a mile
from Respondent's office); he testified that on either that
day or Monday, April 5," I called [O'Connor] at the
center that afternoon and told him to report in to the
office Monday with Godwin." 2 When they reported to
his office on the morning of April 5, he showed them the
letter from Shea; he told them that due to the letter he
had to terminate them,3 but there would be other jobs,
and as soon as something came in he would put them
back to work. Rogers testified that during this meeting
(which took about 20 minutes) he never questioned
Godwin or O'Connor about unions or their preference in
the election. He also testified that Shea had discussed the
"beanbag incident" (discussed in the second paragraph of
Shea's letter) with him in either late January or early
February; at this meeting, Shea informed him that state
investigators believed that the damages mentioned were
caused by an air pistol. After this meeting with Shea
(which took place at the Center), Rogers spoke to
O'Connor 4 (who was the "supervisor" of Respondent's
men at the Center) and told him that he should watch
the men to be sure that nothing similar occurred again.
As regards the effect of Shea's letter on Swain, Rogers
testified that Swain only worked at the Center on week-
ends, so Rogers waited until Wednesday, April 7, when
Swain came to Respondent's office to pick up his check,
and, at that time, Rogers told him that he was being dis-
continued at the Center.
Godwin testified that between 10 and 11 a.m. on April
5, he received a telephone call at his home from O'Con-
nor who informed him that he (Godwin) was fired, and
Rogers wanted him (Godwin) to call him. Godwin im-
mediately called Rogers and said that O'Connor in-
formed him that he was fired, and he asked Rogers why
he was fired; Rogers said that Godwin should come to
his office, which he did that same morning. He, O'Con-
nor, and Rogers met in Rogers' office, Godwin asked
Rogers why he was fired, and Rogers showed him
Shea's letter. Rogers read from the letter and repeated its
2 Since Rogers testified that O'Connor and Godwin came to his office
on April 5 about 10 a.m., it is reasonable to assume that he called O'Con-
nor on April 2.
3 He testified that he did not decide to terminate them--"This letter
decided."
4 Rogers first testified that he "spoke to the men" about the problem.
accusations; Godwin denied any involvement in these in-
cidents. 5 Godwin testified further "after he told us we're
fired he asked us who we voted for"; Godwin told him
that he voted for the Brotherhood and O'Connor said
that he voted for Local 238. Rogers asked them if they
had mailed in their ballots and they both said that they
had. According to Godwin's testimony, Rogers then said
that if Local 238 won the election they would get their
jobs back. Rogers then told them that, in new negotia-
tions, he would not give the employees more than they
then had; he would "give the place up" before he did so.
According to Godwin's testimony, this meeting took
about 40 to 45 minutes; the first half encompassed a dis-
cussion of Shea's letter and the second half was a discus-
sion of the unions.
Godwin testified, further, that when he and O'Connor
left Respondent's office they went to the Local 238
office, where they met a representative of Local 238,
whom Godwin described only as Neil. Neil spoke first
and told them that there was nothing he could do for
them and that they should not have gotten involved with
the Brotherhood. Neil offered O'Connor a job (which he
refused), but did not offer Godwin a job.
As stated, supra, the General Counsel also alleges that
Respondent refused to reemploy or reinstate Godwin be-
cause he assisted the Brotherhood rather than Local 238;
there is a major credibility issue in this regard as well.
Rogers testified that on two occasions after Godwin was
discharged, he asked his secretary to call Godwin to tell
him that Respondent had worked for him. The first call
occurred on about April 18; the second one was about 2
weeks later. On each of these occasions, Rogers heard
his secretary dial the phone and ask to speak to Godwin;
he then heard his secretary say: "Would you please have
Mr. Godwin call the office that we have a job open for
him." Godwin never called Respondent's office in
answer to these telephone calls. During this period the
Board was investigating the unfair labor practice charge
filed by Godwin on April 7. Sometime shortly prior to
June 8, Rogers had a conversation with the Board agent
about offering reemployment to Godwin; the Board
agent told him to put it in writing. On June 8, Rogers
wrote the following letter to Godwin:
We have a job open for you starting Monday
night June 14, 1982, at 12 midnight to 8 am Tues-
day morning for five nights a week, ending on Sat-
urday Morning at 8 am.
There will be another man working with you.
The job is at United Cerebral Palsy, 1700 Stillwell
Ave., Bronx, New York.
Will you please let us know if you will accept
this job by Friday June 11, 1982 by 12 Noon.
On April 20, Godwin returhed to Respondent's prem-
ises where he returned his uniform and badge and, in ex-
change, received a check (signed by Roger's secretary)
for $10. Rogers testified that he believed that his secre-
5 Because of the nature of this matter, I find it unnecessary to repeat,
at length, Godwin's explanation of his innocence regarding these inci-
dents, and I make no finding in that regard.
894
ROGERS SECURITY POLICE
tary gave Godwin the check; Godwin testified that it
was neither Rogers nor his secretary who gave him the
check; it was a man who was the only person present in
the office at the time (he does not remember his name).
Godwin further testified that after April 5 he received
no messages or calls from Respondent's office offering
him employment; nobody is home at his residence until
3:30 p.m.
In regard to the June 8 letter offer of reemployment at
United Cerebral Palsy (UCP), Godwin testified that after
receiving this letter he called Respondent's office and
spoke with Rogers' daughter, Barbara, and told her that
when he was first employed by Respondent he made it
clear that he was afraid of dogs, and guard dogs were
employed at UCP. 6 Godwin and Barbara began to argue
and she told him to stay off the grounds at the Center;7
Rogers' daughter then made a racially disparaging
remark and Godwin told her "take the goddamn job and
shove it." Admittedly, the June 8 letter was the final
offer of reemployment.
Godwin testified that he knew there were dogs em-
ployed at UCP because at lunchtime (prior to their ter-
mination) he and O'Connor used to drive to that loca-
tion. Rogers testified that there were dogs at UCP until
May 24; Respondent rents guard dogs from a dog com-
pany and supplied them to UCP. He testified that on
May 24 UCP discontinued the dogs, although he never
discussed it with Godwin; Godwin testified that in his
conversation with Rogers' daughter, after he received
the June 8 letter, she did not tell him that there were no
longer dogs on the UCP job.
Respondent obtained another job for O'Connor, where
he worked 2 or 3 days a week; he did not like the job
and asked Rogers to find a different job for him. At the
end of 1982 Respondent placed O'Connor as the sole
guard on a building in Riverdale that the Center is reha-
bilitating; this building is at a different location from the
Center, and Rogers testified that he does not believe that
Shea knows that O'Connor is working there. He testified
he placed him there, "because the man has a car and
how many men can you get with a car to go to work
like that . . . it's out of the way." O'Connor works the
midnight to 8 a.m. shift before the construction employ-
ees arrive. Godwin testified that on April 7 O'Connor in-
formed him that he was back working for Respondent,
but he did not like where he was working, and he told
Rogers that if he could not work at the Center he would
not work anyplace.
Respondent had a collective-bargaining agreement
with Local 238 effective from December 1, 1981,
through December 31, 1982, covering only its employees
at the Center. Godwin, O'Connor, and the other guards
at the Center began discussing the union situation seri-
6 Godwin testified that after being employed by Respondent for
awhile, Joe Slaughter (position unstated) asked him to work at UCP for a
few days; Godwin told Slaughter that he could not because he was afraid
of dogs. Godwin also testified that by June Slaughter was no longer em-
ployed by Respondent.
' Godwin testified that an incident occurred in about early May, when
he went to the Center to meet a woman friend who was employed there.
While he was standing at the security desk in the lobby, Rogers' daugh-
ter told him to get off the grounds or she would call the police.
ously in about December 1981, when Neil regularly
came to the Center to talk to them about Local 238.
Later, after the Brotherhood had filed its petition, he,
O'Connor, and the other guards discussed the Brother-
hood, as well. Godwin signed an authorization card for
Local 238 in about September 1981, and one for the
Brotherhood in about December 1981. On April 2, there
was a discussion at the Center in which Neil, Godwin,
O'Connor, and four of the other guards at the Center
were present. The previous shop steward had ceased his
employment with Respondent. Neil asked Godwin to
become the new shop steward for Local 238 and
Godwin said that he would take the position if Neil re-
negotiated the contract with Respondent, which Neil
agreed to do.
The General Counsel's case could clearly be described
as bare bones. Godwin's union activity was minimal and
there was no supporting testimony regarding the April 5
meeting with Rogers; credibility is therefore vital to the
General Counsel's case. In that regard, I would credit
Godwin's testimony over that of Rogers. Although
Rogers did not appear to be totally incredible, I found
him to be generally hostile to making any admissions,
and he appeared to be structuring his testimony to best
serve his case, whereas Godwin appeared to be open and
freely willing to admit facts, even when it was harmful
to his case.
I find that the General Counsel has not sustained his
burden as set forth in Wright Line, 251 NLRB 1083
(1980), to establish that Godwin's discharge violated Sec-
tion 8(a)(3) of the Act. That case requires, first, "a prima
facie showing sufficient to support the inference that pro-
tected conduct was a 'motivating factor' in the employ-
er's decision." When Godwin and O'Connor came into
Rogers' office on April 5, Rogers showed them the letter
from Shea "requesting" that he terminate O'Connor,
Godwin, and Swain, and there is no evidence that this
letter was a fabrication or was inspired by Respondent.
At the time, the Center represented approximately one-
third of Respondent's total business so Respondent was
in no position to resist Shea's request. Further, there is
no evidence that Respondent was at that moment (i.e.,
prior to the interrogation), aware of Godwin's activities
on behalf of, or support of, the Brotherhood, 8 minimal as
they were. Finally, both Godwin and O'Connor were
terminated at the same time, although, when Rogers later
asked them which union they voted for, O'Connor told
him that he had voted for Local 238, the alleged favored
union. I therefore dismiss the allegation that Respondent
terminated Godwin on April 5 in violation of Section
8(a)(1) and (3) of the Act.
The more troublesome issue is whether Respondent
unlawfully refused to reemploy Godwin after April 5.
Within 2 days Respondent located another job for
O'Connor. Rogers testified that about April 18 it located
a job for Godwin, and left messages at his home for him
to call Respondent, but he failed to do so. Godwin testi-
8 I generally discount the significance of Godwin's testimony of the
content of his meeting (together with O'Connor) with Neil on April 5 as
establishing Respondent's knowledge of his sympathies for the Brother-
hood; it is too indefinite to serve this purpose.
895
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fled that his home was never called by Respondent after
April 5. On the basis of all the facts, I would discredit
Rogers regarding Respondent's alleged attempts to con-
tact Godwin to inform him of a job offer. In this regard,
I find especially critical Godwin's visit to Respondent's
premises on April 20 when he returned his uniform and
pin to Respondent's office and received a check for $10
in return. It appears to me that if Respondent were really
serious about reemploying Godwin, Rogers or his secre-
tary would have remained at the office or, at the least,
would have left a note for Godwin when he arrived on
that day, informing him of the job that was available to
him. It was only two days after Rogers' secretary alleg-
edly left a message for Godwin to call and Respondent
knew that Godwin would be at the office on April 20,
since the check was waiting for him. However, not only
did Respondent fail to tell him about the available job on
this occasion, it took a positive step to diminish the
credibility of its position that it was attempting to reem-
ploy him-it returned his $10 deposit to him, rather than
attempting to stop him from turning in his uniform and
pin and remaining available for employment with Re-
spondent.
Further reinforcing this view is the June telephone
conversation between Godwin and Rogers' daughter
where she told him to stay off the grounds at the Center.
Rather than expressing this animus towards him, if Re-
spondent really were attempting to reemploy him, she
would have told him of other jobs that were, or would
be, available or, if Rogers testimony were true, she could
have told him that dogs were no longer employed at
UCP.
Having found that Godwin was discriminated by Re-
spondent by not being reemployed, it is necessary to de-
termine the reason for the discrimination. I have credited
Godwin, and I therefore find that on April 5 (after he
terminated them) Rogers told Godwin and O'Connor
that if Local 238 won the upcoming election they would
get their jobs back, and in new negotiations he would
not give the employees more than they then had; that he
would "give the place up" rather than doing so. Since he
then had a contract with Local 238, "new negotiations"
meant if the Brotherhood won the election and he had to
negotiate with them. These statements establish that Re-
spondent favored Local 238 over the Brotherhood. I
therefore find that O'Connor was reemployed by Re-
spondent because he informed Rogers that he had voted
for Local 238, whereas Godwin was never reemployed
by Respondent, or offered reemployment by Respondent,
because he informed Rogers that he voted for the Broth-
erhood. Respondent's failure and refusal to reemploy
Godwin therefore violates Section 8(a)(1) and (3) of the
Act. 9
9 It should be noted that I reject the request of the General Counsel, as
stated in his brief, that because Respondent did not call O'Connor to tes-
tify to corroborate Roger's testimony, "an inference can be drawn that
O'Connor's testimony would not have been favorable to Respondent,"
citing Publishers Printing Co., 233 NLRB 1070 (1977). In that case, the
missing witnesses were supervisors within the meaning of the Act. In the
instant matter, there is no evidence that O'Connor was a statutory super-
visor on April 5 and it is reasonably clear that he was not a statutory
supervisor at the time of the hearing, as he was the sole guard at his loca-
tion.
In addition, Rogers' interrogation of Godwin and
O'Connor on how they voted in the election, and his
statement to them that if Local 238 won the election
they would get their jobs back, violated Section 8(a)(l)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent, described above in sec-
tion III, above, occurring in connection with Respond-
ent's operation described above in section I, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
CONCLUSIONS OF LAW
I. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Local 238 and the Brotherhood are each labor orga-
nizations within the meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act
by:
(a) Interrogating its employees regarding how they
voted at the Board-conducted mail-ballot election.
(b) Conditioning the reemployment of its employees
upon Local 238 winning the Board conducted mail-ballot
election.
4. The Respondent violated Section 8(a)(1) and (3) of
the Act by failing and refusing to reemploy, or offer to
reemploy, Godwin.
5. There is insufficient evidence to establish that Re-
spondent violated Section 8(a)(1) and (3) of the Act
when it terminated Godwin on April 5.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be re-
quired to cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the
Act.
As I have found that Respondent unlawfully failed and
refused to reemploy Elton Godwin, I shall recommend
that Respondent be ordered to offer him immediate and
full reemployment to a substantially equivalent job, with-
out prejudice to his seniority or other rights and privi-
leges, and to make him whole, from April 7, 1982 (the
date Respondent first reemployed O'Connor), for any
loss of earnings suffered as a result of the discrimination
by payment of a sum equal to that which he would have
earned, absent the discrimination, with backpay and in-
terest computed in accordance with F. W. Woolworth
Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231
NLRB 651 (1977). See generally Isis Plumbing & Co.,
138 NLRB 716 (1962).
896
ROGERS SECURITY POLICE
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edlo
ORDER
The Respondent, Rogers Security Police, Inc., Bronx,
New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Interrogating its employees regarding how they
voted in a Board conducted election.
(b) Conditioning the reemployment of its employees
upon Local 238 winning the Board-conducted election.
(c) Failing and refusing to reemploy Elton Godwin be-
cause he supported and voted for the Brotherhood,
rather than Local 238.
(d) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act.
10 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(a) Offer Elton Godwin full and immediate reemploy-
ment to a substantially equivalent position, without prej-
udice to his seniority or other rights and privileges, and
make him whole for any loss of pay suffered as a result
of the discrimination against him, in the manner set forth
above in the section entitled "The Remedy."
(b) Post at its principal office in Bronx, New York,
copies of the attached notice marked "Appendix.""
Copies of the notice, on forms provided by the Regional
Director for Region 2, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges that Goodwin was discharged
in violation of the Act.
"i If 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 Na:-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
897